law society gazette...the recent ‘wasted costs order’ case shows that extreme caution should be...

INSIDE: WASTED COSTS • INTERVIEWING SKILLS • VAT AND PROPERTY • TEEN BOOT CAMPS • YOUR LETTERS

Gazette€3.75 Jan/Feb 2007

GazetteL A W S O C I E T Y

THE GREAT DIVIDE:THE GREAT DIVIDE:Draconian immigration

legislation?

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LAW SOCIETY GAZETTE JAN/FEB 2007 CONTENTS

Editor: Mark McDermott. Deputy editor: Garrett O’Boyle. Designer: Nuala Redmond.Editorial secretaries: Catherine Kearney, Valerie Farrell. For professional notice rates (lostland certificates, wills, title deeds, employment, miscellaneous), see page 00.

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Editorial board: Stuart Gilhooly (chairman), Mark McDermott (secretary), PamelaCassidy, Paula Fallon, Michael Kealey, Mary Keane, Aisling Kelly, Patrick J McGonagle,Ken Murphy, Philip Nolan, William Prentice.

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Jan/Feb 2007

Volume 101, number 1Subscriptions: €57

GazetteGazetteL A W S O C I E T YOn the coverProposed new legislation wouldmake it an offence to marry aforeign national in certaincircumstances and restrict theright of foreign nationals tovalidly marry in Ireland. Butmight it be unconstitutional?

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PIC: GETTY IMAGES

President’s message

NewsThird edition of Conveyancing Handbook released on CD-ROM

ViewpointWhy ‘boot camps’ for teenage offenders are a bad idea

Letters

Practice doctorEquity release schemes: things to be aware of

Tech trends

People and places

ObituaryDenis J Bergin, solicitor

Student spotlightSporting glory in the offing for Blackhall GAA team?

Briefing48 Council report49 Practice notes51 Legislation update: 18 November 2006 – 17 January 200755 Solicitors Disciplinary Tribunal reports57 FirstLaw update59 Eurlegal: Competition Authority v BIDS [2006] IEHC 294

Professional notices

Recruitment advertising

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LAW SOCIETY GAZETTE JAN/FEB 2007CONTENTS

The Law Society of Ireland can accept no responsibility for the accuracy of contributedarticles or statements appearing in this magazine, and any views or opinions expressed arenot necessarily those of the Law Society’s Council, save where otherwise indicated. Noresponsibility for loss or distress occasioned to any person acting or refraining from actingas a result of the material in this publication can be accepted by the authors, contributors,editor or publishers. The editor reserves the right to make publishing decisions on anyadvertisement or editorial article submitted to this magazine, and to refuse publication or toedit any editorial material as seems appropriate to him. Professional legal advice shouldalways be sought in relation to any specific matter.

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

COVER STORY: The great divideProposed legislation to restrict the right of foreignnationals to validly marry in Ireland is certainlydraconian and possibly unconstitutional andincompatible with the ECHR. Emmet Whelan plansthe reception

18FEATURES

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VATman returnsThe Caped Crusader’s more sedate cousin is bringinga new order to the Gotham that is property VAT law,and all businesses with property interests need toconsider the implications. Frank Mitchell battles theforces of evil

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The big interviewYou now regret agreeing to serve on that interviewpanel, and are panicked that you’ll ask the wrongquestions. But no need to worry: Aoife Cooganprovides top tips for getting the most out of yourrecruitment process

26

Waste not, want notThe recent ‘wasted costs order’ case shows that extremecaution should be exercised in attempting to apply thewasted costs rules more widely. Roddy Bourke explains

30

Hangin’ on the telephoneIn-house solicitors represent around 9% of solicitorspractising in Ireland. Mark McDermott talks to AoifeSexton, an in-house solicitor at the top of her game

34

LAW SOCIETY GAZETTE JAN/FEB 2007

4 www.lawsociety.ie

PRESIDENT’S MESSAGE

Competition Authority’s has been overtaken by

The Council of the Law Society held aspecial meeting on 19 January toconsider in detail the contents of thefinal report in the CompetitionAuthority’s study of the legal profession.

That report had been published, at last, on 11December.

I feel justified in commenting that the report was published ‘at last’, as it took the CompetitionAuthority no less than five-and-a-half years toproduce a report of under 200 pages in length.Indeed, when 50 pages of appendices and manymore blank pages are stripped away, the actualreport itself, including much internal repetition, is less than 140 pages in length.

As director general Ken Murphy commented onthe radio on the day of publication, “If anyone elsetook that long to produce a report of that size, Ithink they would probably be criticised forinefficiency – by the Competition Authority.”

Of course, a report that is small in size can beheavyweight and compelling in content.Unfortunately, that is not the case with theCompetition Authority’s final report.

Nothing newThe Society’s initial assessment of the report,conveyed by email from me to solicitors two days afterthe report was published, was that it containednothing new. The authority’s opinions andrecommendations are essentially the same as in itspreliminary report published in February 2005. TheSociety delivered a comprehensive 90-page responseto that in July 2005, and I would urge that this be readin conjunction with the report. Because the authority’sfinal report is essentially unchanged, the Society’scriticisms of the preliminary report still stand. It isdisappointing that the balanced and reasoned responsefrom the Society to the authority’s preliminary reportappears to have fallen on deaf ears.

The authority makes a total of 29 recommend-ations. The great majority are addressed to theMinister for Justice, Equality and Law Reform. A

total of 13 are addressed to the Bar Council, andjust four are addressed to the Law Society.

The authority’s view, repeated verbatim from itspreliminary report, is that “the legal profession ispermeated with serious and disproportionaterestrictions on competition. These restrictionsemanate primarily from the regulatory rules of theLaw Society, the Bar Council and the King’s Inns,but also from the relevant legislation.” Once again,I wish to place on record that the Law Societystrongly disputes these statements. Indeed, there isno evidence in the report to support such findingsas far as solicitors are concerned.

The Society is critical of the authority’sinconsistent use of evidence in two main respects.First, on the subject of the competitiveness of themarket for solicitors’ services in Ireland, theauthority seems very reluctant to draw theinevitable conclusion, based on the evidence of itsown report, that the market is highly competitive.Second, in relation to the system of regulation ofthe legal profession and on other matters, theauthority disregards the need to produce realevidence rather than simply rely on theory andassertions.

As the Society has repeatedly pointed out, thesolicitors’ profession firmly believes thatcompetition benefits consumers and also theprofession itself. Indeed, intense internal andexternal competition has long been a daily realityfor solicitors.

Most importantly, however, some of theCompetition Authority’s proposals carry a real riskto the independence of the legal profession fromunwarranted political intervention. Thisindependence is crucial in a free, democraticsociety. Access to justice cannot be properlyexamined only in terms of economics.

By taking no less than five-and-a-half years toproduce its final report, it is hardly surprising thatthe authority has been overtaken by events.

The government’s decisions in relation toregulatory reform now exist in the Civil Law

5www.lawsociety.ie

LAW SOCIETY GAZETTE JAN/FEB 2007PRESIDENT’S MESSAGE

Perhaps surprisingly, given the Council’s generallylow opinion of the Competition Authority’s report,each of these four recommendations either alreadyrepresented Council policy or was recognised as agood proposal and adopted as policy at the recentCouncil meeting.

At the end of the Council meeting, each of thereport’s sections and each of the 29 recommend-ations having been considered in turn, there was,perhaps surprisingly also, a general consensus thatthe process of the study, although tediously over-long, had been on balance a good thing for theSociety and for the profession. It had caused us tocritically review everything we do. Muchimprovement and greater understanding of what we do has resulted.

Philip JoycePresident

“If anyone elsetook that long toproduce a reportof that size, Ithink they wouldprobably becriticised forinefficiency – bythe CompetitionAuthority”

(Miscellaneous Provisions) Bill 2006, which hasalready completed its second stage in the Dáil andis due to be enacted early in 2007. Theintroduction of a Legal Services Ombudsman anda lay majority on the Law Society Complaints andClient Relations Committee is, in the Society’sview, a proportionate response, which we support.On the issue of legal costs, the Haran WorkingGroup on the costs of civil litigation wasestablished, has reported, and is now atimplementation stage, all in the space ofapproximately a year-and-a-half.

Recommendations based on prejudiceFollowing a thorough analysis, the Council’soverall conclusion, endorsed by the Society’s legaland economic expert advisors, was that the reportis disappointing in the quality of its analysis andconclusions. Its main recommendations are basedon a priori reasoning, or even prejudice, ratherthan an informed understanding and accurateassessment of the present situation in the marketfor legal services in Ireland.

In addition, the report fails to meet thestandards of evidence-based policy making that arerequired for sound regulation, as recentlyendorsed by the government.

As I have indicated, just four of the authority’srecommendations are addressed to the LawSociety. These are that the Society should: a) Publish criteria for a voluntary system whereby

solicitors who wish to represent their clients inIrish could be trained and examined to a highand consistent standard,

b) Ensure that all unnecessary barriers areremoved for lawyers wishing to switch from onebranch of the legal profession to the other,

c) Amend its regulations to enable the designationof solicitors as specialists and to allow suchsolicitors to advertise as specialists, and

d) In consultation with the National ConsumerAgency, develop a consumer information pageon its website.

report events

‘Giving your clients peace of mind when investing abroad’

Tom McGrath & Associates • 37, Upper Mount Street, Dublin 2, IrelandTel: +353 1 6610707 / 6788774 • Fax: +353 1 6114975 • www.tmsolicitors.ie • [email protected]

7www.lawsociety.ie

LAW SOCIETY GAZETTE JAN/FEB 2007NEWS

nationwide

Send your news to: Law Society Gazette, Blackhall Place,Dublin 7, or email: [email protected]

■ WICKLOWRevamp it upLawyers in the county will soonhave to contemplate how theirbusiness is to be conducted whenWicklow courthouse closes. Thecourthouse is scheduled for asubstantial revamp. Barassociation president CathalLouth has no hard informationas to when the closure will takeplace, other than the fact that itis imminent. However, hebelieves that the works willinvolve the closure of thecourthouse for up to two years.It is likely, therefore, that courtbusiness will be transferred tothe already very congested Braycourt, which will be good newsfor those in the northern part ofthe county but less so, perhaps,for those from the southernboundary.

■ MEATHTake a seatPaul Brady, president of theMeath Bar Association, advisesthat their long-standing countyregistrar, Maire Teehan, will beretiring this year after threedecades of service – a remarkableinnings. Paul hopes to arrange asuitable function in her honourshortly, and a function to markthe pending retirement of JudgeBrophy.

■ WATERFORDIt would never happen in a golf clubStrange times indeed, it seems,for legal practice in Waterford,which has seen a schism of sortson gender grounds. MoretteKinsella has replaced NeillBreheny as bar associationpresident – no problems there.However, Morette has sincegalvanised a large number ofpractitioners and brought themto London for a bit of R and R

(although no doubt there will bethe mandatory CPD element!).No problem there, either –except it was a women-onlyaffair! Would the men ever dosuch a thing? Surely this eventwas a one-off and would neverbe replicated elsewhere – orwould it? Morette didn’t see anyproblem with the genderexclusion: “On the contrary, menare more than welcome – as longas they observe the dress code,which on this occasion was justthat – dress attire!”

■ DONEGALJudge notDonegal Bar AssociationPresident Brendan Twomey isdeeply unhappy with the lack ofa second judge in both theDistrict and Circuit Courts.With the population of thecounty standing at 140,000 and aconsiderable spillover of workfrom adjoining counties,Brendan is concerned that theCourts Service has not takenthese factors into account inmanaging Donegal and thenorthern circuit. Commenting toNationwide, he said: “The judgesof the District Court in Donegalhave publicly highlighted theseproblems. The bar association

believes that the solution lies inthe permanent appointment of afurther two judges and calls uponthe government to make theseappointments without delay andto provide the Courts Servicewith the necessary resources togive the people of Donegal aproperly staffed functioningsystem of justice.”

■ LONGFORDMake yourself comfortablePerhaps to the envy of colleaguesin other parts of the country,Longford solicitors are settlingdown into the new surroundingsin the refurbished Longfordcourthouse. According to barassociation president BrídMimnagh, colleagues, staff, andthe general public give the newsurroundings the thumbs up.Brid also advises that theassociation is hoping to hold anumber of seminars beforeEaster.

■ DUBLINFour hundred, four seasonsFour hundred or so colleaguesand their partners enjoyed astunning evening in the FourSeasons on the occasion of theDSBA Ball. Always the socialhighlight in the legal year,

association president DavidBergin was thrilled with thesuccess of the night, which alsoraised a considerable sum forcharity. Guests included severalmembers of the judiciary, ourfriends in neighbouring barassociations both in Ireland andBritain, as well as MinistersMcDowell and Cowen.Congratulations to Orla Coyne,who organised the night for thefirst time in succession to HeleneCoffey.

Achilles’ last standHelene herself, as DSBAprogramme director, has beenbusy organising a high-poweredseminar on family law that wasvery well attended. Chaired byHilary Coveney, now of MOP,speakers included Gerry DurcanSC, solicitor Muriel Walls, legalcosts accountant RobertMcCann and Dr Carol Coulter.The DSBA’s Family LawCommittee put together theseminar in recognition of themany developments in the ever-changing area of family law. Aconveyancing seminar on thetopical subject of managementcompanies and relatedconveyancing problems is in thepipeline for the end of themonth.

Mr Justice Diarmuid O’DonovanThe DSBA was further saddenedto note the passing of a greatfriend to it over the years – MrJustice Diarmuid O’Donovan.Diarmuid was a frequent guest ofthe association at many of itssocial activities, in particular theannual ball, where his goodhumour and friendliness to us allwas plain to see.

Nationwide is compiled by KevinO’Higgins, principal of the Dublinlaw firm Kevin O’Higgins.

G

Men in blackThe Mayo Solicitors' Bar Association annual dinner dance took place on 8 December (l to r): Michael Bohan, Pat O’Brien, Gerry O’Meara,

Brian Diamond and Shane Tully

8 www.lawsociety.ie

LAW SOCIETY GAZETTE JAN/FEB 2007 NEWS

Two solicitors have beennominated by the

government, along with fiveother members, forappointment to the IrishFinancial Services AppealsTribunal. All nominations havebeen welcomed by the Ministerfor Finance, Brian Cowen, TD.

The nominations are:Chairperson – formerSupreme Court Judge FrancisD Murphy. DeputyChairperson – Inge ClissmannSC. Ms Clissmann is thecurrent chairperson of theUniversity of Dublin, TrinityCollege’s Disciplinary Panel,the Civil Service DisciplinaryAppeals Board and a formermember of the GardaComplaints Appeals Board.Lay Members – GeraldineClarke (past-president of theLaw Society and a solicitorspecialising in commercial law),John Fish (a former member ofthe Council of the Law Societyand a solicitor with a wealth ofexperience in the fields of

Solicitors appointed to Irish Financial Services Appeals Tribunal

commercial and banking law),John Loughrey, Liam Maddenand Paulyn Marrinan-QuinnSC.

The tribunal will beestablished under the CentralBank and Financial ServicesAuthority of Ireland Act 2003.The establishment of thetribunal follows theintroduction of theAdministrative Sanctions

decision derives, depending onwhether it is a banking,insurance or investment matter.Administrative sanctionsdecisions may be affirmed,varied, substituted or remitted.In addition, some decisions bythe Financial Regulator relatingto the Administrative SanctionsProcedure may be set aside bythe tribunal. An appellantdissatisfied with the finaloutcome may appeal a decisionof the tribunal to the HighCourt.

“The establishment of theFinancial Services AppealsTribunal is an importantfurther step in ensuring theintegrity of the regulatoryregime for financial serviceproviders in this country,” saidMinister Cowen. “I wish thenew members the very best inthe important role they areabout to assume.”

The tribunal will be based at:First Floor, Frederick House,19 South Frederick Street,Dublin 2.

John FishGeraldine Clarke

Procedure for the FinancialRegulator in 2004.

The 2003 act provides thatappeals against certaindecisions made by theFinancial Regulator will beheard and determined by theIrish Financial Services AppealsTribunal. Whether the decisionis appealable to the tribunal isdefined in the relevant piece oflegislation from which the

The procedure for the SmallClaims Court has gone

online in a total of 16 pilotDistrict Court (Small Claims)offices nationwide.

The pilot offices are Dublin,Swords, Dun Laoghaire/Bray,Carlow, Cavan, Clonakilty,Cork, Killarney, Limerick,Listowel, Mallow, Swords,Tralee, Trim, Wexford andCastlebar. Applications can belodged online in either Irish orEnglish. Claimants can applyat: www.smallclaims.ie.

From your desktop in areasas far apart as Donegal, Dublinor Dingle, claimants can haveinstant access to this small fee,hassle-free system – without

having to attend a court office,which may be many miles awayand, in the past, involved areturn visit with a completedform.

The online system enablescomplainants to: • Lodge their small claims

application online withoutthe need to attend or contact

their local small claimsoffice,

• Pay the appropriate court feeonline,

• By logging on to the systemthrough the use of a PINnumber, monitor theprogress of an application asit progresses through thesmall claims process.

The system has been availableonline since November, sincewhen 21% of all small claimsapplications received in theDublin District Court havebeen lodged online.

The system will remain inpilot phase until the end ofJanuary 2007 and the Courts

Service will then startimplementing the system in all45 Small Claims officesnationwide. This will becompleted by the end of April2007. At that stage, the publicthroughout the country willhave online access to thesystem.

In 2007, additional onlineapplications will see: • The High Court Case

Management System goonline and allow access toinformation on High Courtcases by lawyers and thepublic via www.courts.ie, and

• The introduction of a systemallowing for the payment ofcourt fines online.

Small Claims Court goes online nationwide

9www.lawsociety.ie


The Law Society and itsConveyancing Committee

have just published the 3rd

edition of the Society’sConveyancing Handbook on CD-ROM.

This is an updatedcompilation ofrecommendations, practicenotes and articles onconveyancing practice andprocedure issued by theConveyancing Committee fromthe late 1970s up to July 2006.

This is the first edition of thehandbook to be published onCD. The move to the newermedium recognises theprofession’s increasing use ofinformation technology ineveryday conveyancing practice.

A free copy of the CDhandbook was distributed by theLaw Society to all practisingsolicitors in January and will, nodoubt, have received a test runon members’ computers by now.The CD was designed in astraightforward format thatshould be familiar to users ofthe previous hard-copy editionsof the handbook. This willensure that the conveyancingpractice notes continue to beeasily accessible to practitioners.There is a ‘help’ file on the CDand some useful instructions onthe CD case that will assist withinstallation and any technicalqueries.

In preparing the 3rd edition,some practice notes that are nolonger relevant to currentconveyancing practice have beenomitted. However, in someother cases it has been decidedto retain older practice notes inorder to reflect the historicalposition regarding particularpractices and procedures, as itwas felt that this would be ofassistance, even where currentpractice and procedure may bedifferent. Some other practice

Conveyancing Handbookgoes digital with 3rd edition

notes have been brought up todate by way of updates printedin bold type at the foot of thepractice notes or by way of thefootnotes in italics in the pagemargins.

Website aidesThe appendices contain someof the more frequently-requested precedentdocumentation, along withsome Revenue statements ofpractice on stamp duty andcapital taxes. The committeestrongly recommends thatpractitioners use the websites ofbodies such as the Revenue andthe Property RegistrationAuthority (Land Registry) tokeep up to date with theirpractice directions and

statements of practice. Thecommittee also recommendsthat practitioners use the veryhelpful precedentdocumentation and otherpractice aids, such as practicenotes and submissions, in themembers’ area of the LawSociety’s own website.

It is expected that the 3rd

edition of the ConveyancingHandbook will continue to assistpractitioners in following goodconveyancing practice inparticular areas. The Societywould like to thank all currentand former members of theConveyancing Committee fortheir invaluable contributionsover the years and for practicenotes produced by them thathave been used in the threeeditions of the handbook todate.

The Society would also liketo thank current and formersecretaries to the ConveyancingCommittee who coordinatedthe publication projects,together with Law Society staffmembers who designed andtypeset this and previouseditions of the handbook.

Law School welcomes New Jersey AGThe Law School welcomed a distinguished guest speaker in Peter C Harvey, attorney, on 12 January. Mr Harvey has just

completed a four-year term as Attorney General for New Jersey inthe United States. He is the first African-American to serve in thisrole. Mr Harvey spoke on the ‘Role of the US Attorney General’

and proved to be an arresting and charismatic speaker. Mr Harveyhas recently joined the distinguished New York law firm Patterson

Belknap as a litigation partner

■ PRE-NUPTIAL STUDY GROUP

ANNOUNCED

The membership of the Pre-

nuptial Study Group has been

announced by the Minister for

Justice, Equality and Law Reform.

The group has been established

to study the operation of the law

in relation to pre-nuptial

agreements.

Ms Inge Clissmann, an expert

in family law, will chair the group.

The other members are:

• Ross Aylward LLB

• Marie Baker SC

• Margaret Bannon advisory

counsel, Office of the Attorney

General

• Stephanie Coggans, managing

solicitor, Law Centre, Legal Aid

Board, Monaghan

• Louise Crowley, solicitor and

lecturer, Faculty of Law, UCC

• John Kenny, Department of

Justice, Equality and Law

Reform.

The Tánaiste has asked the group

to report to him and to make

recommendations for change in

the law, as it considers necessary,

by 31 March 2007. It is the

Tánaiste’s intention to publish the

report and any recommendations

made.

■ PROFITABLE PRACTICE?

Following on from the success

of her Mayo seminar ‘Six Steps

to a Profitable Practice’ last

October, Helen Burns of Action

International is planning to hold

seven group-coaching sessions

exclusively for Mayo solicitors in

2007.

Her group-coaching sessions

will show practitioners how to:

• Get more done in less time,

• Get more clients more easily,

• Learn the six keys to a winning

time, and

• Know your figures and what to

do with them.

For further details and bookings,

email Helen at: helenburns@

action-international.com, phone

087 286 3977, or visit her

website: www.action

coaching.com/helenburns.

ONE TO WATCH: NEW LEGISLATIONEmployment Permits Act 2006This act was signed on 23 June2006, and was brought into effecton 1 January 2007 by SI 682 of2006. SI 683 of 2006 prescribesfees and certain procedures.

Introducing the bill, the Ministerfor Enterprise, Trade andEmployment, Micheál Martin, identi-fied two key objectives: • To provide a statutory framework

for the implementation of anactive, managed economicmigration policy, involving ‘greencards’, an intra-company transferscheme and a revised work per-mit system;

• To establish a number of protec-tions for migrant workers;

• At the time of writing, the minis-ter was due to announce detailsof the new scheme on 24January, to come into effect on 1 February 2007.

In managing the supply of labour forthe economy, the minister identifiedthree courses: the upskilling of Irishworkers through the ‘One Step Up’initiative, maximising the use of the200 million workforce in the

European Economic Area (of whichthe Irish workforce is two million),and, lastly, sourcing key skills fromoutside the EEA. This act applies tothe last category.

Statutory basisThe act puts existing administrativepractice on a statutory basis, anddoes not introduce major changes.It amends and adds to theEmployment Permits Act 2003. Thesystem continues to be vacancy driv-en and involves either an employeror the foreign worker applying for thepermit in relation to a specified job.The act enables the minister tomake regulations, and heannounced the following scheme, tobe introduced this year (not includedin the provisions of the act):• Salary range €30,000 –

€60,000 (restricted list of occu-pations) and over €60,000(more extensive list of occupa-tions) – permit a ‘green card’.Sectors likely to be included areIT and communications, health-care, construction, financial serv-ices, engineering, pharmaceuti-cals, and sales and marketing.

The permit will be initially grantedfor two years, renewable forthree years, giving rise to thepossibility of indefinite renewalthereafter. ‘Green card’ holderswill be entitled to bring spousesand families with them, andspouses will be entitled to workwithout a work permit. However,the ‘green card’ as described isnot equivalent to the US greencard, which allows free mobilityof employment and does nothave to be renewed.

• Re-establishment of an intra-company transfer scheme fortemporary (up to five years)trans-national managementtransfers.

• Salary up to €30,000 (veryrestricted list of occupations) –permit not a ‘green card’, initiallygranted for two years, renewablefor three years, giving rise to thepossibility of indefinite renewalthereafter. Nothing was saidabout family reunification.

Employment permitApplication for an employment per-mit may be made by an employer or

a worker, subject to the existence ofa job offer. Contractors and relatedpersons bringing in workers mayalso apply, but not employmentagencies. Employment permits aregranted to the employee concerned,not the employer, but the employergets a copy if he or she has madethe application. Sections 6 and 7set out the information to be sup-plied with the application for a per-mit, including any previous visit tothe state or request for permissionto land.

A permit applied for by a workerwill generally operate to permit theworker to work in a specified eco-nomic sector, for up to two years.Information stated on the permitmust include a description of thejob, the terms of remuneration andany deductions, the requirement topay the minimum wage (but not reg-istered employment or statutoryagreements, if applicable), and theright to apply for a new permit.

A summary of the main employ-ment rights of an employee arealso to be included with the permit(s9). The cost of a permit, set outin SI 683 of 2006, remains at

10 www.lawsociety.ie


At the Hibernian Law Journal Annual Lecture in the Law School on 19 December were (back, l to r): Emer O’Connor, TP Kennedy (the

Law Society’s director of education), Paul Ryan, Judge Erik Møse (guestspeaker), Rosemary Wall, John Hugh Colleran, Sinéad Hayes, Maeve

Regan, (front, l to r): Éadaoin Rock, Julia Emikh and Jennifer Tuite (editor)

This year’s Hibernian LawJournal Annual Lecture took

place in the Law School on 19December. The guest speakerwas the President of theInternational Criminal Tribunalfor Rwanda, Judge Erik Møse.The lecture was chaired byPresident of the Irish HumanRights Commission Dr MauriceManning.

Judge Møse, a native of Oslo,has sat on the tribunal since May1999. He presented his audiencewith some sobering facts, inparticular his estimate that morethan 100,000 people may havebeen involved in carrying out theRwandan genocide.

He stated his belief that theconditions for genocide couldarise anywhere, particularly in

Tribunal judge delivers HLJ lectureconcerns only the leaders thatwere responsible for thegenocide. Those tried haveincluded military and politicalleaders, senior media figuresand some high-ranking clergy.

Since the tribunal hearingsbegan in January 1997, 32judgments have been handeddown. Among the tribunal’s 27convictions was the first everconviction of a prime ministerfor genocide. Jean Kambanda,the Rwandan prime ministerwho presided over the genocide,pleaded guilty before thetribunal and was given a lifesentence. Judge Møseemphasised that life sentenceshanded out by the tribunal doliterally mean imprisonmentuntil death.

authoritarian states where onegroup of people was consistentlysubjected to propagandaasserting that another group wassub-human.

However, Judge Møse’sdescription of the ongoing workof the tribunal and thededication of its staff washeartening. The tribunal’s remit

€500 per year, that is, €1,000 forthe first two years and €1,500 forthe following three years. Itappears to be payable by ‘theapplicant’, whether employer orworker (s12, refusal to grant per-mit).

The act also provides that anemployer must show that no EEAnational was available for the joband that over 50% of the existingemployees are EEA nationals. If anapplication is refused, the refusalmay be appealed within 21 days,and the person deciding the appealmust be a different and senior offi-cer (s13). An application may berefused for a number of reasons,including if the foreign worker com-menced employment in the state inthe previous 12 months andalready has an employment permit.This seems to imply that workerswill be expected to stay in theiroriginal jobs for at least one year,and may be problematic in casesof exploitation.

The act provides for ministerialdiscretion on the number of per-mits to be issued and the criteriafor the exercise of this discretion

are set out. The minister may alsomake regulations to govern thegranting and renewal of permits,including limiting the number tobe granted, the categories ofemployment, qualifications andskills and the duration of permits.The minister must take note ofcertain considerations in monitor-ing the working of the system,including economic and socialdevelopment and competitivenessin the state.

Protections for migrant workersThe functions of the Minister forEnterprise, Trade and Employment(processing of applications, grant,refusal, revocation and renewal)may be delegated to the officers ofanother minister, which leavesopen the possibility that thesefunctions may, in time, be sub-sumed into INIS (IrishNaturalisation and ImmigrationService) (s36).

Different types of abuse of anemployment permit are offences(ss18 and 19). The minister mayrenew a permit for a period up tothree years, or if the permit has

been in force for over five years, itmay be renewed for an indefiniteperiod.

To give greater protection tomigrant workers, s23 explicitly pro-hibits certain behaviour by employ-ers: • Any charge for the application

for or renewal of the permit(where the employer has madethe application),

• Any charge for recruitmentexpenses,

• Any charge for an amountalready paid to the workertowards his or her travellingexpenses incurred in taking upemployment in the state,

• Retention of any of the worker’spersonal documents, includingpassport.

Breach of these prohibitions is anoffence. If the employment ends,the permit must be surrenderedto the minister within four weeks,and failure to do so is an offence.Whistleblower protection is intro-duced by s26 against penalisationfor making a complaint to theauthorities or giving evidence in

any proceedings under this legis-lation. The employer must keepspecified records for at least fiveyears (s27). The time limit forsummary prosecution of anof fence is extended to 24months, but the only penalties arefines or imprisonment – not a pro-hibition against the employmentof other non-nationals by anexploitative employer. If anoffence is committed by a bodycorporate, s33 imposes personalresponsibility on officers of thecompany and management.

CPD seminarReaders may be interested toknow that a CPD seminar will beheld on ‘Employment Rights ofImmigrants and Other Issues’ on 3March 2007 from 2-6pm in theEducation Centre, Blackhall Place,and will be addressed by CiaranO’Mara, Barr y Walsh, NoelineBlackwell, Elaine Mettler andGeraldine Hynes.

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

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11www.lawsociety.ie


The National ConsumerAgency – the country’s

consumer watchdog – says thatthere is more protection forsomeone buying a €30 kettlethan a €300,000 apartment.National Consumer Agencychairwoman, Ann Fitzgerald, hasrecommended that estate agentsshould provide potentialapartment buyers with details ofexisting and projected servicecharges and sinking funds.

The government says it is toestablish an interdepartmentalcommittee to develop legislationto govern the operation ofproperty management firms forapartment complexes and othermulti-unit developments.

Addressing a conferenceorganised by the Law Reform

Commission at Blackhall Placeon 25 January, the Tánaiste andMinister for Justice MichaelMcDowell said that the currentlegal framework was “ill-suited in

many ways” for dealing withproblems arising with apartmentaccommodation. Thegovernment was determined toaddress the problem anddifficulties that had arisen inrecent years, he said. Thegovernment is preparing draftlegislation to establish a PropertyServices Regulatory Authority tooversee the operation of propertymanagement companies andtheir agents.

The new legislation isexpected to take account of thefact that apartment owners, asmembers of a propertymanagement company, may havelittle experience of running acompany, as well as having littleawareness about their rights andresponsibilities.

Apartment law change ■ NATIONAL MINIMUM WAGE

The national minimum hourly

rate has increased from €7.65

per hour to €8.30 per hour from

1 January 2007, as announced

by the Minister of State Tony

Killeen on 20 December 2006,

by the National Minimum WageAct 2000 (National MinimumHourly Rate of Pay) Order 2006(SI No 667 of 2006), made

under the National MinimumWage Act 2000. The minister

also announced that this figure

would be further increased to

€8.65 with effect from 1 July

2007.

■ EYBA TO MEET IN NI

The next European committee

meeting of the European Young

Bar Association (EYBA) will be

held in Belfast on 16-17 March

2007. Information from

www.eyba.org.

Tánaiste Michael McDowell



The Society is delighted toannounce the launch, from

February 2007, of its new on-line ‘locum recruitmentregister’. This register is co-ordinated by Trina Murphy,recruitment administrator,who can be contacted at theSociety’s Cork office,Courthouse Chambers, 27-29Washington Street, email:[email protected], ordirect dial phone number: 021422 6203.

Until now, Trina acceptedcurricula vitae (CVs) fromsolicitors seeking employmentas a locum, which she providedon request to members seekingto employ a locum. However,in recognition of the urgencythat often surrounds the needto employ a locum, the Societyhas developed a new user-friendly, computerised, self-service register, based largelyon the trainee recruitmentregister, already available onthe Society’s website.

From February 2007, thenew locum recruitmentregister will be available onthe Society’s website. It willallow a solicitor seekingemployment as a locum toload their CV on the website,to be viewed by membersseeking to employ a locum,who can then make directcontact. Once the solicitor hassecured a locum position, theycan remove their CV from thewebsite.

Full information and userinstructions for the new locumrecruitment register areavailable on the website. Trinais available to deal with anyqueries, but here are answersto some of the more obviousquestions:

How do I join the register?A solicitor wishing to join theregister can apply online. Oncethe application is completed,the CV will be displayed on theregister immediately.1) Open the Law Society

website, www.lawsociety.ie.2) Click on ‘employment

opportunities’ and, in thedrop-down, click on ‘locumrecruitment’.

3) You will enter the section tojoin the locum recruitmentregister. Click on the word‘here’ to join the register.

4) In the next screen, click onthe button ‘not registered’.

5) You will be asked to agree tothe terms and conditions ofthe locum recruitmentregister. Agree to same andclick on ‘continue’.

6) You will be prompted toenter your contact details,email address and a password.

7) To complete the registrationprocess an email will be sentto your email address. Goto your inbox and click onthe link provided in theemail. You will ‘log in’ usingyour email address andpassword.

8) You will be prompted toenter your preferredgeographical location andupload your CV, then clickthe ‘submit’ button.

I am currently on the locumrecruitment register, how do Istay on it?Post registration, your CV willremain on the register for 21days, after which failure to loginto your account will cause anautomatic email to be sent toyou, warning that your CV willbe deleted if you fail to log inwithin the following seven days.

How can I remove my CVfrom the register?On receiving the seven-daywarning email above, do notlog in to your account, whichwill be closed on the seventhday.

I am on the locumrecruitment register. How doI update/replace my CV orchange my preference ofgeographical location?1) Open the Law Society

website, www.lawsociety.ie.2) Click on ‘employment

opportunities’ and, in thedrop-down, click on ‘locumrecruitment.’

3) You will be prompted toenter your email address andpassword, and then click ‘log in’.

4) You will then be in youraccount, re-select yourpreference of geographicalareas and/or click the‘upload’ button to re-attachyour new CV.

5) Finally, click on the‘submit/update’ button.

I was on the locumrecruitment register and Iaccidentally did not renewmy account. When I log in, ittells me it is an invalid emailaddress or password. How do

I re-activate my account?You must start from thebeginning and join the registeragain, as per the instructionsgiven above.

I am a solicitor who wants toemploy a locum. How do Iview the locum CVs? 1) Log in to the members’ area

of the Law Society websitewww.lawsociety.ie.

2) Click on ‘locum solicitors’,and click ‘here’ for details ofCVs currently on theregister.

3) You will be asked to agree tothe terms and conditions ofthe locum recruitmentregister. Agree to same andclick on ‘continue’.

4) You can either choose toview ‘all’ CVs on the registeror ‘select’ specificgeographical locations. Click‘search’ to view the CVs.

5) After reviewing the CVs,you can make direct contactwith the locum of yourchoice.

Extended employmentregisterTrina also co-ordinates theemployment register, which hasrecently been extended to allowmembers advertise for all roleswithin a legal office, not justqualified solicitors. This wasthe subject of an e-zine articlein January, entitled ‘SituationsVacant’. Trina is available todeal with any queries inrelation to the employmentregister.

Louise Campbell, support servicesexecutive, Law Society of Ireland,Blackhall Place, Dublin 7, tel: 01 881 5712, email:[email protected].

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SUPPORT SERVICES FOR MEMBERS

NEW LOCUM RECRUITMENT REGISTER LAUNCHED

Support services executive Louise Campbell explains the Society’s new facility for solicitors seeking, or seeking employment as, a locum

13www.lawsociety.ie

Alma Clissmann reports on developments in relation to the practical applicationof the European Convention on Human Rights

human rights watchConsitutional and ECHR rightsof Irish-born children


In a case on the grant ofresidence to parents of Irish-

born children born before 1January 2005 (Bode and Others vThe Minister for Justice, Equalityand Law Reform, the HumanRights Commission and the AG asNotice Parties, 14 November2006, High Court), Ms JusticeFinlay Geoghegan held that theminister, in taking a decision torefuse a parent’s applicationunder the IBC/05 scheme, actedin breach of the rights of thecitizen child under article 40.3 ofthe Constitution and actedincompatibly with the state’sobligations under article 8 of theECHR.

The IBC/05 schemeThe IBC/05 scheme wasdeveloped by the minister to dealwith the status of parents of Irishcitizen children (IBCs) bornbefore 1 January 2005 in Ireland,who obtained Irish nationalitybecause of the law in place at thetime. Non-national parents ofsuch children were invited toapply under the scheme, and16,693 were given leave toremain; 1,119 cases were refused,566 because of insufficient evid-ence of continuous residence,including the applicants in theseeight judicial review cases.

It was accepted that noconsideration was given by or onbehalf of the minister to theposition or rights of the IBCs.The minister argued that he wasnot obliged to consider the rightsof the children because a refusalwould not alter the status in thestate of the refused parent,refusal did not involvedeportation or breaking up of afamily unit, the scheme granted aprivilege to which the parents

had no entitlement, and, prior toany deportation or change tofamily circumstances, the rightsof the family would beconsidered under s3 of theImmigration Act 1999(deportation).

It was accepted that theminister was an organ of stateperforming a function within themeaning of s3(1) of the ECHRAct 2003, and was obliged to doso in a manner compatible withthe European convention. It wasalso accepted that he was boundto act in accordance with theprinciples of constitutionaljustice and fair procedures.

The ConstitutionJudge Finlay Geoghegan heldthat the child was central to theIBC/05 scheme. It was notsuggested that any interest of thecommon good required theminister to take a decision torefuse an application under thescheme without considering therights of the citizen child, or thatany interest in the common goodrequired a decision to refuse anapplication by reason of a failureto establish continuous residency.She held that, as the child’s rightswere continuous, when theminister established the schemeand considered applicationsunder it, he was bound to act in amanner consistent with the stateguarantee to defend andvindicate, as far as practicable,the personal rights of the citizenchild. Prima facie, a positivedecision on residence for theparent would defend andvindicate the child’s personalrights. The ability to considerthe child’s rights at a later datedid not relieve him of hisobligation to do so when

deciding an application under thescheme.

She then went on to considerhow the minister could make adecision consistent with a child’srights, and referred to Murray J’sjudgment in AO and DL v TheMinister for Justice ([2003] 1 IR 1at p91), where he said that adecision must not bedisproportionate to the endssought to be achieved. Shesummarised the position: • The citizen child of non-

citizen parents prima facie hasthe right to remain in thestate;

• While in the state, the childhas rights, including thatrelevant decisions mustconsider his or her bestinterests;

• These are qualified rights, asthe minister, having had dueregard to these rights andtaking account of all relevantfactual circumstances, maydecide for good and sufficientreason, in the interests of thecommon good, that the parentbe refused permission toremain in the state, even if thisis a decision that is not in thebest interests of the child;

• In making this decision, hemust ensure that it is notdisproportionate to the endsto be achieved.

Obligations under the ECHRTurning to the minister’sobligations under the ECHR Act2003 to have regard to the child’srights to private and family life,Finlay Geoghegan J rejected theargument that these rights werenot engaged because the schemewas not decisive in thedeportation of a family member.

Although she found that the

children enjoyed family liveswith their parents, she could notfind that the decision to refuseresidency under the schemeconstituted an interference withthe right to respect for familylife.

However, she found that thechildren had a private life in thesense of personal and socialrelationships that result fromliving in the state, referring toSisojeva v Latvia (ECtHR, 16June 2005). She recognised thatthe effective exercise of thechildren’s right to a private life isdependent on their parents’presence and ability to work toprovide for them and provide astable environment.

She held that the ministermust, at a minimum, determinewhether the child’s right underarticle 8 requires the parent to begiven permission to remain and,in making that decision, mustseek to strike a fair balancebetween the rights of the childand the community.

This decision does not finallydecide the position of the 566parents of IBCs refusedpermission to remain because ofquestions over continuousresidence. The decision is underappeal to the Supreme Court,and if that court upholds thisdecision, permission to remainmay still be refused if theminister decides for good andsufficient reason that this isrequired in the common good,and that his decision isproportionate when weighedagainst the interests of the childin question.

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

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LAW SOCIETY GAZETTE JAN/FEB 2007 VIEWPOINT

Children’s rights havefeatured prominently in

political debate and publicdiscourse in Ireland of late.The idea of a referendum onchildren’s rights has been seenas an overdue but welcomedevelopment. The debate onthe age of consent continues.Notably in this debate, andperhaps for the first time, theviews of young people weresought by lawmakers on anissue affecting them.

Against this backdrop, thecall for boot camps for youngoffenders seems out of stepwith progressive thinking onquestions of juvenile justice.Moreover, a cursory look atexperiences in otherjurisdictions reveals the idea tobe ill-conceived at best.

Boot camps have been partof the penal system in the USfor over 20 years. While two-thirds of US states now operate

Teenage boot camps: Boot camps for young offenders have failed in other jurisdictions, most notably in the US. Calls fortheir introduction in Ireland should be resisted, argues former New York public defender, John Moher

boot camps, failure and scandalhave recently seen the numberof camps fall. In the US, aselsewhere, boot camps aremodelled on military trainingcamps. This form ofpunishment is also referred toas ‘shock incarceration’, inwhich inmates are required toengage in physically demandingmilitary-style exercises, drills

and marching. On-the-spotpush-ups and otherpunishments are meted out forminor infractions of strict rules.Reportedly, in one camp,heavier punishments includeddragging around a large log fordays. (Apparently, the log waseuphemistically christened‘learning experience’.)

In most US states, a place in

boot camp is offered to youngoffenders as an alternative to aprison term or, in some cases,probation. Usually, offenderswho fail or refuse to completetheir sentence in boot campmust then serve the prisonsentence in full. Provision alsoexists, however, for directlysentencing offenders to aperiod in boot camp.

Beneath the surfaceThe superficial appeal of bootcamps in the US (andelsewhere) was obvious. Bootcamps represented a tough, no-nonsense response to anti-social and criminal behaviour,while ostensibly reducingprison overcrowding, costs andrecidivism. Studies in the UShave consistently shown,however, that boot camps donot reduce rates of re-offendingamong former inmates. In fact,early comparative studies

Drop and give me 30: the number of known deaths of youths in US boot camps since the ’80s

15www.lawsociety.ie

LAW SOCIETY GAZETTE JAN/FEB 2007VIEWPOINT

viewpoint

a proven failureshowed that recidivism washigher among former boot-camp inmates than formerprisoners. Given that the UShas more prisoners as aproportion of its populationthan any other country – andcounting – boot camps canhardly be said to have reducedprison numbers or costs.

The New York Times hasreported that there have been30 known deaths of youths inboot camps in the US sincetheir introduction in the early’80s. South Dakota’s juvenileboot camp gained particularnotoriety. In July 1999, GinaScore, a 14-year-old girl,collapsed during a forced run.According to the officialinvestigation, she then frothedat the mouth, lost control ofher bladder and becameunresponsive. According to thereport, boot-camp staff wouldnot allow other inmates to helpher and she lay where she fellfor three-and-a-quarter hoursbefore being taken to hospital.

Her temperature was at least108 degrees. She waspronounced dead an hour aftershe was admitted.

Florida governor, Jeb Bush,an erstwhile supporter of bootcamps, signed legislation on 1June last banning boot camps inhis adopted state after a 14-year-old boy died at the handsof drill instructors at a bootcamp in Panama city, Florida.The instructors reportedly beatthe child and then insertedammonia tablets into his nosein an attempt to revive him,thereby suffocating him.

In contrast, studies show thatcamps in the US that are staffedby counsellors and teachers andthat place little or no emphasison militaristic routine haveachieved results. These campsare more akin to retreats thanboot camps and do not seem tobe the type of environment thatboot-camp proponents herehave in mind.

The lessons from the UnitedStates should be obvious, even

to the most populist of ‘law andorder’ politicians. Sendingchildren, however troublesome,with emotional, psychologicalor, in many cases, substance-abuse problems to an armybarracks to be ‘straightened out’is not the answer. Militarytraining is intended to preparewilling, healthy adults for acareer in the military and, ifnecessary, to go to war. It ispatently unsuited to the needsof unwilling, troubledteenagers. A stint in theCurragh is not going to undoyears of family problems,addiction, abuse or whateverthe causes of the offendingbehaviour may be.

No quick fixWhile of course there is noquick-fix solution, certainprovisions of the Children Act2001 represent a moreconstructive approach totackling juvenile offending.Placing an eligible youngoffender under the supervision

of a juvenile liaison officer,convening conferences to beattended by the child, familymembers and others, mediatingbetween the child and thevictim and then devisingappropriate action plans seemslikely to produce better resultsthan square bashing. And, froma practitioner’s point of view,probation, counselling ortreatment are better optionsthan boot camps, as lawyers canmaintain contact with theirclients – in military-style bootcamps, the clients are shut offfrom the outside world. Ofcourse, not every youngoffender qualifies for adiversion programme but, forthose who meet therequirements, it at least offers achance to make amends andturn away from a nascent life ofcrime.

John Moher is a barrister andpractised as a public defenceattorney in New York for threeyears.

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LAW SOCIETY GAZETTE JAN/FEB 2007 LETTERS

letters

Send your letters to: Law Society Gazette, BlackhallPlace, Dublin 7, or email: [email protected]

Family law facilities ‘a complete disgrace’From: Alan Shatter, GallagherShatter, 4 Upper Ely Place,Dublin 2

The fourth floor ofO’Dhalaigh House,

adjacent to the Four Courts,was, to my best recollection,opened approximately 15 yearsago for the hearing of HighCourt family law cases. When itfirst opened, there were fiveprivate consultation rooms andone large waiting room inwhich those involved in familyhearings and their lawyerscould meet. There was also,unsurprisingly, separate toiletsfor men and women.

Since this building firstopened, the number of familycases being dealt with in thecourts has multipliedconsiderably. They include notonly divorce and judicialseparation cases, but also highlyemotive and contentiousadoption proceedings. Due tothe nature of these proceedings,individual family membersrequire the privacy ofconsultation rooms in which toengage with their lawyers, andsuch privacy of discussion canoccasionally facilitate theresolution of cases that, untilthe day scheduled for a court

hearing, proved impossible tosettle reasonably betweenparties. Today, most familylitigants and witnesses have tosit along a narrow corridorwaiting for cases to be heard orto be called to give evidence.

Over the years, the facilitiesavailable to those involved infamily conflict in the HighCourt have considerablydeteriorated. There are nowonly three consultation rooms.For some time, in one of these,the heating has not worked andthe window is broken. Thelarger room that was available toprovide additional facilities hasfor the last three years had a

notice on it: ‘Court Services –staff only’. It has a number oftables, chairs and couches and isvacant most of the time,apparently only utilised by courtstaff in the building for theirlunchtime sandwiches. In thelast few weeks, the toilets on thefloor have been closed to thegeneral public and cannot beused by those involved in familylaw cases and their witnesses orlawyers representing them. Thetoilets are now apparentlyreserved for the judiciary onlyand the court staff. The liftsthat service the building rattleand shake. People have beentrapped in them in the past and

there is concern that people willagain be trapped in the future.

With regard to court matters,most Fridays are reserved forwhat is known as the ‘FamilyHigh Court Callover’ and‘Directions List’. Between 40 to60 lawyers and litigants can besquashed into Court 19 or intothe even smaller Court 21. Bothare now totally inadequate forsuch court sittings. To add tothe chaos, in the early years ofHigh Court family law mattersbeing dealt with in O’DhalaighHouse, there were regularly twoHigh Court judges available tohear family cases. We now haveat least double the number ofHigh Court judges and it is ararity for there to be availableany more than one judge for thehearing of High Court familycases. Similar problems apply inmany of the locations used forthe hearing of Circuit Courtand District Court family lawmatters.

In short, the facilities aretotally inadequate and acomplete disgrace. It is time theLaw Society did somethingabout it. The Court ServicesExecutive should also explainwhy family litigants are sodisgracefully treated.

From: Gerard McGrath,McGrath McGrane, The CapelBuildings, Mary’s Abbey, Dublin 7

A s practitioners, we areoften asked to advise house

purchasers as to whether theyare wise to pay a bookingdeposit to secure a property.Usually after enquiring after the

identity of the estate agent, weadvise that it is safe to go aheadand that the deposit isrefundable.

We have a case where Gunneestate agents in Lucan releasedthe booking deposit to their(builder) client before theadvice note went out. The

advice note confirmed thatGunne’s client would hold thedeposit as stakeholder.

Our client changed his mindabout the property andrequested return of the deposit.Gunne informed him that hewould have to wait for theirclient to put them in funds.

Eventually they did.It seems that before we can

advise as to whether it is inorder to pay a booking deposit,we now must advise the clientto obtain confirmation as towho will be the stakeholder inorder that they can make aninformed decision on the risk.

Who will be the stakeholder?

Áras Uí Dhálaigh: totally inadequate facilities

17www.lawsociety.ie

LAW SOCIETY GAZETTE JAN/FEB 2007LETTERS

From: Fergus O’Regan,O’Regan Little,Solicitors, 27 LowerBridge Street, Dublin 8

Iam writing simply tocompliment the

Gazette and the author[Richard Grogan] on theexcellent and veryinformative articlereferred to above, asrun in your Gazette ofNovember 2006.

From: Henry Murdoch BL,Glenageary, Co Dublin

Thank you for publishing myletter (Gazette, October

2006), in which I sought alawyer to undertake the task ofupdating my book Murdoch’sDictionary of Irish Law. I wasdelighted with the response. Atotal of 23 lawyers, bothsolicitors and barristers, appliedfor the information pack on thework involved, and mostsubsequently expressed theircontinuing interest.

The calibre and interest of

the applicants was excellent. Inthe final analysis, it was a verydifficult decision to select thesuccessful applicant, but I dobelieve that the process, whichcommenced in the Gazette, hasidentified an outstandingperson to take my dictionaryforward into the future.

He is Dr Brian Hunt BL,who is a consultant to MasonHayes & Curran, working inthe public and administrativelaw unit and heading up thefirm’s public affairs practice. Hewas awarded a PhD by Trinity

College, Dublin for his doctoralthesis on legislation. He haspublished widely, includingarticles on legislation andcontributions to legal books.He recently completed his ownbook on the Irish Statute Book.

While I have writtenindividually to all theapplicants, I would like to takethis opportunity to thank themcollectively for their interest.Many have written back to megenerously wishing thesuccessful ‘updater’ everysuccess.

‘Divisionof labour’

‘Outstanding’ result in search forMurdoch successor

In the December 2006 issue,Seamus Sadlier of McCann

and Associates submitted aletter about a recent rulingmade in the Dublin CircuitCourt by Ms Susan Ryan, thecounty registrar, concerningparty-and-party costs of dealing with the Personal Injuries

Assessment Board (PIAB).Gremlins in the system – that’swhat we call her – led to the last two paragraphs, dealing with the countyregistrar’s decision, beingomitted.

Seamus offers the follow-ing on the outcome of the

case: “The defendant arguedthat the plaintiff was notobliged to have legalrepresentation and these costswere contrary to the spirit ofthe PIAB Act.

The county registrar heldwith my submissions andallowed the solicitor’s costs in

relation to the PIAB aspect. I can confirm that the

defendant did not appeal thisruling and that this is the firstdecision where PIAB costswere recovered on taxation.

I have no doubt this rulingwill be of interest to yourreaders.”

Recoverable party-and-party costs – addendum



COVER STORY

With the increase in immigrationand globalisation, relationshipsbetween Irish citizens and foreignnationals are on the increase.When you fall in love, legal issues

may be the last thing on your mind. However,marriages involving foreign nationals may causesignificant immigration difficulties, and couplesshould be worrying about more than just the weddingreception. They must be aware that, while spouses ofEU citizens have a right to reside in Ireland, marriageto an Irish citizen does not guarantee any similarright. In fact, proposed legislation will significantlyrestrict the right of a foreign national to validly marryin Ireland and make it an offence to marry a foreignnational in certain circumstances.

For immigration purposes, foreign nationals fallinto two categories: EU citizens and non-EU citizens.In this context, an EU citizen is a national of theEuropean Union, an EEA member state (Iceland,Liechtenstein, Norway) or Switzerland. A non-EUcitizen refers to all other persons. Marriage to an EUcitizen will normally cause very few immigrationdifficulties. EU citizens have strong rights to remainin Ireland pursuant to the EU treaties andindependent of any marriage.

Tying the knotInterestingly, family members of EU citizens alsohave strong rights to remain in Ireland, irrespective oftheir nationality. This includes the spouse of an EUcitizen and even extends to unmarried partners in a“durable relationship”, a member of the household ofan EU citizen or a person requiring the personal careof an EU citizen. Direct descendants or “dependent

greatProposed legislation to restrict the right of foreign nationals to validly marry

in Ireland and to make it an offence to marry a foreign national in certain

circumstances is draconian and possibly unconstitutional and incompatible

with the ECHR. Emmet Whelan plans the reception

direct relatives” of either spouse may also gainresidence. These rights are detailed in the EuropeanCommunities (Free Movement of Persons) Regulations2006. There is a limited basis for residency to berefused on the grounds of public policy, publicsecurity or public health, and family members willretain rights of residence even after the death of theEU citizen or after a divorce or annulment.

But the strong statutory rights afforded to EUcitizens are in stark contrast to the protectionsafforded to Irish citizens. Article 41 of theConstitution acknowledges that ‘the family’ isdeserving of special protection, but there is nostatutory protection afforded to non-EU familymembers of Irish citizens. An Irish citizen may applyto the Minister for Justice for their non-EU spouse tolive in Ireland, but this is not an automatic right.Often, the issue of marriage will be canvassed when anon-EU citizen is applying for a visa to enter Ireland.The minister may refuse the right to reside, or theright to entry, simply on the basis of undefinedimmigration policy. This is a matter entirely at thediscretion of the minister and no criteria are set outfor making such decisions.

To assess the matters that the minister must takeinto account, we must look to the interpretation ofarticle 41 in Irish case law. Two recent cases dealt withthe family rights of non-EU parents of Irish citizenchildren: Fajujono v Minister for Justice and AO & DL vMinister for Justice. The parents argued that theconstitutional right to ‘family life’ entitled them toremain in Ireland to care for their Irish children. TheSupreme Court found that the deportation of parentsof Irish citizens was only acceptable where strongreasons, related to the common good, required such

THE

• Marriagesinvolving foreignnationals

• Immigration,Residence andProtection Bill

• EuropeanConvention onHuman Rights

MAIN POINTS

19www.lawsociety.ie

LAW SOCIETY GAZETTE JAN/FEB 2007COVER STORY

divide



COVER STORY

removal. The minister had to take into account allthe circumstances of the case, including theintegration of the family and any time spent inIreland. However, this would be weighed against theimmigration history of the parents and the necessityto uphold “the integrity of the asylum andimmigration systems”. It was valid for the ministerto deport, if he considered all the circumstances ofthe case. The Supreme Court subsequentlyconfirmed this reasoning in Cirpaci & Cirpaci vMinister for Justice, where the rights of a non-EUspouse were in issue.

Honey, I’m homeMr Cirpaci was a Romanian asylum seeker andarrived in Ireland with his Romanian wife and threeRomanian children. During the course of his asylumapplication, he began a relationship and co-habitedwith an Irish citizen, Ms McCormack. Mr Cirpaci’sapplication for asylum was refused and he wasdeported. After his deportation, Mr Cirpacidivorced his Romanian wife and married MsMcCormack in Romania. Ms McCormack returnedto Ireland to care for her children from a previousrelationship. Mr Cirpaci made an application for avisa to join her in Ireland, which the Minister forJustice refused.

The court found that the minister refused the visaon the basis of two valid policy reasons. Firstly, therefusal was required to uphold “the integrity of theasylum and immigration systems”. Secondly, theminister required that the couple reside as a familyunit for “an appreciable period of time” between thedate of the marriage and the application. While theminister had to take all circumstances into account,the Cirpaci marriage was particularly short and MrCirpaci had a chequered immigration history. Hehad been refused asylum in two other EU countriesand had a deportation order outstanding against himin Ireland.

While the court confirmed the validity of theminister’s decision, the decision gave a clearindication that a constitutional right to reside inIreland may exist in certain circumstances. Theduration and stability of the marriage will beimportant criteria. It would seem essential that thecouple have lived together as husband and wife, butthere is no indication as to what would qualify as an“appreciable period of time”. The marriage shouldbe valid under Irish law, an important considerationfor marriages in foreign countries. The character ofthe spouse, his or her immigration status and anycriminal record will all be factors weighed in thebalance.

Trouble and strifeThe European Convention on Human Rights Act 2003confirms the relevance of the European Convention onHuman Rights in Irish domestic law. The 2003 actimposes a duty on all organs of the state to perform

their functions in a manner compatible with theconvention and to take “due account” of theconvention and its interpretation by the EuropeanCourt of Human Rights. Article 8 of the Europeanconvention provides for the right to respect for familylife. The Minister for Justice and the courts shouldappropriately consider the European Court’s approachto article 8, but to date they have not done so.

According to the European Court, it is up to theMinister for Justice to justify any deportation, orrefusal of entry, which interferes with family rights.He will need to satisfy the European Court inrelation to two specific issues. Firstly, anyinterference with family rights must be in pursuanceof one of the legitimate aims specified in article 8(2),such as preventing crime or protecting the economicwell-being of the country. In Cirpaci, the minister’saim was to uphold “the integrity of the asylum andimmigration systems” and to prevent foreignnationals entering into marriages to side-step theimmigration process. However, neither reason is alegitimate aim as specified in article 8(2).

Secondly, the minister must establish that theaction was necessary in the interest of pursuing thatlegitimate aim – that is, the action cannot bedisproportionate to the aim being pursued. Therefusal of entry to Mr Cirpaci was not necessary toachieve the aim of preventing ‘sham marriages’.Other reasonable options should have been pursued,such as an assessment of the marital status after aperiod of time following entry into Ireland.

When considering the issue of proportionality inrecent jurisprudence, a fundamental question for theEuropean Court is whether it would be possible forthe family involved to locate elsewhere: seeAmrollahi v Denmark and Sen v Netherlands. TheSupreme Court did not refer to the most recentEuropean case law and had little regard to the factthat Mrs Cirpaci and her children would havesignificant difficulties in moving to Romania, acountry whose language they did not speak andwhose culture they were unfamiliar with. Would iteven have been legally possible for the family toenter and remain in Romania?

Practitioners should advocate the approach of theEuropean Court in representations to the minister,or in any court proceedings. This may be ofparticular importance for situations outside the usualdefinition of ‘family life’. The protections in theConstitution are only available where the family lifeis based on marriage. The convention provides awider meaning to ‘family life’, which may includeunmarried partners in a stable relationship.

Ball and chain A further difficulty arises in this area. A refusal of avisa application may be appealed internally to anindependent officer of the Department of Justice.However, a refusal of an application for residencymay not. Also, unlike Britain, Ireland has no

LOOK IT UPCases: • Amrollahi v

Denmark [2002]ECHR 585

• AO & DL v Ministerfor Justice [2003]1 IR 1

• Cirpaci & Cirpaci vMinister for Justice[2005] 2 ILRM 547

• Fajujono v Ministerfor Justice [1990]ILRM 234

• Sen v Netherlands[2003] 36 EHRR 7

Legislation: • European

Communities (FreeMovement ofPersons)Regulations 2006(SI 226 of 2006),transposingDirective2004/38/EC

• EuropeanConvention onHuman Rights

• EuropeanConvention onHuman Rights Act2003

Literature: • Scheme of

Immigration,Residence andProtection Bill(September 2006)– www.justice.ie

21www.lawsociety.ie

LAW SOCIETY GAZETTE JAN/FEB 2007COVER STORY

independent immigration appeals body. The onlyroute available to challenge the minister’s decision isby way of an application for judicial review to theHigh Court. The expense and delay involved in suchactions is not in the interests of the applicants or thestate.

If an applicant wishes to challenge a decision of theminister, a simple procedure of appeal to animmigration appeals tribunal should be available.This tribunal could deal with arguments in relation toarticle 8 of the convention and provide an easilyaccessible, and effective, remedy for applicants. Fewerapplicants would choose to go to the High Court if areal alternative was available, thereby reducing thelegal costs for the taxpayer in defending such matters.

The proposed Immigration, Residence and ProtectionBill does not address any of the difficulties referred toabove. While the Refugee Appeals Tribunal will bereformed to consider protection issues, there will beno similar tribunal to hear appeals of visa or residencydecisions. Appeals will continue to be dealt withinternally.

More importantly, the bill does not recognise anynew rights for family members of Irish citizens,similar to those existing for EU citizens. There is stillno right to remain in Ireland for non-EU spouses,family or unmarried partners. The bill contains no

mention of article 8 of the European Convention andsets no criteria for deciding on applications involvingfamily rights.

Instead of helping couples in this situation, thegovernment is actually moving in the oppositedirection. The proposed legislation will confirm thatmarriage to an Irish citizen gives no right to enter orreside in Ireland and will impose further obstacles toIrish citizens marrying foreign nationals. Under theproposed legislation, asylum-seekers will not beallowed to marry in Ireland, unless issued with anexemption from the Minister for Justice. All non-EUcitizens (irrespective of their legal status) will have toinform the Minister for Justice three months inadvance of the date of marriage. If they fail to do so,the marriage will be void. The legislation makes it anoffence to marry a foreign national or to ‘facilitate’such a marriage, in breach of the above provisions.

Such draconian legislation may beunconstitutional and incompatible with theEuropean Convention. It certainly smacks of aparticularly distrustful view of immigrants, which isfar from welcoming.

Emmet Whelan is co-author of A Practitioner’s Guideto Asylum and Immigration Law in Ireland, due to bepublished by Clarus Press later this year.

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Legal Aid BoardTraining in Collaborative Law/Practice

The Legal Aid Board is delighted to announce that Pauline Tesler is once again coming to Ireland to carry out further training in

collaborative practice for lawyers engaged in family law. A significant number of you have already attended a two day basic training

course and others have registered your interest in attending this training. Pauline will give two training courses – one aimed at those who

have not previously received training and a one day refresher/practice development course for those who have done the basic training.

Both courses will take place in Dublin and details are as follows:

Two day basic training course: One day refresher/practice development course:

Dates: 26th and 27th March 2007 Date: 29th March 2007

Time: 9.15am to 5.15pm Time: 9.15am to 5.15pm

Venue: Gresham Hotel Venue: Gresham Hotel

Course fee: €250 Course fee: €125

The fees for the courses are significantly discounted from the actual cost, and will include lunch and light refreshments. The discount is

part of the Legal Aid Board's commitment to the collaborative process as a means of resolving family disputes. An application form

is available on the Board's website, www.legalaidboard.ie or by contacting Niamh O'Hanlon on 01 6441923 or nmohanlon@

legalaidboard.ie. Applications should be forwarded to Niamh O'Hanlon at Legal Aid Board, 47 Upper Mount Street, Dublin 2 (DX 139)

with a cheque payable to “Legal Aid Board”.

For those of you wondering what collaborative law/practice is about, it is a dispute resolution model that involves, inter alia, a

commitment on the part of the clients and solicitors to negotiate a settlement that is fair, round table meetings involving both the

solicitors and the clients, and a commitment on the part of the solicitors that they will not go to Court on behalf of their clients (other

than to rubber stamp a settlement). An information leaflet on the process is available on the Board's website.



TAX LAW

The Revenue Commissioners recentlypublished the Report of VAT and PropertyReview, a 143-page tome on theoperational and legislative structure ofVAT on property transactions in Ireland.

The report recommends abolishing the existingmethod of applying VAT to property and replacing itwith a system where the majority of propertytransactions will be exempt from VAT, but with anoption to tax in certain circumstances. It alsoproposes the introduction of a capital goods schemein Ireland for the first time.

Although it refers to “recommendations”, thereport is, in reality, a blueprint of new rules that willcome into effect on 1 January 2008. These new ruleswill radically alter the manner in which VAT isaccounted for on property transactions. Everybusiness with property interests needs to consider theimpending changes and evaluate not only whetherthere is any benefit to be gained through delaying orexpediting the completion of property agreements,but also whether the agreements being signed cancope with the imminent shift in tax burden.

The big pictureDue to the complex nature of VAT on property, thelength of the report and the short space availablehere, this article will assume that readers already havea degree of familiarity with the existing VAT rules asthey relate to property and will provide no more thanan overview of the impending changes. The purposeis to inform the reader, using broad brushstrokes, ofthe nature and magnitude of the impending change.It is in no way a substitute for reading the reportitself, which is available online at www.revenue.ie. (Allquotations in this article are taken from the report asat December 2006.)

The current treatmentCurrently, all leases of developed property that arefor a period of ten years or more (long leases) are

taxable provided certain conditions are met. Thesame is true of the sale of developed property. Anentirely different treatment is afforded to leases ofless than ten years’ duration (short leases), which areexempt from VAT with the option to waiveexemption should the lessor deem it desirable. TheVAT liability of the lease is, under current rules,independent of the VAT status of the lessee.

The new systemThe new system will make two fundamentalchanges: a large portion of transactions that arecurrently taxable will become exempt, and Revenueare to introduce a capital goods scheme for the firsttime in Ireland. Together, these changes areintended to protect the exchequer from VATavoidance and simplify the system for taxpayers andtheir advisors.

To understand the difficulties the new rules willcause for businesses, it is important to rememberthat VAT charged to a business can only berecovered by that business to the extent that it ismaking taxable supplies (supplies on which VAT ischargeable). Hence, the benefit of charging VAT onthe supply of a property is that the VAT on itsacquisition/development will be recoverable.Conversely, when the sale or lease of the propertybecomes exempt under the new rules, the lessor willbe unable to recover VAT that it has incurred on theacquisition/development of the property.

The new capital goods scheme will permit orprohibit recovery of VAT based on the use of thatproperty over a ten or 20-year period by requiringan analysis of each year in which the property isused. It is only if the entire property is used in eachone of these years for a fully taxable businesspurpose that the tenant/purchaser will get fullrecovery. Any exempt use, whenever it might occurin the VAT life of the property, will be penalised.

The function of the new capital goods scheme,which is used in almost all other EU member states,

New rules are to radically alter how VAT is accounted for on property transactions. All

businesses with property interests – and their professional advisers – need to consider

their implications. Frank Mitchell breaks out the calculator

MANVATMAN

• Changes to VATrules in propertytransactions

• Capital goodsscheme

• Financial impacton both lessorsand lessees

MAIN POINTS

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LAW SOCIETY GAZETTE JAN/FEB 2007TAX LAW

is to achieve neutrality: the VAT ideal that thoseinputs that are used for making taxable supplies arerecoverable in full and those that are used formaking exempt supplies are not recoverable at all.

Sale of buildings The new legislation is to introduce several novelconcepts into Irish VAT law. First among these isthe idea of a ‘new building’:

“VAT willapply to thesupply of allnew buildingsand the land onwhich they stand.A new building is a buildingthat is supplied within fiveyears of completion of thebuilding. Where thebuilding has beenoccupied followingcompletion, VATwill apply to asubsequent supplywhere that supplyis made by abusiness withintwo years of firstoccupation.”

In addition tothe concept of a‘new building’, thenew legislation willintroduce the

returns

VATman: ‘De neh neh neh neh neh neh neh’



TAX LAW

concept of a ‘transformed building’: a building thathas, in effect, been ‘made new’. The sale of‘transformed buildings’ will liable to VAT on thesame basis as ‘new buildings’.

Where a building has not been ‘made new’, it willnonetheless be treated as a transformed building ifthe expenditure is at least equal to 25% of the salesproceeds: a concept not dissimilar to the concept ofdevelopment under the current legislation. Abuilding that is neither new, nor transformed, will beconsidered a ‘used building’: “The supply of usedbuildings will be exempt from VAT, but the vendorand purchaser will be entitled to opt to apply VATto that supply, subject to certain conditions.”

So then, the sale of a freehold or freeholdequivalent interest in a new or transformed buildingwill be liable to VAT and the sale of all similarinterests in used buildings will be exempt, but withthe option to tax in certain circumstances.

Lettings of buildingsA clear distinction is drawn in the new regimebetween the sale of a freehold or ‘freeholdequivalent’ (being a very long lease with apeppercorn rent) and the ‘letting’ of property.Perhaps more fundamentally, however, the currentdistinction between short leases and long leases is tobe abolished: in future these will both be consideredlettings: “The letting of property will be regarded as anexempt supply of services. However, where thetenant’s business is mainly taxable (90% or more),the landlord and tenant will be allowed to elect tohave the letting regarded as a taxable supply ofservices.”

Where the parties are permitted to opt to tax aletting and choose to do so, the annual rent will betaxable at the standard rate (currently 21%) for theduration of the letting, irrespective of the term ofthe lease.

The biggest issue arises where the parties are notallowed to opt to tax. The consequence of therestriction in the right of the parties to opt to tax is

clear from the economic impact assessment carriedout by Goodbody Economic Consultants at theRevenue’s request. Goodbody concludes that therewill be an effective increase in rent of up to 11%over and above the rent paid by taxable tenants.This effect will be even more pronounced where alessee is partially exempt, as will be illustrated by anexample (see panel, above).

The example shows just one way how the changesin the VAT legislation will have a real financialimpact on both lessors and lessees. Both landlordsand tenants need to consider the implications of thenew system so that agreements currently beingentered into can be drafted so as to accommodatethe impending rules.

As mentioned previously, the cornerstone of thenew system – and the Revenue’s most formidableweapon in ensuring neutrality – is the capital goodsscheme.

Capital goods schemeThe CGS is a mechanism, provided for in the EUSixth Council Directive, that stipulates that when achange from taxable to exempt or exempt totaxable use occurs within a certain time period, anadjustment is carried out on the original amountdeducted at the time of acquisition. There will bean adjustment period of 20 years for VAT on theacquisition of a new property or on thetransformation of an existing property. A ten-yearadjustment period will apply to VAT on therefurbishment of a property. The initial right torecovery will be based on the use of the propertyduring the first 12 months of occupation.

The CGS is perhaps best illustrated by way of asimple example. A Ltd acquires a new property in2008. VAT of €1million is incurred. If A Ltd usesthe building for a fully taxable purpose for the first12 months of occupation, it will be entitled torecover all of the €1million VAT incurred. In yeartwo, and in every subsequent year, an adjustmentcalculation is made, and if the use of the buildinghas become exempt, in whole or in part, an

Landlord Ltd bought a property for €2 million and incurred VAT of€270,000 on the sale. It is renting the property to Tenant Ltd on ashort-term lease, say eight years. Tenant Ltd is entitled to recover 80%of the VAT charged to it and Landlord Ltd waives the exemption inrespect of this letting, thus entitling Landlord Ltd to recover the€270,000 VAT it paid on the acquisition of the property. Tenant Ltdpays an annual rent of €100,000.

At present, Landlord Ltd invoices Tenant Ltd annually for rent of€100,000 plus VAT of €21,000. Tenant Ltd can recover €16,800(80%) of the VAT charged to it. The real cost of the rent to Tenant Ltdis, therefore, €104,200 (€100,000 plus the irrecoverable VAT of€4,200).

Under the new rules, the letting will be exempt and Landlord Ltd will

not be entitled to opt to tax (since Tenant Ltd is in a less than 90% VATrecovery position). Therefore, Landlord Ltd will not be entitled torecover the €270,000 VAT it incurred when it purchased the property.In order to recoup the cost of this irrecoverable VAT, Landlord Ltd willwant to increase the rent it charges to Tenant Ltd. Will the terms of thelease allow it to do so? If the terms of the lease merely allow thelandlord to charge any applicable VAT but does not allow him toincrease the rent so as to offset the cost of its own irrecoverable VAT,then the landlord will suffer the entire brunt of the irrecoverable VAT.

On the other hand, if Landlord Ltd is allowed to increase the rent to€115,000, as none of this €115,000 is VAT, there is no recoverableportion. The real cost of the rent to Tenant Ltd is now €115,000 – anincrease of €10,800 per annum.

LANDLORD AND TENANT

“There is areal andpresent needfor all thosewith apropertyportfolio toconsider theextent towhich the newrules willimpact uponthem”

25www.lawsociety.ie

LAW SOCIETY GAZETTE JAN/FEB 2007TAX LAW

adjustment is made. So if in year four, for example,A Ltd was to use the building for 30% exemptpurposes, then there would be a payment due toRevenue of 30% of one-twentieth of the €1millionoriginally recovered (€15,000). If, in the followingyear, there continued to be an exempt use, then asimilar payment would be made for that year. Intheory then, the user will get VAT recovery indirect proportion to the use to which the propertyis put.

Real and present needUnder the new system, the sale of ‘new’ and‘transformed’ buildings will be liable to VAT. Thesale of ‘used’ buildings and all ‘lettings’ will beexempt from VAT, with the right to opt to tax. It

appears as if the right to tax the sale of usedbuildings will be available to all parties, but will beavailable in respect of lettings only where theproperty is not residential property and the tenanthas greater than 90% VAT recovery. The use towhich the property is put will determine, on anannual basis, the extent to which input tax isrecoverable, in accordance with the capital goodsscheme.

The new system will unquestionably bring Irelandmore into line with the Sixth Directive (albeit that anumber of derogations will still be required) and, tothe extent that neutrality is achieved, the new systemis unobjectionable. However, it is clear that asignificant number of transactions will be adverselyaffected.

There is a real and present need for all those witha property portfolio to consider the extent to whichthe new rules will impact upon them. Action takenbefore the new rules take effect should enable mostcompanies to manage the transition successfully andmay help others avert a potential disaster.

Frank Mitchell is a Dublin-based barrister specialising intaxation. Prior to commencing practise at the bar, he wasa senior manager in PricewaterhouseCoopers’ taxlitigation team in London.

G

LOOK IT UPLegislation: • EU Sixth Council Directive (77/388/EEC)

Literature: • Report of VAT and Property Review (Revenue

Commissioners, www.revenue.ie)

Notice re. Invitation to Tender for Legal Drafting Services

The Department of Defence invites tenders from Barristers/Solicitors/Legal Firms forthe provision of legal drafting services in respect of Rules of Procedure and CourtMartial Rules as provided for in the Defence (Amendment)(No. 2) Bill 2006.

Full details of this tender competition are available on www.etenders.gov.ieSuppliers who are interested in this competition must register their interest onwww.etenders.gov.ie Registration is free of charge and there is no charge for documents.

Please note the deadline for receipt of tenders is 12.00 noon on 12 February, 2007.

Department of Defence

An Roinn Cosanta



HUMAN RESOURCES

It’s the New Year again, and the graduaterecruitment drive is in full swing. You’re onthe interviewing panel to select the mostpromising applicants to join your firm. “Yeah, no problem,” you told the HR

manager. And now you’re thinking: “Why on earthdid I agree to that? I know nothing aboutrecruitment. What if I ask the wrong questions?How will I know if a final-year student will makepartner in the future?”

Before you break out in a cold sweat, keep calm!You can do some preliminary preparation, bothmentally and practically. By the time you see thecandidates at interview stage, their applicationforms have been carefully screened. They may alsohave been at an open evening or presentation, or agroup interview where they may have been short-listed. In all likelihood, they already meet the firm’sminimum criteria on paper.

Despite the apprehension you might feel rightnow, the overall recruitment and selection processis very structured. Professional firms and privatepractices are keenly aware of the legal requirementssurrounding the recruitment and selection process.This means that the process is conducted fairly andall candidates are treated equally. The process andthe associated documents, such as job descriptions,scoring sheets and application forms, must reflectthe criteria you are recruiting against.

Put simply, the whole recruitment process andeveryone involved in the various selection methodsor activities need to focus on answering three keyquestions:

• What are you looking for?• How will you find it?• How will you put a value on what you find?

Whether you are recruiting for your own privatepractice or have been drafted into the traineerecruitment process, you need to think about whatexactly the ideal candidates should possess. Thinkback to last year’s trainees. Who shone? What was itabout them that made them stand out from theothers? Were they highly organised, did they showthey always got the job done well, or had superbanalytical and problem-solving skills?

The really good trainees are usually driven,enthusiastic, client and team oriented. And they ‘live’the values of the firm or practice. Agree thesecriteria in advance, so that you are extremely clearon what you are looking for. Get the job description.Know the main technical, interpersonal skills andqualifications required. Know the criteria forassessment. The application form should assess theskills and competencies your firm requires.

Once you are clear on the requirements of therole and the qualities the ideal candidate shouldhave, the next step is to plan how you will find andmeasure these at the various stages of the process.

Find out what you’re looking forThere are myriad recruitment and selection methodsfor assessing candidates against the different skillsand criteria. Some firms stick to the application formand traditional interview. Other firms use acombination of presentations, group and panel

THE

bigINTERVIEW

Many law firms are in the thick of their graduate recruitment drives.

You’ve been asked to join the interview panel to help select the most

promising applicants. Aoife Coonagh gives her tips for choosing the tops

• Know what you’relooking for

• How to find it• Putting a value on

the right employee

MAIN POINTS

27www.lawsociety.ie

LAW SOCIETY GAZETTE JAN/FEB 2007HUMAN RESOURCES

Is your Firm getting the best deal from your Bank?Are you

Happy with the Interest you are Earning?Happy with the Interest you are Paying?

Getting proper Set-Off Interest?Paying Uncleared Interest / Surcharge Interest?

Talk to

Kieran FinnanAbout a

Banking Health CheckA Nationwide Service to the Legal Profession

Finnan Financial Limited21 O'Connell Street, Waterford. Phone 051 850672

[email protected] www.finnanfinancial.com

www.4salebyowner.ie

Do You Need toATTRACT BETTER BUSINESS?

4 Sale by Owner is a property sales service. It can run alongside your existingpractise to enhance your business profile and provide clients

with a cost effective way of selling property.

• promote your business and client base• generate goodwill and more profitable legal work

Join the 4 Sale by Owner network.We supply all documentation, software and website.

Contact James Cahill, Solicitor.Tel:094 902 5500 or email: [email protected]

29www.lawsociety.ie

LAW SOCIETY GAZETTE JAN/FEB 2007HUMAN RESOURCES

interviews, case studies and psychometric tests toselect the brightest talent from the pool ofapplicants. Ideally, the more evidence you getthrough different means, the better.

For example, if team working is critical in yourfirm, then this should be assessed on the applicationform – look for an example of how and when theycontributed to a team. At the open evening, youshould watch how they interact with others. Do theytake the lead in conversation and do others follow?Are their questions closed or open? Again, youshould look for evidence of team working at theinterview through examples and behaviours.

At the interview, this means asking the candidatefor real concrete examples that show when and howthey interacted in a team.

Some candidates talk about their experience in ageneral way. They don’t explain the situation. Theyare vague about their role and contribution or anyissues they had to handle. Listen carefully when theysay things like “I was involved” or “We did X”.Often they don’t claim any credit for the outcome,which is where the evidence lies.

Others do the opposite. They claim credit for itall. As an interviewer, you have to ask the rightquestions of both types of candidate to get beneaththe surface of their stories. You need to be sure thatthe first person isn’t just shy, modest or nervous.Any niggling doubts you may have about the validityof the confident, second interviewee’s story have tobe dispelled.

Ask direct or probing questions to get to thecandidate’s specific role and involvement in theexample. Use closed questions to elicit ‘yes’ or ‘no’responses to confirm the details and facts. Find outwhat, if anything, they learned from the experience.Ask them if they would do anything differently iffaced with the same situation again. This can oftenbe quite revealing.

How the candidates present themselves and relate

to the interview board can also be quite revealing.Observe their demeanour and body language. Watchfor characteristics you are looking for, such as theircapacity to handle social situations or problemsolving under pressure. Also take into account anyshifts or changes in body language during theinterview. Maybe they are nervous. Or maybe theyare uncomfortable with the line of questioning.

If you keep your questions confined to the areasalready identified that relate specifically to the jobrole, you will not fall foul of the law. Ensure that thesame areas are covered with all candidates. Do notask irrelevant or subjective questions. Avoid askingquestions (explicit or implicit) related to domesticcircumstances, family background, gender, race,sexual orientation, religious opinion, disability ormembership of the travelling community.

What value?If you are not clear going into the interview aboutwhat you are looking for, then you are leaving theresult to chance. If, however, you are clear, then youwill recognise where particular answers are strongand others less so.

Using such a structured approach reducespotential inconsistency across different interviewersand assessors. Document the criteria andrequirements. Use this as a checklist forinexperienced interviewers and to feed into thescoring or assessment sheet.

Remember, you are looking for evidence: examplesof situations where they demonstrated their capabilityin the relevant areas. At the end of each interview, youwill assign scores against each area based on theevidence and behaviours presented. Some skills orcompetencies can be weighted if they are more criticalto the job than others.

Aoife Coonagh is head of career development services atCarr Communications.

G

Remember when you did the round of interviews as a graduate? Fromthe moment you arrived, you were making judgments about the firm orthe practice. These were based on the people you met, how you weretreated and the information you were given. Therefore, at all times,you should treat the candidate as if they are one of your mostimportant clients. Show them all the small important courtesies:• Offer the candidate a cup of coffee or glass of water,• Do not keep the candidate waiting – stick to the schedule,• Be well prepared in advance.

If you are the lead interviewer or chair, cover the following with thecandidate at the start of the interview: • Introduce yourself and say what your position is in the organisation;• Introduce your colleague(s) on the interview panel;• Always tell the candidate how you will run the interview, in terms of

format and timing.

During the interview you should: • Use active listening skills. This is particularly important when you

are not asking questions.• Minimise distractions, use comfortable eye contact and attentive

posture/body-language.• Take notes, but make sure these are not distracting.• Be careful not to be subjective or allow prejudices or personal

preferences to cloud your judgment.

At the end of the interview: • Give the candidate the opportunity for questions;• Tell them what the next steps are in the process;• Answer the candidate’s questions;• Tell them about the firm, the job role and how the trainee

programme works;• Use the opportunity to sell your company.

INTERVIEW ETIQUETTE AND STYLE



LITIGATION

The High Court judgment of Finnegan P,as he then was, in Kennedy v KilleenCorrugated Products Limited and Another,where the Law Society was joined asamicus curiae, illustrates how an order

under order 99, rule 7 of the Rules of the Superior Courts(RSC) can cause injustice to a solicitor acting in HighCourt litigation. It also points to the acute limitationsof the jurisdiction, which can generate costly ‘satellitelitigation’ and retard the efficient conduct ofproceedings. This and other cases show that thejurisdiction should only be invoked sparingly, withgreat care and only in the clearest of circumstances.

JurisdictionA ‘wasted costs order’ (a term imported from Britishlitigation) colloquially describes a court’s power toorder a solicitor to pay costs personally because ofmisconduct or default on the solicitor’s part in theconduct of litigation. Such orders have been a rarity inIreland. The power is given effect by order 99, rules 6and 7 of the RSC. The court’s power derives from itsinherent jurisdiction to control its officers. Thejurisdiction does not apply to barristers, because, forreasons of history, barristers are not officers of thecourt. However, there is no reason in logic or practiceto confine the jurisdiction to solicitors, given that bothsolicitors and barristers have responsibilities to thecourt in the conduct of the litigation.

The leading authority on the jurisdiction is theEnglish case of Myers v Elman, where the House ofLords upheld a decision to make a solicitor liable for asubstantial portion of the opposing party’s costsbecause the solicitor had allowed his client to makeinadequate discovery to the detriment of the otherparty. It had taken three court orders to obtainadequate discovery, which had delayed the trial andhad diminished or eliminated the prospect ofrecovering assets on foot of the judgment. LordWright noted that:

“The solicitor cannot simply allow the client tomake whatever affidavit of [discovery] he thinks fit,nor can he escape the responsibility of carefulinvestigation or supervision. If the client will not givehim the information he is entitled to require or if heinsists on swearing an affidavit that the solicitor knowsor has every reason to think is imperfect, then thesolicitor’s proper course is to withdraw from the case.

He does not discharge his duty in such a case byrequesting the client to make a proper affidavit andthen filing whatever affidavit the client thinks fit toswear to. That is improper conduct…”

The (mainly) English case law indicates that thecourts may make wasted costs orders in a wide rangeof circumstances, such as acting for a plaintiff or adefendant without authority, acting for a non-existingplaintiff, instituting a fraudulent or collusive action,instituting a frivolous and vexatious action, orunreasonably pleading fraud and undue influence. Inhis judgment in Kennedy (28 November 2006),Finnegan P observed that the jurisdiction has beenexercised where there has been improper conduct ofthe proceedings.

Fundamental propositionsIn Ridehalgh v Horsefield, Bingham MR considered thedecision in Myers v Elman to be authority for fivefundamental propositions:1) The court’s jurisdiction to make a wasted costs

order against a solicitor is quite distinct from thedisciplinary jurisdiction exercised over solicitors.

2) Whereas a disciplinary order against a solicitorrequires a finding that he has been personally guiltyof serious professional misconduct, the making of awasted costs order does not.

3) The court’s jurisdiction to make a wasted costsorder against a solicitor is founded on breach of theduty owed by the solicitor to the court to performhis duty as an officer of the court in promotingwithin his own sphere the cause of justice.

4) To show a breach of that duty, it is not necessary toestablish dishonesty, criminal conduct, personalobliquity or behaviour such as would warrantstriking a solicitor off the roll. While mere mistakeor error of judgment would not justify an order,misconduct, default or even negligence is enough ifthe negligence is serious or gross.

5) The jurisdiction is compensatory and not merelypunitive.

In 1986, the English jurisdiction was extended toinclude failure to conduct proceedings with reasonablecompetence and expedition. This was extended furtherthrough section 4 of the Courts and Legal Services Act1990, which included in the definition of ‘wasted costs’costs incurred by a party as a result of any improper,

WASTE NOT, The recent ‘wasted costs order’ case shows that extreme caution should be exercised in

attempting to apply the wasted costs rules more widely. Roddy Bourke explains

• Limitations of‘wasted costs’orders

• Rules of theSuperior Courts

• English case law

MAIN POINTS

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LAW SOCIETY GAZETTE JAN/FEB 2007LITIGATION

WANT NOT

unreasonable or negligent act or omission on the partof any legal or other representative or employee of suchrepresentative.

However, subsequent case law in England hasindicated that, although the aim of the regime islaudable – to encourage efficient and proper conduct ofproceedings – its application gives rise to very seriousdifficulties. Bingham MR in Ridehalgh v Horsefieldidentified a clash in public interests as follows:“One is that lawyers should not be deterred frompursuing their clients’ interests by fear of incurring apersonal liability to their clients’ opponents; that theyshould not be penalised by orders to pay costs withouta fair opportunity to defend themselves; that wastedcosts orders should not become a back-door means ofrecovering costs not otherwise recoverable against alegally-aided or impoverished litigant; and that theremedy should not grow unchecked to become moredamaging than the disease. The other public interest …is that litigants should not be financially prejudiced bythe unjustifiable conduct of litigation by their or theiropponents’ lawyers.”

It has proved very difficult to reconcile these publicinterests, and appellate courts in England, Australia and

elsewhere have emphasised the need for restraint inexercising a wasted costs jurisdiction. Wasted costshearings in those countries have turned into complexand expensive hearings that have rendered disputesmore acrimonious, and dragged out litigation. As aresult, appellate judges have urged that the regimeshould be applied only to clear cases (such as a failureto appear at a hearing) where the relevant events tookplace in court or can easily be verified and where theissue is fit for summary disposal. As was borne out inKennedy, caution is also required to avoid injustice to asolicitor who is faced with an allegation of misconductin litigation and who may not be able to give anaccount of his actions because of his client’s legalprivilege.

InterrogatoriesIn Kennedy, the plaintiff’s senior counsel had advisedthe plaintiff’s solicitor in writing to serve a notice toadmit facts concerning an allegedly defective shutterdoor that had caused injury to the plaintiff. Seniorcounsel advised that if admissions were not secured,the solicitor should arrange to have interrogatoriesdelivered to elicit the evidence.

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• The training course results in full ProfessionalAccreditation with Friarylaw and the opportunity ofMediation Pupilages with Ireland's leading mediation casemanagement service, Friarylaw MCM.

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Our unique and innovative model of Family Mediation is a formal and struc-tured process in which an impartial third person, trained and experienced,lawyer or non-lawyer, assists those involved in matrimonial dispute, and inparticular, separating or divorcing couples, to communicate better with oneanother and to reach their own agreed and informed decisions concerningsome, or all, of the issues relating to separation, divorce, children, financeor property.

Our Family Mediation programme imbues our candidate mediators witheffective competencies in family mediation where they can both skilfullypresent the client's case in mediation and to also act as mediator.

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MARCH 2007 PROGRAMMEVenue: The Friary, Bow Street, Dublin 7Date: Module I: 1st - 3rd March (Three Days Intensive Training Hybrid Model Skills)

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33www.lawsociety.ie

LAW SOCIETY GAZETTE JAN/FEB 2007LITIGATION

In a subsequent application, the Master of theHigh Court refused the application for interrogatoriesand called on the plaintiff’s solicitor to show causewhy orders should not be made under order 99, rule7. At the show-cause hearing, the plaintiff’s counselargued (correctly, as it turned out) that the master didnot have jurisdiction to make such orders. However,the master made a costs order against the plaintiff’ssolicitor, as he had concluded that the interrogatoriesapplication had been pointless and misconceived, andthus that costs had been incurred without anyreasonable cause. At the same time, the masterappointed an independent solicitor to represent theplaintiff should the master’s order be appealed. Thedecision refusing interrogatories was not appealedbut, in an appeal against the orders made under order99, rule 7, the Law Society was granted leave toappear as amicus curiae.

The plaintiff’s personal injuries case had settled bythe time of the hearing of the appeal before FinneganP, and so the plaintiff’s team was able to reveal to thecourt the plaintiff’s counsel’s written advice on proofs,which had advised interrogatories in light of reasonedconcerns that one or possibly two relevant witnessesmight be hostile at trial. The plaintiff’s solicitor hadconsidered and had acted on that advice.

Donal O’Donnell, senior counsel on behalf of theLaw Society, submitted that the plaintiff’s solicitor’sactions were “perfectly proper” and “beyondreproach” and that the plaintiff’s solicitor had been“unfairly stigmatised” by the order, which hadresulted in substantial media publicity.

Finnegan P concluded, on the review of theauthorities, that an order under order 99, rule 7 couldbe made where the solicitor was guilty of misconductin the sense of breach of his duty to the court, or atleast of gross negligence in relation to his duty to thecourt. The president noted that the solicitor hadacted on the advice of senior counsel and held thatthe facts of the case fell “far short” of the exceptionalcircumstances that might justify a wasted costs orderunder order 99, rule 7. He also held that the masterhad no jurisdiction to make orders under order 99,

rule 7, and he set aside the master’s orders as to costsand the appointment of a second solicitor to representthe plaintiff.

Extreme casesThe Law Society in Kennedy referred the court to caselaw from Britain and elsewhere, which emphasisesthat orders of this kind should be confined to extremecases where clearly a legal representative acting inlitigation had been in serious default. Furthermore,the jurisdiction should even more rarely be invoked atan interlocutory stage, and then only in the clearest ofcases, as it is difficult for a court in an adversarialsystem to assess a legal representative’s actions oralleged defaults before the conclusion of a case.Kennedy is a telling example of this. When the masterinvited the plaintiff’s solicitor to explain why such anorder should not be imposed, the plaintiff’s legal teamwas constrained from explaining their actions whilethe litigation was not concluded, as it would havedisadvantaged their client, the plaintiff, to explain incourt, in the presence of the defendant’s team, thetactical reasons for seeking interrogatories.

The Report of the Legal Costs Working Group (theHaran Group) in December 2005 recommended thatorder 99, rule 6 should be extended to all steps in thelitigation process and not just to the trial. (In fact, thepresent rule refers to “any proceeding” and thus, evenin its present form, the rule probably applies to othersteps in litigation as well as trial.) Therecommendation appears to suggest that costs orders(described in the report as penalties) against solicitorsresponsible for delay should be made more often. Inlight of the lessons of the Kennedy case and from theexperience of other jurisdictions, anyrecommendation to make more use of such costsorders should be viewed with caution.

Roddy Bourke is a litigation partner in McCannFitzGerald.

G

Under order 99, rule 6, a solicitor may be ordered to personally pay costs to theopposing party where:“Upon the trial of any cause or matter or upon any other proceeding it appears tothe court that the same cannot conveniently proceed by reason of the neglect ofthe solicitor for any party to attend personally or by some proper person on hisbehalf, or of the failure of such solicitor to be properly prepared for such trial orproceeding, or of his omission to deliver any paper necessary for the use of thecourt which according to the practice ought to be delivered.”

Order 99 rule 7, in contrast, provides that the court may order payment by thesolicitor personally of his own client’s costs or may order disallowance of thesolicitor’s costs:“If in any case it shall appear to the court that costs had been improperly orwithout any reasonable cause incurred, or that by reason of any undue delay inproceeding under any judgment or order, or of any misconduct or default of thesolicitor, any costs properly incurred have nevertheless proved fruitless to theperson incurring the same.”

ORDER IN THE COURT

LOOK IT UPCases: • Kennedy v Killeen Corrugated Products Limited

and Another [2006] IEHC 385; unreported• Myers v Elman [1940] AC 282 (England)• Ridehalgh v Horsefield [1994] Ch 205 (England)

Legislation: • Courts and Legal Services Act 1990 (Britain)• Rules of the Superior Courts, order 99

Literature: • Report of the Legal Costs Working Group (the

Haran Group), December 2005


LAW SOCIETY GAZETTE JAN/FEB 2007 INTERVIEW

Aoife Sexton comes from a creativebackground, but nobody could havetold her when she started out on herlegal career that, one day, she wouldend up meeting screen idol Robert

Redford – not just once, but on several occasions –while working for the world’s biggest mobile phonetrade association. It’s not everyday that you get tomeet one of the world’s most famous cowboys (‘TheSundance Kid’), investigative journalist (‘BobWoodward’), baseball prodigy (‘Roy Hobbs’) and USsenator (‘Bill McKay’) – all rolled into one. For awoman who describes herself as the ‘black sheep ofthe family’, it’s all very hard to believe too.

“My father Denis is a retired school inspector; mymother Bredha, a drama teacher in Portlaoise Prison.Dad retired at 50 to pursue his writing career andhas written a lot of plays and other material, as wellas having branched out into complementarymedicine; so it’s quite a creative, diverse background.There was a huge emphasis at home, as with mostIrish families, on education and on studying, but Ithink I decided to do law – like a lot of lawyers –because I enjoyed English and history at school. Ithought that law would be an interesting profession.I realised early enough that if you focus on what youenjoy doing, then you’re likely to be more successfulat it and to enjoy your work.

“I’m probably the black sheep in the family, in thatI’m the one who’s the real practical person. I’m theone who, when asked something at work, my firstquestion will be: ‘Well, how will this apply inpractice?’ Having said that, I think lawyers do havemany areas where they can be creative, particularly inproblem solving and in trying to find solutions bycoming at things more laterally.”

Aoife is a solicitor with over 15 years’ experiencein the telecommunications industry. As general

counsel, she manages the legal affairs of GSMAssociation (GSMA). The association is a globaltrade organisation representing more than 700 GSMmobile phone operators across 217 countries andterritories of the world. More than 180manufacturers and suppliers are associate members.These operators and associates serve more than 2.25billion customers – over 82% of the world’s mobilephone market.

In her role, Aoife provides guidance across theorganisation to the board, chief executive officer, theexecutive management committee and variousworking groups. She is based in the company’sDublin office in Deansgrange, but her work takesher around the world.

Rapture“It was the very practical nature of wanting to be apart of something, from its very inception to seeingit through to its conclusion, that attracted me tobecoming an in-house lawyer,” she says. “From veryearly on, I realised I wanted an international flavourto my work. As soon as I graduated from UCD [witha BCL] in 1988, I left straight away and did a ‘stages’in Brussels. I was one of 12 students from Ireland ona European Commission traineeship, which lastedfor six months. I just loved my time there andenjoyed working in the international melting potthat is Brussels.

“In 1989 I came home, and immediately startedmy apprenticeship in Blackhall Place. I did mytraining with Eugene F Collins. It was a wonderfulplace, because it had a very flat structure, it was verycollegiate, very supportive, and it operated an ‘opendoor’ policy with all the partners. Really, that’s whereI got my grounding in the basic legal skills, as well asgood drafting and technical skills. It was a verysupportive environment to work in.”

Aoife Sexton is a

solicitor who

manages the

legal affairs of

GSM Association

– the global

trade association

that represents

more than 700

GSM mobile

phone operators

across 217

countries. Mark

McDermott goes

mobile and talks

to her in their

Deansgrange

office

on the teleHANGIN’

• Creativebackground

• Internationalappeal

• Businessenvironmentrewards

MAIN POINTS

35www.lawsociety.ie

LAW SOCIETY GAZETTE JAN/FEB 2007INTERVIEW

She then spent a year studying in Bruges,Belgium, in the College of Europe – a speciallycreated, government-supported organisation. “Iobviously pursued the legal stream there and wasexposed to competition law – an area I reallyenjoyed. After I completed that postgraduate course,I came back to Ireland in ’92 to complete Blackhall’sadvanced course. I had already secured a job inBrussels with a French law firm, Siméon et Associés,and worked with them for two-and-a-half years,mainly in competition law. One of our biggest clientswas a mobile telecommunications operator, so that’swhere I was first exposed to telecoms.”

This was her stepping stone to being recruited byan American telecoms company, MFSCommunications, and was her first move in-house.“It was a small European headquarters start-up and Iwas the legal counsel. I suppose this was really whereI came into my own. I realised I had found my niche.Because it was a start-up environment, it was slightlychaotic, very flat in structure and it was ‘all hands ondeck’. You were exposed to every part of the businessand could be asked to do anything, either in the legalor business environments.

Picture this“One of the jobs I had was to negotiatetelecommunications infrastructure licences in variouscities in Europe where they wanted to build ‘dark-fibre rings’. This would allow big companies whorequired a huge amount of telecommunicationsresource – like the banks – to have their owndedicated lines, so that they could send vast amountsof information securely. What we were trying to dowas to create telecommunications rings in these bigfinancial cities so that we could then provide ‘RollsRoyce’ telecommunications services to biginstitutions.”

“I used to spendtime in La Défensein Paris and also inStockholm – theywere my two cities– negotiating withthe authorities toallow us toliterally dig upthe streets andbuild theinfrastructure. Sothat was hugelyhands on, with aserious amountof responsibility.It was anAmericancorporation,and they werevery willing togiveresponsibilityto anybodywho wished totake it on.MFS was anincredibly fast-movingentrepreneurial company, so theenvironment that you worked in was to take risks, tokeep pushing the regulatory envelope and keepmoving forward. That was my exposure to the in-house sector and I’ve never looked back since.”

Living on the edge might have been exciting, butwhat about the risks? “I’m sure there were exampleswhere, in hindsight, we probably might have donethings differently, but we were literally writing the

phone


LAW SOCIETY GAZETTE JAN/FEB 2007 INTERVIEW

agreements for the first time. There weren’t anyprecedents. I was working with an extremely talentedperson, Jo van Gorp, who was the head of theregulatory section at the time. He was an incrediblydynamic person with brilliant communication skills.He mentored me really, really well. I learned the artof keeping good communications internally, havingpeople know what you were doing at all times. Atthe same time, you had to be willing to take somerisks and strive to push things ahead for thecompany. If that’s where they wanted you to go, thenthat was the direction you would take. I was withthem for just under two years and was not looking tomove. I was extremely happy there and enjoying thework I was doing.

“But then I was made aware of the fact that therewas an opening for a legal counsel in Dublin for aglobal organisation and I thought, well that sounds

interesting and these don’t come along that often, soI decided – this was in the mid-’90s – to come backto Ireland to explore the possibility. That was GSMAssociation in 1996. I joined as legal counsel withresponsibility for all legal matters. Predominantly,the focus was on matters of competition law. Theydidn’t have an in-house competition advisor, andthere was a US chairwoman at the time who felt theneed for a full-time competition-law advisor. I wasthe sole member of the legal team then, though wehad external legal advisors. There are seven of usnow in the legal team. These are diversely located inDublin, London, Spain and the United States.

Will anything happen?“The reason GSMA came into being was to focus onroaming, so that users could take their phonesanywhere in the world and they would work. Overtime, the scope of the work of the association hasobviously broadened to look at new services that arecoming on-stream. So we’re dealing with everythingfrom video telephony, to instant messaging, tocutting edge uses of the SIM card.’

“The association has also developed in recentyears a commercial arm and we run several revenuegenerating businesses, including conferences. Thismonth, we are expecting close to 60,000 visitors forour event in Barcelona, the 3GSM World Congress.”

As an in-house lawyer, Aoife maintains that thereare major differences in the structures, goals andinvolvement of her colleagues compared with thoseworking in private practice.

In-house solicitors work in diverse roles, in organisations ranging from smallprivate companies in the manufacturing or service sectors, to state, localgovernment and semi-state organisations. The number of solicitors working in-house continues to grow and currently stands at 750 members, representingapproximately 9% of the total number of Law Society members.

The Corporate and Public Sector Committee of the Law Society representsand promotes the views and interests of in-house solicitors. The committeestrives to build upon and strengthen the relationship between the Law Societyand its in-house members.

During the coming year, the committee will organise a seminar for in-housesolicitors, in conjunction with the Society’s CPD Department. It also providesinformation and assistance to in-house solicitors through the committee’sbooklet Solicitors Commencing Employment in the Corporate and Public sector.

For further information on the committee, visit the ‘Committee’ section in themembers’ area of the Law Society’s website. To contact the committeesecretary, Louise Campbell, please phone: 01 881 5712 or email:[email protected].

CALL ME

37www.lawsociety.ie

LAW SOCIETY GAZETTE JAN/FEB 2007INTERVIEW

“To me, in-house is all about the practicalapplication of law in a business environment, andthat’s hugely rewarding. I think also that lawyers,because of their good training, have so much to offerin the business environment. I think employers arerealising this now, that it’s not just the legal brain.It’s all of the training you’ve had, theprofessionalism, the attention to detail, thecommunications skills, the ability to analyse, theability to cut to the chase and see what’s important,to do risk analysis and to problem-solve as well.These skill sets are hugely important in any businessenvironment and this is what lawyers have to offer ina business environment.

“What’s exciting about working in this associationis that the legal team is involved at the verybeginning – from the very first brainstormingsession. My role is really to work with the businessowners on this, to figure out how we do it from thevery beginning. Will we need to find a partner? Willwe need to create a joint venture? Will we need todo a pilot programme? Who’s going to own theintellectual property that will develop? Whathappens if the deal doesn’t come off, with all of theassociated legal aspects? But it’s much broader thanthat. It’s also the business aspects and what it willtake for us to make it successful. In other words,we’re not brought in at the end when somebodysays, ‘Oh, we need a contract’. We’re brought in atthe very beginning as part of the deal team. It’s allvery integrated, and that’s the fun of working in-house. It’s not just you as a lawyer – it’s youcontributing your experience and skills. It’s aboutbeing a good head around the table.”

The tide is high“Working in-house is a fantastic career choice. If Iwere advising somebody starting off, I would say tothem, first get a good apprenticeship and get a goodgrounding in all aspects of law. Work with the bestprofessionals you can, learn as much as you can andspend a number of years in private practice so thatyou really have the confidence to operate at thehighest level as a lawyer.

“Anybody I know who works in-house is hugelysatisfied with what they do. They’re probably morein control of their work as well. Private practice canbe very reactive to the big deal and to the clientpicking up the phone and calling you. Clearly, in-house, this can be the case too, but you can seewhat’s coming down the path a bit more clearlybecause you’re there at the inception and you’rethere as part of the team.

“I have been here now for ten years. I neverthought I would be in any job for ten years. I have alow boredom threshold and I like constant changeand I like things to keep evolving. I enjoy juggling20 things at one time. That’s what makes me tick.I’ve found these elements in this role over the tenyears and it continues to be like that. It’s a

particularly dynamic industry. My role has continuedto evolve to match the growth of the organisation –it’s a mixture of hands-on legal advice but a lot ofmanagement as well. I have been very fortunate thatI’ve has a great boss for the last five years who hasfostered my career development, particularly inensuring I’ve received very broad managerialexperience. He is a CEO with a legal background, sohe is a natural advocate of the broad business-oriented role of an in-house lawyer.”

And what about Robert Redford – where does hefit into this picture? Aoife says: “GSMA haspartnered up with the film star’s Sundance companyto produce five short films especially for mobilephones. This is really cutting edge, in order to showthat mobile phones can be used to view movies. SoRobert Redford has commissioned five directors toproduce these movies, including the husband/wifeteam of Jonathan Dayton and Valerie Faris, whodirected Little Miss Sunshine. All of that will beshowcased in Barcelona next month at our worldcongress. To see Robert Redford trooping in and outof the London office is quite fun sometimes, and Ilike to work on those deals!”

Does Aoife feel that she’s reached the pinnacle ofher career or is there more to come? “I remain opento all possibilities. I don’t have a game plan in termsof what’s next. I’m enjoying what I’m doing at themoment. I suppose, long-term, it may be that atsome point I may take the decision to move moreinto general management. That’s often what happenswhen you work in-house. Who knows, I might liketo be a CEO one day!” G

“To me, in-house is allabout thepracticalapplication oflaw in abusinessenvironment,and that’shugelyrewarding”

The Sundance Kid: atthe forefront of mobilemovies

COURTS AND COURT OFFICERS ACTS 1995 - 2002JUDICIAL APPOINTMENTS ADVISORY BOARD

APPOINTMENT OF ORDINARY JUDGES OF THE:

HIGH COURT (2)CIRCUIT COURT (1)

Notice is hereby given that applications are invited from practising bar-risters and solicitors who are eligible for appointment to the Office ofOrdinary Judge of the High Court and to the Office of Ordinary Judgeof the Circuit Court for two judicial vacancies which have arisen in theHigh Court and one vacancy which has arisen in the Circuit Court.

Those eligible for appointment and who wish to be considered shouldapply in writing to the Secretary, Judicial Appointments AdvisoryBoard, Phoenix House, 15/24 Phoenix Street North, Smithfield,Dublin 7, for a copy of the relevant application form.

The closing date for receipt of completed application forms, inrelation to this advertisement, is 5pm on Thursday 15th February2007.

It should be noted that The Standards in Public Office Act, 2001 prohibits theBoard from recommending a person for judicial office unless the person has fur-nished to the Board a relevant tax clearance certificate (TC4) that was issuedto the person not more than 18 months before the date of a recommendation.

Applicants may, at the discretion of the Board, be required to attend forinterview.

Canvassing is prohibited.

Dated the 18th January 2007

BRENDAN RYAN BLSECRETARY JUDICIAL APPOINTMENTS ADVISORY BOARD

information notice

Request for tendersby the National Council for Special Education

for the provision of Legal Services

The National Council for Special Education (NCSE) is a

recently established State agency, based in Trim, County

Meath, which deals with the provision throughout the State

of appropriate educational services for children with special

educational needs.

NCSE is requesting tenders for the provision of a range

of legal services

This request for tender is published on the Government

procurement website www.e-tenders.gov.ie. The closing

date for tenders is 28th February 2007.

The K Club Exclusive promotion to Solicitors and Barristers

Offer: For the months of, March and October the K Club, home to theRyder Cup 2006 is pleased to offer the Irish Law Society the following rates

PALMER COURSE€115 PER ROUND OF 18 HOLES OF CHAMPIONSHIP GOLF

Bookings of 20 or more on the Palmer Course will qualify for a maximum €200 voucher for the Palmer ProShop

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Bookings of 20 or more on the Palmer Course will qualify for a maximum€100 voucher for the Smurfit ProShop

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OPTIONAL EXTRA€25 for three-course meal in the Snack Bar – Palmer Clubhouse

To reserve your tee time please book through the Sales office and quote your exclusive reference number, which is ILS001.

39www.lawsociety.ie

LAW SOCIETY GAZETTE JAN/FEB 2007PRACTICE MANAGEMENT

practice doctor

Got an issue you would like addressed by our panel of practice doctors? Email: [email protected]

Denise McNulty: ensurethat both you and yourclient understand the different options

Everybody has seen and heard the TV andradio adverts directed at the over 60s,advising them about how they can go onthe world cruise, get that extension, buythat car – simply by using the value of

their home to get a cash sum. How does a financial advisor or solicitor advise

clients about the products available? In Ireland, over15% of the population is now over 60. Financial andlegal advisors should be specifically aware of theissues surrounding equity release schemes. Whilethere are undoubtedly benefits to some of them,there can be downsides to others. All options tofunds must be considered.

Solicitors should be aware that there are twotypes of equity release:a) The reversion scheme, andb) The equity release loan.

The reversion scheme is essentially a propertytransaction in which your client sells part of theirhouse at a discount. This means that the client getsmuch less than the market value of the share they sell.They are, however, still allowed to live in their home.The reversion scheme is not a loan and your clientdoes not retain full ownership of their home. Thehome reversion scheme is not regulated, which means

CASHING INthat the firms who sell these plans are not regulated.

The equity release loan is, as it says, a loan wherethe client retains full ownership of their home. Theloan is secured on the client’s home, however, unlikea normal loan. Repayments do not need to be madeover the life of the loan. Interest is typically 1.5-2%above the standard variable mortgage rate. The loanbalance, plus interest, grows over time.

When advising your clients about each option,ensure that you both understand the difference andensure all questions have been considered, such as:• Does your client wish to continue to own their

property?• Has your client sought independent financial

advice, and have they discussed their intentionswith family members?

• Are they absolutely sure that their circumstanceswill not change and that they will never want torepay early, or indeed borrow more later?

It must be noted that it’s important for your clientnot to borrow more than they actually need at thetime, as they will end up paying interest on themoney drawn down. At least one company allows aphased draw-down facility called an ‘express top up’,which allows periodic draw-downs, up to the client’sapproved limit.

How much can be borrowed?The amount borrowed typically depends on theclient’s age and the value of the house. There is,generally, a ‘loan shortfall promise’, which meansthat, whatever happens, the estate can never owemore than the value of the property. The loan,including interest, is not due for repayment untilyour client permanently leaves their home or dies,though there is no obligation to sell the house ifanother source of repayment is available. Your clientis also free to reverse their decision without penaltyif they have a variable rate loan, which can add totheir peace of mind, in the event their personalcircumstances change.

Denise McNulty is principal of Denise McNultySolicitors, Dublin.

G

A booklet published recently by the Financial Regulator: Equity release – usingyour home to get a cash sum, explains: “If you are a homeowner and are over 60, you may find yourself living on a tightbudget, even if your home is worth a lot of money.

“Up to now, the only way you could benefit from the value of your home was tosell it and move to a cheaper property. Now, a number of companies are offering‘equity release’ schemes. These allow you to release some of the value of yourhome without having to move out or sell it in the open market.

“Equity release schemes are not suitable for everyone, but they may help torelieve financial stress if you: • Don’t want to sell your home and live elsewhere; and• Are not concerned about passing on the full value of your home to your family

or other beneficiaries after your death” (source: www.itsyourmoney.ie).

WHAT IS EQUITY RELEASE?


LAW SOCIETY GAZETTE JAN/FEB 2007 GADGETS

tech trends

Read all the technology news here first, in yourglorious Gazette. Or not, as the case may be

Even after they eventuallybulldoze the pesky seat of

Ireland’s High Kings that isholding this great littlecountry back, you’ll probablystill be sitting in traffic.What’s the alternative, afterall – public transport? Yousome kinda communist, boy?Well, if your daily commute isgetting you down, you mightwant to consider one of thesetasty options to enliven yourjourney.

First up, and particularlyhandy if you live along thecanal, is the Sea-Doo SeaScooter (see www.seascooter.net), which will convey

P icture the nightmare:you’re all alone in

Farthing Wood at night, andthe wind is putting the willowsup you. You’re being stalkedby badger, ratty and mole andare pursued by a business ofweasels and stoats. (What’s thedifference, I hear you ask?Well a weasel is weasilyrecognised, while a stoat isstotally different.) But whichway to run? Lucky for you,you have read your Gazette andare prepared with the CasioPAW1200T Pathfinder

Titanium Atomic Solar TripleSensor Watch. This amazing,but pretty damn ugly, watch isapparently solar-powered andcomes with a built-in digitalcompass, barometer,thermometer and altimeterand its own busty PA. Well, wemade that last bit up, but itdoes come with ‘multi-bandatomic time-keeping’capabilities, which we gathermeans it can tune into multipleatomic clocks around theworld, and it has 30 worldtime settings and a one-touch

daylightsavings timesetting. Butthe compass,altimeter andbarometeralone meanthat you’llnever get stuckup the Khyber Passagain.

The PAW1200 costs around$300. See the details atwww.casio.com/products/Timepiece/ Pathfinder/PAW1200.

Going straight to hell in a hand basketpathologically lazy among you,there is the E-Glide DeweyWeber Twin Dual 400WElectric Longboard, amotorised skateboard (seewww.e-glide.com). Pull a half-pipe with a backside andtailgrab on the steps of theFour Courts: that’d be purerandom, er, dude.

But the clear winner in oureyes has to be the PoweriZersJumping Stilts, enabling youto hop, skip, jump, leap andbound with all the dexterousvirtuosity of fabled andinfamous super-villain Batrocthe Leaper. Check out thegallery and video links atwww.powerizer.org.uk if youdon’t believe that these thingsbeat the M50 by a mile.

you – albeit soaking wet andunable to breathe – at thestately pace of 21/2 mph to adepth of 100ft, enabling youto take down some beaversfrom below. Assuming youalready have a harpoon.

Then, for theyoung, hip,rebellious, but

A nightmare in elm tree

41www.lawsociety.ie

LAW SOCIETY GAZETTE JAN/FEB 2007GADGETS

SITES FOR SORE EYES

Rockin’ all over the world (www.harmony-central.com). Ifyou’ve ever fancied taking up an instrument, or re-forming thatBeach Boys cover band you used to be in, then this is a mostuseful site. It contains thousands of user reviews of guitars,keyboards, amplifiers and effects, drums and sound-processingequipment. It is also an invaluable research resource for whenlittle Ultan or Saoirse get sick of the violin and decide that theywant a guitar for Christmas.

Equo ne credite, Teucris! (www.bbc.co.uk/dna/h2g2/A218882).After dinner speech? Daughter getting engaged? Or just want toconfuse your clients and appear erudite to your colleagues? If so,there’s nothing like a bit of the oul’ Latin. Essential to the busysolicitor are the phrases: Canis meus id comedit, and Recidite, plebes!Gero rem imperialem! And just try muttering Unitam logica falsatuam philosophiam totam suffodiant to the judge the next time you’rein court. Quidquid latine dictum sit, altum sonatur, as we always say.

Far be it from us to suggestways for you and an

accomplice to eavesdrop on aprivate meeting, but thisproduct is a hell of a lot lesscomplicated than any manner ofJames Bond-a-like supertechnology. Quite simply, it’s avoice-activated walkie-talkiesystem built into a pair ofwatches. They have the fullfunctionality of a sophisticateddigital watch, with the bonus ofbeing pro-quality (as used by

the Norwegian Winter Olympicteam, no less) private mobileradio communicators.

They have a three-kilometrerange and have eight channelsand 38 sub-codes per channel,giving you over 300 channelcombinations for privateconversation. To top that all off,there are no mobile bills to pay.It requires a rechargeablelithium battery (included) and amains adaptor, but after theinitial 24-hour charge, a full six-

hour charge will provide 40hours of standby power and twohours of continuous talk time.Certainly enough time tobroadcast mostCouncil meetingsto your ‘friend’ inMontrose.

Walkie-talkiewatches are about €90 per pairfrom www.iwantoneofthose.com.

Too cheap to spring a fewthousand squids on a pro-

designed website for your firm?Well this should be right upyour street, you tightwad. Thiscompany offers what they claimis a bona fide DIY websiteconstruction package that can beup and running in short orderfor a mere £30. With a bookletof apparently “blisteringlysimple” instructions and your

own unique access codeprovided, all you need is acomputer with internet access.There are hundreds of sitedesigns to choose from, and youcan set up on-line photo albums,music libraries and diary pages,alongside a shopping cart.

You choose your own domainname (for example,www.rateyourbestsolicitor.com)and up to 20 email addresses,

and it comes with 150MB ofweb space.

The price includes webhosting (meaning they keepeverything up on the net foryou) for a year, after which youpay only £2.50 a month, and youcan update it as much as youlike. Quick! www.monkey-magic.com might still be free!

See www.mrsite.co.uk.

Websites for cheapskates

Walk the walk ... straight to the competition

Quantum materiae materietur marmota monaxsi marmota monax materiam possit materiari?

How much wood would a woodchuck chuck if a woodchuck could chuck wood?


LAW SOCIETY GAZETTE JAN/FEB 2007 PEOPLE AND PLACES

Mayo’s magic!The Mayo Solicitors’ Bar Association celebrated its 100th anniversary in 2006. The first meeting of Mayo solicitors took place on 18 April 1906. The association held its annual dinner dance at the Downhill Hotel, Ballina, on 8 December. In all, 170 guests attended. Guest of honour on the

night was the Honourable Ms Justice Mary Laffoy. (Front, l to r): Samantha Geraghty (solicitor), Gillian O’Connor, Nollaig Browne, Judge Mary Laffoy(guest of honour), Mrs Joan Groarke, Mrs Margaret Cooper, Catherine Bourke (solicitor). (Back, l to r): John Bourke (solicitor), Judge Raymond

Groarke, Kevin O’Higgins (secretary, DSBA), President of the Law Society Philip Joyce, Marc Loftus (solicitor), President of the Mayo Solicitors’ BarAssociation Patrick O’Connor, Judge Geoffrey Browne, President of the Law Society of Northern Ireland James Cooper, Dermot Hewson (solicitor),

Director General of the Law Society Ken Murphy and Judge John Garavan

Be one of the 1,500 solicitors, staff and their friends to help raise €250k for Goal’s Orphanage

in Calcutta and Fr Peter McVerry’s projects for homeless boys in Dublin.

IT’S NEVER TOO EARLYHere is the first four weeks’ brisk walk/jog programme to

enjoying the Calcutta Run (target 80 min)

WEEK 1, 12 FEBRUARY

1. Walk 30 min

2. Walk 30 min, jog 3-5 min


WEEK 2, 19 FEBRUARY

1. Walk 20 min, jog 5-7 min, walk 10 min


3. Walk 25 min, jog 7 min, walk 10 min

WEEK 3, 26 FEBRUARY

1. Jog 5 min, walk 25 min, jog 5 min

2. Jog 5 min, walk 25 min, jog 7 min


WEEK 4, 5 MARCH


2. Jog 7-10 min, walk 30 min, jog 5-7 min

3. Jog 7-10 min, walk 30 min, jog 5-7 min

Always make sure you are warmed up before you jog!

CALCUTTA RUN 2007IT’S A DATE

Saturday 26th May

Fun run/walk at Blackhall Place

For more information, contact your firm’s Calcutta Run representative or visit www.calcuttarun.com

43www.lawsociety.ie

LAW SOCIETY GAZETTE JAN/FEB 2007PEOPLE AND PLACES

Honour your honourAt a dinner held in honour of Ms Justice Harding-Clark and Judge Thomas Teehan were (front, l to r): Noeleen Redmond, Geraldine Clarke,

Ms Justice Harding-Clark, President of the Law Society Philip Joyce, Judge Thomas Teehan and Rosario Boyle SC. (Back, l to r): director general Ken Murphy, deputy director general Mary Keane, Barry Donoghue, junior vice-president John Costello, Richard J McDonnell SC, past-president

Michael Irvine, Paddy McCarthy SC, Nicholas Butler SC, Deirdre Murphy SC and Cathy Maguire BL

Joint chiefs of staffAt the meeting of the Joint Consultative Committee of the Law Society and Bar Council were (front, l to r): Bar Council director Jerry Carroll,

vice-chairman Paul O’Higgins, Bar Council chairman Turlough O’Donnell, President of the Law Society Philip Joyce, senior vice-president JamesMacGuill and director general Ken Murphy. (Back, l to r): Bar Council members David Nolan, Paul McGarry, Sasha Gayer, Lisa Dempsey,

Deputy Director General of the Law Society Mary Keane, and Council members Gerard Doherty and Gerard Griffin

Back to school!PPC I students are participating in a rewarding venture and volunteering their time each week to assist children from Stanhope Street primary school

with their reading. Pictured are some of the Law School students and pupils from Stanhope primary school who are participating in this year’s‘Shared Reading Programme’. PPC I students are also volunteering in a number of homework/after-school clubs in conjunction with other primary

and secondary schools in the local community



The general assembly of theFederation Internationale de

l’Automobile (FIA) has elected EUcompetition law expert Ken Dalyas the new secretary general ofthe FIA International Court ofAppeal (ICA), the final appealtribunal for international motorsport. Established under the FIAstatutes and the FIA’sinternational sporting code, itresolves disputes brought beforeit by any of motor sport’s nationalsporting authorities worldwide orby the president of the FIA. It canalso settle non-sporting disputesbrought by national motoringorganisations affiliated to the FIA.

Ken’s appointment is asignificant development for theICA, as he is one of Europe’s

foremost experts in competitionand sports law. It also furtherdemonstrates the independenceand the unique expertise of theICA as a world-leading arbitrationauthority.

Daly commented: “I’mdelighted to have been electedand I’m looking forward to thechallenges that this role will bring.The ICA has become aprofessional, modern, flexible andhighly specialised disputeresolution forum. Continuing alongthis path is essential if thechanging demands of internationalmotor sport are to be met.”

He takes over from previousincumbent David Ward, who said:“I’m delighted that Ken Daly hasbeen elected to be the new secre-

tary general, as he is particularlywell qualified to fulfil this role. It isgood to know that I am leaving theICA in his capable hands.”

Daly – son of past-president ofthe Law Society Frank Daly, who is

current chairman of the SolicitorsDisciplinary Tribunal – is a counselin the Brussels office of SidleyAustin LLP, where he focuses onEU competition, regulatory andsports law and specialises inmerger-control proceedings, cartelinvestigations and abuse ofdominance cases, as well as thelaw relating to the regulation ofinternational sports.

Daly adds to a wealth ofknowledge and experience at theICA, which includes among itstitular judges senior lawyers suchas Anthony Scrivener QC, one ofthe top barristers in Britain, andJohn J Cassidy, a senior partnerat Baker Botts LLP, the law firm ofJames Baker II, the former USsecretary of state.

Ken Daly, new secretary general of the FIA International

Court of Appeal

HIGHWAY STAR

Commercial breakAt the CPD seminar on recent developments in the commercial court

were (l to r): Barbara Joyce (Law Society), Mr Justice Peter Kelly (head ofthe Commercial Division of the High Court) and Rosaleen Byrne

(McCann FitzGerald Solicitors, Dublin)

At a dinner in honour of Finance Minister Brian Cowen were (back, l to r): deputy director general Mary Keane,past-president Gerard Griffin, junior vice-president John Costello and director general Ken Murphy; (front, l to r):

past-president Michel Irvine, Minister Cowen, Law Society president Philip Joyce, and Peter Power TD

SYS Autumn 2006 ConferenceThe winner of the annual ezhome

golf prize, Mark O’Sullivan ofMatheson Ormsby Prentice,

receives his prize from ShaneRobinson of ezhome

SOLICITORS’HELPLINE

THE SERVICE IS COMPLETELY CONFIDENTIAL ANDTOTALLY INDEPENDENT OF THE LAW SOCIETY

The Solicitors’ Helpline is available toassist every member of the professionwith any problem, whether personal orprofessional

01 284 8484

PARCHMENT CEREMONY

45www.lawsociety.ie


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Denis Bergin died on 17November. At his funeral,

an enormous gathering offamily, friends and colleagues,along with business and socialcontacts, paid their respects toa devoted husband, a lovingfather, a loyal friend, adistinguished lawyer, awonderful colleague and a truegentleman.

Denis was proud of hisDublin roots – he was thefourth generation Denis Berginto be born and raised in thecapital. Educated at the SacredHeart School in Leeson St andat Belvedere College, hestudied law at UCD and qualified as a solicitor, following in thefootsteps of his father (Denis) and his older brother (Paddy).While at UCD, he met Gretta Sheedy from Ballylanders, CoLimerick, whom he married in 1955. He was devoted to her,always happiest in her company, and that is how he spent the daybefore he died, celebrating their 51st wedding anniversary.

Having worked with his friend Michael Hayes for a numberof years, Denis joined the firm of Arthur Cox as a partner in1965. In the early years, he practised mainly in the areas ofprobate and conveyancing, but later he became one of theleading commercial lawyers in the city. He was widely regardedas one of the foremost authorities on the law relating to co-operative societies and advised many of the country’s largest co-operatives. He was particularly proud of his role as lead advisorto both Kerry Group and IAWS when they went down thepublic-company route. His clients included many of Ireland’smost prominent businesses as well as smaller businesses andindividuals, all of whom he looked after with equal concern andcourtesy. His broad knowledge of commercial law, and thecommon sense approach he brought to even the most obtuselegal problem, guaranteed that he was in great demandthroughout his career. He advised on a number of majorinsolvencies, including the administration of PMPA Insuranceand the liquidation of Ranks. He served on the boards of high-profile companies, including Fyffes, Adare Printing and theBank of Nova Scotia.

Denis was a wonderful colleague. He was unfailingly

courteous to everyone whoworked with him and showed agenuine interest in what wasgoing on in their lives. Theultimate team player, he soughtno glory for himself and wasalways willing to roll up hissleeves and get involved. Hewas an enthusiastic and popularparticipant in virtually everysocial activity organised by theoffice, events he attended notout of a sense of duty, butbecause he enjoyed people’scompany.

Denis was a moderate man –a lifelong pioneer and non-smoker, whose one indulgence

was a sweet tooth. He liked sailing, was a prominent member ofMilltown Golf Club, and enjoyed opera and travel. A privateman, he played a public role as deputy returning officer in noless than 14 general elections: something of a record.

He was a true Christian with a strong social conscience, asevidenced by his involvement with the Vincent de Paul Societyand St Vincent’s Hospital and his many generous acts of privatecharity.

Denis had an extraordinary capacity to get on with peopleacross generations. Friends of his children would frequently seekhim out for advice and help. There was nothing you could notdiscuss with Denis. You were always assured of a hearing,without judgement or disapproval, and were guaranteed no-nonsense advice and absolute confidentiality. He had a wickedsense of humour and a curiosity about what was going on thatensured that being in his company was always fun.

Denis was intensely proud of his five children. He was aloving and generous father, always there for them but always at the proper distance. Anne, Denis, Maurice, Caroline andMarian, and their partners, share, with Gretta, a deep sense of loss.

George Bernard Shaw defined a gentleman as “one who putsmore into the world than he takes out”. Denis Bergin was such agentleman – and much more. He will be fondly rememberedand greatly missed.

EMcC

G

OBITUARY

Denis J Bergin16 March 1928 – 17 November 2006

47www.lawsociety.ie

LAW SOCIETY GAZETTE JAN/FEB 2007STUDENT PAGE

student spotlight

Members of Blackhall’s GAA team proudly sport polo shirts sponsored by Hugh Hourican, proprietor of theBoar’s Head Bar on Capel Street (back, l to r): Paddy Walsh, Declan Murphy, Steve Walsh, Mike Commons and

James O’Mahony. (Third row, l to r): Steve Mahon, Tadgh Boyle, Michael Mulvey (captain), Andrew O’Connelland Peter Feeney. (Second row, l to r): Padraic Roche, Airy Cleere, Liam Dunne, Cian Duffy, Karol Murphy,

Fergal O’Sullivan, Colm Mullen and Niall Rooney. (Front, l to r): Ronan O’Brien, Gavin Hinchy, Kevin Smith andMartin Travers (manager)

The Blackhall men’s gaelicteam have qualified for the

final of the Higher EducationLeague for the first time in theSociety’s history, where they willseek to overcome the strongchallenge of Mater Dei Instituteof Education.

After coming through thegroup stages unbeaten,Blackhall faced St Pat’s,Drumcondra, in the semi-final. In a bruising encounterplayed in terrible conditions,the greater physical strengthof the Blackhall men told inthe end.

The platform for victory wasestablished early on as themidfield pairing of Micheál‘Cavan Man’ Mulvey and Paddy‘Guns’ Walsh provided acontinuous supply of possessionto the forwards. The team racedinto a 0-6 to 0-0 lead, withscores from Fergal O’Sullivan,Gerald Byrne and Tadgh Boyle.A peach of a goal from the‘Longford Flyer’ Kevin Smyth,who chipped the ’keeper on thestroke of half time, meantBlackhall were deservedly aheadat the break on a scoreline of 1-06 to 0-03.

Blackhall team makes history

St Pat’s came back strongly atthe resumption, but a goal fromprolific full-forward ‘Pistol’Pete Feeney mid-way throughthe second half put the gamebeyond doubt, as Blackhalleventually ran out winners 2-09to 1-06.

The team appreciated thededication of their fellowBlackhall students who braved

the miserable weatherconditions to cheer them on.Hopefully, even greaternumbers of supporters willattend the final on what will bea momentous occasion as theteam endeavours to create alittle bit of history by winningthe league and returning toBlackhall with the cup.

Blackhall can also look

forward to the challenge ofcompeting in the Trench Cup,where we will meet LimerickIT in the first round. Withhome advantage, the Blackhallboys are confident of upsettingthe odds by beating one of thepre-tournament favourites inwhat will, no doubt, be a verychallenging match.

Colm Mullen

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council report

Report of Law Society Council meeting held on 1 December 2006

Death threats to a solicitorThe Council discussed themedia coverage in relation to therecent death threats against asolicitor and the assistance pro-vided to him by the Society. TheCouncil recorded its admirationfor the extraordinary couragedisplayed by the solicitor, giventhe outrageous circumstances inwhich he had been placed.While the media reports haddescribed the matter as a threatto his life, it was understood thatgarda intelligence had revealedthat preparations were beingmade to commit his murder.

The director general notedthat the Garda Commissionerhad been very responsive to theapproaches made by the Societyand had been in contact by tele-phone, as well as meeting withthe Society. It appeared that, atthe time the solicitor’s client wasmurdered, the threat levelagainst the solicitor had beenassessed as having actuallyreduced. Obviously, followingthat tragic event, the positionhad changed and, on gardaadvice, the solicitor was still out-side the jurisdiction. It was clearthat such garda protection aswas necessary would have to beprovided to the solicitor on a 24-hour basis.

The Council noted that theprofession had also been verysupportive and sympathetic tothe solicitors’ firm involved andrecognised that this was an issueof principle that went beyondthe individual solicitor. If threatsto solicitors were to becomecommonplace or, in fact, werecarried out, the rule of lawwould be fundamentally under-mined within the state.

The Council discussed thepractical steps that might betaken by the Society to assist the

solicitor in his practice, and itwas agreed that the issue wouldbe explored further with thesolicitor. It was also noted thatthere was a real risk that othercolleagues would decide not totake on similar cases and therecould also be a situation of copy-cat threats.

Appointments to other bodiesThe Council approved the re-appointment of Gerard Dohertyto the Circuit Court RulesCommittee and the re-appoint-ment of Fiona Twomey to theDistrict Court RulesCommittee. The Councilapproved a request for the inclu-sion of the Society as a nominat-ing body to the Courts-MartialRules Committee in the forth-coming Defence (Amendment)(No 2) Bill. In addition, theCouncil approved the nomina-tion of Simon Murphy as theindependent chairman of theFitness to Practice Committeeof the Veterinary Council.

Practising certificate formand fee for 2007The Council approved the prac-tising certificate form and fee for2007. The fee for 2007 was set at€1,996 for the full rate and at€1,656 for those practising lessthan three years, which repre-sented an increase of 5.1% onthe 2006 fee.

Judicial review proceedingsagainst decision of theMaster of the High CourtThe Council noted thefavourable decision handeddown by the President of theHigh Court in the proceedingsagainst the decision of theMaster of the High Court inrelation to costs, in which theSociety had been joined as ami-

cus curiae. The president hadheld that the power to make a‘wasted costs’ order was vestedonly in a court and, as the mas-ter was not a court, he did nothave the authority to make suchorders.

Bain Report on legal servicesin Northern IrelandThe president noted that theBain Report, arising as a conse-quence of a review in NorthernIreland of legal services, hadbeen published recently. It hadconcluded that the differences insize, nature, structure and regu-latory history between Englandand Northern Ireland was such that a Legal ServicesCommission, such as that pro-posed by the CompetitionAuthority, was not only unnec-essary, but would not add valueto the consumer and would beanti-competitive.

The director general con-firmed that the Bain Reportendorsed the existing regulatorysystem in Northern Ireland,which was broadly similar tothat contained in the Civil Law(Miscellaneous Provisions) Bill2006.

It was noted that theCompetition Authority’s finalreport would be published on 11December 2006.

IT survey of the professionAndrew Cody briefed theCouncil on a series of recom-mendations from theTechnology Committee follow-ing the IT survey of the profes-sion. The recommendationsaddressed a number of weak-nesses that had been identifiedas a result of the survey. TheTechnology Committee hadproduced leaflets in respect offour of these areas and intended

to produce leaflets in relation tothe remainder.

In addition, the committeehad provided some advice to theSociety in relation to its e-com-munication strategy and themanner in which informationwas provided to the members.

Client Care Task Force Tom Murran reported that 150practitioners had attended aclient care seminar on 21November 2006 and a further95 practitioners were booked toattend the client care seminar tobe held in Thurles during thefollowing week. Further semi-nars would be providedthroughout the country duringthe coming year. Considerationwould also be given to the pub-lication of a standard precedentletter of engagement.

E-Conveyancing Task ForceDan O’Connor noted that thereport on e-conveyancing, spon-sored by the Department ofJustice, Equality and LawReform, had been approved bythe government and a LawReform Commission group wasbeing formed to recommend theappropriate model for e-con-veyancing in Ireland. Theexpected design period was 12-15 months, and it was intendedto hold a series of seminars withvarious stakeholders. GabrielBrennan, a member of theSociety’s task force, had beeninvited to become a member ofthe Law Reform Commissiongroup. The Council noted thatwhat was being proposed wasnot e-registration, which hadfailed in other jurisdictions, bute-conveyancing in the realsense, in that every step of theprocess would be completedelectronically. G

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49www.lawsociety.ie

practice notes

The Litigation Committee isaware that, in a growing

number of instances, insurancecompanies are forwarding settle-ment cheques directly to clientsrather than to the solicitors whoare on record for them.

Practitioners are reminded of theimportance of obtaining anauthority from the client toreceive the settlement monies.

The committee would pointout that insurance companieshave in the past disregarded

mere letters requesting that thesettlement cheque be sent tothe solicitor. It is suggested that,in all cases, a signed authorityto receive the cheque, togetherwith a clear direction from theclient to the payer to forward the

cheque to the solicitor, shouldbe furnished in good time to theinsurance company/respondent(not to PIAB, who are notinvolved in the payment of set-tlement monies).

Litigation Committee

The following guidelines areintended to assist solicitors

who are involved in the repre-sentation of patients before theMental Health Commission tri-bunals. The tribunals will bereviewing all involuntary admis-sions of patients to hospital orpsychiatric units. If the detentionis not lawful, the patient will bedischarged.

Most of those involved in thisarea of work will be members ofthe Mental Health Commissionpanel and would therefore havefulfilled the selection criteria formembership of the panel (seebelow). Since representation ofpatients before the tribunals isnot exclusive to panel members,these guidelines will also be ofassistance to other solicitors.

The guidelines have been pre-pared by a subcommittee com-prising members of both theGuidance and Ethics and theFamily Law and Civil Legal Aidcommittees. The Law Society iskeen to ensure that patients’representatives maintain thehighest possible standards inthe preparation, presentationand conduct of clients’ casesbefore the tribunals. Since thepatients may not raise concerns

about the performance of theirlegal representatives, solicitorshave an obligation to ensure thatproper standards are main-tained.

The right to liberty is a con-stitutional imperative. Under theMental Health Act 2001, aninvoluntary admission will nowautomatically trigger a referral toa tribunal.

Retainer and representation Since the enactment of theMental Health Act 2001, solici-tors are in a new and evolvingsituation. In the past, solicitorswere advised that, before theycould accept instructions from aclient, they had to be satisfiedthat that client had the neces-sary mental capacity to enterinto a contract for legal servicesand also to understand thenature and implications of thetransaction in which they wereinvolved. If, during the course ofsuch a retainer, it became clearthat the client no longer had themental capacity to continue toinstruct the solicitor or to under-stand what was being done onhis/her behalf, the solicitor hadan obligation to terminatehis/her services.

New roleThe Mental Health Act 2001 hasnow created a new role for solici-tors, which role is not based on acontract for legal servicesbetween a solicitor and a clientwith full mental capacity. Themain issue that solicitors must beaware of is that solicitors’ con-tracts for legal services will bewith the Mental Health Commis-sion and that payment for theservices provided will be made bythe commission in accordancewith the scale approved by thecommission and the Departmentof Finance. The solicitor’s duty is,however, to give individual repre-sentation to the patient.

‘Client’s instructions’ or ‘bestinterests’?Questions will be raised as towhether solicitors representingpatients should act in accordancewith the patient’s instructions orwhether their role is to act in thepatient’s ‘best interests’. This isa matter for the professional judg-ment of the solicitor, taking intoconsideration the followingpoints: 1) It is the patient’s views or

wishes that should be repre-sented to the tribunal. A solici-

tor should act in accordancewith the patient’s instructions.However, in taking thoseinstructions, the solicitor mustdetermine whether or not thepatient is capable or not capa-ble of giving clear instructions.

2) It is recognised that somepatients detained under theMental Health Act 2001 willnot have the mental capacityto give clear instructions totheir solicitor.

3) All solicitors have a generalduty to act “in the best inter-ests of the client” at all times.This includes a requirement togive the clients their bestadvice. In Mental HealthCommission cases, this mightinclude a realistic assessmentof the likelihood of the patientbeing discharged or adviceabout possible steps towardsdischarge, but the clientpatient has the right not toaccept that advice.

4) In deciding what is in thepatient’s best interests,regard should be had to the fol-lowing: • The person’s known past

and present wishes andfeelings and the facts thathe or she would consider

INSURANCE COMPANY SETTLEMENT CHEQUES/PIAB

REPRESENTATION AT MENTAL HEALTH TRIBUNALS: GUIDELINES FOR SOLICITORS

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important;• The views of other peo-

ple/professionals whomthe solicitor decides it isappropriate or practicableto consult in the prepara-tion of the case;

• Whether the purpose forwhich any action or deci-sion with regard to thedetention and treatment ofthe patient was made canbe achieved in a mannerless restrictive of that per-son’s liberty.

The solicitor should prepare theevidence on behalf of the patientas in any other case, defendingprimarily the patient’s liberty andright to treatment in the leastrestrictive setting.

The solicitor should avoid anoverly collaborative approach withthe tribunal, leading to too easyan agreement to detention in the‘best interests’ of the patient.

It is acknowledged that thereare no hard and fast rules or cor-rect answers to some of the ethi-cal and other questions raised inrepresenting patients who aredetained under the Mental HealthAct 2001. However, in general,the solicitor’s role is to act onthe patient’s instructions, advo-cating the patient’s views andwishes, even if these may beconsidered by the solicitor to bebizarre or contrary to the

patient’s best interests. It is forthe tribunal to decide, on thebasis of the evidence before it,from the patient and from all theprofessionals purporting to act inthe patient’s best interests,whether the statutory criteria setout in the 2001 act are met.

ConfidentialityOne particular matter that raisesethical and conduct issues con-cerns the solicitor’s duty of confi-dentiality when acting for peoplewhose capacity is impaired. Thestarting point must be that allsolicitors are under a duty to keepthe client’s affairs confidential.However, there are certain excep-tions to this duty, which are main-ly statutory exceptions or caseswhere the client has consentedthat information may be dis-closed. There are also extremelyrare cases where it may be nec-essary to disclose informationwithout the client’s consent whena client discloses to the solicitorthat they intend to do seriousharm to themselves or to some-body else.

Where the solicitor feels it isessential, and it is in the client’sbest interest to disclose informa-tion confided in him/her by theclient, the solicitor should first tryto obtain the client’s agreementto disclosure. If the client doesnot agree but the solicitor stillfeels it is necessary to disclose

the information, then the solicitorshould inform the client that heintends to do so and discuss withthe client whether he/she, thesolicitor, should cease to act.

Solicitors who are concernedat any time about their own posi-tion on any matter of conductshould contact the Guidance andEthics Committee helpline. Thesolicitor will be assisted so thathe/she can make an informedprofessional judgment on the par-ticular matter.

Training for solicitors The Mental Health Commissionprovides training for solicitors onthe panel and there is also arequirement for solicitors to keeptheir skills updated by undergoingrelevant and appropriate training,as required, in order to keepabreast of developments in thearea. Solicitors who are not onthe panel should themselves vol-untarily undertake similar training.

Professional indemnity insurance It would be essential for all solici-tors who act as representativesfor patients before the tribunals toensure that they are appropriatelycovered.

Selection criteria The selection criteria for member-ship of the Legal RepresentativesPanel were:

• To hold a current practisingcertificate from the LawSociety of Ireland in the caseof a solicitor or be currentlysubscribing to the Law Library,Ireland, in the case of a barris-ter;

• To have professional indemnityinsurance to cover an individ-ual claim of up to €1.3m; and

• To be a practising solicitor orbarrister who has had no lessthan three years’ experienceas a practising solicitor or barr-ister ending immediatelybefore application.

At the time of application and atall times throughout their tenure,the legal representative must bepractising. Any law firm whowished to participate in thescheme was requested to providethe above details for each legalrepresentative who proposed toprovide legal services on behalf ofthe firm under the scheme. Allsolicitors had to undergo a quali-fying interview.

Further information about theMental Health Legal Represent-ative Panel is available from theMental Health Commission web-site at www.mhcirl.ie.

Mental Health Subcommittee(Guidance and Ethics

Committee; Family Law and CivilLegal Aid Committee)

law ball ’07law ball ’07>>>>

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18 November 2006 – 17 January 2007

legislation update

Details of all bills, acts andstatutory instruments since1997 are on the library cata-logue – www.lawsociety.ie(members’ and students’ area)– with updated informationon the current stage a bill hasreached and the commence-ment date(s) of each act.

ACTS PASSEDAppropriation Act 2006Number: 35/2006Contents note: Appropriatesto the proper supply servicesand purposes sums granted bythe Central Fund (PermanentProvisions) Act 1965; makesprovision in relation todeferred surrender to theCentral Fund of certain undis-charged appropriations by ref-erence to the capital supplyservices and purposes as pro-vided for by section 91 of theFinance Act 2004 and makesprovision in relation to thefinancial resolutions passed byDáil Éireann on 6/12/2006.Date enacted: 19/12/2006Commencement date: 19/12/2006

British-Irish Agreement(Amendment) Act 2006Number: 32/2006Contents note: Gives effect inIrish law to the supplementaryagreement between the Irishand British governments consti-tuted by an exchange of lettersdated 25/7/2006 and providesthat the British-Irish AgreementAct 1999 (the implementationbodies agreement), as amended,shall be construed in accordancewith that supplementary agree-ment.Date enacted: 11/12/2006Commencement date: Com-mencement order to be made(per s4(3) of the act)

Electoral (Amendment) Act 2006Number: 33/2006Contents note: Provides forpostal voting by prisoners atelections and referenda.Amends the Presidential ElectionsAct 1993, the EuropeanParliament Elections Act 1997and certain other enactmentsand provides for related mat-ters. Amends the table to rule1(4) of the second schedule tothe Electoral Act 1992 by extend-ing, solely in relation to thepreparation of the register ofelectors that comes into forceimmediately following the reg-ister in force at the date of com-ing into operation of this act,certain time periods in connec-tion with the preparation of theregister of electors.Date enacted: 11/12/2006Commencement date: 11/12/2006

Energy (MiscellaneousProvisions) Act 2006Number: 40/2006Contents note: Amends theElectricity Regulation Act 1999,the Gas Act 1976 and theElectricity (Supply) (Amendment)Act 2001. Provides for thefunctions of the Commissionfor Energy Regulation in rela-tion to an all-island energymarket and in relation to elec-trical safety and the regulationof electrical contractors. Makesprovision in relation to com-bined heat and power and elec-tricity interconnectors.Provides for the functions ofthe Commission for EnergyRegulation regarding naturalgas safety. Provides for the fullopening of the natural gas mar-ket. Provides for the issue ofcapital stock in Bord Gáis Éire-ann. Provides for an increase in

the statutory borrowing limitof Bord na Móna plc. Providesfor the treatment of landsaffected by mines and formermines by rehabilitation of suchlands and for the compulsoryacquisition of lands for the pur-poses of such rehabilitation.Provides for the continuedvalidity of planning or otherconsents for electricity, gas andother infrastructure develop-ments upon commencement ofthe Planning and Development(Strategic Infrastructure) Act2006, and provides for relatedmatters.Date enacted: 24/12/2006Commencement date: Com-mencement order(s) to be madefor ss4, 6, 8, 11 to 14 and 19 (pers1(2) of the act); 24/12/2006 forall other sections

Europol (Amendment) Act2006Number: 37/2006Contents note: Gives the forceof law to the protocols of30/11/2000, 28/11/2002 and27/11/2003 to the conventionof 26/7/1995 on the establish-ment of a European PoliceOffice and, for that purpose,amends the Europol Act 1997and provides for related mat-ters.Date enacted: 23/12/2006Commencement date: 23/12/2006

Houses of the OireachtasCommission (Amendment)Act 2006Number: 39/2006Contents note: Amends andextends the Houses of theOireachtas Commission Act 2003to provide, among other things,for the commission’s fundingfor the period 2007-2009.Amends section 4 (functions of

the commission) of the 2003 actto specify the provision oftranslation services for the actsof the Oireachtas from one official language into the otheras a function of the commis-sion, and provides for relatedmatters.Date enacted: 23/12/2006Commencement date: 1/1/2007 (per s13(3) of the act)

Industrial Development Act2006Number: 34/2006Contents note: Amends andextends the Industrial Develop-ment Act 1993 to provide legisla-tive authority for the transfer ofstaff from Shannon Free AirportDevelopment Company Ltd toForfás and to provide a statutoryguarantee to the staff that theirpay, conditions of service andpension arrangements shall notbe diminished by virtue of thetransfer.Date enacted: 18/12/2006Commencement date: 18/12/2006

Investment Funds,Companies andMiscellaneous Provisions Act2006Number: 41/2006Contents note: Amends andextends the Companies Acts, theIrish Takeover Panel Act 1997, theCentral Bank Act 1942, theConsumer Information Act 1978and the Netting of FinancialContracts Act 1995; provides forthe implementation by regula-tions of directive 2004/109 onthe harmonisation of require-ments to disclose informationabout issuers whose securitiesare admitted to trading on a reg-ulated market (EC transparencydirective); gives the IrishTakeover Panel, designated as

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the competent authority for thepurposes of the takeover bidsdirective (dir 2004/25) under SI255/2006, the power to makerules to give effect to acts of theEuropean Communities, andprovides for related matters.Date enacted: 24/12/2006Commencement date: 24/12/2006 for ss1 to 6, 9, 10, 13, 14,15 and 35; ss7 and 8 shall bedeemed to have come into oper-ation on 1/7/2005; commence-ment order(s) to be made for allother sections (per s2 of the act)

Irish Film Board(Amendment) Act 2006Number: 38/2006Contents note: Increases theaggregate amount of any invest-ments, loans, grants or moniesprovided by the Irish FilmBoard under ss6 and 8 of theIrish Film Board Act 1980, orrepayments on foot of any guar-antee under s7 of that act.Date enacted: 23/12/2006Commencement date: 23/12/2006

Local Government (BusinessImprovement Districts) Act2006Number: 42/2006Contents note: Provides forthe establishment of businessimprovement districts withinthe functional areas of ratingauthorities; enables businessimprovement district schemes,under which projects, servicesand works are carried out forthe benefit of those districts, tofinance the schemes by provid-ing for the imposition and col-lection of a levy on rateableproperties situated in those dis-tricts; makes provision in rela-tion to local authority funding;amends the Local GovernmentActs 1925-2003 and theValuation Act 2001, and providesfor related matters.Date enacted: 24/12/2006Commencement date: 24/12/2006 for ss1, 7, 8 and 9; com-mencement order(s) to be madefor remaining ss2 to 6 (per s9(4)of the act)

Patents (Amendment) Act 2006Number: 31/2006Contents note: Gives effect tocertain provisions of the agree-ment on trade-related aspects ofintellectual property rights(TRIPs agreement) annexed tothe agreement establishing theWorld Trade Organisation; givesfurther effect to the EuropeanPatent Convention. Amends thePatents Act 1992, as amended bysection 75 of the Trade Marks Act1996 and sections 4 and 5 of theIntellectual Property (MiscellaneousProvisions) Act 1998.Date enacted: 11/12/2006Commencement date: 11/12/2006 for ss1, 2(a), (f ) and (g), 7,10, 12, 15, 16, 18 to 25, 29(c)(ii),31(c), 32, 34, 36 to 40 and 42 to51; commencement order(s) tobe made for all other sections(per s51(2) and (3) of the act)

Social Welfare Act 2006Number: 36/2006Contents note: Provides forincreases in the rates of socialinsurance and social assistancepayments and improvements in

the family income supplement,maternity and adoptive benefit,death benefit, funeral expensesgrant, bereavement grant, wid-owed parent grant, state pen-sion (non-contributory) and dis-ability allowance schemes.Provides for an increase in theweekly earnings limit belowwhich PRSI is not payable, anincrease in the income ceilingabove which PRSI contribu-tions are not payable byemployed or optional contribu-tors, as announced in the budg-et, and amends the HealthContributions Act 1979 to pro-vide for an increase in theamount of contributionspayable for earnings over a cer-tain threshold. Also provides foran increase in the weekly andannual exemption thresholdsfor the health contribution levy.Date enacted: 19/12/2006Commencement date: Var-ious – see act

SELECTED STATUTORYINSTRUMENTSChild Care (Pre-School Serv-ices) (No 2) Regulations 2006

as amended by the Child Care(Pre-School Services) (No 2)(Amendment) Regulations2006 (SI 643/2006)Number: SI 604/2006Contents note: Set out the var-ious requirements to be com-plied with by persons carryingon pre-school services for thepurposes of securing the safety,health and welfare and promot-ing the development of pre-school children. Revoke all pre-vious Child Care (Pre-SchoolServices) Regulations.Commencement date: 3/9/2007 for all regulations otherthan regulation 3(2); 19/12/2006 for regulation 3(2), whichrevokes an earlier SI made in2006

Children Act 2001(Amendments to Part 11)(Commencement) Order2006Number: SI 590/2006Contents note: Appoints 1/12/2006 as the commencementdate for the amendments madeto sections 227(1), 230 and225(2) in part 11 of the ChildrenAct 2001 by sections 156, 157and paragraph 30 of schedule 4,respectively, of the CriminalJustice Act 2006. These amend-ments relate to the functionsand composition of the boardmembership of the SpecialResidential Services Boardestablished under part 11 of theChildren Act 2001.

Criminal Justice Act 2006(Commencement) (No 3)Order 2006Number: SI 586/2006Contents note: Appoints29/11/2006 as the commence-ment date for section 121(d) ofthe Criminal Justice Act 2006.Section 121(d) makes a techni-cal amendment to section 2(commencement section) of theChildren Act 2001 to provide astatutory authority for the mak-ing of the Children Act 2001(Amendments to Part 11)(Commencement) Order 2006 (SI590/2006) listed above.

Circuit Court Rules (Industrial Relations Acts) 2007Number: SI 12/2007Contents note: Insert a new rule 11, ‘Industrial Relations(Amendment) Act 2001; Industrial Relations (MiscellaneousProvisions) Act 2004’, in order 57 of the Circuit Court Rules 2001(SI 510/2001) to prescribe procedures in respect of enforcement ofa decision of a rights commissioner and enforcement of a determi-nation of the Labour Court under the Industrial Relations Acts.Commencement date: 13/2/007

Circuit Court Rules (Mental Health) 2007Number: SI 11/2007Contents note: Insert a new order 47A, ‘Mental Health Act 2001’,into the Circuit Court Rules 2001 (SI 510/2001) to prescribe pro-cedures for Circuit Court applications and appeals under the MentalHealth Act 2001.Commencement date: 13/2/ 2007

Circuit Court Rules (Social Welfare Appeals) 2007Number: SI 10/2007Contents note: Insert a new order 72, ‘Appeals under the SocialWelfare Consolidation Act 2005’, into the Circuit Court Rules 2001(SI 510/2001) to prescribe Circuit Court procedures for appealsunder the Social Welfare Consolidation Act 2005.Commencement date: 13/2/ 2007

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Criminal Justice Act 2006(Commencement) (No 4)Order 2006Number: SI 622/2006Contents note: Appoints14/12/2006 as the commence-ment date for section 9(c) and(d) of the act (amendments tosection 4 (detention after arrest)of the Criminal Justice Act 1984).

Criminal Justice Act 2006(Commencement) (No 5)Order 2006 Number: SI 689/2006 Contents note: Appoints 1/1/2007 as the commencementdate for part 11 (ss113-119,civil proceedings in relation toanti-social behaviour) of the act.

Employment Permits Act2006 (Commencement)Order 2006Number: SI 682/2006Contents note: Appoints 1/1/2007 as the commencementdate for all sections of the act.

Employment Permits Act2006 (Prescribed Fees andMiscellaneous Procedures)Regulations 2006Number: SI 683/2006Contents note: Permit certainforeign nationals, as defined inthe Employment Permits Acts2003 and 2006, to be employedin the state and set out the pro-cedures for making an applica-tion for such a permit.Commencement date: 1/1/2007

European Communities(Capital Adequacy of CreditInstitutions) Regulations2006Number: SI 661/2006Contents note: Give effect todirective 2006/48/EC relatingto the taking up and pursuit ofthe business of credit institu-tions (recast).Commencement date: 1/1/2007, subject to transitionalprovisions, for all regulationsother than regulations 32 and51; 1/1/2008 for regulations 32and 51

European Communities(Capital Adequacy ofInvestment Firms)Regulations 2006Number: SI 660/2006Contents note: Give effect todirective 2006/49/EC on thecapital adequacy of investmentfirms and credit institutions(recast).Commencement date: 1/1/2007

European Communities(Energy Performance ofBuildings) Regulations 2006Number: SI 666/2006Contents note: Give effect toarticles 5 and 7 of the EC ener-gy performance of buildingsdirective (2002/91/EC). Requirethe designers of large buildings(total useful floor area of morethan 1,000 m2) to consider, dur-ing the design stage, the instal-lation of alternative/renewableenergy systems. This require-ment will apply to large build-ings for which planning permis-sion is applied for on or after1/1/2007. Also require thebuilding energy rating of newdwellings, new non-domesticbuildings and existing buildingsby certain dates.Commencement date: 1/1/2007, save where otherwisespecified in the regulations

European Communities(Enforcement of CommunityJudgments on Trade Marksand Designs) Regulations2006Number: SI 646/2006Contents note: Provides forthe enforcement by the HighCourt of community judgmentson trademarks and designsmade by the community trade-mark and industrial design reg-istration office (OHIM).Commencement date: 14/12/2006

European Communities(Environmental ImpactAssessment) (Amendment)Regulations 2006Number: SI 659/2006

Contents note: Give effect toprovisions of directive 2003/35/EC amending the environmen-tal impact assessment (EIA)directive 85/337/EEC regard-ing public participation in theassessment of the effects of proj-ects having transboundary envi-ronmental impact.Commencement date: 19/12/2006

European Communities(European Public Limited-Liability Company) (EmployeeInvolvement) Regulations2006Number: SI 623/2006Contents note: Give effect todirective 2001/86/EC supple-menting the statute for aEuropean company with regardto the involvement of employ-ees. Provide that a newEuropean company (known as aSocietas Europea) cannot beregistered without first negoti-ating with employees on theirinvolvement in the company,whether through informationand consultation and/or, in cer-tain circumstances, participa-tion at board level.Commencement date: 14/12/2006

European Communities (FreeMovement of Persons) (No 2)Regulations 2006Number: SI 656/2006Contents note: Give effect todirective 2004/38/EC on therights of citizens of theEuropean Union and their fam-ily members to move and residefreely within the territory of themember states. Replace theEuropean Communities (FreeMovement of Persons) Regulations2006 (SI 226/2006) consequentto the accession of Bulgaria andRomania to the EU on1/1/2007.Commencement: 1/1/2007

European Communities(Value-Added Tax)Regulations 2006Number: SI 663/2006Contents note: Give effect to

directive 2006/112/EC anddirective 2006/98/EC. Directive2006/112/EC replaces the sixthVAT directive. These regula-tions provide for the updating ofthe references to the SixthDirective in the Value-Added TaxAct 1972. Directive 2006/98/ECadapts certain directives in thefield of taxation by reason of theaccession of Bulgaria and Rom-ania. These regulations amendthe application of transnationalVAT measures to goods in tran-sit between the two new acces-sion countries and Ireland.Commencement date: 1/1/2007

Finance Act 1999(Commencement ofSubstituted Section 98A)Order 2006Number: SI 581/2006Contents note: Appoints23/11/2006 as the commence-ment date for section 98A (con-ditions that the RevenueCommissioners may impose forrelief from mineral-oil tax onbiofuel used in approved proj-ects) of the Finance Act 1999, assubstituted by section 81 of theFinance Act 2006.

Health Act 2004(Commencement) Order2006Number: SI 651/2006Contents note: Appoints 1/1/2007 as the commencementdate for part 9 (ss45 to 55 com-plaints) of the Health Act 2004.

Health Act 2004(Complaints) Regulations2006Number: SI 652/2006Contents note: Made underpart 9 of the Health Act 2004,provide for complaints by per-sons to the Health ServiceExecutive and service providersand require the establishmentand operation of proceduresand arrangements intended toachieve a fair and reasonableresolution of such complaints.Commencement date: 1/1/2007

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National Minimum Wage Act2000 (National MinimumHourly Rate of Pay) Order2006Number: SI 667/2006Contents note: Sets thenational minimum hourly rateof pay from 1/1/2007 at €8.30,and from 1/7/2007 at €8.65.

Planning and DevelopmentRegulations 2006Number: SI 685/2006Contents note: Amend thePlanning and DevelopmentRegulations 2001 (SI 600/2001)and provide for the implemen-tation of the Planning andDevelopment (StrategicInfrastructure) Act 2006.Commencement date: 21/12/2006, 31/1/2007 and 31/3/2007for various regulations – see SI

Planning and Development(Strategic Infrastructure) Act2006 (Commencement) (No3) Order 2006Number: SI 684/2006Contents note: Appoints 31/1/2007 as the commencementdate for ss3, 4, 5, 6(b), (c) and

(d), 12, 17 to 20, 22, 23, 25, 27,29, 30, 32, 33 to 42, 47, 49, 50and 51. These sections relate to

the establishment of a strategicinfrastructure division within AnBord Pleanála and the provision

for a strategic consent processfor certain types of strategicinfrastructure development.

Sea Pollution (MiscellaneousProvisions) Act 2006(Commencement) Order2006Number: SI 605/2006Contents note: Appoints8/12/2006 as the commence-ment date for part 1, part 3(other than sections 20 to 33,the second, third and fourthdefinitions in section 34(c), andsection 35) and part 4; appoints14/6/2007 as the commence-ment date for sections 20 to 33,the second, third and fourthdefinitions in section 34(c) andsection 35.

Transfer of Execution ofSentences Act 2005 (Com-mencement Order) 2006Number: SI 647/2006Contents note: Appoints 1/2/2007 as the commencement datefor all sections of the act.

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Rules of the Superior Courts (Evidence) 2007Number: SI 13/2007Contents note: Substitute, for rule 5, new rules 5 and 5A in order 39of the Rules of the Superior Courts (SI 15/1986) to provide for theoperation of council regulation (EC) 1206/2001 on co-operationbetween the courts of the member states in the taking of evidencein civil or commercial matters.Commencement date: 13/2/2007

Rules of the Superior Courts (Mental Health Act 2001) 2006Number: SI 597/2006Contents note: Insert a new order 137, ‘Mental Health Act 2001’, inthe Rules of the Superior Courts (SI 15/1986) to prescribe proce-dures for applications and appeals under section 73 of the MentalHealth Act 2001.Commencement date: 3/1/2007

Rules of the Superior Courts (Statutory Applications and Appeals)2007Number: SI 14/2007Contents note: Amend the Rules of the Superior Courts 1986 (SI15/1986) as follows: by the insertion of a new rule 2A in order 12;by the insertion of a new rule 2A in order 13; and by the insertion ofa new order 84B, ‘Procedure in statutory applications’, and a neworder 84C, ‘Procedure in statutory appeals’, in order to prescribe pro-cedures for statutory applications and appeals.Commencement date: 13/2/2007

■ €45 for one hour if payment on the

spot and used before 4pm

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(if greater than 1 hour, €45 per hour)

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From 1 January 2007, the Four Courts

consultation room will be a broadband

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No laptop? Simply use the internet

kiosks in the Four Courts consultation

room office.

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Solicitors Disciplinary TribunalThese reports of the outcome of Solicitors Disciplinary Tribunal inquiries are published by the Law Societyof Ireland as provided for in section 23 (as amended by section 17 of the Solicitors (Amendment) Act2002) of the Solicitors (Amendment) Act 1994

The High Court 2006No 15 SAFriday 31 March 2006Before the President

In the matter of John Martin Carr, solicitor.In the matter of the Solicitors Acts 1954-2002.Law Society of Ireland(applicant)John Martin Carr(respondent solicitor)

On Friday 31 March 2006, by consent, it wasordered pursuant to section 10A(1) of theSolicitors (Amendment) Act 1994, as amend-ed by section 13 of the Solicitors(Amendment) Act 2002:1) That the respondent solicitor do respond

appropriately in a timely manner to the cor-respondence from the Society in relation tothe complaint of an individual, the subjectmatter of a complaint to the Society dated18 March 2005, and to furnish to the

Society any files, papers or documents in hispossession in conjunction with this matter;

2) That the respondent solicitor do attend ameeting to be convened by the Society atwhich the complaint of the named individ-ual will be considered.

And the court awarded the applicant, the LawSociety of Ireland, their costs of the motionand order herein as against the respondentsolicitor when taxed and ascertained.

In the matter of SeanGrennan, a solicitor of SeanGrennan & Company, Solic-itors, 32 North Main Street,Naas, Co Kildare, and in thematter of the Solicitors Acts1954-2002 [3381/DT18/06]Law Society of Ireland(applicant)Sean Grennan(respondent solicitor)

On 28 September 2006, theSolicitors Disciplinary Tribunalfound the respondent solicitorguilty of misconduct in his prac-tice as a solicitor in that he had:a) Failed to ensure there was

furnished to the Society anaccountant’s report for theyear ended 31 January 2005within six months of thatdate, in breach of regulation21(1) of the Solicitors’ AccountsRegulations, SI no 421 of2001;

b) Through his conduct, show-ed disregard for his statutoryobligations to comply withthe Solicitors’ Accounts Regula-tions and showed disregard forthe Society’s statutory obliga-tion to monitor compliancewith the Solicitors’ AccountsRegulations for the protectionof clients and the public.

The tribunal ordered that therespondent solicitor:a) Do stand censured,b) Pay a sum of €500 to the

compensation fund,c) Pay the whole of the costs of

the Law Society of Ireland, astaxed by a taxing master ofthe High Court in default ofagreement.

In the matter of James PO’Neill, a solicitor of Lindos,Mount Venus Road, Rath-farnham, Dublin 14, and inthe matter of the SolicitorsActs 1954-2002 [2586/DT79/05]Law Society of Ireland(applicant)James P O’Neill(respondent solicitor)

On 3 October 2006, theSolicitors Disciplinary Tribunalfound the respondent solicitorguilty of misconduct as a solici-tor in that he is in breach of theprovisions of the ProfessionalIndemnity Insurance Regulationsand, in particular, the provisionof statutory instrument number312 of 1995, as amended bystatutory instrument number362 of 1999, having failed toobtain run-off cover for the year

2005 in accordance with therequirements of those regula-tions.

The tribunal ordered thatthe respondent solicitor dostand censured.

In the matter of John WSynnott, a solicitor carryingon practice under the styleand title of John Synnott &Company, Solicitors, at DameHouse, 24 Dame Street,Dublin 2, and in the matter ofthe Solicitors Acts 1954-2002[3035/DT40/06] Law Society of Ireland(applicant)John W Synnott(respondent solicitor)

On 3 October 2006, theSolicitors Disciplinary Tribunalfound the respondent solicitorguilty of misconduct in his prac-tice as a solicitor in that he wasin breach of the provisions ofsection 68(2) of the 1994Solicitors (Amendment) Act,which states that a solicitor shallnot act for a client in connectionwith any contentious businesson the basis of calculatingcharges on a percentage basis.In the circumstances of thiscase, the solicitor acknowledged

and agreed that he had deduct-ed charges from a client’s settle-ment (for personal injuries aris-ing out of a road traffic acci-dent) on the basis of a 10%solicitor/client fee.

The tribunal ordered thatthe respondent solicitor:a) Do stand censured,b) Pay a sum of €2,000 to the


the Law Society of Ireland, astaxed by a taxing master ofthe High Court in default ofagreement.

In the matter of Anthony MMurphy, a solicitor practisingas Anthony M Murphy, solic-itor, 2 The Green, StraffanWood, Straffan Road,Maynooth, Co Kildare, previ-ously at 10 Old Quarry,Dalkey, Co Dublin, and in thematter of the Solicitors Acts1954-2002 [4012/DT63/05]Law Society of Ireland(applicant)Anthony M Murphy(respondent solicitor)

On 17 October 2006, theSolicitors Disciplinary Tribunalfound the respondent solicitorguilty of misconduct in his prac-

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tice as a solicitor in that he:a) Failed to file his accountant’s

report for the year ended 30June 2004 in a timely manneror at all, in breach of regula-tion 21(1) of the Solicitors’Accounts Regulations 2001 (SInumber 421 of 2001);

b) The solicitor, through hisconduct, showed disregardfor his statutory obligationsto comply with the regula-tions and showed disregardfor the Society’s statutoryobligation to monitor com-pliance with the Solicitors’Accounts Regulations for theprotection of the clients andthe public.

The tribunal ordered that therespondent solicitor:a) Do stand censured,b) Pay a sum of €2,000 to the


the Law Society of Ireland orany person appearing before

them, as taxed by a taxingmaster of the High Court indefault of agreement.

In the matter of MichaelCrawford, a solicitor practis-ing as Michael Crawford &Company at Manorhamilton,Co Leitrim, and in the matterof the Solicitors Acts 1954-2002 [5022/DT10/06] Law Society of Ireland(applicant)Michael Crawford(respondent solicitor)

On 24 October 2006, theSolicitors Disciplinary Tribunalfound the respondent solicitorguilty of misconduct in his prac-tice as a solicitor in that hefailed to respond to the corre-spondence of the Society, and inparticular the letters dated 4 May 2005, 19 May 2005, 1 June 2005, 22 June 2005, 6 July 2005, 19 July 2005, 29 July 2005, 15 August 2005, in

a timely manner or at all.The tribunal ordered that

the respondent solicitor dostand admonished and advised.

The tribunal made no orderas to costs.

In the matter of FrancisMcArdle, a solicitor practis-ing as McArdle & Associatesat 10 Roden Place, Dundalk,Co Louth, and in the matterof the Solicitors Acts 1954-2002 [2472/DT41/06]Law Society of Ireland(applicant)Francis McArdle(respondent solicitor)

On 24 October 2006, theSolicitors Disciplinary Tribunalfound the respondent solicitorguilty of misconduct in his prac-tice as a solicitor in that he:a) Failed to ensure that there

was furnished to the Societyan accountant’s report for theyear ended 31 December

2004 within six months ofthat date, in breach of regula-tion 21(1) of the Solicitors’Accounts Regulations 2001,statutory instrument no 421of 2001;

b) Through his conduct,showed disregard for hisstatutory obligations to com-ply with the Solicitors’Accounts Regulations andshowed disregard for theSociety’s statutory obligationto monitor compliance withthe Solicitors’ AccountsRegulations for the protectionof clients and the public.

The tribunal ordered that therespondent solicitor:a) Do stand censured,b) Pay a sum of €2,500 to the


the Law Society of Ireland, astaxed by a taxing master ofthe High Court in default ofagreement. G

NOTES

1. Persons wishing to attend must apply through the SYS.

2. Accommodation is limited and will be allocated on first-come, first-served basis, in

accordance with the procedure set out below.

3. Conference fee is €300 pps for two nights accommodation (with breakfast), recep-

tion, gala dinner and conference materials.

4. One application must be submitted per room per envelope together with cheque(s)

for the conference fee. All applications must be sent by ordinary prepaid post and

only applications exhibiting a postmark dated FRIDAY 16 FEBRUARY 2007 or after

will be considered. Rejected applications will be returned. Successful applications will

be confirmed by email.

5. Names of delegates to whom the cheque(s) apply must be written on the back of the

cheque(s).

6. Cancellations must be notified to [email protected] on or before Friday 9

March 2007. Cancellations after that date will not qualify for a refund.

7. There are a limited number of twin rooms and/or double rooms. Please tick one of

the following options for your preferred accommodation (the SYS cannot guarantee

that delegates will be allocated their preferred choice). If nothing below is indicated,

rooms will be allocated at the committee’s discretion.

Twin room:________________ Double room:________________

SOCIETY OF YOUNG SOLICITORS IRELAND

SPRING CONFERENCE 200723, 24, 25 MARCH 2007 AT THE SLIEVE DONARD HOTEL, NEWCASTLE, COUNTY DOWN

Friday 23 March

18.00-21.30: Registration

21.00-late: Welcome drinks in the bar

Saturday 24 March

10.00-12.00: Lectures*

14:00: Golf, health centre, spa treatments**

19.00-20.00: Pre-dinner drinks reception

20.00-late: Black-tie gala dinner, band

Sunday 25 March

12.00: Check out

*Time spent attending the above lectures may be counted when assessing the completion of your CPD requirements

**Remember to book your spa treatments well in advance

FULL DETAILS OF THE SPEAKERS AND TOPICS TO BE COVERED WILL BE AVAILABLE ON THE SYS WEBSITE

*www.sys.ie

APPLICATION FORMPLEASE USE BLOCK CAPITALS. ONE FORM PER ROOM PER ENVELOPE.

Name 1: Name 2:

Firm 1: Firm 2:

Email: Email:

One contact address:

Phone (office): Phone (mobile):

I enclose cheque(s) payable to the Society of Young Solicitors in the sum of €600.

Application to be sent to: Elizabeth Bradley, Society of Young Solicitors, A & L Goodbody, North Wall Quay, IFSC, Dublin 1.

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News from Ireland’s online legal awareness serviceCompiled by Flore Bouhey for FirstLaw

firstlaw update

AppealCriminal procedure – habeascorpus – return – Supreme Courtappeal – warrant – whether neces-sary for governor of prison to be incourt – article 40.4.2 of theConstitution.The applicant successfullyapplied for relief pursuant toarticle 40.4.2 of theConstitution and the decisionwas appealed to the SupremeCourt and was dismissed.However, the Supreme Courtremitted to the High Courtmatters relating to the return onbehalf of the governor and thetime since the applicant was lastplaced in custody. The applicantcontended that he had beendeprived of sight of the returnand the opportunity to makemeaningful observations. Anewly authenticated copy of thewarrant for the detention of theapplicant was also challenged.The applicant had been placedin custody in 2003.

MacMenamin J held that thewarrant had merely been sub-ject to technical rectification.The governor of a prison wasnot required to attend in court.There had been no majordeparture from the rules ofnatural justice here. Ward (plaintiff) v Governor ofPortlaoise Prison (defendant),High Court, Mr JusticeMacMenamin, 31/7/20062006 [FL13088]

DelayPractice and procedure – sexualabuse – civil proceedings – test tobe applied – burden of proof onapplicant – prejudice – whetherdelay excusable – Statute ofLimitations (Amendment) Act2000.

The second, third, fourthand fifth-named defendantssought to dismiss the plaintiff’sclaim for personal injuries for,among other things, sexualabuse against the state on thegrounds of inordinate andinexcusable delay. The defen-dants contended that the plain-tiff did not benefit from theprovisions of the Statute ofLimitations (Amendment) Act2000 and had not appropriatelyexplained the delay in prosecu-tion.

Quirke J dismissed theplaintiff’s case, holding that thedeath of many relevant wit-nesses and the absence of docu-mentation entailed that thecapacity of the state to defenditself had been seriously preju-diced. A real and substantialrisk of an unfair trial wouldresult otherwise.O’Dwyer v McDonnell, HighCourt, Mr Justice Quirke,2/10/2006 [FL12980]

Drink driving Evidence – validity of opinion ofarresting garda – whether direc-tion by gardaí to commit illegal actaffects validity of evidence or pros-ecution – garda forming opinionthat accused intoxicated to suchextent that incapable of driving –garda subsequently directingdefendant to drive car to side ofroad – whether amounting todirection to commit illegal act –whether vitiating arrest.The accused was stopped by amember of the gardaí andinformed that he had formedthe opinion that the accusedhad committed an offence con-trary to s49 of the Road TrafficAct 1961, as amended. Thearresting garda then directedthe accused to drive his car tothe side of the road and stop,

whence he was arrested. At theconclusion of the evidence inthe District Court, the accusedapplied for a direction that hebe acquitted on the groundsthat his arrest had been unlaw-ful by reason of the fact that thearresting garda, having pur-portedly formed the opinionthat the accused had commit-ted an offence contrary to s49of the 1961 act, as amended,then required him to drive hiscar in circumstances thatdeprived him of his liberty andthat the requirement was oneto commit a criminal offence.It was also contended that theillegality associated with thearrest tainted the evidenceobtained thereafter. The dis-trict judge refused the applica-tion, but agreed to state a caseto the High Court as to (a)whether the arrest of theaccused was lawful in circum-stances where the arrestinggarda, having stated that he hadformed the opinion that theaccused had committed anoffence contrary to s49 of the1961 act, then required theaccused to continue driving;and (b), in the alternative,whether the requirement thatthe accused continue drivingsufficed to vitiate the garda’sopinion that the defendant hadcommitted an offence contraryto s49.

Ms Justice Dunne answeredthe first question in the affir-mative and the second in thenegative, holding that:1) The fact that a garda has

requested one to do an ille-gal act did not, of itself,amount to authority to anindividual to do that illegalact;

2) As there was no causativelink between the act com-

plained of and the obtainingof evidence, the defendanthad not been prejudicedthereby;

3) In the circumstances wherethere was a finding of factthat the garda had formedthe necessary opinion, itcould not be vitiated by sub-sequent events.

DPP v Penny, High Court,Judge Dunne, 27/7/2006[FL13013]

Time limitedCase stated – whether summonsesissued outside time limited – PettySessions (Ireland) Act 1851,s10(4) – Courts (No 3) Act1986, s1(7)(a).This was a case stated on theapplication of the DPP, seekingthe opinion of the High Courtas to whether the district judgewas correct in law in strikingout certain summonses on theground that they had beenissued outside the time limitedby the provisions of s10(4) ofthe Petty Sessions (Ireland) Act1851 and s1(7)(a) of the Courts(No 3) Act 1986.

Quirke J answered the ques-tion asked by the district judgein the negative, holding thatthe summonses were lawfullyissued pursuant to the provi-sions of the 1986 act and thedistrict judge had jurisdictionto deal with them.DPP (prosecutor/appellant) vThomas (accused/respondent),High Court, Mr JusticeQuirke, 2/10/2006 [FL13024]

CustodyChildren – application for recog-nition and enforcement of resi-dence and contact order – ChildAbduction and Enforcement of

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CRIMINAL LAW

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Custody Orders Act 1991 –Luxembourg Convention, arti-cles 7, 10 and 11.

The applicant sought anorder pursuant to article 7 ofthe European Convention onRecognition and Enforcement ofDecisions Concerning Custody ofChildren and on Restoration ofCustody of Children (theLuxembourg Convention), asimplemented in this jurisdic-tion by the Child Abduction andEnforcement of Custody OrdersAct 1991, for the recognitionand enforcement of the resi-dence and contact order madein the Oxford County Court on22 July 2004.

Finlay Geoghegan J madean order under article 7 of theLuxembourg Convention, hold-ing that the respondent hadfailed to establish a ground forrefusal under article 10 of theLuxembourg Convention. R(RGH) (applicant) v G(LM)(respondent), High Court,Miss Justice Finlay Geogh-egan, 19/7/2006 [FL13050]

Judicial separation Challenge to constitutionality ofs5(1)(a) of Family Law(Maintenance of Spouses andChildren) Act 1976 and s5 andss12 to 21 inclusive of Family Law(Divorce) Act 1996 – order ofcertiorari quashing all the ordersmade in matrimonial proceedingsinsofar as they impinge on constitu-tional property rights – challenge toconstitutionality of s2(1)(f) and

s3(1) of the Judicial Separationand Family Law Reform Act1989 – Constitution of Ireland,article 43.The plaintiff sought to impugnthe constitutionality of s5(1)(a)of the Family Law (Maintenanceof Spouses and Children) Act1976 and sought a declarationthat s5 and ss12 to 21 (inclu-sive) of the Family Law(Divorce) Act 1996 were repug-nant to the Constitution. Theplaintiff also sought an order ofcertiorari quashing all theorders made in the matrimoni-al proceedings between himselfand his wife, insofar as theyimpinged on his constitutionalproperty rights. In a second setof proceedings, the plaintiffsought similar declarationswith regard to s2(1)(f) and s3(1)of the Judicial Separation andFamily Law Reform Act 1989.The proceedings were consoli-dated.

McMenamin J declined therelief sought, holding that, notonly were the provisions of the1996 act of not unconstitution-al, but they were in fact man-dated by the Constitutionitself. The provisions of the1996 act with regard to finan-cial relief were in harmonywith the terms of the relief thatmight be granted by the courtunder the 1989 act.B(L) (plaintiff) v Ireland(defendant), High Court, MrJustice MacMenamin, 7/7/2006 [FL13038]

Solicitor’s undertakingCompensation – mortgages –whether the plaintiff was entitled tobe compensated for the defendantsolicitor’s failure to fulfil an under-taking made by him in relation to aresidential mortgage.The defendant acted as thesolicitor for a borrower in thepurchase of a certain propertyand in the mortgage thereof tothe bank as security for a loanfrom the bank to the borrower.In pursuance of his role as solic-itor for the borrower, the defen-dant gave an undertaking to thebank, essentially promising tofurnish the bank with good secu-rity on the mortgaged propertyin accordance with the terms ofthe offer letter, which wasaccepted by the borrower. Thedefendant accepted that he wasin breach of the undertaking, inthat he failed to perfect the bor-rower’s title or the bank’s securi-ty. By virtue of the borrower’sdefault in meeting the install-ment repayments to the bank,the bank instituted proceedingsby way of special summons seek-ing, amongst other reliefs, com-pensation for loss suffered as aresult of the defendant’s actionsin releasing the sum of€250,500 in contravention ofthe undertaking and without theauthority of the bank. Theplaintiff did not seek to recoverthe debt from the borrower.

Laffoy J dismissed the plain-tiff’s claim, holding that theplaintiff’s claim for compensa-tion by way of repayment of thesum of €250,500 together withinterest as a means of enforcingthe undertaking was miscon-ceived. It was reasonable toinfer from the evidence that thedefendant did not comply withthe undertaking. However, itwas still possible for the defen-dant to fulfil the overall purposeof the undertaking and his ulti-mate obligation, and if that obli-gation was carried out, therewould be no relief that the courtcould give to the plaintiff in theexercise of its inherent jurisdic-tion. Furthermore, the reliefsought by the plaintiff was notcommensurate with compensat-ing the plaintiff for the loss itsuffered as a result of the defen-dan’s failure to implement hisobligation pursuant to theundertaking. Bank of Ireland MortgageBank (plaintiff) v Coleman(defendant), High Court, MsJustice Laffoy, 6/11/2006[FL13130]

The information contained here is taken from FirstLaw’s LegalCurrent Awareness Service, published every day on the internetat www.firstlaw.ie. For more information, contact [email protected] or FirstLaw, Merchant’sCourt, Merchant’s Quay, Dublin 8,tel: 01 679 0370, fax: 01 6790057.

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eurlegal

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

Competition Authority v BIDS[2006] IEHC 294On 27 July 2006, the High

Court rejected aCompetition Authority chal-lenge against proposals torationalise the beef-processingindustry. The action was takenagainst the Beef IndustryDevelopment Society (BIDS),an industry grouping estab-lished for the specific purposeof rationalising the industry,and Barry Brothers MeatsLimited, which had enteredinto an agreement with BIDS.The second-named defen-dant, a member of BIDS, tookno active part in the proceed-ings. The authority’s case wasbased on its belief that therationalisation scheme wouldresult in anti-competitiveeffects, including increasedbeef prices to consumers.

As this judgment was hand-ed down by McKechnie J, thejudge in charge of the HighCourt Competition List, it isinstructive as to the level ofeconomic analysis required bythe High Court to prove abreach of competition rules.In this case, McKechnie J wasscathing in his opinion ofmuch of the economic evi-dence advanced by the experteconomists on both sides,referring to outdated evi-dence, mistaken beliefs andinsufficient analysis.

BackgroundIn 1997, Enterprise Irelandcommissioned a report intothe Irish beef sector. The finalreport, entitled Preparing theIrish Beef Sector for the 21st

Century, was published in

1998 and became know as theMcKinsey Report. It recom-mended a radical rationalisa-tion of the beef-processingindustry, noting that proces-sors faced catastrophic out-comes over the medium termas a result of huge overcapaci-ty in the industry.

The subsequent Report ofthe Food Industry DevelopmentGroup, published in 1999,referred to the McKinsey Reportfindings of overcapacity in thebeef-processing industry. Inaddition, the 1999 Report of theBeef Task Force expresslyaccepted the findings of theMcKinsey Report and foundthat “there is at present under-used slaughtering capacity inthe beef industry and thatthere are considerable benefitsto be gained from a rationali-sation process”.

The BIDS proposalsBIDS was established in May2002 for the specific purposeof implementing the recom-mendations of these reports.Following a series of meet-ings, the members arrived at aset of proposals for a rational-isation scheme.

Under the scheme, ‘goers’and ‘stayers’ would be identi-fied. ‘Goers’ were defined asBIDS members who wouldvoluntarily agree to exit thebeef industry under the pro-gramme and ‘stayers’ weredefined as BIDS memberswho would not exit the beefindustry under the pro-gramme. It was agreed thatthe scheme would be on a

once-off basis and would beimplemented over a 12-monthperiod with the aim of reduc-ing processing capacity by420,000 cattle per year(approximately 25% of totalcapacity). Processors that leftthe industry would sign an exitagreement requiring them todecommission their plants forthe purposes of beef process-ing for a period of five yearsand would agree not to re-enter the industry for a periodof two years.

It was further agreed thatthose remaining in the indus-try would compensate thegoers by way of levies. Theproposed levy scheme wouldrequire a payment by stayersof £2 per head of cattle up tothe level of the individualprocessor’s traditional kill and£11 per head for cattle killedin excess of the traditional kill.

From the outset, the mem-bers of BIDS were aware thatthe rationalisation schemecould raise competition con-cerns. They met with theauthority shortly after BIDS’establishment to ascertain itsviews on the rationalisationscheme and to seek theauthority’s approval for theproposals. However, in view ofimpending legislative changes,the authority took the viewthat economic operators, suchas BIDS, would have to self-assess such agreements.(Under the Competition Act1991, the authority couldengage with parties in relationto proposed agreements anddecisions and give clearance

by way of certification (nobreach of competition rules)or licence (efficiency condi-tions satisfied). However thiswas abolished under the 2002act, which came into force on1 July 2002.)

The authority subsequentlyinvestigated the proposals andissued proceedings againstBIDS in June 2003. Theauthority sought a declarationthat the proposals were pro-hibited and void by virtue ofsection 4 of the Competition Act2002 and article 81(1) of theEC Treaty. No injunction wassought because the partiesgave undertakings to theauthority to suspend imple-mentation of the proposalspending the outcome of theaction.

The court’s approachAlthough the authorityalleged that BIDS had acted inbreach of both section 4 of the2002 act and article 81 of theEC Treaty, McKechnie J statedearly in his judgment that, inhis view, “this case is truly anarticle 81 case and not onerequiring independent consid-eration under s4 of the 2002act”.

Article 81(1) of the ECTreaty prohibits agreementsbetween undertakings, deci-sions by associations of under-takings and concerted practicesthat may affect trade betweenmember states and that areanti-competitive by object oreffect. Any agreement or deci-sion prohibited by article 81(1)is automatically void.

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Certain provisions, knownas ‘hardcore restrictions’,which include price fixing,output limitation or sharing ofmarket or customers, clearlyhave as their object the restric-tion of competition.Agreements containing suchprovisions are presumed tohave negative effects on themarket and therefore it is notnecessary analyse their actualeffects on competition in therelevant market in order toestablish a breach.

However, many coopera-tion agreements betweenundertakings do not have astheir object the restriction ofcompetition. Therefore, it isnecessary to conduct adetailed economic analysis toestablish whether the agree-ment has a restrictive effect oncompetition. To discharge theburden of proof under article81(1), the effects analysis mustshow that the agreement islikely to produce negativemarket effects as to prices,output, innovation or the vari-ety or quality of goods andservices.

Article 81(3) provides anescape clause for agreementsthat would otherwise be pro-hibited by article 81(1). If anagreement meets the four cri-teria set out in article 81(3),then article 81(1) will bedeemed inapplicable to it.Specifically, the economicbenefits of the agreement mustoutweigh its restrictive effectson competition; the economicbenefits or cost savings mustfavour the consumer; theagreement must not containany dispensable restrictions;and it must not substantiallyeliminate competition. Thefinal criterion requires ananalysis of the sources of com-petition in the market and theimpact of the agreement onany competitive constraint.

The onus of proof inrespect of a breach of article81(1) is on the party allegingsuch a breach, in this case the

authority, while the onus ofproof in respect of article81(3) is on the party seeking toavail of it, in this instanceBIDS. This principle was ofparticular importance here, asthe outcome of the caseturned on the failure of theauthority to discharge its bur-den of proof.

In his judgment,McKechnie J made it clearthat he considered the activi-ties of BIDS to be “theantithesis of how cartels usual-ly operate”. In particular, hesaid that, from the beginning,BIDS had behaved with open-ness and transparency in thedisclosure of the rationalisa-tion scheme and noted thatthe rules of BIDS specificallystated that it would be neces-sary to comply with competi-tion legislation.

Although not criticising theauthority for taking the viewthat BIDS should self-assessthe rationalisation agreement,McKechnie J did questionwhether the action would havecome before the court if “amore fulfilling engagementwas possible” between the par-ties, particularly in light of theconduct of BIDS.

Relevant marketThe court found that the rele-vant product market wasdivided into the upstreammarket for the procurement ofcattle for slaughter and de-boning and the downstreammarket for the sale ofprocessed beef. The relevantgeographic market was foundto be national in both cases.

The court was critical ofthe BIDS economist, who, onday six of the hearing, intro-duced a new argument thatthe downstream market oughtto be considered pan-European. The court rejectedthis contention on the basisthat it was “advanced withoutany sustainable support fromany reliable source”. In sup-port of his finding of a nation-

al market for processed beef,the judge cited the wide varia-tion in price throughoutEurope and the domestic pref-erence for home-producedbeef. He also noted that thefact that beef can be tradedquite easily in the EU was notcounter-indicative of nationalmarkets. It is interesting tonote that the court relied inpart on the “credible evi-dence” adduced by non-eco-nomic witnesses who had beeninvolved in the beef industryfor many years.

Competition Authority allegationsThe authority’s case rested onthree features of the rationali-sation scheme that it found tobe objectionable:• The reduction in process-

ing capacity, • The imposition of levies,

and • The restrictive covenants in

exit agreements.

The court had to considerwhether these features wererestrictive of competition byeither object or effect. It isworth noting that the courtappointed its own experteconomist in this case – as per-mitted by order 63A, rule23(1), Rules of the SuperiorCourts – and, accordingly, wasin a strong position to assessthe economic evidence pre-sented by the parties.

Restriction by object As regards restriction byobject, the court’s assessmentwas brief. McKechnie J notedthat there was no question inthe BIDS minutes, or indeedthe proposals, of price fixingor market sharing. He furthernoted that he could not findthat a reduction per se incapacity constituted a limita-tion of output. Taking intoaccount relevant findings ofthe commission, includingSynthetic Fibres (OJ 1984L207/17) and Dutch Bricks (OJ

1994 L131/15), the court con-cluded that the proposals didnot restrict competition byobject.

Restriction by effect The court turned then to adetailed analysis of the sub-missions in support of theproposition that the objec-tionable features were restric-tive of competition by effect.

It was in this regard thatMcKechnie J was most criticalof the economic evidence putbefore him. Perhaps this isbest summed up at paragraph103 of the judgment, where hestates, as a general commentin relation to the evidence oncapacity, that “it would not beunfair to point out that in thisparticular regard the evidenceof both economists lackedsolid foundation”. He went onto note that “both sides relieda good deal on theoretical andqualitative arguments withoutbeing in a position to advancequantitative evidence in sup-port of their respective posi-tions”. McKechnie J suggest-ed that this could be explainedby the fact that “a great deal ofthe evidence given on thispoint, and indeed on theentirety of the case, was basedon data which largely ended in1997”.

The authority claimed thatthe planned reduction incapacity would cause capacityshortage in the peak demandmonths. However, as noted bythe court, the evidence pre-sented by the authority waspartially based on the mistak-en belief that a particular pay-ment to farmers (the desea-sonalisation premium) wasstill in existence, when in factit had been discontinued. Incontrast, the BIDS economistsubmitted that 75% of theexisting capacity should besufficient to serve peakdemand. However, the courtnoted that this allegation wasnot supported by updatedquantitative evidence. The

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judge’s frustration with theeconomic analysis presentedto him on this point wasreflected in his terse commentthat “despite the obvious limi-tations” caused by outdatedevidence, it was neverthelessnecessary that he determinethe issue.

In analysing the issue, thecourt noted that, for capacityto matter in the context ofrestriction of competition byeffect, it would need to have amoderating effect on prices.In particular, a shortage ofcapacity would need to have anegative impact on prices.The court relied in particularon the evidence of a witnesswho appeared on behalf ofBIDS, who was not an econo-mist but had been involved inthe industry for 30 years. Thisindividual supported the viewthat the remaining capacitywould be sufficient to meetexisting and future demand.He pointed to the fact that,unlike normal practice inmany other member states,not one factory operates afive-day week 52 weeks peryear, the typical working weekbeing three to four days perweek, with no shift work beingused.

Ultimately, the court foundthat the evidence presented bythe authority’s economist wasnot sufficiently conclusive todemonstrate with a reasonabledegree of probability that therationalisation scheme wouldresult in a capacity shortageand did not satisfy the courtthat market prices would beappreciably affected.

The court then turned toan analysis of the levies. The

authority claimed that theimposition of levies wouldexert a significant negativepressure on prices, leading toprice rises in Ireland andBritain. However, the courtnoted that the authority’seconomist was unable to offerany evidence, even by way ofestimate, of the likely priceimpact of the levy and did notgive his opinion as to the like-ly output reduction that wouldbe caused as a result. Thecourt pointed to a number ofreasons why it considered anincrease in the marginal costsof processors remaining in theindustry might not lead to sig-nificant price increases in therelevant markets. The judgeconcluded that the authorityhad failed to establish that thelevy would have a restrictiveeffect on competition in therelevant markets.

The final feature to fall forconsideration by the court wasthe restrictive covenants in theexit agreements. The authori-ty claimed that these wouldresult in the removal of a ‘safety valve’ that would haveprevented the rationalisationscheme from resulting in pricerises. In particular, the author-ity’s economist claimed thatthe increased concentration inthe market would facilitatetacit collusion and that thoseremaining in the industrywould not be constrained bythe fear of re-entry by ‘goers’.

Again, the court rejectedthe economic evidenceadvanced by the authority,finding it insufficient to dis-charge to the burden of proof.The court noted that, whilethere was no doubt that the

rationalisation scheme wouldreduce the number of com-petitors, the question waswhether it would reduce com-petition. In considering thisquestion, the court noted sev-eral reasons why it believedcompetition would not bereduced, including that themarket is fragmented, thatthere are other avenues forentry beyond developing agreen field, and that the‘goers’ were not the only cred-ible market entrants. As aresult, the court held that theauthority had failed to demon-strate by credible evidencethat the objectionable featuresof the arrangements were like-ly, as a matter of probability, tohave appreciable anti-compet-itive effects. Therefore itsaction failed.

Article 81(3)Although a moot point, as theauthority had failed to estab-lish a breach of article 81(1),McKechnie J briefly reviewedthe arguments advanced byBIDS in respect of article81(3). Here too he found theeconomic evidence deficient.

The following is a summaryof the findings in respect ofeach element of the test:• Economic benefit: the

economist made no seriousattempt to identify thequantum of cost savings thatwould be generated by therationalisation scheme;

• Consumer welfare: withoutknowing the size of effi-ciency gains it is impossibleto evaluate whether theconsumer will receive a‘fair’ share of the benefit;

• Indispensability: it was

accepted that there wasmarket failure and that nat-ural competition would notbe sufficient to eliminateexcess capacity – thereforethis element of the test wassatisfied;

• Elimination of competi-tion: it was also acceptedthat the proposals wouldnot result in capacity short-age and therefore a suffi-cient level of competitionwould remain in the mar-ket.

Current positionThe authority announced inOctober 2006 that it intendsto appeal the findings ofMcKechnie J to the SupremeCourt. However, any appeal isunlikely to be heard until atleast late 2007. In the mean-time, the rationalisationscheme has not been imple-mented.

This judgment is essentialreading for any practitionerpreparing for competitionproceedings in the HighCourt. Without a doubt, up-to-date qualitative and quanti-tative economic evidence isrequired in order to dischargethe burden of proof in respectof both article 81(1) and arti-cle 81(3). This must be sup-ported by a credible economicanalysis of the likely anti-com-petitive effects on the relevantmarket. Finally, it seems clearthat the court requires eachparty to focus not just on dis-charging its own burden ofproof, but also on presentingstrong rebuttal evidence.

Sinéad Hayes is a solicitor withEugene F Collins.

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Get more a t lawsoc ie ty. ieGazette readers can access back issues of the magazine as far back as Jan/Feb 1997 right up to the current issue atlawsociety.ie. You can also check out: current news; forthcoming events; employment opportunities; the latest CPD courses, as well as lots of other useful information.

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The commission has adopted aframework decision proposing aEuropean supervision order inpre-trial procedures. This is a fol-low up to a Green Paper from2004. In the Green Paper, thecommission identified the prob-lems relating to pre-trial supervi-sion measures in Europe. Owingto the risk of suspects fleeingthe jurisdiction, non-residentsuspects are often remanded incustody while residents benefitfrom alternative measures, suchas reporting to the police or aprohibition on travel. This pro-posal aims to remedy this andsets up a procedure to allow anindividual to be subject to bailconditions in a member stateother than the member state ofthe criminal proceedings. Atransfer mechanism is to be putin place where the individualfails to adhere to the conditions.

Case C-459/03, Commission ofthe European Communities vIreland, 30 May 2006. A nuclearplant (the MOX plant) is locatedat Sellafield in England, on thecoast of the Irish Sea. It recy-cles material from nuclear reac-tors and converts it into a newfuel – mixed oxide fuel (MOX),which can be used as an energysource in a nuclear power sta-tion. Ireland raised the issue ofthe plant with Britain, question-ing the soundness of thereports and decisions thatformed the basis for justificationof the plant’s construction.Ireland brought proceedingsagainst Britain before the arbi-tral tribunal provided for underthe Law of the Sea Convention.Ireland claimed that radioactivesubstances had entered its ter-ritory and argued that harm hadbeen done to the marine envi-

ronment in the Irish Sea. TheEuropean Council had approvedthe convention on behalf of theEC by decision in 1998. Thecouncil declared that the ECenjoys exclusive competencewith regard to the conventionprovisions on the prevention ofmarine pollution only to theextent to which those provisionsaffect existing EC rules. Thecommission asked Ireland tosuspend its proceedings on thebasis that the dispute camewithin the exclusive competenceof the ECJ. Ireland did notaccede to that request and thecommission brought this action.The court held that the provi-sions of the convention thatBritain was accused of havingbreached relate to the “protec-tion and preservation of themarine environment”, an area inwhich the EC’s external compe-tence is not exclusive, but inprinciple, shared between it andthe member states. The matterscovered by the convention provi-sions that Ireland invoked are toa very large extent regulated byEC measures. There are direc-tives relating to the obligation tocarry out a proper assessmentof the environmental impact onthe marine environment, trans-fer of radioactive substancesand the freedom of access toinformation on the environment.Thus, the court found that it hadjurisdiction to deal with disputesrelating to the provision of theconvention relied on by Ireland.Ireland had also submittedinstruments of EC law to thearbitral tribunal for purposes oftheir interpretation and applica-tion seeking a declaration thatBritain had breached provisionsof these instruments. This is atvariance with EC Treaty obliga-tions imposed on memberstates to respect the exclusivenature of the court’s jurisdictionto resolve disputes concerningthe interpretation and applica-

tion of provision of EC law. Thereis a manifest risk that the juris-dictional order laid down in thetreaties, and consequently theautonomy of the EC legal sys-tem, may be adversely affected.Thus, Ireland failed to complywith its duty of cooperationunder the EC and EA treaties.

Case C-540/03, EuropeanParliament v Council of theEuropean Union, 27 June 2006.Directive 2003/86/EC on theright of family reunification wasadopted by the council inSeptember 2003. The directiveprovides that a non-memberstate national lawfully living inthe EC is in principle entitled tothe grant of authorisation by thehost member state allowinghis/her children to join him/herby way of family reunification.Member states are allowed incertain circumstances to applynational legislation derogatingfrom the rules that apply in prin-ciple. Where a child is aged over12 years and arrives independ-ently from the rest of his/herfamily, the member state may,before authorising entry andresidence, verify whetherhe/she meets an integrationcondition provided for by itsexisting legislation on the dateof implementation of the direc-tive. Member states mayrequire applications for familyreunification in respect of minorchildren to be submitted beforethe age of 15, as provided for bytheir existing legislation on thedate of implementation of thedirective. A member state mayrequire the sponsor to havestayed lawfully in its territory fora period not exceeding twoyears before having his/herfamily members join him/her. Amember state may provide for awaiting period of no more than

three years between submis-sion of the application for familyreunification and the issue of aresidence permit to the familymembers, where its legislationon the date of adoption of thedirective takes into account itsreception capacity. TheEuropean Parliament arguedthat these provisions were con-trary to fundamental rights – inparticular, the right to respectfor family life and the right tonon-discrimination. It brought anaction for annulment before theECJ. The court held that thepossibility for member states toverify whether a child aged 12,who arrives independently fromthe rest of his/her family, meetsan integration condition cannotbe regarded as running counterto the fundamental right torespect for family life, to theobligation to have regard to thebest interests of children or theprinciple of non-discriminationon grounds of age. The right torespect for family life within themeaning of the EuropeanConvention on Human Rights isamong the fundamental rightsprotected in EC law. TheConvention on the Rights of theChild and the EU’s Charter ofFundamental Rights also recog-nise the principle of respect forfamily life. These instrumentsstress the importance to a childof family life and recommendthat states have regard tochild’s interests. However, theydo not create for the membersof a family an individual right tobe allowed to enter the territoryof a state and cannot be inter-preted as denying memberstates a certain margin ofappreciation when they examineapplications for family reunifica-tion. The effect of the possibili-ty for member states to verifywhether a child aged 12, whoarrives independently from therest of his/her family, meets anintegration condition is to pre-

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serve a limited margin of dis-cretion for those states. This isno different to the marginaccorded to them by theEuropean Court of HumanRights (in its case law relatingto the right to respect for familylife) for weighing, in each factu-al situation, the competing inter-ests. Under the directive, themember state must, whenweighing those interests, havedue regard to the best interestsof minor children and to thenature and solidity of the familyrelationships of the person inquestion, the duration ofhis/her residence in the mem-ber state and the existence offamily, cultural and social tieswith his/her country of origin. Achild’s age and the fact that achild arrives independently fromhis/her family are also factorstaken into consideration by theEuropean Court of HumanRights. The choice of the age of12 did not amount to a criterionthat would infringe the principleof non-discrimination ongrounds of age. This criterioncorresponds to a stage in thelife of a minor child when the lat-ter has already lived for a rela-tively long period in a non-mem-ber state without the membersof his/her family, so that inte-gration in another environmentis liable to give rise to more dif-ficulties. The fact that a spouseand a child over 12 are nottreated in the same way cannotbe regarded as unjustified dis-crimination against the minorchild. The objective of marriageis long lasting married lifetogether, whereas a child overthe age of 12 will not necessar-ily remain for a long time withtheir parents. Similarly, the pos-sibility for member states toapply the conditions for familyreunification that are prescribedby the directive to applicationsin respect of children only if theyare submitted before the childhave reached the age of 15 can-not be regarded as running

counter to the right to respectfor family life, to the obligationto have regard to the best inter-ests of children or to the princi-ple of non-discrimination ongrounds of age. This provisioncannot be interpreted as pro-hibiting the member states fromtaking account of an applicationrelating to a child over 15 or asauthorising them not to do so.The provision has the effect ofauthorising a member state notto apply the general conditionsof the directive to applicationssubmitted by minor childrenover the age of 15. However,the member state is still obligedto examine the application inthe interests of the child andwith a view to promoting familylife. The court held that thepower of the member states todefer family reunification for twoor three years permits them toensure that family reunificationwill take place in favourable con-ditions, after the sponsor hasbeen residing in the host statefor a sufficiently long period forit to be assumed that the familymembers will settle down welland display a certain level ofintegration. The power does notrun counter to the right ofrespect for family life. In thiscontext, the reception capacityof the member state may beone of the factors taken intoaccount when considering anapplication. This cannot betreated as authorising anyquota system of a three-yearwaiting period imposed withoutregard to the particular circum-stances of specific cases.When considering applications,the member states must alsohave due regard to the bestinterests of minor children.

Case C-127/04, DeclanO’Byrne v Sanofi Pasteur MSDLtd, formerly Aventis PasteurMSD Ltd & Sanofi Pasteur SA,formerly Aventis Pasteur SA, 9

February 2006. In 1992, thechild plaintiff was vaccinatedwith a vaccine dose in Britain,following which he sufferedsevere injury. In 2000, hebrought an action againstAventis, claiming that the dam-age inflicted on him was causedby a defective vaccine producedby that company. AventisPasteur MSD is an English com-pany and a wholly owned sub-sidiary of Aventis Pasteur SA, aFrench company. Aventis Ltdacts as a distributor of AventisSA’s products in Britain. In2002, the plaintiff brought asecond action against AventisSA. He argued that it was notuntil 2002 that he becameaware that the producer of theproduct was the French parentrather than the English sub-sidiary. Aventis SA argued thatthe action against it was statutebarred, as it was commencedmore than ten years after theinjury was suffered. Article 11of directive 85/374 on liabilityfor defective products providesthat, after ten years from thedates on which the producer putinto circulation the actual prod-uct that caused the damage,the rights conferred on theinjured person are extinguished.The English High Court referredthe case to the ECJ. It askedwhether, where a product istransferred by a producer to adistribution subsidiary and soldby that subsidiary to a third per-son, the putting into circulationof the product occurs at thetime of the transfer of the prod-uct from the producer to thesubsidiary, or later, when thatproduct is transferred by thesubsidiary to the third person. Italso asked whether it is possi-ble to view such an action asbeing brought against the pro-ducer and to substitute the lat-ter, as defendant to the action,for the company against whichproceedings were initially taken.The ECJ noted that the directivedoes not define the concept of

‘put into circulation’. The provi-sion is of a neutral character, itsaim being to satisfy the require-ments of legal certainty andmust therefore be interpretedon the basis of objective criteria.A product must be consideredas having been put into circula-tion when it leaves the produc-tion process operated by theproducer and enters a market-ing process in the firm in whichit is offered to the public inorder to be used or consumed.However, where one of the enti-ties in the distribution chain isclosely connected to the produc-er, such as where it is a whollyowned subsidiary, it is neces-sary to establish whether it is aconsequence of that link thatthe entity is in reality involved inthe manufacturing process ofthe product concerned. Theexamination of such a closerelationship must not be influ-enced by the question ofwhether or not distinct legal per-sons are involved. The facts thatthe products were invoiced to asubsidiary company and that itpays a purchase price for it isnot conclusive. The sameapplies to the question of know-ing which entity is to be consid-ered as owner of the products. Itis for the national court toestablish, having regard to thecircumstances of each case,whether the links between theproducer and another entity areso close that the concept of pro-ducer also includes that latterentity and that the transfer ofthe product from one to theother of those entities does notamount to putting it into circula-tion. It is also for national law todetermine the conditions inaccordance with which the pro-ducer can be substituted asdefendant to the act, for thesubsidiary initially proceededagainst. The national courtmust ensure that due regard ishad to the scope of the term‘producer’ within the meaning ofthe directive. G

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Registration of Deeds and Title Acts1964 and 2006An application has been received fromthe registered owners mentioned in theschedule hereto for an order dispensingwith the land certificate issued inrespect of the lands specified in theschedule, which original land certificateis stated to have been lost or inadver-tently destroyed. The land certificatewill be dispensed with unless notifica-tion is received in the registry within 28days from the date of publication of thisnotice that the original certificate is inexistence and in the custody of someperson other than the registered owner.Any such notification should state thegrounds on which the certificate isbeing held.Property Registration Authority, Chancery Street, Dublin 7(Published 2 February 2007)

Regd owner: Sean Fennelly, AndrewRedmond, Luke Hickey (deceased),William O’Connor (deceased); folio:4782F; lands: Kildavin and barony ofSt Mullins Upper; Co Carlow

Regd owner: Kieran McGovern, BridgeStreet, Belturbet, Co Cavan; folio:11149; lands: Putiaghan Upper; area:7.9824 hectares; Co Cavan

Regd owner: Peter (otherwise PeterPaul) Smith and Marie Smith, Muff,Kingscourt, Co Cavan; folio: 597F;lands: Mull (Clankee By); area:1.0092 hectares; Co Cavan

Regd owner: Alphonsus Smith,Drumnagran, Tullyvine, Cootehill,Co Cavan; folio: 12659; lands:Nutfield; area: 10.1520 hectares; CoCavan

Regd owner: Henry Tully, Kilibandrick,Redhills, Co Cavan; folio: 13741;lands: Killyfana; area: 3.7686hectares; Co Cavan

Regd owner: John D Fitzsimons,Cartronfree, Kilcogy, Longford, CoLongford; folio: 97F; lands:Cartronfree; Co Cavan

Regd owner: Anthony Curtis and MaryCurtis; folio: 13402F; lands: townlandof Parkroe and barony of BunrattyLower; Co Clare

Regd owner: Kevin Dillon; folio: 8898;lands: townland of Knockmael Westand barony of Bunratty Upper; area:50.9474 hectares; Co Clare

Regd owner: John Duggan; folio: 18737;lands: townland of Clenagh andbarony of Bunratty Lower; Co Clare

Regd owner: Daniel Malone; folio:14182; lands: townland of (1)Cloonteen, (2) Ballyhee, and baronyof (1) and (2) Bunratty Upper; area:(1) 4.6538 hectares, (2) 10.4967hectares; Co Clare

Regd owner: Thomas Rynne; folio:23975; lands: townland of Ardanacraaand barony of Corcomroe; area: 39acres, 3 roods, 39 perches; Co Clare

Regd owner: John Horan; folio: 2296F;

LOST LAND CERTIFICATES

lands: townland of Ballaghboy andbarony of Bunratty Upper; area:0.2250 hectares; Co Clare

Regd owner: Jeremiah Cummins; folio:70686F; lands: plot of ground beingpart of the townland of Crosshavenin the barony of Kerrycurrihy andcounty of Cork; Co Cork

Regd owner: Jeremiah GerardDesmond (deceased); folio: 21623,21624, 21658; lands: plots of groundsituate in the townland ofGarranereagh in the barony ofCarbery East (east division) and inthe county of Cork; Co Cork

Regd owner: Mary Luddy; folio: 35784;lands: plot of ground situate in thetownland of Carrigacunna in thebarony of Fermoy and in the countyof Cork; Co Cork

Regd owner: David O’Driscoll; folio:81483F; lands: plot of ground situatein the townland of Broomfield Westin the barony of Imokilly and in thecounty of Cork; Co Cork

Regd owner: Eunice O’Regan; folio:50059F; lands: plot of ground situatein the townland of Carrigrohane inthe barony of Cork and in the coun-ty of Cork; Co Cork

Regd owner: Carmel Treacy and MaryTreacy; folio: 38749F; lands: plot ofground situate in the townland ofCorbally in the barony of Imokillyand in the county of Cork; Co Cork

Regd owner: Margaret Ann Walsh andDaniel Walsh; folio: 6264F; lands:plots of ground situate in the town-land of Parkmountain (ED YoughalRural) in the barony of Imokilly andin the county of Cork; Co Cork

Regd owner: Michael O’Hanlon; folio:3757; lands: plot of ground situate inthe townland of Glannoge, in thebarony of Duhallow, and in thecounty of Cork; Co Cork

Regd owner: Maurice Harte; folio:4323F; lands: plot of ground situatein the townland of Leighmoney Begin the barony of Kinalea and in thecounty of Cork; Co Cork

Regd owner: Kevin Nolan; folio: 5515F;lands: plots of ground situate in thetownland of Gearhameen in thebarony of Carbery West (west divi-sion) and in the county of Cork; CoCork

Regd owner: Michael John Daly andAndrew Daly; folio: 6755; lands:plots of ground situate in the town-land of Ballyogaha West in thebarony of Barrymore and in thecounty of Cork; Co Cork

Regd owner: Jeremiah O’Herlihy; folio:28937; lands: plots of ground situatein the townland of Killinardrish, inthe barony of Muskerry East andcounty of Cork; Co Cork

Regd owner: Carol Lynch; folio: 34185;lands: plot of ground situate in thetownland of Licknavar, in the baronyof Carbery West (east division) andin the county of Cork; Co Cork

Regd owner: Edward Gosnell(deceased) and Breda Gosnell; folio:52419; lands: plots of ground situate

to the east of Church Road, in theparish of St Finbar’s and in the city ofCork; Co Cork

Regd owner: Michael John Walsh andSusan Ann Walsh; folio: 26017F;lands: plot of ground situate in thetownland of Carrigrohane in thebarony of Cork and in the county ofCork; Co Cork

Regd owner: Michael Foley; folio:44042; lands: plot of ground situate inthe townland of Poulacarry North inthe barony of Cork and in the countyof Cork; Co Cork

Regd owner: Jeremiah Forde; folio:9186; lands: plot of ground situate inthe townland of Corbally in thebarony of Muskerry East and in thecounty of Cork; Co Cork

Regd owner: Patrick Bonner, The Row,Greencastle, Co Donegal; folio:34876; lands: Drumaweer; CoDonegal

Regd owner: Patrick Callaghan andMary Callaghan, Bredagh Glen,Moville, Co Donegal; folio: 43125F;lands: Clare; Co Donegal

Regd owner: John Davidson, Dunmore,Kinscasslagh, Co Donegal; folio:6394F; lands: Dunmore, CoDonegal

Regd owner: Thomas Doherty,Hillcrest, Burnfoot, Co Donegal;folio: 6487; lands: Tievebane; area:2.9483 hectares; Co Donegal

Regd owner: James Duggan, MountMarian, Milford, Co Donegal; folio:9281F; lands: Camblestown; CoDonegal

Regd owner: Daniel Ward,Drumnacarry, Creeslough, CoDonegal; folio: 9784F; lands; Cashel;Co Donegal

Regd owner: Ada Arnold, St Patrick’s,Dunfanaghy, Co Donegal; folio:24856; lands: Dunfanaghy; CoDonegal

Regd owner: Joan Clarke; folio:DN6596; lands: property situate inthe townland of Kinsaley and baronyof Coolock; Co Dublin

Regd owner: Ultan Courtney andFrances Courtney; folio:DN117474F; lands: property situatein the townland of Lusk and baronyof Balrothery East, known as 4 TheAvenue, Orlynn Park; Co Dublin

Regd owner: Brigid Glennan; folio:DN105987F; lands: property knownas 37 Drumcliffe Drive, Cabra, in theparish of Grangegorman and districtof north central; Co Dublin

Regd owner: Joseph Keogh; folio: DN41493L; lands: property situate in thetownland of Priorswood and baronyof Coolock; Co Dublin

Regd owner: Thomas J O’Brien; folio:DN3674L; lands: property known asno 59 Belton Park Road, situate onthe east side of the road in the parishof Artane, district of Clonturk; CoDublin

Regd owner: Elizabeth Ward; folio: DN4624L; lands: property known as 35Shenick Drive, situate in the town-land of Townparks and barony of

Balrothery East; Co DublinRegd owner: Chevron (Ireland)

Limited; folio: DN18728; lands:property situate in the townland ofFox and Geese and barony ofUppercross; Co Dublin

Regd owner: Aidan Weldon; folio:DN15813; lands: property situate inthe townlands of Rathartan,Rogerstown, Whitestown andBallealy East, all in the barony ofBalrothery East; Co Dublin

Regd owner: Thomas Weldon; folio:DN15813; lands: property situate inthe townlands of Rathartan,Rogerstown, Whitestown andBallealy East, all in the barony ofBalrothery East; Co Dublin

Regd owner: Susan McGrath (one undi-vided half share); folio: DN16130F;lands: a plot of ground situate to thesouth of Kilbarrack Crescent in theparish of Kilbarrack and district ofHowth; Co Dublin

Regd owner: George and FrancesCoogan; folio: DN6178; lands: a plotof ground being part of the townlandof Ballynakelly and barony ofNewcastle; Co Dublin

Regd owner: Frank Cassidy andCaroline Cassidy; folio; 64073F;lands: townland of Cornamucka(Clonmacknowen By) and barony ofClonmacknowen; area: 0.2810hectares; Co Galway

Regd owner: Thomas Collins; folio:8942F; lands: townland ofKnockbrack (Tiaquin By) and baronyof Tiaquin; area: 1.7190 hectares; CoGalway

Regd owner: Billy Donnellan and BredaDonnellan; folio: 23079F; lands:townland of Crinnage and barony ofDunkellin; Co Galway

Regd owner: Donall Dooley; folio:4586F; lands: townland of Kilcaiminand barony of Dunkellin; area:0.1520 hectares; Co Galway

Regd owner: Hugo McGowan andBridget McGowan; folio: 21106F;lands: townland of Murrough andbarony of St Nicholas; Co Galway

Regd owner: Joseph Toher; folio:6968F; lands: townland of CullenaghBeg and barony of Dunkellin; CoGalway

Regd owner: Mary Winifred Tuohy;folio: 20103; lands: townland ofCosmona and barony of Loughrea;area: 2.3825 hectares; Co Galway

Regd owner: Denis Kelly; folio: 36383FCo Limerick; lands: townland ofBallyshane (ED Monagay) andbarony of Glenquin; Co Kerry

Regd owner: Thomas O’Carroll; folio:4583; lands: Gortnaskeha Commonsand barony of Iraghticonnor andcounty of Kerry; Co Kerry

Regd owner: Michael RaymondO’Neill; folio: 10359 and 10361;lands: townland of Bealdarrig andbarony of Dunkerron North; CoKerry

Regd owner: Patrick O’Sullivan(deceased); folio: 7367F; lands: town-land of Bawnluskaha and barony of


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• Lost land certificates – €132 (incl VAT at 21%)• Wills – €132 (incl VAT at 21%)• Title deeds – €132 per deed (incl VAT at 21%)• Employment/miscellaneous – €132 (incl VAT at 21%)

HIGHLIGHT YOUR NOTICE BY PUTTING A BOX AROUND IT – €31.50 EXTRA

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All notices must be paid for prior to publication. CHEQUES SHOULD BE MADE PAYABLETO LAW SOCIETY OF IRELAND. Deadline for March Gazette: 15 February 2007. For further information, contact Catherine Kearney or Valerie Farrell on tel: 01 672 4828 (fax: 01 672 4877)

GazetteGazetteL A W S O C I E T YTrughanacmy; area: 0.081 acres; CoKerry

Regd owner: Laurence O’Brien (other-wise Larry); folio: 9374; lands: situatein the townland of Ballymount andbarony of Narragh and Reban Eastin the county of Kildare; Co Kildare

Regd owner: Catherine O’Rourke;folio: 4230L; lands: townland ofBallymany and barony of OffalyEast; Co Kildare

Regd owner: John Stone; folio: 578F;lands: Ballysaxhills, Offaly East; area:2 roods and 14 perches; Co Kildare

Regd owner: Patrick Sheehy; folio:4366; lands: townlands of Carrickand Rathernan and baronies ofConnell; Co Kildare

Regd owner: James Coyle; folio: 14201;lands: Rathduff and barony ofFassadinin; Co Kilkenny

Regd owner: Kilkenny Envelopes; folio:678L; lands: Cloghabrody andbarony of Gauran; Co Kilkenny

Regd owner: Johanna Morris (deceas-ed); folio: 3190; lands: Screhan andbarony of Kells; Co Kilkenny

Regd owner: Seamus Kinsella; folio:5151F; lands: Ballytarsna and baronyof Knocktopher; Co Kilkenny

Regd owner: Stafford Shipping Limit-ed; folio: 18020; lands: townland ofRaheen; area: (1) 2.04 acres, (2) 3.310acres, (3) 100 acres, (4) 4.3.34 acres,(5) 4.1.31 acres; Co Kilkenny

Regd owner: Stafford ShippingLimited; folio: 2903F; lands: town-land of Raheen; area: 2.163 acres; CoKilkenny

Regd owner: JJ Stafford and Sons(Wexford) Limited; folio: 17037;lands: townland (1), (2), (4), (5)Raheen, (3) Annaghs and barony ofIda; area: (1) 0.1230 hectares, (2)0.1920 hectares, (3) 0.8950 hectares,(4) 0.2080 hectares, (5) 0.5080hectares; Co Kilkenny

Regd owner: Noel Behan; folio: 6119F;lands: Lea and barony ofPortnahinch; Co Laois

Regd owner: Mary Ita Murphy,Killaneen, Ballinamore, Co Leitrim;folio: 1207F; lands: Killaneen; CoLeitrim

Regd owner: Seamus Heeran,Corrabarrick, Keshcarrigan, CoLeitrim; folio: 6802; lands:Corrabarrack; area: 7.5069 hectares;Co Leitrim

Regd owner: William Lynch/GeraldineO’Sullivan; folio: 13955F; lands:townland of Effin and barony ofCoshma; Co Limerick

Regd owner: Thomas Fox; folio: 22923;lands: townland of Kilgarriff andbarony of Coshlea; Co Limerick

Regd owner: Liam McNamara; folio:24164; lands: townland ofGarraunboy and barony of ConnelloLower; Co Limerick

Regd owner: McMullan Bros Limited, 1and 2 Upper O’Connell Street,Dublin; folio: 11805; lands: Glack;area: 0.3288 hectares; Co Longford

Regd owner: John Kirwan and TeresaKirwan, 12 McCooey Terrace,

Clogherhead, Co Louth; folio:11644; lands: Callystown; Co Louth

Regd owner: Mohammad Iqbal andJavid Iqbal, Punjab House, 61 ParkStreet, Dundalk, Co Louth; folio:19037F; lands: Marshes Upper; CoLouth

Regd owner: Desmond McGee andBridget McGee, Ballybailie, Ardee,Co Louth; folio: 1458F; lands:Ballybailie; Co Louth

Regd owner: George Saxton, 20 LegionAvenue, Dundalk, Co Louth; folio:12420; lands: Demesne; Co Louth

Regd owner: Panelek Limited,Mountain Park, Carlingford, CoLouth; folio: 3752F; lands: Libertiesof Carlingford; area: 1.200 hectares;Co Louth

Regd owner: Richard Kelly, Morgans-town House, Grangebellew,Drogheda, Co Louth; folio: 12460F;lands: Morganstown; Co Louth

Regd owner: James V Cannon andBridget M Cannon; folio: 27175F;lands: townland of Pollaniska andbarony of Clanmorris; Co Mayo

Regd owner: Thomas McWalter; folio:23259; lands: townland of Balla andbarony of Clanmorris; area: 0.1201hectares; Co Mayo

Regd owner: James Golding; folio:12060, 28478, 28479, lands: town-lands of Lagaturrin, Pollavaddy andArdboley North and barony ofClanmorris; Co Mayo

Regd owner: Jerome Tarpey; folio:1461; lands: townland of Kincon andbarony of Costello; area: 6.1689hectares; Co Mayo

Regd owner: Daniel Roche; folio:11855; lands: townland of Balla andbarony of Clanmorris; Co Mayo

Regd owner: Joseph Duignan andDoreen Duignan, Pagestown,Kilcloone, Co Meath; folio: 20017F;lands: Pagestown; area: 1.945hectares; Co Meath

Regd owner: James McCaul andPauline McCaul, Rinn Na Mara,Clontarf, Dublin 3; folio: 19158;lands: Calliaghstown; Co Meath

Regd owner: Gerard Christopher

Lynch, Rathdrinagh, Beauparc,Navan, Co Meath; folio: 5789; lands:Rathdrinagh, Knockcommon, CoMeath

Regd owner: Meath County Council,County Hall, Navan, Co Meath;folio: 1818F; lands: Donacarney; CoMeath

Regd owner: Michael Whelan,Loughsallagh Lodge, Dunboyne, CoMeath; folio: 10568; lands:Loughsallagh; Co Meath

Regd owner: Francis Shortt, c/o SeamusMallon & Co, Solicitors, The RedHouse, Castleblayney, CoMonaghan; folio: 6747 and 11667;lands: Drumquill and Mullaghduff;area: 4.459 hectares and 2.9946hectares; Co Monaghan

Regd owner: Dr AG Monsoor; folio:6011; lands: Wood of O and baronyof Philipstown Lower; Co Offaly

Regd owner: John and Shirley Kelly;folio: 9163F; lands: Ballycollin andbarony of Geashill; Co Offaly

Regd owner: John Toohey; folio: 6966F;lands: Cullenwaine, Ballingorraun,Clynoe and barony of Scarawalsh; CoOffaly

Regd owner: Patrick J Walls (deceased);folio: 6795; lands: Cushaling andbarony of Coolestown; Co Offaly

Regd owner: Redstone PropertiesLimited; folio: 19511F; lands: town-land of Srah and barony of AthloneNorth; area: 1.7360 hectares; CoRoscommon

Regd owner: Thomas Flanagan; folio:12792; lands: Knockadyran; area:2.4300 hectares; Co Roscommon

Regd owner: Patrick Callery; folio: 5608;lands: townland of Kilkilloge andbarony of Carbury; area: 3 roods, 25perches; Co Sligo

Regd owner: Joyce Greer; folio: SL6022and SL14143; lands: townland ofSkreen Beg and barony of Tireragh;Co Sligo

Regd owner: Brian Murphy and MartinaMurphy; folio: 3347; lands: townlandof Finned (Carbury By) and barony ofCarbury; area: 4.9958 hectares; CoSligo

Regd owner: Sean Donohue and Mary BDonohue; folio: 28947; lands: town-land of Rocgarraun and barony ofOrmond Lower and county ofTipperary; Co Tipperary

Regd owner: Patrick Ryan; folio: 15320F;lands: townland of Moandoherdaghand barony of Clanwilliam; CoTipperary

Regd owner: Donal Heffernan; folio:7130; lands: townland of Monks-grange and barony of Iffa and OffaEast; Co Tipperary

Regd owner: Wayne Rees; folio: 28269F;lands: plot of ground situate in thetownland of Gortnalaght in the baronyof Decies without Drum and in thecounty of Waterford; Co Waterford

Regd owner: Matthew Dunlea; folio:6433; lands: plot of ground situate inthe townland of Ballynatray Demesnein the barony of Coshmore andCoshbride and in the county ofWaterford; Co Waterford

Regd owner: John and Breda Redmond;folio: 11094; lands: Ballylucas andKillisk and barony of BallaghkeenSouth; Co Wexford

Regd owner: Wexford Borough Council;folio: 294F; lands: Carricklawn andbarony of Shelmaliere West; CoWexford

Regd owner: Patrick Kiely; folio: 3849;lands: Ballyshannon and barony ofShelmaliere West; Co Wexford

Regd owner: JJ Stafford and Sons(Wexford) Limited; folio: 21293;lands: townland of Marshmeadowsand barony of Bantry; area: 5.0710hectares; Co Wexford

Regd owner: Richard Fitzpatrick; folio:3368; lands: situate in the townland ofBallinalea, barony of Newcastle in thecounty of Wicklow

Regd owner: John Henderson andCatherine Henderson; folio: 894;lands: townland of Cronyhorn Lowerand barony of Shillelagh; CoWicklow

Regd owner: Patrick Forde; folio: 6966;lands: townlands of Glencap Com-mons North and Glencormick Southand barony of Rathdown; Co Wicklow

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TD Fitzpatrick CERTIFIED PUBLICACCOUNTANTS &

REGISTEREDAUDITORS

Specialists in SolicitorBookkeeping and

Accountants Reports

For Enquiries regardingour Solicitor services,please contact us at:

7 Argus House,Greenmount Office Park,

Harold’s Cross, Dublin 6W.

Phone: 01 4737455Email: [email protected]

Regd owner: Gerard Nolan andCassandra Sheridan; folio: 22971F;lands: townland of KilmacanogeSouth and barony of Rathdown; CoWicklow

Regd owner: Patrick Clune; folio: 4822;lands: situate in the townlands ofBallard in the barony of BallinacorSouth, in the electoral division ofBallinaclash and county of Wicklow;Co Wicklow

Regd owner: Thomas and BridgetJosephine Egan; folio: 3389; lands:townland of Mountusher and baronyof Newscastle; Co Wicklow

Barlow, John (deceased) (retiredfarmer), late of Lattin East, CoTipperary. Would any person havingknowledge of a will made by the above-named deceased, who died on 4November 2005, please contact LO’Connor & Co, Solicitors, 196 UpperSalthill, Galway; tel: 091 525 346

Delahunty, Thomas (deceased), late ofMain Street, Mullinavat, Co Kilkenny.Would any solicitor holding or havingknowledge of a will made by the above-named deceased, who died on 14 March2006, please contact Gerard M Halley,MM Halley & Son, Solicitors, 5 GeorgesStreet, Waterford; tel: 051 874 073,email: [email protected]

Downey, Mary Ellen (deceased), lateof Cahil, Goleen, Co Cork. Would anyperson having knowledge of a will madeby the above-named deceased, who diedon 19 January 2006, please contactHennessy & Co, Solicitors, Bantry, CoCork; tel: 027 50317, email: [email protected]

WILLS

Duff, Thomas (deceased), late of 23Ross Street, Dublin 7. Would any personhaving knowledge of the whereabouts ofa will made by the above-nameddeceased, who died on 2 October 2006,please contact Charles Foley, Solicitor,Market Square, Gort, Co Galway; tel:091 631 472, fax: 091 631 223, email:charles [email protected]

Hanley, Margaret (deceased), late ofLisava, Cahir, Co Tipperary. Would anysolicitor holding or having knowledge ofa will made by the above-nameddeceased, who died on 7 November2006, please contact: Gerard M Halley,MM Halley & Son, Solicitors, 5 GeorgesStreet, Waterford; tel: 051 874 073, oremail: [email protected]

Henderson, Reverend WilliamDesmond (deceased), late of KingstonCollege, Mitchelstown, Co Cork, born26 October 1928 in Newtowngore, CoLeitrim and formerly of Co Cavan andCo Sligo, who died on 21 September2006. Any solicitor holding or havingknowledge of a will made by the above-named deceased please contact WilliamFitzgibbon, solicitor, Messrs ShinnickFitzgibbon & Co, Baldwin Street,Mitchelstown, Co Cork; tel: 025 84081,email: [email protected]

Lehane, Mary (deceased), late ofBallynoe, Cobh, Co Cork. Would anyperson having knowledge of a will madeby the above-named deceased, who diedon 14 January 1966, please contactFrancis Kelleher, solicitor, of Francis CKelleher & Co, Solicitors, 1 PearseSquare, Cobh, Co Cork; tel: 021 4812300, fax: 021 481 6601

McEvoy, Imelda (deceased), late of 1Park View Lawn, Greenpark,Clondalkin, Dublin 22. Any person hav-ing knowledge of the whereabouts of anywill made by the above-named deceased,who died on 27 November 2006, pleasecontact John Sherlock & Company,Solicitors, 9-10 Main Street, Clondalkin,Dublin 22; tel: 01 457 0846, fax: 01 4571156, email: [email protected]

Merrigan, Mary Ellen (otherwiseEdna) (deceased), late of 5 WalworthRoad, South Circular Road, Dublin 8.Would any person having knowledge of awill executed by the above-nameddeceased, who died on 27 November2006, please contact Malone and Potter,Solicitors, 7 Cope Street, Dublin 2; tel:01 671 2644, fax: 01 671 2735

Nolan, Mary (deceased), late of Nurses’Quarters, Loughlinstown GeneralHospital, Loughlinstown, Co Dublinand Ballyboy, Ferns, Co Wexford. Wouldany person having knowledge of a willmade by the above-named deceased, whodied 8 June 2006, please contact John ASinnott & Co, Market Square,Enniscorthy, Co Wexford; tel: 053 9233111, fax: 053 923 3042

O’Brien, Bridget (deceased), late of 15Harrington Square, Dillons Cross, CorkCity. Would any person holding or hav-ing knowledge of the whereabouts of awill made by the above-named deceased,who died December 2006, please contactPaula Ruttle, ‘Sun Hill’, Askeaton, CoLimerick; email: [email protected]

O’Halloran, Maureen (deceased), lateof Kilkishen House, Kilkishen, Co Clare.Would any person having knowledge ofthe whereabouts of any will made by theabove-named deceased, who died on 27September 1987, please contact LegalSupport Services, Solicitors, Main Street,Sixmilebridge, Co Clare; tel: 061 713767, fax: 061 713 642, email:[email protected]

Reilly, Matthew (deceased), late ofCoolronan, Ballivor, Co Meath. Wouldany solicitor holding or having knowl-edge of a will or grant of administrationby the above-named deceased, who diedin 1945, please contact ConlonSolicitors, Main Street, Virginia, CoCavan, tel: 049 854 7006

Richmond Kevin (deceased), late of 30Crescent Villas, Glasnevin, Dublin 9.Would any solicitor holding or havingknowledge of a will made by the above-named deceased, who died on 26December 2006, please contact JoeClancy, Solicitors, Main Street,Rathfarnham, Dublin 14; tel: 01 4920464

London solicitors will be pleased toadvise on UK matters and undertakeagency work. We handle probate, litiga-tion, property and company/commer-cial. Parfitt Cresswell, 567/569 FulhamRoad, London SW6 1EU; DX 83800Fulham Broadway; tel: 0044 2073818311, fax: 0044 2073 814044, email:[email protected]

Solicitor’s practice for sale – Limericksuburbs. A well-managed young solici-tor’s practice for sale in a well-populatedLimerick suburb. General practice spe-cialising in residential conveyancing andfamily law. Good turnover. Great oppor-tunity for expansion for sole practitioner,partnership, or as a branch office.Existing support staff happy to remain.Principal moving for personal reasons.Please reply to box no 12/07

Articles for sale: Fireproof safes –four fireproof Chubb-type safes forsale – three and four drawer – ingood condition. No longer neededdue to refurbishment. Usual pricecirca €2,500/3,000 each – will sellfor circa €1,100 each. Contacteither Mary or John during officehours at 052 21123/21966

MISCELLANEOUS

In the matter of the Landlord andTenant (Ground Rents) Acts 1967-1994 and in the matter of theLandlord and Tenant (Ground Rents)(No 2) Act 1978: an application byRichael ConnollyTake notice that any person having aninterest in the freehold estate of or anysuperior interest in the following prop-erty: all that and those the propertyknown as 12a Ballinlough Road in thecity of Cork, being the premises com-prised and demised by an indenture oflease dated 17 May 1906 and madebetween Edith Hackett of the one partand John Harrington of the other part,for a term of 150 years.

Take notice that the applicant,Richael Connolly, intends to submit anapplication to the county registrar forthe county of Cork for the acquisition ofthe freehold interest in the aforesaidpremises, and any party asserting thatthey hold a superior interest in theaforesaid premises are called upon tofurnish evidence of title to the afore-mentioned premises to the below namedwithin 21 days from the date of thisnotice.

In default of such notice beingreceived, the applicant, RichaelConnolly, intends to proceed with theapplication before the county registrar atthe end of 21 days from the date of thisnotice and will apply to the county reg-istrar for the county of Cork for direc-tions an may be appropriate on the basisthat the persons beneficially entitled tothe superior interest including the free-hold reversion in the property aforesaidare unknown ascertained.Date: 2 February 2007Signed: McGuire Desmond (solicitors for theapplicant), 5 Lapps Quay, Cork

In the matter of the Landlord andTenant Acts 1967-1994 and in thematter of the Landlord and Tenant(Ground Rents) (No 2) Act 1978: appli-cation by Inver Inns LimitedTake notice that the applicant intends tosubmit an application to the county reg-istrar for the city of Dublin for theacquisition of the freehold interest andall, if any, intermediate interest in thepremises described in the schedule here-to, and any person having an interest in

TITLE DEEDS

AT SMITHFIELDTwo office units to let onnew short term four year

nine month leases. Unit 1: 37.25 Sq.m. Unit 2: 44.95 Sq.m.

Bannon Commercial Tel: 6477900


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

SPANISH LAWYERS

RAFAEL BERDAGUER ABOGADOS

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

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

Web site: www.berdaguerabogados.com

PROFILE:

Spanish Lawyers Firm focusedon serving the need of the

foreign investors, whether incompany or property transac-tions and all attendant legalitiessuch as questions of inheritance,taxation, accounting and book-keeping, planning, land use andlitigation in all Courts.

FIELD OF PRACTICES:

General Practice, Administra-tive Law, Civil and Commer-

cial Law, Company Law, Bankingand Foreign Investments inSpain, Arbitration, Taxation,Family Law, International Law,Litigation in all Courts.

TWENTY YEARS ADVISING CLIENTS IN REAL ESTATE TRANSACTIONS IN SPAIN

the freehold estate or any intermediateinterest or estate between the freeholdand the leasehold interest held by theapplicant in the property are herebycalled upon to furnish evidence of theirtitle to the solicitors for the applicantwithin 21 days form this notice.

In default of any such notice beingreceived, the applicant intends to pro-ceed with the application before thecounty registrar at the end of 21 daysfrom the date of this notice and willapply to the county registrar for direc-tions that might be appropriate on thebasis that the person or persons benefi-cially entitled to the superior interest,including the freehold reversion of theproperty, are unknown or unascer-tained.

Schedule: all that and those thelicensed house and premises no 159Phibsborough Road, in the parish of StGeorge, in the city of Dublin, contain-ing in front to Phibsborough Roadaforesaid 26 feet, six inches and in depthfrom front to rear on the north side 67feet, with the appurtenances as the sameare more particularly delineated on themap endorsed on these presents andthereon coloured green, commonlyknow as ‘Mohans’ (formerly ‘The Hut’).

Particulars of lease: lease dated 14February 1896 and made betweenThomas Dunphy of the one part andAnne Farnworth of the other part, heldthereunder for a term of 150 years from29 September 1895 and subject to an

annual rent of £60 thereby reserved andto the covenants on the part of the lesseeto be observed and the conditions there-in contained.

Take notice that Inver Inns Limited,being a person entitled under sections 8,9 and 10 of the Landlord and Tenant(Ground Rents) (No 2) Act1978, proposesto purchase the fee simple and any andall intermediate interests in the landsabove described.Date: 2 February 2006Signed: McAlinden & Gallagher (solicitorsfor the applicant), Unit 2, Ashbourne TownCentre, Main Street, Ashbourne, CoMeath

In the matter of the Landlord andTenant (Ground Rents) Acts 1967-1994 and in the matter of theLandlord and Tenant (Ground Rents)(No2) Act 1978: an application byTimothy MartinTake notice that any person having anyinterest in the freehold estate in the fol-lowing property: all that and those thepremises known as 198 Harold’s CrossRoad, Harold’s Cross, situate in theparish of St Peter, formerly in the coun-ty but now in the city of Dublin, heldunder an indenture of lease dated 1October 1867 and made between JohnStewart of the one part and MichaelCondon of the other part, from 1October 1867, subject to the yearly rentof £3 thereby reserved and to thecovenants on the part of the lessee and

the conditions therein contained.Take notice that Timothy Martin

intends to submit an application to thecounty registrar for the county of thecity of Dublin for the acquisition of thefreehold interest in the aforesaid prop-erties, and any party asserting that theyhold a superior interest in the aforesaidpremises (or any of them) are calledupon to furnish evidence of title to theaforementioned property to the belownamed within 21 days from the date ofthis notice.

In default of any such notice beingreceived, the applicant intends to pro-ceed with the application before thecounty registrar for the county of thecity of Dublin for directions as may beappropriate on the basis that the personor persons beneficially entitled to thesuperior interest including the freeholdpremises are unknown or unascer-tained.Date: 2 February 2007Signed: Peter Morrissey & Co, Solicitors(solicitors for the applicant), MerrionBuilding, Lower Merrion St, Dublin 2

In the matter of the Landlord andTenants Acts 1967-2005 and in thematter of the Landlord and Tenant(Ground Rents) (No 2) Act 1978: anapplication by Philip BradyAny person having a freehold estate orany intermediate interest in all that andthose that plot or piece of ground, thesubject of an indenture of lease dated 16

May 1938 between James Brady of theone part and Peter Cassidy of the otherpart for a term of 99 years from 1January 1938 at a yearly rent of £6 ster-ling, and therein described as all and sin-gular all that and those that plot ofground in the townland of Drumalt,town of Arva, parish of Killeshandra,barony of Tullyuncho and county ofCavan, containing by estimation 29perches statute measure or thereabouts,being the same more or less bounded onthe east by the public road or street –Arva to Cavan – containing by estima-tion 29 perches statute measure orthereabouts, as more particularly delin-eated on the map endorsed to said leaseof 16 May 1938.

Take notice that Philip Brady, beingthe person currently entitled to thelessee’s interest under the said lease,intends to apply to the county registrarfor the county of Cavan for the acquisi-tion of the freehold and intermediateinterest in the aforesaid properties, andany party asserting that they hold asuperior interest in the aforesaid prop-erties (or any of them) are called upon tofurnish evidence of title to same to thebelow named within 21 days from thedate of this notice.

In default of any such notice beingreceived, Philip Brady intends to pro-ceed with the application before thecounty registrar at the end of 21 daysfrom the date of this notice and willapply to the county registrar for the

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county of Cavan for directions as maybe appropriate on the basis that the per-son or persons beneficially entitled tothe superior interest including the free-hold reversion are unknown or unascer-tained.Date: 2 February 2007Signed: Michael J Ryan (solicitors for theapplicant), Athbara House, Cavan

In the matter of the Landlord andTenant Acts 1967-1994 and in thematter of the Landlord and Tenant(Ground Rents) (No 2) Act 1978: anapplication by Brian M Durkan & CoLimitedTake notice that any person having aninterest in the freehold estate or anyintermediary interest in the propertyknown as the Bridge House, TheForge, Loughlinstown, in the county ofDublin, being the property demised byan indenture of lease dated 11November 1876 and made betweenHenry West of the one part and JamesLawless of the other part for the term of900 years from 29 September 1876,subject to a yearly rent of £5.

Take notice that Brian M Durkan &Co Limited intends to submit an appli-cation to the county registrar for thecounty of Dublin for the acquisition ofthe freehold interest and any intermedi-ary interest in the aforesaid property,and any party asserting that they hold asuperior interest in the aforesaid prop-erty is called upon to furnish evidenceof title to the aforesaid property to thebelow named within 21 days of the dateof this notice.

In default of any such notice beingreceived, Brian M Durkan & CompanyLimited intends to proceed with theapplication before the county registrarfor the county of Dublin at the end of21 days from the date of this notice andwill apply to the county registrar for thecounty of Dublin for such orders ordirections as may be appropriate on thebasis that the person or persons benefi-cially entitled to the superior interestincluding the freehold reversion in theaforesaid property are unknown andunascertained.Date: 2 February 2007Signed: Cunningham McCormack (solici-tors for the applicant), 89 Upper LeesonStreet, Dublin 4

In the matter of the Landlord andTenant Acts 1967-2005 and in thematter of the Landlord and Tenant(Ground Rents) (No 2) Act 1978: anapplication by Donal Grennan andRoseanne GrennanAny person having a freehold estate orany intermediate interest in all that andthose the yard to the rear of the houseand premises known as number 10Laurence Street, Drogheda, Co Louth(hereinafter referred to as the first prop-erty), being portion of the lands com-prised in a certain indenture of leasedated 23 April 1918 between theReverend William Osbert Clinton of theone part and Mary Dolan of the otherpart, for a term of 300 years from 1November 1917 at a yearly rent of £12;or all that and those the yard to the rearof the house and premises known asnumber 11 Laurence Street, Drogheda,Co Louth (hereinafter referred to as thefirst property, being portion of the landscomprised in a certain indenture of lease(hereinafter referred to the first lease)dated 23 April 1918 between theReverend William Osbert Clinton ofthe one part and Mary Nolan of theother part for a term of 300 years from 1November 1917 at a yearly rent of £12.

Take notice that Donal Grennan andRoseanne Grennan, being the personscurrently entitled to the lessees’ interestin the said premises, intend to apply tothe county registrar for the county ofLouth for the acquisition of the freeholdinterest and all intermediate interests inthe aforesaid properties, and any partyasserting that they hold a superior inter-est in the aforesaid properties (or any ofthem) are called upon to furnish evi-dence of title to same to the belownamed within 21 days from the date ofthis notice.

In default of any such notice beingreceived, Donal Grennan and RoseanneGrennan intend to proceed with theapplication before the county registrar atthe end of 21 days from the date of thisnotice and will apply to the county regis-trar for the county of Louth for direc-tions as may be appropriate on the basisthat the person or persons beneficiallyentitled to the superior interests includ-ing the freehold reversion in each of theaforesaid premises are unknown orunascertained.

Date: 2 February 2007Signed: O’Reilly Thomas (solicitors for theapplicant), 8 North Quay, Drogheda, CoLouth

In the matter of the Landlord andTenant Acts 1967-2005 and in thematter of the Landlord and Tenant(Ground Rents) (No 2) Act 1978: anapplication by McHugh Supermar-kets (Three Tops) LimitedTake notice that any person having aninterest in the freehold estate or superi-or interest in the property known asnumber 17 Maypark, Malahide Road, inthe parish of Coolock, Dublin 5, heldunder indenture of lease dated 12 March1951 made between Patrick Murray ofthe one part and Francis Joseph Brienand Bridget Brien of the other part forthe term of 499 years from 1 March1951, subject to the annual rent of £35.

Take notice that McHughSupermarkets (Three Tops) Limitedintends to submit an application to thecounty registrar for the city of Dublinfor the acquisition of the freehold inter-est in the aforesaid property, and anyparty or parties asserting that they hold asuperior interest in the aforesaid proper-ty are called upon to furnish evidence oftitle to the aforementioned premises, tothe party below-named, within 21 daysof the date of this notice.

In default of any such notice beingreceived, the applicant, McHughSupermarkets (Three Tops) Limited,intends to proceed with the applicationbefore the county registrar at the end of21 days from the date of this notice andwill apply to the county registrar for thecity of Dublin for directions as may beappropriate on the basis that the personor persons beneficially entitled to thesuperior interest including the freeholdreversion in the aforesaid premises areunknown or unascertained.Date: 2 February 2007Signed: Rutherfords (solicitors for the appli-cant), 41 Fitzwilliam Square, Dublin 2

In the matter of the Landlord andTenant Acts 1967-2005 and in thematter of the Landlord and Tenant(Ground Rents) (No 2) Act 1978: anapplication by Arkmoon LimitedTake notice that any person having aninterest in the ultimate fee simple estateor in any superior interest in the proper-ty known as 41/41A Henry Street in thecity of Dublin, being the property com-prised in fee farm grant dated 12December 1889 from Evan Lake andothers to Emily Mary Margaret Clarke,subject to the perpetual yearly fee farmrent of €35.16 (£27.13.10 late currency)comprised in folio DN 171478F.

Take notice that the applicant,Arkmoon Limited, intends to submit anapplication to the county registrar forthe city of Dublin at Áras Uí Dhálaigh,Inns Quay, Dublin 7 for the acquisitionof the fee simple interest in the aforesaidproperty and that any party assertingthat they hold a superior interest in theaforesaid property are called upon to

furnish evidence of title to the belownamed within 21 days from the date ofthis notice.

In default of any such notice beingreceived, Arkmoon Limited intends toproceed with the application before thesaid county registrar at the end of 21days from the date of this notice andwill apply to the said county registrarfor the city of Dublin for such direc-tions as may be appropriate on the basisthat the person or persons beneficiallyentitled to the superior interest includ-ing the fee simple in the aforesaid prop-erty are unknown and unascertained.Date: 2 February 2007Signed: William Fry (solicitors for theapplicant), Fitzwilton House, Wilton Place,Dublin 2

In the matter of the Landlord andTenant Acts 1967-1987 and in thematter of an application by EllenRoganTake notice that any person having aninterest in the freehold estate or anyintermediate interest in the propertyknown as 211 North Circular Road,Dublin 7, in the county of Dublin,being the property demised by anindenture of lease dated 10 July 1935and made between Mary Mooney, JessieMary Doyle, Julia Gray, the ReverendJohn Cassidy, Joseph John Mooney,James O’Connor, Joseph John Mooney,Edward Joseph Doyle, the ReverendJohn Cassidy, William Francis Gray andTimothy Alexander Kavanagh of theone part and Constantine Peter Curranof the other part, whereby the premiseswere demised unto the said ConstantinePeter Curran for a term of 99 yearsfrom 1 July 1935, subject to a yearlyrent of £10.

Take notice that Ellen Rogan intendsto submit an application to the countyregistrar for the county of Dublin forthe acquisition of the freehold interestand any intermediate interest in theaforesaid property, and any party assert-ing that they hold a superior interest inthe aforesaid property is called upon tofurnish evidence of title to the aforesaidproperty to the below named within 21days of this notice.

In default of any such notice beingreceived, Ellen Rogan intends to pro-ceed with the application before thecounty registrar for the county ofDublin at the end of the 21 days fromthe date of this notice and will apply tothe county registrar for the county ofDublin for such orders or directions asmay be appropriate on the basis that theperson or persons beneficially entitledto the superior interest including thefreehold reversion in the aforesaidproperty are unknown or unascertained.Date: 2 February 2007Signed: John Glynn & Company (solicitorsfor the applicant), Law Chambers, TheVillage Square, Tallaght, Dublin 24

In the matter of the Landlord andTenant Acts 1967-1994 and in thematter of the Landlord and Tenant

P. LARKINENVIRONMENTAL& AGRICULTURALCONSULTANTS

ATHLEAGUE, ROSCOMMON

Phone: 09066 63538

● LEGAL SUPPORT SERVICES● LICENSED AUCTIONEERS & VALUERS

PERSONAL ATTENTION ASSURED


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(Ground Rents) (No 2) Act 1978: anapplication taken by Daniel FrancisMaguire and Maria MaguireTake notice that any person having inter-est in the freehold estate or any superiorinterest in the property known as the twodwellinghouses and premises known asFort Garry, The Terrace, Leap, situate inthe townland of Kilmacabea, barony ofCarbery West (east division) and countyof Cork, held under an indenture of leasedated 15 November 1890 and madebetween Annie Buttimore of the onepart and Hannah Donovan of the otherpart for a term of 99 years from 15November 1890, subject to the paymentof £1, being an apportioned part of theearly rent of £4, and subject to thecovenants and conditions therein con-tained.

Take notice that the applicants,Daniel Francis Maguire and MariaMaguire, intend to submit an applicationto the county registrar for the county ofCork for the acquisition of the freeholdand all interests superior to theirs in theaforesaid property, and any party assert-ing that they hold a superior interest inthe aforesaid property is called upon tofurnish evidence of title to the aforesaidproperty to the below named within 21days from the date of this notice.

In default of any such notice beingreceived, the applicants, Daniel FrancisMaguire and Maria Maguire, intend toproceed with the application before thecounty registrar at the end of 21 daysfrom the date of this notice and willapply to the county registrar for thecounty of Cork for directions as may beappropriate on the basis that the personor persons beneficially entitled to thesuperior interest including the freeholdreversion in the aforesaid property areunknown and unascertained.Date: 2 February 2007Signed: O’Donnell Breen-Walsh O’Don-oghue (solicitors for the applicant), TrinityHouse, 8 Georges Quay, Cork

In the matter of the Landlord andTenant Acts 1967-1994 and in thematter of the Landlord and Tenant(Ground Rents) (No 2) Act 1978: anapplication taken by ElizabethO’FlynnTake notice that any person having inter-est in the freehold estate or any superiorinterest in the property known as the twodwellinghouses and premises known asnumber 2 Dublin Street, situate in theparish of Saint Anne Shandon and city ofCork, held under an indenture of leasedated 20 January 1944 and madebetween Cornelius Tobin of the one partand James J Murphy and CompanyLimited of the other part for a term of 99years from 29 September 1942, subjectto the yearly rent of £10.15.06d and sub-ject to the covenants and conditionstherein contained.

Take notice that the applicant,Elizabeth O’Flynn, intends to submit anapplication to the county registrar forthe county of Cork for the acquisition ofthe freehold and all interests superior to

hers in the aforesaid property, and anyparty asserting that they hold a superiorinterest in the aforesaid property iscalled upon to furnish evidence of title tothe aforesaid property to the belownamed within 21 days from the date ofthis notice.

In default of any such notice beingreceived, the applicant, ElizabethO’Flynn, intends to proceed with theapplication before the county registrar atthe end of 21 days from the date of thisnotice and will apply to the county regis-trar for the county of Cork for directionsas may be appropriate on the basis thatthe person or persons beneficially enti-tled to the superior interest including thefreehold reversion in the aforesaid prop-erty are unknown and unascertained.Date: 2 February 2007Signed: O’Donnell Breen-Walsh O’Don-oghue (solicitors for the applicant), TrinityHouse, 8 Georges Quay, Cork

In the matter of the Landlord andTenant Acts 1967-1994 and in thematter of the Landlord and Tenant(Ground Rents) (No 2) Act 1978: anapplication by Elizabeth BennettTake notice any person having an inter-est in the freehold estate or any superioror intermediate interest in the heredita-ments and premises situate at 7 EmeraldPlace in the city of Dublin.

Take notice that Elizabeth Bennettintends submitting an application to thecounty registrar for the county of thecity of Dublin for the acquisition of thefreehold interest in the aforementionedproperty, and any party asserting thatthey hold a superior interest in the afore-said premises are called upon to furnishevidence of title to the aforementionedpremises to the below named with 21days of the date of this notice.

In default of any such notice beingreceived, the applicant, ElizabethBennett, intends to proceed with theapplication before the county registrar atthe end of 21 days from the date of thisnotice and will apply to the county regis-trar for the county of the city of Dublinfor directions as maybe appropriate onthe basis that the person or persons ben-eficially entitled to the superior interestincluding the freehold reversion in theaforesaid premises are unknown orunascertained.Date: 2 February 2007Signed: HC Browne (solicitors for the appli-cant), Malahide Road/Kilmore Road (cor-ner), Artane, Dublin 5

In the matter of the Landlord andTenant Acts 1967-1994 and in thematter of the Landlord and Tenant(Ground Rents) (No 2) Act 1978 and inthe matter of the property known as 3Mill Street, Dublin 8: an applicationby Ascon Property DevelopmentsLimitedTake notice that any person having theintermediate leasehold interest or inter-ests in the property situate and known as3 Mill Street, Dublin 8, being the prop-erty held by the applicant in fee simple

and under a yearly tenancy subject to theyearly rent of £9.28.

Take notice that Ascon PropertyDevelopments Limited intends to sub-mit an application to the county registrarfor the city of Dublin at Áras UíDhálaigh, Inns Quay, Dublin 7 for theacquisition of the intermediate leaseholdinterest or interests in the aforesaidproperties, and that any party assertingthat they hold any intermediate lease-hold interest or interests in the aforesaidpremises are called upon to furnish evi-dence of the title to the below namedwithin 21 days from the date of thisnotice.

In default of any such notice beingreceived, Ascon Property DevelopmentsLimited intends to proceed with theapplication before the county registrar atthe end of 21 days from the date of thisnotice and will apply to the county regis-trar for the city of Dublin for directionsas may be appropriate on the basis thatthe person or persons beneficially enti-tled to the intermediate leasehold inter-est or interests in the aforesaid premisesare unknown or unascertained.Date: 2 February 2007Signed: Whitney Moore (solicitors for theapplicant), Wilton Park House, WiltonPlace, Dublin 2

In the matter of the Landlord andTenant Acts 1967-1994 and in thematter of the Landlord and Tenant(Ground Rents) (No 2) Act 1978 and inthe matter of the property known as

34B Blackpitts, Dublin 8: an applica-tion by Ascon Property Develop-ments LimitedTake notice that any person having aninterest in the freehold interest and anyintermediate leasehold interests in theproperty situate and known as 34BBlackpitts, Dublin 8, being part of thelands and premises demised by an inden-ture of lease dated 31 December 1924and made between George James Edkinsand others of the one part and MaryCorcoran and others for a term of 99years from 1 January 1925, subject to theyearly rent of £12 and the covenants andconditions therein contained.

Take notice that Ascon PropertyDevelopments Limited intends to sub-mit an application to the county registrarfor the city of Dublin at Áras UíDhálaigh, Inns Quay, Dublin 7 for theacquisition of the freehold interest andany intermediate leasehold interests inthe aforesaid properties, and that anyparty asserting that they hold a superiorinterest in the aforesaid premises arecalled upon to furnish evidence of thetitle to the below named within 21 daysfrom the date of this notice.

In default of any such notice beingreceived, Ascon Property DevelopmentsLimited intends to proceed with theapplication before the county registrar atthe end of 21 days from the date of thisnotice and will apply to the county regis-trar for the city of Dublin for directionsas may be appropriate on the basis thatthe person or persons beneficially enti-tled to the freehold reversion and anyintermediate leasehold interests in theaforesaid premises are unknown orunascertained.Date: 2 February 2007Signed: Whitney Moore (solicitors for theapplicant), Wilton Park House, WiltonPlace, Dublin 2

In the matter of the Landlord andTenant Acts 1967-1994 and in thematter of the Landlord and Tenant(Ground Rents) Act 1967 and theLandlord and Tenant (Ground Rents)(No 2) Act 1978, and in the matter ofthe premises situate at no 25 MainStreet, Cashel, in the county ofTipperary: an application by MichaelCantwell

SOLICITOR’S PRACTICE LONG ESTABLISHED SOLE PRACTICE IN

SOUTH EAST TOWN FOR SALE.

THE PRACTITIONER IS RETIRING.

ALL REQUESTS FOR FURTHER DETAILS IN

WRITING ONLY TO:

Pembroke & Pembroke

Chartered Accountants

15, Ormonde Road

Kilkenny

e-mail: [email protected]

Established medium sized firm

Dublin city centrefirm looking to

acquire/amalgamatewith firms with an

annual turnoverbetween

€250K and €1M

CONTACT:

David Rowe at Outsource

01 6788 490

[email protected]

PR

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Take notice that any person having anyinterest in the freehold estate of or anysuperior intermediate interest in thedwellinghouse, licensed premises andout-offices situate at 25 Main Street,Cashel, in the county of Tipperary, heldunder a yearly tenancy arising on theexpiration of the lease dated 26 July 1889and made between Emily Matilda Briscoeof the one part and Andrew Hanley of theother part, for a term of 99 years from 26July 1889, at a yearly rent of £12, andtherein described as the dwelling houseand premises lately in the possession ofMatthew Doyle, situate in the MainStreet in the city of Cashel, barony ofMiddlethird and county of Tipperary, andbounded on the north by the said MainStreet of the city of Cashel, on the east byJohn Street, on the south by MargaretRyan’s holding and on the west byThomas Wood’s holding, should givenotice to the undersigned solicitors.

Take notice that the applicant,Michael Cantwell, being the person enti-tled under section 15 of the Landlord andTenant (Ground Rents) (No 2) Act 1978,intends to submit an application to thecounty registrar for the county ofTipperary for the acquisition of the free-hold interest and the intermediate inter-est in the aforesaid property, and anyparty adverting that they hold a superiorinterest in the aforesaid premises or anyof them are called upon to furnish evi-dence of title to the aforementionedpremises to the below named within 21days of the date of this notice.

In default of such notice beingreceived, the applicant intends to proceedwith the application before the countyregistrar at the end of 21 days from thedate of this notice and will apply to thecounty registrar for the county ofTipperary for such directions as may beappropriate on the basis that the personor persons beneficially entitled to suchsuperior interest including the freeholdreversion in the aforementioned propertyare unknown or unascertained.

Date: 2 February 2007Signed: Donal T Ryan (solicitors for the appli-cant), 89/90 Main St, Cashel, Co Tipperary

In the matter of the Landlord andTenant Acts 1967-1994 and in the mat-ter of the Landlord and Tenant (GroundRents) Act 1967 and the Landlord andTenant (Ground Rents) (No 2) Act 1978,and in the matter of the premises situ-ate at no 25 Main Street, Cashel, in thecounty of Tipperary: an application byThomas Joseph O’MalleyTake notice that any person having anyinterest in the freehold estate of or anysuperior intermediate interest in all thatand those the dwellinghouse and premis-es known as number 41 Upper GladstoneStreet, situate in the town of Clonmel,parish of Saint Mary’s, barony of Iffa andOffa East and county of Tipperary,together with all that and those thedwellinghouse and premises known asnumber 42 Upper Gladstone Street, situ-ate in the town of Clonmel, parish ofSaint Mary’s, barony of Iffa and Offa Eastand county of Tipperary, should givenotice to the undersigned solicitors.

Take notice that the applicant,Thomas Joseph O’Malley, being the per-son entitled under section 15 of theLandlord and Tenant (Ground Rents) (No 2)Act 1978, intends to submit an applicationto the county registrar for the county ofTipperary for the acquisition of the free-hold interest and the intermediate inter-est in the aforesaid property, and anyparty adverting that they hold a superiorinterest in the aforesaid premises or anyof them are called upon to furnish evi-dence of title to the aforementionedpremises to the below named within 21days of the date of this notice.

In default of such notice beingreceived, the applicant intends to proceedwith the application before the countyregistrar at the end of 21 days from thedate of this notice and will apply to thecounty registrar for the county ofTipperary for such direction as may beappropriate on the basis that the personor persons beneficially entitled to suchsuperior interest including the freeholdreversion in the aforementioned propertyare unknown or unascertained.Date: 2 February 2007Signed: Donal T Ryan (solicitors for the appli-cant), 89/90 Main St, Cashel, Co Tipperary

In the matter of the Landlord andTenant Acts 1967-1994 and in the mat-ter of the Landlord and Tenant (GroundRents) (No 2) Act 1978 and in the mat-ter of the purchase of the freeholdestate of property situate at 6 AlbertPark, Sandycove, Co Dublin, and nowknown as Villa Maria, 6 Albert Park,Glenageary, Co Dublin: an applicationby Grace Binchy and Robin PotterCooganTake notice that any person having aninterest in the freehold estate of the prop-erty known as Villa Maria, 6 Albert Park,Glenageary, Co Dublin, more particular-ly described in:1) An indenture of lease dated 27 June

1940 and made between GranvilleProby Esq of the one part and AndrewJoseph Jennings Esq of the other partfor a term of 150 years, subject to theyearly rent of £52.10s shillings and thecovenants and conditions therein con-tained;

2) An indenture of sub-lease dated 9 July1942 and made between AJ Jenning &Company Limited of the first part,Comhluct na hÉireann um AracasTeoranta (New Ireland AssuranceCompany Limited) of the second partand Richard B Heffernan of the thirdpart for a term of 145 years, subject tothe yearly rent of £9 thereby reservedand the covenants and conditionstherein contained.

Take notice that Grace Binchy and RobinPotter Coogan intend to submit an appli-cation to the county registrar for the cityof Dublin at Áras Uí Dhálaigh, InnsQuay, Dublin 7 for the acquisition of thefreehold interest in the aforesaid propertyand that any party asserting that they holda superior interest in the aforesaid prop-erty are called upon to furnish evidence oftitle to the below named within 21 daysfrom the date of this notice.

In default of any such notice beingreceived, Grace Binchy and Robin PotterCoogan intend to proceed with the appli-cation before the county registrar at theend of 21 days from the date of this noticeand will apply to the county registrar forthe city of Dublin for directions as may beappropriate on the basis that the personor persons beneficially entitled to thesuperior interest including the freeholdreversion in the aforesaid property areunknown or unascertained.Date: 2 February 2007Signed: Binchy (solicitors for the applicant),Quay House, Clonmel, Co Tipperary

Solicitor required for specialist construc-tion practice. Dublin office of reputableLondon firm. Initial three-month trainingperiod will be based in London. Litigationexperience required. Email covering letterand CV to: [email protected] orpost to Beale & Company, DolmenHouse, 4 Earlsfort Terrace, Dublin 2

Daniel Spring & Co, 50 FitzwilliamSq, D2, seek a solicitor for the con-veyancing department – salary nego-tiable. Apply in writing to the firm

Due to continued expansion, LaveryKirby Gilmartin are seeking suitablecandidates for the following positions:junior solicitor with commercial andbanking experience; legal executive.These roles offer high-calibre workwith great quality of life in a family-friendly firm; attractive remunerationpackages commensurate with experi-ence. Reply in confidence to JamesFlynn at [email protected] or tel: 01231 1430

Solicitor required for law firmbased in Dublin 1. The positioninvolves mainly immigration lawand civil litigation but with require-ments to deal with other areas ofgeneral practice. Salary negotiable.Immediate start. Please forward CVto [email protected]

Attention: overworked practi-tioners/concerned principals.Put your mind at rest. When youneed assistance temporarily that doesn’t justify a locum: experi-enced independent solicitor (inDX) available to clear backlog,complete registrations/undertakespecific projects. Discreet, efficientservice. Own insurance and prac-tising certificate. All areas.References available. Reply to boxno 10/07 or email: [email protected]

Solicitor with solid residential con-veyancing experience seeks a posi-tion in the Northwest region. Willingto consider a locum or part-time posi-tion. Reply to box no 11/07

Wanted: general position, assistantsolicitor, with an emphasis on personalinjury, general litigation and family lawin Wexford town. Full-time positionrequired. CV available on request.Please reply to box no 12/07

RECRUITMENT

NOTICE TO THOSE PLACING RECRUITMENT ADVERTISEMENTS IN THE

LAW SOCIETY GAZETTEPlease note that, as and from the August/September 2006 issueof the Law Society Gazette, NO recruitment advertisements willbe published that include references to years of post-qualification experience (PQE).

The Gazette Editorial Board has taken this decision based onlegal advice, which indicates that such references may be inbreach of the Employment Equality Acts 1998 and 2004.

Round Table Mediation and Training, Mainport,Monahan Road, Cork, tel: 021 496 6322,

e-mail: [email protected]

We offer a specialist workplace mediation

services, comprehensivetraining programmes in

conflict management andindependent investigativeservices into bullying and

harassment.

The Directors of the company are all accreditedpractitioner members of theMediators Institute of Irelandwith 25 years experience in

this area.

WORKPLACE MEDIATION& INVESTIGATION

REC

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TLAW SOCIETY GAZETTE JAN/FEB 2007

71www.lawsociety.ie

LAW SOCIETY GAZETTE DECEMBER 2006 RECRUITMENT


RECRUITMENT LAW SOCIETY GAZETTE DECEMBER 2006

77www.lawsociety.ie

law society gazette...the recent ‘wasted costs order’ case shows that extreme caution should be...

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