issue april 99 - law society of ireland · the supreme court is rewriting the rules banking law in...

Cover StoryDrunken driving: is the Supreme Court rewriting the rules?

Recent judgments from the Supreme Court suggest that it haschanged the way it interprets legislation, particularly the drunken driving provisions of the Road Traffic Acts. GerardGannon discusses the decisions in question and asks whether the Supreme Court is rewriting the rules

Banking law in the 1990sDevelopments in banking law over the last ten years have been a factor in the unprecedented growth in this country’s prosperity.

William Johnston summarises those developments and assesses their impacton the economy’s health

Planning foryour goldenyearsRecent legislation has improvedthe tax regime for pensionschemes, including the LawSociety’s own scheme for members, as Claire O’Sullivanexplains

Cry freedom!The latest technology means that you can carry around a virtual office inyour briefcase or even your pocket. Grainne Rothery looks at what you need to get you going – and how much it will set you back

The great escape: can tenantswalk away from a lease?

The traditional view that a landlord’s failure to perform his duties under a lease does not release the tenant from

his obligations has been challenged successfully in theEnglish courts. Professor JCW Wylie reviews the relevant cases

Gazette Reader SurveyLast December we invited readers to tell us what they

really think of the magazine through our reader survey.Conal O’Boyle details the results

APRIL 1999 LAW SOCIETY GAZETTE 1

CONTENTSCONTENTS

REGULARS

President’s message 3

Viewpoint 4

Letters 11

News 12

Briefing 33

Council reports 33

Practice note 34

Committee reports 35

Legislation update 36

SBA report and accounts 37

Personal injuryjudgments 38

ILT digest 41

Eurlegal 48

People and places 51

Professional information 55

14

APRIL 1999APRIL 1999

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

Editorial Board: Dr Eamonn Hall (Chairman), Conal O’Boyle(Secretary), Mary Keane, Pat Igoe, Ken Murphy, Michael VO’Mahony, Vincent Power

Editor: Conal O’Boyle MA

Reporter: Barry O’Halloran

Designer: Nuala Redmond

Editorial Secretaries: Andrea MacDermott, Catherine Kearney

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

Printing: Turners Printing Company Ltd, Longford

Published at Blackhall Place, Dublin 7, tel: 01 672 4800, fax: 01 672 4801.E-mail: [email protected] Law Society web site: www.lawsociety.ie Subscriptions: £45 Volume 93, number 3

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PRESIDENT’S MESSAGEPRESIDENT’S MESSAGE

I had the pleasure of representing the solicitors’branch of the legal profession at the 27thmeeting of the presidents of the law societies

and bars of Europe in Vienna last month. Theissues that face the legal profession in Europe aresimilar to those that we in this country now findbefore us. The European Union and individualstate governments are justifiably concerned atthe current level of money laundering in theworld. They are determined to try to ensure thatany opportunities for the criminal activity ofmoney laundering are reduced and prevented intheir jurisdictions. This objective is supported bythe vast majority of law-abiding citizens whoobserve that money laundering is carried on bycriminals who create misery for thousands ofpeople through the sale of illegal drugs. Lawyersare supportive of the aims and objectives of theEU and national governments.

The Minister for Justice, Equality and Law Reform has indicated hisintention to designate solicitors, among other professions, under section 32of the Criminal Justice Act, 1994. The Minister’s proposal has been the sub-ject matter of correspondence between the Law Society and his department.

Current proposals both of the European Commission and the IrishGovernment are of concern to solicitors insofar as they may create a con-flict between the duty of the State to fight against the unacceptable prac-tice of money laundering on the one hand and a lawyer’s duty of confi-dentiality and of a client’s entitlement to privilege on the other. OurEuropean lawyer colleagues are equally concerned that the principle ofclient privilege and confidentiality (known in Europe as professionalsecrecy) is gradually being undermined. These principles of privilege andconfidentiality are the hallmarks and foundation stones of a free anddemocratic society.

There is a delicate balance to be struck between the rights and obliga-tions of the State to protect itself, its institutions and citizens, and an indi-vidual’s own fundamental rights as guaranteed under the IrishConstitution. The State must not, and should not, go too far. Solicitorswill seek to defend the citizen’s traditional rights and freedoms.

Continuing legal educationThe Education Committee, now charged with running continuing legaleducation for the profession, has extended the number of seminars beingheld. Many seminars are held on a regular basis in venues outside Dublin.

There is a hunger and desire in the solicitors’ branch of the legal pro-fession for regular updating seminars in areas of law that practitionersdeal with on a daily basis. I hope that you will continue to support theCLE seminars.

While the Law Society has not yet decided whether to make atten-dance at legal education seminars mandatory, it is something that must beconsidered early in the new Millennium.

Courts ServiceThe Minister for Justice, Equality and Law Reform, John O’Donoghue,in the first edition of Courts Service news, states that: ‘It is a time of

great change for the courts with the establish-ment of the Courts Service – the transitionalboard, bringing forward an independent andunified Courts Service and the fundamentalrealignment of functions within the Irish legalsystem’.

The Minister, a colleague of ours in thesolicitors’ branch of the profession, is to becommended for the dedication of himself, thestaff in his department and the Government ingeneral for the work they have done in the areaof change for the courts thus far. Much stillremains to be done.

PJ Fitzpatrick, the new Chief Executive ofthe Courts Service, and his staff are wishedevery success. The standard of court accommo-dation, to mention but one matter that will be ofconcern to the Courts Service Board, is greatlyin need of attention. The facilities are grossly

inadequate for a modern democratic society.The Minister and his colleagues at Cabinet will hopefully seek to

implement the recommendations of the Report of the working group onqualifications for appointment as judges of the High and SupremeCourts soon. These are undoubtedly exciting times for the courts andlawyers in this country.

The legal system in IrelandMrs Justice Susan Denham of the Supreme Court, psychologistMaureen Gaffney, with our colleagues, John O’Donoghue, Minister forJustice, Equality and Law Reform, Frank Lanigan from Carlow andBrendan Cooke, legal costs accountant, will be the main speakers at theannual conference of the Law Society to be held next month.

The theme of the conference is Lawyers in a changing Ireland. TheIrish legal system, despite its shortcomings, is reasonably sound,though there are blemishes and systematic issues that need to beaddressed. Discrimination, of whatever kind, whether within or out-side the legal profession, needs to be eliminated now. The solicitors’branch of the profession does embrace changes that are in the publicinterest.

Murder most foulThe murder of solicitor Rosemary Nelson in Lurgan on 15 March strikesat the very heart of the rule of law in these islands. Words cannot ade-quately express the abhorrence that all right-thinking people have for thisdastardly act. I attended her funeral in the company of the President ofthe Law Society of Northern Ireland and representatives from the lawsocieties of Scotland, England and Wales and other lawyers on theseislands, in St Peter’s Church, Lurgan, Co Armagh.

The assassination of a lawyer hits at the very core of democratic soci-ety. The inquiry into the assassination of Rosemary Nelson must be thor-ough and transparent.

Patrick O’ConnorPresident

Client privilege and confidentiality

4 LAW SOCIETY GAZETTE APRIL 1999

VIEWPOINTVIEWPOINT

The primary task of the com-mittee of independent experts

set up by the EuropeanParliament, as defined in its termsof reference, was to seek to estab-lish to what extent the EuropeanCommission as a body, orCommissioners individually, bearspecific responsibility for recentexamples of fraud, mismanage-ment or nepotism which had beenraised in the parliament. Theresult, as we all know, was themass resignation of the entire 20-member Commission.

Almost immediately, however,many of the individual commis-sioners were claiming that he orshe had not been named by thereport as being guilty of fraud ornepotism and would like to be re-appointed. The British govern-ment gave broad hints that both itscommissioners, Sir Leon Brittanand Neil Kinnock, would be re-appointed. Indeed, Brittan wastouted as a possible replacementpresident, as was the BelgianCommissioner, Karel van Meirt.

Damning indictmentWhat is the logic of this? If indi-vidual commissioners were notfound at fault by the committee ofexperts, then why did they resign?If there was a good reason toresign, then why should they bere-appointed? The answer, in myopinion, is simple. The committeefound the entire Commissionguilty of mismanagement. Thereis a damning indictment through-out the report of the failure by theCommission to comply with itscollective responsibility of effi-cient management of EuropeanUnion programmes and funds. Itfollows that the inescapable con-clusion is that this entireCommission should go. None ofthem should remain.

Let me say at the outset that Ihave the greatest regard for manyindividuals working in theCommis-sion. Lawyers in privatepractice will mostly encounterCommission officials from theCompetition Directorate-General

(DGIV) and the Legal Service.Nothing in the report even men-tions DGIV, and its hard-workingand highly-respected officials willcontinue to be regarded as the finestexample of public servants.Members of the Legal Service alsowork extremely long hours and arevery highly regarded by otherlawyers. No doubt it has causedthem grave discomfort that thereport criticises the Legal Servicefor being slow to deliver its opinionon some important and urgent mat-ters.

The report, however, is not con-cerned with fraud or incompetencewithin the Commission’s services.That will be the subject of a secondreport later in the year, although thefeeling of insecurity and distress inthe Commission’s offices duringthe week of St Patrick’s Day wastangible.

Open secret for yearsBut what has the report to say aboutthe commissioners, collectively? Ithas been an open secret for yearsthat within the Commission therehave been elements of fraud,incompetence, nepotism and cor-ruption. Each of the commissionersdenied any individual knowledgeof this. The committee of expertsretorted thus: ‘Protestations ofignorance on the part of commis-sioners concerning problems that

are often common knowledge intheir services, even up to the high-est official levels, are tantamountto an admission of a loss of controlby the political authorities over theadministration that they are sup-posedly running’.

A number of Commission pro-grammes involved a substantialfinancial commitment from theEuropean Union. Fraud becamerampant because the Commission,rather than providing proper inter-nal resources, outsourced the oper-ation of these programmes to pri-vate companies. The report foundthat ‘the Commission deservesserious criticism (as in other casesunder review) for launching a new,politically important and highlyexpensive programme without hav-ing the resources – especially staff– to do so’.

This mismatch between policyand resources is central to thereport. In this context, the reportemphatically places responsibili-ty not on individual commission-ers but on the Commission as awhole. It concluded that the com-missioners had undermined theintegrity of the European publicservice. ‘The Commission did nottry to lay down in advance howeach new policy would have to beimplemented and to make thenecessary arrangements accord-ingly. It reacted as each individ-

ual problem emerged, without aguiding philosophy and with nooverall view of the situation’.

No-one above criticismNowhere in the report does thecommittee of experts exonerateany individual commissioners asbeing above criticism. Quite theopposite, in fact: ‘The studiescarried out by the committeehave too often revealed a grow-ing reluctance among the mem-bers of the hierarchy to acknowl-edge their responsibility. It isbecoming difficult to find anyonewho has even the slightest senseof responsibility. However, thatsense of responsibility is essen-tial. It must be demonstrated,first and foremost, by the com-missioners individually and bythe Commission as a body. Thetemptation to deprive the conceptof responsibility of all substanceis a dangerous one. That conceptis the ultimate manifestation ofdemocracy’.

The only credible responsefrom the governments of theMember States is to appoint acompletely new Commission.

Conor Quigley is a barristerpractising at Brick CourtChambers, London and Brussels,specialising in European Unionlaw.

G

Why the European Commission must be completely replaced

Gone but not forgotten: the Commission which resigned en masse after experts criticised their ‘loss of control’ over their administration


VIEWPOINTVIEWPOINT

Allegations that certain Irishpoliticians acted dishonestly

have been the stuff of recentinquiries. Dishonesty may be asold as man himself, but the chargeof financial dishonesty rankles. Acharge of financial dishonestyagainst a politician who purports toserve in the public interest is one ofthe most serious in the dictionaryof unacceptable behaviour.

This note examines a casewhere the charge of dishonestywas made against politicians ingeneral and resulted in proceed-ings in the High and Supremecourts.

The Dillon caseAndrew Dillon, a prominentsolicitor, now of Kinsale, CountyCork, and a former member of theCouncil of the Law Society, stoodas a candidate in the general elec-tion of 1981 as a founding mem-ber of the Young Ireland Party. Hechose Dublin North Central, theconstituency of Charles JHaughey, then Taoiseach. Likeother duly nominated Dáil candi-dates, Dillon was entitled, free ofcharge, to send to each person onthe register of electors in the con-stituency one postal communica-tion relating to the election. Aprecondition was that the commu-nication had to be deposited inadvance with the officials of theDepartment of Posts andTelegraphs.

In the communication to theelectorate, Andrew Dillon includ-ed the words: ‘To-day’s politi-cians are dishonest because theyare being political and mustplease the largest number of peo-ple’. Officials in the Departmentof Posts and Telegraphs consid-ered that the words were of agrossly offensive character andmust be deleted. The AttorneyGeneral, Anthony Hederman SC(subsequently a judge of theSupreme Court), was consultedand agreed with the department’sviews. Dillon refused to delete thepassage, instituted legal proceed-ings against the Minister for Postsand Telegraphs seeking injunctive

relief. Harry Whelehan SC (sub-sequently Attorney General)appeared for Dillon. PaddyConnolly SC, then in failinghealth but regarded as one of thegreat constitutional lawyers of histime, appeared for the Ministerfor Posts and Telegraphs. Ellis Jof the High Court heard the case.Counsel for Dillon argued that thecontentious words, when read asa whole, were not grossly offen-sive and submitted that the pas-sage was no more than acceptablerhetoric.

Ellis J considered that hewould decide the case on mattersof law and as a juror deciding theissue as a question of fact. Ellis Jin a reserved judgment on 2 June1981 held that the word ‘dishon-est’ when applied particularly topoliticians at election time associ-ated politicians in the mind of anyfair-minded person with possiblecorruption, cheating, deceit orlack of fair dealing and manyother possible forms of wrongdo-ing, many of which would orcould be offences under the crim-inal law, and warrant prosecutionand sentence. Ellis J considered

that Dillon sought to solicit votesby discrediting the good characterof others while presumablyexcepting himself from the stig-ma of dishonesty which heattached to other politicians. Infact, Ellis J considered that it wasdifficult to think of a word morelikely to be of a grossly offensivecharacter, insult, displeasure orannoyance than the allegation ofdishonesty about politicians. TheHigh Court held the officials ofthe department were totally cor-rect in refusing to grant Dillonfree postage in the circumstances.

Rarefied atmosphereDillon appealed. Senior counselHarry Whelehan and PaddyConnolly argued their case in therarefied atmosphere of theSupreme Court before a powerfulcourt of three judges: Henchy,Griffin and Kenny JJ. TheSupreme Court heard the case onthe afternoon of 2 June 1981 (thesame day the High Court deliv-ered judgment). The SupremeCourt reserved judgment until thefollowing morning.

In a powerful judgment,

Henchy J considered: ‘Those whopractise what is often dubbed theart of the possible would not feelgrossly offended by [the expres-sion of the opinion that politiciansare dishonest] which, denigratoryand cynical though it might bethought by some, is no more thanthe small coinage of the currencyof political controversy’.

Immortal wordsIn words that deserve to be immor-talised, he continued: ‘Some of themost revered and successful politi-cians who have lived have failed,at least in the eyes of reputable his-torians, to align great political acu-men and success with moral orintellectual honesty. A charge ofdishonesty is one that rarely pene-trates the epidermis of any sea-soned politician’.

Griffin J and Kenny J, in sepa-rate judgments, agreed withHenchy J. Kenny J in his judg-ment noted that the main item onthe RTE news bulletin on theevening of the hearing was thatGarrett FitzGerald, then leader ofthe Opposition, had said it was‘dishonest’ of the TaoiseachCharles Haughey to refuse tomeet him in a face-to-face con-frontation on television.

Dillon won in the courts, con-tributed to our jurisprudence butlost in the general election, to theextent, at least, that he failed toget elected. (Unfortunately, thewritten judgments of the variousjudges have not been formallyreported in any series of reports.)

The tendency for anyone writ-ing on the topic of dishonestpoliticians is to preach on thevirtues of honesty. While resistingthe temptation to preach, allega-tions of financial dishonesty onthe part of politicians, or anyoneelse, are regarded with grave seri-ousness. In relation to intellectualdishonesty, well, few can claim tobe intellectually honest at alltimes. Let us be careful aboutcasting the first stone!

Dr Eamonn Hall is Chief legalOfficer with Telecom Éireann plc.

G

Dishonest politicians

‘A charge of dishonesty rarely penetrates the epidermis of seasoned politicians’


VIEWPOINTVIEWPOINT

There is a very strong connectionbetween the status of a lan-

guage and people’s inclination toadopt it.

The use of Irish in public life andofficial business is very much anexception and a rarity, even in theGaeltacht. The exclusive use ofEnglish is acquiesced to in the Stateand the semi-State sectors, in busi-ness, by the churches, in educationand training, in the administrationof justice, and in public life in gen-eral on the grounds that such acqui-escence is ‘practical’. This wouldseem to have more to do with peo-ple’s laziness and reluctance tobreak with the tradition of ‘anglo-conformity’ in public life than withpracticality.

The most obvious result of theeffective exclusion of Irish frompublic life over the past centurieshas been the decline of the languagehistorically, and more recently thelack of any significant revival.

Until the use of Irish in publiclife is normalised, until Irish againbecomes a ‘dialect of power’, Irishspeakers will have little reason totransmit the language to their chil-dren and non-Irish speakers willhave little reason to adopt it.

Anglophone StateTo that end a Language Act is need-ed to vindicate and defend therights of Irish-speaking people toconduct public and official businessthrough their own language.

It is not satisfactory that Irish-speaking people are treated asexceptions to the norm within ananglophone State for an anglo-phone people. Parity of esteem witha generosity of spirit is required.

The position of the Irish lan-guage in the administration of jus-tice was deduced by O’Hanlon J inAn Stát (Mac Fhearraigh) v MacGamhnia (High Court, unreported,1 July 1983). When a court or tri-bunal is seized of a case affectingthe personal or property rights ofthe parties before it, each party hasthe constitutional right to conducthis or her own side of the case

through the medium of Irish – bysubmission, giving evidence, orexamining witnesses. If the otherparty’s Irish is insufficient, aninterpreter must be appointed.

However, the party that choosesIrish hasn’t the right that the deci-sion-makers – judge, jury or tri-bunal – understand Irish, even ifthe hearing is conducted in theGaeltacht (Ó Monacháin v AnTaoiseach [1986] ILRM 660, MacCárthaigh v Éire, Supreme Court,unreported, 15 July 1998). It isworth pointing out here that theruling of the Supreme Court inMac Cárthaigh that an Irish-speak-ing jury would be unrepresentativeand therefore unconstitutional isbased on a disputed conclusion offact and may well be reversed atsome future point, perhaps even asthe result of a referral under article26 of the Constitution.

This, of course, prejudices therights of the person who wishes touse Irish. Those who determinelaw and fact cannot fully compre-hend the submissions or evidence,hearing them second-hand throughan interpreter. Much worse, they

may feel that he or she is beingtroublesome. This acts as duress topressurise the Irish-speaking citi-zen to ‘conform’ and use English,further narrowing the areas of lifein which Irish may be used.

Bilingual justiceAs the Government here puts thefinishing touches to its forthcom-ing Language Act, perhaps it mightbe useful to take a look at howanother country – Canada – hasdealt with bilingualism in the con-text of the administration of justiceand to see if there are any lessonsthat we could learn.

Under Canada’s OfficialLanguages Act (Canada) 1988,civil proceedings in the Canadianfederal courts must ensure thatanyone can conduct their side ofthe proceedings in the official lan-guage of their choice and, whengiving evidence, not be placed at adisadvantage by not being heard inthe other official language.Simultaneous translation must beprovided on request of any partyand may also be provided wherethe court believes that a matter of

public interest is being discussed.In addition:● Every federal court (except the

Supreme Court) must ensurethat the judges or other officerswho hear the proceedings aresufficiently proficient in theofficial languages used (English,French or both) to understandthose proceedings without theassistance of an interpreter. It istaken for granted that CanadianSupreme Court justices mustbecome fully bilingual

● When the Federal Governmentor a federal institution is a party,it uses the official language cho-sen by the other parties in oraland written pleadings, providedthat the other parties give rea-sonable notice of this

● Final decisions of federal courtsare generally made availablesimultaneously in both lan-guages where both languagesare used in the proceedings orwhere the decision determines aquestion of law of general publicinterest. Exceptions to simul-taneity are permitted (for exam-ple, where the delay of transla-tion would lead to prejudice) butthe second-language versionmust follow as soon as possible.

In criminal proceedings, theaccused (or his counsel) and all wit-nesses may use either official lan-guage for all purposes. The courthas the duty to make interpretersavailable to help them. In addition:● The accused has the right that the

judge (and jury) speak in theofficial language of his choiceprovided he gives reasonablenotice of this, and that the prose-cutor speaks in the official lan-guage of his preference (exceptin the case of a private prosecu-tion)

● The record of the preliminaryinvestigation and trial includes atranscript of everything that wassaid in the official language inwhich it was said, as well as thetranscript of any interpretationinto the other official language

The use of Irish in the courts: can we learn from Canada?

Having it both ways: primary documents and decisions are automatically available in Canada’s two official languages


VIEWPOINTVIEWPOINT

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and the documentary evidence inthe official language in which itwas furnished

● The court makes available anywritten judgment, including anyreasons given, in the official lan-guage of the accused’s prefer-ence. It may also make it avail-able in the other official lan-guage.

All rules, orders and regulationswhich regulate the practice and pro-cedure of Canada’s federal courtsmust be drafted and published inboth official languages. The rules ofthe Irish superior courts were onlypublished in an Irish version on footof litigation (Delap v An tAire Dlíagus Cirt, Éire agus an tArd-Aighne, High Court, unreported, 13July 1990), and an Irish version ofthe appendices (the precedents) hasyet to be published, even thoughthey are an integral part of the rules.

The dearth of pre-printed legalforms in an Irish version is easilyremedied. All preprinted legalforms should be dual-language(Irish/English), both versions ofequal size. If liberty is given to pub-

lish preprinted legal forms inEnglish only and in Irish only, theIrish versions will not be printed,distributed nor received given theevidence of recent history. Dual lan-guage forms are the norm inCanada.

Absolute rightThe right of citizens to translationsof proceedings which are served onthem is very narrow in this jurisdic-tion at present. Gaeltacht residentshave the right to an Irish translationof a limited range of documentsrelating to proceedings in the supe-rior courts and the Circuit Courtand served personally on them inEnglish. But there is no practicalreason why citizens should not havean absolute right to translations, inthe official language of their prefer-ence, of proceedings which areserved on them, given the probablelow volume of such requests.

Comhdháil Náisiúnta na Gaeilgehas proposed (in Toward aLanguage Act: a discussion docu-ment) that the Gaeltacht be desig-nated as a specific District Courtand Circuit Court jurisdiction

administered through Irish, withthe provision of translation facili-ties for those who prefer to dealwith court services throughEnglish. Normalising the use ofIrish within one judicial ‘domain’would effectively ‘legitimise’ theuse of Irish in all judicial domainsby acting as a normative model.

An Chomhdháil proposes thatwhen a case in the higher courtsrefers to the Gaeltacht or to its res-idents, arrangements should auto-matically be put in place to ensurethat the case can be administeredand heard through Irish without the

parties having to demand thatright. It also recommends that, asin Canada, all citizens are madeaware of their linguistic rightsbefore the courts and that thearrangements to ensure that legalpractitioners can carry out theirduties through Irish (and thoserelating to legal terminology inIrish) be reviewed.

Irish court reports are as nearanglophone as makes no differ-ence. Canadian federal courtreports are dual language (Englishand French). This dearth of prima-ry legal material in Irish leaveseven the most competent and flu-ent practitioner at a disadvantagewhen it comes to legal argumentin the first official language.

Are we ready to take thesesteps, or are we to continue withour (unofficial) policy of ‘anglo-conformity’?

Dáithí Mac Cárthaigh is a prac-tising barrister and editor of I dTreo Deilbhcháipéise d’AchtTeanga Éireannach (Toward aLanguage Act for Ireland),Coiscéim, 1998.

G

Dumb and dumber

Letters

From: Michael Farrell, Michael EHanahoe & Company, Dublin

The murder of Lurgan solicitorRosemary Nelson not only

took her life and deprived herhusband and three young chil-dren of a loving wife and mother,but it also struck a deadly blow atthe whole system of justice andthe rule of law. Ms Nelsondefended her clients to the best ofher considerable ability, which is

From Jim Dennison, Limerick

Irecently received a list of closing

documents from a practice in

Dublin. One of the requested clos-

ing documents was in relation to a

right of way and what was request-

ed was a ‘statutory declaration from

Mr X to the effect, seeing that his

predecessors in title abused this

right of way for more than 20 years’.

I hope the solicitor will be satis-

fied with a declaration from Mr X

stating that his predecessors in title

have used the right of way for

more than 20 years.

From: Colette Bryson, O’Scanaill &

Co, Co Dublin

While acting for a lady who

sustained injuries in a road

traffic accident as a passenger in

the back of an ambulance, I

received a medical report which

stated the following: ‘on impact,

she was thrown to the ground and

her but impacted against the

stretcher. She was shocked and

unable to get up’.

Jim Dennison wins the bottle of cham-pagne this month.

A bottle of the finest champagne willgo to the reader who sends in thefunniest contribution to Dumb anddumber each month.

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

Editor, Law SocietyGazette, Blackhall

Place, Dublin 7, or youcan fax us on 01 6724801, or e-mail us [email protected]

From: Chris Ryan, Dublin

The recent controversy betweena leading senior counsel and

Mr Justice Flood in the FloodTribunal has prompted me to putpen to paper in relation to the rela-tionship that exists between barris-ters and members of the judiciary.

I believe the relationshipbetween judges and the LawLibrary has always been a matterof unease to the public, and Ibelieve also to solicitors. I believethe Bar sees the judges as membersof its profession who are nowjudges, and the judges seem to seethemselves as men who have beenelevated to the ranks of the judicia-ry but who are still members of theBar. I am sure many solicitors haveseen judges, both of the CircuitCourt and the High Court, strollinginto the Law Library without hin-drance during the court sittings.

I believe that there should be adistinction and a clear demarcationbetween practising lawyers andmembers of the judiciary, and thatjudges should not be seen simplyas members of the Bar who are notpractising at present.

The relationship between judgesand the Bar has been brought tolight recently during the disputebetween the chairman of the FloodTribunal and one of the leadingbarristers. No doubt we all heardthe comments of the Bar Council tothe effect that it was prepared tobecome involved to see if it couldresolve the matter between the bar-rister and the judge. It seems to methat the relationship, as seen by theBar, was that there was a disputebetween two senior members of theBar, rather than a barrister and ajudge.

I believe that the Bar has no partto play in any discussions with thejudge, as he is totally independent.

I also believe that it is not onlymembers of the Bar who get thesituation confused, and that some

Murders of Rosemary Nelson andPat Finucane

Judiciary and the Bar: too close for comfort?of the judges still see themselvesas members of the Bar. I am suremany solicitors have experiencedthe situation where, in the middleof a case, the judge asks both bar-risters to come into his chambersto discuss matters with them. Ibelieve that the judges see them-selves as members of the Bar and

that they are discussing the prob-lems with existing members of theBar. I believe that the demarcationand the separation of judges andlawyers should be much clearerand that judges should not be seenas members of the Bar or membersof the Law Society.

By the same token, I do not

believe that solicitors who are ele-vated to the ranks of judges shouldbe encouraged to mix freely witheither the Law Society or solicitorsduring the court sittings.

The separation of the judiciaryfrom practising lawyers should beencouraged by all practisinglawyers.

what we are all supposed to do.As a result, she received frequentthreats, even from members ofthe security forces, and she ulti-mately paid for her dedication toher clients with her life.

If lawyers can be murderedwith impunity for doing theirjob, we are only a few steps frombarbarism. If there are suspicionsthat elements in the securityforces have colluded in the

killing, we are even closer to theabyss.

Unfortunately, this was notthe first such murder in NorthernIreland. Just over ten years ago,Pat Finucane, another prominentand talented young solicitor, wasmurdered in very similar cir-cumstances and after similarthreats. To restore any confi-dence in the rule of law inNorthern Ireland, there must bea fully independent judicialinquiry into all the circum-stances surrounding the murdersof Rosemary Nelson and PatFinucane.

Last month Amnesty Inter-national, the InternationalCommission of Jurists and over1,200 lawyers in NorthernIreland, the Republic and furtherafield called for an inquiry intoPat Finucane’s murder. The LawSociety of England and Walesand the bar councils in NorthernIreland and the Republic backedthis call, but the law societies inthe Republic and NorthernIreland did not.

Surely the professional bodiesrepresenting solicitors should bethe first to come to their mem-bers’ defence when they areattacked for doing their job? Ihope the Law Society will nowsupport the call for an indepen-dent inquiry into both murders.


VIEWPOINTVIEWPOINT


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BRIEFLYLawyers invited to join corporate gamesLawyers are being invited to tog

out and join the UK and Ireland

Corporate Games in Limerick next

June. The games will be the

largest multi-sport event ever to

be held in this country, and the

organisers have pledged a week-

end of business, sport and

tourism. There are 20 sports on

the programme, including six-a-

side soccer, tennis, a triathlon and

dragon-boat racing. Small and

large organisations can take part,

while teams can include employ-

ees, family members, colleagues

and even clients. All events are

open equally to men and women.

The money raised will go to vari-

ous charities, including Cerebral

Palsy Ireland. For more informa-

tion, contact the games’ head

office at 0044 1733 380888.

Finance Bill ‘fails to tacklepension fund risks’This year’s Finance Bill fails to

deal with the risk that pension

funds could run out during a pen-

sioner’s lifetime, the Irish

Insurance Federation warns in its

latest newsletter. The IIF says it is

concerned at the lack of safe-

guards in the section of the legis-

lation which changes the rules

governing pension funds. ‘Given

the small size of the approved

minimum retirement fund –

£50,000 – and the fact that it can

be encashed at age 75, there is a

real danger that retirement funds

could run out during the pension-

er’s lifetime. This Finance Bill fails

to address this concern’, it says.

There are growing fears inNorthern Ireland for lawyers’

safety following the brutal murderof solicitor Rosemary Nelson byloyalist paramilitaries last month.The personal safety of members –particularly criminal practitioners– was one of several issues raisedby the Northern Ireland LawSociety with RUC Chief Const-able Ronnie Flanagan in the wakeof the car-bomb attack.

‘An attack of this typeinevitably gives rise to a height-ened degree of concern within thelegal community’, NorthernIreland Law Society ChiefExecutive John Bailie told theGazette. He added that all theimplications of the attack, includ-ing that of lawyers’ personal safe-ty, were raised with Flanagan dur-ing talks held in the immediateaftermath of the murder.

Because their work mainly

Nelson murder sparks fearsfor NI lawyers’ safety

quently threatened and have totake extra precautions to protecttheir lives and safety.

But Bailie stressed that hismembers would continue to servetheir clients in spite of this. ‘Noneof these concerns will dilute theabsolute commitment of ourmembers to the rule of law andwill strengthen their determina-tion to carry out their profession-al responsibilities’, he said.

The Lurgan-based solicitor’smurder was condemned by theLaw Society of Ireland. PresidentPat O’Connor described herkilling as a ‘mindless attack ondemocracy’. ‘It was not only atragedy for Rosemary Nelson andher family, it was also a tragic dayfor democracy. She was targetedfor defending her clients to thebest of her ability, and for hercommitment to her duty as alawyer and to the rule of law’.

involves dealing with paramili-taries, criminal defence lawyers areconsidered to be an at-risk group inNorthern Ireland. Like RosemaryNelson and Pat Finucane, who wasmurdered by loyalists ten years agothis year, many of them are fre-

Arthur Cox tops the league ofIrish law firms, according to

a European survey of corporatepractices. The European Counsel3000 study ‘highly recommends’the Dublin firm in 13 areas ofpractice, ranging from bankingand corporate finance to litiga-tion and tax.

The European Counsel 3000survey is used by in-house corpo-rate lawyers to gauge potentiallegal advisors. Using a range ofkey specialities, the survey

Arthur Cox tops law firm leaguegrades the performance of indi-vidual firms under each headingas either ‘highly recommended’or ‘strong area of practice’. Theheadings are banking, corporatefinance, mergers and acquisi-tions, insolvency, employment,pensions, intellectual property,IT, product liability, commercialproperty, environment, advertis-ing, agency, general contracts,arbitration, litigation, tax, andEU/competition.

Apart from Arthur Cox, big

firms such as McCann Fitzgerald,A&L Goodbody, MathesonOrmsby Prentice, and William Frywere highly rated by the survey.The study does not limit itselfstrictly to the Pale. Cork firmsRonan Daly Jermyn, PJO’Driscoll, O’Flynn Exhams andGJ Moloney are all featured.Similarly, Limerick practicesSweeney McGann and HolmesO’Malley Sexton earn mentions,as does Waterford-based KenneyStephenson Chapman.

Rosemary Nelson: her murder hasincreased fears for lawyers’ safety

in Northern Ireland


NEWSNEWS

Compensation Fund payoutsThe following claim amounts were admitted by the Compensation Fund

Committee and approved for payment by the Council at its meeting in

March: Conor McGahon, 19 Jocelyn Street, Dundalk, Co Louth – £4,523.77;

Dermot Kavanagh, 2 Mary Street, New Ross, Co Wexford – £155.

BRIEFLYLand and deeds registries to go semi-StateThe Land Registry and Registry of

Deeds will be converted to semi-

State commercial bodies by the

end of the year. According to

Justice Minister John O’Dono-

ghue, the necessary legislation is

now being prepared and there

are plans to discuss personnel and

industrial issues with the staff in

both offices. The Minister said

that the plan to convert both reg-

istries to semi-State bodies was in

line with plans laid out in the

Government’s strategic manage-

ment initiative. He added that the

conversion would aid the reg-

istries in delivering and develop-

ing their services.

IBA legal practice conferenceThe International Bar Associa-

tion’s section on legal practice will

hold its 25th anniversary confer-

ence in the prestigious Harvard

Law School in Boston,

Massachussets, USA, from 1 to 4

June next. The programme fea-

tures a wide range of subjects,

including areas such as environ-

mental law, land law, human

rights and practice issues. Medical

law, family law, tax law, public

law and practice management

and technology will be discussed

at various meetings and sub-com-

mittees. For more information,

contact the IBA (tel: 0044 171

6291206).

In-house lawyers told to get toughIn-house lawyers were warned

recently to get tough on private

practitioners who do not submit

sufficiently detailed bills.

Delegates at this year’s

International Company Lawyer’s

Conference in Madrid were told

by one speaker, GE Medical gen-

eral counsel Jean Claude Najor, to

refuse to pay bills that were not

fully itemised. He added that his

company – a division of General

Electric – insists on negotiating

fees before outside firms start

work, and also demands that they

fill out detailed forms, dealing

with every stage in a deal.

The Law Society should con-sider establishing a system of

reprimands for members who areguilty of undue delay and poorcommunication with their clients,according to the Society’sIndependent Adjudicator, EamonCondon. In his first annual report,Condon suggests that a reprimandsystem could cover cases that didnot necessarily warrant referral tothe Disciplinary Tribunal.

He also recommends that theSociety should issue a code ofconduct on client care for mem-bers and run practice managementcourses for solicitors who findthemselves carpeted by theRegistrar’s Committee.

But Condon also praises thework of the Society’s ProfessionalPractice Directorate, which han-dles complaints on a day-to-daybasis. In his report, he stressesthat the directorate staff, led bysolicitor Linda Kirwan, take aprofessional approach to theirresponsibilities. ‘Their responsi-bility is to ensure the day-to-dayadministration of the unit is per-formed to a high standard and Iam satisfied that this is beingachieved – notwithstanding the

New ‘reprimand system’ forerrant solicitors urged

volume of work’, his report says. The biggest single cause for

concern, he adds, continues to bepoor communications betweensolicitors and their clients, andbetween solicitor colleagues.

Condon reviewed 59 cases dur-ing his first year in office. Ofthese, two were re-submitted tothe Registrar’s Committee, andone of these two cases was ulti-mately referred to the DisciplinaryTribunal of the High Court.Inadequate professional servicewas at the root of 25 of com-

plaints, while 19 related to miscon-duct and 15 to excessive fees.

The office of the IndependentAdjudicator was established in1997 to provide an independentforum to which members of thepublic can apply if they are notsatisfied with the way in whichthe Law Society has dealt with acomplaint made against a solici-tor. His role is to ensure that theSociety handles such complaintsfairly and impartially, and to rec-ommend changes he feels areneeded to maintain the higheststandards.

Commenting on the Adjudic-ator’s first-ever report, Law SocietyDirector General Ken Murphy said:‘We are happy that Mr Condon’sreport highlights the excellent workcarried out by the Society. We haverecently conducted a root andbranch review of our complaintsprocedures, and the general publiccan rest assured that we thoroughlyinvestigate every single complaintmade against members of the pro-fession. Where we find any evi-dence of unprofessional conduct,we act firmly and decisively. TheAdjudicator’s report proves the sys-tem works’.

Astaff shortage causing seri-ous delays in the Wards of

Court office is set to be tackled.Last month, the Gazette (page 15)revealed that beneficiaries underward-of-court estates were losingout because the staff shortage leftthe office unable to deal with dis-missal orders. These orders areneeded to allow solicitors to fin-ish administering estates.

But Assistant RegistrarMichael Moriarty confirmed thismonth that management plans toincrease overall staff numbers inthe office. ‘It is intended that peo-ple who have left will be replacedand we will be hiring extra staffas well, so that means that num-bers will be increased’, he said.

Moriarty acknowledged that

Wards of Court office to tackle delaysdismissal order processing hadbeen badly hit, but said it was themost obvious symptom of the cri-sis caused by the labour shortage.‘We have to keep dealing withapplications for wardship alongwith a lot of other day-to-day dif-ficulties. Pretty much everythinghas been hit because the staff situ-ation is so extreme, but the delayswith dismissal orders have verymuch highlighted the problem’,he said.

Last month Law SocietyPresident Pat O’Connor saidhundreds of beneficiaries werelosing out on their entitlementsbecause of the delays in process-ing the dismissal orders. Hewarned that the problem couldland the State in court. O’Connorwrote to Justice Minister JohnO’Donoghue last month high-lighting the problem and warninghim about its possible conse-quences.

Eamon Condon: Law Society has ’professional approach’ to

handling complaints


Up until recently, the way our courts dealt with drunken dri-ving cases – from the procedures for stopping vehiclesand breathalysing their drivers, the provision of blood orurine samples, through to conviction or acquittal in court– was firmly rooted in strict compliance with the law as

enacted by the legislature and set out in the relevant statutes. In a dissenting judgment in the case of DPP v Kemmy (1980),

O’Higgins CJ stated: ‘Where a statute provides for a particular form ofproof or evidence in compliance with certain statutory provisions, in myview it is essential that the precise statutory provisions be complied with.The courts cannot accept something other than that which is laid downby the statute or overlook the absence of what the statute requires. To doso would be to trespass into the legislative field. This applies to all statu-tory requirements but it applies with greater general understanding topenal statutes which create particular offences and then provide a par-ticular method for their proof’. In the High Court case of DPP v Fanagan(unreported judgment in December 1991), Denham J said: ‘The statuteshould be interpreted reasonably but strictly, as it is a penal statute andas it affects the fundamental rights of the person’.

The judgments in these cases and all of the intervening court determi-nations had their ratio decidendi (the reason for a judicial decision) in therights of the individual as provided for in the Constitution and interpret-ed in judicial decisions of the superior courts. Among other things, thesedecisions embraced the constitutional rights to free movement and pas-sage (Ferguson v O’Gorman [1937 IR]), the constitutional right of liber-ty, the constitutional right to bodily integrity, the constitutional right ofinviolability of the dwelling, and the constitutional right to fair proce-dures. Many of these have to a lesser or greater extent been restricted orimpinged upon by the Road Traffic Acts and on the basis of the greaterinterest of the common good.

A number of recent Supreme Courtjudgments seem to suggest a significantchange in the way the highest court inthe land is interpreting and applyinglegislation, particularly the drunken driving provisions of the Road Traffic

Acts. Gerard Gannon reviews somerecent judicial decisions and asks

whether the Supreme Court is rewriting the rules

DrunkenDrunken


Is the SupremeCourt rewriting

the rules?

n driving:n driving:COVER STORY


The interference with these rights of the individual have been autho-rised by the enactment of legislation by Dáil Éireann. Nobody would dis-agree with the concern of the legislative authority for the common good,but when the legislative authority passes laws which impinge on orrestrict the constitutional right of the individual – and particularly wherea breach of these provisions results in criminal sanctions and penalties –then it is entirely reasonable that these constitutional rights should berestrained or interfered with only to the strict limit and in the strict cir-cumstances which the legislative authority provided.

The legislative authority has available to it the skills and expertise todraft the legislation it considers appropriate and, having done so, it is rea-sonable to argue that only the provisions of (and procedures contained in)the legislation and regulations are authorised. As Chief Justice O’Higginssaid: ‘[to] accept something other than that which is laid down by statuteor overlook the absence of what the statute requires is a trespass into thelegislative field. If, in the course of time, an inadequacy appears from thelegislation in that an end intended or now desired has not been providedfor, then the legislative body has the authority to amend, extend or repelany legislative provision which is not achieving the end desired by thelegislature’.

The ratio decidendi (that is, the building bricks) on which this princi-pled approach to judicial interpretation and decision had evolved appearsfrom recent superior court decisions not only to have been arrested but,in fact, replaced. Supreme Court decisions in a number of recent casesseem to support the view of a sea-change in the basis on which judgmentsare now to be reached. While this approach appears to pervade allSupreme Court decisions, whether in civil or criminal matters, it is mostclearly apparent from the following recent judgments. These seem to beat odds with the legal principle of stare decisis (the doctrine which saysthat previous judicial decisions must be followed).

DPP v Colman McNeillTake the following case, for example. On 22 July 1998, the SupremeCourt delivered judgment in the case of DPP v Colman McNeill. Amongother things, the defendant was charged with driving with excess alcoholon 15 January 1996. While application for the issue of summons wasmade on 10 April 1996 (within six months, and in compliance with sub-section 4, section 10, of the Petty Sessions Ireland Act 1851), the issue –through no fault of the defendant – did not come before the court until 18February 1997. The district judge, adopting decisions of the superiorcourts, held that such a delay breached the constitutional right of thedefendant to a speedy trial and dismissed the charge. At the prosecution’srequest, he stated a case for the opinion of the High Court as to whetherhe was correct in holding that the delay was excessive and that the con-stitutional right of the defendant to fair procedures and a speedy trial wasimpinged. The High Court judge agreed, and said: ‘While there is noexpressed declaration in the Constitution of an entitlement of an accusedperson to a speedy trial, nevertheless it is now taken as a requirement ofhaving a trial in due course of law in accordance with article 38, section1, of the Constitution that a trial should be brought on with reasonableexpedition’.

The prosecution appealed to the Supreme Court, which reversed thedecisions of the District and High Court judges, saying: ‘Courts of lawexist to do justice between the parties and not to act as disciplinary tri-bunals over the conduct of litigation’. While holding that the delay didnot impinge on the constitutional rights and protection of the individ-ual, the Supreme Court added: ‘There is a solemn responsibility on any-one having anything to do with prosecuting a case to make sure thatthey are brought to court with all due expedition’. And it further com-mented that: ‘It is most likely that the learned District Court judge andlearned High Court judge allowed themselves to be over-influenced bywhat they both regarded as a degree of ineptitude in relation to “theprosecution”’.

DPP (at the Suit of Garda Anthony O’Driscoll v NoelO’Connor)Two more recent decisions illustrate the point further. In DPP (at theSuit of Garda Anthony O’Driscoll v Noel O’Connor), District JudgeMangan had held that a defendant arrested under section 49 of the RoadTraffic Act, 1961, who had been required to provide a sample of bloodor urine and had opted for the latter, was not allowed to exercise hisstatutory choice. The prosecution accepted that he had made every rea-sonable effort to do so but because the designated doctor was underexternal pressure and could not be delayed the defendant opted to pro-vide a blood specimen. The District Court held that the defendant hadbeen deprived of his statutory choice to provide a sample of blood orurine. On a case stated at the request of the prosecution, Geoghegan Jin the High Court found that the district judge could not be said to havefallen into any error in point of law. He added that he could not possi-bly say that the view taken by the district judge ‘was not open for himto take, and still less could I say that such a view was in anyway perverse having regard to these surrounding fac-tors so that there was no question of law to bedetermined by the High Court’. In effect,Geoghegan J affirmed the judgment ofDistrict Judge Mangan. On appeal tothe Supreme Court, this finding wasreversed. The full Supreme Courtjudgment is awaited.

DPP (at the Suit ofGarda K Trainer vJenny Lennon)In DPP (at the Suit ofGarda K Trainer v JennyLennon), the femaledefendant had beenarrested under section 49of the Road Traffic Actand was taken to a gardastation. She was required toprovide a sample of bloodor urine and opted for the lat-ter. There was no female mem-ber of the Gardaí available, andthe facility for the defendant was‘a toilet in a cubicle in the left rearportion of a room. There was a door inthe front of the cubicle, with a division atthe bottom and also on the top between theceiling’. When the defendant saw the facilities, shefelt inhibited from providing a urine sample and was there-fore required to provide a blood sample. The district judge viewed thefacility and concluded that the defendant’s privacy had not been ade-quately respected, especially since there had been no female gardaavailable. The judge held that in those circumstances her statutorychoice to provide a blood or urine sample was not granted, and theprosecution was dismissed.

Again on application of the prosecution for case stated, the mattercame before Morris P who held that: ‘It is clear that the respondent couldnot provide a sample and, in the circumstances, in my view it must followthat she was deprived of the opportunity to exercise her option and, in thecircumstances, evidence harvested as a result of the blood sample wasimproperly obtained and in violation of her statutory rights’. The districtjudge’s decision to dismiss the prosecution was affirmed. On the matterrecently coming before the Supreme Court, both decisions were reversed.Judgment is awaited.


COVER STORYCOVER STORY

The Supreme Court appears to have set its mind, wherever possible,against ‘technical points’ and very often ‘specious technical points’ aswas stated by O’Flaherty J in the Supreme Court in DPP v ColmanMcNeill.

DPP (at the Suit of Garda John Ivers v Angela Murphy)These developments are not solely confined to drunken driving cases.For example, in DPP (at the Suit of Garda John Ivers v Angela Murphy),the ratio decidendi of interpretation of statutes appears to have been sig-nificantly watered down. The case arose out of the construction of sec-tion 6(1) of the Criminal Justice Miscellaneous Provisions Act, 1997which was to the effect that evidence of arrest, charge and caution couldbe given to the District Court under certificate signed by a member of theGarda Síochana. The wording in the section specified that it applied to aperson ‘who has been arrested otherwise than under warrant’. The certi-fication did not specify that the defendant had been arrested otherwise

than under warrant and it was submitted for the defendant thatthis provision amounted to a condition precedent to the

admissibility of the certification procedures. The prosecution’s main argument was that, if

that were so, then the section would berobbed of its effectiveness on the basis

that its purpose was to avoid thearresting garda having to give evi-

dence in court. If he wasrequired to give evidence that

the person was arrested oth-erwise than under warrant,the objective of the sectionwould be defeated.Following the ratio deci-dendi of numerous previ-ous decisions and judicialprecedent, McCracken Jin the High Court held thatthe primary rule in con-

structing a section of anystatute is that the court must

interpret the statute in accor-dance with the plain and ordi-

nary meaning of the words usedin it. The legislature in its wisdom

or otherwise had decided that the cer-tification evidence in relation to arrest

should apply only where the accused wasarrested otherwise than under warrant. If the

accused was arrested under a warrant, then the cer-tificate did not apply. The certificate did not state that the

accused had been arrested otherwise than under warrant, and, indeed,even if the certificate did state that, it was not a matter which had beencatered for by the section.

McCracken J held that the section was clear and unambiguous and wasa condition precedent to the admissibility of the evidence. In the courseof his judgment, he said: ‘I would accept that the legislature probably didnot intend that evidence of the nature of the arrest would have to be givenbut I cannot construe a statute which is quite clear in its wording inaccordance with what I might perceive as the intention of the legislature.I must give the words their normal meaning. It would have been very easyto have avoided the problem, for example, by providing at paragraph Ain the sub-section that the member “arrested that person otherwise thanunder warrant for specified offence”’. I do not think that it is open to meto add those words to the section, which, in effect, is what the prosecu-tion is asking me to do’.

On appeal to the Supreme Court, McCracken J’s approach, whichhad its roots in volumes of judicial precedent, was totally reversed. Inthe course of the Supreme Court judgment, O’Flaherty J stated: ‘Itneeds to be said that we are here dealing with a purely procedural mat-ter antecedent to the holding of any trial. Therefore, the matters of bur-den of proof and so forth are of little or no relevance to the issue indebate’. He also said: ‘The district judge is entitled to assume that per-sons in authority will act in accordance with what is required to bedone by them in obeying the law and that they would not think of bring-ing a person before the court under the procedure in debate if there isin existence to their knowledge an unexecuted warrant’. And he added:‘While it is so that in general a party wishing to establish a fact consti-tuting a condition precedent to the admissibility of any item of evidencebears the burden of establishing that fact, nonetheless that is more per-tinent to matters to be established in the course of a trial rather thanprocedural matters’.

Denham J, in the course of her judgment, quoted the principle of inter-pretation in the case of R v Judge of the City of London Court to the effectthat if the words of an Act are clear, you must follow them – even if theylead to manifest absurdity.

She said: ‘This was described as the golden rule of interpretation. Inrecent times, however, a very different approach is being adopted andcalled the “purposive approach” as enunciated in the case of Pepper vHarte ([1993] 1 All English Reports) and wherein Lord Griffiths stated:“The days have long passed when the courts adopted a strict construc-tionist view of interpretation which required them to adopt the literalmeaning of the language”. The courts now adopt a purposive approachwhich seeks to give effect to the purpose of the legislation. On the basisthat the purpose of the legislation was to dispense with the attendance ofthe guard to give oral evidence of arrest, charge and caution, the sectionwould be rendered absurd if the same guard was required to give evi-dence that it was not an arrest by warrant’.

So on the basis of the purposive approach, Denham J held that the sec-tion did not require the guard to attend and that the effect of the provisionin section 6(1) concerning ‘arrested otherwise than under warrant’ canbe ignored or deemed not to be part of the section.

The effect of the decision in DPP (Ivers v Murphy) is markedly atvariance with – indeed, if not in conflict with – the approach ofO’Higgins CJ, and his words in the case of DPP v Kemmy quoted above.The replacement of such strict rules, with all the certainty that resultedfrom them, with the uncertainty of ‘the purposive approach’ creates con-siderable difficulties for lawyers.

A moveable feastAre we in danger of reaching a situation where judicial interpretation andjudicial precedent are to be replaced by a new concept to the effect thatthe end justifies the means? ‘The end’ is, of course, a totally abstract con-cept, a moveable feast. What may be one person’s ‘desired end’ will fre-quently (if not universally) be to another’s disadvantage. Who is to saywhich is fair? Surely those alleged to have broken the law are entitled toclaim that the law should be stated clearly at the time of the allegedbreach.

This development seems to be in conflict with the views expressed byMr Justice O’Flaherty in his paper Restraining government: the judic-iary and the executive, which he delivered to the Australian BarAssociation: ‘At the root of separation of power is Acton’s dictum thatpower tends to corrupt and absolute power corrupts absolutely. Thequintessence of the separation of power is the existence of branches ofgovernment which are sufficiently independent of one another to act ascounter-weights controlling each other’.

F Gerard M Gannon is the principal in the solicitors’ firm ClaffeyGannon & Company of Castlerea, Co Roscommon.

G


The 1990s began with the physicalmove by banks into theInternational Financial ServicesCentre beside the 1790s construc-tion of the Custom House. The con-

tinuing stream of new arrivals and activity in theIFSC has been greatly helped by the completionof numerous double-tax treaties between Irelandand other jurisdictions.

One of the beneficial impacts which the IFSChas had on banking law here is the reduction instamp duty for borrowers. In 1990, stamp dutywas payable on security for borrowers at the rateof one-eighth of 1% (of the principal amountsecured) – not apparently a significant amountbut nonetheless a real cost of borrowing. Thiswas reduced to one-tenth of 1%, subject to a capof £500, and when it became clear that this costwould affect the continued existence of someIFSC companies, the ad valorem rate was abol-ished for loan agreements and guarantees (stampduty has been abolished also for releases and dis-charges).

Court protection 1990 will be most remembered, though, for Iraq’sinvasion of Kuwait. Its impact on Ireland wasthat one of this country’s largest corporate con-glomerates ran into financial difficulties due to itsfinancial exposure to Iraq (one of its principalcustomers). Because a significant business was atstake, along with many jobs, the Governmentmoved swiftly and enacted what has becomeknown as the examinership legislation.

The Companies (Amendment) Act, 1990enables an insolvent company to seek the protec-tion of the court from its creditors for a three orfour month period during which time an examin-er, appointed to it, examines the company’saffairs and prepares – and seeks the court’sapproval for – a scheme of arrangement which, ifit is successful, will enable the company to con-tinue trading once the court’s protection is lifted.

This legislation enabled the Goodman groupof companies to be saved with obvious benefitsnot just to its employees but also to the farmers

The last ten years have seen an unprecedented growth in this country’s prosperity,and developments in banking law over that period have unarguably helped tostrengthen the position. Here, William Johnston reviews those developments

and assesses their impact on the economy’s health

who supply produce to the group. It worked foreveryone’s benefit in the case of the Goodmangroup because no creditors had security. It wasnot until the Supreme Court’s decision in reAtlantic Magnetics Limited, confirmed in reHolidair Limited, that it became clear the legis-lation had the effect of overturning a century ofestablished priorities among creditors.

The enactment of this legislation, and itsinitial application by the courts, meant that abank’s power of appointing a receiver, grantedfreely to a bank by a company when obtainingfunds from the bank, could be vetoed by the

court almost at the asking by the board of thecompany. Furthermore, the priority given to abank or other creditor by a fixed charge is nolonger absolute, but must be shared even withthe shareholders. These decisions, in conjunc-tion with the court’s decision in re PresswellLimited, which wrote down guarantors’ liabil-ities, had the immediate effect of bankspulling back from providing finance – somuch so, indeed, that an taoiseach of the daypublicly criticised the banks for failing to pro-vide more credit.

The legislation in discouraging secured

Banking laBanking la

1990s


BANKING LAWBANKING LAW

1990sin the

lending retarded the growth of the economyuntil Mr Justice Costello’s decision in reWogan (Drogheda) Ltd, where he pointed outthat advisors and others involved in theprocess of seeking court protection have a dutyto use the utmost good faith in bringing anapplication to court. Subsequently, theMinister for Enterprise and Employment,Ruairí Quinn, appointed a Company LawReview Group to consider the legislation andto make recommendations for reform.

In the aftermath of Mr Justice Costello’sdecision, the use of the legislation was curtailed.

Nonetheless, its existence and continued use hashad the effect that banks have moved earlier tosupport and assist in the re-structuring of com-panies that encounter financial difficulties.Accordingly, although in need of some amend-ment, the legislation has helped to support cor-porate enterprise.

Swaps and other instrumentsThe court protection legislation was used bysome, particularly in London, to highlight apotential difficulty of entities doing businesswith Irish corporations. A significant part of

managing debt finance is the use of swaps andsimilar instruments. At its simplest, it mightinvolve a company borrowing sterling enteringinto a contract with another entity agreeing toexchange sterling for Irish pounds. If the com-pany’s earnings are in Irish pounds, it will avoida currency risk (that is, the potential revaluationof sterling), notwithstanding that it has bor-rowed in sterling. The court protection of anentity involved in a chain of swaps would havean adverse domino effect on other entities, as thesolvent counterparty could not enforce securityto recover amounts owed to it by the protectedcompany. Accordingly, the Companies(Amendment) Act, 1990 was made subject to theNetting of Financial Contracts Act, 1995 where-by parties to a swap may set-off each other’s lia-bility and enforce security (given specifically forthe swap) for the net balance even if the debtoris under the protection of the court. How such anenforcement will affect the examinership ofsuch a company remains to be seen.Nevertheless, this legislation has alleviated con-cerns on swap transactions and has facilitatedthe entry of further banks to the IFSC. In prac-tice, its impact has been the requirement to pre-pare additional security for each entity enteringa swap, specifically to secure its obligationsunder that swap.

Exchange controlEmerging economies have tended to implementexchange control restrictions to ensure funds arenot siphoned out of the economy. Ireland was nodifferent, and a loan made from outside the Stateto an Irish entity required the permission of theCentral Bank to ensure that the loan could berepaid with interest. These exchange controlrestrictions were abolished on the last day of1992. However, practitioners should bear inmind that the Exchange Control Acts have effec-tively been replaced by the Financial TransfersAct, 1992 under which the Minister for Financemay make orders prohibiting the transfer offunds to jurisdictions which are the subject ofhis order (a number of orders have been made).

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The abolition of exchange control restrictionsmade it easier for Irish companies to raise fundsfrom outside the State (particularly frominvestors in the USA).

Cross-border bankingOn New Year’s Day 1993 – the day followingthe abolition of exchange controls – the SecondEuropean banking directive was implementedin Ireland. This established the mutual recogni-tion of banking services throughout theEuropean Union, thus enabling a credit institu-tion licensed in an EU Member State to carry onbanking business in Ireland under the supervi-sion of the central bank of its home state. Thishas not had an immediate impact on businessbut is part of the process of integrating Europe.

Ministerial orders granting class exemptionsand the repeal of the Moneylenders Acts by theConsumer Credit Act have made it easier toobtain non-consumer loans from abroad. Nolonger does an entity without a banking ormoneylender’s licence have to apply to theDepartment of Enterprise, Trade andEmployment and have its application scruti-nised by the Central Bank before obtaining anexemption under the Moneylenders Acts inorder to make a commercial loan.

Ombudsman for Credit InstitutionsIn banking, 1990 was important not only for thecommencement of the IFSC and the establish-ment of a court protection procedure, but alsofor the establishment of the Ombudsman forCredit Institutions. In that year, anyone whomight have had a complaint against a bank wasfirst given the opportunity of taking it to theOmbudsman for Credit Institutions. Under histerms of reference, any award of up to £30,000made by the ombudsman may be accepted orrejected by the customer. If the customeraccepts the award, the bank is bound by it. Since1994, this service has been available to smalllimited companies. Not only does the ombuds-man provide a useful service to bank customers,but his annual report is a useful feedback forbanks in highlighting areas of banking practicethat have been the cause of difficulty.

Consumer Credit ActBut the greatest protection for the individualcustomer has arisen from the enactment of theConsumer Credit Act, 1995, some 21 years aftersimilar legislation was introduced into Ireland’sneighbouring jurisdiction. Essentially, its imple-mentation was precipitated by directives ema-nating from Brussels. No legislation in the his-tory of the State has undergone more amend-ments in the course of its passage through theOireachtas than the Consumer Credit Act, andthere is no doubt that many of these amend-ments have improved its workability.

While the Act had the beneficial effect of

repealing the Moneylenders Acts for commer-cial loans, contrary to the directives it containsno minimum or maximum thresholds.Accordingly, a person lending £10 to a con-sumer is subject to the same restrictions as aperson lending £10 million to a consumer.Failure to comply with the Act’s detailedrequirements can in many instances render theloan void and irrecoverable – a nightmare forany lawyer instructed to prepare the documen-tation. Much time has been spent by banks andother financial institutions conforming theirstandard documentation to the Act’s require-ments.

Unfair terms regulationsEven more difficulty is presented to a lawyerwho is asked to advise whether an agreementcomplies with the European Communities(Unfair Terms in Consumer Contracts)Regulations 1995 (purportedly given retrospec-tive effect when implemented). Its language isimprecise, which is unhelpful to lawyers, andguidance from the courts is awaited.

Independent advice for third party securityThe Irish courts have traditionally beenfavourably disposed towards a party which hasgiven security to support a loan to another. Inthe 1990s, the English courts have increasinglyupheld the claims of third parties in overturningsecurity through lack of informed consent. Theprinciples applied by the English Court ofAppeal in Barclays Bank plc v O’Brien wereadopted by the High Court in Bank of Ireland vSmyth and Smyth, where Mr Justice Geogheganheld that a wife’s consent to a mortgage (pur-suant to the Family Home Protection Act, 1976)was not a true consent as she was not advised toobtain independent legal advice and that she didnot have a proper understanding of the consentshe had signed. In dismissing the bank’s appeal,the Supreme Court held that the spouse’s con-sent must be a fully-informed consent.Procedures need to be carefully followed toensure that security can withstand a challengedue to lack of informed consent.

Confidentiality and the banksWhere a person entrusts his or her financialaffairs to another acting in a professional capac-ity, there is an implicit duty that the recipient ofthe information will keep it confidential. Thisduty of confidentiality which exists betweenbanks and their customers has been continuallyeroded by legislation and by the courts. In theearly 1990s, the courts were busy hearing chal-lenges to an inspector appointed in connectionwith the Johnston, Mooney & O’Brien site inBallsbridge, Dublin. A bank’s difficulty washighlighted by Mr Justice Murphy when hesaid: ‘Obviously the bank and the solicitor are

in an awkward position; if they neglect to pro-duce books or documents which should proper-ly have been produced, they expose themselvesto the risk of penalties which might be imposedon them for contempt of court. On the otherhand, if they hand over books or records whichdo not fall within the terms of the Act, they maybe liable to their clients for damages for breachof contract’.

Shortly afterwards, a bank which declined todisclose information to an inspector about itscustomer for fear of breaching its duty of confi-dentiality was told by Mr Justice Costello thatnot only should it supply the information butthat it should pay the costs of the court hearingfor having originally declined to supply theinformation.

One of the principal exceptions to the duty ofconfidentiality arises where there is a duty to thepublic to disclose. The law on this exceptiontook a major leap forward in 1998 when a 3–2majority of the Supreme Court decided (inNational Irish Bank Limited and Anor v RadioTelefís Éireann) that the names of customers ofthe bank could be publicly disclosed notwith-standing that such disclosure could imply thatthese customers were guilty of tax evasion. Inwelcoming this decision, the Irish Times stated:‘The Supreme Court has a proud and distin-guished record of affirming individual rightsand liberties’. This is undoubtedly true, but it isdifficult to understand how the majority deci-sion that took away a person’s right to have hisor her financial affairs kept private can be saidto be an affirmation of individual rights and lib-erties. The public interest in stamping out taxevasion was already served in this case by dis-closures having been made to the RevenueCommissioners and the Central Bank.

It is for everyone’s benefit that public inter-est is not confused with public curiosity. But thedecade is concluding gloriously for the curiousamidst much publicity concerning the bankingarrangements of a former taoiseach, ironicallywithout whom there may not have been anInternational Financial Services Centre. At thetime of writing, it appears the final Finance Actof the decade will grant the RevenueCommissioners wider powers to breach the con-fidential relationship between bank and cus-tomer. For these provisions to be effectiveagainst tax evasion, there will need to be a co-ordinated approach in Europe to ensure that nojurisdiction gives more protection to bank cus-tomers than in Ireland.

Interest and fees charged to borrowersThe Consumer Credit Act, 1995 has done muchto put the fees and charges of a bank underscrutiny, and the Director of Consumer Affairshas been empowered to oversee any increases.Following the enactment of the legislation, it


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has been alleged that a number of branches of aparticular bank, on a continuing basis prior tothe 1995 Act, overcharged for its services. Thisis subject to an on-going investigation. It hasbeen suggested to me by a journalist that thiscould not happen now because of the require-ments of the Consumer Credit Act, 1995 as toAPR. This, of course, is not true, as it would besurprising if even one-tenth of 1% of the popu-lation understood how APR is calculated. Thosewho check their bank statements can only makea rough guess as to whether the interest whichthey have been charged is correct. An explana-tory guide by the Director of Consumer Affairsas to how APR works would be a most welcomedevelopment.

Money launderingBanks spent a great deal of time in the early1990s familiarising themselves with theCriminal Justice Act, 1994 and the money-laun-dering regulations that followed it. The chore ofproducing a passport and other means of identi-fication when opening a bank account is noth-ing compared to the increased record-keepingand reporting mechanism required by banks toensure that they do not handle money which hasbeen procured as a result of criminal activity.

Mareva injunctionsAlthough a person has a right to have his or herfinancial affairs kept private (apart from appro-

priate disclosures to the RevenueCommissioners), the need to ensure that banksare not used as safe havens for a person’sassets has given rise to the increasing use ofMareva injunctions by the courts and theattachment of bank deposits. The Proceeds ofCrime Act, 1996 enables the High Court togrant orders prohibiting persons from dealingwith, inter alia, monies which are the proceedsof crime. The Criminal Assets Bureau has beenactive in the implementation of this legislation.

Absence of reformOne of the most striking impediments to thedevelopment of small business is the prohi-bition under section 31 of the CompaniesAct, 1990 on companies giving guarantees(subject to certain exceptions). It is undoubt-edly true that the provision (conceived in theearly 1980s to attack abuses of the 1970s)has hindered small family-owned businessesin raising finance – indeed, there may bemany transactions concluded which haveunwittingly contravened the section, withpossible horrendous consequences for legaland other advisers involved in completingthe security.

A further legislative provision which hin-ders finance for small business, as highlightedby the Report of the Task Force on SmallBusiness, is section 1001 of the TaxesConsolidation Act, 1997 (formerly section 115

of the Finance Act, 1986). Briefly, this sectiongives the Revenue Commissioners super-prefer-ential status (for VAT and PAYE arrears) over acreditor holding a fixed charge on book debts. Ahalf-hearted effort was made to reform theseprovisions in the middle of the decade but itsbasic provisions remain unchanged to the detri-ment of small business (as they cannot effec-tively offer a first priority fixed charge overbook debts, one of their principal assets, assecurity for bank finance).

Finally, the inability of banks to set-off theaccounts of their customers which are under theprotection of the court has resulted in financestructures which drive funds out of the economyand add to the financing cost for industry.

In pure banking terms, there has beenreform – the provisions of the Central BankActs of 1997 and 1998 as well as the Economicand Monetary Union Act, 1998 will makebanking better prepared for the next decade. Ofmore immediate beneficial effect has been thereform carried out in appropriate areas duringthe 1990s to facilitate the securitisation ofhome loans. This has had the effect of freeing-up funds which may be made available to newcustomers generating further growth and prof-itability into the next decade.

William Johnston is a partner in solicitors’firm Arthur Cox and the author of Banking andsecurity law in Ireland (1998, Butterworths).

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MEMBER SERVICESMEMBER SERVICES

E ven if eligible for a State pension, it isdesirable – if not absolutely necessary –that a solicitor in private practice starts to

plan for retirement as early as possible. Since1975, there has been a pension scheme avail-able for members of the Law Society.Established under a trust between the Societyand the Bank of Ireland, this scheme providesretirement annuities and ancillary benefits forcontributing members.

Under the plan, members who are self-employed or in non-pensionable employmentcan make contributions to a tax-exempt fund.The fund is managed on their behalf by Bank ofIreland Asset Management and monitored bythe trustee (that is, Bank of Ireland TrustServices) and the Society’s Retirement FundCommittee. In the past, on retirement, the ulti-mate accumulated value of these contributions,together with growth thereon, was used to pro-vide to the contributor a tax-free cash lump-sum of up to 25% of the final value, togetherwith an annuity for life purchased on the openmarket.

The scheme has a number of significant fea-tures: a contributor’s personal costs are verylow, there is no period of nil allocation of unitsand no loading in the early years. Amountscontributed are at the contributor’s discretion,and there are no penalties where contributionsare increased, decreased, suspended or missed.There is a choice of three funds into which con-tributions can be made, namely, the managedfund, the cash fund and the pension protectorfund. It is possible to switch between funds asappropriate, depending on personal risk prefer-ence and financial needs at that time.Investment growth is tax free and no medicalevidence is required.

Up to now, the income tax contribution limitfor pension scheme contributions has been15% of a contributor’s net relevant earnings.However, under the recently passed FinanceAct, 1999, changes have been made to the taxregime applying to accumulated savings for

pension purposes, the principal of which arethe following:● From 6 April 1999, annual contribution lim-

its will be increased from 15% to 20% forthose aged between 30 and 40, 25% forthose aged between 40 and 50, and 30% forthose aged 50 and over, all subject to anearnings cap of £200,000 a year

● The age by which a pension annuity must bepurchased has been extended from 70 to 75years

● There is now a right to transfer the savingsaccumulated in one approved retirementfund to another such fund

● On retirement, 25% of the accumulated fundmay be taken as a tax-free cash sum, but ifthe retiree has a total guaranteed income for

life of at least £10,000 a year including theState pension, the balance of the accumulat-ed fund may be cashed in immediately (sub-ject to payment of the appropriate rate ofincome tax at that time) or, alternatively,invested in an approved retirement fund(ARF) to be drawn down at the retiree’s dis-cretion

● If the retiree’s income is less than £10,000,the same options will apply except that aminimum of £50,000 (or the fund balance, iflower) must be either invested in an annuityor in an approved minimum retirement fund(AMRF). Income can be drawn from anAMRF only to the extent that it does notreduce its value below £50,000. At age 75,this restriction will be lifted and the retireewill have complete freedom to draw downremaining AMRF assets (subject to paymentof the appropriate rate of income tax at thattime)

● Income and capital gains earned within anARF or an AMRF will be taxed in the usualway depending on the type of investmentvehicle chosen

● On death, any balance remaining in an ARFor AMRF can either be paid to the retiree’sestate (subject to payment of the appropriaterate of income tax at that time) or passed tothe retiree’s surviving spouse to be investedunder the same rules as applied to theretiree. If the retiree’s surviving spouseelects to take the balance (as opposed to tak-ing a pension from the ARF or AMRF), theincome tax payable on such balance will besubject to a reduced 25% rate.

A more detailed discussion of the retirementprovisions of the Finance Act, 1999 and howthey are likely to be applied in practice will bepublished in a subsequent issue of theGazette.

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

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Recent legislation affecting pensions has improved the tax regime for pension schemes, including the Law Society’s Solicitors Retirement Trust Scheme,

as Member Services Executive Claire O’Sullivan explains

Planning for your golden years


TECHNOLOGYTECHNOLOGY

R apid developments in mobile phone andportable computing technology meanthat it is becoming increasingly possible

to continue working regardless of location. Notso long ago, time spent in transit, whether itwas between meetings or waiting outside court,was often time wasted. Nowadays, with theright equipment and connections, traditionaldowntime can be used productively. You canmake arrangements over the phone, composeand send e-mails, receive faxes, browse theWeb, hook into your firm’s network or evenjust check the time and location of your nextappointment.

Of course, it was always possible to makecalls or to check up on appointments by findinga public phone or looking through a filofax. Butfinding a phone that worked, never mind find-ing the right change, was a hassle which mobilephones eliminated. Filofaxes still have theirplace but, when they’re used properly, elec-tronic organisers can be more efficient and caneven be programmed to issue reminders beforeappointments.

The most basic piece of equipment formobile communications is probably themobile phone. Once they were considered abit of a luxury and something of a status sym-bol in this country because both handsets andcharges were too high for ordinary users, butover the last two years competition betweenDigifone and Eircell has stimulated the marketto the point where Ireland now has one of thehighest rates of mobile phone use in WesternEurope. The introduction of pay-as-you-usepackages by both operators has helped tomake mobiles affordable for almost every-body.

The most basic application of a mobilephone is obvious – it’s a device for carrying out

telephone conversations when you’re on themove. But handsets are becoming increasinglysophisticated and the majority of GSM phones(those with digital 086 or 087 connections)now have short messaging services (SMS)and are data-compatible.

SMS is a handy function for sending andreceiving messages of up to 160 characters, toand from digital mobile phones, for the price ofsingle unit call. Software packages are alsoavailable so that messages can be sent betweenPCs and mobiles. With SMS, messages can besent to your phone, even if it is switched tosilent mode. When a message arrives, a note tothis effect will appear on your handset’s dis-play and you can read your correspondencestraight away or later on. So if you’re in animportant meeting or sitting in court, urgent

The latest technology means that you can now carry around a virtual office in yourbriefcase, or even your pocket. Grainne Rothery looks at the hardware and software

that will get you going – and how much it will set you back

messages can still reach you without disturbinganyone else. Likewise, you can compose andsend messages by simply keying in letters onyour handset’s numberpad.

Confusing communicationBecause the digital networks can send andreceive data as well as voice messages, data-compatible phones can be connected to laptopcomputers or personal data assistants (PDAs)in order to send and receive e-mails, faxes andfiles without having to link up to a landline. Toensure that the phone and the laptop can com-municate with each other, additional hardwaresuch as a cable and PC Card, as well as com-munications software, is normally needed. Butsome of the more sophisticated phones haveinfrared capability which allows them to com-

freedom!

Ericsson MC16 Solution: one of the integrated mobile computer packages available

Cry


municate with infrared-ready laptops or PCswithout the need for any cable or data card.Devices such as the Nokia Communicator,meanwhile, integrate the phone and portablecomputing functions within a single unit.

The mobile phone networks have not beenslow to recognise the growing market formobile data and fax communications. Theyalso recognise the fact that it’s a relatively con-fusing area for many people who would like touse the technology. Late last year, Eircell intro-duced its Networker range of complete mobilecommunications packages.

The Networker packages range in price from£299 to £599 for first-time connections andconnection upgrades, and include a GSM phoneand 30 days’ free access with Indigo’s Internetservice. Two of the packages – incorporatingthe Nokia 9110 and the Ericsson MC16 – pro-vide all the hardware and software needed forhooking-up to the Internet, sending e-mails anddownloading files. The Nokia 9110Communicator package costs £599 and con-sists of a GSM phone, which opens up into ahand-held computing device with ‘qwerty’ key-board and VGA screen. The Communicatorallows basic word-processing and has its owncalendar facility for tracking appointments.Without connecting up to any other device, it ispossible to compose, send and receive e-mailmessages and faxes and surf the Internet. A PCsuite is also provided so that users can connectup to their desktop PC to transfer and back upfiles.

The Ericsson MC16 Solution includes anEricsson GH688 GSM phone and anEricsson MC16 palmtop computer, whichincludes Windows Compact Edition (CE), an

infrared port, fax and Internet Explorer soft-ware and a modem. The palmtop can use cut-down versions of standard Microsoft applica-tions, including Pocket Word, Pocket Excel andPocket PowerPoint. Data can be synchronisedwith a desktop computer.

The other packages in the Networker rangeinclude Ericsson SH888 and Nokia 6110phones. With the SH888, the EricssonMobile Office Suite is included, allowing theuser to connect to a laptop via infrared or acable connection. It provides all the softwareneeded to send and receive faxes and e-mails.The Nokia 6110 package includes NokiaData Suite 2.0, which provides similar func-

tionality to the Ericsson version.Unlike Eircell, Esat Digifone does not cur-

rently package data products. ‘It would be verydifficult to come up with something to meeteveryone’s requirements’, says Digifone’s PatO’Connell. ‘There are so many different varia-tions of phones, cards and software’. Instead,the network’s customer care executives in theGrafton Street and Henry Street Digicentres inDublin explain the technology that is requiredand how it works.

Worldwide waitBut how practical is the job of hooking up tothe Internet and sending and receiving faxesand e-mails using a mobile phone connection?‘Going on-line is grand for doing things likechecking e-mail when you’re away from theoffice’, O’Connell says. ‘Likewise, you canprepare e-mails when working off-line andthen dial in to send these messages. Butnobody believes that life is long enough to surfthe Web using your mobile phone – it’s morelike the worldwide wait’. He also points outthat users may need to specify the maximumfile size for downloading within their e-mailprograms, otherwise they could be waitingaround during the transmission of particularlylarge files.

O’Connell says that Digifone has noted abig increase in the amount of data traffic overthe network in the last few months. ‘Our mar-ket research shows that the main component ofthis traffic is the transmission of e-mail’, hesays. ‘We see emerging technologies makingWeb access more usable in the future’. Onetechnique will allow your browser to recognisethe device you’re using and filter the content,so if you’re browsing the Internet with amobile phone and a PDA, you’ll see a cut-

down version of the web site you are trying toaccess. On the other hand, if you’re using amore powerful machine and are connected viaan ISDN line, you will be able to view thepages in their full animated glory.

Of course, accessing e-mail and download-ing files remotely does not necessarily have toinvolve a mobile phone. If you’re workingfrom home – or indeed anywhere that has aconvenient telephone line – it makes moresense, both in terms of cost and speed, to dialin from the landline rather than a mobile.

Ultimately, the kind of computing deviceyou use during your travels will depend onwhat you are using it for, and on the level of

‘Mobile phone networks have not been slow to

recognise the growing market for mobile data and

fax communications’

Nokia 9110 Solution: a GSM phone which opensinto a handheld computer/fax (£599)

Nokia 6110 Solution: phone, laptop and the software needed for fax and e-mails


TECHNOLOGYTECHNOLOGY

information you want to access if you’re send-ing and receiving data. Entry-level devicesinclude PDAs and handheld machines. Theseare small and extremely mobile but they areusually far less functional than full-blown lap-top or notebook PCs. One of the most popularexamples of a PDA is 3Com’s Palm Pilot,which includes a diary, to-do list, address book,memo pad and e-mail reader. The Palm Pilotdoes not have a keyboard so information isinputted with a stylus pen directly onto thescreen. This will not be suitable if you are plan-ning to input sizeable amounts of information.E-mails, addresses and appointments can besynchronised very easily with a desktopmachine via an infrared facility. The Palm Pilotcosts less than £300.

Handheld computers like the Philips Velo500 and the LG Phenom are more powerfulmachines and typically include 16 megabytes(MByte) of random access memory (RAM),Windows CE and their own modems. The LGPhenom retails at just under £700, has a fullkeyboard and pocket versions of Word, Exceland PowerPoint. With this kind of device, it’spossible to send and receive e-mails, browsethe Internet and compose and send faxes.

Generally these machines are used in con-junction with – rather than instead of – desktopPCs. At the upper end of the market there are

more sophisticated laptops, which are often aspowerful as PCs. For example, IBM has justlaunched a new range of ThinkPad notebookcomputers. The ThinkPad 600 series includes13.3-inch active matrix screens, up to64MByte of standard memory (expandable to288MByte), up to 10 gigabytes (GByte) harddrives and integrated 56K V.90 modems. The600Es also incorporate DVD with movie play-back support for delivering multimedia presen-tations. Prices start at IR£2,367.

These machines can be used for normalcommunications, such as e-mail and faxing,and also for accessing and downloading filesfrom company networks or intranets. Ratherthan working on-line over the network, it isusually cheaper to use a replication programwhich allows the user to dial in and downloadan exact copy of a particular application. ‘Theability to synchronise and replicate data ismore beneficial than dialling in, and it’s alsomore cost effective’, says Gavin Reynolds,marketing strategist in IBM’s personal systemsgroup. ‘IBM ThinkPads with Lotus Notesallow users to replicate their full working envi-ronment onto their laptop, thus allowing themto work as effectively out of the office as in theoffice. When returning to base, the user needsto replicate back to the server, thus convertingall the work carried out on the laptop onto the

server and onto the external environment’.‘However, most applications that people dial

into are not built with the mobile user in mind’,says Reynolds. ‘Companies need to addressthis issue when they start to build applicationsthat mobile users will dial into, such as salesforce automation or, in the case of solicitors,case management software. Lotus Notes is anexample of an application built with the mobileuser in mind’.

Satisfactory back-upA wide choice of technology is available forthe mobile office and this can cause confusion.Also, the range of different hardware and soft-ware needed to send and receive faxes and e-mails using mobile devices means that doing itis not always easy. Would-be users who do nothave in-house technical support should ensurethat their suppliers provide satisfactory back-up and after-sales support.

Finally, be warned: mobile office technolo-gy will improve over the coming years. As wasthe case with the mobile phone, this will helpto ensure that we’re never too far away fromwork. Some people may cry ‘Freedom!’– oth-ers may just feel like crying!

Grainne Rothery is a freelance journalist spe-cialising in technology issues.

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R ecent English cases have raised a funda-mental issue concerning leases: if thetenant becomes fed up with the land-

lord’s failure to perform his obligations, can hesay ‘enough is enough’, hand back the keys andwalk away without facing the risk of the land-lord succeeding in action to enforce the lease?

According to traditional theory, the answeris ‘no’ because a lease is not just a contract butrather creates an interest in land and variousobligations to which the ordinary principles ofcontract law do not necessarily apply.1

According to contract law, the parties’ obliga-tions are essentially bilateral, that is, mutuallydependent on each other, whereas leaseholdobligations are said to be independent, so that abreach by one party does not entitle the otherparty to regard himself as released from any ofhis obligations. This distinction was recentlyrecognised by Kinlen J in Riordan v Carroll([1996] 2 ILRM 263, 275), where he acceptedthe long-held view that a tenant is not entitledto withhold his rent because the landlord is inbreach of his obligations under the lease.2 Thisview of the nature of a lease has now beencalled into question by English judges. Threecases are of particular interest.

Hussein v MehlmanThis case ([1992] 2 EGLR 87; [1992] 32 EG59) was decided by the then Stephen SedleyQC, sitting as an assistant recorder in the coun-ty court. It involved a short-term residentialtenancy of a property in a deplorable state ofrepair. For example, one of the bedrooms wasuninhabitable because the ceiling had col-lapsed. The landlord was clearly in breach ofhis obligations, particularly repairing obliga-tions implied by section 11 of the EnglishLandlord and Tenant Act 1985. Despite repeat-ed complaints by the tenants, he refused to take

any action to remedy the breach. Eventuallythe tenants decided that they had had enough,returned the keys and vacated the property.They then brought proceedings seeking a dec-laration that the landlord had been in repudia-tory breach of the lease, which they were justi-fied in accepting and, thereby, treating thelease as at an end, and claiming damages forbreach of covenant. In upholding the tenants’claims, Sedley QC engaged in a comprehen-sive review of the law governing leases andconcluded that modern caselaw supported theview that it was time to abandon the tradition-al approach.3 Instead, a lease should be regard-ed as simply another form of contract where-under, in consideration of payment of rent andperformance of other obligations, the tenant isallowed to occupy the landlord’s property.Applying then the ordinary rules of contract, heheld that a lease can be terminated by one partyaccepting the other party’s repudiatory breach.

Sometimes this is referred to as ‘rescis-sion’, but it should not be confused with theequitable remedy of that name granted by acourt on the basis of some vitiating factorsuch as fraud, duress or undue influence. Thatremedy involves restitutio in integrum, thatis, restoring the parties, so far as possible, totheir original position so that they are treatedas if a contract never came into existence (itis void ab initio) and therefore there can beno question of an award of damages forbreach of contract.4 On the other hand, rescis-sion in the sense of a repudiatory breach bythe other party involves the aggrieved partytreating himself (without the need for anycourt order) as discharged from any furtherperformance of the contract. Since a contracthas clearly existed up to that point, it remainsopen to the aggrieved party, as Sedley QCrecognised, to sue the other party for damages

The traditional view is that a landlord’s failure to perform his duties under a lease does not release

the tenant from his obligations, but this has been challenged successfully in the English courts. Professor JCW Wylie discusses the relevant

cases and asks: could it happen here?

arising from the repudiatory breach.5

Perhaps not surprisingly, given the lowlystatus of the court and the lack of reporting inthe more established series, the decision inHussein v Mehlman did not initially get theattention its judgment clearly merited.However, the next case certainly made theEnglish property world sit up and take notice.

Chartered Trust plc v DaviesThis case ([1997 2 EGLR 83; [1197] 49 EG135) involved a small shopping mall compris-ing two double units sited on a high street oneither side of a dog-leg passage which led tothree single units inside. One of the inside units

The greaCan ten

froCan ten

fro


LANDLORD AND TENANTLANDLORD AND TENANT

tive action on the complaints made by the toyshop tenant, she withheld her rent and purport-ed to ‘disclaim’ the lease on the basis that thelandlord, by derogating from its grant, hadrepudiated the lease. When the landlord soughtto recover the rent6 and an order that the tenantshould comply with her covenants, the countycourt judge rejected the claim and his decisionwas upheld by the Court of Appeal. In its view,a tenant in such a case had three possible caus-es of action: breach of the covenant for quietenjoyment, derogation from grant and nui-sance. Whatever label was used, the essentialpoint was that the landlord had failed to man-age the shopping mall as he should have. Inparticular, he had failed to exercise the powerreserved in all the leases to regulate trading inthe units or to enforce the covenant in eachlease not to commit a nuisance or annoyancewhich would interfere with other tenants’enjoyment. The argument that there was noth-ing to stop the aggrieved tenant suing theoffending tenants directly for nuisance wasgiven short shrift in the following passage fromthe leading judgment of Henry LJ: ‘Where alandlord is granting leases in his shoppingmall, over which he has maintained control,and charged a service charge therefor, it is sim-ply no answer to say that a tenant’s sole pro-tection is his own ability and willingness tobring his individual action. Litigation is tooexpensive, too uncertain and offers no properprotection against, say, trespassing and threat-ening members of the public. The duty to actshould lie with the landlord’.

The judge then reviewed the various actionsthe landlord could have taken against the othertenants and concluded: ‘Instead, the landlordsprevaricated and did nothing. They could haveacted effectively and they should have done so.Instead, they chose to do nothing and therebymade the premises materially less fit for thepurpose for which they were let. In failing toact to stop the nuisance, in my judgement, thelandlords continued the nuisance and derogat-ed from their grant’.

In the court’s view, the trial judge had beenjustified in regarding this as repudiation of thelease, that is, ‘a substantial interference with thetenant’s business driving her to bankruptcy’.

Not surprisingly, this decision has causedlandlords of substantial multi-let properties

block the access passage and often, to kill time,they would wait in the toy shop without buyinganything. The windows of the pawnbroker’sunit were obstructed to prevent people seeinginside, but had the effect of reducing light tothe passage. The pawnbroker was allowed toerect the traditional three balls sign at the highstreet entrance to the passage, making it look asif it led exclusively to a pawnbroker’s arcade.Another complaint was that the tenant of thecoffee shop in one of the double units on thehigh street put plastic garden furniture outsidefor customers, obstructing the passage entranceand access to the inside single units.

After the landlord failed to take any effec-

was a specialist shop selling puzzles and exec-utive toys. The tenant was a business womanwhose daughter ran the business in the unit. Anadjoining unit was let to a pawnbroker. Overtime, the toy shop experienced considerabletrading difficulties. This was put down to theactivities of tenants of other units in the shop-ping mall. The tenant complained numeroustimes to the common landlord. In particular,she complained that the pawnbroker’s actionsdeterred customers in a variety of ways. Forexample, because his unit did not trade duringnormal hours and, when open, only one cus-tomer was allowed in at any one time, queuesof ‘threatening’ groups of young men tended to

at escape!nants walk away om a lease?nants walk away om a lease?


LANDLORD AND TENANTLANDLORD AND TENANT

(such as shopping centres) and their profes-sional advisors some concern. In particular, itseems to put a premium on good managementby the landlord and to expose them to the riskthat a disgruntled tenant might succeed inwalking away from a lease of a failing businesson the grounds of ‘bad management’ by thelandlord. This makes the third, and mostrecent, case all the more significant.

Nynehead Developments Ltd v R HFibreboard Containers LtdThis case ([1999 02 EG 139) involved a smallindustrial estate comprising seven units. Eachunit had its own exclusive parking area imme-diately in front of it, but the lease also gave thetenant the right, jointly with tenants from theother units, to park on the forecourt runningbetween the units and the estate road.However, each lease expressly limited thisadditional parking right to ‘loading andunloading vehicles’. The tenant of three ofthese units manufactured cardboard packaging,a process involving regular deliveries of rawmaterials and dispatches of finished product.He complained over a period of some twoyears to the common landlord about the activi-ties of tenants of two other units on the estate.One operated a business involving service andrepair of mobile refrigeration units housed in40-foot trailers which were left on the fore-court while the work was being done. Theother tenant had a waste disposal business andused the forecourt for servicing and washingdown of refuse lorries and skips, which werealso parked there sometimes while repairs werebeing done. Despite the numerous complaints,the landlord took no effective action. Indeed,evidence was produced later in court that thelandlord’s agent made it clear to the other ten-ants that the complainant was regarded as anuisance. In due course, the complainantdecided to move its business to larger premisesto allow for expansion and put its lease of thethree units on the market. However, it wasunable to find another tenant to take on thelease and eventually it stopped paying the rent.When the landlord sued for arrears of rent, itargued that the landlord had been guilty of arepudiatory breach which justified it terminat-ing the lease, that is, the landlord had autho-rised or encouraged the other tenants in com-mitting a nuisance.

Judge Weeks QC, sitting as a High Courtjudge, accepted the authority of Hussein vMehlman and Chartered Trust plc v Davies.Furthermore, he found that the landlord’s con-duct, in particular its agent’s connivance at theother tenants’ clear breach of covenant and cre-ation of a nuisance, constituted a derogationfrom grant. It was also, in his words, ‘conductwhich is incompatible with the efficient man-agement of the industrial estate’ (the leases

expressly obliged the landlord to do whateverwas reasonably incidental to the industrialestate’s efficient operation). However, thereremained the question of which of the land-lord’s breaches were ‘repudiatory’ and here thejudge departed from the findings in the earliercases. In his view the cases on contract lawestablished that a ‘repudiation’ does not ariseunless either the other party by his words oractions clearly indicates that he is not going tocarry out the contract, or his actions deprive thecomplainant of ‘substantially the whole bene-fit’ which it was intended that he should haveunder the contract. Neither of these had beenestablished in the case before him. Despite thelandlord’s agent’s reprehensible behaviour inconniving at the breaches by the other tenants,at no time had it indicated an intention to aban-don the leases. Furthermore, as regards theeffect of the unjustified parking on the com-plainant, this was ‘an irritant and minor inter-ference with Fibreboard’s business activities.There is no evidence that they lost even anhour’s production as a result’. It had also beenargued that the unjustified parking deterredpotential new tenants taking on the com-plainant’s lease after it moved its business to anew venue, but the expert evidence did notclearly substantiate this. Rather, it suggestedthat a major factor was a downturn in the mar-ket for such units.

No doubt the Nynehead decision will begreeted with some relief by landlords of multi-let properties. It is a salutary reminder that,even if the principles of ordinary contract laware to be applied to leases, they do not justify atenant rescinding the lease simply because thelandlord is in breach of his obligations. It mustbe a repudiatory breach, that is, one which is

major and has a very serious effect on the ten-ant’s business.

There remains, of course, the question ofhow far the English courts’ recent approach toleases reflects Irish law. Notwithstanding thelack of any authority directly on the point, Ibelieve that there are good grounds for think-ing that the Irish courts would take the sameapproach. One reason is, of course, thatarguably the theoretical difficulty initiallyfaced by the English courts was removed inIreland by the provision in section 3 of Deasy’sAct 1860, founding the relationship of landlordand tenant on contract.7 Another reason is thatapart from Deasy’s Act, the Irish courts havealso in recent times seemed willing to applycontractual principles to leases. Thus, inNelville and Sons Ltd v Guardian Builders Ltd([1995] 1 ILRM 1), the Supreme Court accept-ed as correct the proposition that the doctrineof frustration of contract can apply to a lease.

So landlords in Ireland, particularly thoseinvolved in the management of multi-let prop-erties, you have been warned!

JCW Wylie is Professor of Law at Cardiff LawSchool and a consultant to solicitors A&LGoodbody.

Footnotes1 One obvious illustration of this is the extent

to which a lease creates an exception to thetraditional doctrine of privity of contract,that is, the rights and duties created by it aregenerally equally enforceable by andagainst the original parties’ successors intitle: see Wylie, Landlord and tenant law(Butterworths, second edition, 1998, chapter21).

2 See also Corkerry v Stack ([1947] 82 ILTR60).

3 He cited cases like CH Bailey Ltd vMemorial Enterprises Ltd ([1974] 1 WLR728), especially at page 732 (per LordDenning MR) and the House of Lords’ deci-sions in United Scientific Holdings Ltd vBurnley Borough Council ([1978] AC 904)and National Carriers Ltd v Panalpina(Northern) Ltd ([1981] AC 675).

4 See Delaney, Equity and the law of trusts inIreland (1996), chapter 16.

5 This distinction in the different forms of‘rescission’ was decisively confirmed by theHouse of Lords in Johnson v Agnew ([1980]AC 367) and recognised by Irish judges, seeVandeleur v Dargan ([1981] ILRM 75) andTaylor v Smyth ([1990] ILRM 377).

6 In fact, the landlord had gone into receiver-ship and the plaintiff was the mortgageewhich held a charge over the freehold of thesite.

7 For discussion of this provision, see Wylie,op cit, chapter 2.

G


READER SURVEYREADER SURVEY

Two years ago saw the biggest shake-upin the long history of the Law SocietyGazette. The magazine was refocused,

redesigned and relaunched to meet the needsof a modern solicitors’ profession. With itsemphasis on sensible structure, attractivedesign and lively articles written in plainEnglish, the magazine proved to be a hit withreaders. In its first year it even won a numberof awards.

While we were delighted with the reactionof readers to the new-style Gazette, we werealso acutely aware that we had by no meansachieved perfection. A magazine is some-thing of a work-in-progress: we try to getthings right, sometimes get it wrong, but cannever afford to become complacent. That iswhy we decided to run our first-ever readersurvey, which was contained in theDecember 1998 issue. It was a chance foryou – the reader – to tell us what we aredoing well and where we are going wrong.

The response rate to the survey was 1.4%of readers, which is about average for maga-zine surveys and, as you will see below, theoverall reader response was very positiveindeed. But there were also sufficient indica-tors to show that we must do more to makeour articles more directly relevant to the pro-fession in the future.

So thank you to everyone who took part inthe exercise. We intend to repeat it this yearand every year from now on so that we willhave a constant yardstick against which tomeasure our progress in meeting our mainobjective – to produce a magazine that read-ers find useful, relevant and look forward toreading.

Profile of respondentsQ1: How long have you been in practice?Most respondents had between one and fiveyears’ experience (29%), although those withbetween 15 and 20 years’ (24%) and over 20years’ (16%) were well represented.

Q2: How often do you read the Gazette?Virtually all respondents (98%) said that theyread every issue of the Gazette.

Q3: Does anyone else read your copy of theGazette?Almost three-quarters of the respondents saidthat no-one else reads their copy of theGazette, with 19% saying that one other personreads their magazine and 7% saying that twoothers read their copy.

Readers’ views on the GazetteQ4: How often do you read each section?For each of ten listed sections, respondentswere asked to indicate how often they readeach, using the scale: ‘almost always’, ‘occa-sionally’, ‘rarely’, and ‘never’. Figure 1 showsthe results, ordered according to their popular-ity. The results for ‘rarely’ and ‘never’ aremerged for the sake of simplicity.

Clearly, there is a huge difference in the fre-quency with which the sections are read andthere is a certain amount of clustering. Themost popular sections were News, Professionalinformation and Briefing, with approximately

80% of respondents almost always readingthese. There was a marked drop in frequencyof reading for the Letters and Dumb and dumb-er sections, even though it should be pointedout that approximately two-thirds almostalways read these. Feature articles, People andplaces and the Viewpoint section were equallypopular, with over half of respondents almostalways reading them. Next in popularity wasthe President’s message, and by far the leastpopular was Book reviews.

One inference from these results might bethat the most professionally updating, relevantand practical sections are the most popular. Theless these elements apply to a section, the lessfrequently it is read. But it must be rememberedthat all but two of the listed sections were almostalways read by over 55% of the respondents.

Q5: Indicate agreement or disagreementwith statements listedRespondents were asked to indicate their levelof agreement with six statements describing theGazette, using the scale: ‘strongly agree’,‘agree’, ‘no opinion’, and ‘disagree’. Figure 2illustrates the results, and statements are ordered

Last December we invited readers of the Gazette to tell us what they really think of the magazine through our first-ever reader survey. Here, Gazette Editor

Conal O’Boyle summarises the results

Gazette reader survey 1998

Figure 2: Level of agreement with statements listed

Figure 1: Frequency with which sections of the Gazette are read

Almost always Occasionally Rarely/never

Strongly agree Agree No opinion/disagree

16 64 20

0% 20% 40% 60% 80% 100%

17 63 20

24 69 7

33 58 9

43 51 6

48 41 11Well presentedand laid out

Informative

Keeps me updated on legal

developments and legislation

Interesting andenjoyable read

Relevant to my work

Good balancebetween

technical andlighter material

28 48 24

44 41 15

55 33 12

56 34 10

57 38 5

0% 20% 40% 60% 80% 100%

64 19 17

64 24 12

78 16 6

82 14 4

83 13 4News

Professionalinformation

Briefing

Letters

Dumb anddumber

Feature articles

People andplaces

Viewpoint

President’smessage

Book reviews


READER SURVEYREADER SURVEY

Coverage of ‘Irish legal developments’ wasviewed very highly. Coverage of ‘feature arti-cles on the law’ and ‘European legal develop-ments’ were also well graded, while theresponses regarding ‘information technology’are somewhat mixed. Clearly, in the opinion ofthe respondents, ‘business and managementissues’ were not very well covered. However,it must be pointed out that across all topics, theproportion that felt that coverage was ‘poor’never exceeded 10%.

Q7: Overall, how would you rate theGazette?When asked to give an overall rating for theGazette, the responses were quite positive (asshown by Figure 4). Half of all respondentsgave the rating ‘very good’ and more than onein six ticked ‘excellent’. Just 5% felt that theGazette was either ‘poor’ or ‘fair’.

according to the level of agreement with them.As before, the results for ‘no opinion’ and ‘dis-agree’ are merged for the sake of clarity and dueto low percentages.

The highest level of agreement was with thestatements ‘The Gazette is informative’ and‘The Gazette is well presented and laid-out’.(On a strictly numerical basis, giving equalweight to each response, these statementsreceived virtually identical levels of agreement.)While the proportion of respondents indicatingthat they agreed with the statements was consis-tently high (80-94%), the proportion ‘stronglyagreeing’ varied considerably (16-48%).

It should be noted that the numbers indicating‘strong agreement’ with the statement ‘TheGazette is informative’ (43%) contrasts to thenumber indicating ‘strong agreement’ with ‘TheGazette is relevant to my work’ (17%).However, in combining the statements ‘stronglyagree’ and ‘agree’, 94% found the Gazette infor-mative while 80% found it relevant to theirwork.

Q6: How well does the Gazette cover thetopics listed?Respondents were asked to grade the Gazetteon how well it covered five listed topics, usingthe scale: ‘very well’, ‘good’, ‘adequately’ and‘poor’. Figure 3 below summarises the results.As ‘poor’ was very rarely the response, it hasbeen merged with ‘adequately’.

Figure 4: How would you rate the Gazette?

Figure 3: How well does the Gazette coverthe topics listed?

● Virtually all respondents (98%) read each issue

of the Gazette● Up to 26% of readers’ copies are read by one or

two other people● The most popular sections of the Gazette are

News, Professional information, and Briefing● Over half of respondents always read feature

articles and People and places● The item in the magazine least read by

respondents is the Book reviews section● The majority of respondents agree with all the

positive statements about the Gazette – 48%

‘strongly agree’ that the Gazette is well present-

ed and laid out, while 43% ‘strongly agree’ that

it is informative. In most cases, fewer than 11%

have no opinion or disagree with the statements● When asked to rate coverage of topics listed, the

response was very positive, with most respon-

dents rating coverage of each item ‘very well’ or

‘good’. ‘Business and management issues’ is the

only item where over half of the respondents

rated the Gazette’s coverage as adequate or

poor● Over half of respondents rated the Gazette

overall as ‘very good’ with 17.7% rating it ‘excel-

lent’. Only 10% of readers rate it average or

below.

GAZETTE READER SURVEY: SUMMARY OF MAIN POINTS

Q8: Indicate your opinion of the Gazette ina word or phrase?When asked to indicate their opinion of theGazette in a word or phrase, the vast majorityof responses were positive (82%) while 14%were negative, and the remaining 4% mixed.

The majority of the negative opinions, ofwhich there were very few, could be sum-marised as indicating that the Gazette was ‘tooglossy and/or light on practical legal articles’.

To summarise the results to this question,the positive comments were classified into sixgroups to represent distinct opinions, althoughsome overlap was inevitable. The results aresummarised in Figure 5. The labels describe

Very well Good Adequately/poor

Poor Fair Average Good Very good Excellent

60%

50%

40%

30%

20%

10%

0%2.5 2.5

5.1

21.5

50.7

17.7

General positive comment

37%

Informative,updating, essential

36%

Better than rest,couldn’t improve

5%

Excellentlypresented

6% Catchphrase8%

Improved, improving8%

Figure 5: Indicate your opinion of theGazette in a word or phrase

the types of comments within each group. Thegeneral positive comments were specific wordsand phrases such as ‘good overall’, ‘excellent’,‘positive’, and so on. As is usual with suchquestions, some respondents take the advertis-ing catch-phrase approach. This categoryincluded such opinions of the Gazette as‘Millennium-ready’, ‘a slice of legal life’ and‘a forward publication that I look forward to’.

Thank youThank you again to all those who took the timeto respond to this year’s survey. I hope we cancount on you to give us the benefit of youropinions in our next one too. For our part, weshall try to address the issues highlighted bythe results and will continue working toimprove the Gazette to make sure that itremains the definitive source of news andinformation for the legal profession. G

42 39 19

29 41 30

Irish legaldevelopments

Feature articles on the

law

Europeanlegal

developments

Informationtechnology

Business andmanagement

issues

28 42 30

23 44 33

11 33 56

0% 20% 40% 60% 80% 100%

SURVEY PRIZEDRAW RESULTS

The first name out of the hat in the Gazette

Reader Survey Prize Draw was Fergus

Goodbody from Dublin 2, who wins a weekend

for two in London. Five runners-up each won a

bottle of Jameson’s whiskey. They were: PJ

Larkin, Booterstown, Co Dublin, John Dunne,

Dublin 2, Suzanne Tucker, Dublin 2, Oliver

O'Sullivan, Castlepollard, Co Westmeath, and

Terence G O'Keeffe, Dublin 2. The winners will

be contacted shortly.

Council reportReport on Council meeting held on 22 January 1999


BRIEFINGBRIEFING

Proposed designation of solicitors pursuant tosection 32 of the CriminalJustice Act, 1994John Fish updated the Council onthe submission made by the CCBEtask force to the European Com-mission regarding the Commis-sion’s proposal to extend the provi-sions of the Money-launderingdirective to lawyers. He noted thatthe Law Society’s sub-committeewas also examining proposalsmade to their national govern-ments by the Dutch and Danishbars on self-regulating proceduresadopted in relation to money laun-dering in those jurisdictions.

First annual report of theIndependent Adjudicatorof the Law SocietyThe Council noted the first annualreport of the IndependentAdjudicator of the Law Society,which had been circulated. ThePresident said that, under theSolicitors (Adjudicator) Regula-tions 1997, it was for the Society tofurnish the Adjudicator’s report tothe Minister and to promulgate it tothe public and to the solicitors’ pro-fession. The Council agreed thatthis should be done following con-sultation with the IndependentAdjudicator.

(Apprentices’ Fees)Regulations 1998The President reported that the(Apprentices’ Fees) Regulations1998 had been signed by thePresident of the High Court andwould come into effect on 1February 1999.

Law Clerks JLCGerard Doherty reported that anumber of responses had been

received to the letter to managingpartners on the proposed pensionscheme for solicitors’ employeesand these were currently being col-lated. Hugh O’Neill confirmed thatthe Employment Law Committeewas also considering the matter.

Solicitors (Amendment)Bill, 1998The Council approved the appoint-ment of a working group to draftregulations and guidelines in antic-ipation of the enactment of theSolicitors (Amendment) Bill, 1998.The group will be chaired by JohnD Shaw and the members areDavid Martin, Niall Farrell,Michael V O’Mahony, KenMurphy and Mary Keane, with thepower to co-opt two additionalmembers. The Director Generalconfirmed that the Department ofJustice believed that the Bill wouldbe enacted before Easter.

Courts ServiceThe President reported that he hadhad a useful and interesting meet-ing with PJ Fitzpatrick, ChiefExecutive Designate of the CourtsService, together with the DirectorGeneral and Deputy DirectorGeneral Mary Keane. MrFitzpatrick clearly regarded thesolicitors’ profession as a vital userof the Courts Service, evidencedby his decision to meet the Societyon his third day in office. Hebelieved that the Courts Servicemight be formally established dur-ing the Long Vacation and hadagreed to circulate a copy of thenew Courts Service newsletter tothe Society’s members.

Insurance Bill, 1998Deputy Director General MaryKeane briefed the Council on a

meeting to be held with theDepartment of Enterprise, Tradeand Employment, the CentralBank and the Department ofFinance during the followingweek to discuss how the proposedInsurance Bill, 1998 might applyto solicitors providing insuranceservices to their clients.

CCBEThe Society’s representative onthe CCBE, Geraldine Clarke,briefed the Council on the ParisForum on Transnational Practiceand the Plenary Session in Lyon inNovember 1998. The Councilapproved the appointment of JohnFish to the Irish delegation to theCCBE.

Education CentreThe President reported that thefirst meeting of the EducationCentre Development Board hadbeen held on the previous day. Heconfirmed that the proposedfaçade of the building had beensubstantially altered and that thearchitects would be asked to pro-duce a new model of the buildingfor display purposes.

Action plan for theCouncil for 1999The Council approved its actionplan for 1999, as follows:● Construction of Education

Centre● Revise Solicitors Accounts

Regulations● Launch web site● Prepare solicitors for introduc-

tion of the euro● Review, promote and enhance

members’ services● Promote EU law and educate

the profession● Produce regulations on incor-

poration of solicitors’ practices● Consider draft discussion docu-

ment on future of the profes-sion

● Advance further plans forimproving the Society’s tech-nology

● Improve working environmentfor executives and staff

● Encourage greater use by theprofession of the building

● Consider report of the CouncilDevelopment Review Group

● Adopt five-year financial plan1999/2003

● Review Negligence Panel● Consider structure of member-

ship subscription● Advance implementation of the

Establishment directive.

Professional indemnityinsurance: pool managerThe Council approved theappointment of William Fields asthe Pool Manager under theProfessional Indemnity InsuranceRegulations.

Future of the profession:discussion documentA discussion document on thefuture of the profession had beencirculated. Michael Irvine notedthat the Future of the ProfessionCommittee had been establishedin 1997, arising from a recom-mendation in the Review WorkingGroup Report. He urged that theCouncil would view the documentas a basis for debate, discussionand guidance, rather than agreedproposals requiring implementa-tion. The President thanked MrIrvine and the members of thecommittee for production of thediscussion document, whichwould be considered at the MarchCouncil meeting.


BRIEFINGBRIEFING

Report on Council meeting held on 5 March 1999Northern Ireland nomineesThe President welcomed the extra-ordinary members of the Councilfrom the Law Society of NorthernIreland, who were in attendance.

Motions for considerationat the April meeting‘That this Council approves thedraft regulations providing for theestablishment of a mandatory in-house complaints procedure inevery firm of solicitors.’Proposed: Francis D DalySeconded: John D Shaw

‘Having regard to the UN Basicprinciples on the role of lawyers,and the non-political concernexpressed by the internationallegal community, that this Councilsupports the action taken by theInternational Bar Association inwriting on 9 February 1999 to theRight Honourable Tony Blair MPand resolves to play its part byacceding to the request made tothe Society by the InternationalBar Association to write to MrBlair in like terms to seek toensure that an independent judi-cial inquiry is carried out into thecircumstances surrounding themurder of our late colleaguePatrick Finucane.’Proposed: James MacGuillSeconded: Anne Colley

‘That this Council notes the dis-cussion document on the future of

the profession prepared pursuantto the Report of the Law SocietyReview Working Group (1995)and resolves that it be madeavailable to the profession anddiscussed with bar associations.’Proposed: Michael IrvineSeconded: Anne Colley

Working Group on Eligibility forAppointment as Judgesof the High and Supreme CourtsThe Council warmly welcomedthe Report of the working groupon eligibility for appointment asjudges of the High and SupremeCourts and, in particular, its rec-ommendation that practisingsolicitors of not less than 12years’ standing and with tenyears’ litigation experiencebefore the High and SupremeCourts should be qualified forappointment as judges of thosecourts.

The President noted that thisreport by a Government-estab-lished independent workinggroup represented a major mile-stone on the road to eligibility ofsolicitors for all judicial appoint-ments, something which hadbeen a policy objective of theSociety for many decades. Hecongratulated the Society’s repre-sentatives on the working group.

Michael Carroll noted that theSociety’s submission to theworking group had made no dis-

tinction between in-house solici-tors and solicitors in privatepractice. The working group’srecommendations favouredsolicitors in private practice, inproviding that in-house solici-tors and solicitors in the publicservice would not be eligible fordirect appointment to the Highand Supreme Court bench,although five years’ litigationexperience as an in-house solici-tor or solicitor in the public ser-vice would count towards the tenyears required. He expresseddisappointment with these rec-ommendations from the point ofview of in-house solicitors.

The Director General saidthat the group’s recommenda-tions represented a compromisereached after very lengthy dis-cussion and negotiations. It hadnot proved possible to convincethe group that all solicitorsshould be eligible for judicialappointment. The final recom-mendations were, in the view ofthe Society’s representatives onthe group, the very best resultachievable in the circumstances.

Finance Bill, 1999John Costello reported that theviews of the Taxation Commit-tee on certain provisions of theFinance Bill, 1999 had beencommunicated in writing to theMinister for Finance. In particu-lar, the committee hadexpressed its grave concerns

regarding (a) the proposed dis-closure of third-party informa-tion to authorised officers, withconsequent implications for theprinciple of solicitor/client con-fidentiality, (b) the lack of ade-quate notice and appeals provi-sions, and (c) the lack of provi-sion for compliance costs. Thecommittee had also called for theappointment of an ombudsman.Hugh O’Neill said that the pro-posed legislation representedfurther inroads into the funda-mental principle of confidential-ity. John Harte urged that theSociety would state its concernspublicly.

Younger MembersRemuneration SurveyThe President reported that theSociety had engaged statisticalconsultants to review the conductand results of the YoungerMembers Remuneration Survey.A further meeting with the con-sultants had been scheduled andit was hoped to have their analy-sis for consideration at the AprilCouncil meeting.

Web site launchOn behalf of the Council, thePresident congratulated all thoseinvolved in the launch of theSociety’s web site on 10February. He reported that thesite had been nominated byIreland online as one of the topten sites for March. G

PRACTICE NOTEClawback of stamp duty exemption/partial releaseThe Conveyancing Committee would

like to bring the following letter to

the attention of practitioners. It is a

response to a query in relation to

clawback of stamp duty exemp-

tion/partial release for new houses

under the Finance (No 2) Act, 1998:

‘Ms Vivienne Bradley

McCann FitzGerald

9 February 1999

Re: Finance (No 2) Act, 1998 –

stamp duty clawback

Dear Ms Bradley,

I refer to your letter dated 22

January 1999, on behalf of the Law

Society Conveyancing Committee,

in relation to the stamp duty claw-

back provisions in the Finance (No

2) Act, 1998.

Under the Finance (No 2) Act,

1998, the stamp duty exemption/

partial relief for new houses was

limited to houses which are pur-

chased by, or on behalf of, persons

who will occupy them as their only

or principal place of residence. The

stamp duty will be clawed back if

rent is derived from the house dur-

ing the period of five years from

the date of the purchase or until

the sale of the house within the

said five-year period, whichever

event first occurs. The clawback is

in the form of a fine, payable by

the purchaser who originally

obtained the benefit of the

exemption/partial relief.

I can confirm that a subsequent

purchaser of a house, where a

clawback has arisen, has no

responsibility in relation to the

clawback and is under no obliga-

tion to Revenue to make any

enquiries as to whether circum-

stances giving rise to such a claw-

back have arisen.

Seamus Carey, Assistant Principal,

Stamp Duty Technical Unit’

Committee reports


BRIEFINGBRIEFING

Undertakings: house inthe course of construction– a reminderThe Conveyancing Committeewould like to remind practition-ers of the practice note publishedby the committee in theNovember 1990 issue of theGazette and republished lastSeptember at page 5.10 of thenew Conveyancing handbook.Once again, practitioners arereminded that a solicitor whogives a certificate of title under-takes to furnish an engineer’s or

CONVEYANCING architect’s certificate that theproperty in question has beenerected in accordance with theplanning permission granted. Inthe case of a house in the courseof construction, a solicitor cannotundertake this and where thelending institution is paying outthe loan by instalments, the solic-itor’s undertaking to the lendinginstitution should be amendedaccordingly. If the undertaking tothe lending institution is notamended, and if a practitionerpays out a loan cheque or anyinstalment of a loan to his clientbefore the house is completed, heis at risk if there is a failure by his

client to comply with the plan-ning permission granted.

Revenue Commissioners’requirement for bankguarantee for solicitors’cheques for stamp dutyThe Conveyancing Committee istrying to find out what proportionof practising solicitors currentlypay fees to banks in respect of theabove bank guarantee which isrequired by the RevenueCommissioners in respect of solic-itors’ cheques for stamp duty. Thecommittee has arranged to circu-larise the presidents and secre-taries of bar associations around

the country with this query.Practitioners may therefore sendtheir response to the Law Society,either through their local bar asso-ciation or directly to the secretaryof the Conveyancing Committeeat the Law Society. Please arrangeto forward your response beforethe end of April 1999.

Depending on the responsereceived, the committee may con-sider approaching the RevenueCommissioners to see if therequirement for the guarantee canbe dispensed with or may consid-er some other recommendation tothe practitioners in the matter.

Conveyancing Committee

IRISH KIDNEYASSOCIATIONDonor House, 156 Pembroke Road, Ballsbridge, Dublin 4.Tel: 01 -668 9788/9 Fax: 01 - 668 3820

The Irish Kidney Association was formed in 1978 to:

1. Promote the general welfare of persons suffering kidney failure - financial and psychological.

2. To give advice and guidance to parents and relatives.

3. To arrange lectures, conferences and meetings pertaining to kidney disease.

4. To support research projects into the causes and effects of inherited disorders and kidney failure.

5. To print and distribute the Multi-Organ Donor Cardand actively promote public awareness of organ failure.

REMEMBER US WHEN MAKING A WILL!

Certified by the Revenue Commissioners as a charity: 6327

OUR FINANCIAL ASSISTANCE IS NATIONWIDE

WHERE THERE’S A WILLTHIS IS THE WAY…

5 Northumberland Road, Dublin 4. Tel: (01) 668 185515 Bridge Street, Cork. Tel: (021) 509 918

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

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

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

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


BRIEFINGBRIEFING

SELECTED STATUTORYINSTRUMENTS

Aliens (Amendment) (No 2)

Order 1999

Number: SI 24/199

Contents note: Requires aliens

who are in employment or entering

into employment to have a work

permit. States the grounds on which

an immigration officer may refuse

leave to land to an alien

Commencement date: 3/2/1999

Aliens (Visas) Order 1999

Number: SI 25/1999

Contents note: Specifies the states

whose citizens are required to have

transit visas, and the states whose

citizens are exempt from Irish visa

requirements


Companies (Forms)

(Amendment) Order 1999

Number: SI 14/1999

Contents note: Gives effect to

changes in the way foreign public

documents are authenticated/

legalised, arising from the ratifica-

tion by Ireland and coming into

force of the Convention abolishing

the legalisation of documents in the

Member States of the European

Communities, the European conven-

tion on the abolition of the legalisa-

tion of documents executed by

diplomatic agents or consular offi-

cers, and the Hague convention

abolishing the requirement of legal-

isation of foreign public documents


Education Act, 1998(Commencement) Order 1999

Number: SI 29/1999

Contents note: Appoints 5/2/1999

as the commencement date for ss2,

3, 4, 5, 6, 13, 25, 26, 36, 37 and parts

VIII and IX of the Act

European Communities (Award

of Contracts by Entities operat-

ing in the Water, Energy, Trans-

port and Telecommunications

Sectors) Regulations 1999

Number: SI 31/1999

Contents note: In awarding supply,

works or service contracts, contract-

ing entities shall apply procedures

which are adapted to and comply

with the provisions and relevant

procedures of Council Directive

93/38/EEC (as last amended by

European Parliament and Council

Directive 98/4/EC)


Freedom of Information Act,1997 (Section 6(4)(b))

Regulations 1999

Number: SI 46/1999

Contents note: Provide that

requesters, having access to certain

records of third parties by virtue of

regulations made under section

28(6) of the Freedom of Information

Act, 1997, may access such records

created prior to the commencement

of the Freedom of Information Act


Freedom of Information Act,1997 (Section 28(6)) Regulations

1999

Number: SI 47/1999

Contents note: Prescribe the class-

es of individual whose records will

be made available to parents and

guardians, and the classes of

requester to whom the records of

deceased persons will be made avail-

able, having regard to relevant cir-

cumstances and to guidelines pub-

lished by the Minister for Finance


Health Insurance Act, 1994(Commencement) Order 1999

Number: SI 28/1999


as the commencement date for

ss12(1), 12(2), 12(3), 12(6), 12(7), 17,

19 and 34

Intoxicating Liquor Act, 1988(Age Card) Regulations 1999

Number: SI 4/1999

Contents note: Provide for a volun-

tary, national age card scheme.

Cards can be obtained by persons

who have attained 18 years of age,

in order to confirm that they have

attained the legal age for the pur-

chase of intoxicating liquor


Landlord and Tenant(Amendment) Act, 1980 (Section

13(4)) Regulations 1999

Number: SI 52/1999

Contents note: Extend the period

of operation of section 13(3) of the

Landlord and Tenant (Amendment)

Act, 1980 (inserted by the Landlord

and Tenant (Amendment) Act, 1989)

by five years

Organisation of Working Time

(Public Holidays) Regulations

1999

Number: SI 10/1999

Contents note: Appoint 31/12/1999

to be a special public holiday in cel-

ebration of the Millennium

Parental Leave (Disputes and

Appeals) Regulations 1999

Number: SI 6/1999

Contents note: Prescribe proce-

dures to be followed in relation to

the hearing of disputes and appeals

by a rights commissioner or the

Employment Appeals Tribunal under

part IV of the Parental Leave Act,

1998. Also provide for matters inci-

dental to the hearing of such dis-

putes and appeals, including the

contents of notices of dispute and

appeal, notifications of decisions

and determinations, the fixing of

hearings and procedures at hearings

and the awarding of costs and

expenses


Parental Leave (Maximum

Compensation) Regulations

1999

Number: SI 34/1999

Contents note: Prescribe the

method of calculating maximum

compensation for the purposes of

redress under part IV of the Parental

Leave Act, 1998


Rules of the Superior Courts

(No 1) (Proof of Foreign

Diplomatic, Consular and Public

Documents) 1999

Number: SI 3/1999

Contents note: Insert additional

parts VII, VIII and IX to order 39 of

the Rules of the superior courts pur-

suant to the ratification of: the

Convention abolishing the legalisa-

tion of documents in the Member

States of the European Commun-

ities; the European convention on

the abolition of the legalisation of

documents executed by diplomatic

agents or consular officers; and the

Hague convention abolishing the

requirement of legalisation of for-

eign public documents


Social Welfare Act, 1998 (Part

IV) (Commencement) Order

1999

Number: SI 45/1999


as the commencement date for part

IV of the Social Welfare Act, 1998.

Part IV of the Act provides for: the

introduction of a new personal

social service number (PSSN) which

will replace the Revenue and Social

Insurance (RSI) number and will be

used as a unique identifier within

the public service; the introduction

of a public service card and a pay-

ment card; the sharing of informa-

tion between specified bodies for

the purposes of determining enti-

tlement to certain social services

and for the control of such services

Taxes Consolidation Act, 1997(Section 472B) (Commencement)

Order 1999

Number: SI 48/1999


as the commencement date for

s472B (inserted by s14(1)(b) of the

Finance Act, 1998) of the Taxes

Consolidation Act, 1997. Section

472B provides for a new annual tax

allowance for seafarers who meet

certain conditions

Western DevelopmentCommission Act, 1998(Establishment Day) Order 1999

Number: SI 9/1999


as the establishment day for the

Western Development Commission

Prepared by the Law Society

Library

LEGISLATION UPDATE: 1 JANUARY–15 MARCH


BRIEFINGBRIEFING

Solicitors’ Benevolent Association 135th Report and Accounts

Year 1 December 1997 to 30 November 1998

The Solicitors’ Benevolent Association,founded in 1863, is the profession’s vol-

untary charitable body. It consists of mem-bers of the profession throughout Irelandwho contribute to our funds, and its aim isto assist members or former members of theprofession and their spouses, widows, wid-owers, families and dependants who are inneed. The association also provides adviceand financial assistance on a confidentialbasis and functions independently of bothlaw societies.

The amount paid out during the year ingrants was IR£172,223. Currently there are56 beneficiaries in receipt of regular grants.One third of these are aged 50 years oryounger and they have approximately 60dependant children between them.

The association is only in a position toprovide beneficiaries with the bare necessi-ties to live and the vast majority of appli-cants would be in receipt of social welfareassistance from the State. All cases are keptunder regular review.

It has been the policy of the directors inrecent years to provide financial assistancein suitable cases by way of loans repayableby the estate of the applicant or out of theproceeds of sale of any assets which he orshe may have. Applicants are asked to com-

plete documentation in acknowledgementof such loan and you will see that the repay-ment of some of these loans is included inthis year’s accounts for the first time.

The activities of the association arehelped not only by individual or special sub-scriptions, but also by organised groups ofthe profession including bar associationsand the Younger Members’ Committee.There are currently 23 directors, three ofwhom reside in Northern Ireland, and theymeet monthly in the Law Society’s offices,Blackhall Place. They meet at Law SocietyHouse, Belfast, every other year. The workof the directors, who provide their servicesentirely on a voluntary basis, consists in themain of reviewing applications for grants.The directors also make themselves avail-able to those who may need personal orprofessional advice.

The directors are grateful to both LawSocieties for their support and, in particular,wish to express thanks to Laurence KShields, Past President of the Law Society ofIreland; Antoinette Curran, Past Presidentof the Law Society of Northern Ireland; KenMurphy, Director General of the Law Societyof Ireland; John Bailie, Chief Executive ofthe Law Society of Northern Ireland and allthe personnel of both societies.

I wish to express particular appreciationto all those who contributed to the associa-tion when applying for their practising cer-tificate, to those who made individual con-tributions and to the following:

Belfast Solicitors’ Association, the DublinSolicitors’ Bar Association, the estate ofWilliam Brimage deceased, Faculty of Not-aries Public, the Law Society, Irish DocumentExchange, Kerry Law Society, LimavadySolicitors’ Association, Ladies’ Solicitors GolfSociety, Local Authorities Solicitors’Association, publishers of the Lawyers’ deskdiary, Roscommon Bar Association, theTipperary and Offaly Bar Association,Waterford Law Society, West Cork BarAssociation, Younger Members’ Committee.

To cover the ever greater demands onthe association, additional subscriptions aremore than welcome as, of course, are lega-cies, and I would urge all members of theassociation, when making their own wills,to leave a legacy to the association. You willfind the appropriate wording of a bequestat page 30 of the Law directory.

I would like to thank all the directors andthe association’s secretary, Geraldine Pearse,for their valued hard work, dedication andassistance during the year.

Thomas A Menton, Chairman

DIRECTORS AND OTHER INFORMATION

Chairman: Thomas A MentonDeputy Chairman: John Sexton

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

DirectorsSheena Beale, DublinPatrick J Daly, GalwayDesmond Doris, BelfastRobert M Flynn, CorkJohn Brian Garrett, BelfastColin Haddick, NewtownardsGerald Hickey, DublinCarmel Jenkins, BallinaNiall D Kennedy, TipperaryFrank Lanigan, CarlowBrendan J Lynch, Carrick-on-ShannonNoelle Maguire, DublinEtta Nagle, CorkMichael O’Connell, TraleeJohn M O’Connor, DublinSylvia O’Connor, WexfordBrian K Overend, DublinColm Price, DublinTomas D Shaw, MullingarAndrew F Smyth, DublinPatrick F Treacy, Nenagh

SecretaryGeraldine Pearse

BankersAIB plc37/38 Upper O’Connell StreetDublin 1

First Trust31/35 High StreetBelfast BT1 2AL

StockbrokersBloxham Stockbrokers2 - 3 Exchange PlaceIFSCDublin 1

AuditorsPricewaterhouseCoopersChartered Accountants and Registered AuditorsGeorge’s QuayDublin 2

Offices of the AssociationLaw Society of IrelandBlackhall PlaceDublin 7

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

RECEIPTS AND PAYMENTS ACCOUNT 1 DECEMBER 1997 TO 30 NOVEMBER 1998

1998 1997Receipts IR£ IR£ IR£ IR£Subscriptions 164,503 133,157Donations 19,601 40,582Investment income 27,677 25,630Bank interest 3,414 451Tax refund 3,022 —Repayment of grants loaned 3,900 —

222,117 199,820PaymentsGrants 175,223 188,083Bank charges 823 1,547Administration expenses 9,599 185,645 13,100 (202,730)

Surplus/(deficit) for year before Special events proceeds 36,472 (2,910))Lawyers diaries 1997 and 1998 12,532 —Maracycle 1,205 —Irish conveyancing precedents publication 5,082 701Trial by Jury 5,500 —Library book sale 663 24,982 — 701

Surplus/(deficit) for year before legacies 61,454 (2,209)Legacies 2,238 38,350

63,692 36,141Transfer to reserve account (50,000) —Surplus for year 13,692 36,141

ACCOUNTING POLICIESa) Accounting conventionThe accounts have been prepared underthe historical cost convention. The currencyused in these accounts is the Irish pound asdenoted by the symbol IR£.b) Receipts and payments Receipts and payments are recognised inthe accounts as they are received and paid.c) InvestmentsInvestments are stated at cost less provisionfor any permanent diminution in value.

d) SterlingAssets and liabilities denominated in ster-ling are converted to Irish pounds at therate of exchange prevailing at the balancesheet date. Income and expenditure denom-inated in sterling are converted to Irishpounds at the average exchange rate pre-vailing during the year. The rates applicablefor the year ended 30 November 1998 were:

IR£ Stg£• Year End 1 0.8895• Average 1 0.8590

ACCOUNTANTS’ REPORTWe have prepared the accounts set outabove for the period 1 December 1997 to30 November 1998 from the accountingrecords and information and explanationssupplied to us. In our opinion, the accountsare in accordance therewith.

PricewaterhouseCoopersChartered Accountants and

Registered AuditorsDublin


BRIEFINGBRIEFING

Negligence – duty of care – bank customer onbank’s premises

CaseJohn Coffey v Bank of Ireland,High Court, before Mrs JusticeMcGuinness, judgment of 23January 1998.

The factsJohn Coffey, a 40-year-old man,married with two children,received a loan of £2,000 from theBank of Ireland. Over the periodsince the loan was taken out, some£3,000 was paid off. His ill andelderly father, as guarantor, hadpaid off £2,000. About £1,300remained owing to the bank. Bankof Ireland had instituted proceed-ings against John Coffey and hewas in danger of being committedto prison arising out of non-pay-ment of the sum of about £1,300.

John Coffey visited the manag-er of his local branch of Bank ofIreland and asked to be giveneither his file or a copy of his file.The bank manager stated that hewas unable to provide the informa-tion sought. On 8 December 1993,Mr Coffey visited the bank for thesecond time. He alleged that heagain asked for a copy of his fileand was refused. He becameextremely stressed and left thebank, got petrol out of his car, andreturned to the bank. He thenasked for the file again and wasrefused again. He asked the bankmanager whether this was his lastword. The manager allegedly saidit was. Mr Coffey then proceededto pour petrol over himself and tostand with a cigarette lighter in hishand. He suffered burns. It wasalleged that there was a certaintime-lapse in relation to producinga fire extinguisher. Mr Coffey suedthe Bank of Ireland for negligence.The bank denied negligence.

The judgmentMcGuinness J considered that shemust examine the case from thecontext of the duty of care the

bank owed to a customer on thebank’s own premises. She statedthat one would expect the bank tohave a duty of care, for example,to prevent people from tripping orslipping up on improperly-main-tained floors and so on.

The judge referred to the caseof Donoghue v Stephenson whereLord Atkin stated that the rule thatyou are to love your neighbourbecomes, in law, that you must notinjure your neighbour. In answerto the question ‘who is my neigh-bour?’, the reply was that a personmust take reasonable care to avoidacts or omissions which such aperson could reasonably foreseewould be likely to injure personswho are so closely and directlyaffected that a person ought rea-sonably to have been in contem-plation as being so affected.

The judge stated that she had toconsider whether what had‘sparked off’ Mr Coffey’s actionwas reasonably foreseeable by thebank manager and the bank as awhole. The judge held that therewas not a long delay between MrCoffey pouring the petrol overhimself and the action which wastaken to deal with the situation. Itwas clear, according to the judge,that in the circumstances where thecustomer was about to be commit-ted to prison by the bank, onecould expect him to be distressedor even expect him to be angry orabusive. But it was not reasonablyforeseeable that the customerwould douse himself with petroland threaten to set himself alight.In spite of the fact that she hadconsiderable sympathy for MrCoffey, who had suffered terribleand life-long injuries, McGuinnessJ considered that she must dismisshis case for damages against thebank.

The judge proceeded, obiter, todraw attention to the course of therelationship between the bank andJohn Coffey. She acknowledgedthat he owed money to the bankand he did not pay it. He had actedvery foolishly in hiding his head in

the sand, and not going in and talk-ing to the bank and negotiatingwith them. Someone perhaps‘more privileged, more educatedand more monied’ would have thesense or knowledge to negotiatewith the bank. John Coffey was aperson without ‘clout’ and nobackground of dealing with banks.

The judge noted that it wascommon knowledge that banksfound themselves from time totime in situations where they hadlent large sums, sometimes topeople who are not particularlygood credit risks and, when therewas a failure to repay, the bankssometimes reached a compromisefor a much lesser sum than wasowed, or indeed wrote sums off asbad debts. The judge noted that itwould be rather rare to see one ofthese large debtors actually com-mitted to prison. Yet, in theCoffey case, involving a compar-atively trivial sum of money owedby a man of extremely smallmeans, the bank seemed to havetaken a decision to pursue the debtto the utmost. Twice they soughtto have Mr Coffey committed toprison. The judge stated that onemust be moved to ask whetherthis pursuit of the sum of £1,300to the gates of Mountjoy was real-ly necessary.

Counsel for the bank asked forcosts. Counsel for Mr Coffeyargued that his client’s sense ofgrievance was evident to thecourt. He drew attention to thefact that from 1993 to the day hedies, Mr Coffey would be leftwith dreadful scars and a dreadfuldisability. Counsel referred to thejudge’s discretion on costs and inthe light of the circumstances sub-mitted that the judge should exer-cise her discretion in Mr Coffey’sfavour.

McGuinness J stated that, inthe vast majority of cases, costsfollowed the event. In the particu-lar circumstances of the case, sheexercised her discretion and statedthat she would not make any orderas to costs.

Public liability – fall in department store – liability of owners ofdepartment store

CaseCatherine Molloy v Arnotts plc,High Court, before Mr JusticeBarr, judgment of 2 July 1998.

The factsOne of the enjoyments ofCatherine Molloy, a 78-year-oldlady living in Kimmage, Dublin,was shopping in Dublin city cen-tre. Her favourite shop wasArnotts Department Store inHenry Street, Dublin. Mrs Molloyhad suffered heart trouble in 1981and in 1984 was fitted with apace-maker. She was prescribedanti-coagulant medication on adaily basis. She was otherwise ingood physical condition for a ladyof her age.

On 19 April 1995, Mrs Molloyand her friend Violet Fagan, alady of similar age and disposi-tion, took the bus to the city cen-tre and, as usual, Arnotts in HenryStreet was the focal point of theirinterest. Both ladies had lunch inthe café on the first floor and thendecided to visit the footwear sec-tion on the ground floor. Whilewalking in the vicinity of theinformation desk near the scarvessection, Mrs Molloy fell and suf-fered a displaced fracture of herleft femur.

In evidence, Mrs Molloy statedthat she and her companion werewalking normally and at the infor-mation desk her foot got caught inthe carpet nosing. The toe of herleft shoe caught and she tripped.She tried to hold onto her friendbut fell and landed on her side.She was wearing a T-bar strapshoe.

In evidence, Violet Fagan stat-ed that she was 77 years of ageand had been a friend of MrsMolloy for nearly 50 years andthat she had never known her tocollapse. She confirmed that theywere regular visitors to Arnotts

Personal injury judgments


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and that they went there two orthree times a week.

Mrs Fagan stated that after herfriend’s shoe got caught in the car-pet and had fallen, a lady cameover and subsequently so did anurse. The lady was Anne Warrenfrom the nearby scarves section.There was evidence that at thetime of the accident there weretwo floor managers within a fewfeet of where Mrs Molloy fell andwho were aware that she, anelderly customer, had sufferedinjury but neither approached her.It was left to the first-aid workerto ascertain the identity andaddress of the injured party.

An ambulance arrived and MrsMolloy was taken to the MaterHospital. Mrs Fagan (the plain-tiff’s friend) was given a voucherfor a free lunch in the restaurant.She returned the next day to availof the lunch and had a discussionwith staff in the area of where theaccident happened. Mrs Faganexplained to them that her friendMrs Molloy had caught her footon the border of the carpet. In evi-dence, Mrs Fagan stated that shewas told that a man had come andnailed down the nosing of the car-pet and when she looked at it onthe day after the accident it was infact well nailed down. The raisedarea had gone.

Mrs Fagan stated that herfriend Mrs Molloy was not thesame person as she was before theaccident. If they go out, they haveto take a taxi and do not go shop-ping now. Mrs Molloy suedArnotts for negligence.

Three witnesses gave evidenceon behalf of Arnotts. EamonnGalvin, who was a floor managerat the time, stated that the carpetnosing had not been altered to hisknowledge since the accident. Heconfirmed in evidence that it washis function to ensure that the

floor in the store was in a safecondition for patrons and others.Mr Galvin stated that the reasonwhy Mrs Molloy fell was that shehad collapsed and that there wasno other explanation. Mr Galvinsaw no defect in the flooring.

Ann Warren, the assistantmanager in the scarves depart-ment, also gave evidence. Shesaid that she saw Mrs Molloy fallas she was fixing scarves on anearby stand. She was unable toexplain how Mrs Molloy endedup on the carpet. To the best ofher knowledge, Mrs Molloy’sfoot did not get trapped. She didnot trip.

John O’Brien, the senior floormanager in Arnotts, also gave evi-dence. He did not see Mrs Molloybefore she was lying on the floor.In evidence, he stated that he per-sonally inspected the nosing of thecarpet and there was no lip on it.

The judgmentHaving outlined the facts of thecase, Barr J stated that Mr Galvin,the floor manager for Arnotts,was endeavouring to establishthat there was no relevant defectin the premises for which hewould have responsibility. Thejudge stated that it emerged inevidence that Arnotts carried itsown insurance and that both MrO’Brien and Mr Galvin wouldhave to accept responsibility toArnotts if it transpired that theaccident had been caused by adefect in the premises of whichthey ought to have been aware.The judge stated that, bearing inmind that the nosing was allegedto have been raised within feet ofMr O’Brien and Mr Galvin’s ownwork station, it was probable thatfailure to notice such a defect, if itexisted, would have been regard-ed as a serious lapse.

The judge stated that if the evi-

dence given by Mr Galvin and MrO’Brien was correct – that thecarpet nosing was not defective inany way, and that Mrs Molloy hadappeared to fall on the passage-way of her own volition, that shehad collapsed spontaneously –then three inescapable conclu-sions followed. First, two appar-ently respectable ladies of a con-servative background had con-spired to perpetrate a seriousfraud on Arnotts. Secondly, thatthey had conspired and deliber-ately perjured themselves in evi-dence. Thirdly, Mrs Fagan (theplaintiff’s friend) had aggravatedthe matter by deliberately lyingabout what she alleged she wastold by members of staff and whatshe saw when she returned to thestore on the following day, anddid so with the intention of bol-stering the fraud.

Having regard to thedemeanour of the two ladies, thenature of their evidence and themanner in which they gave theirtestimony, Barr J rejected anysuch conclusion.

Barr J stated that there was noevidence to support the con-tention that Mrs Molloy had col-lapsed spontaneously. A conceptof a brittle bone being responsiblefor the fall advanced as a possibil-ity by the surgeon for Arnotts wasemphatically rejected by the sur-geon for Mrs Molloy. Barr J con-cluded that he had no doubt thatMrs Molloy and her friend MrsFagan had given an honest, truth-ful account of what had causedthe accident. He was also satisfiedthat that there was no sustainableevidence of contributory negli-gence on the part of Mrs Molloy.He stated that there had been adefective nosing in the carpet andit would not have been readilyapparent to elderly ladies.

Having noted that Mrs Molloy

had suffered a major dislocationof her left femur which necessitat-ed the fixation of a long plate, heaccepted that she had sufferedgreat pain from the injury. Shewas detained in the MaterHospital for two weeks. Her con-valescence was slow and the sur-geon had stated that it did notunite for five months. She wastransferred to the OrthopaedicHospital at Clontarf where sheremained as an in-patient for afurther three months. The endresult was that she had one-and-a-half inches of shortening of theleft leg which necessitated a raisein her shoe. There was a wastingof the muscles, and she has a limp.Barr J held that she had suffered apermanent substantial residualdisability and, in the view of thesurgeon, her degree of locomotionhad been severely compromised.Her confidence had suffered. Shenow walks with the aid of a stickand has difficulty in gettingaround. She cannot take a bathwithout help.

Barr J noted that her pre-acci-dent shopping expeditions in thecity were at an end. She wasunable to travel by bus and mustbe conveyed in a motor car. Heconcluded that she had lost herindependence and was deprivedof many of the facets of life whichgave her existence meaning andenjoyment prior to the accident.

In relation to damages, therewere agreed special damages at£500. Barr J awarded £60,000 forpain, suffering and disablement todate and £30,000 for pain, suffer-ing and continuing disablement inthe future. This brought the totalto £90,500.

These judgments were sum-marised by Dr Eamonn Hall,Solicitor, from Doyle court reportsof personal injury judgments.

G

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LAW SOCIETY ROOMSat the Four Courts

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at the Four Courts 668 1806

ILT digestof legislation and superior court decisions

Compiled by David P Boyle


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Western DevelopmentCommission Act, 1998(No 42 of 1998)This Act was signed into law by thePresident on 25 November 1998.

Appropriations for coming yearThe sum of £13,217,471,000 isintended to be appropriated for thepurposes expressed in the sched-ule to the Appropriation Bill.Appropriation Bill, 1998

Plant Varieties (Proprie-tary Rights) (Amendment)Act, 1998 (No 41 of 1998)This Act was signed into law bythe President on 16 November1998.

Dog control measuresA set of regulations and an order:● Consolidate and amend certain

regulations on dog control● Provide for special controls for

certain breeds● Provide for a system of collar

identification to be worn by

ANIMALS

AGRICULTURE

ADMINISTRATIVE dogs generally● Extend the scope of the ‘on-the-

spot’ fine system, and● Provide that the Control of

Dogs (Amendment) Act, 1992comes into operation on 1February 1999.

Control of Dogs Regulations 1998and Control of Dogs (Amend-ment) Act, 1992 (Commencement)Order 1998 (SI Nos 442 and 443of 1998)

Comptroller to investigate non-residentDIRT accounts affairA Bill has been presented, andpassed by Dáil Éireann, whichseeks to:● Allow the Comptroller and

Auditor General to examineand investigate the assessmentand collection by the RevenueCommissioners of income tax(deposit interest retention tax)which certain financial institu-tions were legally required todeduct from certain deposits ofmoney held with them, and

● To amend the Committees ofthe Houses of the Oireachtas(Compellability, Privileges andImmunities of Witnesses) Act,1997 and the Comptroller andAuditor-General Act, 1923.

BANKING

Comptroller and AuditorGeneral and Committees of theHouses of the Oireachtas(Special Provisions) Bill, 1998

Changes to rules concerning names onbuilding societyaccounts?A private member’s Bill hasbeen introduced which, ifpassed, will provide that:● Where two or more persons

jointly hold shares in a build-ing society, they shall shareequally those shares exceptwhere determined otherwiseeither by agreement betweenthe parties or by a court

● Where two or more personsborrow jointly from a build-ing society on foot of a mort-gage, they shall be deemedjoint borrowers except wheredetermined otherwise eitherby agreement between theparties or by a court, and

● In both the cases of share-holders and borrowers, eitherof the parties may vote,demand from the buildingsociety a copy of annualaccounts and they may deter-mine among themselves theorder in which they arenamed in the records of thesociety.

Building Societies (Amendment)Bill, 1998

Children Act changesbrought into operationThe following sections of theChildren Act, 1997 are broughtinto effect from 1 January 1999:● S11, insofar as it inserts ss20-

22 and 29 into the Guardian-ship of Infants Act, 1964, and

● Part III in its entirety.

Children Act, 1997 (Commence-ment) Order 1998 (SI No 433 of1998)

Grant of Marevainjunction refused● Where it is unlikely that a

defendant will return to a for-eign country and there is noevidence to establish such anintention, a Mareva injunctionwill be refused.

The plaintiffs alleged that thefirst-named defendant misappro-priated monies from the first-named plaintiff and defrauded thesecond-named plaintiff. Theplaintiffs sought a Mareva injunc-tion restraining the defendantsfrom disposing of their assets. Inrefusing the application, it washeld that:

COMMERCIAL

CHILDREN


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● The plaintiffs had shown agood arguable case that at leastsome monies had been misap-propriated

● The plaintiffs misled the courton the amount claimed by£95,000

● It was unlikely that the defen-dants would voluntarily returnto Belarus and there was no evi-dence to establish such anintention

● An undertaking as to damageshad been given, but it was clearthat the second-named plaintiffwas insolvent

● The court must look very carefully at any application to ensure that it is justified onthe principles set out inO’Mahony v Horgan ([1996] 1 ILRM 161) and the ThirdChandris Shipping Corpora-tion v Unimarine SA ([1979]QB 655).

Production Association MinskTractor Works and BelarusEquipment (Ireland) Ltd v Saenko(McCracken J), 25 February 1998

International War CrimesTribunal Act, 1998 (No 40of 1998)This Act was signed into law bythe President on 10 November1998.

Torture convention to be ratifiedA Bill has been presented which

CRIMINAL

will allow the State to ratify theUnited Nations conventionagainst torture and other cruel,inhuman or degrading treatmentor punishment by ensuring thatacts of torture as defined by theconvention are offences under thedomestic law. The new statutoryoffence of torture shall carry amaximum sentence of life impris-onment.Criminal Justice (United NationsConvention Against Torture) Bill,1998

Representation for complainant in rapecases?A private member’s Bill has beenintroduced which seeks to permitthe complainant in a rape case tobe legally represented where thedefendant’s lawyers wish to intro-duce material relating to the com-plainant’s sexual historyCriminal Law (Rape) (SexualExperience of Complainant) Bill,1998

Scholarship fund to beestablishedA Bill has been presented, andpassed by Dáil Éireann, whichseeks to establish a £2,000,000scholarship fund in the USA toprovide third-level scholarships tocitizens of that country. The fundis to be known as the GeorgeMitchell Scholarship Fund.George Mitchell ScholarshipFund Bill, 1998

EDUCATION

Force majeure leave formprescribedThe form of notice claiming forcemajeure leave under the ParentalLeave Act, 1998 to be given by anemployee to his or her employerhas been set out.Parental Leave (Notice of ForceMajeure Leave) Regulations 1998(SI No 454 of 1998)

Competition regime forelectricity proposedA Bill has been presented whichaims to:● Provide a regulatory frame-

work for the introduction ofcompetition in the generationand supply of electricity, and

● Establish an independentCommission for ElectricityRegulation to license and regu-late the generation and supplyof electricity and to overseeaccess to transmission and dis-tribution systems.

Electricity Regulation Bill, 1998

New established activities listedAn order specifies dates on or afterwhich certain listed establishedactivities are required to have

ENVIRONMENTAL

ENERGY

EMPLOYMENT applied to the EPA for an integrat-ed pollution control licence.Environmental Protection AgencyAct, 1992 (Established Activities)Order 1998 (SI No 460 of 1998)

Changes proposed toaquaculture regimeA Bill has been presented whichseeks to:● Remove legal doubt concern-

ing, firstly, the status ofapproximately 600 applica-tions for aquaculture licenceswhich are awaiting decisionand, secondly, the status ofapproximately 160 licencesgranted between the enactmentof the Fisheries Act, 1980 andthe coming into operation ofthe new aquaculture licensingprovisions last year containedin the Fisheries (Amendment)Act, 1997

● Prohibit persons applying foraquaculture licences on or after10 December 1998 from com-mencing operations pendingthe grant of a licence and toinvalidate their applications ifthey breach that provision

● Strengthen ss12-14 of theForeshore Act, 1933 to deterunauthorised development andthe deposit of unacceptable orharmful matter on the fore-shore, and

● Provide greater flexibility forthe Minister for the Marine andNatural Resources in the use ordisposal of property vested in

FISHERIES

Doyle Court ReportersEXCELLENCE IN REPORTING SINCE 1954

Principal: Áine O’Farrell

USA REGISTERED COURT REPORTING QUALIFICATIONS

• Daily transcripts • Conferences• Real-time • Arbitrations• Search & Retrieval Software • Inquiries


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him or her by virtue of theFishery Harbour Centres Act,1968.

Fisheries and Foreshore (Amend-ment) Bill, 1998

Increased radiologicalprotectionA Bill has been presented whichaims to:● Strengthen the licensing pow-

ers of the RadiologicalProtection Institute of Irelandrelating to the use of x-rayequipment, and

● Elaborate the powers of theMinister for Public Enterpriseto fix licence fees in respect oflicences issued by the institute.

Radiological Protection (Amend-ment) Bill, 1998

Activity centre safetymeasures proposedA private member’s Bill has beenintroduced which seeks to providefor the regulation of centres andproviders of facilities where chil-dren under the age of 18 engage inoutdoor activities. If passed, thelegislation would introduce alicensing system and imposerequirements relating to safety.Activity Centres (Young Persons’Water Safety) Bill, 1998

New night work provisionsNew regulations provide, interalia:● That employers who employ

night workers must carry out(for the purposes of the maxi-mum hours of night work per-mitted under s16(2)(a) and (b)of the Organisation of WorkingTime Act, 1997) an assessmentof the health and safety risksattaching to their work with aview to determining whetherthat work involves special haz-ards or a heavy mental or phys-ical strain

● That employers whose nightworkers become ill or exhibit

HEALTH AND SAFETY

symptoms of ill-health as aresult of night work must reas-sign such workers to day worksuited to them wherever possi-ble.

Safety, Health and Welfare atWork (Night Work and Shift Work)Regulations 1998 (SI No 485 of1998)

Mineral waterNew regulations, giving effect toDirective 96/70/EC (of 28October 1996) update thelabelling, treatment and traderequirements for natural mineralwaters. New provisions for thetreatment, labelling and microbio-logical requirements and condi-tions of exploitation of springwaters are also introduced.European Communities (NaturalMineral Waters) (Amendment)Regulations 1998 (SI No 461 of1998)

Disability authority to beestablishedA Bill has been presented, andamended in committee, whichseeks to establish, on a statutorybasis, a National DisabilityAuthority which will have thefunction of enabling disabled per-sons to exercise their economic,social, political and civil rights.National Disability Authority Bill,1998

Incorporation of measures into domesticlaw?A private member’s Bill has beenintroduced which seeks to:● Make the European convention

on human rights and its proto-cols part of the domestic law ofthe State

● Make a number of UN humanrights conventions part of thedomestic law

● Require the State to ratify a

HUMAN RIGHTS

HEALTH SERVICES

number of human rights instru-ments

● Establish a Human RightsCommission, and

● Implement the human rightsprovisions of the Good FridayAgreement.

Human Rights Bill, 1998

Whether new inquestshould be held● Section 24 of the Coroner’s

Act, 1962 empowers theAttorney General to order anew inquest regardless ofwhether or not the verdict ofthe first inquest has beenquashed.

The respondent appealed an orderof the High Court which quashedhis decision to hold a secondinquest into the defendant’s death.The decision was quashed on theground that s24 of the CoronersAct, 1962 only empowered therespondent to order an inquest tobe held when one had alreadytaken place if the verdict in thefirst inquest had been quashed bythe High Court. In refusing therelief sought, it was held that:● An inquest was a purely fact-

finding exercise and the verdictresulting from one could notimpose civil or criminal liabili-ty of any sort on any person

● At common law, the HighCourt, in the exercise of itsinherent supervisory jurisdic-tion over inferior tribunals,could set aside the verdict of aninquest in whole or in part. Thisjurisdiction to set aside extend-ed to circumstances where therehad been no error as to jurisdic-tion, no fraud on the part of thecoroner and no error on the faceof the record, but where theremight have been some frailty inthe course of proceedings, suchas an error in law or a want ofnatural justice or fair proce-dures

● Where the verdict of an inquestwas quashed, it was usual to

INQUESTS

order a fresh inquest and,accordingly, an order of man-damus could issue directingthat a new inquest be held

● By implementing the 1962 Act,the Oireachtas had envisaged amajor change in Irish law relat-ing to inquests. Before the 1962Act was enacted, there hadbeen two serious defects in thelaw in this area. Firstly, therewas no statutory machinery forcalling for an inquest wherenone had been held and, sec-ond, there was no procedure forensuring that a further inquestwas held where new facts orevidence came to light whichraised doubts as to the correct-ness of the earlier verdict

● It would not have been possiblefor the High Court to set asidean inquest verdict solely on theground that new evidence hadcome to light which rendered afurther inquest necessary ordesirable. If the respondent wasonly empowered to order a newinquest when the verdict of thefirst inquest had been quashed,it would frustrate the clearintention of the Oireachtas toprovide a remedy for situationswhere fresh evidence had cometo light

● The High Court could set asidean exercise by the respondentof his powers under s24 of the1962 Act where he had actedirrationally so as to justify thecourt intervening. The appli-cant had to establish that therespondent did not have beforehim any relevant materialwhich would support his deci-sion

● The court was satisfied thatthere were no materials beforethe respondent when heordered the second inquestwhich would have justified himin completely reversing his ear-lier decision to the contrary

● Accordingly, the trial judge hadbeen correct in law in grantingthe order of certiorari soughtby the applicant.

Dr Farrell, Dublin City Coroner vAttorney General (SupremeCourt), 20 November 1997


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Preparation of statementof affairs considered● While the information provid-

ed by the directors could be ofconsiderable value in the reali-sation and distribution of theassets of the company, it couldnever be suggested that a liq-uidator or receiver would relyexclusively upon it.

The plaintiff was the receiver ofcertain companies whose direc-tors included the defendants.Following his appointment, theplaintiff requested a statement ofaffairs from the defendants pur-suant to ss319 and 320 of theCompanies Act, 1963. The state-ment was not submitted within 14days. The plaintiff sought amandatory injunction from theHigh Court compelling the defen-dants to submit the statement. TheHigh Court granted the injunctionand the statements were submit-ted. The defendants then soughtthe sum of £31,318.75 as costsincurred in making the statement.The receiver allowed the sum of£10,000. The defendants appealedto the High Court from the plain-tiff’s decision. The appeal wasdismissed and the defendants thenappealed to the Supreme Court asagainst the dismissal. They con-tended that, in the context of thiscase, it was not unreasonable forthem to obtain independent verifi-cation of the statement of affairs.In dismissing the appeal, it washeld that:● The statement of affairs should

be such as to enable the receiv-er to know what value thedirectors put on the assets andwhat they considered the liabil-ities of the companies at thattime

● While the defendants werebound to act carefully and pru-dently in the preparation of thestatement, they were notrequired to have expert opin-ions by outside experts as to thevaluation

● The sections of the 1963 Acthad to be construed and applied

INSOLVENCY in the context that the personsto whom the information mustbe submitted would be expertsand have access to any neces-sary additional expertise

● While the information provid-ed by the directors could be ofconsiderable value in the reali-sation and distribution of theassets of the company, it couldnever be suggested that a liq-uidator or receiver would relyexclusively upon it

● The only duty on those makingthe statement of affairs was toprovide the information withintheir own knowledge as offi-cers and servants of the compa-ny and to provide their estimateas to the realisable value there-of

● As the retention by the defen-dants of experts to advise themon the value of assets of thecompanies was unnecessaryand unwarranted, the costs andexpenses incurred therebycould not be considered rea-sonable

● The preparation of the state-ment required essentially cleri-cal or administrative work, anddid not involve the preparationof accounts

● The fee allowed by the plaintiffleft no room for any additionalfee to be allowed to the defen-dants in respect of any contri-bution which they might other-wise have made.

Somers v Kennedy (SupremeCourt), 20 February 1998

Injunctive relief refusedin passing off case● Given the disparity in their

respective economic ‘muscle’,if the plaintiff could be afford-ed a measure of protectionpending the trial of the actionwithout putting the defendantin the position of having, interalia, to change its name and toeffect other consequentialchanges, justice did not require

INTELLECTUAL PROPERTY

that the injunctive soughtshould be granted.

The plaintiff was a limited liabili-ty company incorporated in theUK which traded under the namePC World. The plaintiff retailed,inter alia, a large range of com-puter hardware and software. Itsfirst superstore in this jurisdictionwas opened on 7 November 1997.The defendant was a companyincorporated in Ireland in January1997 to, inter alia, supply com-puter hardware and software. Theplaintiff instituted proceedings,claiming that it had established asubstantial goodwill and reputa-tion in this jurisdiction in thename and mark PC World and thatthe defendant was passing off itsbusiness as that of the plaintiff.The defendant disputed that therewas a serious issue to be tried andthat the plaintiff had established agoodwill or reputation in the markor name PC World in this jurisdic-tion prior to the commencementof trading by the defendant underthat name. The defendant con-tended that by reason of the scale,personal nature and method ofmarketing of its business, therewas no likelihood of confusionwith the business of the plaintiff.In the interlocutory relief sought,it was held that:● There was sufficient evidence

before the court of sales to cus-tomers resident in this jurisdic-tion and advertising which wasin circulation and capable ofbeing received in this jurisdic-tion by the plaintiff prior to1997

● The absence of affidavit evi-dence from members of thepublic expressly establishingexclusive association betweenthe name PC World and theplaintiff was not fatal to theplaintiff’s claim

● There was a serious issue to betried that the name PC Worldwas exclusively associatedwith the plaintiff’s business inthis jurisdiction prior toJanuary 1997

● In most passing-off actions,damages were an inadequateremedy for a successful plain-

tiff (see Mitchelstown Co-oper-ative Agricultural SocietyLimited v Golden ValeProducts Limited, Costello J,12 December 1985)

● Given the disparity in theirrespective economic ‘muscle’,if the plaintiff could be afford-ed a measure of protectionpending the trial of the actionwithout putting the defendantin the position of having tochange its name and to effectother consequential changes,justice did not require that theinjunctive relief sought shouldbe granted

● There was no evidence beforethe court that the defendant hadacted other than openly, prop-erly in accordance with goodcommercial practice and bonafide at all times. Given that, andhaving regard to the nature ofthe defendant’s business opera-tion, the requirements of justicecould be met by undertakingsfrom the defendant.

DSG Retail Limited v PC WorldLimited (Laffoy J), 13 January1998

Debt relief measures proposedA Bill has been presented whichaims to:● Enable the Minister for Finance

to make payments authorisedby the government under thedebt relief package announcedon 16 September 1998 amount-ing to £31,500,000 over 12years

● Provide for the adoption by theState of the Proposed fourthamendment of the articles ofagreement of the InternationalMonetary Fund, enabling theCentral Bank to accept the one-time allocation of special draw-ings rights agreed by the IMFin 1997, and

● Guarantee the Central Bankagainst any losses it may incurunder the Bank for Inter-national Settlements’ facility in

INTERNATIONAL AID


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favour of Banco Central doBrazil.

Bretton Woods Agreements(Amendment) Bill, 1998

Confidentiality considered● The privilege of confidentiality

belongs to the client, not thelawyer. It may be waived bythe client, not the lawyer, butsuch waiver may be implied incertain circumstances as wellas being express.

The plaintiff leased certainpremises from B, a limited liabili-ty estate. In 1982, the plaintiffinstituted proceedings against B,seeking injunctions to restrainalleged nuisance to his property,which nuisance was alleged to bepermitted by B. The respondentswere the solicitors acting for theplaintiff in that action. In July1985, the plaintiff met C, a seniorcounsel. At the insistence of theplaintiff, the respondent agreedthat C be briefed in the matter.Prior to the trial, negotiationsbetween the parties took place andresulted in the execution of a con-sent order in settlement of thoseproceedings. The plaintiff soughtdamages for the alleged negli-gence and breach of duty of therespondent in the conduct and set-tlement of those proceedings. Theplaintiff’s claim was dismissed inthe High Court. In dismissing theappeal, it was held that:● A lawyer was under a duty not

to communicate to any thirdparty information entrusted tohim by or on behalf of his layclient

● The privilege of confidentialitybelonged to the client, not thelawyer. It could be waived bythe client, not the lawyer, butsuch waiver could be impliedin certain circumstances aswell as being express

● Where a solicitor alone wassued, the barrister, if called byeither party, could be com-

LEGAL PROFESSION

pelled to give evidence as to hisadvices to the client and as tohis advices to the solicitor

● There was no substance in theplaintiff’s submission that therespondent should not havebriefed C, as the respondentmade it clear to the plaintiffthat they did not wish to brief Cbut were overruled by theplaintiff and instructed to briefhim

● Even if negligence had beenestablished regarding terms ofsettlement in not providing thatthe action could be re-enteredand continued if the settlementdid not work out to P’s satisfac-tion, no loss had been proved tohave flowed from such omission

● In order to prove any loss ordamage resulting from failureto provide a clause to re-enterthe action if the settlement didnot work out, the plaintiffwould have to have proved thathe would probably have suc-ceeded in the re-entered actionand obtained at least a signifi-cant portion of the reliefclaimed in it.

McMullen v Carty (SupremeCourt), 27 January 1998

Greater protection for ‘special interest’buildingsA Bill has been presented whichseeks to:● Oblige planning authorities to

compile a list of structures ofspecial architectural, historical,archaeological, artistic, scien-tific, social or technical inter-est, which list will form part ofthe development plan for thearea

● Require persons carrying outinterior works to such build-ings to obtain planning permis-sion where such works wouldaffect the character of thebuilding

● Introduce fines of up to£1,000,000 on indictment for

PLANNING AND DEVELOPMENT

damaging such structures● Oblige owners to ensure that

protected structures are notdamaged either through theiractions or neglect

● Allow planning authorities toissue notices to owners requir-ing works to be carried out,including the removal of‘incongruous signs’, evenwhere these have been erectedlawfully (although in suchcases the authority will have topay for such work), and

● Allow planning authorities tocompulsorily purchase listedstructures.

Local Government (Planning andDevelopment) Bill, 1998

Privilege considered inapplication for furtherand better discovery● It was not open to the court to

decide on questions of privilegein the absence of having avail-able to it particulars of the doc-umentation in the possession ofthe defendant relating to thematter and without having par-ticulars with regard to thenature of the privilege claimedin respect of each document.

On 6 December 1986, thedeceased, a member of theDefence Forces, received injuriesin the course of his duties result-ing in death. The plaintiffs, thedeceased’s wife and children,instituted proceedings against thedefendant claiming that theinjuries were occasioned by thenegligence of the defendant.Having been granted general dis-covery by the Master, the plaintiffsought further and better discov-ery in the High Court of, interalia, documents and findings ofboth the United Nations inquiryand the court of inquiry held inthis jurisdiction. The High Courtrefused the relief sought by theplaintiff and the plaintiff appealedthat decision. In allowing the

PRACTICE AND PROCEDURE

appeal, it was held that:● It was not open to the court to

decide on questions of privilegein the absence of having avail-able to it particulars of the docu-mentation in the possession ofthe defendant relating to thematter and without having par-ticulars with regard to the natureof the privilege claimed inrespect of each document

● It was not sufficient in the cir-cumstances to claim generalprivilege in respect of bundles ofdocuments or files. The onuswas on the defendant to specifyin detail each of the documentsin their possession relating to thesubject matter of the proceed-ings and to specify in detail thenature of the privilege claimedin respect of each document andthe basis for such privilege

● The court was not ruling thatthese documents should be pro-duced but it was ruling that theyshould have been enumeratedand the basis of the privilegeclaimed in respect thereof be setforth.

O’Brien v Minister for Defence(Supreme Court), 7 July 1997

Issue of forum non conveniens considered● In entertaining an application for

a stay on the grounds of forumnon conveniens, the defendantmust satisfy the court that thereis another forum to the jurisdic-tion of which he is amenable andin which justice can be donebetween the parties at substan-tially less inconvenience orexpense.

The first-named plaintiff’s purpose,inter alia, was to purchase steelfrom NLMK, a steel mill in Russia,and sell it on to the second-namedplaintiff. In June 1997, the plain-tiffs became concerned as loansowing by NLMK were increasingand NLMK’s representative, L, hadtransferred shares in NLMK toanother company controlled byhimself and refused to renew theoption agreement whereby theplaintiffs had an option to purchasesame. The defendant, a private lim-


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ited company, was alleged to beunder the control of or substantial-ly controlled by L. The plaintiffsalleged, inter alia, that the defen-dant refused to return the shares orrenew the option agreement and,further, that the defendant wasinducing or procuring breaches ofcontract between the second-named plaintiff and its customers.The defendant sought a stay on theproceedings on the basis of forumnon conveniens. It claimed thatNLMK’s contractual arrangementswith the first-named plaintiff wereterminated and any dispute shouldbe arbitrated in proceedings inRussia. In refusing a stay andgranting an order for interlocutoryrelief, it was held that:● S13(2) of the Jurisdiction of

Courts and Enforcement ofJudgments (European Com-munities) Act, 1988 providedthat the seat of a corporation orassociation should be treated asits domicile. The defendant,incorporated under the law ofIreland, could be sued in thecourts of Ireland

● The defendant had to satisfy thecourt that there was anotherforum to the jurisdiction ofwhich it was amenable and inwhich justice could be donebetween the parties at substan-tially less inconvenience orexpense

● The stay could not deprive theplaintiff of a legitimate personalor juridical advantage whichwould be available to him if heinvoked the jurisdiction of thecourt

● Serious questions arose, interalia, as to whether the defen-dant was liable in damages tothe plaintiff

● Damages were not an adequateremedy in the present circum-stances and, even if they were,the defendant had not demon-strated anything like a capacityto meet an award

● The balance of conveniencewas in favour of the plaintiff. Inreaching this conclusion,account was taken of the plain-tiff’s submission that the under-taking as to damages would begiven by the group as a whole.

Intermetal Group Limited andTrans-World (Steel) Limited vWorslade Trading Limited (O’Sul-livan J), 12 December 1997

Public interest privilegeconsidered in discoveryapplication● In ascertaining the parameters of

public interest privilege, theappropriate test was whether thepublic interest in the relevantdocuments invoked outweighedthe plaintiff’s interest to haveaccess to such documents aswere necessary to enable him toprosecute fairly and properly theproceedings in court.

On 3 January 1993, the plaintiff, adetective sergeant, received confi-dential information from a reliablesource. Subsequently, his superiorsdirected him to disclose the sourceof his information and he refused onthe grounds that the informationwas strictly confidential. He allegedthat as a result of this refusal he wasnotified of, inter alia, a decision toreallocate him. He appealed thisdecision to the board, which appealwas refused. The plaintiff then insti-tuted proceedings against the defen-dant alleging breaches of naturaland constitutional justice. Theseproceedings concerned an applica-tion by the plaintiff for the produc-tion of certain documents. Thedefendant objected to the produc-tion of these documents on thegrounds of lack of relevance, publicinterest privilege and legal profes-sional privilege. In allowing disclo-sure in respect of certain docu-ments, it was held that:● On the question of relevance, the

appropriate test was whether thedocuments in issue containedinformation which either directlyor indirectly enabled the partyrequiring the documents either toadvance his own case or to dam-age the case of his opponent

● In ascertaining the parameters ofpublic interest privilege, theappropriate test was whether thepublic interest in the relevantdocuments invoked outweighedthe plaintiff’s interest to haveaccess to such documents aswere necessary to enable him to

prosecute fairly and properly theproceedings in court

● The public interest considerationof protecting the integrity andconfidentiality of criminal andsubversive investigations carriedout by the police outweighed theplaintiff’s interest to have theparticular documents disclosed.

Hughes v Commissioner of AnGarda Síochána (Laffoy J), 20January 1998

Commissioner to beallowed to delegate?A private member’s Bill has beenintroduced the purpose of whichwould be to allow the RefugeeApplications Commissioner to del-egate the performance of his or herfunctions to members of his or herstaff.Refugee (Amendment) Bill, 1998

Changes to fundA Bill has been presented whichseeks to:● Increase payments into the fund

established by the Scientific andTechnological Education (In-vestment) Fund Act, 1997 from£100,000,000 to £130,000,000for the financial year 1998, and

● Extend the areas of research anddevelopment for which pay-ments out of the fund may bemade.

Scientific and TechnologicalEducation (Investment) Fund(Amendment) Bill, 1998

Section 117 applicationrefused● The maxim ‘equality is equity’

can have no application unders117 of the Succession Act, 1965

SUCCESSION

SCIENCE AND TECHNOLOGY

REFUGEES

where the testator has disre-garded the special needs of oneof the children to such an extentthat he could be said to havefailed in his moral duty to thatchild.

The plaintiff instituted proceed-ings under s117 of the SuccessionAct, 1965 claiming that the testa-trix had failed in her moral duty tomake proper provision for theplaintiff in accordance with hermeans by her will and sought toclaim under the mechanism ofs117 to obtain provision for hischildren. The plaintiff was one offour children of the marriagebetween the testatrix and theplaintiff’s father. The plaintiff hadcompleted a university degreewith his father’s assistance andnow lived in a house which wasgiven to him and his sister by hisfather. The plaintiff, who wasmarried with three children,developed a severe problem withdrink in the mid-1980s which per-sisted until 1993. He gave evi-dence that he had not taken anyalcohol since the death of the tes-tatrix. After the plaintiff’s father’sdeath, the testatrix gave an intervivos gift of shares valuingapproximately £275,000 for eachchild. The plaintiff soon dissipatedhis sum of £275,000. In her will,the testatrix left the residue of herproperty to a number of charities.At the date of the death of the tes-tatrix, the plaintiff’s three sisterswere all comfortably off. Theplaintiff claimed that, havingregard to his circumstances at thedate of the death of the testatrix,she should have made provisionfor him and his children at theexpense of the other beneficiaries,that is, the charities. In dismissingthe appeal, it was held that:● It was not necessarily an

answer to an application unders117 that the testator had sim-ply treated all his or her chil-dren equally. The maxim‘equality is equity’ could haveno application where the testa-tor had disregarded the specialneeds of one of the children tosuch an extent that he could besaid to have failed in his moral


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duty to that child● The test to be applied was

whether the decision by the tes-tatrix to make no further provi-sion for the plaintiff in her willconstituted a breach of hermoral duty to the plaintiff andthe date at which the relevantfactors must be considered wasthe date of death of thedeceased

● In the circumstances, a reason-able and concerned parentcould have decided that, sincethe provision of significantfinancial assistance to the plain-tiff had not in the past producedthe best results, it might nothave been in his own interest toprovide him with further funds,even through the mechanism ofa trust

● The apparent needs of the plain-tiff’s children were not a factorwhich would justify the court inthe present case in setting asidethe findings of the High Courtjudge

● It was desirable in every case,whether it arose by way of aconstruction summons or anapplication under s117 wherethe interests of charities couldbe materially affected, that theAttorney General be givennotice of the proceedings.

EB v SS and GMcC (SupremeCourt), 10 February 1998

Provision made for VATinvoices and the euroNew regulations provide thatamounts specified in VAT invoicesmust be expressed in a denomina-tion of the State’s currency and theappropriate symbol must be used toidentify which denomination (thatis, Irish pounds or euros) is beingused. It is also permitted for theamount to be shown in bothdenominations, provided theappropriate symbols are used.Value-Added Tax (Electronic DataExchange and Storage) (Amend-ment) Regulations 1998 and Value-Added Tax (Invoices and OtherDocuments) (Amendment) Regula-tions 1998 (SI Nos 488 and 489 of1998)

Licensing exemption forCB radiosAn order has been made whichexempts from the licensingrequirements of the WirelessTelegraphy Act, 1926 citizens’band or CB radio systems whichare both type approved and whichcomply with all other technicalspecifications laid down in theorder.

TELECOMMUNICATIONS

TAXATION Wireless Telegraphy Act, 1926(Section 3) (Exemption ofCitizens’ Band (CB) Radios)Order 1998 (SI No 436 of 1998)

Carriage of DangerousGoods by Road Bill, 1998This Bill has been passed by bothHouses of the Oireachtas.

Roadworthiness testingrules introducedNew regulations require roadwor-thiness tests on certain mechani-cally propelled vehicles. The regu-lations:● Provide that vehicles to which

they apply may not be used in apublic place without displayinga valid test disc relating to avalid certificate of roadworthi-ness issued following upon atest duly carried out

● Apply to passenger vehicleswith a maximum of eight seatsexcluding the driver’s seat andhaving a maximum grossdesign vehicle weight of3,500 kgs

● Apply to such vehicles havingtheir date of first registration(irrespective of the place of firstregistration) on or before 31December 1991 from theanniversary of such registration

TRANSPORT

which occurs in 2000● Apply to such vehicles having

their date of first registration(irrespective of the place of firstregistration) between 1 January1992 and 31 December 1996from the anniversary of suchregistration which occurs in2001

● Apply to such vehicles havingtheir date of first registration(irrespective of the place of firstregistration) after 1 January1997 from the anniversary ofsuch registration which occurs in2002 or the fourth anniversary ofsuch registration, whichever isthe latter

● Provide that any vehicle towhich the regulations applymust be re-tested on the nextbiennial of first registrationoccurring after the date of firstissue of a certificate of roadwor-thiness

● Specify that the fee for a testshall be £35 and for a re-testshall be £19.80, and

● Provide that tests shall be carriedout by the National Car TestingService Limited.

Road Traffic (Car Testing)Regulations 1998 (SI No 481 of1998)

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

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EurlegalNews from the EU and International Affairs Committee

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

Expulsion for life from a Member State contrary to EC law

Donatella Calfa (Case348/96), judgment of 19

January 1999. Donatella Calfa isan Italian national. While stayingas a tourist in Crete, she wascharged with possession of pro-hibited drugs. She was convictedof an offence under Greek lawand sentenced to three months’imprisonment. She was alsoexpelled for life from Greece.

The Greek law on drugs pro-vides that when a foreign nationalis convicted of a breach of thelaw, the court must order hisexpulsion from Greece for lifeunless there are compelling rea-sons, in particular family reasons,for not doing so. The expulsionorder can only be revoked by a

decision of the Minister forJustice after a minimum period ofthree years. In contrast, Greeknationals cannot be subject to anexpulsion order. At most, in theevent of a serious crime (one witha penalty of at least five years’imprisonment), they can be for-bidden from residing in certainparts of Greece for a period notexceeding five years.

Ms Calfa appealed to theGreek Supreme Court whichmade a preliminary referenceunder article 177 to the ECJ. Thecourt held that Ms Calfa was therecipient of a service. It pointedout that tourists are free to travelto another Member State in orderto receive services there, without

restrictions. Though criminal leg-islation is primarily a matter forMember States, it must notrestrict the fundamental freedomsguaranteed by EU law.

The ECJ held that expulsionfor life was an obstacle to the freemovement of services, one of thefundamental freedoms. The courtthen moved on to considerwhether the penalty could be jus-tified on grounds of public policy.In previous decisions, this hadbeen interpreted to refer to ‘a gen-uine and sufficiently seriousthreat to the requirements of pub-lic policy affecting one of the fun-damental interests of society’. Onthis basis, a Member State couldconsider drugs a danger for soci-

ety justifying special measuresagainst foreign nationals.However, the court emphasisedthat the public policy exception,as with any derogation from afundamental rule of the treaty,must be interpreted restrictively.Public policy measures require anassessment of the personal con-duct of the individual (Directive64/221). The fact of a criminalconviction is insufficient. InGreece, expulsion for life isimposed automatically followinga criminal conviction.

The court concluded that thelegislation was an obstacle to thefree movement of persons andcould not be justified on groundsof public policy. G

Indirect discriminationThe Queen v Secretary of State

for Employment, ex parteNicole Seymour-Smith and LauraPerez (Case 167/97), judgment of 9February 1999. Ms Seymour-Smith and Ms Perez worked in theUnited Kingdom from February1990 to May 1991, when they weredismissed. They complained to theIndustrial Tribunal that they hadbeen unfairly dismissed and soughtcompensation. The tribunal refusedto consider their claims as the UKEmployment Consolidation Act1978 affords protection againstunfair dismissal only after a quali-fying period of two years’ continu-ous employment.

They challenged the legality ofthe qualifying period on thegrounds that it was incompatiblewith EU law. They argued thatthese rules discriminated againstwomen. Statistics were producedshowing that the proportion ofwomen with two years’ employ-ment is lower than the proportion ofmen satisfying the requirement. Onappeal, the House of Lords stayedthe proceedings and referred sever-al questions to the ECJ for a prelim-inary ruling under article 177.

The ECJ held that a judicialaward of compensation for unfairdismissal can be considered ‘pay’under EU law. Thus, it is governed

by the EU law principle of equalpay for men and women. Thecourt then moved to considerwhether the UK legislation didindirectly discriminate betweenmen and women. It held that thebest approach was to compare theproportions of men and womenable to satisfy the two-yearrequirement with those unable todo so and to compare those fig-ures with the number of women inthe workforce. The court said thatit is for the national court hearingthe case to assess the relevanceand validity of the statistics, thedegree of disparity and the lengthof time the disparity has existed.

It is also for the national courtto consider whether a rule with amore detrimental impact onwomen than men is justified byobjective reasons unrelated to anydiscrimination based on sex. Thecourt dismissed a submission thatthe disputed rule was designed toencourage recruitment by limitingthe risk that employers will beexposed to proceedings for unfairdismissal brought by employeeswho have only recently beenengaged. The court said that thisargument was a mere generalisa-tion and was not objective justifi-cation for measures that may beregarded as discriminatory. G

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Consorzio per la tutela delFormaggio Gorgonzola v

Käserei Champignon HofmeisterGmbH & Co v KG, EduardBracharz GmbH (Case 87/97),judgment of 4 March 1999. Thedesignation ‘Gorgonzola’ hasbeen protected in Austria since1951, most recently under ECregulations concerning the regis-tration of geographical indica-tions and designations of origin.Since 1983, a soft cheese manu-factured in Germany has beensold in Austria under the trade

Designations of originmark ‘Cambozola’.

The applicants applied to theAustrian courts for an order pro-hibiting the marketing of thecheese in Austria under thatname. The Commercial Court inVienna referred the matter to theECJ.

The ECJ held that the regula-tions guarantee that designationsof origin will be protected againstall ‘evocations’. This covers thesituation where a term used toindicate a product reproduces partof a protected designation and has

the same number of syllables, andwhere a consumer is likely toassociate the term with the prod-uct whose designation is protect-ed. On this basis, ‘Cambozola’,used for a cheese, may be regard-ed as an evocation of the designa-tion ‘Gorgonzola’. However, it isfor the national court to determinewhether the requisite conditionsare satisfied for allowing use ofthe trade mark ‘Cambozola’ tocontinue, despite the fact that it isan evocation and in principle pro-hibited.

The trade mark was registeredbefore the entry into force of theEU protection of the designation‘Gorgonzola’. To allow its use tocontinue, its initial registrationmust have been made in goodfaith and its use must not beliable to deceive the public.

The court held that the appli-cation of those criteria fell out-side its jurisdiction. It did pointout that the fact of an evocationdid not necessarily mean thatthe public was likely to be con-fused. G

RECENT DEVELOPMENTS IN EUROPEAN LAW

Package holidays directiveAFS Intercultural Programs Finlandry v Kuluttajavirasto (Case 237/970,judgment of 11 February 1999. AFSis a non-profit-making Finnish asso-ciation which co-ordinates interna-tional student exchanges. Twice ayear it sends students abroad for aperiod of six to 11 months. The stu-dents attend school in the host stateand lodge with families who accom-modate them free of charge. In late1995, the Finnish ConsumerProtection Office informed AFS thatit considered the exchange pro-grammes to be comparable with apackage travel business. It asked AFSto register in the register of packagetravel businesses within one month.AFS failed to do so. It claimed that itwas not a package travel organiserwithin the meaning of Directive90/314/EEC on package holidays. TheFinnish court referred the matter tothe ECJ asking whether the directiveapplied to student exchanges of sixmonths’ or one year’s duration withan educational purpose and freeaccommodation. The ECJ looked toarticle 2(1) of the directive whichdefines a package as comprising apre-arranged combination of notfewer than two of the following ele-ments: transport, accommodationand other tourist services not ancil-lary to transport or accommodationand accounting for a significant pro-portion of the package. AFS organis-es travel on scheduled flights and

thus met the transport element. Thecourt held that a period spent with ahost family being treated as a mem-ber of that family could not bedescribed as ‘accommodation’ with-in the directive. It also concludedthat there were no other tourist ser-vices. Selection of educational estab-lishments or host families did notqualify. Thus, AFS did not comewithin the terms of the directive.

RegulationsConsorzio del Prosciutto di Parma vAsda Stores Ltd, 4 December 1998,Court of Appeal (England). A food-processing company obtained sup-plies of ham produced in Italy. Itsliced and packaged the ham andresold it to Asda. The plaintiff is anorganisation of Italian ham produc-ers with responsibility under Italianlaw for enforcing the rules relatingto the marketing of Parma ham.They took action on regulations1107/96 and 2081/92. These regula-tions impose restrictions on the mis-leading use of statements of thegeographic and other origins ofagricultural products intended forhuman consumption. ‘Protected des-ignations of origin’ can be obtainedby a registration process whereby aspecification is provided to obtainregistration. The regulations includ-ed a discretionary procedure for ver-ification. This had not been fol-lowed in this case. The English Courtof Appeal held that the regulation

was not directly effective. It wasinsufficiently clear and precise. Thecourt held that a structure whereverification was not mandatory andwhere there was no register forspecifications could not be regardedas conferring directly-enforceablemonopoly rights. The court alsonoted that the designation of originwas one of about 300 submitted byMember States. As there was no cen-tral register, there was no sourcefrom which Asda could quickly andcheaply have learnt of any prohibi-tion on slicing and packaging. Thisopaqueness further prevented theregulations from having directeffect.

Transfer of undertakingsFrancisco Hernández Vidal SA vPrudencia Gómez Pérez and Others(Cases 127/96, 229/96 to 74/97), judg-ment of 10 December 1998. The ECJheld that the Transfer of undertak-ings directive (77/187/EEC) appliedto a situation where cleaning wasformerly carried out on contract butthe contractor terminates the con-tract and decides to carry out thecleaning itself in the future.However, the transfer of the clean-ing operation must also be accom-panied by the transfer of an eco-nomic entity between the cleaningservice and the contractor. The term‘economic entity’ refers to an organ-ised grouping of persons and assetsenabling an economic activity which

pursues a particular objective to beexercised. The fact that the mainte-nance work first carried out by thecleaning firm and then by theundertaking owning the premisesdoes not justify the conclusion thatsuch a transfer of an entity hastaken place.

Export of livestockR v Chief Constable of Sussex, exparte International Trader’s Ferry[1999] 1 All ER 129. ITF is a tradeassociation for exporters of live-stock. It had an agreement with theport of Shoreham for the use of aberth and subsequently chartered avessel. There were significantdemonstrations by animal rightsactivists. For two weeks, 1,125 policeofficers were present at each sailing.Following a fall in the number ofprotestors, the police numbers wereprogressively reduced. In April 1995,the chief constable informed ITFthat the only policing providedwould take place on two consecu-tive days a week, excluding Fridays,weekends and bank holidays. Thismade it difficult for sailings to takeplace, and by June 1996 ITF hadceased trading. ITF sought to quashthe decision of the chief constableand also claimed damages for loss ofbusiness. One of the argumentsadvanced was that the decision ofthe chief constable was a measureon the part of the state equivalent

FREE MOVEMENTOF GOODS

EMPLOYMENT

DIRECT EFFECT

CONSUMER LAW


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to a ban on exports, prohibited byarticle 34. The majority of the Houseof Lords resolved the matter on ananalysis of article 36, which allowsfor derogations from article 34 ongrounds of public policy. Lord Slynn(with Lords Nolan and Cooke con-curring) held that article 36 wasapplicable. They held that the chiefconstable could establish that hisdecision was suitable, necessary andnot disproportionate to the restric-tions which it involved, taking intoaccount the resources available tohim. He had acted proportionatelyand had taken steps to deal withviolent demonstrators. Limiting pro-tection afterwards was not dispro-portionate, given the otherdemands on police resources. Theydistinguished the ECJ decision inCommission v France as in that casethe French authorities had beenguilty of manifest and persistentfailure to prevent French farmersfrom preventing imports. LordHoffman found against ITF on theground that article 5 was not direct-ly effective. This is the article whichrequires Member States to take pos-itive steps to ensure compliancewith their treaty obligations. Thus, aMember State was not under any

directly effective obligation to takesteps under article 34 to assist anexporter.

Restrictions on importsÖsterreichische Unilever GmbH vSmithkline Beecham MarkenartikelGmbH (Case 77/97), 28 January 1999.Smithkline manufactures toothpastein Germany and exports it toAustria. Austrian law prohibited themarketing of foodstuffs which mademisleading claims to prevent or cureillness. OU, a competitor, sought aninjunction against the marketing ofthe toothpaste in Austria.Smithkline in its advertising statedthat its toothpaste (Odol-Med 3)helped to prevent plaque and toremove tartar. Smithkline arguedthat it was entitled to make theseclaims in its marketing under article30 and that the exceptions in article36 for public health and public poli-cy did not apply to the Austrian leg-islature. The ECJ held it was open toAustria to rely on article 36.However, the Austrian law was dis-proportionate as it went furtherthan necessary to protect publichealth. A disproportionate publichealth measure cannot be justifiedunder article 36.

PatentsThe European Commission hasrecently issued a policy communica-tion outlining a series of measureswhich it will be adopting to improvepatent protection in the EU(IP/99/15). The first of these is a pro-posed regulation to create an EUpatent, which would be validthroughout the EU based on a singleapplication. This system would coex-ist with patents issued by nationaloffices and the European PatentOffice. The second proposal is for adirective to harmonise the condi-tions for the patentability of inven-tions related to computer programs.The third is for a Commission com-munication clarifying how patentagents can benefit from EU rules onfreedom of establishment and free-dom to provide services.

Preliminary references to the ECJVictoria Film A/S (Case 134/97), judg-ment of 12 November 1998. Thecourt held that a Swedish tax body,

the Skatterättsnämnden, was not acourt or tribunal within the mean-ing of article 177 of the treaty. Therewere some factors which pointed tothe Swedish body performing a judi-cial function. It was independentand it had the power to deliverbinding decisions in applying rulesof law. However, there were otherfactors leading to the conclusionthat it performed an administrativefunction. The body could be calledupon by a taxable person to give apreliminary decision on matters oftaxation. Such an application couldbe made even when the taxpayer’ssituation had not been the subjectof any decision by the tax authori-ties. Its function was not, therefore,to review the legality of the deci-sions of the tax authorities butrather to adopt a view, for the firsttime, on how a specific transactionwas to be addressed by tax. In thegiving of such preliminary rulings, itperformed a non-judicial function. Itwas only where the taxpayerbrought an action challenging apreliminary decision that the courtor tribunal before which the matterwas brought could for the purposeof article 177 be regarded as per-forming a judicial function.

LITIGATION

INTELLECTUAL PROPERTY

Academy of European LawContact: (Tel: 0049 651 937370)

Topic: Judicial remedies at thecrossroads between Communityand national lawDate: 16 April Venue: Brussels, Belgium

Topic: The increasing role of theEuropean Parliament in the field ofenvironmental law after the Treatyof AmsterdamDate: 19-20 April Venue: Copenhagen, Denmark

Topic: Interaction between double-taxation conventions and the rul-ings of the ECJ on fundamentalfreedomsDate: 26-27 April Venue: Trier, Germany

Topic: Current developments inCommunity lawDate: 3-4 May Venue: Trier, Germany

Topic: The future of professional associations in the single marketDate: 17-18 May

Venue: Trier, Germany

Topic: Consumer protection in the field of banking lawDate: 27-28 May Venue: Trier, Germany

AIJA (International Associationof Young Lawyers)Contact: Gerard Coll (tel: 01 667 5111)

Topic: Outsourcing: legal andtransactional aspectsDate: 6-9 May Venue: Estoril, Portugal

Topic: Tourism lawDate: 24-27 June Venue: Capri, Italy

Topic: Annual congress Date: 22-27 AugustVenue: Brussels, Belgium

Topic: Private-public partnershipDate: 20-21 November Venue: Warsaw, Poland

European Lawyers’ UnionContact: Antonio Debiasi or LauraAgopyan (tel: 0039 2 783341)

Topic: Antitrust between the EClaw and national lawDate: 13-14 May Venue: Treviso, Italy

Contact: Klaus-Ullrich Link (tel: 0049 711 4897923)

Topic: Setting up companies in theEuropean UnionDate: 17-18 June Venue: Dresden, Germany

Contact: Gérard Abitbol (tel: 0033 0491 338195)

Topic: European social lawDate: 15 October Venue: Marseilles, France

IBCContact: Scott Forbes (tel: 0044 171 4535495)

Topic: European air transport services and airportsDate: 10-11 June Venue: Brussels, Belgium

IIRContact: Scott Forbes (tel: 0044 171 4535495)

Topic: International patent law inthe pharmaceutical industryDate: 21 June Venue: London, England

Law Society of ScotlandContact: (Tel: 0044 141 5531930)Topic: 50th anniversary conferenceDate: 8-10 July

Solicitors’ European GroupContact: (Tel: 0044 1905 724734)

Topic: The new Merger rules one year on and other recentdevelopmentsDate: 18 May Venue: London, England

Topic: Annual conferenceDate: 20-22 May Venue: Lille, France

Topic: Public procurement policy in the CommunityDate: 16 June Venue: London, England

Topic: Broadcasting, pay-per-viewand sports competition lawDate: 6 July Venue: London, England

Conferences and seminars


PEOPLE AND PLACESPEOPLE AND PLACES

OBITUARY

Noel gently passed away onMonday 15 March 1999, the

evening before the CheltenhamFestival, with the funeral mass takingplace on Cheltenham Gold Cup day.How ironic – and yet how appropriate– for the chief executive of the IrishHorseracing Authority (IHA) that heshould take his leave of us during thatweek of all weeks for those who enjoyracing, as Noel surely did.

When Noel decided at the end of1994 that he would move from themaelstrom of the Law Society to theequal maelstrom of the IHA – in effect,to turn his pastime into his occupation– it was perceived to be the Society’sloss and the IHA’s gain. However, in hindsight, both institutions werewinners. The Society had the dynamic services of a consummate andenthusiastic administrator for a critical four-year period of transitionin its financial and administrative structures, as well as in its legalframework as wrought by the Solicitors (Amendment) Act, 1994. TheIHA also, as it turned out, had Noel at the helm for a similar four-yearperiod as the legal and administrative structure of Irish racing wasbeing transformed.

Noel’s curriculum vitae might be encapsulated as 30 years in thepublic service followed by eight years shared between the Society andthe IHA. When his public service career is reviewed more closely,however, Noel is seen as constantly on the move, ever upwards, fromone area of achievement to another, never willing to rest on his lau-rels but always seeking the next challenge – from the Departments ofDefence to Finance to Public Service to Justice and finally to ForeignAffairs, under whose aegis he served just five years with theSecretariat at Maryfield (Belfast), established under the Anglo-Irishagreement of November 1985. In the midst of that public servicecareer he found time to obtain a first class honours BCL degree(UCD, 1978) and to become a barrister-at-law (1979). He is on recordas saying more than once that five years was the optimum time oneshould spend doing the same job because after that one risked becom-ing stale or bored. During his period with the Society, Noel could cer-tainly never have been accused of being either stale or boring.Whatever this man of considerable intellect undertook he carried outwith determination and single-minded commitment. A debate withNoel on any issue was indeed a challenge, as he presented the ‘pros’and ‘cons’ but at the same time strongly expressed his personal point

of view. However, once the issue wasdebated fully and a decision made, hecould brilliantly present, orally or inwriting, the rationale for the decisionwith lucidity and conviction, whetheror not it reflected his own view.

Two years into his term with theSociety, Adrian Bourke (President1991/92) aptly described Noel in theSociety’s November 1992 annualreport thus:‘Since he came to the Society he hasbeen a remarkable energy force, givingunstintingly of his ideas, his contactsand his time on behalf of the Society. Aswas intended, he is a leader from thefront. He argues his point. He always

accepts the outcome of a discussion, in whatever forum, no matterhow tough the going! My belief is that the Society is lucky to haveNoel as Director General and this is clearly borne out by his recordto date’.

At his funeral mass, the celebrant and Noel’s friend of many years,Bishop Ray Field, in a very personal and forthright yet loving homi-ly, alluded to Noel’s strongly-held views on many matters, not leastorganised religion. It would appeal to Noel’s wry sense of humourthat present were not one but two bishops (Bishop Field and BishopEamonn Walsh, another long-standing friend) and a Maynooth pro-fessor (Mngr Pat Hannon) as well as many other priests. All thoselucky to be present, who came as representatives of the many facetsof Noel’s working and social life, were both sad and glad to haveBishop Ray jog their individual memories of a character behindwhose sometimes gruff and argumentative exterior they identified aman of substance and sensitivity. All who came in contact with Noelin any sphere will have favourite anecdotes by which to recall hismemory with joy and so to sublimate that feeling of loss when such aunique person dies at 56 when still in his prime.

To his wife, Una, and to his children Colm, Fiona, Aoife, Patrick,Eoin and Katie, we extend our sincere sympathy on the loss of a dearhusband and father. We also extend our sympathy to his mother, May,who was so proud of her son’s achievements, and to his many broth-ers and sisters.

Noel Christopher – what else would you have been called whenborn, as you were, on Christmas morning 1942? – we will not easilyforget you.

Michael V O’Mahony

Noel C Ryan, Director General of the Law Society

of Ireland (1990-1994)



Colum Gavan Duffy, solicitor, former librarianof the Law Society and editor of the Gazette,

known to generations of apprentices and solicitorsas ‘the Gav’, died on 15 March 1999. He was aged85 and suffered a stroke some months previously.

Colum was the son of a famous father who washimself the son of an illustrious Irishman. This wasboth a benefit and, sometimes, a burden for Colum.Colum’s father, George, a solicitor, defended SirRoger Casement for his life, was one of the signa-tories of the Anglo-Irish Treaty of 1921, wasMinister for Foreign Affairs, a barrister, and subse-quently President of the High Court. Colum’sgrandfather, Sir Charles Gavan Duffy, founded in1842 the Nation, a weekly paper, was a member of parliament, emi-grated to Australia to practise law, became Prime Minister of Victoriain 1871 and was knighted in 1873 for services to the colony.

The name Gavan Duffy opened doors for Colum and he becamefiercely proud of his ancestors. GM Golding, a solicitor and academicat University College Dublin, wrote a biography of Colum’s father in1982. In one chapter dealing with religious matters, he examinedGavan Duffy J’s decision in Schlegel v Corcoran and Gross ([1942]IR 19), a landlord and tenant case, involving a Catholic and a Jew, andthe issue of whether or not anti-semitism was reasonable in the cir-cumstances. Golding concluded that Gavan Duffy was, on occasions,anti-semitic. Colum became very upset and did his utmost to ensurethat there would not be a second edition.

Colum was born in Dublin on 19 April 1913, educated at Mount

Saint Benedict (Gorey), Anjou (France), EcoleAbbatiale, Maredsous (Belgium) and with a mis-sionary uncle near Madras in India. He graduatedwith an honours BA degree in French, German andModern History in 1935, achieved second place inthe LLB in 1935 and was awarded first-class hon-ours for his MA thesis The Senate in the IrishConstitution in 1947.

Apprenticed in Arthur Cox, he was admitted asa solicitor in 1938 and practised on his ownaccount between 1939 and 1943. He subsequentlystudied librarianship, became assistant librarian inthe College of Science, Dublin, between 1947 and1950 and was appointed librarian of the Law

Society in 1952. He was editor of the Gazette between 1969 and 1978.Colum wrote extensively. He published A chapter of accidents, an

epitome of Irish decisions on road traffic accidents from 1900 to 1941,wrote numerous leading articles, book reviews and summaries ofjudgments in the Gazette as well as occasional book reviews in theIrish Independent. Colum was also an assistant lecturer in constitu-tional law in University College Galway for almost a decade from1972.

Colum was a fearless champion of human rights. He was liberal,generous with his time and talents. His death marks the end of theGavan Duffy male line in Ireland. Maureen, his wife, died two monthsago; they had no children. His memory will be cherished by those whohad the privilege of knowing him.

Dr Eamonn Hall

OBITUARY

Colum Gavan Duffy, 1913–1999

(Front row, l-r): Michael Carroll, Past President Patrick A Glynn, Past President Frank Daly, Director General Ken Murphy, Junior Vice-President Gerard Griffin,President Patrick O’Connor, Senior Vice-President Anthony Ensor, President of the Law Society of Northern Ireland Catherine Dixon, Past President Laurence

K Shields, Past President Moya Quinlan, Ward McEllin, John Meehan; (middle row): Anne Colley, John Harte, Michael Irvine, Philip Joyce, Sean Durcan, Niall Farrell, Hugh O’Neill, Gerard Doherty, Elma Lynch, John Dillon-Leetch, John P Shaw, Alastair Rankin, Chief Executive of the Law Society of NorthernIreland John Bailie, Peter Allen, Orla Coyne; (back row): Owen Binchy, Eamon O’Brien, Walter Beatty, James McCourt, James MacGuill, Donald Binchy,

Michael Peart, Simon Murphy, David Bergin, James Sweeney, Kevin O’Higgins, George Palmer, John Costello, Keenan Johnson

Council of the Law Society 1998/99



Preparations are well underway for the

Calcutta Run on 15 May. This 10K fun-

run, which was featured in the

January/February issue of the Gazette (page

46), is being organised by a group of solici-

tors with help from the Law Society. So far,

approximately 350 people have signed up

and sponsorship cards and training pro-

grammes are being sent out to those who

have registered. Most of the participants are

from legal firms in Dublin, but the run is by

no means confined to solicitors’ firms. A big

turn-out is also expected from the Bar and a

number of other non-law companies are

sending runners and teams.

The Calcutta Run will start and finish in

Blackhall Place from 2.30 on Saturday 15

May. There will be an evening party and

barbecue afterwards. All the proceeds will

go to GOAL’s projects for street children in

Calcutta and Fr Peter McVerry’s project for

homeless young people in Dublin.

The organisers are looking for as many

firms and individuals to take part as possible

in what promises to be an excellent day out.

If you cannot take part in the run, you may

be able to help with stewarding or make a

donation.

If you wish to register for the run, you

can do so by e-mail to [email protected] or

by post to the Calcutta Run, 1 Earlsfort

Centre, Hatch Street, Dublin 2. You can also

contact Eoin MacNeill or Aine Maguire by

telephone on 01 6613311.

At the Education ForumAbove: Judge John F Buckley, Ronan Molony, Law

Society President Patrick O’Connor and Don ThornhillBelow: Elaine Hanly, Mr Justice Ronan Keane, LawSociety Education Co-ordinator TP Kennedy and

Director of Education Albert Power

Law Society President Patrick O’Connorand Director General Ken Murphy get intogear for the Calcutta Run. Also pictured is

GOAL’s Lisa O’Shea

Calcutta run update

The Law Society recently hosted a dinner for the Minister for Social, Family and Community Affairs,Dermot Ahern, who is a solicitor by profession. Pictured at the dinner were (l-r) Law Society Deputy

Director General Mary Keane, Director General Ken Murphy, Minister Ahern, President PatrickO’Connor, Senior Vice-President Anthony Ensor and Junior Vice-President Gerard Griffin

Former Law Society President Frank Daly (right) presentsa decorative panel featuring the Law Society’s crest to

President Patrick O’Connor

Gathering at Blackhall PlaceLaw Society President Patrick O’Connor recently hosted a function at Blackhall Place for Council members and past presidents of the Society.

Left: Council members James McCourt and Anne Colley, Law Society President Patrick O’Connor, and Council members Orla Coyne and James MacGuillRight: Patrick O’Connor with Rosario Boyle BL, Council member Philip Joyce, Law Society Finance Director Cillian MacDomhnaill and Past-President

Michael V O’Mahony (1993/94)



Kildare Bar Association Biennial BallPictured at the Kildare Bar Association Biennial Ball latelast year were Damien Maguire, Treasurer, Kildare BarAssociation, Brian Price, Tony Osborne, Mrs Osborne,Thomas Quinn, President, Kildare Bar Association, and

Grainne White, Secretary, Kildare Bar Association

Roscommon Bar Association AGMThe Roscommon Bar Association recently held its annual general meeting. Pictured at the AGMwere (back row, l-r): Gerard Gannon, Terry O’Keeffe, Declan O’Callaghan, Dermot MacDermott,John Sweeney and John Murphy; (middle row, l-r): Padraig Kelly, Eithne Sheridan, Joan Devine,

Con Harlow, Gerry Kelly, Rebecca Finnerty, Michelle Dolan and Brian Neilan; (front row, l-r): BrianO’Connor, Law Society Director General Ken Murphy, Law Society President Patrick O’Connor,

Joseph Caulfield, Marie Connellan and Harry Wynne

Southern Law Association AGMAt the AGM of the Southern Law Association last November were (back row, l-r): Jerome

O’Sullivan, Sean Durcan, Frank Daly, Martin Harvey, Sinead Behan, Richard Neville, Pat Casey,Simon Murphy, Patrick Dorgan, Michael Powell and Jerry Cronin; (front row, l-r): then LawSociety President Laurence K Shields, Rachel O’Toole, SLA President Fionnuala Breen-Walsh,

Fiona Twomey and Law Society Director General Ken Murphy

Sligo and County Solicitors’ AssociationLaw Society President Patrick O’Connor and Director General Ken Murphy recently visited theSligo and County Solicitors’ Association. (Front row, l-r): Michele O’Boyle, Honorary Secretary,Ken Murphy, Patrick O’Connor and Hugh Sheridan, Bar Association President; (back row, l-r):Raymond Monahan, Patrick McEnroe, Michael Quigley, Niamh Callan, Aine Kilfeather, DervillaO’Boyle, Michael Mullaney, Claire O’Sullivan, Damien Martyn, Anne Hickey, Noel Kelly, Fiona

McGuire, John Creed, Mark Mullaney, Michael Monahan, Thomas Tighe and Keenan Johnston

The Law Society’s apprentice debating team will

represent Ireland in the prestigious Phillip C

Jessup International Moot Court Competition world

finals, following a victory over Trinity College

Dublin. The competition is the largest and most pres-

tigious of its kind. It is organised annually by the

American Association for International Law and the

International Law Students Association. The world

finals are held in Washington DC where teams from

over 50 nations gather to argue the finer points of

international law.

This year’s case focuses on commercial aspects of

international law such as the General Agreement on

Tariffs and Trade and the World Trade Organisation

Agreement of 1994, as well as the protection of intel-

lectual property rights in the international sphere.

This year the Irish final was contested by the Law

Society Apprentices Team and Trinity College Dublin.

After a lively and challenging moot, the Law Society

team emerged victorious against the Trinity side,

which was coached by Dr Clive Symons. In addition

to winning the moot outright, the Law Society team

won awards for best and second best individual

speakers, as well as best written arguments. The

team is Marsha Coughlan, Alan Roberts and Peppe

Santoro of A&L Goodbody, John Meade of McCann

Fitzgerald, and Geoff Moore of Arthur Cox. This

team will now represent Ireland in the world finals

and hopes to emulate previous Law Society teams

that in the past have defeated eminent universities

such as Harvard, Cambridge and the Sorbonne.

The team members would like to express their

appreciation to their respective firms for the support

and encouragement given during preparation for

the Irish final. Sincere thanks is also extended to our

coach TP Kennedy, Education Co-ordinator of the

Law Society, who has been immensely generous with

both his time and his knowledge of the subject mat-

ter at hand.

Geoff Moore, Arthur Cox

Apprentices emerge victorious

in moot court


PROFESSIONAL INFORMATIONPROFESSIONAL INFORMATION

ADVERTISING RATES

All advertisements must be paid for prior to publication. Deadline for MayGazette: 23 April 1999. For further information, contact Catherine Kearneyon 01 672 4800

• Lost land certificates – £30 plus 21% VAT (£36.30)• Wills – £50 plus 21% VAT (£60.50)• Lost title deeds – £50 plus 21% VAT (£60.50)• Employment miscellaneous – £30 plus 21% VAT (£36.30)

Advertising rates in the Professional information section are as follows:

HIGHLIGHT YOUR ADVERTISEMENT BY PUTTING A BOX AROUND IT – £25 EXTRA

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 inadvertentlydestroyed. A new certificate will be issuedunless notification is received in the reg-istry within 28 days from the date of publi-cation of this notice that the original cer-tificate is in existence and in the custody ofsome person other than the registeredowner. Any such notification should statethe grounds on which the certificate isbeing held.(Register of Titles), Central Office, LandRegistry, Chancery Street, Dublin (Published 2 April 1999)

Regd owner: Mary Scanlon (now MaryO’Halloran), Claremont, Clarecastle,Co Clare; Folio: 21281; Lands:Townland of Barntick and Barony ofIslands; Area: 3a 1r 35p; Co Clare

Regd owner: Daniel O’Regan; Folio:10663; Lands: Part of the lands ofButlerstown, situate in the electoraldivision of Butlerstown and Barony ofIbane and Barryroe; Co Cork

Regd owner: Jack and Josephine Magnier,4 Montgomery Terrace, Moville, CoDonegal; Folio: 1380F; Lands:Drumaweer; Area: 0a 1r 14p; CoDonegal

Regd owner: Thomas Alexander Gamble,Glentown, St Johnston, Co Donegal;Folio: 3519; Lands: Glentown; Area:85a 3r 10p; Co Donegal

Regd owner: John Creighton and GloriaCreighton; Folio: 28360F; Lands:Townland of Templeogue and Baronyof Uppercross, property known as 480Orwell Park, Templeogue; Co Dublin

Regd owner: Roseanna Cullen; Folio:12632; Lands: A plot of ground situateon the south side of the Grand Canal inthe parish of Drimnagh, District ofDrimnagh and City of Dublin; CoDublin

Regd owner: Catherine Harvey; Folio:50368F; Lands: Part of the Townland of

LOST LANDCERTIFICATES

Loughlinstown and Barony ofRathdown; Co Dublin

Regd owner: James and BridgetO’Gorman, both of 20 Mount ShannonRoad, Dublin 8; Folio: 74433L; Lands:Property known as 20 MountshannonRoad, Kilmainham, situate in the Parishof Saint Jude and District ofKilmainham; Co Dublin

Regd owner: Deirdre Walsh of 10Wellington Cottages, Templeogue,Dublin 6W; Folio: 9686; Lands:Property situate in the Townland ofTempleogue and Barony of Uppercross;Co Dublin `

Regd owner: Margaret Digby; Folio: 881F;Lands: Talbotsinch and Barony ofCrannagh; Co Kilkenny

Regd owner: Martin Nolan; Folio: 838;Lands: Ballyvalden and Barony ofGowran; Co Kilkenny

Regd owner: Runtalrad Limited; Folio:3678; Lands: Cloghabrody and Baronyof Gowran; Co Kilkenny

Regd owner: Patrick Kinsella and MarionKinsella; Folio: 1663F; Lands:Springhill and Barony of Slievemangy;Co Laois

Regd owner: John Joseph Reynolds,Drumgownagh, Annaghmore, Carrick-on-Shannon; Folio: 18003; Land: Prop1 – Drumconny, Prop 2 – Drumconny,and Prop 3 – Drumgownagh; Area:Prop 1 – 11a 1r 30p, Prop 2 – 1a 3r 20p,and Prop 3 – 0a 3r 22p; Co Leitrim

Regd owner: Laurence Ryan; Folio:5622F; Lands: Townland of Moigh andBallyadam and Barony of Clanwilliam;Area: 16.842 hectares and 2.258hectares; Co Limerick

Regd owner: Thomas Murnane; Folio:8095F; Lands: Townland ofTempleglantan East and Barony ofGlenquin; Co Limerick

Regd owner: Rose McCormack, 9Kennedy Drive, Longford; Folio:11846; Lands: Glack; Area: 0a 0r 4p;Co Longford

Regd owner: John Joseph Mulkeen(deceased), Coogue Middle,Aghamore, Ballyhaunis, Co Mayo;Folio: 3234; Lands: Townland ofCoogue Middle and Barony ofCostello; Area: 30a 1r 10p; Co Mayo

Regd owner: Brigid Gallagher,Derrypatrick, Drumree, County Meath,also 12 Beech Grove, Mullingar, CoWestmeath; Folio: 659; Lands:Ballynamona; Area: 34 acres; CoMeath

Regd owner: Patrick Vincent Duffy (other-wise Vincent Duffy), Crosshugh,Braddox, Co Monaghan, and Grosvenor,62 Church Road, Ryton on Dunsmore,Coventry, West Midlands, England;Folio: 16758; Lands: Crosshugh; Area:8a 1r 0p; Co Monaghan

Regd owner: Richard Alexander; Folio:18342; Lands: Eglish and Barony ofEglish; Co Offaly

Regd owner: Alistair McGrath andGeraldine McGrath; Folio: 2180F;Lands: Endrim and Barony ofGarrycastle; Co Offaly

Regd owner: Peter E O’Gara, Grallagh,Fairymount, Castlerea, Co Roscommon;Folio: 9606; Lands: Prop 1 – Townlandof Grallagh and Barony of Frenchpark,Prop 2 – Townland of Lisduff andBarony of Frenchpark; Area: Prop 1 –14a 1r 10p, Prop 2 – 6a 0r 24p; CoRoscommon

Regd owner: Michael Willis, Tiratick,Ballintogher, Co Sligo; Folio: 15418;

Lands: Townland of Carrickcoola andBarony of Tirerrill; Area: 13a 2r 20p;Co Sligo

Regd owner: Michael Barry and WilliamBarry; Folio: 9644; Lands: Ayle andBarony of Clanwilliam; Co Tipperary

Regd owner: Patrick Kavanagh; Folio:1766; Land: Carriganagh and Barony ofClanwilliam; Co Tipperary

Regd owner: Margaret Quigley; Folio:36141; Lands: Clooncleagh and Baronyof Eliogarty; Co Tipperary

Regd owner: William Patrick Kavanagh(deceased); Folio: 10086; Lands:Rathmacknee Great and Barony ofForth; Co Wexford

Regd owner: John Murphy; Folio: 5834;Lands: Oldtown and Barony of Bargy;Co Wexford

Regd owner: Annie Carr; Folio: 2444;Lands: Ballyguile More Wicklow Ruraland Barony of Arklow, CountyWicklow; Co Wicklow

Regd owner: Linde Hall; Folio: 3288F;Lands: Ballydonarea and Barony ofNorth Salt; Co Wicklow

Maxwell, Annie, deceased, late of MannaSouth, Templemore, Co Tipperary. Wouldany person having knowledge of a will ofthe above named deceased who died on 28February 1999, please contact James JKelly & Son, Solicitors, Templemore, CoTipperary, tel: 0504 31278, fax: 050431983, e-mail: [email protected]

WILLS

LOST A WILL?TRY THE

REGISTRY OF WILLSSERVICE

Tuckey’s House,8, Tuckey Street,

CORK.

Tel: +353 21 279225Fax: +353 21 279226

Dx No: 2534 Cork Wst

DUBLIN SOLICITORS’PRACTICE OFFERS

AGENCY WORK IN NORTHERN

IRELAND* All legal work undertaken

on an agency basis* All communications to clients

through instructing solicitors* Consultations in Dublin if required

Contact: Séamus ConnollyMoran & Ryan, Solicitors,

Arran House,35/36 Arran Quay, Dublin 7.

Tel: (01) 8725622 Fax: (01) 8725404

E-mail: [email protected] Bank Building, Hill Street

Newry, County Down.Tel: (0801693) 65311Fax: (0801693) 62096E-mail: [email protected]

Anguilla and Turks &Caicos Islands

Nil Tax JurisdictionsCorporate structures

for non-residentsand non-domiciliaries

SAMUEL MC CLEERYAttorney at Law and Solicitor

Anguilla: Tel: 001 264 497 2527Fax: 001 264 497 5638

Turks & Caicos Islands:Tel: 001 649 946 2818Fax: 001 649 946 2819

E-mail: [email protected]

ENGLISH AGENTS:Agency work undertaken

for Irish solicitors in both litigation and

non-contentious matters –including legal aid.

Fearon & Co,Solicitors, Westminster House,

12 The Broadway, Woking, Surrey GU21 5AU.

Tel: 0044 1483 726272Fax: 0044 1483 725807


PROFESSIONAL INFORMATIONPROFESSIONAL INFORMATION

Murphy, Una Margaret, deceased, lateof 2 Whitebeam Road, Clonskeagh,Dublin 14. Would any person havingknowledge of a will of the above nameddeceased, who died on 24 January 1999(widow of the late Patrick Joseph Murphy,Finance Solicitor to the Government, whodied on 22 January 1964), please contactJohn Rochford & Company, Solicitors,16/17 Upper Ormond Quay, Dublin 7, tel:01 8721499, fax: 01 8721654, FCDX1015

McCormack, Bernard, deceased, late of1 Goatstown Avenue, Goatstown, CoDublin. Would any person having knowl-edge of a will of the above nameddeceased, who died on 11 October 1998,please contact M Roche & Company,Solicitors, Essex House, Essex Gate,Dublin 8, tel: 01 6792355, fax: 01 6792357

O’Malley, Michael, deceased, late of 25St Patrick’s Cottages, Tralee, Co Cork.Would any person having knowledge of awill of the above named deceased whodied on 7 November 1998, please contactElizabeth Casey, Solicitor, Martin AHarvey & Company, Parliament House, 9Georges Quay, Cork, tel: 021 963400, fax:021 270940

Locum solicitor required for four months

EMPLOYMENT

from mid-April for south Donegal practice.Reply to Box No 30

Solicitor available to do part-time work inNorth Dublin/South Meath area, tel: 018257559

Solicitor with excellent PQE available forpart-time work Dundalk/Dublin area, tel:080 1232 492303

Solicitor required for South Tipperarypractice. Experience required in defencework, both High Court and Circuit Court,also knowledge of District Court mattersand proficiency in conveyancing and pro-bate, tel: O’Brien & Binchy Solicitors, 05221411

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 contentiousand non-contentious matters. Consultationin Dublin if required. Fee sharing envisaged.Offices in Belfast, Newry and Carrickfergus.Contact Norville Connolly, D&E Fisher,

MISCELLANEOUS

Solicitors, 8 Trevor Hill, Newry, tel: 0801693 61616, fax: 080 1693 67712

Personal injury claims, family law, crim-inal law and property law in England andWales. We have specialist departments ineach of these areas, and offices in London(Wood Green and Camden) andBirmingham. One of our staff is in Irelandfor one week in every month. Legal aidavailable to clients that qualify. ContactDavid Levene & Company, Ashley House,235-239 High Road, Wood Green, LondonN22 4HF, England, tel: 0044 181 8817777, fax: 0044 181 889 6395, and TheMcAllen Building, 35 Dale End,Birmingham B4 7LN, tel: 0044 121 2120000, fax: 0044 121 233 1878

London solicitors will advise on UK mat-ters and undertake agency work. All areas.Corporate/private clients. Ellis &Fairbairn, 26 Old Brompton Road, SouthKensington, London SW7 3DL, tel: 0044171 589 0141, fax: 0044 171 225 3935

Agents – England and Wales. We arewilling to act as agents for Irish solicitorsin civil and criminal litigation. Contact:Olliers, Solicitors, Alderman DownwardHouse, 2/3 The Birtles, Civic Centre,Wythenshawe, Manchester M22 5RF, tel:0044 161 437 0527, fax: 0044 161 4373225

Northern Ireland solicitors. Will adviseand undertake NI-related matters. All areas

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

ReflectionsVideos

Reflections VideosContact: Vic Nugent, Charleville, Co. Cork. Phone: (063) 81345 Mobile: (087) 6860406

A NEW SERVICE

1Video to accompany a will,

featuring items to be bequeathed to individuals, plus any other messages

2To talk to family members when client might find it

difficult face to face (often used in time of serious illness)

3As family record for children and grand-children, to be

added to by next generation. Above formats may be mixed. Photographs of weddings, christenings

etc. can be incorporated

PROVEN SUCCESS IN BRITAIN AND USA (Also video evidence for accident sites, property disputes etc.)

PROMPT, NATIONWIDE SERVICEReasonable cost to your client. Good return for yourself.

corporate/private. Agency or full referral ofcases as preferred. Consultations in Dublinor elsewhere if required. Fee sharing envis-aged. Donnelly Neary & Donnelly, 1Downshire Road, Newry, Co Down, tel:080 1693 64611, fax: 080 1693 67000.Contact K J Neary

Family mediation —Experienced private practitioner

Trained by Michael WilliamsImmediate appointments

Adele Gannon: 01 8328730

For sale: Large Chippendale dining/board-room table, old mahogany, 13 ft long, pris-tine condition, £3,500, matching chairs alsofor sale, tel: 01 2698131

Seven-day ordinary clean licence required.Contact Houlihan McMahon, Solicitors,reference JS, tel: 065 28706

Marian Kenny (Principal), Kenny &Associates, Taxation Consultants, 30 LowerLeeson Street, Dublin 2. Services includedealing in all taxation matters, specialisingin personal and capital taxes, tel: 016769993, fax: 01 6611567

Solicitors’ practice required, Dublin area.Three-man Dublin solicitors’ firm wish toacquire the practice of a sole practitioner orretiring solicitor. Consultancy or other flex-ible arrangements. Reply to Box No 31