contents gazette lawsociety

Contents

Law Society GazetteNovember 2003

1

Regulars

President’s message 3

News 4

Viewpoint 8

Tech trends 36

Briefing 39

Council report 39

Practice notes 40

Legislation update 43

Solicitors Disciplinary Tribunal 45

Personal injuryjudgment 46

FirstLaw update 49

Eurlegal 53

People and places 58

Professional information 61

Babes in the hoodJuvenile crime is a growing issue in more ways than one, and theChildren Act, 2001 is the latest attempt to get to grips with theproblem. Geoffrey Shannon looks at how the act deals with kids who fall foul of the law

12

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

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

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

Volume 97, number 9Subscriptions: �57.15

Cover Story

GazetteLawSociety

No longer Poles apartAs Poland prepares to take its place inthe European Union, the society’s EUand International Affairs Committee wasinvited to Warsaw to begin a programme ofmutual assistance. Hugh O’Donoghue reportson this show of solidarity

20

Keeping it in the familySolicitors are often asked to advise on caseswhere beneficiaries want to redivide a will.Anne Stephenson discusses deeds of family arrangement and their possible tax consequences

28

The CAT’s pyjamasThe administration of capital acquisitionstax is currently undergoing the biggestshake-up since self-assessment wasintroduced in 1989. Declan Rigney outlinesthe benefits to practitioners

24

Alternative remediesArbitration between businesses has a long and successful history. Now, the European Commission has developed an arbitration servicefor business-to-consumer contracts. Susan Reilly explains

32

Over the hills and far awayA UK House of Lords’ decision hasimplications for the issue of assessingsolicitors’ costs in that jurisdiction. Tom Murran contrasts this with theIrish position

18

COVER PIC: EVERETT COLLECTION/REX FEATURES

My dream ofholding the society’sannual conference inIstanbul was shatteredby the uncertaintysurrounding the war inIraq. However, a last-minute decision wasmade to change thevenue to Lisbon, asuitable, sunny andsuccessful alternative. Iwould like to thank the loyal and supportivecolleagues who attended. I know they enjoyed it. Itwould not have happened, of course, without theingenuity and hard work of James McCourt and hisconference committee.

Go raibh maith agaibh!There are many people without whose help I couldnot have done my job. My senior vice-presidentGerry Griffin and junior vice-president John Fishwere always on hand with helpful advice. Thesupport of the Council members – so crucial toevery president – was overwhelming. I wouldparticularly like to thank the chairmen and membersof our committees and task forces who undertook ahuge amount of work during the year and devotedtheir valuable time to the Law Society’s work.

The boundless enthusiasm and energy of KenMurphy and Mary Keane was an inspiration: theirguidance and advice were greatly appreciated.

This year would not have been possible withoutthe loyalty and commitment of my partners FrankMurphy and David Larney, Margaret Behan and allour colleagues and staff at Gleeson McGrathBaldwin. They carried a large workload in myabsence and made it possible for me to devote thenecessary time to the job.

My husband Eric, and our daughters Kate andKamala, were unfailingly encouraging andsupportive, and ensured that I had a home to go to. Ileave the presidency and Council in safe hands, and Iknow that we have a highly skilled, dedicated andhardworking profession which will rise to thechallenges that face us.

It has been a great honour to be president of theLaw Society and I am grateful for the trust that wasplaced in me. I shall miss it.

Geraldine Clarke,President

‘I leave the

presidency

in safe

hands. I

shall miss

it’

Rising to thechallengeP

arting is such sweet sorrow! This hascertainly been a bitter-sweet year for me,but one that I will never forget. It hasundoubtedly been the most exciting andenjoyable of my life, and one that

brought challenging developments for theprofession.

One of the most frustrating aspects of my year inoffice was the fact that the radical, practical and cost-free proposals for reforming the civil litigationsystem, contained in the society’s Real reformdocument, were dismissed or ignored by the tánaisteand the media in the almost unseemly rush tointroduce the Personal Injuries Assessment Board. Intheir desire to satisfy the business lobby’s agenda, theinterests of victims who have no organised voice tospeak on their behalf has been ignored. This is verywrong and even at this 11th hour, I hope that thetánaiste will open her mind to consider the positiveproposals and submissions.

Sterling work at grassroots levelI am delighted that the initiative to re-establish thePublic Relations Committee and to involve the barassociations in our effort to promote the image ofthe profession has been so successful. Almost all barassociations have now participated, and there havebeen three meetings of the public relations officers,who have now begun to do sterling work at locallevel. I would like to thank Donald Binchy, chairmanof the PR Committee, and Ken Murphy for theirhard work and enthusiasm in overseeing this andother important PR initiatives.

During the course of the year, Ken Murphy and Ivisited no fewer than 19 bar associations, and for me,these visits were among the highlights of mypresidency. The Law Society is lucky to have such astrong body of support to call on.

I acknowledge that it has not been an easy year forthe profession. Apart from the PIAB proposal,members had to cope with the introduction ofmandatory CPD from 1 July and the designation ofsolicitors under the money-laundering regulations.However, there were a great many highlights.Among them, I would include the holding of thefirst-ever council meeting in Sligo in May. It was aparticular pleasure for me as a Sligo woman to beable to do so, in the superb newly renovatedcourthouse. We were delighted to have so manyrepresentatives of Sligo and surrounding barassociations present as observers, and I know thatthey found it informative and interesting.


3

President’s message

News


4

PRACTICE MANAGEMENT NEWSThe value of a professional

practice is very subjective.There is no definitive answer to thequestion ‘what is my practiceworth?’

Various rules of thumb havebeen used to value practices in thepast:• A multiple (between one and

two) of the annual gross fees• A multiple (between three and

five) of the maintainable profitbefore tax, or

• A value based on net assets(including a full work-in-progressvaluation) plus an additional and

very negotiable figure forpractice goodwill. It may beadvisable to use legal costsaccountants to help value thework in progress.

The first two options are extremelysubjective, and wide differences willexist between the vendor and thepurchaser. The third option mixeshard fact (the real value of work inprogress on a case-by-case basis)plus a subjective add-on forgoodwill. This is the most commonmethod used.

In evaluating goodwill, the main

considerations for the purchaserare:• The past profitability of the

practice as a guide to its futureearnings potential

• Factors governing the futurecontinuation of the practice, and

• The nature and timing of theconsideration to be paid onsatisfactory completion of adeal.

In seeking to determine a practice’svalue, it is profitability that matters,not gross fee income. Althoughvendors may have expectations that

their practice is worth a multiple ofgross fees, no well-advisedpurchaser would consider buying apractice on this basis.

What should buyers look for?Simply put, quality – in terms ofclients, work and staff, goodtechnology systems and a well-stocked, easily referenced willscabinet. Potential buyers shoulddetermine past profits by getting anaccountant to review the accountsfor the past three years and adjustfor exceptional or non-recurringitems, and beware of attempts to

‘Adose of liberalisation’ ison the way for

professions across the EU.This was the phrase used byone of the many speakers at amajor day-long conference inBrussels on 28 October. Theconference had been called byEuropean Commissioner forCompetition Mario Monti. Onerepresentative from each of themajor professions in every EUmember state was invited tohear a detailed discussion ofboth the economic necessityand legal basis for the EuropeanCommission’s first-eversystematic review ofcompetition in the professions.The Law Society of Ireland wasrepresented by director generalKen Murphy.

As the final speaker of theday, Commissioner Montiannounced that he hadinstructed his staff to prepare areport on competition in theprofessions in the EU, with thereport to issue by the middle ofnext year. Both state and self-regulation of professionalservices would be examined toensure that all restrictions oncompetition operated in theinterests of consumers ratherthan suppliers of services and

Director general Ken Murphy

Professions to get‘the full Monti’

that consumer protectionobjectives were achieved by themeans least restrictive ofcompetition.

Among the earlier speakerswas the chairman of Ireland’sCompetition Authority, DrJohn Fingleton. He noted thatIreland, along with the UK andScandinavian countries, wasvery much at the liberal end ofthe scale – lightly rather thanheavily regulated – in terms ofthe level of potentially anti-competitive regulation of theprofessions as determined in arecent survey by a Vienna-basedinstitute commissioned by theEU. ‘Although Ireland is “thegood boy in the class”, there arestill problems’, he said.

CONVEYANCING HANDBOOKUPDATEThe contact name and detailsfor Arthur Dunne and DesHolmes of the Architectureand Surveying Institute thatappear at page 7.36 of theConveyancing handbookshould no longer be used.Instead, practitioners shouldcontact Kevin Sheridan, 45Mount Anville Park, Dublin 14,tel: 01 607 0500, fax: 01 6070651, mobile: 087 222 3985or e-mail: [email protected].

FLYING THE FLACThe Free Legal Advice Centreshas a new head office at 13Lower Dorset St, Dublin 1. Theoffice was officially openedlast month by Mrs JusticeCatherine McGuinness, whoalso launched a book entitledAccess to justice: the historyof the Free Legal AdviceCentres, 1969-2004 byjournalist Pádraig O’Moráin.

PARTNERSHIP BOOKLETThe Law Society’s Guidanceand Ethics Committee recentlypublished a booklet thatprovides basic information forsolicitors consideringbecoming partners in lawfirms. Copies of Partnership?are available free of chargeand can be requested from thecommittee secretary at theLaw Society or by e-mail [email protected].

Law Society president Geraldine Clarke was one of the keynotespeakers at last month’s launch of the first-ever report on

women lawyers in Ireland. Gender InJustice is based on researchconducted over 18 months by Trinity College academics Ivana Backand Catherine Costello and statistician Eileen Drew.

Clarke pointed out that she was the second woman president ofthe Law Society in succession and that 42% of the solicitors on theroll in Ireland were now women. Up to 70% of those undertakingthe current professional practice course were also women. Shewarmly welcomed the report, although she didn’t agree with all ofits conclusions. She concluded by saying that ‘we need to raiseawareness of women lawyers’ issues, and create an atmosphere inwhich belittling of women lawyers and the issues affecting them isnot tolerated’.

Women in the law

Gerry Daly speaking on behalf of the Drogheda Bar Association after the walkout from the bingo hall that doubles as a District Court

PHO

TO F

RAN

CAF

FREY

NEW

SFI

LE.IE

News


5

window-dress the past accounts toachieve an artificially high profitfigure. A failure to write offirrecoverable outlay or the absenceof a bad debt provision mayindicate that the profit figures arebeing massaged for the vendor’sbenefit.

ContinuityAn important factor in arriving atthe final purchase price is theamount of assurance the buyer hasthat clients will remain and willcontinue to refer new work. Twofactors are important. First, the

buyer should try to negotiate a ‘payif they stay’ clause to protect himfrom a sudden haemorrhage ofclients. Second, it is desirable thatthe vendor should appear (at leastin the public eye) to retain aconnection with the firm.

Nature and timing of considerationThe parties may have very differentviewpoints about the nature andtiming of consideration. At itssimplest, the vendor will generallywant a once-off capital payment,whereas the buyer will want to payover an extended period, which has

obvious benefits: • Not having to find a large capital

sum• Tying the vendor to the practice

for an agreed number of years• Payments will be made out of

revenue generated by thepractice

• Tax relief on the payments whichcould be charged as consultancyfees in the practice account.

To obtain these benefits, however,the purchaser may have to pay aconsiderably higher price.Conversely, the vendor should be

willing to accept a considerablylower price where a once-off capitalsum is involved. Both partiesshould bear in mind that there maybe differing tax implications forboth payment methods, and it isvital that professional tax advice isobtained in all circumstances.

Claire O’Sullivan is the LawSociety’s member servicesexecutive. This article wasreproduced with the kindpermission of Charles Russell ofchartered accountants Russell &Associates.

G

More than 30 Droghedasolicitors staged a

walkout from the DistrictCourt on Friday 23 October infrustration at the on-goingfailure to provide a reasonablecourthouse. Last month, theylearned that plans to move thecourthouse from the townbingo hall, where it has beensitting for 12 years, to a moresuitable venue had been aban-doned (see last issue, page 5).

At the start of the day’s courtsitting, Drogheda BarAssociation president GerryDaly made a short statement,then led the walkout with hiscolleagues. According to theassociation’s press officerFergus Minogue, the districtjudge went ahead with the listof the day’s cases but ‘a lot ofbench warrants were issued forpeople who didn’t turn up’.

‘We could not quietly acceptthat nothing can be done’, saidMinogue. ‘We need to getDrogheda courthouse higheron the agenda. About 130courthouses have been dealtwith over the past three years,but the situation in Droghedais rolling’. He added that ‘thewalkout was a statement ofintent – we cannot let the issue

It’s a full house forDrogheda walkout

building. There are plans toeventually build a permanentcourthouse, but, for themoment, the judge and Navansolicitors are delighted aboutthe move, after almost 40 years.

WOMEN LAWYERS’ AGMThe Irish Women Lawyers’Association will hold its AGMand a seminar on Women inlaw in Europe from 10am to1pm on Saturday 22 Novemberat Blackhall Place. Theseminar is free to members.

COMPENSATION FUNDPAYOUTSThe following claim amountwas admitted by the LawSociety’s Compensation FundCommittee and approved forpayment by the Law SocietyCouncil at its meeting inOctober 2003: DermotKavanagh, 2 Mary Street, NewRoss, Co Wexford – �1,270.

SOLICITORLINKThe Law Society provides aconfidential service, Solicitor-Link, to solicitors wishing tobuy, sell or merge theirpractices. The service allowspractitioners to register theirfirm’s details with the societyand, once registered, eachpractitioner is sent details ofall firms wishing to buy, sell ormerge with another firm withina particular area. Firms’identities are not revealeduntil both parties are inagreement, and the society isnot involved in thenegotiations. Interestedmembers should contact thesociety’s member servicesexecutive, Claire O’Sullivan,for further information.

die away again’.• Meanwhile, at the end ofSeptember, Navan DistrictCourt was relocated from abingo hall to a purpose-builtcourthouse in an office

Last call for Galway judgeAreception in Galway on Saturday 27 September marked the

retirement of District Court judge John Garavan. Referred to aslongest-serving, and the most colourful, genial and animated DistrictCourt judge in Ireland, he made headlines two years ago with hisremark about ‘Galway’s dreadful drunken girls’, for which he againapologised at the reception.

He graduated as a solicitor and was appointed to the bench in1974, when he served for some time in the Special Criminal Courtbefore moving to Galway. He was involved in several high-profilecases, including the Mountbatten murder trial and the Sallins trainrobbery case.

News


7

The High Court has alloweda challenge to the

mandatory in camera rule infamily law cases. The applicant,Dr Bob McCormack, appliedfor permission to seek a judicialreview of the rule, arguing inhis affidavit that imposing‘absolute secrecy’ in family lawcases is unconstitutional and‘stifles any inquiry into theworkings of the family lawcourts or scrutiny of thebehaviour of judges, lawyers,court officials and familyassessors’.

Law Society deputy directorof education Geoffrey Shannonexpressed surprise that theissue had not been raisedbefore now. ‘Justice must notonly be done, but be seen to bedone’, he said. ‘It is a balancebetween the right to privacyand the right to a fair andtransparent system of justice.Family law cases are notreported in the press and there

Court challenge to in camera rule

is a poverty of writtenjudgments’. And he warnedthat the public loses confidencein the judicial system if theycannot see how decisions arereached.

The High Court hasinterpreted sections 34 of theJudicial Separation and FamilyLaw Reform Act, 1989 and 38 ofthe Family Law (Divorce) Act,1996 to mean that family lawcases must be heard ‘otherwisethan in public’, but article 34

of the constitution says thatjustice must be administered inpublic, with limited exceptions.Shannon refers to B and P vUK, a landmark case heard bythe European Court of HumanRights, which ruled that themandatory in camera rule is inbreach of a fair trial.

‘The issue will have addedsignificance when the Europeanconvention on human rights isincorporated into Irish law on31 December’, he said.

LEGAL DIARYThe Courts Service hasconfirmed that it willcontinue to produce a fullyprintable version of the Legaldiary, as well as the usualweb version, on its website(www.courts.ie). The serviceis free.

LIMERICK BASHThe annual Christmas nightout for Limerick city andcounty solicitors will be heldon Friday 12 December inFreddie’s Bistro. Tickets areavailable from associationtreasurer Robert Kennedy.Further details will becirculated closer to the date.

NEW BOSS AT ARTHUR COX Dublin law firm Arthur Coxhas appointed PadraigO’Riordain as new managingpartner at the end of hispredecessor’s four-year term.The firm was recently named‘international law firm of theyear’ by the InternationalFinancial Law Review.

O’CONNOR HEADS UP DSBALaw Society Council memberJohn O'Connor was electedpresident of the DublinSolicitors’ Bar Association at its recent AGM. Thenewly-appointed vice-president is Orla Coyne, who also sits on the LawSociety Council.

EUROPEAN PATENTSCONFERENCEThe second epoline annualconference will be held inBarcelona from 9 to 11December. The conference isorganised by the EuropeanPatents Office (EPO), tobring together patentprofessionals from all overEurope to learn aboutdevelopments in the area.This theme of this year’sconference is Cutting edgeissues in intellectualproperty today. For moreinformation, seewww.epoline.org/events/barcelona.

Applications will be takenfor secondment

placements with the InnocenceProject in New York in thecoming months. TheInnocence Project is avoluntary organisation set upby attorney Barry Scheck toaddress cases of injusticethroughout America usingmodern forensic science. Theplacement is entirely voluntaryand lasts for approximately tenweeks during the summermonths.

Applications are open to alltrainees and can be sent toGráinne Butler in the LawSchool or e-mailed [email protected].

The application shouldinclude a one-page CV and ashort written submission

The Innocence Projectoutlining the reasons for yourapplication, the qualities youfeel are necessary to theproject and why you would beof assistance. You should alsooutline how you would arrange

accommodation and supportwhile in New York. Closingdate for applications is 19December 2003. A seminar onthe project will be held on 26November at 1pm.

The Court Rules Committees should be provided with a support unitto help them cope with growing volume of domestic and EUlegislation, a new report has said. The rules committees draw upregulations governing practice and procedure in the courts, but acommittee chaired by Mrs Justice Susan Denham says that ‘thegrowth in legislation and litigation requires the development of anew infrastructure’. It recommends the creation of a RulesCommittee Support Unit in the Courts Service to provideadministrative, drafting, and other services and skills to the threerules committees.

Rules committees toget more support?

Viewpoint


8

Italy’s other dons make an of

Stepping into the breach: judi

This September, I petitionedthe European Parliament on

the unacceptable length of timeit is taking for Irish and othernon-national teaching staff inItalian universities to haverights under the parity oftreatment provision of the EUtreaty (article 39) enforced. Thepetition was co-signed byProinsias De Rossa, vice-chairman of the parliament’sPetitions Committee. Thecommittee is empowered torefer petitions to the EuropeanCommission and demandappropriate initiatives.

Litigation by non-nationalteaching staff in Italianuniversities for parity oftreatment began at Europeanlevel in 1987, with the referralof a case to the Court of Justiceby the Pretura di Venezia for apreliminary ruling. Thesubsequent clear-cut 1989ruling of the court wasrepeatedly misinterpreted byItaly, causing the foreignteaching staff and subsequentlythe commission, ininfringement proceedings ontheir behalf, to return to thecourt for further refinements ofthe original judgment. In a lastresort to compel Italy to complywith the ruling in infringement

case Commission v Italy, thecommission opened article 228enforcement proceedings inJanuary 2002. An eventual rulingin these proceedings, currently atthe reasoned opinion stage, isunlikely before 2006. By then,foreign lecturers will have beenfighting 19 years – half anaverage academic working life –for rights that should beautomatic under the EU treaty.

Decline and fallInitially, under Italian law,foreign language lecturers inItalian universities could beemployed on one-year contracts,with a possibility of five furtherannual renewals. Lack of acontinuous employmentrelationship gave rise to manyabuses – most notoriously, thedenial of maternity leave. A

foreign lecturer, Pilar Allué,challenged the legality of thetemporary contracts and, on thegrounds that our Italiancounterparts had open-endedcontracts, won in the Court ofJustice in 1989. The case ismentioned in textbooks on EUlaw for the court’s rejection ofthe defence that tenureduniversity teaching fell withinthe public service exemptionsprovided for under article 39(4).

Italy interpreted the 1989verdict of the court asabolishing the six-year limit(one annual contract plus fiverenewals), but as condoningtemporary annual contracts forforeign lecturers. Pilar Allué,now joined by co-plaintiffs,challenged this misinterp-retation. Recourse to the Court of Justice takes time:

four-and-a-half years would passbefore the 1993 court ruling inAllué 2. Three of the judgesfrom 1989 presided, while theadvocate-general and the Italiandefence lawyers wereunchanged. The judgment, anemphatic victory for Allué,clarified the import of theearlier ruling: all time limits onthe contracts of foreign teacherswere discriminatory whileItalian university teachers hadopen-ended contracts.

To comply with the Allué caselaw, Italy had merely tointroduce legislation convertingthe temporary foreign lecturercontracts into open-endedcontracts. The 1995 law thatItaly introduced in response toAllué 2 demoted foreignteachers to a newly-created rankof ‘collaborators and linguisticexperts’. As applied, the newrank was held to constitute anew employment relationship,with the forfeiture of theacquired rights to senioritypayments, raises and pensioncontributions accumulated overthe years of previous service.Colleagues with years ofexperience in their universitieswere astounded to note thattheir first pay slip as‘collaborators and linguistic

European law is all well and good in theory, but what happens when a member state stubbornlyrefuses to implement it? Irishman Henry Rodgers and his non-Italian colleagues have beenfighting for equal employment rights in Italy for a number of years, in the face of intransigence byone of the founding members of the EU. Here is his story

Lawyers know better thanmost that the courts are the

final bulwarks of protection forthe ordinary citizens in theirquest for justice – against the

Are we at the point when Irish courts are accepting too much jurisdiction and deciding onmatters that should not be in the judicial domain at all? asks Pat Igoe

might of the state, an unfairemployer or even a noisyneighbour.

Government, like nature,abhors a vacuum. It is arguable

that the government and theHouses of the Oireachtas havebecome less prominent in termsof leadership, for whateverreason, and that the judiciary is

being called on to fill the void. The last issue of the Gazette

included an article by ProfessorDavid Gwynn Morgan on thedevelopment of the role of the

Viewpoint


9

VOXPOP

A recent report foundthat more than one-in-three women in thelegal profession stillsuffer discrimination. Doyou think this is true?

Yes. I don’tthink it’s aproblem withsalary. I thinkwomen areearning asmuch as men,

but I think there’s a problemwith ‘jobs for the boys’. Inareas like insurancecompanies and tribunals, ifyou don’t play rugby you’renot in! That’s definitely myview on it. Geraldine Kelly, GeraldineKelly and Co, Solicitors

They may doso, but Ihaven’tpersonallycome acrossit. And I don’tbelieve I have

reached a glass ceiling. Helen Sheehy, SheehyDonnelly, Solicitors

I think that inthe past itwas true, andI think I wasdiscriminatedagainstmyself. But I

qualified in the 1970s andthings were very different.Younger people may notrealise how bad things were. I think that, particularly in thepublic sector, women aretreated quite fairly.Rosalind Hanna, CIE solicitor

It is veryapparent. I think that if a womanwants to besuccessful in the profes-

sion, she has to get areputation for being com-pletely ruthless. In court, youcan see the way that womensolicitors are treated by male barristers or solicitors.Emma Coffee, traineesolicitor

ffer you can’t refuse

cial activism revisited

experts’ recorded them ashaving just started employment.

Pizza the actionBesides recourse to theEuropean and local Italiancourts, the foreign teacherssought political help. TheEuropean Parliament has passedfour motions condemning thediscrimination. So far, DáilÉireann is the only member-state parliament to have inviteda foreign lecturer to testify, in1996. The Oireachtas JointCommittee on European Affairssubsequently lobbied thecommission, which soon afteropened infringementproceedings against Italy fornon-implementation of the Alluécase law. The infringementproceedings, with theirrequirement of dialogue andnegotiation with member states,take time. In hisrecommendations to the Courtof Justice in February 2001,advocate-general Geelhoed wasscathing of the duration of thediscrimination. The subsequentJune 2001 judgment inCommission v Italy accepted hisrecommendations in full,finding yet again that Italy’sdiscriminatory treatment offoreign lecturers violated article 39.

Article 228, introduced underthe Maastricht treaty, empowersthe Court of Justice, uponapplication by the commission,to impose financial penalties on

member states that ignore itsrulings. After the commissionopened article 228 proceedings,Italy responded with a draftcontract for foreign lecturerscontaining terms significantlyworse than those ruleddiscriminatory in Commission vItaly. In a subsequent letterpublished in European voice, theauthoritative Brussels-basedweekly on EU affairs, I urgedthe commission to heedadvocate-general Gellhoed’scriticism and to prosecute thecase with urgency. In the samenewspaper, John CushnahanMEP regretted that ‘a foundingmember of the union verges onbeing the first member state tobe fined for discrimination’,but concluded that ‘Italy’sintransigent behaviour clearlyleaves the commission withlittle choice’. A follow-up letterfrom Proinsias De Rossashowed how the Italian state’sintransigence put it at oddswith its own judiciary – thelocal Italian courts haveconsistently awarded foreignlecturers their full rights underarticle 39.

Just one cornettoThe foreign lecturers in Italyare part of the first generationof Europeans to move to workin another member state. Ibelieve our e-group archive ofmessages will in time be seen asan important social document,showing how a category of non-

national workers responded todiscrimination and graduallyeducated themselves in EU law.

Some of the reluctance ofcolleagues to educatethemselves in law may stemfrom the lawyer/clientrelationship in Italy. Most of theforeign lecturers are in litigationagainst their universities beforelocal courts. In my experience,deference to the competence oflawyers and their handling of acase is total, reminiscentperhaps of the Irish lawyer/client relationship of 30 yearsago.

As Italy has not compliedwith the terms of the reasonedopinion, the commission mustsoon decide on referral of itsenforcement procedures to thecourt and the recommendationof an appropriate fine. Theeventual case is unlikely to bedecided before 2006, 19 yearsfrom the first referral to theCourt of Justice.

In a recent report on freemovement of workers, thecommission wrote that parity oftreatment ‘is perhaps the mostimportant right undercommunity law, and an essentialelement of Europeancitizenship’. It is tragic that anintransigent and protectionistmember state can avoid itsobligations under article 39 forso long.

Henry Rodgers teaches English atLa Sapienza University in Rome.

G

judiciary (page 14). It dealt withan important issue: where dothe politicians end and thejudges begin?

No more big gapsThis is an old dilemma, andone that is not unique to

Ireland. The eminent Americanjudge, Oliver Wendell Holmes,wrote that if the people of theUnited States wanted ‘to go tohell’, it was his duty as a judgeto help them get there. Noexaggerated judicial activismthere! He saw the role of

judges as ‘interstitiallegislators’, filling the gaps andcrevices in the legislation – butno more.

Professor Gwynn Morganapplauded the currentSupreme Court for effectivelydeciding that major socio-

Viewpoint


10

economic issues should be leftto the politicians, who can seethe relevant issues from awider perspective than thecourt can. He approves whathe sees as the court taking asignificant turn away from theindividual in favour of thecommunity.

The basic rules of when thecourts should and should notget involved were laid down byMr Justice Costello in O’Reillyv Limerick Corporation (1989).In this case, travellers sought amandatory injunctionrequiring LimerickCorporation to provide themwith adequate, serviced haltingsites. The judge ruled that itwas up to the government todecide how it allocatedresources.

He explained that the courtswould be abrogating tothemselves the role of thegovernment in seeking toorder how taxpayers’ moneyshould be spent. This would be‘distributive justice’ – that is,allocating common goods. Bycontrast, ‘commutative justice’is concerned with thedistribution of resourcesbetween individuals in arelationship, and is indeed amatter for the courts.

Arguably the clearest andmost broad-ranging discourseon the role of the courts vis-à-vis the executive is in Re:Secession of Quebec (1998)before the Canadian SupremeCourt. The court identifiedthree clear grounds on which acourt may (and perhapsshould) refuse to address anissue on the basis that it wasnon-justiciable.

The three grounds outlinedwere:• If to take on the case would

take the court beyond itsown assessment of its properrole

• If the matter was outside thecourt’s own area ofexpertise, or

• If the issues were tooimprecise or if there was notenough information onwhich to base a decision.

In a significant contribution tothis debate, barrister andacademic Paul AnthonyMcDermott wrote in a recentissue of The Irish jurist on TheState (C) v Frawley (1976) andtwo recent cases before theHigh Court, DB v Minister forJustice and TD v Minister forEducation.

Frawley was an example ofhow precedent as set down canoperate so as to deprivelitigants whose constitutionalrights have been breached of aremedy. The applicant was aprisoner in Mountjoy prison.He sought an order of habeascorpus on the basis that he wasnot getting adequate treatment.He suffered from a sociopathicpersonality disturbance andrepeatedly swallowed metalobjects. His ‘treatment’included that he was kept insolitary confinement andoccasionally detained in theCentral Mental Hospital.

The then-president of theHigh Court, Mr Justice Finlay,accepted that the state wasunder a constitutional duty to

protect the health of prisoninmates but that it was not theproper role of the court todirect the government on howto allocate resources. Thedecision was consistent withavailable precedents.

However, by 1999, thesituation was sufficientlyextreme for a High Court judgeto push out the court’sfrontiers. In DB v Minister forJustice (1999), Mr Justice PeterKelly held that the applicant, ayoung offender requiringsecure accommodation in ahigh-support unit, was entitledto an injunction directing theminister to provide funding forsuch a unit.

The judge quoted formerchief justice CearbhallÓ’Dálaigh in the 1965 case ofThe State (Quinn) v Ryan, whenhe said that ‘it was not theintention of the constitution inguaranteeing the fundamentalrights of the citizens that theserights should be set at noughtor circumvented. The intentionwas that rights of substancewere being assured to the

individual and that the courtswere custodians of these rights’.Mr Justice Kelly noted thatorders against the administrativebranch of government wouldnot be made lightly due to theneed to respect the separation ofpowers as provided for in theconstitution.

In the 2000 case of TD vMinister for Education, MrJustice Kelly made a similarorder in respect of theconstruction of a number ofother high-support units forchildren at risk. He said thatthe court was trying ‘to fill thevacuum which exists by reasonof the failure of the legislatureand executive’.

But in 2001, the SupremeCourt overturned Kelly. ‘Ifcitizens are taught to look tothe courts for remedies formatters within the legislative orexecutive remit, they willprogressively seek furtherremedies there andprogressively cease to look tothe political arm ofgovernment’, according to MrJustice Adrian Hardiman.

So where are we now then?Clearly, the Keane-ledSupreme Court would appearto carefully seek to interpretthe constitutional separation ofpowers and not usurp what itregards as the role of thegovernment, as in the 2001Sinnott v Minister for Educationcase, while fending off excessesby the legislature as in the2002 Abbeylara case of Maguirev Ardagh, when the Oireachtas’committee’s powers werecurtailed.

Goldilocks and the forebearsWhere jurisdiction is acceptedand judicial decisions are taken,there seems to be a consensusemerging that there is a swingaway from the rights of theindividual towards protectingthe rights and assets of thecommunity. This is consistentwith the principle that thecourts should not simply applylogic and precedent ashermetically-sealed and handeddown from defunct forebears

Viewpoint


11

and by-gone eras of differentsocial and economic climates.

It is difficult to see how anycomplaints of over-zealousnessthat might be made against themodern Irish judiciary couldbe sustained. From the Frawleycase in 1976 through theO’Reilly travellers case in 1989to such cases as MacMathuna vAttorney General (1995), wherethe Supreme Court decidedthat it could not order theOireachtas and thegovernment on how theyprovide financial assistance tocitizens, the courts haveadopted a careful ‘render untoCaesar’ approach.

Traditionally, the courtslook at legislative provisionsusing one of the three rules ofinterpretation – what thetextbooks call the literal rule,the golden rule, and themischief (that is, the avoidancethereof) rule. Essentially, of

course, both the golden ruleand the mischief rule would beadopted if the literal rulewould lead to absurdity orinconsistency and involve thecourt giving words in a statutetheir ordinary meaning andsuppressing the mischief assought.

But, essentially, Irish judgeshave not deviated from thedicta of Mr Justice Budd inRahill v Brady (1971), when hesaid that ‘in the absence ofsome special technical oracquired meaning, thelanguage of a statute should beconstrued according to itsordinary meaning and inaccordance with the rules ofgrammar’. He added that‘while the literal constructiongenerally has prima faciepreference, there is also afurther rule that, in seeking thetrue construction of a sectionof an act, the whole act must

be looked at in order to seewhat the objects and intentionof the legislature were’.

Pit and the pendulumMeanwhile, the courts havenever been busier. More judgesare being appointed and thecourts are being asked to ruleon an ever-increasing breadth of

topics. Judicial review is noweasily the fastest-growing areain litigation, with the courtsbeing asked to rule on a varietyof decisions by various publicbodies. The range stretchesfrom immigration applicationsto schools to criminal lawprocedures.

Judicial activism in Irelandwas perhaps kick-started in thehalcyon days of the Ó’DálaighSupreme Court, confirmingcitizens’ unenumeratedconstitutional rights, includingthe right to sue the state and toprotect their good name. Thependulum may be swingingback in favour of thecommunity and a reluctance bythe courts to ‘step into thebreach’ left by the government.

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

G

New Law Society diploma courses

Diploma in trust and estate planning (in association with the Society of Trust and Estate Practitioners (STEP))

10 January 2004 – 10 July 2004Saturday mornings

Education Centre – Blackhall PlaceFee: �1,700

The diploma is designed to expose participants to theoretical and practical issues arising in the areaof trusts and estate planning. Course participants will develop a sound knowledge of the issuesinvolved in the wills, trusts and estate planning fields and the course will focus on the developmentof analytical skills necessary for practice in this area.

Diploma in applied European Union law 20 March 2004 – 11 December 2004

Saturday morningsEducation Centre – Blackhall Place

Fee: �1,100

The course is designed to provide a balance between the theory, and practice of EU law. Particularemphasis is placed on areas of day-to-day relevance to solicitors, such as the law relating to the economic freedoms, competition law, consumer law and litigation.

Further details and application forms are available now from the Law School. E-mail [email protected] with your postaladdress and an application form will be mailed to you, or visit our website www.lawsociety.ie for full course details.

Pat Igoe: judiciary being called on to fill the void

Cover story


12

The Children Act, 2001 is the culminationof three decades of debate, and attemptsto put in place a modern statutoryframework for dealing with juvenilejustice. The act reflects a rights-based

approach to youth justice, imported in large measurefrom international examples. Among other measures,it provides for family welfare conferences and specialcare orders (see panels) to deal with unruly childrenor those children with special needs. It alsointroduces a comprehensive strategy on restorativecautioning.

Broadly speaking, the 2001 act supports thephilosophy that children in conflict with the lawmust be treated as children first. It is based on thepremise that detention should be used only as a lastresort and should only be considered after a range ofcommunity-based measures have been exhausted.

The 2001 act repeals the Children Act 1908 andwas signed by the president on 8 July 2001, butseveral of its provisions are not yet in force. While itsignals a movement towards a more progressivejuvenile justice system, it certainly has a number ofsignificant shortcomings. For example, the act doesnot acknowledge the socio-economic context thatencourages deviant behaviour in children; instead, itsees the family as the primary cause. Sections 111 to114, for instance, attempt to sanction failed parenting(see below), but a similar approach is not adoptedwhen the state is fulfilling a parenting role. In fact,although the state as a parent has had a disturbinghistory, it is effectively immune from prosecution.There is a real question of double standards here.

Children in needThe Children Act, 2001 amends the Child Care Act,1991 by inserting a new part IV(a). The 1991 actwas widely criticised for failing to make provision for

Juvenile crime is a growing issue in more ways than one. The Children

Act, 2001 is the latest legislative attempt to get to grips with the

scourge of problem children and those with special needs. Geoffrey

Shannon looks at how the act deals with kids who fall foul of the law

Babes in tMA

IN P

OINT

S

• Familyconferencing

• Children ingarda stations

• Parentalresponsibilities

Cover story


13

the hoodCourt, Kelly J, 25 February 2000). Before this,unruly children could only be detained by beingcharged with an offence so that the courts could havejurisdiction over them.

The new approach was sanctioned by theSupreme Court in DG v Eastern Health Board (1ILRM 241 [1998]). There, the court ruled thatalthough the High Court’s jurisdiction involved thedeprivation of the child’s right to liberty, this wasjustified by the requirement that the child’s welfarebe promoted as a paramount consideration.

The Supreme Court decision in DG v EasternHealth Board was subsequently appealed to theEuropean Court of Human Rights, which issued itsjudgment on 16 May 2002. The case challenged thelegality of detaining in St Patrick’s Institution a 16-year-old non-offending child with seriousbehavioural problems. Article 5 of the Europeanconvention on human rights and fundamental freedomsguarantees the right to liberty and security, thoughthis is not an absolute right, and allows for ‘thedetention of a minor by lawful order for the purpose ofeducational supervision or his lawful detention for thepurpose of bringing him before the competent legalauthority’.

Article 5 has been invoked in cases involvingdisturbed children, for whom there are at presentinsufficient high-support units in Ireland and where,in many cases, these children are held in penalinstitutions for want of appropriate accommodation.The European Court held that the detention of thechild in St Patrick’s Institution in DG was incontravention of rights guaranteed under theconvention. The court ruled that the Irish state actedunlawfully in failing to provide the disturbed childwith a safe, suitable therapeutic unit and upheld theclaim that the child’s human rights were violated andhis right to compensation under the conventiondenied. It noted, in particular, the fact that StPatrick’s was not ‘an interim custody measure for thepurpose of an educational supervisory regime whichwas followed speedily by the application of such aregime’.

It is unlikely that the European Court’s judgmentin DG will impact on the constitutionality of special

secure placements for unruly children in need ofcare. The High Court partly filled the gap, usingits inherent jurisdiction over children to ordersecure detention (FN v Minister for Health (1 IR409 [1995]); DB v Minister for Justice (1 IR 29[1999]); and TD v Minister for Education, Ireland, theAttorney General, the Eastern Health Board and theMinister for Health and Children, unreported, High

PIC

: EV

ERET

T C

OLL

ECTI

ON

/REX

FEA

TUR

ES

Cover story


14

care orders, given the wide interpretation affordedby the European Court to educational supervision. Arelevant and instructive case is that of Koniarska vUK (European Court of Human Rights, judgment of12 October 2000), where the court held that placinga child in secure accommodation was not contrary tothe convention as it amounted to ‘educationalsupervision’ within the meaning of article 5.

Section 16 of the 2001 act is unfortunately vague.There is, for example, no satisfactory definition of‘substantial risk’, or of ‘health’, ‘safety’,‘development’ or ‘welfare’. Without furtherclarification, the precise meaning of these terms willhave to be worked out on an ad hoc basis in thecourts. The fact that such provisions lie in themiddle of a criminal justice act is also worrying.Modern legislation, by contrast with the Children Act1908, deliberately separates child care proceedingsfrom juvenile criminal proceedings, the obvious logicbeing that action seeking to promote the welfare ofthe child should at all costs avoid ‘criminalising’ him.It is at least arguable that the provision for specialcare orders should have been contained in a separateamending act.

The creation of a formal duty to make specialprovision for troubled youth in care is welcome. It ishoped that this legislative reform, however, will be

matched by financial resources, aimed at enhancingthe number and quality of suitable places availablefor such children.

Cops and robbersThe 2001 act raises the age of criminal responsibilityfrom seven – the lowest age in Europe – to 12 yearsof age. This means that children under the age of 12will no longer have the capacity to commit offences.

Part 6 of the act deals with the treatment of childsuspects in garda stations. It obliges the gardaí tohave due regard to the dignity of children and theirvulnerability because of their age and level ofmaturity. This part of the act, with the exception ofsections 59 and 61(1)(b), came into force on 1 Maylast year. It says that a detained child must be keptseparate from a detained adult and must not be keptin a cell, unless there is no other place available.

When a child is arrested, he must be informed ofthe details of the alleged offence in languageappropriate to his age and understanding and toldthat he is entitled to consult a solicitor and that hisparent or guardian has been notified. If the parentscannot or will not attend, the child is to be told ofhis ‘entitlement to have an adult relative or otheradult reasonably named by him or her given theinformation specified in (section 58(1)(a)) andrequested to attend at the station without delay’.

The act also sets out in detail how gardaí mustconduct their interviews. A child cannot beinterviewed unless his parent or guardian is present.But significantly, section 61(4) allows the garda incharge of the station to remove an adult fromwhere a child is being questioned or where awritten statement is being taken if he hasreasonable grounds for believing that the conductof the adult amounts to an obstruction of thecourse of justice.

Section 61(7) defines parent or guardian asincluding the adult reasonably named by the childunder section 58. In the absence of the parent orguardian or the other adult reasonably named by

The Children Act, 2001 introduces a ‘special care order’, designed toprovide for children in need of special care or protection. This part ofthe act is to be commenced by the end of the year, with the exceptionof section 23(d), which provides for an emergency special care order,allowing the gardaí to deliver a child into the care of the health board.The concept of special care orders is imported from New Zealand andis designed to maximise the use of the child’s social and familysupport networks at a time of crisis in his life.

The philosophy behind the 2001 act is that the application for aspecial care order should be used only as a last resort. Beforeapplying for the order, the relevant health board must arrange for afamily welfare conference. The board may still wish to proceed with anapplication for a special care order. If so, the views of the SpecialResidential Services Board, established in part 11 to co-ordinateresidential services for children placed in special care units ordetained in detention schools, must be sought. Non-offending children

with behavioural problems who are the subject of special care ordersand child offenders are to be placed in separate residentialaccommodation. Part 11 will come into effect later this year.

As with care orders and supervision orders, only the health board –the statutory body with responsibility for promoting the welfare ofchildren at risk – can make the final decision on whether to apply for aspecial care order. However, the parents of a child may request thehealth board to make such an application. If the board refuses, itmust inform the parents in writing.

Once made, the order has the effect of committing the child to thecare of the health board that has applied for the order. The child is tobe kept in a special care unit for a specified period of between threeand six months. During this time, the board is required to provide forthe care, education and training of the child. On the expiry of theorder, the board can apply for an extension, but only where theconditions that gave rise to the original order still exist.

ORDERSSPECIAL CARE

Fagin, with hisbunch of loveable,singing petty criminals

CONFERENCES

Cover story


15

the child, the garda in charge can nominate anotheradult. The act supplies little guidance as to what‘reasonably named’ means. This is likely to causeconfusion and affords a wide discretion to the gardain charge of the station in deciding whether toallow the adult named by the child to attend theinterview.

A parent or guardian must be given a copy of thecharge sheet and is to be notified in writing, assoon as practicable, of the date of the child’s firstappearance in court.

Sections 70(b) and (c) of the 2001 act allow theminister for justice, equality and law reform to makeregulations governing the role of any of the adultspresent at the interviewing of children in gardastations. These regulations will provide usefulguidance as to whether the adult present during thequestioning of the child is there to ensureprocedures are complied with, to ensure the child isproperly treated or to offer support to the child.

The former Juvenile Court has been abolished.In its place, section 71 of the 2001 act establishes anew Children’s Court, which will now deal withanyone under the age of 18. The Children’s Courthas been given a new central role in implementingthe restorative justice provisions in the 2001 act.

Up before the breakPart 8 of the act allows the court to adjourn thecriminal proceedings where it considers that achild’s real problem is a need of care or protection.In such cases, the local health board will bedirected by the Children’s Court to convene afamily welfare conference in respect of the childand report back to the court on what action, if any,it intends to take. Following the outcome of thefamily welfare conference, the court will have thediscretion to dismiss the charge against the child.

In this jurisdiction, remanding young offendersin custody has been the subject of considerable

The Children Act, 2001 provides for three types of conferencing. The family welfare conference, provided for in part 2, is to be

convened by the health board. It deals with young people who are notoffenders but whose behaviour presents a serious risk either tothemselves or others, and children before the court for their criminalbehaviour but whom the court considers may need care andprotection.

A family welfare conference must be convened before the boardcan apply for a special care order. It provides a framework by which achild, his family and appropriate agencies can find solutions to theproblems that have led to the child being vulnerable. One of the mostsignificant and progressive elements of the family welfare conferenceis that children will be present at the conference.

The basic purpose is to produce a plan for the future care,protection and development of the child. This will involve the familytaking responsibility for the child and coming up with proposals for theplan with the assistance of the professionals attending theconference.

The second type of conference is the garda conference. Part IV ofthe 2001 act places the garda juvenile liaison scheme on a statutoryfooting and renames it the diversion programme. The gardaconference has been in force since 1 May 2002. It is convened by theGarda Síochána, and involves the formulation of an action plan for thechild. It provides an opportunity to confront the child with theconsequences of his offence in the presence of the victim and allowsthe child to apologise and make reparation to the victim. It will providea forum for the child, his parents and other family members, possiblyother interested parties and, where appropriate, the victim to discussthe child’s offending and the reasons for it.

The third type of conference is a family conference, which isconvened under part 8 of the act by the Probation and WelfareService where a child is charged with an offence and the courtconsiders that a family conference is desirable. The conference iscourt-supervised and enforceable. The principle is that the child isbest looked after within his own family. The family conference is notyet in force.

FAMILY

ASM 5783 10/03

So, what does the future look like?By the time they’re 20 – who knows what the world will look like…by the time they’re 60, more than likely they’ll be looking forwardto their retirement!

In a rapidly changing world – long-term investment planning can bea daunting task. That’s why at Bank of Ireland Asset Managementwe rely on the skills, knowledge and exper tise ofa dedicated team of investment specialists.

We’ve been in the business of looking after the needs of Irish pen-sion fund members for more than 35 years.

Bank of Ireland Asset Management Limited, 40 Mespil Road, Dublin 4. Tel 01 637 8000. Fax 01 637 8100.

www.biam.ie

BIAM Group • AUSTRALIA • CANADA • GERMANY • IRELAND • JAPAN • JERSEY • UNITED KINGDOM • UNITED STATES

Bank of Ireland Asset Management Limited is authorised by the Irish Financial Services Regulatory Authority under the

Investment Intermediaries Act, 1995. Investment values can fluctuate.

Cover story


17

debate due to the fact that children on remand havebeen mixed with children being detained. Section88(5) of the 2001 act is to be criticised in that itempowers the minister for justice, equality and lawreform, with the agreement of the minister foreducation and science, to designate as a juniorremand centre any place (including part of anychildren’s detention school) which in his opinion issuitable for children who are remanded in custody.If the remand centre is part of a children’sdetention school, it is difficult to see how childrenon remand can be kept apart from those indetention.

Parents are required to attend all stages ofproceedings in court where a case is being heardagainst their child (section 91). Failure by the parentsor guardians to do so without reasonable excuse willbe treated as if it were contempt of court.

Part IX of the act sets out the powers of a courton finding a child guilty. Those powers must beexercised in accordance with the principles set outin section 96 of the 2001 act relating to the exerciseof criminal jurisdiction over children, one of whichis the need to adopt and implement alternatives toformal criminal prosecution, wherever possible, inorder to divert young offenders away from thecriminal justice system.

Bringing it on back homeThe Children Act, 2001 imposes responsibilities andobligations on parents to participate in theirchildren’s welfare. Under section 111, the courtmay make a parental supervision order. This givesthe court the power to instruct parents to undergotreatment for substance or alcohol abuse and/or toattend a course in parenting skills. Failure tocomply with a parental supervision order can betreated as contempt of court.

Parents can be ordered to pay compensationinstead of their child. Before making acompensation order, the court must be satisfied ofthe parents’ ability to pay and that a wilful failureon the part of the parents to take care of or controltheir child contributed to the child’s offending.

DOYLE COURT REPORTERS LTD

Accurate shorthand recording of theHigh Court, Public and Private Inquiries,AGM's, Conferences etc.

2 Arran Quay 7. Tel: 872 2833. Fax: 872 4486

Email: [email protected]: doylecourtreporters.com

VERBATIM TRANSCRIPTS

This provision, which enables the court to compelparents to pay compensation to the victim of anoffence committed by their child, seeks to bringhome to parents the fact that their responsibilitiesextend to the consequences of their children’sactions. In similar fashion, the courts can order theparent or guardian of a child offender to enter intoa recognisance to exercise proper control over thechild.

The use of parental control mechanisms in theChildren Act, 2001 demonstrate a reluctance toacknowledge the social context that contributes to achild’s delinquent behaviour, such as poverty, drugaddiction or disadvantage.

The provisions in the Children Act relating tofamily welfare conferences and the juvenile liaisonscheme (which has been restructured and renamedthe diversion programme) are positive stepsforward. The latter introduces a system based onrestorative justice. The benefits of restorativejustice are well documented, providing, as it does,an opportunity to turn young offenders away fromcrime. Replacing the categorisations ofreformatories and industrial schools with childrendetention schools, under the control of boards ofmanagement, and the establishment of a specialresidential services board to co-ordinate theprovision of care for children in detention are allevidence of a more long-term approach to solvingthe problem of youth crime.

The 2001 act has enormous potential, but thatpotential will only be realised with adequateresources. In this regard, the delay in implementingthe early intervention sections of the act, and inparticular part 2 of the 2001 act, is to be regretted.Early intervention is critical to the success of theChildren Act, and means galvanising resources andproper care plans for families in crisis, while childrenare still of an age to be rescued from permanentalienation.

Geoffrey Shannon is the Law Society’s deputy director ofeducation and author of Children and the law (RoundHall, 2001).

G

Legal costs


18

In the July/August 2002 edition of the Gazette,taxing master James Flynn wrote about thelegal basis for ‘solicitor-and-client’ costs and‘party-and-party’ costs. He said that ‘there is amistaken impression among some solicitors

that a solicitor-and-client fee is chargeable in everycase. Quite to the contrary is in fact the case’.

It is not my intention to comment on the viewsexpressed by the taxing master (which must, ofnecessity, be of persuasive, if not binding, authority),but rather to look at the system in the neighbouringjurisdiction in light of the law lords’ judgment in thecase of Callery v Gray on 27 June 2002.

In England and Wales, the Access to Justice Act 1999(building on the Courts and Legal Services Act 1990)‘introduced a new regime for funding litigation, andin particular personal injury litigation’ (paragraph 2,Callery v Gray). Before this legislation, legal aidprovided out of public funds was the main source offunding those of modest means to make or defendclaims in the civil courts.

As time passed, the defects of the legal-aid systembecame more and more apparent: ‘While the schemeserved the poorest well, it left many with means abovea low ceiling in an unsatisfactory position; too well-offto qualify for legal aid, but too badly-off to

OVER THE HILLSA House of Lords’ decision has implications for the issue

of assessing solicitors’ costs in England and Wales. Tom

Murran contrasts the system in that jurisdiction with the

Irish position

contemplate incurring the costs of contestedlitigation. There was no access to the courts for them’(paragraph 1).

According to Lord Bingham, the 1999 act hadthree aims:• To contain the rising costs of legal aid to public

funds

The case was a straightforward personal injury claim. On 2 April 2000,Callery was injured as a passenger in a car when it was struck from theside by Gray’s car, which was insured by Norwich Union. He consultedhis solicitors and the following is the sequence of events:• 28 April: he instructed his solicitors, Amelans, and signed a CFA that

provided a success fee of 60% • 4 May: he took out an ATE insurance policy with Temple through his

solicitors for a premium of stg£367.50, inclusive of VAT • 4 May: his solicitors wrote to the defendant intimating a claim on his

behalf • 19 May: Norwich Union wrote to his solicitors admitting liability • 12 July: Amelans offered to accept stg£3,010 plus costs • 24 July: Norwich Union counter-offered to settle at stg£1,200• 7 August: settlement was agreed in the sum of stg£1,500 plus

costs.

There followed a dispute about costs, which were submitted by Amelansin the sum of stg£4,709.34 inclusive of outlays and disbursements,

including the premium of stg£350 plus VAT on the ATE insurance policy. On assessment of the costs in the first instance, district justice

Wallace fixed costs at stg£1,941 (including VAT) and ordered that costsof the assessment be paid. The costs award included a success fee of40% and the ATE premium. Norwich Union appealed to Judge Edwardson the basis that the 40% success fee was too high, and, on a furtherappeal, it was held by the Court of Appeal that the appropriate upliftwould be 20% rather than the 40% ordered by the lower court inrespect of the success fee.

Ultimately, the House of Lords had to determine whether the Court ofAppeal was correct: a) in allowing a success fee of 20% in what was, bycommon consent, a very low risk case; and b) in allowing a premium ofstg£350 for an ATE insurance policy taken out before the claimant hadissued proceedings and, indeed, before the defendant insurers were onnotice of the claim.

While the view of the House of Lords was not unanimous (four toone), and almost all law lords expressed some reservations, the courtrefused to interfere with the decision of the Court of Appeal.

CALLERY V GRAY

MAIN

POIN

TS • Solicitor-and-client costs

• Legislation inEngland andWales

• Callery v Gray

Legal costs


19

S AND FAR AWAY

• To improve access to the courts for members of thepublic with meritorious claims, and

• To discourage weak claims and enable successfuldefendants to recover their costs in actions broughtagainst them by indigent claimants.

Pursuant to the first of these aims, publicly-fundedassistance was withdrawn from run-of-the-millpersonal injury claimants. ‘The main instrumentsupon which it was intended that claimants should relyto achieve a second and third of these aims … areconditional fee agreements and insurance coverobtained after the event giving rise to the claim’(paragraph 68).

Conditional fee arrangements (CFAs)The Callery judgment continued: ‘A feature of a CFAis that, if the claim fails, the lawyer … receives noremuneration but, if the claim succeeds, the lawyerbecomes entitled not only to the normal fee for hisservices but also to a success fee, calculated as apercentage of the normal fee. The percentage uplift... must not exceed 100% of the normal fee.

‘The logic of the success fee is that its size willreflect the risk the lawyer is incurring in taking onthe case. The more difficult the case and the lessclear that the outcome will be a successful one, thehigher the percentage uplift that can be justified;and, of course, vice versa. The CFA protects the

claimant who enters into it from having toremunerate his lawyer if the claim fails’.

After-the-event insuranceA CFA does not protect the claimant from the riskthat, if litigation is commenced, he may find himselfordered to pay the costs of the defendant. In orderto protect himself from that risk, he may take outafter-the-event (ATE) insurance. A typical ATEpolicy indemnifies the claimant up to an agreedfigure against an order for costs awarded against himand indemnifies him for disbursements paid out byhis own solicitor in unsuccessful litigation. Anoteworthy feature of the policy in Callery was thatthe premium would not become payable until theconclusion of the case. Furthermore, the recoverableamount of the premium would be so much as mightbe successfully recovered by the claimant from thepaying party.

So a CFA is a ‘no foal, no fee’ arrangementbetween the claimant and his solicitor with a successfee built in, and an ATE is also a ‘no foal, no fee’agreement between the claimant and his insurer witha guarantee that his insurer would pay any costsawarded against him.

Under this regime, the claimant who makesappropriate arrangements can litigate without anyrisk and a lawyer participating in those arrangementsis rewarded for the risk undertaken by him by way ofthe success fee. Not only is this lawful, but it isactually encouraged by the legislature as part of itspolicy to help achieve the three aims outlined above.

While undoubtedly there is no statutory basis fora success fee in this jurisdiction, a success fee basedon a percentage of the award, or indeed a percentageof the claimant’s costs, would appear to be ruled outby section 68 of the Solicitors (Amendment) Act, 1994.

Nevertheless, the Callery case does raise theinteresting question as to whether or not in thisjurisdiction a solicitor for a claimant is entitled to anyreward for the risks undertaken in effectively actingfor the claimant on a ‘no foal, no fee’ basis, as mostsolicitors do. If there is to be any reward forundertaking this risk, is the defendant obliged to payit or is it a charge that properly belongs as a solicitor-and-client item? If so, on what basis is it computed?

If, on the other hand, the instruction fee containsno element of reward for risk undertaken, then is itnot something that we as a Law Society should lookfor, in the interest not only of impecunious claims butalso of properly rewarding us for risk undertaken?

Tom Murran is a member of the Law Society Council andis managing partner with the Waterford firm PeterO’Connor & Son.

G

International


20

NO LONGER As Poland prepares

to take its place as a

member of the

European Union,

members of the

society’s EU and

International Affairs

Committee were

invited to Warsaw to

begin a programme

of co-operation and

mutual assistance

with their Polish

counterparts. Hugh

O’Donoghue reports

on this show of

solicitor solidarity

MAI

N PO

INTS • Structure of

the Polish legalprofession

• Constitutionalhistory

• Mutualrecognition ofqualifications

The EU and International AffairsCommittee may not be as well known,nor its activities as widely appreciated, asother Law Society committees. This maybe understandable, as the committee’s

remit has not traditionally been of foremostrelevance to the daily concerns of the average Irishsolicitor.

But now it’s a different story: international law,including EU and human rights law, is a rising star

International


21

POLES APART

of the legal family. European law provides us withthe most obvious example of this ascendancy. Notonly is knowledge of aspects of public internationallaw now indispensable to Irish lawyers, but the reachof a typical practice has also expanded beyondnational boundaries. How many solicitors have nothad an enquiry from a client buying propertyabroad? Most solicitors will also have had a clientwho has had an accident while travelling or who maybe involved in a dispute beyond national borders. At

the same time, the enforcement of court judgmentsacross national frontiers is now a more familiarchore in the life of a general practitioner.

Bearing in mind the committee’s role in fosteringrelations with other bars, and given the growingimportance of EU and international law, itfrequently happens that the committee responds toother law societies who request co-operation andassistance. The course of lectures in company law toSouth African lawyers last year (see Gazette, May2002) is one example. An approach from the WarsawChamber of Legal Advisors earlier this year fell intothe same category. The proposal was that theWarsaw bar and the Irish Law Society begin aprogramme of co-operation and mutual assistance,sharing common know-how and experiences. As aresult, the Warsaw lawyers suggested a series oflectures on European law for the benefit of theirqualified lawyers and trainees. No doubt they had inmind the proposed accession of Poland to the EU inMay 2004. In all, six lectures were suggested andcommittee members delivered the first of theproposed talks in June.

The Chamber of Legal Advisors in Warsaw is partof the statutory architecture of self-governmentdesigned for legal advisors. Advocates – the otherbranch of the profession – have a separateorganisational structure. Chambers are organised ona regional basis and – like law societies elsewhere –have responsibility for practitioners within theirarea. They also have a disciplinary function.However, it is their role in organising professionaltraining that brought them into contact with theLaw Society earlier this year.

Polishing your knowledgeBefore being admitted as a trainee legal advisor inPoland, candidates must have a basic law degreefrom either a Polish or a compatible non-Polishuniversity. The entrance exam for the Warsawprofessional course is considered to be extremelydaunting: the success rate is approximately 15%.

Candidates must also be of good character, withno history of criminal convictions and have full legalcapacity and civil rights. They must be fluent inPolish and must undergo a three-and-a-half-yearprofessional course and pass the requisite exams.

Scales of justice:the mermaidSyrenka, emblemof Warsaw

PIC

: AV

IKAI

NEN

/REX

FEA

TUR

ES

International


22

The course consists of both formal training/lectures,and time spent in professional offices. There arenow nearly 650 trainees at various stages ofprofessional courses in Warsaw.

In June, Bríd Moriarty and I travelled to Warsawto deliver the inaugural lectures. The idea was that

the first talk would give an introduction to Irish lawand the Irish legal system.

The Polish lawyers who attended were bothqualified and trainees. They were particularlyinterested in the Irish constitutional story and how itrelated to common law. They were also interested inhow fundamental rights may be restricted or evencircumscribed in Ireland in the interest of thecommon good and especially how the courts haveexplained these limitations of rights. They alsolearned about the jurisdictional structure of ourcourts and received an outline of the doctrine ofprecedent. Finally, the first lecture dealt with the waythat qualified lawyers in the European Union maypractice in Ireland, the regulations in force at presentand the practice adopted by the Law Society inimplementing the new rules.

Return of the professorThe first talk was intended to prepare participantsfor the following specialist lectures on EC laws. The

The committee has existed for over 40 years. It currently consists of ten solicitorsand meets once a month. Wendy Hederman is the current chair and Bríd Moriarty,the sole barrister, is secretary.

The duties of this non-standing committee are to advise the president andCouncil of the Law Society on European law and transnational juridicaldevelopments. The committee also has the function of informing the profession ofcurrent international legal developments and achieves this through seminars andpublications. The European law healthcheck is now a hardy annual in the diary ofthe profession. The Eurlegal section of the Gazette is also part of the process. Thecommittee also aims to foster relations with legal professions in other countries.

Poland is served by two legal professions – legal advisors andadvocates. The allocation of their functions is more a result ofhaphazard development than can be explained by systematicplanning, the qualifications of the constituent members or theexistence of distinct fields of competence. The professions overlap,even more so than in Ireland.

In Poland, legal advisors largely correspond to solicitors, especiallyas specialists in the broad field of commercial or business law. Butwhile in Ireland solicitors and barristers work as a team in litigation,and barristers are engaged by solicitors as consultants of last resort,no such commerce between the two categories of the professionexists in Poland. Both branches operate independently. If anything,

legal advisors are the dominant profession.Advocates do exactly what is says on the tin, and, by comparison,

legal advisors are not allowed to practise in the family and criminalcourts, with only rare exceptions. Litigation is not, however, rampantin Poland and commercial litigation is uncommon. Legal advisors seetheir primary role as preventing the expense and hazard of litigation.

But the demarcation between the professions can often be blurred.This overlap has been accentuated by recent legislation, where bothmay now represent economic and other entities as well as individuals.Moreover, legal advisors may now play a part in certain business-related criminal proceedings, though their role there is not co-extensive with advocates, whose field was traditionally criminal law.

THE POLISH

THE EU AND INTERNATIONALAFFAIRS COMMITTEE

LEGAL PROFESSION

Big stone lions have been terrorising the centre of Warsaw for years

PIC

: IS

OPR

ESS

/REX

FEA

TUR

ES

International


23

first of those was delivered by Bríd Moriarty, whospoke on the assimilation by the Irish legal system ofthe aquis communautaire. The talk ranged over abroad range of European constitutional topics, inparticular the primacy of EU law in areas ofcommunity concern, summarised by Blaney J inMeagher v Minister for Agriculture ([1994] 1IR 29),when he said: ‘It is well established that communitylaw takes precedence over all domestic law. Wherethey are in conflict, it is community law whichprevails’.

The lecture also covered the legal necessity forconstitutional amendment to allow EU competenceover what would otherwise be exclusive Irish law.This feature of the Irish constitution is of directrelevance to the Poles, as they also operate a dualist(or pluralist) approach to foreign law, evidenced bythe necessity for a recent referendum to authorisethe reception of EC laws by the Polish system.

Now that the Polish people have agreed tobecome part of the European Union, their legalpractitioners, like other European lawyers, willhave a right not only to provide services but, moresignificantly, to practise outside their own countryand within other member states. Irish lawyers, ofcourse, have the same reciprocal privileges to plytheir trade in Poland.

Indeed, the lecture on the Irish legal system setout the rules applicable in Ireland to lawyers fromother member states, particularly Polish legaladvisors. It will therefore be interesting to Irishlawyers to learn that the Polish government (incontrast to the Irish authorities) has alreadyprepared legislation to transpose the Establishmentdirective (98/5/EC) into law. The Polish approach,seen in their July 2002 act, is to embody theServices directive (249/77/EC), the Mutual recognitiondirective (89/484/EEC) and of course the far-reaching Establishment directive (98/5/EC) into onepiece of legislation. In Poland, the Establishment,Mutual recognition and Services directives will not be

triggered until Poland becomes a member of theEU. But now that accession is only a matter ofcourse following the recent referendum, we mightlook, for comparison purposes, at the Polishrequirements.

First, the lawyer in question must be a nationalof, or entitled to pursue a recognised professionalqualification in, one of the EU states. Second, hemust know Polish. Third, he must pass an aptitudetest to ‘evaluate the skills needed to practise theprofession of advocate or the profession of legalcounsellor’. The test is in two parts, all conductedin Polish. One part examines the candidate’sknowledge of the civil law; the candidate himselfselects the other. The oral part tests the lawyer’sknowledge of Polish professional rules and ethics.Candidates can only enter the oral exam if theyfirst pass the written. Should a candidate notsucceed at first, he may repeat the process onemore time after an interval of six months from thefirst attempt.

An important exemption from the need to dothe aptitude test is extended to candidates who canprove that for three years they ‘pursued effectivelyand regularly’ a practice in the law of the Poland.‘Regular pursuit’, according to the legislation, isconsidered to consist of exercising the practice oflaw without interruption, other than thoseresulting from the events and requirements ofeveryday life.

A shared temperament and outlook, and acommon tradition in human rights, make the Polesand Irish compatible allies, as well as being likelymaster builders of the emerging constitutionalEuropean Union. The recent initiative by theWarsaw bar and the Law Society was a significantfirst step in that process.

Hugh O’Donoghue is the principal of the Cork law firmHV O’Donoghue and a member of the Law Society’s EUand International Affairs Committee.

G

The Poles, like us, have been at the vanguard of constitutionalism.More so for Poland, where the venerated constitution of 3 May 1791is second only in time to the constitution of the United States ofAmerica and more or less contemporaneous but somewhat earlier thanthe constitution of the Republic of France of 1791. The 3 Mayconstitution, cast as it was in the cauldron of Enlightenment ideas,contained then what we now characterise as a bill of rights, a noveltyin the absolutist milieu created by dominant church and state that wasthen the rule throughout Europe.

History repeated itself in Poland with the inauguration of theconstitution of the Polish Republic on St Patrick’s Day 1921. Thestructure and character, as well as the wording of the preamble of that20th century document, for example, displays striking correspondenceto the terms of the Free State constitution of 1922. Indeed, that verysame Polish document of 1921 was studied in the course of acomparative evaluation of continental constitutions by the Free Stategovernment with a view to providing a working framework for the

drafting of what came to be known as the Saorstát constitution. But the shared constitutional experience runs deeper still in that

there is a seam of human rights values embedded in both the 1791and 1921 Polish charters. For example, the constitutional right ofaccess to the courts (art 98), the right to property (art 99) ‘as one ofthe fundamental principles’, the inviolability of the dwelling (art 11),freedom of movement (art 101), the right to dispose of one’s labour(art 102), the rights of the child (art 103), freedom of expression (art104), freedom of the press (art 105), privacy (art 105), freedom ofassociation (art 108), minority protection (art 110), freedom of religionand conscience (art 111), and the right to free primary education allparallel our own cherished constitutional freedoms.

Unhappily, neither the rights proclaimed by the 1791 or 1921documents ever got the chance to be developed juridically by thecourts, as Poland was overrun shortly after their commencement, firstby Germany and then by the Soviet Union during World War II, afterwhich Poland became a Soviet satellite.

SHARED CONSTITUTIONAL HISTORY

Taxation


24

The reason for modernising theadministration of capital acquisitions tax(CAT) is to provide a quicker turnaroundservice to practitioners (and their clients)and to make it easier for the compliance

requirements of the tax to be met. Revenue wants tosee CAT become a modern, fully self-assessed tax:• Which is increasingly filed and paid over the

internet using the Revenue Online Service (ROS)

• Which is easier for the customer to understand• Where forms are processed quickly and non-

judgementally for the compliant customer• Where the non-compliant customer is swiftly

targeted and penalised• Which joins the other taxes in the Revenue-wide

Integrated Taxation Processing informationtechnology system, and

• Which is audited using Revenue audit norms.

It is a vision that brings CAT administration into the21st century. It will mean a move away from paper-based, judgemental forms processing into computer-based, self-assessed processing where new computersystems will help speed up the turnaround time for acase. For those filing through ROS, the system willprovide prompts, do all the calculations required andgive the bottom-line tax payable.

Self-assessmentThe ideal self-assessment system – which applies toall taxes – is to have a very simple return form (withno supporting documents) that would be sent in bythe customer along with the payment of tax. Thereturn and payment would be correct and would beprocessed quickly and non-judgementally and,ideally, both would be received in electronic form.The computations and supporting documents wouldbe retained by the customer for a finite length oftime in case of an audit. Information about every

The CAT’sThe administration of capital acquisitions tax (CAT) is currently undergoing

the biggest shake-up since self-assessment was introduced in 1989. Declan

Rigney explains the rationale behind the Revenue’s modernisation programme

and outlines the benefits to practitioners

customer’s taxes and duties would be linked, so thatthe complete Revenue picture (including all taxesand duties) for each customer would be managed.M

AIN

POIN

TS • Changes inCAT admin-istrationexplained

• Benefits topractitioners

• Finance Act,2003

Taxation


25

pyjamasWhile there are certain constraints that preclude

us from achieving this ideal, we feel that the changesbeing introduced deliver substantial efficiencies forboth practitioners (and their clients) and for theRevenue.

In the past, a significant Revenue resource wastied up in judgementally examining each return,issuing queries and, in a high proportion of cases,‘repairing’ or perfecting the returns followingconsultation with the customer and/or his agent.

Section 146 of the Finance Act, 2003 introduced anumber of changes to the CAT Consolidation Actwhich will help to underpin the administrativechanges, particularly the move to true self-assessment for gift and inheritance tax returns. Thefeatures introduced in the Finance Act are found inthe other self-assessed taxes. The changes, briefdetails of which are set out below, were signed intoeffect by ministerial order in September.

Strengthened penalties regimeSection 58 of the CAT Consolidation Act, 2003 isamended to increase the penalty for failure todeliver a return from a flat �2,565 to that amountplus an additional 100% of the tax due in respect ofthe return where the person acted negligently in notdelivering the return. A higher penalty applies if theperson acted fraudulently.

Obligation to retain recordsA new section 45A has been inserted into the CATConsolidation Act which imposes an obligation on anaccountable person to retain certain specifiedrecords (themselves or by someone on their behalf)in connection with a gift/inheritance tax return for aperiod of six years from the date the return wasreceived by the Revenue.

Expression of doubtA new section 46A has been inserted into the CATConsolidation Act which enables an accountableperson to indicate on the IT38 return that he hassome doubt as to the appropriate tax treatment of aparticular item which is to be included in the taxreturn. The accountable person files the return andmakes the payment based on his interpretation ofthe law. If any additional tax arises following aconsideration of the matter at issue, theaccountable person has 300 days after theresolution of the point to pay any balance of taxwithout incurring any interest penalty on thatadditional tax.

IN THE FINANCE ACT, 2003 CHANGES

Taxation


26

This undoubtedly was a drain on the resourcesrequired to process affidavits, returns and issuecertificates of discharge. Under the new approach,this will change and we will accept the payment andthe details on the return as filed by the customer.This change in approach, together with thedevelopment of computer systems to do much of theroutine processing, will enable us to:• Issue certificates of discharge more quickly where

the gift/inheritance tax return and payment are inorder

• Move resources away from the currentjudgemental checking of forms to more focusedcompliance and audit of high-risk cases

• Notify customers of returns selected for audit (andto complete these audits) more quickly.

Overall, this will give an improved service tocompliant customers. For IT38 forms returned usingROS, because there is less manual interventioninvolved, the turnaround will be quicker than whereIT38 forms are returned in paper format, and thisshould encourage the use of ROS. Nevertheless, thevalidation checks will be the same whether thecustomer returns the IT38 form on-line or on paper.Identical audit selection processes will apply to paperreturns and ROS returns, so filing under ROS willhave no impact on the probability of an audit.

The non-compliant customer will be identifiedquickly and will receive more detailed scrutiny. Theaudit policy will be designed to target the cases ofgreatest risk.

Benefits for practitionersThe benefits of the changes for practitioners include:• When filing the IT38 return and paying tax using

ROS, the system will provide prompts, do thecalculations, lower costs, be quicker than filing thepaper version of the return, and improveefficiency

• An expanded Lo-Call phone service (1890 20 1104), which will be of particular use to solepractitioners who might deal with CAT only veryoccasionally

• Redesigned Inland Revenue affidavit and IT38forms which are much easier to use

• An expression of doubt facility on the IT38 returnwhich will enable genuine concerns to beidentified

• Two completely new booklets, the Guide tocompleting the gift/inheritance tax return (IT38) andthe Guide to completing the Inland Revenue affidavit(CA24), which are fully comprehensive andprovide detailed examples clarifying every area ofcomplexity

• More decisive case-processing through moving togreater self-assessment coupled with prompt audit

• Much quicker turnaround of cases and theelimination of backlogs.

However, the modernisation will also mean thatforms must be completed properly and the onus willbe on the customer to get it right. Returns that arepoorly or inadequately completed will not beaccepted for processing; they will be returned to thefiler, which will lead to delays in finalising the caseand may give rise to the imposition of additionalpenalty charges. There will also be a more rigorouspenalties regime for non-compliant customers.

Gift/inheritance tax return (IT38)The IT38 has been redesigned to make it easier tounderstand and to complete. It now incorporates theold IT41 (agricultural relief form) and the IT5(business relief form). The net effect is that three oldforms totalling ten pages have been combined to give

There are many compelling reasons to file the IT38 and pay tax via ROS. Thebenefits for practitioners include:• All the calculations are done automatically, including business relief, the

farmer test for agricultural relief, double-taxation credits (a notoriously difficultarea) and the value of limited interest or joint life interest (the practitionermerely inputs the date of birth and the calculation is done immediately)

• When claiming any reliefs or exemptions, supplementary forms are notrequired

• On-screen prompts build the form dynamically in accordance with thebeneficiary’s individual circumstances (for example, if business relief is beingclaimed, then the relevant fields are shown but, if not, these fields do notappear)

• In terms of the territoriality rules for capital acquisitions tax, ROS clarifies theCAT implications for gifted/inherited property where both the disponer andbeneficiary are non-resident

• Every field has associated help text (this is based on the Guide to completingthe gift/inheritance tax return (IT38)).

• It apportions the liabilities and/or consideration between various benefits• It saves time in a case where more than one beneficiary is taking the same

share of an estate• The print feature allows the practitioner to get a hard copy of what exactly

was filed for his records• It calculates the bottom-line tax and interest• It is guaranteed accurate and secure.

OF USING ROSBENEFITS

Taxation


27

one new IT38 form totalling six pages. In addition,forms used in the past to claim certain exemptionsand reliefs will no longer be required. Instead, aclaim for a relief or an exemption should be made onthe IT38 return form and evidence supporting thevalidity of the claim to the relief/exemption shouldbe retained for a finite period (generally, six years).

The Inland Revenue affidavit CA24 form has alsobeen changed so that it is easier to complete; it nowincorporates the revamped schedule of lands andbuildings (CA6) for convenience.

On-line filing using ROSThe ability to file the IT38 and pay the tax on-lineusing the ROS facility on the Revenue website (atwww.revenue.ie) represents a significant change in thedelivery of customer service for CAT return filers. Itis the first stage in providing full electronic servicesfor CAT; the next stage, which we will embark on

The work of the Customer Service Branch of the CAT Division has nowbeen divided into four regions (previously five) and a team for eachregion will deal with the following matters in relation to gift andinheritance tax:• Processing of Inland Revenue affidavits• Processing of CAT returns• Issuing of certificates of discharge• All matters relating to the collection of CAT.

These changes are immediately effective and are in anticipation ofthe wider Revenue restructuring project, whereby the administrationof CAT will be divided up between four Revenue regions and a LargeCases Division next year.

The new regional structure is driven by the place of residence ofthe disponer, so, for example, if the disponer lives in County Cavan,contact the Border/Midlands/West region team.

Practitioners should also note that general queries in relation togift tax and inheritance tax will continue to be dealt with by theTaxpayer Information Unit (tel: Lo-Call 1890 20 11 04) and should notbe directed to the teams.

The four regional teams deal with the following counties:

CUSTOMER SERVICE BRANCH CAT DIVISION

East/South Border/Midlands/ South West Dublin East region West region region region

Tel: 01 674 8196/ Tel: 01 674 8439/ Tel: 01 674 8592/ Tel: 01 674 8585/674 8195 6748 689 674 8594 674 8688

[email protected] [email protected] [email protected] [email protected]

Carlow Cavan Clare Dublin Kildare Donegal Cork Non-IrishKilkenny Galway Kerry domicile/Laois Leitrim Limerick resident Meath Longford Tipperary Louth Waterford Mayo Wexford Monaghan Wicklow Offaly

Roscommon Sligo Westmeath

when this stage has bedded down, is to look atproviding the certificate of discharge (CA11) andInland Revenue affidavit (CA24) on-line.

This is a multi-faceted project embracing anumber of different initiatives, but all aspects went‘live’ in September. Our revised approach to theaudit of CAT returns is fully operational and wehave become more active in imposing penalties forcertain categories of non-compliance.

While we appreciate that it will take time forpractitioners and customers to become familiar withour new approach, and we acknowledge that theremainder of the year will be something of atransitional phase for all of us, we hope that thatpractitioners will embrace the new arrangements assoon as possible.

Declan Rigney is responsible for the CAT modernisationproject with the Revenue Commissioners.

G

Tel 01 872 8881 • Email [email protected] 01 872 8881 • Email [email protected]

Probate


28

In the context of administration of estates, thephrase ‘family arrangements’ would apply to asituation where the beneficiaries in the will orthe parties entitled on intestacy decide amongthemselves how the property is to be vested.

Where such arrangements are being considered, it isnecessary to be extremely careful, to be clear, and todocument precisely what is taking place.

Before attempting to give advice or draft such adeed, it is important (as a minimum) to ask yourself

Keeping it in Solicitors are increasingly asked to advise personal representatives in cases where beneficiaries

wish to redivide the will. In the second of three articles, Anne Stephenson discusses deeds of

family arrangement and their sometimes unwelcome tax consequences

MAI

N PO

INTS • Deeds of

familyarrangement

• SuccessionAct, 1965

• Stamp dutyand capitalgains tax

the following questions, because if you don’t knowwhat action is required to effect their wishes, youcannot advise correctly:• Will there be an assurance of all or any part of

the property by the personal representative topersons who are not beneficiaries?

• Will there be an assurance of all or any part ofthe property by the personal representative and isthat an appropriation under the will or undersection 55 of the Succession Act, 1965?

‘Creatures crawl in search of blood, to terrorise y’awl’s neighbourhood’ – but that’s enough about probate lawyers

Probate


29

the

• Will there be an assent of all or part of theproperty by the personal representative?

• Will there be a gift by a person/persons entitledto all or part of the property to persons who arenot so entitled?

• Will there be a sale by a person/persons entitledto all or part of the property to persons who arenot so entitled?

• Will there be a tax liability by putting theirwishes into effect?

Practitioners need to be absolutely certain of all thetaxes that can arise, taking into account what thebeneficiaries wish to do. Above all, you need to becertain who will fund the tax. The funding of the taxin itself can constitute an additional gift. A family, inreaching an agreement, frequently forgets the issueof tax – and when it is explained to them, they arehorrified that their ‘altruistic’ agreement will costmoney. It is not unheard of for the deal to fall apartat this point.

Tom, Dick and HarryAn example of a situation where a familyarrangement might arise is where a testator leavesthe family home to his five daughters as tenants-in-common in equal shares. One of those children isvery successful, married, living abroad and decidesto voluntarily release her share to three of the otherbeneficiaries. Another child wishes to sell her shareto the same three beneficiaries.

Such an arrangement would necessitate a deed offamily arrangement involving a sale by onebeneficiary of her share and a voluntary dispositionby another beneficiary of her share to the remainingthree beneficiaries.

Under section 10 of the Succession Act, 1965, thepersonal representative will need to join in to assignthe legal estate vested in him to the other threebeneficiaries. Instead of joining the personalrepresentative in the deed, the transaction could beeffected by two separate deeds: first, a deed of familyarrangement between the five beneficiaries; andsecond, an assent by the personal representativeeither in writing or under seal in favour of the threebeneficiaries who, by virtue of the combinedoperation of the will of the testator and the deed offamily arrangement, became entitled to the entirebeneficial interest in the premises.

A deed along the lines of such a familyarrangement would be kept off the title and anypurchaser dealing with the people named in theassent referred to would be entitled to rely on theprotection given by section 53(3) of the SuccessionAct, 1965 and should regard the assent as conclusiveevidence that the person in whose favour it wasgiven was the person entitled to have the premisesvested in him. The section states that ‘an assent or

POST-DEATH PLANNING

FAMILYPI

C:

SIP

A PR

ESS

/REX

FEA

TUR

ES

Probate


31

conveyance of unregistered land by a personalrepresentative shall, in favour of a purchaser, beconclusive evidence that the person in whose favourthe assent or conveyance is given or made is the personwho was entitled to have the estate or interest vested inhim, but shall not otherwise prejudicially affect theclaim of any person originally entitled to that estate orinterest or to any mortgage or encumbrance thereon’.

Taxes to be considered in relation to deeds of familyarrangements are stamp duty (discussed below), capitalgains tax (see panel), and capital acquisitions tax andresidential property tax (discussed in the final article inthis series).

Stamp dutyThe deed in the previous example would attract advalorem stamp duty on the value of the one individualfifth share conveyed by way of gift, and, assuming thatthe consideration for the one undivided fifth shareconveyed by the second beneficiary represents the fullvalue of that share, stamp duty is payable on thatconsideration or alternatively on the full value of thatshare, if greater.

In each case, stamp duty will be payable at half thenormal rate if the consanguinity certificate is includedas per paragraph 15 in schedule 1 of the StampConsolidation Act, 1999. There is a simple consanguinitycertificate in Revenue leaflet SD10, certificate 10. Thedeed will, of course, have to be adjudicated in thenormal manner and so the requirements in relation tofull disclosure to the Revenue Commissioners shouldbe noted.

A duty is imposed on the practitioner to set out allthe facts and circumstances affecting the liability of anyinstrument to duty, either in the instrument or in astatement attached to the instrument. Penalties areincurred by anybody who fraudulently or negligentlyexecutes any instrument not containing all such factsand circumstances, and anybody employed in orconcerned in the preparation of any such instrumentwho fraudulently or negligently prepares it shall alsoincur the same penalties. So a professional advisor willbe deemed to be negligent if he fails to take reasonablecare. We must further note that section 15 of the 1999 act sets out a surcharge that will be imposed

where a ‘submitted value’ is less than the value of theproperty.

Prior to the Finance Act, 1991 (which firstintroduced the duty), some practitioners used to takethe view that you had no obligation to stamp suchdeeds of family arrangement where a form of assent infavour of the nominated party/parties was lodged inthe Land Registry, on the basis that the personalrepresentative could be confident that the settlementwould never need to be relied upon or, if relied upon,that it could be stamped at a late penalty.

This view was always questionable. The reasonpractitioners adopted this viewpoint in Land Registrycases (apart from not having to pay stamp duty) isbecause the Land Registry does not actually registerthe deed of family arrangement. It is only concernedwith the form of assent duly executed by the personnamed in the grant of representation. In other words,the Land Registry does not look behind the deed ofassent but accepts it at its face value. It will register thenew owner in accordance with the terms of the assent(section 54(2) of the Succession Act, 1965 and section61(3) of the Registration of Title Act, 1964). This sectionprovides that ‘it shall not be the duty of the registrar,nor shall he be entitled to call for any information asto why any assent or transfer is or was made and shallbe bound to assume that the personal representative isor was acting in relation to the application, assent ortransfer correctly and within his powers’.

The fact that the deed does not have to be sent tothe Land Registry persuaded some practitioners that itwas not necessary to have it stamped. This practice stillprevails among some practitioners.

It is clearly wrong now in the light of the provisionsof part V of the Finance Act, 1991 and subsequentlegislation, and in particular the consequence of theduty of disclosure now imposed on professionaladvisors.

Remember that even though the deed of familyarrangement, duly stamped, is not produced to theLand Registry, it still forms part of the title deeds tothe property and must be retained.

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

G

A second tax that should be borne in mind when advising on a deed offamily arrangement is capital gains tax (CGT). The CGT legislation issignificantly more liberal than the capital acquisitions tax legislation inthis area. The question that is most frequently asked by practitionersis whether the disposition by the various parties gives rise to a CGTliability.

Section 573(6) of the Taxes Consolidation Act, 1997 provides theanswer. It states that there is no capital gains tax liability where adeed of family arrangement is made within two years of the date ofdeath or such longer period as the Revenue may agree in writing.There is a concession in such a case so that the dispositions made bythe parties to the deed are deemed to be the deceased’s dispositions(see the UK case of Marshall v Kerr [1991] STC686).

An example of this would be as follows: Helen Maguire dies on 1January 2003, leaving her company and her investments and otherassets equally to her two children, Patrick and Danielle. By deed offamily arrangement dated 6 June 2003, it is agreed with HelenMaguire’s personal representatives that Patrick will take the companyand Danielle will take the shares and the other assets. This will not beregarded as a disposal for CGT purposes.

A CGT difficulty often arises when a family comes to theprofessional advisor many years after the date of death to seek tovary the terms of the will. In that event, CGT is a very real concern.Note that the Revenue may extend the period under section 573(6),but this is a concession of the Revenue and must be applied for andobtained.

CAPITAL GAINS TAX

Mediation


32

Alternative Business-to-business arbitration has a long and successful history. Inspired by this success,

the European Commission has developed an arbitration service for business-to-consumer

contracts. Susan Reilly explains

MAI

N PO

INTS• Alternative

disputeresolution

• European Extra-Judicial Network

• EuropeanCommissionrecommendations

In October 2001, the European Commission andmember states established the European Extra-Judicial Network (EEJ-Net). The network aimsto help consumers resolve their cross-borderdisputes through alternative dispute resolution

(ADR) schemes. It operates through clearing houseslocated in each member state, as well as in Norwayand Iceland.

The euro, the internet and cheap travel make iteasier to shop across borders. To ensure consumerconfidence when shopping in the internal market, itis crucial that cross-border consumer disputes can behandled effectively. The EEJ-Net was born out ofthe need to ensure that consumers have access toappropriate mechanisms for settling disputes withtraders, without incurring the costs of going tocourt.

The EEJ-Net aims to provide a communicationand support structure to facilitate the work of ADRbodies across borders. It also addresses the practicalobstacles that consumers face when using an ADRbody in another country. Indeed, lack of informationabout foreign ADR bodies, linguistic and/orgeographical barriers can make it difficult forconsumers to introduce a case in the first instance.

The network covers any dispute concerning goodsand services – for example, problems with deliveries,defective products, or products or services that don’tfit their description. The clearing house providesconsumers with information and support tointroduce a case to an appropriate ADR scheme inthe trader’s country of business.

The network is made up of ADR bodies thatcomply with the recommendations on the principlesfor the bodies responsible for out-of-courtsettlement of consumer disputes (see panel overleaf).

If you’re not in, you can’t winIn Ireland, the Department of Enterprise, Trade andEmployment is responsible for recommending ADRbodies to the European Commission. The Irishclearing house works closely with the department tonominate suitable ADR bodies.

The benefits of becoming a recommended ADRbody are that it creates confidence for consumers

and business in the ADR body which they choose toresolve their dispute, and the ADR body isrecognised by the European Commission, whichadds value to the body.

Mediation


33

remediesIn all, there are 444 recommended ADR bodiesthroughout the European Union listed with theEuropean Commission.

How has it worked?In October 2002, the European Commission preparedan interim report on the activity of the clearinghouses. At the time, over 1,100 complaints had beendealt with. On 31 March 2003, the number of

In Ireland, there are six nominated ADR bodieslisted under the commission’s recommendations: • ELCOM, the Electricity Supply Board• Arbitration scheme for tour operators (Chartered

Institute of Arbitrators) • Ombudsman for Credit Institutions• Centre for Dispute Resolution• Insurance Ombudsman of Ireland, and• The Advertising Standards Authority for Ireland.

Mediation


35

complaints and enquiries received by all clearinghouses had already reached 2,182. In six months,there had been a 100% increase.

In June of this year, the commission held aconference in Brussels to mark the end of the EEJ-Net’s pilot and consolidation phase. An activityreport was presented to representatives from theEuropean Commission, clearing houses, Europeanconsumer centres, government officials, ADRbodies, business associations and the accessioncountries.

The report took 1,336 cases into consideration and,of this number, 956 were closed. Of these, 11% (107)were enquiries to the clearing house and resulted inno further action. Over half resulted in settlement:7% (66) resulted in a final solution reached by anADR and 44% (422) were settled without an ADRresolution but by the direct intervention of the EEJ-Net. Unfortunately, 38% (361) remain unsolved.There are various reasons for this – for example, noADR body was available and no amicable settlementwas found or the consumer simply did not want topursue the case.

The luck of the IrishSince the Irish clearing house started up in May 2002,it has handled 102 cases, ranging from Irishconsumers with disputes against Spanish holidayresorts over non-refund of deposits, to Norwegianconsumers with complaints against an Irish airline

over ticket refunds. Eight cases were sent to ADRbodies, four were closed unresolved when theconsumers decided not to pursue the issue further, 32were resolved through direct contact with thecompany by the clearing house, two were referred toFIN-Net (the financial services network), and 56 caseswere closed unresolved due to the lack of relevantADR bodies.

It is clear from these statistics that there is adistinct lack of recommended ADR bodies in Ireland.The European Commission wants consumers andbusinesses to be made aware of the existence andadded-value of ADR to help the greater resolution ofdisputes and increase confidence in shopping in theinternal market.

The commission is also driving the network tobring awareness of the EEJ-Net and promote theclear benefits of the commission’s recommendationsto the ADR bodies themselves. It is for this reasonthat the Irish clearing house would like to invite anylegal professionals involved in ADR schemes whomaybe interested in becoming a recommended ADRbody to contact it.

Susan Reilly is the Irish clearing-house co-ordinator.Contact details for the ADR bodies are available on theEuropean Commission’s website at www.europa.eu.int/comm/consumers/redress and will also be onwww.eej-net.org and on the Dublin EuropeanConsumer Centre website www.eccdublin.ie.

G

In 1998, the European Commission adopted a recommendation on theprinciples applicable to bodies responsible for the out-of-courtsettlement of consumer disputes. The principles set out underrecommendation 98/257/EC are:• Principle of independence. The independence of the decision-making

body is ensured in order to guarantee the impartiality of its actions• Principle of transparency. Appropriate measures are taken to ensure

the transparency of the procedure. Provision of information, whetherin writing or any other form, should be made available to all partiesinvolved on request

• Adversarial principle. The procedure to be followed allows all theparties concerned to present their viewpoint before the competentbody and to hear the arguments and facts put forward by the otherparty, and any experts’ statements

• Principle of effectiveness. The effectiveness of the procedure isensured through measures guaranteeing that the consumer hasaccess to the procedure without being obliged to use a legalrepresentative

• Principle of legality. The decision taken by the body may not result inthe consumer being deprived of the protection afforded by themandatory provisions of the law of the state in whose territory thebody is established. In the case of cross-border disputes, thedecision taken by the body may not result in the consumer beingdeprived of the protection afforded by the mandatory provisionsapplying under the law of the member state in which he is normallyresident in the instances provided for under article 5 of the Romeconvention of 19 June 1980 on the law applicable to contractualobligations

• Principle of liberty. The decision taken by the body concerned may

be binding on the parties only if they were informed of its bindingnature in advance and specifically accepted this. The consumer’srecourse to the out-of-court procedure may not be the result of acommitment prior to the materialisation of the dispute, where suchcommitment has the effect of depriving the consumer of his right tobring an action before the courts for the settlement of the dispute

• Principle of representation. The procedure does not deprive theparties of the right to be represented or assisted by a third party atall stages of the procedure.

In April 2001, the 98/257/EC recommendations were followed byrecommendation 2001/310/EC, which clearly listed the principles forout-of-court bodies involved in the consensual resolution of consumerdispute. The principles set out under this recommendation are:• Impartiality. This should be guaranteed by ensuring that those

responsible for the procedure be appointed for a fixed term, have noconflict of interest with either party, and should supply informationwith regard to their impartiality to both parties prior to thecommencement of the procedure

• Transparency. Information on ADR bodies, their procedures and thecost of the services should be made available to the consumer

• Effectiveness. The effectiveness of the procedure should beguaranteed

• Fairness. The participants should be informed of their right towithdraw from the procedure at any time. They should be able tofreely and easily submit arguments, and both parties should beencouraged to fully co-operate in the procedure. The consumershould be informed in clear and understandable language beforeboth parties accept the suggested solution.

THE COMMISSION’S RECOMMENDATIONS

Gadgets


36

Tech trendsApe-pocalypse now!Now they’ve gone and done

it. How many times did wetell them? ‘Don’t wire up amonkey’s brains to robotic arms’,we said. ‘They’ll kill us all’, wewarned. ‘Get your hands off me,you damned dirty ape’, wescreamed, as the gardaí draggedus away. But did they listen?

Now comes the news thatscientists in North Carolina havebuilt a brain implant that allowsmonkeys to control a robotic armwith their thoughts. Read thatsentence back to yourself again.Monkeys controlling roboticarms. With their monkey minds.Don’t these people watch TV?

According to an Americanscientific journal, the‘breakthrough’ at DukeUniversity Medical Centre couldsome day allow people paralysedthrough spinal injury to operatemachines or tools with theirthoughts. It might even allowquadriplegics to move their ownarms and legs by transmittingorders from the brain to themuscles in the paralysed limbs.

The journal PLoS Biology saysthis is the first time that anyanimal has learned to use itsbrain to use robotic devices in alldirections and perform a series of inter-related movements, suchas reaching for an object,grasping it and adjusting the grip

strength depending on theobject’s weight.

The process involved tenhours of surgery on the monkeysto implant 320 tiny electrodes,each of them thinner than ahuman hair. The holes in themonkeys’ skulls were then filledwith ‘a substance resemblingdental cement’. The wires werelinked up to a computer andconnected to a large mechanicalarm. The monkeys were reward-ed with juice when they per-formed their tasks successfully.

Duke University hopes to getpermission to begin testing onhumans next year. A spokesmanfor the college denied that themonkeys were in any way put outby the experiments. ‘If anything,they’re enjoying themselves’, heis quoted as saying. ‘It enrichestheir lives’.

As a result of this scientificmarvel, citizens of downtownTokyo might well find their livesenriched in the coming years bygiant monkey-controlled robots

Anytime, anyplace, anywhereThe insatiable appetite

for PDAs (personal digital assistants) shows no sign of abating, with Toshibalaunching a new range of PocketPCs. The company describes itsPocket PC e740 range as‘revolutionary’ and setting ‘a newbenchmark for top-end PDAtechnology’. Well, they wouldsay that, wouldn’t they? Butthere’s no denying that the e740

The EP725 from Optomaclaims to be one of the

world’s smallest and lightestdigital projectors. Despite its

Business or pleasure?diminutive size, it is more thancapable of handling all yourpresentational needs, with abrightness of 1,150 lumens anda contrast ratio of 2000:1. Butthat’s not the good bit: if youcan persuade your boss tospring for the EP725, you canuse it as a home cinema bylinking it up to your DVD,video, laptop or PDA.Available from Noltech Ltd inNaas for around �2,999.

is a very impressive piece of kitindeed, with an extremelypowerful 400Mhz Intel PXA255 processor. There are threespecific products in the range,and you can choose betweenintegrated wireless LAN orBluetooth connectivity. Don’tworry about the technobabble:what it means is that you willget hassle-free access to e-mail,the internet and office

hurling faeces at them. Plansare reportedly afoot in Japan todevelop a race of genetically-

enhanced super-dinosaurs tocounter the perceived threatfrom the simian cyborgs.

networks, no matter where youare. All three models featureintegrated infrared, allowingcable-free data exchange. Butwhat will really catch your eye isthe full colour screen, whichmakes it a pleasure to run allyour old familiar programs suchas Pocket Word, Pocket Exceland Pocket Internet Explorer. Prices range from �649 to �768(ex VAT).

Top boffins predict the future could look something like this

PIC

: R

OS

BY

RN

E/G

AZ

ET

TE

ST

UD

IO,

SH

OT

IN B

OO

ZA

RA

MA

TM

Gadgets


37

Sites to see

It had to happen, I suppose.We’ve had mobile phones

that play music, mobiles thattake pictures, and even mobilephones that you can use as atelephone. Now, Nokia hastrumped the lot byintroducing the N-Gage, amobile phone that is really aminiature Playstation. In fact,Nokia doesn’t even bother to

On the gamedescribe it as a phone;instead, it’s a‘game deck’.As well asplayingclassic videogames such asTomb Raider, theN-Gage alsocontains a radio, an MP3 playerfor playing or recording music

files,and a web

browser withe-mail facilities. You

can also download Microsoftand Lotus software so thatyou have a functioning PDA.

And you can make calls on it, if you’re not too busyplaying.

When Nokia gets aroundto adding a camera and amobile monkey-alert system(MMAS), the future willreally have arrived.The Nokia N-Gage will belaunched shortly, prices are to beannounced.

Knowledge at your fingertips (www.questia.com). You know how there’s something on the tip of your tongue, but you can’tquite get it? Well, this site is guaranteed to put you out of yourmisery. Questia claims to be the world’s largest on-line library,boasting over 45,000 books and 360,000 articles: legal, historicalor just about anything you want. For a fee, you no longer have anexcuse not to be your best mate’s ‘phone a friend’.

Financial facts (www.finfacts.com). This finance and businessportal should help even the most avid stock-watcher keep upwith the times. The Finfacts Finance Centre represents an on-line financial resource – or so they say – with links to news,share prices, mortgage rates, pensions, currency prices andcomparative salary surveys, among other things. Go ahead:impress your accountant!

Racing (www.horseracingireland.ie). It’s the sport of kings,apparently, though you don’t see too many of them down inPaddy Power’s of a lunchtime. This site provides comprehensiveinformation on race meetings, festivals, results, race cards,courses, sponsorship and corporate hospitality. ‘Wherever youare in Ireland’, they say, ‘you’re never far from a race meeting’.And that’s straight from the horse’s mouth.

Keeping up appearances (www.awfulplasticsurgery.com). A sitethat will let a smug smile creep across your face as youcongratulate yourself on growing older gracefully.Awfulplasticsurgery.com is filled with pictures of celebrities whocan no longer smile smugly for fear that their face will split. Aninteresting glimpse at the results of excess vanity, this could beyour feel-good site of the week.

C o m m e r c i a l L e n d i n g

C o r p o r a t e Tr e a s u r y

W e a l t h M a n a g e m e n t

a n g l o i r i s h b a n k . c o m

Te l : ( 0 1 ) 6 1 6 2 0 0 0

E x p e r i e n c e t h e d i f f e r e n c e

Money needs to be astutely managed

by people who have taken the time

to understand exactly what

you want to achieve with it.

Because it’s only money, after all.

It’s the people who

make the difference.

Briefing


39

Motion: delegation offunctions‘That the following functions shall beand are hereby delegated to theCompensation Fund Committee andto the Registrar’s Committee andthat regulation 16 of theRegulations of the Council,2002-2003 be amended to includethe following: “The functions of thesociety under sections 58 and 59 ofthe Solicitors (Amendment) Act,1994”.’Proposed: John O’ConnorSeconded: Simon Murphy

John O’Connor and SimonMurphy noted that the power tosuspend a practising certificateduring the currency of a practiceyear and the power to imposeconditions attaching to apractising certificate during thecurrency of a practice year hadnot yet been delegated by theCouncil to the regulatorycommittees. The Councilapproved the amendment of theCouncil regulations to reflect thedelegation of functions, asrequested.

Motion: referral scheme toprovide counselling andguidance‘That this Council approves theestablishment of a referral scheme toprovide counselling and guidance forsolicitors at risk from occupationalstress or similar health problems.’Proposed: Gerard GriffinSeconded: John O’Connor

Gerard Griffin outlined thebackground to the proposedscheme and noted the support ofthe independent adjudicator andthe lay members of theRegistrar’s Committee for theinitiative.

John O’Connor said that anumber of members of theprofession were suffering fromstress and other health-relatedproblems and there was a need to

establish a system of counsellingand support for such colleagues.Following discussions with aneminent psychologist, agreementhad been reached on theestablishment of a referral serviceon the basis of payment by thesociety of an annual retainer andthe initial consultation fee, withthe cost of further consultationsbeing met by the individualsolicitor. The scheme would behighly confidential and wouldoperate outside the structures ofthe regulatory functions of thesociety. The scheme wouldprovide immediate access to acounsellor for individualsolicitors within two days ofcontact being made, with a panelof counsellors being available onstand-by.

James McCourt said that thescheme represented a responseby the society to the needs of itsvulnerable members, althoughhe believed that the societyshould remain vigilant andidentify further ways to improveits support structures. GerardGriffin said that he intended toestablish a task force to reviewand co-ordinate all of thesociety’s support structuresduring the coming year.

Moya Quinlan suggested thatthe review should also encompassthe support structures providedto trainee solicitors, so that thesociety could develop an on-going pattern of support andassistance for its members andprospective members.

Implementation of the secondMoney laundering directiveThe president reported onmeetings with the minister forjustice, equality and law reformheld in July and September todiscuss the society’s concernsregarding aspects of theregulations giving effect to theMoney laundering directive. Thetwo principal concerns were: a)

the fact that the regulationsprovided for two, rather thanthree, exemptions from thereporting obligations, and b) thefact that solicitors wereprohibited from informing theirclients that a report had beenmade.

As a result of the society’srepresentations, the minister hadagreed to introduce amendingregulations reflecting the threeexemptions from the reportingobligations. In addition, he hadprovided a letter to the societyindicating his view, formed onthe basis of advice from theattorney general, that there wasnothing in the act or theregulations that would prohibit asolicitor from informing hisclient that he was ceasing to actfor the client or, indeed, that hewas ceasing to act for a clientbecause he was unhappy with anytransaction in which the clientwas involved.

The director general said thatthe reporting obligations forsolicitors under the Moneylaundering directives had been anissue for the previous seven years.The society had opposed thedesignation of solicitorsvigorously from the outset andhad persuaded the formerminister, John O’Donoghue, notto designate solicitors, pendingthe enactment of the secondMoney laundering directive. Thiswas now in place and,consequently, it was not open tothe society to challenge theobligation to report.

James MacGuill said that theminister’s letter introduced aformula that ameliorated thecircumstances for solicitors facedwith making a report to theauthorities. The expansion of thetwo exemptions to three meantthat a significant proportion ofany solicitor’s dealings with aclient would be exempt from anyreporting obligation.

Donald Binchy said that it wasimportant to inform and educatethe profession on the matter,both by mailshot via the Gazetteand through CPD seminars. Henoted that there was a meeting ofthe bar association PROs to beheld on 15 September and hesuggested that they should bebriefed on the content of theregulations.

Personal Injuries Assessment BoardThe president reported on thesociety’s meeting with the JointOireachtas Committee onEnterprise and Small Business on16 July. The Council discussedthe contents of the society’ssubmissions on the PersonalInjuries Assessment Board Bill andthe Civil Liability and Courts Bill.The director general noted that there were certain aspects ofboth bills about which the society had grave concerns, and it was intended to bring thesematters to the attention of both opposition and govern-ment TDs.

Gerard Griffin noted that,arising from a recent decision ofthe judiciary, it appeared thatcertain medical reports in HighCourt actions might be passed tothe PIAB. These reports wouldcontain sensitive information inrelation to the medical conditionof plaintiffs, who might not wishsuch information to be circulatedto third parties. The Councilagreed that solicitors should beadvised to inform their clientsthat their medical reports mightbe copied to the PIAB and toseek the client’s authority to handover those reports in such cases.

The director general notedthat, while insurance companieshad shown significant profitsrecently and the level of awardshad fallen, premiums foremployer and public liability hadnot matched these reductions. G

Report of Law Society Council meeting held on 5 September 2003

Briefing


40

Practice notesREGULATIONS FOR PROFESSIONAL NAMES, NOTEPAPER AND NAMEPLATES

The Guidance and EthicsCommittee frequently receives

queries from solicitors in relationto what is permitted on a solici-tor’s professional notepaper.Queries are also received in rela-tion to professional names forsolicitors’ firms. These mattersare regulated under SI no 178 of1996. As seven years havepassed since the enactment ofthis statutory instrument, thecommittee has decided to publishthe full text again for the assis-tance of solicitors.

Statutory instrument no 178 of 1996The Law Society of Ireland, inexercise of the powers conferredon it by sections 4,5 and 71 ofthe Solicitors Act, 1954 (no 36 of 1954) as amended by theSolicitors (Amendment) Act,1994, hereby makes the followingregulations:1. i) These regulations may be

cited as the Solicitors(Professional Practice, Conductand Discipline) Regulations1996ii) These regulations shallcome into force on the first dayof October 1996

2. i) In these regulations, unlessthe context otherwise requires:• ‘The society’ means the Law

Society of Ireland• ‘Solicitors’ has the meaning

assigned to it in section 3 ofthe Solicitors (Amendment)Act, 1994

• ‘Practice’ means the profes-sional practice of a solicitor

• Other words and phrases inthese regulations shall havethe meanings assigned tothem by the Solicitors Acts,1954 to 1994

3. The Interpretation Act, 1937applies to the interpretation ofthis regulation as it applies tothe interpretation of an act of

the Oireachtas4. i) The name of a practice under

which a solicitor or a firm ofsolicitors carry on businessshall consist only of the nameor one of the names of the solic-itors or one or more of the pres-ent or former principals of thefirm as the case may be, orsuch other name as is approvedin writing by the societyii) Section (4)(i) will not apply toany name which is in use onthe first day of July 1996

5. The nameplate of a practiceshall not include matters otherthan the following:i) The name of the practiceii) The names of solicitorsand/or their qualificationsiii) The date of establishment

6. The following provisions shallapply to the professionalnotepaper of a practice:i) Even if a practice is carriedon under the true surnames ofall the partners, the notepapershall list their namesii) If the names of assistantsolicitors are listed on thenotepaper, a dif ferentiationshall be made between theirnames and the names of thepartnersiii) Where the practice compris-es a solicitor in salariedemployment acting for his non-solicitor employer, the profes-sional notepaper shall statethe name of the solicitor andmay list the names of othersolicitors who assist that solic-itoriv) All solicitors who are listedon the notepaper of a practiceshall hold a current practis-ing certificate issued by thesocietyv) No names other than thenames of solicitors holding cur-rent practising cer tificatesissued by the society shallappear on the notepaper,

unless their status is unam-biguously statedvi) If one or more solicitors orfirms practise in associationwith each other, their respec-tive notepaper may refer to thesolicitors or firms with whomthey are in association.

Explanatory noteThis statutory instrument shouldbe read in conjunction with theRegistration of Business NamesAct, 1963, which also containsimportant provisions relating toprofessional names and note-paper.Signed on behalf of the LawSociety of Ireland this fourth dayof June 1996

Northern Ireland solicitors When a Northern Ireland firmwishes one partner to set up anoffice in this jurisdiction and usethe partnership name, the follow-ing are the Law Society’s require-ments:• The written permission of all

the partners to the use of thename shall be furnished to theLaw Society of Ireland

• The office letterhead to beused in this jurisdiction shallshow only the name of thesolicitor who holds a practisingcertificate in this jurisdictionand he/she shall be shown as‘principal’

• If the partners in the NorthernIreland firm wish to be shownon the letterhead, they mustbe admitted to the Roll ofSolicitors here and hold a cur-rent practising certificate fromthe Law Society of Ireland.

It should be noted that theSolicitors Acts, 1954 to 2002 pro-hibit a solicitor practising in thisjurisdiction from sharing profitswith an ‘unqualified person’, thatis, within the meaning of the leg-

islation, anyone not holding apractising certificate from the LawSociety of Ireland.

Registration of Business NamesAct, 1963Section 3(I) (a) of the act providesthat every firm having a place ofbusiness in the state, and carry-ing on business under a businessname which does not consist ofthe true surnames of all partnerswho are individuals, shall be reg-istered in the manner directed bythe act. Section 4 provides thatevery person required under theact to be registered shall furnish,by sending by post or delivery tothe registrar, a statement in writ-ing in the prescribed form con-taining, among other things, thelist of partners of the firm.

In addition, section 18(1)(b) re-quires all business letters, circu-lars and catalogues on or in whichthe business name appears, andwhich are sent by that person toany person, to state in legible char-acters, in the case of a firm, thepresent christian names or the ini-tials thereof and the present sur-names, and former christian namesand surnames, the nationality, if notIrish, of all partners in the firm or,in the case of a body corporate be-ing a partner, the corporate name.

Thus, the act requires:1) That all solicitors list the

names of partners on theirnotepaper

2) That solicitors using other thantheir own name as the name ofthe firm should register thosenames as business namesunder the act and must providedetails of the partners of thefirm, when registering same.

A statement on the notepapersaying that a list of partners isavailable on request would not besufficient to comply with the act.

Guidance and Ethics Committee

Briefing


41

Aplanning condition in the fol-lowing terms has been

brought to the attention of theConveyancing Committee:‘5) a) Houses to be restricted to

persons who have been resi-dent in County Wicklow for atleast one year and/or thosecurrently in full-time employ-ment in County Wicklow orother such class of personsthat the planning authority mayagree to in writing b) Confirmation from a solici-tor or other suitable qualifiedprofessional with indemnityinsurance that the dwellingshave been sold in accordancewith this condition shall besubmitted to the planningauthority upon the sale of thedwellings.

Reason: To ensure that thedwellings are suitably restrictedto meet local growth needs asopposed to regional needs, toensure the development meetswith the requirements of thestrategic planning guidelines andthe county development plan withrespect to development in thehinterland areas, in the interestof proper planning and sustain-able development.’

The committee unanimouslyagreed that it is not acceptable

that solicitors would be asked tocertify matters in relation to theresidence or place of work oftheir clients. These are matterson which the clients/applicantsfor permission can easily satisfythe local authority directly by wayof completing their own certifi-cate or statutory declaration.

The planning condition broughtto the attention of the committeewas accompanied by a draft cer-tificate which was to be typed ona purchaser’s solicitor’s headednotepaper. This cer tificate isaddressed openly ‘To whom itconcerns’ and is required to con-firm, inter alia, that the solicitorcurrently holds professionalindemnity insurance, that the pur-chasers’ purchase with full knowl-edge of the provisions of theplanning permission and the limi-tations imposed by conditions5(a) and (b) thereof, that thesolicitor certifies that house num-ber X in the development hasbeen sold in compliance with theprovisions of conditions 5(a) ofthe relevant planning permissionby vir tue of the fact that the pur-chasers/one of them have/hasbeen resident in the county for atleast one year and/or the pur-chasers/one of them currentlyare/is in full-time employment in

the county. The certificate is tobe signed by the solicitor for thepurchasers and dated. There isno requirement that the mattersreferred to in the cer tificateshould be co-signed or endorsedby the purchasers. The certificateis not stated to be based oninformation supplied by the pur-chasers.

The committee noted the for-mat of the certificate required bythe local authority and in particu-lar noted that there is no provi-sion for the purchasers them-selves to certify relevant mattersto the local authority. Rather, thelocal authority seeks to hold pur-chasers’ solicitors liable for theveracity of the statements con-tained in the certificate. The com-mittee said it could only specu-late as to what the reasons arefor the requirement that a solici-tor has professional indemnityinsurance, but it seemed to thecommittee that the most obviousreason would be that the localauthority intends to sue solicitorson foot of their cer tificatesshould the need arise.

The committee was unani-mously of the view that solicitorsshould not complete these cer-tificates under any circum-stances.

Purchasers’ solicitors facedwith requests to complete thesecertificates should:1) Advise their clients/pur-

chasers to write to the localauthority applying for a waiveror a variation of this conditionin the planning

2) Give the clients a copy of thispractice note for enclosurewith their application for waiv-er/variation

3) Advise the clients/purchasersto offer their own certificatesand/or statutory declarationsto verify the facts required bythe local authority.

In addition, the committee wouldrecommend to the bar associa-tions in counties which regularlyinclude conditions of this type intheir planning permissions toengage with the planning authori-ties in those counties with a viewto having planning conditions ofthis nature either removed fromplanning permissions or varied soas to require the appropriate cer-tification from the clients/pur-chasers and not from their solici-tors. The committee is preparedto assist any affected bar associ-ations with such meetings withlocal planning authorities.

Conveyancing Committee

PLANNING CONDITION REQUIRING RESIDENCE OR EMPLOYMENT OF APPLICANT IN PLANNING AUTHORITY AREA

Anumber of changes have beenmade to the milk quota regu-

lations by the above statutoryinstrument.

Family transactionsRegulation 6, which deals withfamily transactions, has beenamended to provide that, subjectto the approval of the minister foragriculture, a beneficiary maylease land to a relative of thedeceased owner. (Up to now, thelessee had to be a relative of thebeneficiary.)

PartnershipsThe partnership regulations (SI no97/2002) have been amended in

a number of ways and anyoneinvolved in setting up a partnership arrangement wouldneed to be aware of these amend-ments. In particular, a new cate-gory of milk production partner-ship has been created. Thisallows for a partnership betweena parent and his or her child,where the child ‘has received anallocation of milk quota underNew Entrant Farming inPartnership’.

Purchase of milk quota by lessee There has been a substantialamendment to regulation 9 of the2000 regulations. A lessee cannow purchase the lessor’s quota

if the lease existed prior to 1 April2000 (the previous cut-off datehad been 13 October 1999).

Where the lease is to a member of the family (asdefined), the lessee may nowpurchase the milk quota wherethe lease existed prior to 1 April2001. (The regulation appears torelate to family leases as definedby regulation 6(2) of the regula-tions. As such leases would havecome into existence pursuant tothe 2000 regulations, it is pre-sumed that the right to purchasethe quota would arise only inrespect of leases which cameinto existence after 1 April2000.)

Farm retirement leasesThe new regulations provide for anew regulation 11 to be inserted inthe Milk Quota Regulations. Thisnew regulation replaces regulation10 (paragraphs 3, 4 and 5).Regulation 10 of the 2000 regula-tions (paragraphs 3,4 and 5) hadallowed the minister to grant newleases of land and quota where afarm retirement lease of land andquota had been entered into butthe lessee no longer wished to con-tinue the lease.

Under the new regulations, thenew lease to the new lessee mustbe signed within six months of theending of the previous lease.


MILK QUOTA AMENDMENT REGULATIONS 2003 (SI NO 123/2003)

Briefing


42

Anumber of local authoritiesare imposing conditions in

planning permissions requiringthe applicant to secure sight linesat the entrance to a house sitefrom the public road.

The following is an example ofa condition imposed by a planningauthority as a general condition:

Prior to commencement ofdevelopment, vision lines of 68metres shall be provided in eachdirection, at a point 3.05 metresback from the road edge at loca-tion of vehicular entrance. Saidvision lines should be based oneye object height equal to 1.06metres over height of 1.06metres. Documentary evidence ofconsent for location of vision linesover third-party lands shall be sub-mitted to the planning authorityfor written agreement prior tocommencement of development.

Clearly, planning authorities areentitled to take into account theneed for traffic exiting a site tohave an acceptable view of trafficapproaching and the need for thattraffic approaching to have an ade-quate opportunity of seeing a carwhich might exit into its path.

The committee has seen anumber of different conditions. Ithas also been informed that, insome cases, applicants anticipat-ing the requirement have offeredto provide the necessary sightlines in the application so thatthere was nothing on the face ofthe planning permission to alert

anyone of the requirement. In at least one case, the appli-

cant had offered to reduce theheight of a hedge (with the per-mission of a neighbour who ownedthe land on which the hedge inquestion was located) and nothought seemed to have beengiven to what was to happen whenthe hedge grew again. In anothercase, the applicant (again with thepermission of a neighbour) con-firmed that an arrangement hadbeen made with a neighbour toprovide an appropriate sight line.In that case, the neighbour did notreally understand what wasrequired of him and the planningauthority in question did not clarifythe position.

It is not satisfactory that plan-ning authorities in some cases donot deal with the long- term impli-cations.

It seems clear that conditionslike this are going to cause prob-lems for architects and engineerswho may be asked to certify com-pliance. They will also clearly causeproblems for people who buy sitessubject to such conditions.Solicitors who are advising clientsin relation to the purchase of aproperty subject to such a condi-tion will have to advise their clientsvery carefully, particularly if thecondition is not going to be proper-ly dealt with. In such circum-stances, solicitors should point outthat they are likely to have a prob-lem in certifying title and that there

is a clear risk that there will beproblems on re-selling. The com-mittee advises that such adviceshould be confirmed in writing.

In addition, when acting for aclient purchasing a site with thebenefit of a planning permission, itis yet another reason to advise theclient to have the position regard-ing the planning permissionchecked out by a competent person.

The committee doubts that it iswise for solicitors themselves tobrief an architect or engineer onbehalf of their client in such situa-tions but recognises that, fromtime to time, solicitors will findthat they have to do this. The com-mittee feels that such briefingshould be in general terms ratherthan trying to anticipate all theissues that could arise. However,the issue of sight lines and othereasements could be addressed byasking the surveyor to reviewwhether the house, its access andany facilities such as a septic tankor percolation area or water supplycan be provided without passingover or acquiring rights over land inthe ownership of any third party.

The practical problem is that anapplicant who already owns a siteand who has received a grant ofplanning permission subject tosuch a condition might not realisethe full implications of such a con-dition and might have the househalf-built before realising thatthere may be a problem.

Compliance with the condition maybe impossible because it wouldrequire the applicant to acquireland perhaps from both adjoiningowners to provide the necessarylines of sight.

The current situation is creatingproblems for property owners andtheir solicitors and in some casesproperties will not be saleablewithout the problem being regu-larised.

In the opinion of theConveyancing Committee, theplanning authority should not grantpermission until the applicant sat-isfies it that the applicant hassuch legal rights or perhaps own-ership necessary to enable it tocomply with any such condition.Planning authorities already dothis routinely in some areas inrelation to easements for drainageif a site cannot be drained withouta grant of easements over proper-ty in the ownership of third parties.

Alternatively, the planningauthority should ask applicants tosubmit with a planning application(or seek further information for-mally of anyone who does not com-ply) confirmation of the position inrelation to sight lines, and thenelect to grant permission (otherthings being equal) if the sightlines are adequate and refusethem if they are not. Informalarrangements or letters fromfriendly neighbours are simply notacceptable.


SIGHT LINES: NEW PROBLEMS FOR PROPERTY OWNERS AND THEIR CONVEYANCERS

The Conveyancing Committeerecently made inquiries with

the Revenue Commissioners’Capital Taxes Division regardingthe CAT clearance certificate andthe status of the letter attachingCAT to the proceeds of sale ratherthan to the property. The commit-tee had asked if, having obtainedsuch a letter attaching CAT to theproceeds of sale rather than to theproperty, a purchaser would stillrequire production of the CAT clear-

ance certificate at a later date. TheRevenue Commissioners havereplied along the following lines:

‘Section 60(1) of the CapitalAcquisitions Tax ConsolidationAct, 2003 states that the tax duein respect of a taxable gift orinheritance shall be and remain acharge on the property of whichthe taxable gift or inheritance con-sists at the valuation date. If prop-erty is sold in the course of admin-istration prior to the valuation

date, Revenue will, on request,issue a letter discharging theproperty from the CAT charge andattaching the charge instead towhatever assets represent theproceeds of sale of the property atthe valuation date.

The issue of this letter is con-firmation from Revenue that thereis no charge to CAT attaching tothe property disposed of.Therefore, any purchaser is fullyprotected and the production of a

CAT clearance certificate is notrequired’.

In relation to such lettersattaching CAT to the proceeds ofsale, it is up to both vendors’solicitors and purchasers’ solici-tors to ensure that this letter isused only in appropriate circum-stances, that is, where a sale ofthe property takes place in thecourse of administration prior tothe valuation date.


CAT CLEARANCE CERTIFICATES

Briefing


43

In recent months, the LitigationCommittee has received a num-

ber of complaints from practition-ers regarding delays in the issuingof cheques by insurance compa-nies. The problem primarily arises

in relation to costs cheques, withsome practitioners repor tingdelays of a number of monthsbefore payment is received.

Practitioners should note thatsection 30 of the Court and Court

Officers Act, 2002 provides forinterest on the costs of a judg-ment at a rate of 2% from thetime of judgment until same are agreed or taxed. A rate of 8% applies thereafter, until

paid.In the case of judgments, a

rate of 8% (SI 12/1989) appliesfrom the time of judgment untilpayment is made.

Litigation Committee

INSURANCE COMPANY DELAYS IN ISSUING CHEQUES

Many practitioners areunaware that, in the volun-

tary transfer situation, there maybe a presumption of undue influ-ence in relation to the transac-tion. What this means is that ifthe transaction is challenged, itfails unless the donee is in aposition to rebut the presump-tion of undue influence. In itself,the fact that there was no undue influence is not sufficient.The presumption must berebutted.

Where a solicitor acts on bothsides of a voluntary transfer, ithas been held that, as he is notindependent of either party, hecan not give evidence which willrebut the presumption. In orderto rebut the presumption, inde-pendent advice, usually, but notnecessarily, independent legaladvice, must be obtained.

Signed acknowledgementsSome solicitors get the transferor tosign an acknowledgement that thetransferor has been offered inde-pendent advice but has declinedthe offer. This is not sufficient, as itdoes nothing to rebut the presump-tion of undue influence.

From the point of view of profes-sional negligence, the solicitor is atrisk if he has not ensured that he isin a position to rebut the presump-tion of undue influence. He isunlikely to be at risk in so far as thetransferor is concerned. If a trans-feror gets back a farm he had trans-ferred, he is not at a loss. However,the same cannot be said in relationto the transferee. If a transfereeloses because the solicitor has nottaken the necessary steps to rebutthe presumption of undue influ-ence, then the transferee will havehis remedy against the solicitor.

Setting up the independent adviceWhen organising the independentadvice, it is good practice to do aletter to the person giving theindependent advice setting out allthe facts relative to the transfer.In particular, the letter should setout details of the property beingtransferred (market value, whichshould be based on a profession-al valuation and so on), details ofthe transferor’s other assets andfull details of the family situation,identifying the educational andfinancial circumstances of eachfamily member. When giving inde-pendent advice, a full attendanceshould be done and this atten-dance should be returned to thesolicitor doing the transfer so thatit can be stored on the maintransfer file. (By doing this, thetransferor’s solicitor is setting outthat he has knowledge of all the

facts and it also shows that theperson giving the independentadvice has been made aware ofthese facts.)

WillsThis presumption does not apply towills. Where a will is challenged onthe basis of undue influence, then,in every case, that undue influencemust be proved.

Actual undue influenceActual undue influence is outsidethe scope of this practice note.However, in doing a voluntarytransaction, a solicitor should takeall steps necessary to minimisethe risk of actual undue influence.For example, the transferee shouldnot be present when the transferoris instructing the solicitor in rela-tion to the proposed transaction.


THE PRESUMPTION OF UNDUE INFLUENCE

LEGISLATION UPDATE: 18 SEPTEMBER – 20 OCTOBER 2003SELECTED STATUTORYINSTRUMENTSEuropean Communities(Cableway InstallationsDesigned to Carry Persons)Regulations 2003Number: SI 470/2003Contents note: Give effect todirective 2000/9/EC relating tocableway installations designedto carry personsCommencement date: 3/10/2003

European Communities (Licensing and Inspection ofZoos) Regulations 2003Number: SI 440/2003Contents note: Give effect todirective 1999/22/EC relating tothe keeping of wild animals in zoosCommencement date: 19/9/2003

European Communities (Manu-facture, Presentation and Saleof Tobacco Products)Regulations 2003Number: SI 425/2003Contents note: Implementdirective 2001/37/EC on themanufacture, presentation andsale of tobacco products. Dealwith health-warning labeling, new maximum yields of tar,nicotine and carbon monoxide in cigarettes, product des-cription and fur ther productinformationCommencement date: Various –see SI

Finance Act, 2003 (Section146) (Commencement) Order2003Number: SI 466/2003Contents note: Appoints 1/10/

2003 as the commencementdate for section 146 of theFinance Act, 2003 (amendmentsto the Capital Acquisitions TaxConsolidation Act, 2003, inrelation to CAT returns)

Immigration Act, 2003(Approved Ports) Regulations2003Number: SI 445/2003Contents note: Specify the portsapproved for entry into the statefor the purposes of the Aliens Act,1946Commencement date: 19/9/2003

Immigration Act, 2003 (CarrierLiability) Regulations 2003Number: SI 447/2003Contents note: Set out the formsof notice to be given to carriers

alleged to be in breach of section2 of the Immigration Act, 2003Commencement date: 19/9/2003

Immigration Act, 2003(Removal Direction) Regulations2003Number: SI 446/2003Contents note: Prescribe theform to be used by animmigration officer or a memberof An Garda Síochána to give adirection in writing to a carrier toremove a person from the stateCommencement date: 19/9/2003

Immigration Act, 2003(Removal Places of Detention)Regulations 2003Number: SI 444/2003Contents note: Specify the

places where a non-national beingremoved from the state followingrefusal of, or failure to obtain,leave to land may be detainedCommencement date: 19/9/2003

Intoxicating Liquor Act, 1962(Section 9) Order 2003Number: SI 442/2003Contents note: Provides that, forthe purposes of the LicensingActs and the Registration of ClubsActs, the minimum guideline pricefor a substantial meal will be �9in substitution for the £2 providedin the Intoxicating Liquor Act,1962 (Section 9) Order 1979 (SI

211/1979), which order is nowrevoked Commencement date: 29/9/2003

Occupational Pension Schemesand Personal RetirementSavings Accounts (Transfer)Regulations 2003Number: SI 429/2003Contents note: Provide for transferpayments from an occupationalpension scheme to a personalretirement savings account (PRSA)and from a PRSA to anoccupational pension schemeCommencement date: 16/9/2003

Planning and Development Act,2000 (Certification ofFairground Equipment)Regulations 2003Number: SI 449/2003Contents note: Deal withmatters of procedure,administration and control inrelation to applications for, andgrant of, certificates of safety forfunfair equipmentCommencement date: 1/10/2003

Planning and Development Act,2000 (Commencement) Order2003Number: SI 450/2003

Contents note: Appoints 24/9/2003 as the commencementdate for section 239 of thePlanning and Development Act,2000 (control of funfairs)

Solicitors Act, 1954 (Section44) Order 2003Number: SI 459/2003Contents note: Brings section 44of the Solicitors Act, 1954(inserted by section 52 of theSolicitors (Amendment) Act,1994) into operation on1/10/2003 in relation to theprofession of attorney andcounselor at law in the State ofCalifornia of the United States ofAmerica. The effect of the order isthat an attorney or counselor atlaw qualified in California may beadmitted as a solicitor in Irelandsubject to the correspondingconditions under which solicitorswhose names are on the roll inthis state may be admitted topractice in the State of California

Taxes (Electronic Transmissionof Capital Acquisitions TaxReturns) (Specified Provisionsand Appointed Day) Order 2003Number: SI 443/2003Contents note: Applies thelegislation governing theelectronic filing of tax informationto the principal capitalacquisitions tax returns (that is,section 46 of the CapitalAcquisitions Tax ConsolidationAct, 2003, apar t from sub-sections 3, 7, 13 and 15).Appoints 28/9/2003 as theappointed date in relation tothese returns.

Prepared by the Law Society Library

G

Briefing


44

Social Welfare (ConsolidatedPayments Provisions) (Amend-ment) (No 5) (CompensationPayments) Regulations 2003Number: SI 427/2003Contents note: Provide that anymonies received by way ofcompensation, awarded by theResidential Institutions RedressBoard, will be regarded in theassessment of means for socialassistance purposes (in thesame way as regulationscurrently apply in relation tocompensation awarded topeople who have contractedhepatitis C or HIV and topersons who have disabilitiescaused by Thalidomide)Commencement date: 16/9/2003

Social Welfare (ConsolidatedSupplementary WelfareAllowance) (Amendment) (No 1) Regulations 2003Number: SI 426/2003Contents note: Provide that any

monies received by way ofcompensation, awarded by the Residential InstitutionsRedress Board, will be regardedin the assessment of means for supplementary welfareallowance purposes (in thesame way as regulationscurrently apply in relation tocompensation awarded topeople who have contractedhepatitis C or HIV and to peoplewho have disabilities caused byThalidomide)Commencement date: 16/9/2003

Social Welfare (Employers’ Pay-Related Social InsuranceExemption Scheme)Regulations 2003Number: SI 452/2003Contents note: Provide foramendments to the employers’PRSI exemption scheme inrelation to employers who, on orafter 16/9/2003, take on anemployee who on the date of

commencement of employmentwas in receipt of a paymentunder the back-to-work allow-ance scheme. Revoke SI 145/1996Commencement date: 16/9/2003

Social Welfare (MiscellaneousProvisions) Act, 2002(Section 16 (No 3))(Commencement) Order 2003Number: SI 455/2003Contents note: Appoints 25/9/2003 as the commencementdate for section 16 of the actinsofar as it relates to specifieditems in the schedule to the actrelating to amendments to theRegistration of Births andDeaths (Ireland) Acts and theMarriages (Ireland) Acts and theelectronic registration of birthsand deaths in the civilregistration office in Skibbereen.Appoints 29/9/2002 for thesame purposes in relation to thecivil registration office in Mallow

Booking forms should be returned to Colette Carey, Solicitor, Criminal Law Committee,Law Society, Blackhall Place, Dublin 7, to be received no later than 3 December 2003.

BOOKING FORMName:

Practice name and address:

Please reserve place(s) for me

CRIMINAL LAW COMMITTEESEMINAR AND RECEPTION FOR JUDGES OF THE DISTRICT COURT

Friday 5 December 2003, the Education Centre, Law Society, Blackhall Place, Dublin 7.

SPEAKERS: European Convention on Human Rights Act, 2003• Judge William GJ Hamill, judge of the District Court

European arrest warrant and mutual legal assistance • Niall Dolan, solicitor

Registration: 6pm Reception: 7.30pm Seminar: 6.30pm Admission: Free

MEMBERS ARE INVITED TO ATTEND BOTH THE SEMINAR AND RECEPTION. MATERIALS WILL BE CIRCULATED ON THE NIGHT.

Briefing


45

In the matter of BrendanMcManus, solicitor, who car-ried on practice under thestyle and title of BrendanMcManus & Company,Solicitors, of 35 BeaufieldManor, Stillorgan, CountyDublin and in the matter ofthe Solicitors Acts, 1954 to2002 [4089/DT360]Law Society of Ireland(applicant)Brendan McManus(respondent solicitor)

On 3 July 2003, the SolicitorsDisciplinary Tribunal foundthat the respondent solicitorwas guilty of misconduct in hispractice as a solicitor in that hehad:a) Delayed in the administra-

tion of an estate and failed toadminister same in a timelymanner or at all

b) Failed to correspond with(named complainant) whowas beneficiary to the estate

c) Failed to respond to letterssent to him by the LawSociety of Ireland

d) Failed to attend at theRegistrar’s Committee meet-ings on a number of occa-sions despite being requestedto do so

e) Failed to furnish progressreports to the societyalthough directed to do so bythe Registrar’s Committee.

The tribunal ordered that therespondent solicitor:a) Do stand censuredb) Pay the total sum of �3,000

to the Compensation Fundc) Pay the whole of the costs of

the Law Society of Ireland,including witnesses’s expens-es, as taxed by the taxingmaster of the High Court indefault of agreement.

In the matter of BrendanMcManus, solicitor, who car-ried on practice under thestyle and title of BrendanMcManus & Company,

SOLICITORS DISCIPLINARY TRIBUNALSolicitors, of 35 BeaufieldManor, Stillorgan, CountyDublin and in the matter ofthe Solicitors Acts, 1954 to2002 [4089/DT324]Law Society of Ireland (applicant)Brendan McManus (respondent solicitor)

On 3 July 2003, the SolicitorsDisciplinary Tribunal found thatthe respondent solicitor wasguilty of misconduct in his prac-tice as a solicitor in that he had:a) Failed to file an accountant’s

report in respect of his finan-cial year ended 15 September2000 in accordance with theprovisions of regulation 20(1)of the Solicitors’ accounts regu-lations no 2 of 1994 with thesociety in a timely manner orat all

b) Failed to hold professionalindemnity insurance coverfrom the commencement ofthe practice year on 1 January2001 up to 20 June 2001 inbreach of the Professionalindemnity insurance regulations(SI no 312 of 1995, as amend-ed).

The tribunal ordered that therespondent solicitor:a) Do stand censuredb) Pay the sum of �3,000 to the

Compensation Fundc) Pay the whole of the costs of

the Law Society of Ireland,including witnesses’s expensesas taxed by the taxing masterof the High Court in defaultof agreement.

In the matter of ThomasFlood, solicitor, carrying onpractice under the style andtitle of Esmond ReillySolicitors, Dargan House,Fenian Street, Dublin 2 and inthe matter of the SolicitorsActs, 1954 to 1994 [4412/DT306]Law Society of Ireland(applicant)Thomas Flood(respondent solicitor)

On 23 January 2003, theSolicitors Disciplinary Tribunalfound that the respondent solici-tor was guilty of misconduct inhis practice as a solicitor in thathe had:a) Up to the date of the second

referral by the Registrar’sCommittee to the Disciplin-ary Tribunal failed to complywith an undertaking given to(named complainants) inMarch 1996 in a timely man-ner or at all

b) Failed repeatedly to respondto the society’s correspon-dence

c) Failed to attend at theRegistrar’s Committee meet-ings on various dates despitebeing requested to do so.

The tribunal ordered that therespondent solicitor:a) Do stand censuredb) Pay the sum of �2,500 to the

Compensation Fundc) Pay the whole of the costs of

the Law Society to be taxed bya taxing master of the HighCourt in default of agreement.

In the matter of James MSweeney, solicitor, carrying onpractice under the style andtitle of James M Sweeney at 14 New Cabra Road,Phibsborough, Dublin 7 andin the matter of the SolicitorsActs, 1954 to 2002 [3572/DT381]Law Society of Ireland (applicant)James M Sweeney(respondent solicitor)

On 4 September 2003, theSolicitors Disciplinary Tribunalfound that the respondent solic-itor was guilty of misconduct in his practice as a solicitor inthat he:• Breached regulation 21 (1) of

the Solicitors’ accounts regula-tions no 2 of 1984 in failing todeliver to the society anaccountant’s report coveringhis financial year ended 30September 2001 within six

months thereafter, that is, by31 March 2002.

The tribunal ordered that therespondent solicitor:a) Do stand censuredb) Pay the sum of �15,000 to

the society’s CompensationFund

c) Pay the costs of the society.

The tribunal took into accountthat there appeared to be a per-sistent disregard by the respon-dent solicitor of his obligationsunder the regulations. Therespondent solicitor hadbreached precisely the sameregulation in failing to deliverto the society an accountant’sreport covering his financialyear ended 30 September 2000.

In the matter of David Fagan,solicitor, carrying on practiceunder the style and title ofMurphy Fagan Solicitors at 4Talbot Street, Dublin 1 andin the matter of the SolicitorsActs, 1954 to 2002 [7850/DT339]Law Society of Ireland (applicant)David Fagan(respondent solicitor)

On 4 September 2003, theSolicitors Disciplinary Tribunalfound that the respondentsolicitor was guilty of miscon-duct in his practice as a solicitorin that he:• Breached regulation 21(1) of

the Solicitors’ accounts regula-tions no 2 of 1984 in failing todeliver to the society anaccountant’s report coveringhis financial year ended 30April 2001 within six monthsthereafter, that is, by 31October 2001.

The tribunal ordered that therespondent solicitor:a) Do stand admonishedb) Pay the sum of �500 to

the society’s CompensationFund

c) Pay the costs of the society. G

Briefing


46

Personal injury judgment

Alison Gough v Michael Neary and Basil Cronin, Supreme Court (Hardiman, Geoghegan and McCracken JJ), with separate judgments delivered by Hardiman J (dissenting) and Geoghegan and McCracken JJ, delivered on 3 July 2003.

Negligence – issue of whether hysterectomy was necessary – Statute of Limitations – whether a claim was statute-barred – issue of when certain knowledge was ascertained – whether damages awarded were excessive

THE FACTS

CASE

Mrs Alison Gough was a 27-year-old woman in

October 1992 and was awaitingthe birth of her first child. Thechild was expected on 25 October1992 and she was admitted to OurLady of Lourdes Hospital inDrogheda, Co Louth. Varioussteps were taken to induce thebirth. When these were unsuc-cessful, it was decided in the earlyhours of the morning of Monday27 October 1992 that she shouldhave a caesarean section. Her sonwas born by this procedure.

Dr Michael Neary had beenthe consultant obstretician andgynaecologist. Mrs Gough was insome pain and discomfort afterthe birth. While in hospital, MrsGough remarked to the nursesthat if she were to have anotherchild she would like to have aplanned caesarean section. Anurse advised her to discuss thiswith the doctor who would bearound to see her. When hecame, she expressed her prefer-ence for a caesarean section tohim and asked if it would be pos-sible. He said ‘no’. She askedwhat he meant, and he said: ‘Ihad to remove your womb; youhad a hysterectomy’. She wasvery disturbed and could notbelieve what Dr Neary had toldher. Dr Neary said to her that hehad saved her life. He said hecould have sent her son out to herhusband without a mammy, buthe had saved her life. He said thatshe had lost so much blood thathe had never witnessed anythinglike it. He said that he had usedall the top drugs. He said he hadleft the ovaries and that she

would come to terms with hersituation.

She had no further significantconversation with Dr Nearywhile in hospital. On 23December 1992, she attendedhim for her check up. He exam-ined her. A nurse asked MrsGough to wait until the doctorwas free so that she could ask himquestions. Mrs Gough told himshe was very upset over what hadhappened and asked: ‘What did Ido wrong?’ She asked if he couldexplain. She added that, due toher distress, she could not sleep atnight. She said that she could notcome to terms with what had hap-pened to her.

Dr Neary said that if he wereto tell her what had happened onthe night of the operation, shewould never sleep again. He saidshe was better off not knowingand advised her to just go homeand get on with her life.

Mrs Gough was subsequentlyattended to by her general practi-tioner who referred her for coun-selling, which she did not findhelpful. She continued to be pre-occupied with the fact of her hys-terectomy. In 1996, she was in hersolicitor’s office in connectionwith a mortgage transaction andshe said something to the solicitoralong the lines of whether she(the solicitor) could explain whathad happened, which, of course,she could not. Mrs Gough said:‘All I wanted was an explanation.That’s all I wanted’.

Mrs Gough was employed inthe kitchen of another hospital. Inthe course of 1998, she heardrumours in that hospital that

there was a local medical consult-ant in trouble of some unspecifiedsort. Later that year, she sawmedia reports dealing with otherpatients of Our Lady of LourdesHospital in precisely her situa-tion. She reacted very emotional-ly to these reports.

She heard a radio programmein 1998 which gave the phonenumber for the ‘Lourdes HospitalHelpline’. This was a service pro-vided by the hospital for anyonewho had been affected by themedia items which they had seenor read. She said that she contact-ed them because ‘I wanted themto tell me that it wasn’t true, itwasn’t true … that Dr Neary was-n’t the doctor being investigated’in relation to unnecessary hys-terectomies. The helpline, how-ever, told her that Dr Neary wasthe doctor being investigated forperforming unnecessary hysterec-tomies.

Mrs Gough contacted hersolicitor on the morning of herconversation with the helpline.The solicitor requisitioned thehospital notes, instructed anexpert and generally took the nec-essary steps to investigatewhether she had a statable action.

On 21 December 1998, pro-ceedings were issued in the HighCourt by Mrs Gough for dam-ages for personal injuries againstDr Michael Neary and Mr BasilCronin, who was sued in hiscapacity as trustee of Our Lady ofLourdes Hospital in Drogheda,where the delivery took place.Mrs Gough alleged that the hys-terectomy performed on her wasunnecessary and that alternative

treatments were not attempted oradequately attempted. It wasclaimed she did not know the rel-evant facts until 1998.

Dr Neary and Mr Croninpleaded the Statute of Limitationsamong other defences. TheStatute of Limitations provides fora three-year limitation period butimportant amendments made in1991 related, among other things,to the limitation period com-mencing from the date of knowl-edge of the person injured.

Section 3 of the Statute ofLimitations (Amendment) Act,1991 provides that ‘an action …claiming damages in respect ofpersonal injuries to a personcaused by negligence, nuisance orbreach of duty … shall not bebrought after the expiration ofthree years from the date onwhich the cause of action accruedor the date of knowledge of theperson injured’.

The meaning of the expression‘date of knowledge’ is set out insection 2 of the act. That sectionreads as follows:‘2(1) For the purposes of any provi-sion of this act whereby the timewithin which an action in respect ofan injury may be brought depends ona person’s date of knowledge, refer-ences to that person’s date of knowl-edge are references to the date onwhich he first had knowledge of thefollowing facts:a) That the person alleged to have

been injured had been injuredb) That the injury in question was

significantc) That the injury was attributable

in whole or in part to the act oromission which is alleged to con-

Briefing


47

stitute negligence, nuisance orbreach of duty

d) The identity of the defendant,and

e) If it is alleged that the act oromission was that of a personother than the defendant, theidentity of that person and theadditional facts supporting thebringing of an action against

the defendant and knowledgethat any acts or omissions did ordid not, as a matter of law,involve negligence, nuisance orbreach of duty is irrelevant.

(2) For the purposes of this section, aperson’s knowledge includes knowl-edge which he might reasonablyhave been expected to acquire:a) From facts observable or ascer-

tainable by him, orb) From facts ascertainable by him

with the help of medical or otherappropriate expert advice whichit is reasonable for him to seek.

(3) Notwithstanding sub-section (2)of this section:a) A person shall not be fixed under

this section with knowledge of afact ascertainable only with the

help of expert advice so long as hehas taken all reasonable steps toobtain (and, where appropriate,to act on) that advice, and

b) A person injured shall not befixed under this section withknowledge of a fact relevant tothe injury which he has failed toacquire as a result of thatinjury’.

Mrs Gough’s action washeard in the High Court

before Johnson J on 17, 18, 19and 23 April 2002 and on 14May 2002. Judgment was givenon 15 November 2002.

Johnson J held that, in MrsGough’s circumstances, a cae-

sarean hysterectomy was anenormously rare event.Finding against both Dr Nearyand Mr Cronin (as trustee ofthe hospital), Johnson J heldthe action was not statute-barred and the defendants hadbeen negligent.

THE HIGH COURT AWARDJohnson J awarded damages as follows:1) General damage for loss and suffering to date of the trial – �150,0002) Damage for loss and suffering in the future – �100,0003) Special damages – �23,223.27.

Total: �273,223.27

JUDGMENT OF THE HIGH COURT

JUDGMENT OF THE SUPREME COURTDr Neary and Mr Cronin (as

trustee of Our Lady ofLourdes Hospital, Drogheda)appealed to the Supreme Court,claiming that the High Courthad erred, that Mrs Gough’sclaim was statute-barred andthat the damages awarded by theHigh Court were too high.

The case came beforeHardiman, Geoghegan andMcCracken JJ, who deliveredjudgment on 3 July 2003.

Was the claim statute-barred?The Supreme Court examinedconsiderable case law relating tothe issue of ‘knowledge of theperson injured’ and related mat-ters in the context of the timewithin which proceedings mustbe instituted.

Geoghegan J, referring to sec-tions 2 and 3 of the Statute ofLimitations (Amendment) Act,1991 (set out above), stated thathe was firmly of the view that therelevant knowledge of MrsGough included knowledge thatthe operation was unnecessaryand that the knowledge did notexist more than three years beforethe commencement of the action.

McCracken J considered thatMrs Gough undoubtedly knewthat a hysterectomy had beenperformed. The act of perform-ing the hysterectomy inflicted an

injury on her within the meaningof the Statute of Limitations andshe undoubtedly knew that thisinjury had been inflicted as earlyas a few days after the operation.

The other aspect of the casewas when Mrs Gough first hadknowledge ‘that the injury wasattributable in whole or in partto the act or omission which isalleged to constitute negligence,nuisance or breach of duty’.McCracken J posed the ques-tion: ‘what is the act or omissionwhich is alleged to constitutenegligence, nuisance or breachof duty?’ He did not consider itcould be the act of performing a hysterectomy simpliciter.Performing a hysterectomywhere it is necessary could notbe said to constitute an act ofnegligence, nuisance or breachof duty. The ‘knowledge’ whichMrs Gough had in the presentcase was that a hysterectomy hadbeen necessarily performed. Shewas told that by her surgeon ingraphic terms and had no reasonwhatever to disbelieve it.Therefore, the knowledge thatshe had was false knowledge. Itwas also knowledge of some-thing, if it had been true, whichwould not have constituted negli-gence, nuisance or breach of duty.

McCracken J stated that whatwas in this action alleged to con-

stitute negligence, nuisance orbreach of duty was the unneces-sary hysterectomy; there could beno allegation against Dr Nearyhad the operation been necessary.Therefore, McCracken J consid-ered that the only normal andsensible meaning of the statutoryprovision as applied to the facts ofthe present case was that the req-uisite knowledge related to thefact that the operation had beenunnecessarily performed. MrsGough had issued these proceed-ings within the statutory timelimit dating from the time shehad this knowledge.

Hardiman J (dissenting fromGeoghegan and McCracken J)stated that Mrs Gough knewfrom late 1992 that she had had ahysterectomy. This represented,of course, a very significantimpairment and she was deeplydistressed about it. She did notknow that it was unnecessarybecause she accepted the falseinformation to the contrary givento her by the doctor.

That the most obvious way toset up an action on those facts,according to Hardiman J, wouldbe to explore the possibility thatMrs Gough’s cause of action wasconcealed by fraud within themeaning of section 71 of theStatute of Limitations, 1957, whichwould have prevented the period

of limitation from expiring untilshe had discovered the fraud orcould with reasonable diligencehave discovered it. Since this con-tention had not been pleaded orargued, he would make no find-ing on it, but having regard to hisfindings about what the doctorsaid and the interpretation of it inlight of the now-established facts,there was plainly a strong case forthis view.

The kernel of the present case,according to Hardiman J, wasthat Dr Neary performed anunnecessary hysterectomy onMrs Gough, made false represen-tations to the effect that the oper-ation had been necessary, andused his professional position inan overbearing and melodramaticmanner to prevent her, until thelimitation period had run out,from making further enquiries.Hardiman J stated that thisamounted to concealing hercause of action from her, a state ofaffairs for which the law providesa remedy in the form of section71 of the 1957 act.

Mrs Gough, however, pursuedher remedy along other lines. Itwas not, in Hardiman J’s view, amatter of merely technical signif-icance whether she achieved herremedy by reason of section 71 oron the basis of what he regardedas a novel interpretation of sec-

Briefing


48

tion 2(1) of the Statute ofLimitations (Amendment) Act,1991. The 1991 act resulted inconsiderable easing in the posi-tion of plaintiffs suing in respectof diseases or impairments whichwere latent in their nature or theirtrue significance. Its wording wasapt to meet the difficulties of suchpersons. It did not, according toHardiman J, extend to circum-stances where the disease orimpairment was all-too-painfullypatent but some qualitative aspectof it had been concealed. In suchcircumstances, the law provided aremedy in respect of equitablefraud, but not otherwise.

Hardiman J (dissenting) statedthat he would allow the appeal byDr Neary and Mr Cronin, as heconsidered Mrs Gough’s claim tobe statute-barred.

The issue of damagesAs Geoghegan J and McCrackenJJ held that Mrs Gough’s claimwas within the time period per-mitted by the Statute ofLimitations, the issue of the dam-ages awarded to Mrs Gough inthe High Court arose for consid-eration.

Geoghegan J stated that thepoints on which Dr Neary andMr Cronin primarily relied werethat while Mrs Gough wasundoubtedly upset by her loss ofcapacity to reproduce, coupledwith a sense of guilt, she was nev-ertheless able to continue withher normal activities looking afterher husband and her child andkeeping down a responsible job.Although she had her operationas far back as October 1992, shenever came under the care of apsychiatrist until October 1999.By that stage, she had issuedHigh Court proceedings by a ple-nary summons dated 21 Dec-ember 1998. She had undoubted-ly been under the care of differentgeneral practitioners and hadsome counselling from a psychol-ogist. In the written submissionsto the court, it was pointed outthat the evidence of DrMcCarthy, a competent psychia-trist, was to the effect that MrsGough was likely to make a fullrecovery when she perceived that

‘justice had been done’. Thisseemed clear from Dr McCarthy’sanswers under cross-examination.

Mrs Gough, on the otherhand, strongly challenged whatshe perceived as an underplayingof her injury. Geoghegan J repro-duced a list of ill effects relied onby Mrs Gough and in respect ofwhich transcript references weregiven in the written submissions.As listed in the written submis-sions, they are as follows:a) She had major surgery unnec-

essarilyb) She thereby lost her ability to

have childrenc) She was devastated by thisd) She had a sense that this was

caused by something she haddone wrong

e) She was unable to sleepf) She felt like crawling into a

holeg) She had irrational feelings that

if she lost her womb she couldlose her son

h) She could not thinki) She did not feel like a womanj) She had a sense of guilt about

the way she was feelingk) The counselling she received

was of no help to herl) Her external appearance of

getting on with her life maskedan internal turmoil

m)She assumed a guilt about thepatients of the defendant whohad hysterectomies after hers

n) In 1998, when she heard thatthe defendant was being inves-tigated for carrying out unnec-essary hysterectomies, she justcried and cried

o) She had been on medicationsince 1998

p) She required psychiatric helpq) She was ashamed to admit

depression in case she would bedeemed unfit to mind her son.

Even if one were to view MrsGough’s injuries and ill effectsexclusively in the way she and herlawyers saw them, Geoghegan Jdid not consider it possible tojustify an award of �250,000,having regard to the levels ofawards in relation to differenttypes of physical injuries. TheHigh Court arrived at that figureby awarding �150,000 for gener-al damages to date, together withanother �100,000 for pain andsuffering into the future.

Without in any way minimis-ing Mrs Gough’s injuries and illeffects, they did not, according toGeoghegan J, compare withphysical injuries of a kind thatwould attract that kind of dam-ages. Bearing in mind and payingrespect to the view that the HighCourt took after having had thebenefit of seeing Mrs Gough inthe witness box, Geoghegan Jwould not interfere with theamount of �150,000 damages forpain and suffering to the date ofthe trial, but he considered thathaving regard to Dr McCarthy’sevidence in particular, a figure of�50,000 was appropriate for painand suffering in the future.Geoghegan J mentioned that inthis case the special damageswere relatively low, being a sumof �23,223.27. He would therefore allow the appeal onquantum to the extent of reducing the award for generaldamages of �250,000 to anaward of �200,000. The totalaward would therefore be�223,223.27.

McCracken J stated there wasno doubt whatsoever that MrsGough suffered serious psycho-logical trauma from the time sherealised what had happened toher. She suffered feelings of guilt

that she should perhaps haverealised earlier what the true sit-uation was, and might have savedother women from that samefate. She suffered severe depres-sion, and while she was able tolook after her family and hold ajob, this must have been withgreat difficulty for her. He wasquite satisfied that the award of�150,000 for general damages tothe date of the trial was correct.

McCracken J considered thatthe situation was somewhat dif-ferent in relation to the future.Mrs Gough’s own psychiatristgave evidence, not just undercross-examination but also as anaddendum to his report, that ifMrs Gough continued her cur-rent rate of progress, he expectedher to make a full recovery fromher clinical depression, andindeed would be able to stop tak-ing anti-depressants a few weeksafter the final judgment, as shewould then perceive that justicehad been done. He consideredthat all courts now accepted thatthere were many cases, particu-larly of psychological injury,where the condition of a plaintiffimproved enormously after thefinal outcome of the case. Heimmediately stated that this wasnot to imply any form of malin-gering of the part of Mrs Goughin this case, as he was quite satis-fied that her complaints weretotally genuine. However, by thenature of psychological com-plaints, they can be, and fre-quently are, affected by the out-come of a case, and in the judge’sview an award of �100,000 forgeneral damages into the futurewas not sustainable in light of herown psychiatrist’s evidence. Shewould, of course, still have tobear the burden of having gonethrough an unnecessary hys-terectomy with all of its connota-tions, and this would last for therest of her life. However,McCracken J considered that theaward of �100,000 was not justi-fied in the circumstances andreduced the general damagesinto the future to �50,000.

This judgment was summarised bysolicitor Dr Eamonn Hall.

G

THE SUPREME COURT AWARDGeoghegan and McCracken JJ (Hardiman J dissenting on the basis thatthe claim was statute-barred) found that:1) The award by the High Court of �150,000 for general damages to the

date of the trial was correct2) The award of �100,000 for general damages into the future was not

sustainable; the award for damages into the future should be reducedto �50,000

3) Special damages – �23,223.27.

Total: �223,223.27

Briefing


49

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

COMPANY

Award, bias Application to set aside award –grounds – misconduct – whetherarbitrator misconducted himself –bias – whether plaintiff allowed toallege bias after award given –whether plaintiff acquiesced inprocedure adopted by arbitrator –whether court should interfere withaward – Arbitration Act, 1954It was agreed that the fourthdefendant be appointedarbitrator for the purposes ofvaluing shares which were to bebought by the third defendantfrom the plaintiff. This followedan application under section 205of the Companies Act, 1965 by theplaintiff, alleging that the affairsof the second defendant, ofwhich he had been a member,had been conducted by the firstdefendant in an oppressivemanner and in disregard of hisinterests. The plaintiff sought anorder setting aside the fourthdefendant’s award on thegrounds that he hadmisconducted himself and theproceedings in the manner inwhich he had decided thevaluation of the plaintiff’sshareholding by applying aminority discount thereto.

Lavan J dismissed theplaintiffs’ claim and upheld theaward of the arbitrator, holdingthat the arbitrator had notmisconducted himself and thatno mistake of law appeared onthe face of the award. Any biasperceived by the plaintiff shouldhave been asserted during thecourse of the arbitration and notsubsequent to the making of theaward. All questions of fact arewithin the sole domain of thearbitrator and only a limitedcontrol will be exercised overhim in relation to questions oflaw.

McCarthy v Keane, ÉireannInternational Finance BrokersLtd, High Court, Mr JusticeLavan, 24/7/2003 [FL7891]

Case stated, planning anddevelopment law Case stated – arbitration – planningand development – development plan– statutory interpretation – plainand ordinary meaning of words used– whether objective in developmentplan is land use objective – status ofdraft development plan – whetherplanning authority can refusepermission on grounds that proposeddevelopment would contravene landuse objective in draft developmentplan – Local Government(Planning and Development)Act, 1963, sections 2, 19 – LocalGovernment (Planning andDevelopment) Act, 1990, section12(1)

Section 12(1)(b) of the LocalGovernment (Planning andDevelopment) Act, 1990, whenread in conjunction with reason11 of the third schedule thereto,precludes a property owner fromclaiming compensation in respectof refusal of permission for anydevelopment ‘if the developmentwould contravene materially adevelopment objective indicatedin the development plan’. Section19(3) of the Planning andDevelopment Act, 1963 providesthat ‘a development plan mayindicate objectives … for the usesolely or primarily … ofparticular areas for particularpurposes (whether residential,commercial, industrial, agri-cultural or otherwise)’. Theclaimant applied for planningpermission to develop itsproperty, which application wasrefused by the respondent on thegrounds that the property inquestion was within an area ofinvestigation in relation to there-opening of a rail link set out in

the respondent’s draftdevelopment plan. The claimantthen applied for compensationfor the alleged reduction in valueof the property, which claim wasreferred to an arbitrator fordetermination. In the course ofthe arbitration, the arbitratorreferred the question as towhether, as a result of thedecision of the planningauthority to refuse permission,the claimant was precluded fromclaiming compensation by virtueof the reason for refusal fallingwithin section 12(1)(b) andparagraph 11 of the thirdschedule to the 1990 act, as a casestated to the High Court fordetermination. The respondentsubmitted that the claimant wasnot entitled to compensation asthe proposed development wouldcontravene a land use objective inthe draft development plan andaccordingly fell within the ambitof section 12(1) of the 1990 act.The claimant submitted thatreason 11 in the 1990 act referredto ‘the development plan’ andnot to the draft developmentplan. The claimant furthersubmitted that even if the words‘development plan’ were to beconstrued as including a ‘draftdevelopment plan’ as contendedby the respondent, the reason forthe refusal relied on by therespondent was not a land useobjective permitted by section19(3) of the 1963 act but was a‘route selection corridor’ similarto a road reservation.

In answering the questionposed in the negative, Peart Jheld that use of the words ‘orotherwise’ in section 19(3) of the1963 act meant that a broadinterpretation was to be given tothe words used in that section,and the retaining of a routeselection corridor for a rail linkmust come with that broad

interpretation as being anobjective for the use of aparticular area for a particularpurpose – in other words, a ‘landuse’ objective. However, it wasimportant that the public and, inparticular, people seeking todevelop their property shouldhave certainty and precision as tothe relevant criteria by whichany application for permissionwould be judged and thecircumstances in whichcompensation may or may not bepayable by the planningauthority. Accordingly, aplanning authority can haveregard only to the developmentplan currently in force and not adraft development plan whenconsidering whether a proposeddevelopment would contravene aland use objective set out in anysuch plan.Ebonwood Ltd v Meath CountyCouncil, High Court, MrJustice Peart, 30/4/2003[FL7911]

CONSTITUTIONAL

Case stated, practice andprocedure Constitution – power to refuse tostate case – limitations on power –whether proviso to section 4 of 1857act inconsistent with constitution –Summary Jurisdiction Act 1857,section 4 – Bunreacht nahÉireann, article 50This was an appeal from ajudgment and order of the HighCourt (Kearns J), whichdetermined that the proviso tosection 4 of the SummaryJurisdiction Act 1857 wasinconsistent with the con-stitution and had not remainedpart of the law by virtue of article50 of the constitution. Theproviso was to the effect thatwhile a district judge may refuse

Briefing


50

to state a case on the ground thatthe application was ‘merelyfrivolous’, he may not do sowhere the application was madeon behalf of the DPP.

The Supreme Court (KeaneCJ, Denham, Murray,McGuinness and Hardiman JJ)allowed the appeal andsubstituted for the order of theHigh Court an order dismissingthe applicant’s claim, holdingthat it was perfectly legitimatefor the legislature to proceed onthe basis that the law officerswould not have the same motivesfor prosecuting specious andtime-wasting appeals as others. Fitzgerald v DPP, SupremeCourt, 25/7/2003 [FL7966]

COSTS

Solicitors, taxation Practice and procedure – taxation ofcosts – solicitors – litigation –principles of taxation – whetherallowances made by taxing masterunjust – Rules of the SuperiorCourts 1986 – Courts Act, 1981– Courts and Court Officers Act,1995The plaintiff had initiatedproceedings in the High Courtfor damages for personal injury.The claim also included allegedbreaches of competition law.The proceedings were settledand the defendants undertook topay the plaintiff’s costs. Theplaintiff’s costs were assessed bythe taxing master and thedefendants issued proceedingscontending that the taxingmaster had erred in his taxationof costs. A sum of £145,000 wasallowed for the plaintiff’ssolicitor’s instruction fee and£22,000 was allowed as the brieffee for senior counsel. It wassubmitted that the plaintiff’scase was not one of greatcomplexity and was essentiallyone that the plaintiff was subjectto unreasonable pressure atwork. In addition, it wascontended that the taxingmaster had erred in principle inholding that there were nocomparable cases and had failedto apply the applicable law in

relation to comparator cases.Ó Caoimh J reduced the

amount of costs. The taxingmaster had erred in rejectingcomparative evidence and erredin estimating the complexity ofthe plaintiff’s case. Theallegations raised in the caseregarding anti-competitivepractices did not raise issues ofgreat complexity. Comparatorcases were a valuable guide to theassessment of costs and thetaxing master was in error inrejecting comparisons. Thesolicitor’s instruction fee wouldbe remitted to another taxingmaster for assessment. The brieffee would be reduced to £15,750.Doyle v Deasy and CompanyLimited and Guinness IrelandGroup Limited, High Court,Mr Justice Ó Caoimh,21/3/2003 [FL7909]

CRIMINAL

Drug offences, sentencing Sentence – appeal – drugs offences –exceptional and specificcircumstances justifying departurefrom mandatory maximumsentence – whether trial judge erred– Misuse of Drugs Act, 1977 –Criminal Justice Act, 1999This was an application for leaveto appeal against sentence only.The applicant pleaded guilty todrugs offences involvingcannabis worth £22,170 andecstasy worth £10,608 and wassentenced to seven years’imprisonment. The applicantargued that two mattersconstituted exceptional andspecific circumstancespermitting the judge to departfrom the mandatory maximumsentence of ten years’imprisonment, namely his pleaof guilty and his provision ofmaterial assistance in theinvestigation of the offence. Theapplicant also addressed thecourt more generally on theseverity of the sentence, havingregard to his personalcircumstances and his lack ofprevious convictions.

The Court of CriminalAppeal treated the applicationfor leave as the hearing of theappeal and held that the trial

judge had erred. The trial judgeattached insufficient weight tothe fact that the applicant shouldbe treated as a first offender. Thecourt imposed a sentence ofseven years, with the last twoyears suspended on terms.DPP v Galligan, Court ofCriminal Appeal, Mr JusticePeart, 23/7/2003 [FL8022]

Extradition, statutoryinterpretation Warrant – whether offences chargedthereon correspond to offencesknown to Irish law – statutoryinterpretation – respondent chargedwith making false instruments withan intention to deceive – definitionof ‘false’ – whether exhaustive –summary offences – whetherrespondent properly before court forextradition in respect of summaryoffences – Extradition Act, 1965,sections 47 and 51 – Non-FatalOffences Against the Person Act,1997, section 3 – Criminal Justice(Theft and Fraud Offences) Act,2001, section 30The applicant sought anextradition order for therendition of the respondent toNorthern Ireland to face trial oncharges set out in 15 warrants onfoot of which he had beenarrested in this jurisdiction. Therespondent submitted that hisrendition to Northern Irelandshould not be ordered in view ofthe fact that the offences withwhich he was charged did notcorrespond with offences in thisjurisdiction. Warrants one to tencharged the respondent withmaking and using instrumentswhich were false with theintention of using it to induceanother person to act to theirprejudice contrary to section 1 ofthe Forgery and CounterfeitingAct, 1981. The respondentsubmitted that the allegation offalsity contained in warrants oneto ten did not correspond to thedefinition of ‘false’ in section 30of the 2001 act, which definitionwas exhaustive, not beingqualified by the words ‘includes’or ‘without prejudice to thegenerality of the foregoing’ orsuch like. In respect of warrants11 to 14, the respondent

submitted that, being treated assummary offences, they ought tohave been endorsed forexecution in this jurisdictiononly in the event that he wasalready before the court inNorthern Ireland, or had failedto appear having been dulyserved with the summonses,pursuant to the provisions ofsection 51 of the 1965 act. It wassubmitted that there was noevidence of those matters beforethe court and therefore he wasnot lawfully before the court.The final warrant related to anoffence of assault occasioningactual bodily harm contrary tosection 47 of the Offences Againstthe Person Act 1861. Therespondent submitted that thatoffence corresponded with theoffence provided for in section 3of the Non-Fatal Offences Againstthe Person Act, 1997, whichrequired an element of mens rea,unlike the Northern Irelandprovision.

In granting an order for theextradition of the respondentunder section 47 of theExtradition Act, 1965, Peart Jheld that there could besituations where a legal entitycould be an unlimited companyor drop the word ‘limited’ fromits title and the court could notassume that a mistake had beenmade in making out the charge.It would be a matter for evidenceat any trial as to whether LisburnProteins was in fact the entitywhich suffered prejudice. Theword ‘false’ in section 30 of the2001 act had a specific meaningand the allegation contained inthe charges set out in warrantsone to ten did not come withinany of the paragraphs of section30 and the order sought inrespect of those warrants wouldbe, accordingly, refused. Giventhe provisions of section 31(1) ofthe 1997 act, the offencescharged were summary offences,the DPP for Northern Irelandhaving certified that they were tobe tried summarily, andaccordingly the provisions ofsection 51(1) of the 1965 actwere applicable. As the court hadnot been furnished with

Briefing


51

evidence that the summonseshad been served, or notice ofsuch summonses, on therespondent, he did not comewithin sub-paragraphs (a), (b)or (c) of that sub-section andthe court would thereforerefuse the order sought inrespect of those warrants. Forthe purposes of a trial of anoffence under section 3 of the1997 act, it was unnecessary tocharge the respondent withintent on the charge sheet and,accordingly, the offence ofassault under section 47 of the1861 act corresponded to theoffence in this jurisdictioncontrary to section 3 of the1997 act, and, accordingly, anorder would be made in respectof warrant 15. Attorney General v Fay, HighCourt, Mr Justice Peart,22/7/2003 [FL7988]

DAMAGES

Housing, landlord and tenant Judicial review – damages – landlaw – landlord and tenant – tort –negligent – state liability –controlled dwellings –determination of rent – whetherapplicants had right to recoverdamages – Housing (PrivateRented Dwellings (Amend-ment) Act, 1982The applicants had beengranted an order of certiorari injudicial review proceedings inrespect of the determination ofthe Rent Tribunal (therespondent) of the terms of atenancy with regard to aproperty that the applicantsowned. The rent had been set at£500 by the respondent and thisdetermination was quashed byorder of the High Court, owingto the procedures adopted bythe respondent which had beenfound to be in breach of naturaland constitutional justice. Some18 months later, the respondentmade its determination and thistime set the rent at �1,004 amonth. The applicants nowsought to recover damages,contending that they hadsuffered a quantifiable loss as a

result of the shortcomings in theprocedures adopted by therespondent. It was contendedthat the respondent hadfrustrated the legitimateexpectation of the applicants. Onbehalf of the respondent, it wascontended that liability fordamages in such circumstancesarose only when it wasestablished that a statutory bodyacted negligently or with malice,which had not been found in thiscase.

O’Donovan J awardeddamages. The applicants hadsuffered a quantifiable loss whichwas directly attributable to theshortcomings in the proceduresadopted by the respondent. Thisloss was readily foreseeable bythe respondent in the event thatthe determination was not valid.The respondent had a duty ofcare to the applicants whenmaking its determination, a dutythat it had breached.Accordingly, in the absence ofany compelling exemption basedon public policy, the respondentwas liable and a decree �5,817would issue in favour of theapplicants.Beatty and Beatty v RentTribunal, High Court, MrJustice O’Donovan, 16/5/2003 [FL7989]

FAMILY

Family homePartition – family home – sale inlieu of partition – court’s discretionto refuse order for sale if goodreason to contrary –– consent ofspouse to sale of family home notforthcoming – appeal from order ofCircuit Court – whether courtshould order sale of family homeand dispense with consent of non-agreeing spouse – Partition Act1868, sections 3 and 4 – FamilyHome Protection Act, 1976Section 4 of the Partition Act1868 provides that in ‘a suit forpartition, where, if this act hadnot been passed, a decree forpartition might have beenmade, then if the party orparties interested … to theextent of one moiety or upwards

in the property to which the suitrelates, request the court todirect a sale of the property anda distribution of the proceedsinstead of a division of theproperty between … the partiesinterested, the court shall,unless it sees good reason to thecontrary, direct a sale of theproperty accordingly’. Theplaintiff sought an order for saleof premises occupied by thedefendant, her former husband,pursuant to sections 3 and 4 ofthe Partition Act 1868. TheCircuit Court made an orderthat the premises be sold andthat the proceeds be divided asto 40% to the defendant and60% to the plaintiff. That orderwas appealed to the High Courtby way of re-hearing. Thepremises in question hadpreviously been occupied byboth parties since 1966, afterthey moved in with theplaintiff’s parents, until theplaintiff deserted the family in1989. The property had beenpurchased from DublinCorporation by the plaintiff’sparents, who up to then hadbeen its tenants, so as to obtaina 30% discount on the price,but the defendant thereafterdischarged the repaymentsunder the transfer order andunder subsequent loans for itsimprovement. The plaintiff’sfather subsequently left thepremises to the plaintiff anddefendant jointly in his will.The defendant sought adeclaration that he was entitledto the total beneficial interest inthe property on the basis thatthe plaintiff had provided noconsideration for it and on thefact of her desertion. He alsopleaded that the court shouldexercise its discretion inrefusing to order a sale on thegrounds of the respectiveeconomic circumstances of theparties.

Peart J set aside the order ofthe Circuit Court and declaredthat both parties were entitledto be registered as joint ownersof the premises on a 50-50 basis,holding that the plaintiff’sparents held the premises in

their name on a resulting trustfor both parties and desertioncould not disentitle a spouse toany pre-existing property rights.Section 4 of the 1868 act wasthe most appropriate provisionto be applied to thecircumstances of the case andthe defendant had dischargedthe onus under that section ofproving that there was a goodreason why the court should notorder the sale of the premises,being a family home within themeaning of section 2 of theFamily Home Protection Act, 1976as, in the absence of anagreement between the parties,an order for sale could not bemade under the Partition Actsunless the court was alsosatisfied that it should dispensewith the consent of the non-agreeing spouse under section 4of the 1976 act. BM v AM, High Court, MrJustice Peart, 3/4/2003[FL7913]

TRIBUNALS

Child abuse, fair procedures Statutory tribunals – practice andprocedure – direction by commissionto witness to attend before it –purpose for which direction issued –whether proper purpose – directionissued for purposes of discussing atpublic hearing witness’s capacity togive evidence – whether directionultra vires – fair procedures –whether procedures adopted bycommission observed constitutionalrequirements of natural justice –whether witness afforded fairprocedures – whether directionshould be quashed – application bycommission to order witness tocomply with direction – whetherorder compelling compliance withdirection should be granted –Commission to Inquire intoChild Abuse Act, 2000, section 14Following a series ofcorrespondence between theparties concerning theapplicant’s ability to tenderevidence to the Commission toInquire into Child Abuse due tohis health, the applicant hadbeen issued with a direction to

Briefing


52

attend at the commission inMarch 2003. The letter issuingthe direction stated that it wasfor the purpose of investigatingthe applicant’s capacity to giveevidence at a public hearing ofthe commission and that theinvestigation into the applicant’shealth would itself be held inpublic. The prior correspond-ence between the partiesconcerning the manner ofdealing with the question of hiscapacity to give evidence hadindicated to the appellant adifferent procedure than the oneultimately adopted by thecommission in its direction

issued in March 2003. The HighCourt dismissed the applicant’sclaim for an order of certiorari ofthat direction and acceded to therespondent’s application for anorder pursuant to section 14(3)of the 2000 act requiring theapplicant to comply with thedirection. The applicantappealed that decision to theSupreme Court.

The Supreme Court allowedthe appeal, quashed the directionand dismissed the application ofthe respondent pursuant tosection 14(3) of the 2000 act,holding that section 14(1) of thatact gave power to the

commission only to issue adirection to attend at its publichearings for the purposes ofgiving evidence to it.Accordingly, the direction to theappellant to attend at a publichearing for the purposes ofinvestigating his ability to giveevidence had been issued for anunlawful purpose. As theapplicant had not been treatedfairly by the respondent, havingregard to the course of dealingsbetween the parties and the factthat the respondent was notentitled, without stating reasons,to discount the possibility thatpublic examination of the

applicant might be avoided, theexercise of the court’s discretionwas in favour of granting therelief sought.Meenan v Commission toInquire into Child Abuse,Supreme Court, 31/7/2003[FL7866]

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

G

LAW SOCIETYCOMPANY FORMATION SERVICEYour Company Formation Service forms approx 1,100 companies every year for over 300 solicitors’ firms. We achieved ISO 9001:2000 NSAI in 2002.

WHY USE US WE FORM■ Fast efficient service ■ Private companies limited ■ Competitive prices by shares■ 5 day electronic filing ■ Single member companies■ 10 day ordinary filing ■ Guarantee companies

■ Charitable status companies■ Unlimited companies

SCHEDULE OF FEESPrivate and single member companies limited by shares and unlimited companies: 5 day �330

10 day �278Guarantee/charitable status companies from �215

For further information, application form and form A1 see our

website www.lawsociety.ie or contact us directly bye-mail: [email protected] or

tel (01) 672 4914/6 or fax (01) 672 4915

CHRISTMAS CARDSIN AID OF THE

SOLICITORS’ BENEVOLENT ASSOCIATION

This is an opportunity to support the work of the Solicitors’ Benevolent Association, whose needs are

particularly acute at Christmas time.

ORDER FORM

Firm:

Contact:

Address:

DX: Tel: Fax:

Each card sold in packets of 50 costing �65 (including overprinting of your firm’sname). Minimum order 50 cards.

Add �5.50 for postage and packaging for each packet of 50 cards.

I wish to order pack(s) of card A @ �65, pack(s) of card B @ �65.

Text to be overprinted:SAMPLE OF OVERPRINTED TEXT WILL BE FAXED FOR CONFIRMATION BEFORE PRINTING.

I enclose cheque for € payable to Santry Printing Ltd.

GREETING PRINTED INSIDE EACH CARD: With Best Wishes for Christmas and the New Year

ORDERS MUST BE RECEIVED BY 20 NOVEMBERDELIVERY BY 7 DECEMBER

Send order form and cheque to: SBA Christmas Cards, Santry Printing Ltd, Unit 5, Lilmar Industrial Estate, Coolock Lane, Dublin 9. Tel: 842 6444. Contact: Amanda

Card A

ADORATION OF THE SHEPHERDSBartolome Esteban Murillo

Card B

THE FOUR COURTSTony Klitz

Briefing


53

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

EU immigration and asylum lawand policy

Last month’s article (Eurlegal,page 49) outlined the cur-

rent EC treaty framework forimmigration and asylum law andpolicy, provided an overview of‘headline’ developments, brieflyoutlined the position of Irelandwith its opt-out protocol andconsidered the implications ofthe proposed treaty establishinga constitution for the EU.

This purpose of this article isto provide a snapshot of currentand proposed EU measuresbased on the immigration andasylum provisions of the ECtreaty, and to indicate wherethese impact on the Irish posi-tion. It attempts to be as com-prehensive as possible in thespace available. However, itdoes not address the pre-Amsterdam acquis, much ofwhich continues to be relevantpending the adoption and entryinto force of measures under thepost-Amsterdam provisions, orthe Schengen arrangements (towhich Ireland has partly signedup), and it does not deal withmeasures taken under other ECtreaty provisions (the 2000Equality directives, for example).

ImmigrationArticle 61(1) of the EC treatyprovides for the adoption ofmeasures to ensure the absenceof internal border controls.Article 62(2) of the EC treatyprovides for measures on thecrossing of the external bordersof member states, covering thestandards and procedures to befollowed by member states incarrying out border checks aswell as rules on visas for stays ofless than three months. Article62(3) provides for measures set-ting out the conditions under

which nationals of third coun-tries shall have the freedom totravel within the territory of themember states for up to threemonths. Article 63(3) providesfor the adoption of measurescovering conditions of entryand residence, procedures forthe issue of long-term visas andresidence permits, including forfamily reunion, and illegalimmigration/residence. Article63(4) provides for measuresdefining the rights and condi-tions under which third-countrynationals legally residing in onemember state may reside else-where in the union.

Last year, the council adopt-ed decision 2002/463 on anaction programme for adminis-trative co-operation in the fieldsof external borders, visas, asy-lum and immigration (OJ 2002L161/15).

Border checks. The devel-opment of a common and inte-grated policy for the manage-ment of external borders hasbeen the subject of a commis-sion communication in May2002 (COM (2002) 233 final),which was endorsed by a coun-cil plan in June 2002 (councildoc 10019/02). These and otherinitiatives were endorsed by theJune 2002 Seville EuropeanCouncil.

Visas for short visits.Regulation 539/2001 lists thethird countries whose nationalsrequire visas or are exempt fromthis requirement (OJ 2001L81/1). This has been amendedby regulation 2414/2001 (OJ2001 L327/1) and regulation453/2003 (OJ 2003 L69/10). Atemporary derogation from thisregime for members of the‘Olympic family’ taking part in

the Greek Olympics/Para-lympics in 2004 is provided inregulation 1295/2003 (OJ 2003L183/1). Building on theSchengen acquis, there are com-mon consular instructions onvisas for diplomatic missionsand consular posts (OJ 2002C313/1, amended by regula-tions 415/2003 and 693/2003),the common manual (OJC313/97, amended by regula-tion 693/2003), regulation415/2003 on the issue of visas atthe border to seamen in transit(OJ 2003 L64/1), and regula-tions 693/2003 and 694/2004(OJ 2003 L99/8 and 15) onfacilitated transit documents.Regulation 1683/95, layingdown a uniform format forvisas, was amended by regula-tion 333/2002 (2002 OJ L53/4)and is the subject of a proposedamending regulation to enablethe integration of biometricidentifiers into the uniform for-mat (COM (2003) 558 final).The commission has beenworking on a feasibility studyon a common identificationsystem for visa data, and thecouncil adopted guidelines forthe further development of thevisa information system (VIS)in June 2003. Ireland has decid-ed to stay out of all of these andother short-term visa arrange-ments.

Freedom to travel forshort visits. A 1995 commis-sion proposal for a directive onthe right of third-countrynationals to travel in the com-munity (COM (95) 346 final)remains on the council table.

Conditions of entry andresidence. A proposal for adirective on the conditions ofentry and residence of third-

country nationals for paidemployment and self-employedeconomic activity was presentedby the commission in July 2001(COM (2001) 386 final) and iscurrently being considered bythe council. Ireland has opted into this process. The council isalso considering a commissionproposal, presented in October2002, on entry and residence forthe purposes of studies, voca-tional training and voluntaryservice (COM (2002) 548 final).The commission is currentlypreparing a communication onentry and residence of researchworkers from third countries. Inthe longer term, it is working onproposals for a union-widequota for immigrants.

In June of this year, politicalagreement was reached on thedirective concerning the statusof third-country nationals whoare long-term residents (councildoc 10214/03, MIGR 45).Formal adoption appears todepend on parliamentary scruti-ny procedures in one memberstate being completed. Thedirective will address the condi-tions for obtaining (and losing)the status and the rights attach-ing to such status, includingthose of equal treatment withhost nationals in a wide numberof areas. The directive will notapply to Ireland, the UK orDenmark.

Residence permits. In Junelast year, the council adoptedregulation 1030/2002 layingdown a uniform format for resi-dence permits for third-countrynationals (OJ 2002 L157/1).The commission has proposedan amending regulation (COM(2003) 558 final) to allow theintegration of biometric identi-

Briefing


54

fiers. Ireland is not party tothese arrangements.

Directive 2003/86 on theright to family reunification wasadopted in September and is tobe implemented by October2005 (OJ 2003 L251/12). Itdetermines the conditions forthe exercise of the right bythird-country nationals residinglawfully in the territory of mem-ber states. The directive doesnot bind Ireland, the UK andDenmark.

Illegal immigration andresidence. In February 2002,the Council of Ministers adopt-ed a comprehensive action planto combat illegal immigrationand the trafficking of humanbeings (OJ 2002 C14/23) and, inJune of that year, the counciladopted a plan for the manage-ment of the union’s externalborders (council doc 9620/02).Combating illegal migration hasbecome a political priority, andthis is reflected in the amount ofcurrent and proposed legisla-tion. Ireland is party to many ofthese measures. It should also benoted that Ireland is participat-ing in relevant parts of theSchengen acquis by virtue ofdecision 2002/192 concerningIreland’s request to take part insome of the provisions of thisacquis (OJ 2002 L64/20). Irelandis currently undergoing aprocess of adaptation to theseprovisions.

In relation to trafficking, inJuly 2002 the council adopted aframework decision under thejustice and home affairs (JHA)provisions on combating traf-ficking in human beings (OJ2002 L203/1), which is bindingon Ireland and is due to beimplemented by August nextyear.

Following a French initiativein 2000, the council adopted inNovember 2002 directive2002/90 defining the facilitationof unauthorised entry, move-ment and residence (OJ 2002L328/17) and a framework deci-sion 2002/946 (under the JHAprovisions) on the strengthen-ing of the penal framework toprevent such facilitation (OJ

2002 L328/1). Ireland is partyto each. Following a French ini-tiative, there has been a direc-tive on carrier’s liability, supple-menting article 26 of the agree-ment implementing theSchengen agreement, in whichIreland participates and which isto be implemented by February2003 (OJ 2001 L187/45).

Operational co-operation hasbeen promoted by the February2002 action plan, by the com-mission proposal in February2002 for a directive on a resi-dence permit issued to victims oftrafficking (COM (2002) 71final), and by the council adop-tion in May 2003 of the Brusselsdeclaration on the prevention oftrafficking in human beings andcombating the phenomenon (OJ2003 C137/1).

In relation to countries of ori-gin and transit, co-operationnetworks to combat illegalimmigration from China andthe western Balkans have beenset up. The council has adoptedconclusions in November 2002and May 2003. In June 2003, thecommission proposed a regula-tion establishing a multiannualprogramme for financial andtechnical assistance to thirdcountries in the area of migra-tion and asylum (COM (2003)355 final). Readmission agree-ments between the communityand Hong Kong, Sri Lanka andMacao have been initialled orsigned. Negotiations for suchagreements are on-going withAlbania, Algeria, China,Morocco, Pakistan, Russia andTurkey.

In relation to the develop-ment of common minimumstandards on expulsion andreturn, the council in May 2001adopted directive 2001/40 onthe mutual recognition of expul-sion orders (OJ 2001 L149/34),in which Ireland now partici-pates. In February 2003, thecommission presented a propos-al for a decision setting out thecriteria and practical arrange-ments for the compensation ofthe financial imbalances result-ing from the application of thisdirective (COM (2003) 49 final).

The Council of Ministersadopted a return action pro-gramme in November 2002(council doc 14673/02) and aspecific return programme forAfghanistan (council doc14654/02). In January 2003,Germany proposed a directiveon assistance in cases of transitfor the purposes of removal byair (OJ 2003 C4/4) and this hasbeen followed by a Spanish pro-posal for a directive on the obli-gation of carriers to communi-cate passenger data (OJ 2003C82/23). In September 2003,Italy made proposals for a direc-tive on assistance in cases oftransit in the context of removalorders taken against third-coun-try nationals (council doc12026/03) and for a decision onthe organisation of joint flightsfor removals of third-countrynationals (council doc 12025/03, MIGR 75). The commissionis planning to present a propos-al for a directive on minimumstandards for return proceduresbefore the end of the year.

Free movement of third-country nationals. Chapter 3of the directive concerning thestatus of long-term residentthird-country nationals (seeabove) sets out the conditionsunder which those who haveacquired the status under thedirective in one member statemay reside in other memberstate for periods of more thanthree months. Ireland has notsigned up to this directive.

AsylumArticle 63(1) of the EC treatyprovides for the adoption ofmeasures in relation to deter-mining the member stateresponsible for considering anasylum application, minimumstandards on reception, mini-mum standards on the qualifica-tion of a person as refugee andminimum standards on proce-dures for granting or withdraw-ing the status. Article 63(2) pro-vides for measures on refugeesand displaced persons to covertemporary protection and bur-den sharing.

Developing the EC treaty

framework to some extent, theOctober 1999 TampereEuropean Council set out theobjective of a commonEuropean asylum system, basedon the full and inclusive applica-tion of the Geneva convention andmaintaining the principle ofnon-refoulement. A two-stepapproach was set out. In theshort term, there should be aclear and workable determina-tion of the state responsible forexamining an asylum applica-tion, common standards for afair and efficient procedure,common minimum standards ofreception of asylum seekers andthe approximation of rules onrefugee status. In the longerterm, community rules shouldlead to a common asylum proce-dure and a uniform status forthose granted asylum, whichshould be valid throughout theunion.

Ireland has opted in to a largenumber of the adopted and pro-posed asylum measures.

The member state respon-sible. As from September 2003,the Dublin convention has beengenerally replaced by councilregulation 343/2003 establish-ing the criteria and mechanismsfor determining the memberstate responsible for examiningan asylum application lodged inone of the member states by athird-country national (OJ 2003L50/1). Norway and Icelandhave agreed to be bound by theregulation. The Dublin conven-tion remains in force in relationto Denmark, pending an agree-ment to allow participation inthe regulation. Ireland (as wellas the UK) participated in theadoption of the regulation andsection 22 of the Refugee Act,1996 has been amended by theImmigration Act, 2003 to reflectthe new regulation as well as toenable the conclusion by Irelandof agreements with ‘safe thirdcountries’ such as Canada andSwitzerland.

The application of the Dublinconvention and the 2003 regula-tion has been facilitated by theintroduction by regulation2725/2000 of the ‘Eurodac’ sys-

Briefing


55

tem for the comparison of fin-gerprints (OJ 2000 L316/1).This community-wide informa-tion technology system forcomparing the fingerprints ofapplicants for asylum took sometime to implement and enteredinto operation only in January2003. Ireland and the UK haveopted in to the arrangements,but Denmark is not involved.

Reception. In January 2003,the council adopted directive2003/9 laying down minimumstandards on the reception ofasylum applicants in memberstates (OJ 2003 L31/25). Thedirective, which is designed toensure that applicants be given adignified standard of living inthe member state of receptionand to prevent secondary move-ments based on differences inreception conditions, is to beimplemented by February 2005.The UK has opted in to thedirective, but Ireland has, so far,remained out, as has Denmark.

Qualification as refugee. InSeptember 2001, the commis-sion proposed a directive layingdown minimum standards forthe qualification and status ofthird-country nationals andstateless persons as refugees oras persons who otherwise needinternational protection (COM(2001) 510 final). The proposalsets out the framework for deal-ing with refugees in the strictsense and those seeking sub-sidiary (or complementary) pro-tection; it defines refugees,addresses the issue of non-stateagents where a state is unable orunwilling to provide protection,provides for the internal protec-tion alternative and defineswhen a person is unable to availof the status. It also includesprovisions on the rights andbenefits to be enjoyed. Irelandhas opted in. The June 2003Thessaloniki European Councilcalled for adoption of the direc-tive before the end of this year.

Procedures. The commis-sion made a proposal inSeptember 2000 for a directiveon minimum standards on pro-cedures in member states forgranting and withdrawing

refugee status (COM (2000) 578final), which was amended in2002 (COM (2002) 326 final).The proposal sets out a series ofminimum standards coveringmatters such as proceduralguarantees, the decision-makingprocess and common standardsfor applying concepts such as‘manifestly unfounded applica-tions’ and ‘safe third country’.The Seville European Councilcalled for agreement by the endof 2003. Ireland has opted in.

Temporary protection. InJuly 2001, the council – drivenby the effects of conflicts in theBalkans – adopted directive2001/55 on minimum standardsfor giving temporary protectionin the event of a mass influx ofdisplaced persons and on meas-ures promoting a balance ofefforts between member statesin receiving such persons andbearing the consequences there-of (OJ 2001 L212/12). Memberstates had to implement theprovisions of this directive by 31December 2002. Ireland hasrecently signed up to the direc-tive and, under commissiondecision 2003/690 (OJ 2003L251/23), has until the end of2003 to make the necessaryimplementing provisions.

Burden sharing. TheEuropean Refugee Fund wasestablished by council decisionin September 2000 (OJ 2000L252/12). The aim of thisfinancial instrument, in whichIreland participates, is to sup-port and encourage the effortsmade by the member states inreceiving and bearing the con-sequences of receiving refugeesand other displaced persons. Itcovers measures on reception,on integration of refugees/otherpeople seeking protection andvoluntary return. The firstphase of implementation of thefund ends in December 2004,and the commission is currentlyproposing to submit a proposalfor a new instrument, to beoperational from 1 January2005.

John Handoll is a partner in theDublin law firm William Fry.

G

ADVANCE BOOKING FORM & PAYMENT

Delegate name:

Name(s) of accompanying person(s):

Firm:

Tel: Fax: E-mail:

Flight preference (PLEASE TICK): Charter: Scheduled:

BY CHEQUE: I enclose a cheque in the sum of � (�400 per person travelling) representing booking fee (non refundable after 20th February 2004).

BY CREDIT CARD: Name of cardholder

Expiry date: ____/____/____ Amount:

Type of card & credit card number:

Signed: Date:

Please return the above completed form and payment to: Sarah Ellins, Law Society of Ireland, Blackhall Place, Dublin 7. DX79.Tel: 01 672 4823, fax: 01 672 4833, e-mail: [email protected]

Law Society of Ireland

Annual Conference 2004

Sicily14 – 18 April 2004

DUE TO LIMITED AVAILABILITY – BOOK NOW DUE TO LIMITED AVAILABILITY – BOOK NOW CHARTER PACKAGE PRICE: �1,050

(may be subject to surcharges)(includes return charter flight to Sicily, transfers, four nights’ bed and breakfast, reception, conference and gala dinner)

Additional charges: registration fee, optional tours, transfers for non-charter package delegates, and insurance

Note: due to the limited hotel accommodation and scheduled flight availability, it is recommended that you book for the direct charter flight package now to avoid disappointment.

OR Sicily

The conference brochure and booking form will be published in the December issue of the Gazette. Please ensure to complete the booking form in full and submit it to the Law Society in order to confirm your booking.

Bookings cannot be guaranteed without receipt of a completed booking form.

Briefing


57

EMPLOYMENT

Case C-422/-01 Försäkringsak-tiebolaget Skandia and OlaRamstedt v Riksskatteverket, 26June 2003. Swedish legislationdistinguishes between pensioninsurance and endowment insur-ance. To be considered as pen-sion insurance, a policy must betaken out with an insurer estab-lished in Sweden. The two typesof insurance are subject to differ-ent taxation rules. The effects ofthese rules are less favourable forendowment insurance. OlaRamstedt is a Swedish nationalemployed by Skandia, a Swedishundertaking. Skandia took out anoccupational pension for MrRamstedt with an insurance com-pany established in another mem-ber state. The Swedish Council forAdvance Tax Rulings determinedthat this policy should be classi-fied as endowment insurance.Skandia and Mr Ramstedtappealed this ruling to theSupreme Administrative Court,which made a reference to theECJ. It held that the treaty ruleson the provision of services applyto such a situation. Tax rules suchas those in Sweden restrict free-dom to provide services. Therules are liable to deter Swedishemployers from taking out occu-pational pension insurance withinstitutions established in a mem-ber state other than Sweden andto deter those institutions fromoffering their services on theSwedish market. The ECJ did notfind a convincing justification forthe rules.

Case C-34/02 Sante Pasquiniv Istituto Nazionale di PrevidensaSociale, 19 June 2003. MrPasquini lives in Luxembourg. Hehad worked for 140 weeks in Italy,336 weeks in France and 1,256weeks in Luxembourg. The daybefore his 60th bir thday, hereceived a retirement pensionfrom the Italian institute of socialinsurance to which was added afurther sum to bring it up to thelevel of Italian pensions, as hewas not receiving either a Frenchor Luxembourg pension. A year

later, in 1998, the Italian pensionwas reduced on account of theaward of a French pension. Laterthat year, he was granted a retire-ment pension by Luxembourg butwas late in informing the Italianinstitute about it. In 2000, theinstitute recalculated the Italianpension and reduced it retrospec-tively from 1 July 1988. To offsetthe overpaid sums, all pensionpayments ceased. Mr Pasquinibrought legal proceedings chal-lenging the Italian legislation thatpermitted recovery of overpay-ment of pensions. He argued thatthe legislation was incompatiblewith the EC regulations on the pro-tection of employed persons.Italian law did not provide a limi-tation period for the bringing of anaction to recover such sums. TheECJ pointed out that the purposeof the EC regulations on socialsecurity schemes are to co-ordi-nate rather than harmonisenational legislation in this area.For the calculation of limitationperiods, it is national rules whichare applicable. In relation tomigrant workers, the memberstate must exercise the power ofcalculating such periods in accor-dance with EC principles of equiv-alence and effectiveness.Procedures regulating rights deriv-ing from a freedom conferred bythe treaty must not be lessfavourable than those laid downfor internal situations. They mustnot make it impossible or exces-sively difficult to exercise rightsconferred by the treaty. The courtlooked at Italian law on pensionsand noted that for domesticschemes that there was a provi-sion requiring the institute toreview, once a year, the incomereceived by pensioners and itseffect on entitlement to, or theamount of, their pension. If a sim-ilar approach had been taken formigrant workers, any overpaymentwould have been limited to oneyear. Therefore, EC law principlesof equivalence and effectivenessrequired the institute to reviewonce a year the situation ofmigrant workers in receipt of apension.

ESTABLISHMENT

Case C-246/00 Commission of theEuropean Communities v Kingdomof the Netherlands, 10 July 2003.The EC directive on driving licencesprovides for the mutual recognitionof driving licences issued by themember states. Member states arefree to apply their own national pro-visions in relation to the duration ofthe licence, medical checks andfiscal provisions. Member statesare also entitled to enter onto thelicence matters essential foradministrative purposes where thelicence-holder takes up residencein a state other than the one thatissued the licence. Dutch legisla-tion requires holders of a licenceissued in another member state toregister with the Dutch authorities.In the absence of registration, thelicence is deemed valid from oneyear of establishment in theNetherlands. For those who regis-ter, their licence is approximated tothe position of a Dutch licence. Thecommission argued that the Dutchrules failed to fulfil the obligation ofmutual recognition of drivinglicences set out in the directive.The ECJ indicated that there are nodiscretions left to the memberstates in the directive and thatmutual recognition is to be carriedout without any formality. The Dutchrequirement for registration is a for-mality that runs counter to the pro-visions of the directive. The Dutchgovernment justified its measureon public interest grounds in con-nection with road safety. However,the ECJ held that the measure wasdisproportionate.

FREE MOVEMENT OF PERSONS

Case C-285/01 Isabel Burbaud, 9September 2003. Ms Burbaud is aPortuguese national. She secureda qualification as a hospital admin-istrator from the National School ofPublic Health, Lisbon, and workedin that capacity in Portugal. Shesought admission to the hospitalmanagers’ corps in the French civilservice and was refused on thebasis that it was first necessary to

pass the entrance examination ofthe French National School ofPublic Health. Ms Burbaud arguedthat this requirement did not recog-nise the equivalence of her Portu-guese qualification and was thus inbreach of the 1988 directive onmutual recognition of diplomas.The ECJ held that confirmation ofpassing this examination could beregarded as a diploma. It is for thenational court to ascertain its eq-uivalence to the Lisbon school ofpublic health qualification. Requir-ing qualified candidates to passthe examination is an obstacle tothe free movement of workers thatis incompatible with the EC treaty.This requirement does not takeinto account qualifications in thearea of hotel management gainedin other member states and thusplaces nationals of those states ata disadvantage and makes it diffi-cult for them to exercise theirrights, as workers, to freedom ofmovement. The court could not finda justification for this restriction.

TORT

The commission on 22 July 2003adopted a final proposal for a regu-lation on choice of law rules fornon-contractual obligations. This isknown as the ‘Rome II’ proposal –‘Rome I’ refers to the proposal toconvert the Rome convention onchoice of law in contract into a reg-ulation. The objective of the RomeII proposal is to ensure that courtsin all the member states apply thesame law to cross-border disputesrelating to non-contractual obliga-tions and thus facilitate mutualrecognition of court rulings in theEU. The proposal focuses on civilliability for damage caused to oth-ers, particularly in case of accidentsuch as traffic accidents or acci-dents caused by a defective prod-uct or in the case of invasion of pri-vacy. It is hoped that the regulationwill reduce forum shopping inthese cases. The basic rule in theregulation is that the law appliedwill be that of the state where thedamage is sustained. A number ofexceptions are allowed to coverspecific cases. G

Recent developments in European law

People and places


58

Crystal clearPictured at a recent CPD seminar on conveyancing and taxation issues

on farm disposals held in Waterford are: Brian Bohan of BohanSolicitors, Dublin; John Purcell of Purcell & Cullen Solicitors, Waterford;

and Owen Binchy of James Binchy & Son Solicitors, Co Cork

Word perfectIT consultant Mark Hainbach (second from left) helping

practitioners to master the core skills of word processing in the first of a series of five workshops organised by the CPD department in

the Tipperary Institute, Thurles

Head officePictured at the official opening of the new offices of Holmes O’Malley

Sexton in Limerick are (from left) attorney general Rory Brady, managingpartner Seán Hayes, chairman Gordon Holmes, justice minister Michael

McDowell, and James Sexton

Down on the farmBallinabrackey was the venue for this year’s National Ploughing

Championships. Once again, the Law Society had a stand at the three-day event. Local solicitors helped out at the stand and were kept busyby a constant stream of people looking for advice on matters such as

making a will and land law. The society would like to thank thosesolicitors – the stand would not have been possible without their

support. Pictured are (from left) Anthony Murphy of Regan MacEntee &Partners, Co Meath; Claire O’Sullivan, Law Society members’ services

executive; and Michelle Nolan, information and professionaldevelopment executive

Rights and wrongsThe Law Society and the Human Rights Commission (HRC) hosted a

conference on new human rights legislation on 18 October at BlackhallPlace. Pictured at the conference are: (from left) Mr Justice Brian Kerr,

High Court of Northern Ireland; Lord Justice Laws of the Court of Appealof England and Wales; Alma Clissmann of the society’s task force on the

European convention on human rights; James MacGuill, task forcechairman; Chief Justice Ronan Keane; Michael Kealey of William Fry;Alpha Connolly, chief executive of the HRC; Dr Maurice Manning, HRCpresident; and Justice Rosalie Abella of the Ontario Court of Appeal

Donegal catchThe Donegal Bar Association held a dinner in July to honour theappointment of Geraldine O’Connor as the new county registrar.

Pictured at the event are (from left) Mairin McCartney, Monaghancounty registrar Josie Duffy, Circuit Court judge Matthew Deery,

Geraldine O’Connor, bar association secretary Margaret Mulrine, AideenCollard, assistant county registrar Anne McGinley and (standing) bar

association chairman Niall Sheridan

People and places


59

You’re claimedAt the launch of Small claims court in Ireland: a

consumers guide (2003), published by FirstLaw, were(from left) Carmel Foley, director of the Office ofConsumer Affairs, FirstLaw’s Bart Daly and the

book’s author Damian McHugh

Grand designsThe new offices of Dillon Mullins and Company have

won the Royal Institute of Architects of Ireland’s2003 National Architectural Award. Pictured outside

the Kinsale offices are architect Tom O’Sullivan,Patrick Mullins and Andrew Dillon

Counting the costsPictured in Limerick at the recent annual conference of the Institute of

Legal Accountants are: (from left) Bart Mooney, secretary; KayWebberley, treasurer; guest speaker Paddy Glynn; and chairman John

Hogan

Caring professionThe Law Society and the Instituteof Professional Legal Studies at

Queen’s University, Belfast,recently held a client care

workshop in Enniskillen. Picturedare (from left) the institute’s Ruth

Craig, Antoinette Moriarty, LawSociety student welfare executive,and the institute’s Anne Fenton

Arguing the tossJudges, tutors and participants are pictured here at Blackhall Place on the final evening of the advanced

advocacy for solicitors course, held from 15-19 September

The go-betweensPictured at the graduationceremony for recipients of

diplomas in mediation studiesare Joanne Dwyer of the ChiefState Solicitor’s Office (who

achieved first place) and WilliamDevine of BCM Hanby Wallace

Working on the chain gangChanging of the guard in the Dublin Solicitors’ Bar Association on 29 October: John O'Connor receives the chain of office from

outgoing president James McCourt

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

WHERE THERE’S A WILLTHIS IS THE WAY…

5 Northumberland Road, Dublin 4. Tel: (01) 231 050015 Bridge Street, Cork. Tel: (021) 4509 918 Web: www.cancer.ie

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 euros 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 forsome fund-raising purposes. The“Cancer Research AdvancementBoard” allocates all ResearchGrants on behalf of the Society.

For booking phone:

01 804 4150

The Law Society’s tribu-

nal and arbitration facili-

ties at Bow Street

Friary:

■ Five minutes from

Four Courts

■ Tribunal room with

PA system and pub-

lic gallery

■ State-of-the-art

recording system

■ Six supporting con-

sultation rooms

Also suitable for:

■ Board meetings

■ Training sessions

■ Off-site meetings

ARBITRATION CENTRETRIBUNAL&&

● Exclusive 18th Century venue catering for up to 200 people

● Centrally located and easily accessible

● Private grounds with extensive car-parking

● Full catering and bar services available

Why not use this prestigious premises, designed by Thomas Ivory, for entertaining clients and staff?

Law Society of Ireland, Blackhall Place

● Christmas parties

● Christmas lunches

● Annual dinners

● Retirement parties

● BBQs

● Family days

21 st Century business in 18 th Century elegance

CONTACT THE CATERING MANAGER

Tel: 01 672 4800, fax: 01 672 4801E-mail: [email protected], website: www.lawsociety.ie

Professionalinformation


61

LOST LANDCERTIFICATES

Registration of Title Act, 1964An application has been received from theregistered owners mentioned in the sched-ule hereto for the issue of a land certificateas stated to have been lost or inadvertent-ly destroyed. A new certificate will beissued unless notification is received in theregistry within 28 days from the date ofpublication of this notice that the originalcertificate is in existence and in the cus-tody of some person other than the regis-tered owner. Any such notification shouldstate the grounds on which the certificateis being held.(Register of Titles), Central Office, LandRegistry, Chancery Street, Dublin (Published 7 November 2003)

Regd owner: John and Matthew Lacey,Drumcarey, Corlismore, Co Cavan;folio: 19003; lands: Dingins; area:0.2276 hectares; Co Cavan

Regd owner: Sean Fennelly; folio: 4388;lands: Kilcarry, Clonegal in the countyof Carlow; Co Carlow

Regd owner: Daniel Boland and MargaretBoland: folio: 25633; lands: (1)Kilballyowen, (2) Carrowmore Southand barony of (1) Moyarta, (2) Ibrickan;area: (1) 0.3970 hectares (2) 0.2402hectares; Co Clare

Regd owner: Frank Doherty; folio:24047F; lands: townland of Lifford andbarony of Islands; Co Clare

Regd owner: The Council of the UrbanDistrict of Ennis; folio: 19510; lands:townland of Lifford and barony ofIslands; area; 1.2899 hectares; CoClare

Regd owner: Michael Kennelly(deceased); folio: 17644; lands: town-land of Leeds and barony of Ibrickan;area: 7.6232 hectares; Co Clare

Regd owner: Denis McInerney (deceased)and Mary McInerney (deceased); folio:648; lands: townland of Lisduff andbarony of Tulla Upper; area: 8.1038hectares; Co Clare

Regd owner: Joseph Mulvihill (deceased);folio: 24080; lands: townland of (1)Killerk West, (2) and (3) IslandavannaUpper (Intake) and barony of (1), (2)and (3) Islands; area: (1) 10.0413hectares, (2) 1.0825 hectares, (3) 1.0598hectares; Co Clare

Regd owner: Francis O’Halloran(deceased) and Maura O’Halloran;folio: 6134F; lands: townland ofCahircalla More and barony of Islands;area 0.481 acres; Co Clare

Regd owner: Timothy Tuohy and PatrickTuohy; folio: 1240; lands: Garryeighterand barony of Leitrim; area: 3.8825hectares; Co Clare

Regd owner: Clodagh Gleeson; folio:93552F; lands: a plot of ground beingpart of the townland of Castleredmondand barony of Imokilly in the county ofCork; Co Cork

Regd owner: Thomas Kenneally(deceased); folio: 59791; lands: a plot ofground being part of the townland ofGlengarrif More and barony ofBarrymore and county of Cork; CoCork

Regd owner: Philip Murphy and HarrietMurphy; folio: 68411F; lands: a plot ofground being part of the townland ofTrabolgan and barony of Imokilly inthe county of Cork; Co Cork

Regd owner: Edmond O’Brien; folio:14131F; lands: a plot of ground beingpart of the townland of Moydilliga andbarony of Condons and Clangibbon inthe county of Cork; Co Cork

Regd owner: Ellen Leslie Jacqueline Day,Moress Farm, Inch Island, via Lifford,Co Donegal; folio: 27362; lands: BoIsland; area: 1.9526 hectares; CoDonegal

Regd owner: Francis Drohan, 9Beechmount Grove, Navan, CoMeath; folio: 10531F; lands:Cashelshanaghan; area: 0.500 acres;Co Donegal

Regd owner: Eamonn Byrne andGeraldine Byrne; folio: DN113743F;lands: property known as site no 32Springlawn Road situate in the townof Blanchardstown and parish ofCastleknock; Co Dublin

Regd owner: Oliver Canniffe and MaryCanniffe; folio: DN60017L; lands:property known as 32 Swilly Road sit-uate in the parish of Grangegormanand district of North Central; CoDublin

Regd owner: Alan Bennett; folio:DN115492F; lands: (1) property situ-ate in the townland of Ballisk andbarony of Nethercross (plan G5J2), (2)property situate in the townland ofBallalease North and barony ofNethercross (plan G5J3); Co Dublin

Regd owner: Marion Coyle; folio:DN65874L; lands: property known asno 47 Thornville Road situate in theparish and district of Kilbarrack; CoDublin

Regd owner: Andrew Crichton; folio:DN141778F; lands: a plot of groundknown as 1 Bramblefield Drive,Blanchardstown situate in the town-land of Huntstown and barony ofCastleknock shown as plan H43M; CoDublin

Regd owner: Gerald D Furey andPhilomena Furey; folio: DN5986F;lands: property situate in the townlandof Rathmines Great and barony ofRathdown; Co Dublin

Regd owner: David and BernadetteKeith; folio: DN21042F; lands: prop-erty situate in the townland ofKellystown and barony ofCastleknock; Co Dublin

Regd owner: Eamonn Peel and KarenLafford; folio: DN137982F; lands:property known as site no 71 FforsterPark, Ballydowd Manor, Lucan, situ-ate in the townland of Ballyowen andbarony of Newcastle; Co Dublin

Regd owner: Tarig Mohamed and EimanSalih; folio: DN128213F; lands: prop-erty situate in the townland ofPorterstown and barony ofCastleknock; Co Dublin

Regd owner: Kieran Murray andMargaret Murray; folio: DN33880L;lands: property situate on the east sideof Crawford Avenue in the parish ofSaint George and district ofDrumcondra; Co Dublin

ADVERTISING RATES

All advertisements must be paid for prior to publication. Deadline for DecemberGazette: 21 November 2003. For further information, contact CatherineKearney or Valerie Farrell on tel: 01 672 4828 (fax: 01 672 4877)

• Lost land certificates – �46.50 (incl VAT at 21%)• Wills – �77.50 (incl VAT at 21%)• Lost title deeds – �77.50 (incl VAT at 21%)• Employment miscellaneous – �46.50 (incl VAT at 21%)

HIGHLIGHT YOUR ADVERTISEMENT BY PUTTING A BOX AROUND IT – �30 EXTRA

Advertising rates in the Professional information section are as follows:

GazetteLawSociety

Regd owner: John O’Byrne and FionaFoley; folio: DN8712F; lands: proper-ty situate in the townland ofPriorswood and barony of Coolock;Co Dublin

Regd owner: Colm Christopher Perry;folio: DN19208; lands: property situ-ate in the townland of Oldcourt andbarony of Uppercross; Co Dublin

Regd owner: Bernard (senior) Williamsand Mary Williams; folio: DN21410L;lands: property known as 26 LeighlinRoad situate in the parish of Crumlin,district of Terenure; Co Dublin

Regd owner: the county council of thecounty of Dublin; folio: DN14005;lands: (1) property situate in the town-land of Roebuck and barony ofRathdown plan no 143; (2) propertysituate in the townland of Roebuck andbarony of Rathdown plan no 13, 16,18; (3) property situate in the townlandof Roebuck and barony of Rathdownplan no 5; Co Dublin

Regd owner: John Valentine Butler,Kilkieran, Kilmane, Co Galway; folio:13613F; Co Galway

Regd owner: Patrick J Kerins (deceased)folio: 8033; lands: townlandBallinastaig (Kiltartan By); Co Galway

Regd owner: George Nelissen and MaryNelissen; folio: 35709F; lands: town-land of Ballinderreen and barony ofDunkellin; area: 0.164 hectares; CoGalway

Regd owner: Brian Noone; folio: 53384;lands: townland of (1) and (2)Gortnaboha, (3) Caraun More and (4)Cappaghnanool and barony of (1), (2),(3), and (4) Kilconnell; area: (1)13.3684 hectares, (2) 1.5428 hectares,(3) 3.7028 hectares, (4) 0.9231hectares; Co Galway

Regd owner: Michael Seoighe andGrainne Seoighe; folio: 39628F; lands:townland of Keeraunbeg and barony ofMoycullen area; Co Galway

Regd owner: Patrick Spellman and MarySpellman, Ballyglass, Ahascragh,Ballinasloe, Co Galway; folio: 20865F;lands: townland of (1) Ballyglass, (2)Fairfield, (3) Cool, (4) Cool, (5) Cooland barony of (1), (2), (3), (4), (5)Clonmacnowen; area: (1) 6.9930hectares, (2) 0.5470 hectares, (3)1.3030 hectares, (4) 1.7270 hectares,(5) 1.5120 hectares; Co Galway

Regd owner: Joan O’Callaghan; folio:17999; lands: townland of Laharan andbarony of Trughanacmy; Co Kerry

Regd owner: Jeremiah Joseph Lynch;folio: 18194 Kerry; lands: townland ofDerreen and barony of Iveragh; CoKerry

Regd owner: Michael and MajellaBermingham; folio: 12420F; lands:townland of Aghards and barony ofNorth Salt; Co Kildare

Regd owner: Eamonn and Stella Hogan;folio: 11315; lands: townland ofGarterfarm and barony of Kilkea andMoone; Co Kildare

Regd owner: Edward McBride andMairead Rohan; folio: 32092F; lands:townland of Barnhall and barony ofNorth Salt; Co Kildare

Regd owner: Patrick Murphy; folio:1653; lands: townland of BrownstownLower and barony of Offaly East; CoKildare

Regd owner: Christopher Ward; folio12381; lands: townland of Mulgeethand barony of Carbury; Co Kildare

Regd owner: John Egan (junior); folio:14479; lands Clonfinlough and baronyof Garrycastle; Co Kings

Regd owner: Liam Davis; folio: 26526;lands: townland of Gortboy andbarony of Glenquin; Co Limerick

Regd owner: Mary O’Brien,Rawleystown, Grange, Kilmallock, CoLimerick; folio: 25705; lands: town-land of Rawleystown and barony ofSmallcounty; area: 33.250 acres orthereabouts like measure; CoLimerick

Regd owner: Josephine O’Brien; folio:2813F; lands: townland of Ballymartinand barony of Kenry; Co Limerick

Regd owner: Nicola O’Halloran andPatrick Frawley; folio: 3894L; lands:Co Limerick, Co Borough; CoLimerick

Regd owner: Jeremiah Ryan; folio: 5450;lands Moohane and barony ofSmallcounty; Co Limerick

Regd owner: John and Lucy Walsh; folio:4901 and 31079F; lands: townland ofBilboa and barony of Coonagh; CoLimerick

Regd owner: John Dermot and BriegeMcArdle, ‘Hawthorn’, Dublin Road,Dundalk, Co Louth; folio: 10285;lands: Marshes Upper; area: 0.1694



62

West and Glasshouse and barony ofClonlisk; Co Offaly

Regd owner: Raymond Mary Milne(deceased) and Teresa Milne; folio:1565F; lands: Crinkill and barony ofBallybrit; Co Offaly

Regd owner: Christina Garvey (deceased);folio: 17316; lands: (1) Tonbaun and (2)Brierfield and barony of (1) and (2)Ballymoe; Co Roscommon

Regd owner: John Keenan (deceased);folio: 4432; lands: townland of Lungand barony of Costello; area: 6.2700hectares; Co Roscommon

Regd owner: Beatrice Sexton; folio: 3866;lands: Kilrush-Eighter; Co Sligo

Regd owner: Brian Murray; folio: 21444;lands: townland of Cloghonan andbarony of Ormond Upper; CoTipperary

Regd owner: Sorcha Flannery; folio:30353; lands: townland of Coolboreen/Gortshane Middle/Annaholty andbarony of Owney and Arra; CoTipperary

Regd owner: Cashel Cattle Mart; folio:3082F; lands: townland of Wallers Lotand barony of Middlethird; CoTipperary

Regd owner: Sean Loran, Milltownpass,Co Westmeath; folio: 11471; lands:Milltown; area: 0.9737 hectares; CoWestmeath

Regd owner; Kevin Philip Alcorn; folio:8610; lands: townland of Ballydowlingand barony of Newcastle; Co Wicklow

WILLS

Cavanagh, Catherine (deceased), late of37 Upper Church Street, TipperaryTown, otherwise 37 Upper Davitt Street,Tipperary Town, otherwise New Road (orLimerick Road), Tipperary Town. Wouldany person having knowledge of a willmade by the above named deceased, whodied on 14 December 1992, please contactFearghal Holmes, Solicitors, 8 StMichael’s Street, Tipperary; tel: 06252577 or fax: 062 52729; e-mail: [email protected]

Concannon, Thomas (deceased), late of28 Allen Park, Stillorgan, Co Dublin.Would any person having knowledge of awill made by the above named deceased,who died on 17 August 2003 at StVincent’s Hospital, Dublin 4, please con-tact Michael Sheil & Associates,Solicitors, Temple Court, Temple Road,Blackrock, Co Dublin; tel: 01 288 1150

Corcoran, Margaret (deceased), last ofChurch Road, Carrigaline East, Co Cork.Would any person having any knowledgeof a will made by the above nameddeceased, please contact Michael Quinlanof Murphy English & Co, Solicitors,Sunville. Cork Road, Carrigaline, CoCork, tel: 021 437 2425, fax: 021 437 3978

Davidson, Claude (deceased), late of 136Broadford Rise, Ballinteer, Dublin 16 andformerly of Flat 3, Castle Street,Ramelton, Co Donegal. Would any per-son having knowledge of a will made bythe above named deceased who died on 31

August 2003 at Letterkenny GeneralHospital, Donegal, please contact MarieO’Brien, Sheedy & Co, Solicitors, 1Upper Kilmacud Road, Dundrum, Dublin14; tel: 01 298 9622

Downes, Kathleen (deceased) late of 10Bowman Street, Limerick and also ofRoseville House Nursing Home,Killonan, Ballysimon, Limerick. Wouldany person having any knowledge of a willmade by the above named deceased whodied on 17 September 2003 at RosevillleHouse Nursing Home, Limerick, pleasecontact: Johnson & Johnson, Solicitors,Ballymote, Co Sligo, ref: T116; tel: 071918 3304, fax: 071 918 3526, e-mail:[email protected]

Galvin, Desmond Joseph (deceased),late of 43 Hardiman Road, Drumcondra,Dublin 7. Would any person havingknowledge of a will made by the above named deceased who died on 12August 1980 at Jervis Street Hospital,please contact Bryan F Fox & Co,Solicitors, 46 North Circular Road,Dublin 7

Galvin, Ann (deceased), late of 43Hardiman Road, Drumcondra, Dublin 7.Would any person having knowledge of awill made by the above named deceasedwho died on 3 March 2002 at WexfordGeneral Hospital, please contact Bryan FFox & Co, Solicitors, 46 North CircularRoad, Dublin 7

McCabe, Eithne (otherwise Mary B,otherwise Mary Bernadette) (deceased)late of 50 Shanard Avenue, Santry, Dublin9. Would any person having knowledge ofa will made by the above named deceasedwho died on 25 September 2003, pleasecontact PJ O’Driscoll & Sons, Solicitors,179 Church Street, Dublin 7; tel: 01 8728144, fax: 01 872 8425

Mooney, Edward Michael (deceased) lateof Glencree, Co Wicklow andKilnamanagh, Dublin 24 and also ofKiltulla, Co Galway. Would any personhaving any knowledge of a will executed bythe above named deceased who died in oraround 12 June 2003, please contact JohnO’Connor, Solicitors, Ballsbridge, Dublin4; tel: 01 668 4366, fax: 01 668 4203

Redmond, Teresa (deceased) (housewife)late of 137 Mount Tallant Avenue,Harold’s Cross, Dublin. Would any per-son having knowledge of a will made bythe above named deceased who died on 19November 1992, please contactO’Connor Buckley & Co, Solicitors, 22Upper Ormond Quay, Dublin 7; tel: 01872 6583; fax: 01 872 6579, ref: VB

O’Shea, Esther (deceased), widow, late of67 Sperrin Road, Drimnagh, Dublin 12.Would any person having knowledge of a will made by the above named deceased who died on 25 December 1987,please contact Loraine Hanratty, EganCosgrove & Associates, Solicitors, 138Sundrive Road, Crumlin, Dublin 12; tel:01 473 0222/473 0223/473 0224, fax: 01473 0225

hectares; Co LouthRegd owner: Samuel Strahan, Coolfore,

Monasterboice, Drogheda, Co Louth;folio: 16010F; lands: Coolfore; area:6.8510 hectares, 1.4860 hectares and4.2900 hectares; Co Louth

Regd owner: Mary Gibbons (deceased)and Donal Gibbons; folio: (1) 10098Fand (2) 10099F; lands: townland of (1)and (2) Boheh (Ed Knappagh) andbarony of Murrisk; area: (1) 0.165hectares, (2) 0.8854 hectares; Co Mayo

Regd owner: Michael Mulhearn; folio:20224; lands: townland of Knockaleganand barony of Tirawley; area: 0.9535hectares; Co Mayo

Regd owner: John Walsh, Errew,Castlehill, Ballina. Co Mayo; folio:26319; lands: (1), (2) & (3) Errew andbarony of Tirawley; area: (1) 30 acres, 3roods 8 perches, (2) 14 acres, 1 rood 20perches, (3) 5 acres, 2 roods, 4 perches;Co Mayo

Regd owner: William Davey, JohnstownRoad, Enfield, Co Meath; folio: 21294;lands: Newcastle; Co Meath

Regd owner: Ian and Deirdre McKeown,19 Abbeygrove, Navan, Co Meath;folio: 19091F; lands: Wyanstown; area:0.2240 hectares; Co Meath

Regd owner: William John Harvey,Dernashallog, Emyvale, CoMonaghan; folio: 6545; lands:Derrynashallog; area: 6.8821 hectares;Co Monaghan

Regd owner: Patrick McCartney,Derryolam, Carrickmacross, CoMonaghan; folio: 20732; lands:Derryolam; area: 1.9424 hectares and7.660 hectares; Co Monaghan

Regd owner: James O’Neill, Tirnadrola,Co Monaghan; folio: 4941; lands:Tirnadrola; area: 3.6421 hectares; CoMonaghan

Regd owner: Patrick Carey (deceased);folio: 9584; lands: Rusheen, Mucklone

PARTNERDESIGNATE

Tired of the big city Rat Race?Dublin traffic & house prices get-ting you down? Fancy a move tothe Midlands? Are you a highlymotivated, commercially orien-tated and enthusiastic self-starter with at least 5 yearsPQE? Have you had excellentexperience with a par ticularemphasis on conveyancing? Ifyou can answer yes to thesequestions, our client, a progres-sive Midlands practice, wouldlike to hear from you. This excit-ing opportunity offers realisticpartnership prospects to theright candidate. Are YOU up forit? If so contact Charlie Russell,Russell & Company, 6 HydePark, Dalkey, Co Dublin, or [email protected]. Go for it!

TO LETDUBLIN 4,

NORTHUMBERLAND ROAD

Office 650 sq ft in three self contained rooms

available for let. Secretarial services

optional.

Phone: 01-668 2404E-mail: [email protected]

O’Sullivan, Patrick J (deceased), late ofNo 2 Diswellstown, Castleknock, Dublin15. Would any person having knowledgeof a will made by the above nameddeceased who died on 8 August 2003,please contact Seamus Maguire & Co,Solicitors, 10 Main Street, Blanchards-town, Dublin 15; tel: 01 821 1288, fax: 01821 1442

O’Toole, Andrew (deceased), late of 96Mangerton Road, Drimnagh, Dublin 12.Would any person having any knowledgeof a will made by the said deceased whodied on 3 July 2002 at St James’ Hospital,Dublin. The contact details are Cannons,Solicitors, 1-3 Sandford Road, Ranelagh,Dublin 6; tel: 01 497 6555, fax: 01 4971409

Skelton, Margaret (deceased), late ofRowan, Clonee, Co Meath. The personalrepresentatives are Noel and MichaelSkelton. Would any person having knowl-edge of a will made by the above nameddeceased who died on 10 April 2002 atRowan, Clonee, Co Meath, please replyto Oliver Shanley & Co, Solicitors, 11Bridge Street, Navan, Co Meath; tel: 046902 8333, fax: 046 902 9937

EMPLOYMENT

Locum solicitor required for generalpractice in Ennis, commencing January2004 for four months – experience inconveyancing or litigation required.Newly qualified solicitor with experiencein general practice will be considered.Please reply to Cahir & Co, Solicitors, 36Abbey Street, Ennis, Co Clare

Equity partner required for busy com-mercial south eastern practice. Would suitsomebody wanting to move away fromDublin. Please reply to box no 90

OFFICES TO LETBrand new office development inconservation building on CapelStreet, minutes from the FourCourts. From 3,000 to 15,000square feet. Available from March2004. For further details pleasecontact 01 4190962 between11am & 4pm.


63


DUBLIN SOLICITORS’PRACTICE OFFERS

AGENCY WORK IN NORTHERN

IRELAND* All legal work undertaken

on an agency basis* All communications to clients

through instructing solicitors* Consultations in Dublin if required

Contact: Séamus ConnollyMoran & Ryan, Solicitors,

Arran House,35/36 Arran Quay, Dublin 7.

Tel: (01) 872 5622 Fax: (01) 872 5404

e-mail: [email protected] Bank Building, Hill Street

Newry, County Down.Tel: (0801693) 65311Fax: (0801693) 62096E-mail: [email protected]

ABACUS BOOK KEEPING

SERVICES

SPECIALISING IN LEGAL ACCOUNTS,NORTH EASTERN

REGION

For further information,please contact

Fleur @042-9382157086-8147270

[email protected]

Experienced solicitor available forlocum/part-time work in north Kerry area,please contact box no 91

Solicitors (two) required for establishedKillarney practice: (1) conveyancing and (2)litigation. Reply to box no 92

Solicitor required for a busy west Corkgeneral practice. Please reply with CV tobox no 93

Conveyancing and probate solicitor, very experienced, seeks position in Dublinor adjoining counties. Please reply to boxno 94

Well-established Cork practice seeksambitious solicitor with 2/3 years’ PQE towork in litigation and commercial property.Candidate must be self-driven, aspire topartnership and possess high professionalstandards. Salary and excellent packagenegotiable. CVs to John McInerney,Personnel Division, Gorman QuigleyPenrose, Chartered Accountants, 31Greenmount Office Park, Dublin 6

MISCELLANEOUS

Northern Ireland solicitors providing anefficient and comprehensive legal service inall contentious/non-contentious matters.Dublin-based consultations and elsewhere.Fee apportionment. ML White, Solicitors,43-45 Monaghan Street, Newry, CountyDown, tel: 080 1693 68144, fax: 080 169360966

Northern Ireland agents for all contentious and non-contentious matters. Consultation in Dublin if required.Fee sharing envisaged. Offices in Belfast,Newry and Carrickfergus. ContactNorville Connolly, D&E Fisher, Solicitors, 8 Trevor Hill, Newry, tel:

080 1693 61616, fax: 080 1693 67712

Northern Ireland solicitors. Will adviseand undertake NI-related matters. Allareas corporate/private. Agency or fullreferral of cases as preferred.Consultations in Dublin or elsewhere ifrequired. Fee sharing envisaged.Donnelly Neary & Donnelly, 1Downshire Road, Newry, Co Down, tel:080 1693 64611, fax: 080 1693 67000.Contact K J Neary

England & Wales solicitors will providecomprehensive advice and undertake con-tentious matters. Offices in London,Birmingham, Cambridge and Cardiff.Contact Levenes Solicitors at AshleyHouse, 235-239 High Road, WoodGreen, London 8H; tel: 0044 2088 17777,fax: 0044 2088 896395

Solicitor wishes to acquire a general prac-tice/block of clients in the Dublin area.May suit sole practitioner planning aphased retirement. Apply in strictest con-fidence to Michael J Joyce & Co,Chartered Accountants, Claregate Street,Kildare Town, Co Kildare

Wanted for purchase, full ordinaryseven-day publican’s licence. Contact:Ronan Connolly, Solicitor, Ennis, CoClare. Tel: 065 682 3577

TITLE DEEDS

Philip McGuinness (deceased), andGertrude McGuinness of 38 GosworthPark, Dalkey, Co Dublin. Would anyonehaving knowledge of original title docu-mentation relating to 38 Gosworth Park,Dalkey, Co Dublin, please contact JohnHenchion & Co, Solicitors, 2 Sunberry,Blarney, Co Cork, tel: 021 438 2870/ 4382871, fax: 021 438 2876

In the matter of the Landlord andTenant Acts, 1967-1994 and in the mat-ter of the Landlord and Tenant (GroundRents) (No 2) Act, 1978 and in the mat-ter of premises situate at no 32/33Stephen Street in the city of Water-ford: an application by Edward RolesTake notice that any person having anyinterest in the freehold estate of or thesuperior interest in the hereditaments andpremises situate at nos 32 and 33 StephenStreet in the parish of St Stephen’s Withinand city of Waterford, which said premisesare held under an indenture of lease dated22 April 1965 and made between IanBarclay Justly Wilson, Ann RH Weir,Margaret R Daniel and Audrey Nolan ofthe one part and Edward Roles of the otherpart for a term of 99 years from 25 March1963 subject to a yearly rent of IR£36.

Take notice that the applicant, EdwardRoles, being the person entitled under sec-tions 9 and 10 of the Landlord and Tenant(Ground Rents) (No 2) Act, 1978, intends tosubmit an application to the county regis-trar for the county and city of Waterfordfor the acquisition of the freehold interestin the aforesaid premises (or any of them)and that any party asserting that they holda superior interest in the aforementionedpremises are called upon to furnish evi-dence of title to the aforementioned prem-ises to the below within 21 days from thedate of this notice.

In default of any such notice beingreceived, Edward Roles intends to proceedwith the application before the county reg-istrar at the end of 21 days from the date ofthis notice and will apply to the county reg-istrar for the county and city of Waterfordfor directions as may be appropriate on thebasis that the person or persons beneficial-ly entitled to the superior interest includingthe freehold reversion in the aforesaidpremises are unknown or unascertained.Date: 7 November 2003Signed: Nolan Farrell & Goff, Solicitors,Newtown, Waterford (Ref MOC)

In the matter of the Landlord andTenant Acts, 1967-1994 and in the mat-ter of the Landlord and Tenant (GroundRents) (No 2) Act, 1978: an applicationby Gerard ButlerTake notice that any person having aninterest in the freehold estate in the follow-ing property: all that and those the heredi-taments and premises known as number 5 St Ignatius Road, Drumcondra, Dublin 9, held under lease dated 14 October 1879 and made between Maurice Butterlyof the one part and William Marmion of the other part for the term of 194 years from 29 September 1879 subject to the yearly rent of £6 (�7.62) and to thecovenants and conditions contained therein.

Take notice that Gerard Butler intends tosubmit an application to the county registrarfor the county of the city of Dublin for theacquisition of the fee simple interest in theaforesaid property and any party assertingthat they hold a superior interest in theaforesaid property is called upon to furnishevidence of title to the aforementionedproperty to the below named within 21 daysfrom the date of this notice.

In default of any such notice beingreceived, the applicant Gerard Butlerintends to proceed with the applicationbefore the county registrar at the end of the21 days from the date of this notice and willapply to the county registrar for the countyof the city of Dublin for directions as maybe appropriate on the basis that the personor persons beneficially entitled to the supe-rior interest including the freehold rever-sion in the aforesaid property are unknownor unascertained.Date: 7 November 2003Signed: Reddy Charlton McKnight, 12Fitzwilliam Place, Dublin 2

In the matter of the Landlord and TenantActs, 1967-1994 and in the matter of theLandlord and Tenant (Ground Rent) (No2) Act, 1978: an application by LiamMcGill and respondent successors intitle of Fletcher MooreTake notice that the above named applicantis applying to acquire the fee simple interestin the property hereinafter described pur-suant to the above acts. Further take noticethat any person having an interest in the fol-lowing property: part of the lands com-prised in indenture of lease dated 15November 1877 and made betweenFletcher Moore of 12 Hume Street, Dublin,barrister at law of the one part and JohnGillespie of West Port, Ballyshannon, CoDonegal of the other part, being premiseslocated at West Port, town of Balyshannon,barony of Tyrhugh and county of Donegal.

Take notice that Liam Magill intends toapply to the county registrar of the county ofDonegal for the acquisition of the freeholdinterest in the aforesaid property and anyparty asserting that they hold a superiorinterest in the aforesaid property is calledupon to furnish evidence of title to theaforementioned premises to the belownamed within 21 days from the date of thisnotice. In default of any such notice beingreceived, Liam Magill intends to proceedbefore the county registrar for the county ofDonegal for direction as may be appropriateon the basis that the person or persons ben-eficially entitled to the superior interestincluding the freehold reversion in thepremises are unknown and unascertained.Date: 7 November 2003Signed: F Hutchinson & Company, TirconnellStreet, Ballyshannon, Co Donegal (solicitors forthe applicant)

www.liquidations.ieFor information on insolvency, employees entitlements,defending a section 150 application, informal schemesof arrangement, dealing with the sheriff, services tosolicitors and free Insolvency Helpline Service.



64

NORTHERNIRELAND

SOLICITORSWe will engage in,

and advise on, all Northern Ireland-

related matters,particularly personal injury

litigation.

Consultations whereconvenient.

OLIVER M LOUGHRAN & COMPANY

9 HOLMVIEW TERRACE,OMAGH,

CO TYRONEPhone (004428) 8224 1530Fax: (004428) 8224 9865

e-mail:[email protected]

LAW AGENCY SERVICESENG L A N D & W ALES

S O L I C I T O R SEstablished 1825

SPANISH LAWYERS

RAFAEL BERDAGUER ABOGADOS

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

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

Web site: www.berdaguerabogados.com

PROFILE:

Spanish Lawyers Firm 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.

AM

EMBER

OF

INTERNATIONAL PRACTIC

EG

ROU

P

• Fearon & Co act for Irish residents in the fields ofprobate, property and litigation

• Each solicitor is available by direct line, fax or e-mail. Conferences can be easily arranged

• Fearon & Co is committed to the use of information technology to help improve both the quality and speed of service for the benefits of all clients both at home and abroad

• The firm’s offices are within half an hour of London W aterloo station and within a short travel from both Gatwick and Heathrow airports, with easy access fromthe London orbital M25 motorway

PHONE NOW FOR A BROCHUREWestminster House

12 The Broadway, Woking, Surrey GU21 5AU EnglandFax: +44 (0)1483 725807

Email: [email protected] www.fearonlaw.comPROPERTYJohn Phillips

Tel: +44 (0)1483 747250

LITIGATIONMartin Williams

Tel: +44 (0)1483 776539

PROBATEFrancesca Nash

Tel: +44 (0)1483 765634

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

In the matter of the Landlord and TenantActs, 1967-1994 and in the matter of theLandlord and Tenant (Ground Rents) (No2) Act, 1978: an application by ThomasMcCormackNotice to any person having any interest inthe freehold estate of the following proper-ty – the plot of ground in Jail Street (for-merly known as Crabb Road or Crab Road)in the town of Newport with the premiseserected thereon and now known as TheHall, Newport, Co Tipperary.

Take notice that the applicant intends tosubmit an application to the county regis-trar for the county of Tipperary for theacquisition of the freehold interest in theaforesaid property and any party assertingthat they hold a superior interest in theaforesaid property are called upon to fur-nish evidence of title to the aforementionedproperty to the below named within 21 daysat the date of this notice.

In default of any such notice beingreceived, Thomas McCormack intends toproceed with the application before thecounty registrar at the end of 21 days fromthe date of this notice and will apply to thecounty registrar for the county of Tipperaryfor directions as may be appropriate on thebasis that the person or persons beneficiallyentitled to the superior interest includingthe freehold reversion in the aforesaidpremises are unknown or unascertained.Date: 7 November 2003Signed: Eamonn O’Brien (solicitors for theapplicant), 98 O’Connell Street, Limerick

In the matter of the Landlord and TenantActs, 1967-1994 and in the matter of theLandlord and Tenant (Ground Rents) (No2) Act, 1978: an application by PatrickThornton, 32 Avenue Road, SouthCircular Road, Dublin 8 (formerly 32Bloomfield Avenue, South CircularRoad, Dublin 8

Take notice that any person having aninterest in the freehold estate of the follow-ing property: the premises known as 32Avenue Road, South Circular Road, Dublin8 (formerly 32 Bloomfield Avenue, SouthCircular Road, Dublin 8).

Take notice that (the applicant) PatrickThornton intends to submit an applicationto the county registrar for the county of thecity of Dublin, for the acquisition of thefreehold interest in the aforesaid propertyand any party asserting that they hold asuperior interest in the aforesaid property(or any of them) are called upon to furnishevidence of title to the aforementionedpremises to the below named within 21days from the date of this notice.

In default of any such notice beingreceived, the applicant intends to proceedwith the application before the county reg-istrar at the end of 21 days from the date ofthis notice and will apply to the county reg-istrar for the county/city of Dublin fordirections as maybe appropriate on thebasis that the person or persons beneficiallyentitled to the superior interest includingthe freehold reversion in the above premis-es are unknown or unascertained.Date: 7 November 2003Signed: Miley & Miley (solicitors for the applicant), 35 Molesworth Street, Dublin 2, ref12/EC

In the matter of the Landlord and TenantActs, 1967-1994 and in the matter of theLandlord and Tenant (Ground Rents) (No2) Act, 1978 and in the matter of proper-ty situate at the rear of 33 ThomasStreet Dublin 8: an application by JohnClohisey, Finbar Cahill and AndrewMaddenTake notice that any person having anyinterest in the freehold estate of the follow-ing property: all that and those the heredi-taments and premises situate at the rear of33 Thomas Street, Dublin 8, being part ofthe premises comprised in and demised byindenture of lease dated 12 June 1928 andmade between Alnetta Jane Sawyer of theone part and Mary Anne Byrne of the otherpart.

Take notice that John Clohisey, FinbarCahill and Andrew Madden intend to sub-mit an application to the county registrarfor the city of Dublin for the acquisition ofthe freehold interest in the aforesaid prop-erty and that any party asserting that theyhold a superior interest in the aforesaidproperty are called upon to furnish evi-dence of title to the aforementioned prop-erty to the below named within 21 daysfrom the date of this notice.

In default of any such notice beingreceived, John Clohisey, Finbar Cahill andAndrew Madden intend to proceed with theapplication before the county registrar atthe end of the 21 days from the date of thisnotice and will apply to the county registrarfor the county of Dublin for directions asmay be appropriate on the basis that theperson or persons beneficially entitled tothe superior interest and that the person orpersons beneficially entitled to the superiorinterest including the freehold reversion inthe aforementioned property are unknownor unascertained.Date: 7 November 2003Signed: Cahill & Co Solicitors, 21 WinsorPlace, Dublin 2

contents gazette lawsociety

Documents