march 1998march 1998 contents - law society of ireland · 2017-06-02 · march 1998 law society...

Cover StoryBar wars

The legal profession in Ireland has been dividedbetween solicitors and barristers for more than 150years. Deirdre O’Brien, an Irish solicitor practising inNew York, looks at the history of the split and at how afused profession works in the United States

Degrees of separationA recent Supreme Court decision found that spouses who alreadyhave separation agreements cannot institute proceedings for judicialseparation. Alan Shatter discusses the background to this caseand its implications for family law practitioners

Your Girl FridayThe demand for legal secretaries is growing andthere are a lot of good candidates out there, but howdo you choose the right one? Barry O’Halloran talks tothe professionals

Portable powerAn ever-increasing number of people are busily tappingaway on their notebook computers on trains and buses,and even in court. Grainne Rothery finds out what’s hotand what’s not in laptop land

Casting off the tax netKevin Maguire steers a steady course through the taxtreatment of offshore acounts and the penalties for non-compliance

Taking a punt on the EuroEuropean monetary union takes off at the beginning of next year, but threatens to leave a series of legalproblems in its wake. Maria O’Connell looks at the legal framework underlying the new currency, the Euro

Making your benchmarkThe Law Society has just finished crunching the numbers from its first-everpractice comparison survey. Barry O’Halloran details the results

MARCH 1998 LAW SOCIETY GAZETTE 1

CONTENTSCONTENTS

REGULARS

President’s message 3

Viewpoint 4

Letters 9

News 10

Briefing 33

Council report 33

Practice note 35

Eurlegal 37

Acts passed in 1997 42

ILT digest 45

People and places 50

Book reviews 53

Professional information 55

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MARCH 1998MARCH 1998

The views expressed in this publication, save where otherwise indicated, are theviews of contributors and not necessarily the views of the Council of the Law Society.The appearance of an advertisement in this publication does not necessarily indicateapproval by the Law Society for the product or service advertised.

Published at Blackhall Place, Dublin 7, tel: 6710711, fax: 671 0704.

Editorial Board: Dr Eamonn Hall (Chairman), Mary Keane, Ken Murphy, Michael V O’Mahony, Helen Sheehy

Subscriptions: £45 Volume 92, number 2

Editor: Conal O’Boyle MA

Reporter: Barry O’Halloran

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PRESIDENT’S MESSAGEPRESIDENT’S MESSAGE

T his is my second messageto you as your President. Ithought it might be appro-

priate to outline to you certainmatters and events which haveoccurred since I took office.

Superior Court Rules SI 348/1997 (Disclosurerequirements in superiorcourts litigation)A meeting of the representativesof the Bar Council and LawSociety has taken place with asub-committee of the Rules Committee to progress the areas of concernas identified by the Society in previous correspondence to you. A fullmeeting of the Rules Committee is expected shortly and as soon as thereis further news I will let you know.

Education Review GroupI attended the afternoon session of an all-day Saturday meeting on 31January of the working group. I was extremely impressed with the workbeing done on behalf of the profession by this group and the breadth ofideas being exchanged. It was particularly heartening to see the workbeing done by colleagues drawn from such a wide spectrum, both youngand not so young, with energy and enthusiasm. I am confident that underthe chairmanship of Donald P Binchy the group will report shortly. Iwould like to thank Donald for assuming the chairmanship following theresignation of Ray Monahan, the previous chairman, who unfortunatelyhad to resign due to many other commitments. I would like to thank Rayalso for his chairmanship and efforts. When the report issues, theEducation Committee, the Council and the members will then have a fullopportunity to debate the issues and hopefully to arrive at a consensus onthe best way forward for the education of the solicitors’ profession in thenew millennium.

Multi-disciplinary practicesAs you are aware, prior to taking office I undertook to establish a taskforce to re-examine this issue because of developments in other jurisdic-tions. This task force has now been established by the Council under thechairmanship of John Fish (Arthur Cox). The other members of thecommittee are John Reidy (Reidy Stafford), Anne Colley (Anne Colley& Co), Daire Murphy (Abercorn Solicitors), Geraldine Clarke (GleesonMcGrath & Baldwin) and Ken Murphy (Director General). The taskforce has agreed to report to the Council at its meeting in Galway on 8May next and I urge those of you who have views in relation to this towrite to Therese Clarke, the secretary of the task force, or to any mem-bers of the task force as they have requested in this issue of the Gazette(see page 10).

Payment by lenders forwork done on behalf oflenders by borrowers’solicitorsThe report of the ConveyancingCommittee on this matter was pre-sented to the January Council meet-ing by Colm Price. It has now beencirculated to all bar associations. Itis essential that the bar associationsconsider this report as a matter ofurgency and let the Society have thebenefit of their views so that theCouncil will be in a position to for-

mulate its policy on this matter when it next meets on 26 March.

Member ServicesDuring the month, you have received an office manual designed to makeit easy for you to review and improve the way you run your practice. I amalso delighted that the new Law Society credit card has now been launchedand I am the proud owner of the first card. These cards can be used to availof any member services from publications to CLE courses.

Law Reform CommitteeThere has been a good response to-date to the questionnaire issued tomembers. I would urge those who have not responded to do so immedi-ately. The responses received are being collated and the committee has metto assess the many ideas and prioritise them for action.

Visits to bar associationsI am glad to report that in the month of February alone, the DirectorGeneral and I have visited and had meetings with the Roscommon BarAssociation, County Sligo Solicitors’ Association, Donegal Solicitors’Association, County Leitrim Solicitors’ Bar Association and a combinedmeeting with the Carlow/Kilkenny Bar Associations. The DirectorGeneral and I have had very positive exchanges of views at these meetingswhich I regard as an essential part of the communication process betweenthe Society and the members. I have to say that I was very heartened bythe support received from the bar associations and the positive ideas beingsuggested. The Director General and I would hope to continue to visit anumber of bar associations each month.

ConclusionIf there are any matters which you believe the Society should be attendingto, I would urge you to contact myself or the Director General so that theCouncil and the committees may consider the matters raised.

Laurence K ShieldsPresident

Progress to date

President Laurence K Shields launching the first-ever credit card designedexclusively for solicitors

4 LAW SOCIETY GAZETTE MARCH 1998

VIEWPOINTVIEWPOINT

Cyberspace, a term coined bynovelist William Gibson in

Neuromancer (1984), describesthat nebulous territory withoutphysical dimensions where elec-tronic communications ‘happen’,where e-mail messages over theInternet are stored, some in real-time, some delayed. There areinnumerable users employing vari-ous telecommunications and com-puting technologies.

One commentator, John PerryBarlow, describes cyberspace as‘vast, unmapped, culturally andlegally ambiguous … hard to getaround in, and up for grabs’. Themost popular phenomenon associat-ed with cyberspace is the Internet.

The Internet, as readers know, isa network of computer networks. Itoffers enormous business opportu-nities for selling products and ser-vices, described as electronic com-merce. The Internet is a globalmarketplace and use of the Internetis exploding.

The notaryCyberspace may be new; a notaryis of venerable antiquity. E RoryO’Connor in The Irish notary(1987) noted that the notary publicranks among the most ancient ofprofessions. He observed that earlycivilisations had officials of greatintellect, versed in the art of writ-ing who carried out functions sim-ilar to those performed by thenotary of today. Another writerrefers to notaries as performing theduties of private secretaries tokings, princes and acting as func-tionaries to popes and bishopsfrom ‘almost barbarous times’.

Notaries became indispensableofficers of rulers, monarchs andbishops, and were closely associat-ed with judicial dignitaries. At onetime, the notary was appointedpursuant to papal authority. Theancient oath administered tonotaries appointed by papalauthority followed the same for-mula as that administered to ajudge on his appointment. ThePontiff gave the notary the quill

and holder saying (translated fromthe Latin): ‘Receive the power todraw up public documents inaccordance with the laws andgood morals’. The Act ofFaculties passed by the IrishParliament in 1537 formallyended the right of the Pope toexercise his faculty in the appoint-ment of notaries.

All notaries in England areappointed by the Court of Facultiesof the Archbishop of Canterbury,in the exercise of the powers con-ferred by the EcclesiasticalLicences Act 1533. Today, inIreland, the Chief Justice, after dueexamination, appoints the notary.The office of notary public has avirtual universal recognitionthroughout the world. Lord Eldonin Hutcheon v Mannington (1802)[6 Vesey Jun 823] noted that ‘anotary by the law of nations hascredit everywhere’.

The functions of a notary pub-lic relate to, and include, authen-ticating public and private docu-ments; attesting and verifying

signatures to documents in orderto satisfy evidential or statutoryrequirements of foreign govern-ments, agencies or other suchbodies; noting and protestingbills of exchange and promissorynotes for non-acceptance andnon-payment; drawing up shipprotests, and giving certificates tothe acts and instruments of per-sons and their identities. Thenotary may draw up documentsof a legal or mercantile nature,take evidence as a commissionerfor foreign courts, and make andverify translations from foreignlanguages into the vernacular andvice versa.

The cybernotaryA cybernotary mirrors that of thenotary but is focused primarily onpractice in international, comput-er-based, legal transactions. Thereis the Institute of Cybernotaries ofIreland under the auspices of theFaculty of Notaries Public inIreland. The Dean of the Facultyis Walter Beatty, former president

of the Law Society; the registrarof the faculty is solicitor BrendanWalsh, sheriff for Dublin City.

One of the first statutes regulat-ing cybernotaries in the interna-tional domain is the ElectronicNotarisation Act, 1997 enacted bythe Florida legislature of theUnited States. The 1997 lawauthorises the Secretary of Statefor Florida to provide commis-sions for cybernotaries to performelectronic notarisations and alsoempowers the Secretary of State toestablish a licensing programmefor private certification authorities.The 1997 Act also grants rule-making authority to the Secretaryof State. The cybernotary musthave specialist qualifications andmust be a practising lawyer of fiveyears’ standing. The 1997 Floridalegislation also regulates the regis-tration of an electronic seal.Documents prepared or issued bypersons holding a valid certifica-tion of registration may be trans-mitted electronically and may besigned by the registrant, dated andstamped electronically with a sealin accordance with law. It isunlawful for any person to stamp,seal or digitally sign any documentwith a seal or digital signature incertain circumstances.

In Ireland, the Institute ofCybernotaries and the Faculty ofNotaries Public are keeping awatchful eye on cybernotarialdevelopments in the civilisedworld. The cybernotary will haveto be familiar with cryptographictechniques such as encryption,digital signatures, the concepts ofauthentication, password control,firewalls and the law relating toelectronic commerce.

Technologies and the informa-tion society are developing at aphenomenal rate. If we fail toenter the technology race on timeand be active participants, we mayfind ourselves excluded from themarket.

Dr Eamonn Hall is Chief LegalOfficer with Telecom Éireann plc.

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The cybernotary:a new breed of lawyer


VIEWPOINTVIEWPOINT

Recent strong criticisms of theIrish judicial system by the

lawyer of the husband of Frenchmurder victim, Sophie Toscan duPlantier, have focused attentionon the extent to which legal sys-tems within the European Unionco-operate – or fail to co-operate.

Both Maitre Paul Haennig andhis client, Daniel Toscan duPlantier, complained bitterly thatthey were not being keptinformed of the progress of theinvestigation into the murder ofMs de Plantier in West Cork inDecember 1996. Their criticismsreceived significant coverage inthe French media earlier this year.They may not have been entirelysatisfied by Minister O’Dono-ghue’s reply in the Dáil that ‘thereis a difference between Frenchand Irish law in relation to thesematters’.

The economic and politicalsystems of the 15 Member Statesin the EU are fast merging. Thelaunch date for the ‘Euro’, thenew single currency, is now lessthan ten months away. The politi-cal co-operation process, wherebythe foreign policies of the 15states are co-ordinated, continuesapace. But the 15 legal systems,with their traditions and proce-dures, are another matter.Different legal systems and cul-tures are not like computers onthe Internet – they do not yet eas-ily speak to each other. Theinquisitorial system is as far awayfrom our understanding and pro-cedure in Ireland as is the adver-sarial system in France.

Superb understatementIn what was arguably a superbpiece of understatement, theDepartment of Justice last yearnoted that ‘there is a feeling,among a number of practitionersconfronted daily with problems,that the international system ofjudicial co-operation is not work-ing to the entire satisfaction of thestates’. The Departmental discus-sion paper, published last May inthe closing weeks of NoraOwen’s turn as Minister for

Justice, protested that such inter-national problems related to prac-tical problems of implementingagreements, differences in thelegal systems and even translationproblems.

The most widely-known wayof seeking information from areluctant witness in another juris-diction is by sending a rogatoryletter to a court in that jurisdic-tion. This is a means to compeldiscovery of evidence or papers.But it is as roundabout and slowas it is usually ineffective. Theletter rogatory goes from, say, aFrench court to the French JusticeMinistry to the French ForeignMinistry to the French embassy inDublin to the Irish ForeignMinistry to the Irish JusticeMinistry to the Irish court. Andthe answer goes back the sameway. That’s a lot of time and a lotof new files, possibly for very lit-tle benefit.

In the du Plantier case, whatwas being sought was not evi-dence for use in a foreign juris-diction but information on aninvestigation here. The Frenchinvestigating magistrate, JudgeSophie Chateau, was refused theGarda file. As a result, theDirector of Public Prosecutions,Eamonn Barnes, is again at thecentre of criticism over lack ofinformation on the investigationand prosecution of a criminaloffence.

The Government White Paperon Foreign Policy, published in1996, reaffirmed the obviouswhen it said that the ‘Irish peopleare committed to the ideal ofpeace and friendly co-operationamongst nations founded oninternational justice and morali-ty’. In the du Plantier case, howcan this goal be best achieved?

According to the reportedreply from Barnes to JudgeChateau, there was insufficientevidence to bring charges againstanyone and investigations werecontinuing. M du Plantier’slawyer suggested that this was acavalier way of treating theFrench judicial system. Not forthe first time, Mr Barnes’ office iscast in the role of a lightning rodfor frustration at what is oftenseen as inadequate information

coming out from the criminalinvestigation and prosecutionprocess. Its international dimen-sion has given it a wider and moreembarrassing profile.

Frustration and anger with thecriminal law system are not new.The Department of Justice discus-sion paper, which many commen-tators have found refreshinglyfrank, admitted that many victimsof crime ‘justifiably feel forgottenby the system’.

Strongest criticIs it really all the DPP’s fault? Oneof the strongest critics of the pre-sent system has actually beenBarnes himself. Three years ago,he complained that people regu-larly attributed powers to hisoffice which even the Gardai didnot possess, including the powerto call in suspects or witnesses andto demand answers to questions.

As currency, trade and econom-ic barriers within the EuropeanUnion disappear, the need for anti-criminal co-operation has becomeever greater. Indeed, in the pastfive years alone, the justice andhome affairs Council of Ministers,including our Minister for Justice,has become the second largestCouncil of Ministers. In 1995alone, they held some 280 councilmeetings. In recent years, Irelandhas also ratified a further threeimportant conventions seeking tofight international crime.

Yet the criticisms from Paris onthe Irish criminal investigationand prosecution system remind usof what every first year law stu-dent who attends lectures soonlearns: justice (and investigations)must both be done and be seen tobe done.

An annual report from theDirector of Public Prosecutionshas been promised. Its first publi-cation is eagerly awaited. It canonly help to avoid misdirected,embarrassing and perhaps unfaircriticisms.

Pat Igoe is principal of Dublin-based firm Patrick Igoe andCompany.

G

When justice systems collide

DPP Eamonn Barnes: A lightningrod for frustration?


VIEWPOINTVIEWPOINT

The Government has said itintends to introduce a

Mental Health Bill this year aspart of its legislative pro-gramme. This should be the bestopportunity for 50 years to pro-vide Irish citizens with a highquality service, but unfortunate-ly the legislation is likely to bebased on the deeply flawed 1995White Paper on Mental Health.

This document has alreadyraised objections from groupsworking in the mental health ser-vices, with many doctors feelingthat its provisions leave themopen to lawsuits for unlawfuldetention. General practitionersare unhappy with the wholecommittal procedure, feelingthat it should be dealt with bythose specialising in the psychi-atric services. For their part, con-sultants are unhappy that theywill be entrusted with the com-mittal of individuals whichcould lead to personal physicaldanger at the time of committaland also to an unsatisfactorydoctor-patient relationship fromthat point onwards.

Visionless White Paper The White Paper is a rathervisionless, reactive documentthat rather too narrowly attemptsto comply with the Europeanconvention on human rights. Italso seems to be heavily influ-enced by the United Kingdom’sMental Health Act 1983.However, the UK Act has led to

a crisis in the level of services inBritain over the last 15 years andthe near collapse of ‘care in thecommunity’ as a model for thedelivery of care.

One particular concern thatshould be of interest to solicitorsis the complete lack of provisionin the White Paper for any per-sonal representation for involun-tary mental patients. Significant-ly, Ireland (along with the UK)abrogated from article 4.3 of theCouncil of Europe recommenda-tions on mental health (adoptedhere in 1983) which sets out theprinciple of personal representa-tion. The Irish Council for CivilLiberties (ICCL) believes thatpersonal representation is a basicright. It seems extraordinary thatin this country those chargedwith a criminal offence, and whoface the loss of their liberty, arequite correctly allowed an auto-matic right to legal representa-tion, while people denied theirliberty in the context of a com-mittal to a mental hospital arenot.

The White Paper proposesestablishing a Commissioner forMental Health, but this simplyrepresents the continuation ofthe current post of Inspector ofMental Hospitals which is heldby an acting clinical director ofa mental hospital. Clearly, thereis the danger of a conflict ofinterest here. The ICCL wouldprefer to see the establishmentof an Ombudsman for Mental

Health who could make a thor-ough annual audit of the system.

Stigma surroundingmental healthOne of the main problems withmental health is the stigma asso-ciated with it. This is not helpedby an inane media which largelyviews those with mental illness(and even, sometimes, those whocare for them) as either figures offun or a danger to society. Andthis extends even into the politicalarena: in my research into thisarticle I was unable to obtain asingle position paper on the issuefrom any of the political parties.This political apathy is dangerousbecause it could lead to a situation

where the Bill will be passedquickly, without proper discus-sion.

It would not be overstating thecase to say that a stay in a mentalhospital is probably more stigma-tising than a period in prison. Toaddress this, the ICCL calls forthe introduction of legislationagainst discrimination on thegrounds of mental illness in theareas of employment, education,housing and so on – and this leg-islation should specifically protectthe rights of people who havebeen the subject of involuntarydetention.

Finally, principle 1 of the UNprinciples on the protection ofpersons with mental illness(adopted here in 1991) says that‘all persons have the right to thebest available mental healthcare’. The ICCL believes that the‘best available care’ shouldinclude a range of treatment types(from the physical and pharmaco-logical to the social and psycho-logical).

This country is currentlyundergoing unprecedented eco-nomic growth. The introductionof much needed legislation onmental health care offers theGovernment an opportunity to actin a humane and progressive man-ner for a long-neglected andunder-funded area of Irish life.

John McDermott is ExecutiveSecretary of the Irish Council forCivil Liberties.

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Why we need a rethinkon mental health care

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John McDermott: ‘Opportunity forGovernment to act in humane

manner’


VIEWPOINTVIEWPOINT

This headline should perhapscarry quotation marks as it

first appeared recently over anarticle in the Irish Independentby that newspaper’s ‘columnistat large’ Sam Smyth.

His article sought to addresssome very unfair criticism ofthe fees paid to lawyers for thelate Brigid McCole. The head-line could apply equally well tothe lawyers who similarly suc-ceeded against enormous oddsin securing some justice fortheir clients in another high pro-file case in which appalling suf-fering resulted from negligenceby an agency of the State,namely the McColgan case.

These cases are a vindicationof the ‘no win, no fee’ systemand of the dedication of lawyerswho are prepared to work foryears on cases, for which theymay never be paid, becausethey believe that their clientshave suffered a deep injustice.

Pursuing truthBrigid McCole knew from anearly stage that she was likelyto die from Hepatitis C whichshe had contracted from a bloodtransfusion she had receivedfrom the Blood TransfusionService Board. She could haveobtained some compensationfrom the ‘no fault’ tribunalestablished by the Governmentbut she wanted something morethan that. She wanted to knowthe truth. The only way inwhich the behaviour of theState agency could be exposedwas by her lawyers seeking dis-covery through the courts. TheState resisted her at every stepof the way in an aggressivedefence which included threat-ening that, if she didn’t give upher right to fight for compensa-tion, her anonymity would bestripped away and every deci-sion appealed to the SupremeCourt.

In their pursuit of the truth,Mrs McCole’s lawyers discov-ered that ‘Donor X’ was not a

donor but a woman undergoingplasma exchange, and that herinfected plasma was taken andgiven to others without her, orher doctor’s, consent. TheBTSB had known since 1987that Donor X did not have jaun-dice but infective hepatitis.

A team of lawyers on herbehalf – led by Susan Stapletonand Tara Meagher of solicitorsIvor Fitzpatrick & Co, andcounsel John Rogers SC, IanMcGonagle SC, and MichaelCush BL – worked for years incircumstances where there wasevery likelihood they wouldnever receive a penny in fees,building up evidence in the casethrough discovery of docu-ments and other work. It bene-fited Brigid McCole very littlein the end when she and her

legal advisors were forced onher deathbed to accept a muchreduced settlement figure.

Shocking negligenceHowever, as Sam Smyth put it,‘if Brigid McCole hadn’t resist-ed the tribunal and risked every-thing by instructing her lawyersto go to court, there would havebeen no tribunal of enquiry, nopublic outrage. She would havedied quietly and the scandal oftheir shocking negligence wouldhave been confined to theDepartment and the BTSB. MrsMcCole’s legal advisors werenothing short of heroic and didtheir country some service bytheir professional handling ofthe scandal. And lawyers, likemothers-in-law, make soft tar-gets’.

The case taken by the fourMcColgan children against theNorth Western Health Board isanother example. They soughtan admission of wrong-doingand compensation for negli-gence by the health board infailing to protect them as chil-dren from the unspeakable bru-tality and violations which theysuffered at the hands of theirnow-imprisoned father.

Again, this was a case inwhich the plaintiffs incurrednational publicity about the pri-vate tortures they had sufferedin their youth and faced a verydetermined defence by the State.Once again, much turned on dis-covery of documents and thelegal skill of the McColgans’lawyers in uncovering and mar-shalling evidence.

Finest traditionsAlthough Ivor Fitzpatrick & Coare a large solicitors’ firm withsubstantial personnel and otherresources, the McColgan casewas brought by solicitor KevinKilrane of Mohill, Co Leitrim.The cost of mounting the casewas enormous for such a smallfirm. The level of perceivedinjustice suffered by theMcColgans, however, wasreflected in the fact that two ofthe leading members of the Bar,James Nugent SC and GarrettCooney SC, took on this case,turning away doubtless morefinancially rewarding work todo so.

The work of the lawyers inthe McCole and McColgancases is in the finest traditions ofthe legal profession. Although itwas the appalling results of neg-ligence by the State which theyexposed, it is all the more true tosay that by doing so they havedone the State some service.They have also done a great ser-vice to their clients, to the legalprofession, and to justice.

Ken Murphy is Director Generalof the Law Society.

G

Heroic lawyers do their country some service

Dublin Four Courts: scene of the McColgan case

Letters


VIEWPOINTVIEWPOINT

From: Donal Reilly & Collins,Solicitors, Dublin

Iam concerned that the LawSociety may lose its opportuni-

ty to make proper representationsto the Government on the issue ofcompetition. It appears to me thatthe new regulations prohibitingadvertising in respect of personalinjury litigation is yet anotherdoomed attempt to cut down onthe level of personal injury litiga-tion. While I approve the ban forother reasons, I do not think wecan escape the fact that it is goingto make very little difference to

From: Pat Igoe, Patrick Igoe andCompany, Dublin

We deposited scheduled doc-uments of title this week

with a lending institution. As usual,we were told that they would notreceipt the individual documentsbut that we would receive a sched-uled receipt after they had been

From: Gerard O’Herlihy, MRoche & Co, Dublin

May I, through the Gazette,suggest that the recent

folder sent to us allegedlyadvertising ‘member services’is, in my view, the most scan-dalous waste of money that I

Bullying by large institutions

checked. However, it was acknowl-edged that they require a solicitorto acknowledge receipt of individ-ual documents when we take updocuments of title from them.

For how long are we going totolerate bullying by large andwealthy institutions that do noteven pay us for exacting profes-sional services?

Advertising regulations and proposed legislation

What arewords worth?From: Clodagh Madden, Dublin

Appointment

Weary, wilting, waiting clientWhy is he here? What went

wrong?Rainy Monday, damp coat

steaming‘Please take a seat’ ‘He won’t be

long.’

Row of chairs in smart receptionOut of place. How will he cope?Drops umbrella, fumbles in

pocket,Sees the sign ‘Please don’t smoke.’

Economist, Gazette on laden tableBusiness & Finance out of dateMeaningless articles, why not The

Sun?Restless, tired, worried, up late.

Fidgeting, frightened, fretfulclient

Intimidating atmosphere,Receptionist dealing with incom-

ing callsLegal jargon. Tries not to hear.

Hopeless, helpless, wants to cancel.

‘You can go in now – first on theleft’

Gathers coat, umbrella, awkwardlycarrying

Rain dampened papers clutched tohis chest.

Solicitor welcomes from behindhuge desk,

Quality pin-stripes, gleaming shirtHandshake firm. ‘How can I help

you?’Factory accident, he’d been hurt.

Words confusing, ‘Counsel’‘Summons’

Dictating at speed to smallmachine

Scared to question, ‘consultation’?Is this about him? What does it

mean?

‘Straightforward case, presents noproblem’

Will he lose his job? Will he getany money?

Solicitor beaming with confidenceClient nods, can’t speak his worry.

Appointment over, client ushered,Silently trying to guess the cost,Out the door, into drizzling

Monday,Umbrella forgotten. Day’s work

lost.

‘Scandalous waste ofmoney’

Who wantsto form an

SDU?From: Richard O’Hanrahan, 6Lower Cecil Street, Limerick

Iwould like to hear from othermembers of the profession who

would be interested in forming aSolicitors’ Defence Union. Pleasecontact me on 061 411211.

have seen emanating from theLaw Society in many years. Thisinformation could easily havebeen given to us in a simplebooklet form at much lessexpense and without the glossyfolder which clearly does noth-ing but assist in the destructionof the rain forests.

Your viewsYour letters make your magazine and may influenceyour Society. Send your letters to the Editor, Law Society Gazette, Blackhall Place, Dublin 7, or you can fax us on 01 671 0704.

the level of litigation. In thisregard, the opportunity should bepresented to the Government toface the reality with respect tosolicitors, namely, that over-com-petition among solicitors is notonly bad for solicitors but it is alsobad for the country.

There are many justificationsfor bending the competition rulesamong solicitors: in particular, theeffect of restriction of the practiceto the small island of Ireland, thelength of time it takes to qualify,the necessity that solicitors beabove financial temptation, andtheir function as almost quasi civil

servants in the proper administra-tion of transfers of capital and pay-ment of tax.

For all these reasons, and alsofor the benefit of the taxpayer, itwould be appropriate if solicitorswere permitted to limit the num-bers qualifying to the amount theyfeel the market could take. I thinkthere are few members to whom itis not clear that, despite the boomeconomy, and in particular a boomin property prices, the result ofover-competition means that mostsolicitors, especially conveyancingsolicitors, are still effectively inthe recession.


NEWSNEWS

BRIEFLYCounty registrar vacanciesThe Law Society and Bar Council will

be notified by the Department of

Justice of all county registrar vacancies

from this month on. According to a

recent letter from the Department,

the Tipperary County Registrar’s posi-

tion will be vacant from 17 March

1998 when Patrick J McCormack

retires. Applications are available from

the Department’s courts division.

Financial services on the horizonThe New horizons programme contin-

ues this month with a financial ser-

vices business breakfast on 11 March

in the RDS, Ballsbridge, Dublin. The

guest speaker will be Michael

Buckley, managing director of AIB

Capital Markets.

New horizons is a career develop-

ment initiative aimed at introducing

solicitors and apprentices to new

areas of employment and business. It

is run in association with Price

Waterhouse. For more information,

contact Geraldine Hynes at the Law

Society (tel: 01 6710200).

Central Bank to regulate insurersThe Central Bank has taken over

responsibility for regulating insur-

ance intermediaries. The move was

announced recently by Science,

Technology and Commerce Minister

Noel Treacy. The Minister said that

‘centralising responsibility for the

regulation of financial intermediaries

under the Central Bank, and using

the very extensive powers available to

the bank under the Investment

Intermediaries Act, 1995 will provide

a more effective system of regulation

and will give greater protection to

consumers’.

Family lawyers to come together The fifth Family Lawyers’ Association

annual conference and AGM will be

held in the Great Southern Hotel,

Rosslare, Wexford, from 15 to 17 May.

The conference will focus on two

issues: the Children Act, 1997, and

non-marital co-habitation and the

law. For further information, contact

Mark Graham, Ormond Quay Law

Centre, Dublin 1 (tel: 01 8724133),

Jennifer Curry (tel: 01 8290000) or

Sora O’Doherty, Law Library (tel: 01

7023989).

One year after divorce legisla-tion was introduced, a long

list of actions is still waiting to beheard by the courts, according to aleading family law practitioner.Just 356 divorces were grantedlast year, while 1,360 applicationswere made to Circuit Courtoffices around the country.

But few, if any, disputed settle-

ments have come before thecourts at this stage, and practi-tioners predict that there will be alarge number of these cases heardin the near future.

Solicitor and former divorceactivist Katherine Kelleher ofCork-based firm ConwayKelleher Tobin told the Gazettethis month that there are a large

number of contested divorceswaiting to be listed. ‘There are alot of settlements that will have tobe contested, but most of themhave not made it to the lists yet’,she said.

She added that applicants whowant to contest their divorces stillface a wait, but pointed out thatmany of them already have judi-cial separations and may be pre-pared to sit it out. ‘If you’ve wait-ed four or five years, then onemore year does not make muchdifference’, she said. ‘We don’treally have a divorce culture inthis country and it will take awhile to get it into people’s psy-ches. Also some people are afraidthat it will affect their social wel-fare benefits, which of course itwon’t’, she told the Gazette.

Long list of divorce caseswait for hearing

Legislation to reform our out-dated copyright laws will be

published next July, according toTanaiste Mary Harney. Shepledged to overhaul theCopyright Act, 1963 in the wakeof an international row over intel-lectual property which forced theUnited States to bring Irelandbefore the World TradeOrganisation (WTO).

The controversy forced theTanaiste to recognise Americanconcerns over penalties and pre-

Harney pledges copyright reformsumption of ownership of copy-right. In a statement, she pledgedto publish the new legislation bynext July. ‘Ireland is committed toachieving the highest level ofintellectual property protectionand fully intends to bring forwarda comprehensive Copyright Billto thoroughly overhaul our basic1963 Act’, she said.

The US alleged that Irelandwas not complying with parts ofthe Trade Related Aspects ofIntellectual Property Agreement

(TRIPS), which we signed in1996. The Americans made a for-mal complaint to the WTO andcalled on the organisation to setup a dispute panel.

Workinggroup on

MDPs/partnershipsHaving regard to developments in

other jurisdictions, the President of

the Law Society has set up a work-

ing group, under the chairmanship

of solicitor and former Council

member John Fish to examine and

report to the Society’s Council on

issues affecting a) the profession,

b) the public and c) the Law Society

arising from the establishment of

multi-disciplinary practices/part-

nerships. The chairman would wel-

come the views of members.

Submissions should be sent to

Therese Clarke, secretary to the

working group, at the Law Society

before 20 March.

Courthouse gossip around thecountry has concerned

rumoured plans to increase theupper jurisdictions of the Districtand Circuit Courts. To determineif there was anything behind therumours, Law Society DirectorGeneral Ken Murphy recentlywrote to Justice Minister JohnO’Donoghue for information.

In reply, Murphy received a

copy of a written answer fromO’Donoghue on 17 December 1997to a Dáil Question in which theMinister said ‘while I have no plansat present to increase the jurisdic-tion of the District and CircuitCourts, I am considering what stepsshould be taken for the purpose ofreviewing the existing civil juris-dictions of the courts in question’.

So now you know!

No jurisdiction increases ‘at present’


NEWSNEWS

BRIEFLYLibrary book saleThe Law Society’s library staff weed-

ed out a number of old and super-

seded editions of textbooks during a

recent re-cataloguing. These will be

on sale in the library during the

week 23 to 27 March next from

8.30am to 5.30pm. Proceeds from

the sale will go to the Solicitors’

Benevolent Association.

Conference to tackle new technologyThe 13th BILETA conference will be

held in Trinity College, Dublin, on

Friday and Saturday 27 and 28

March next. The main themes will

be:● Technology and the courts● Legal issues arising from the new

technologies● Developing issues and research

agendas.

Speakers will include Lord Justice

Brooke, Justice Susan Denham and

Justice Laddie, as well as lawyers

and judges from Ireland, the UK,

Europe, Canada and Australia. For

more information, contact the Short

Course and Professional Unit,

University of Ulster at Jordanstown

(tel: 080 1232 366680).

Britsh PM’s wife to chair conferenceCherie Blair will chair the 1998

Woman Lawyer Conference at the

New Connaught Rooms, London,

England, on 25 April next. The line

up of speakers includes Harriet

Harman MP, the British Lord

Chancellor, Lord Irvine of Lairg, and

Heather Hallet QC, the first woman

chair of the English Bar Council.

German law courseThe German Lawyers’ Academy will

hold an intensive course beginning

next May for anyone who wishes

to sit Germany’s qualifying exams

for lawyers. Running from May to

November in Baden-Baden, the

course will take the form of six

intensive one-week sessions from

May to November. Candidates will

be able to sit the exams next

autumn or winter. Any lawyer from

any EU country can take the course

(tel: +49 228 983 6677).

The introduction of the newindependent Courts Service is

trailing three months behindschedule. The Courts Service Bill,the legislation needed to set up thenew structure, was originally timedto be passed by the Oireachtasbefore last Christmas, but theGazette has learned that it will onlygo before the Dáil this month.

According to a Department ofJustice spokesman, the Bill wasinitiated in the Seanad, which hasonly just finished debating it. ‘Itwill go before the Dáil sometimearound 10 March, and it will be amonth or two before the house’, hesaid.

When the Bill was publishedlast October, the Department pre-dicted that the new service wouldbe up and running by next summer,and said transitional arrangementswould be in place by early thisyear. But now it looks like the newstructure will not be functioningfully until the autumn, almost ayear after the legislation’s publica-tion. The Department spokesmandenied that there had been anydelay in getting the Bill passed.

eral other offices. It will also beresponsible for all the state’s courtbuildings. The service will be man-aged by a board chaired by theChief Justice or a Supreme Courtjudge nominated in his place. Itsmembers will include solicitors,barristers, the judiciary and repre-sentatives from all interestedorganisations. A chief executiveappointed by the board will beresponsible for the service’s day-to-day operations. All court staffwill transfer to it and new staff willalso be recruited by the service.

The proposal has the LawSociety’s backing. When the Billwas published, Director GeneralKen Murphy described the provi-sions as long overdue and pointedout that it should greatly improvethe administration of justice in thiscountry.

Solicitorsand the Euro

The Law Society, in conjunc-tion with the Bank of Ireland,

is producing a solicitor-specificEuro publication which will beissued to practices in early May tocoincide with the EuropeanCommission’s announcing ofconversion rates on 2 May. Thisguide will advise solicitors aboutthe impact of the Euro on theirbanking requirements, clientaccounts, trust accounts and soon. It will also identify the oppor-tunities and responsibilities forsolicitors in advising their busi-ness clients. A seminar on thistopic is scheduled for Thursday14 May, 5-7pm, in BlackhallPlace.

Courts Service facingthree month delay

Proposals to reform the jurysystem in fraud cases are

being actively considered by theBritish government. A UK HomeOffice paper has suggested fouroptions for white-collar crime tri-als to deal with the difficultiesregularly encountered when pros-ecuting these offences.

The four options include:● Creating a pool of jurors with

specialised financial knowl-edge or selecting them on thebasis of qualifications or apti-tude tests

● Holding trials before a single

High Court PI listPractitioners should note that applications to list cases for hearing in the Dublin

personal and fatal injuries list may be made either on consent before the registrar

at 9.30am or on notice to the other party at 10.30am to the court on any

Wednesday morning in term. No case will be listed without such application.

List 2 cases (that is, ‘army hearing loss cases’) have been adjourned to Easter

term. No applications will be entertained in respect of this list until further notice.

Dates are freely available for the remainder of Hilary term.

‘Any delay that could occur wouldoccur in the Dáil’, he said. ‘As weunderstand it, it will be up andrunning by the autumn session’.

Under the Bill, the new agencywill run the courts system insteadof the Minister for Justice and sev-

UK government proposesfraud-case jury reform

judge or a panel of judges withexpert assessors

● Tribunals of a judge and layassessors

● Extending the judge’s role toshorten trials and simplify thejury’s task.

UK Home Office Minister AlunMichael said the proposals wereaimed at tackling the complex finan-cial techniques used by white-collarcriminals. ‘As financial techniqueshave become more elaborate andspecialised, so trials have becomelonger and more complex’, he said.

Ken Murphy: ‘Courts Serviceshould greatly improve

administration of justice’

12 LAW SOCIETY GAZETTE

BAR WA

The strongest advocate for the continuation of a dual systemis, and always has been, the Bar itself. With remarkabletenacity, the Bar has opposed all attempts by solicitors togain extended rights of audience or to encroach in any wayon its domain.

In England, particularly, solicitors (their determination fluctuatingwith market forces) have fought down through the years against theBar’s monopolising of the administration and practice of law. DavidLloyd George, a solicitor, was Prime Minister of Britain when a speak-er referred to him as ‘a man of brilliance who could not attain the appro-priate level in the law because he is a solicitor’.

In England, the Courts and Legal Services Act of 1990 has opened theway for suitably qualified solicitors to achieve parity with the Bar in thecourts and on the bench. The Irish Bar, however, shows little sign ofchanging its position in the countdown to the Twenty-First Century.

New breed of Irish clientThe general public has shown surprisingly little interest in the perennial‘Bar Wars’ of the profession. But this is likely to change. Irish graduatesare returning in significant numbers to Ireland from countries like theUnited States, Canada and Australasia where the profession is fused.Well-educated, well-travelled, confident people, they know what theywant and are used to getting it. Having conducted business and legalaffairs abroad, this is a breed of client which the Irish legal professionhas not had to contend with before. Questions are being asked. Why isthe profession divided? Why do they have to have two lawyers for onecase, and therefore two fees? Why have they no access to the barristerconducting the case? And dissatisfaction is being expressed over thethorny issue of the returned brief or hand-over.

It would appear, then, that both solicitors and the public, albeit notalways for the same reasons, would benefit from a change in the statusquo. But would the barristers themselves benefit?

The following is an extract from one solicitor’s argument against adivided profession: ‘the people of England, like the citizens of theUnited States of America, would find the advantage of a cheap divisionof labour ... Rapid as the transitions unquestionably are in our profes-

The debate about the divided legal profession and apossible fusion of the two branches of barrister andsolicitor has been going on for more than 150 years.

Deirdre O’Brien, an Irish solicitor practising in New York,looks at the history of the split and at how a fused

profession works in the United States

COVER STORYCOVER STORY

LAW SOCIETY GAZETTE 13

WARSsion, all barriers between [the respective professions] should at

once be removed, because they originated in dark and ignoranttimes, and are totally unsuited to the age in which we live and in

which we hope to prosper’.The writer, William Lockey Harle, penned no less than 31 pages tothe Lord Chancellor of England in 1851 on the topic. Rapid and dra-

matic as all kinds of transitions unquestionably have been in theworld since 1851, the profession in Ireland is as divided in

1998 as it was 150 years ago, and the arguments whichHarle was then making in favour of fusion are still valid

today.Let us look at the dark and ignorant times in which

the barriers between the professions originated.In the middle of the Fifteenth Century, there

were four branches of the legal profession inEngland: two branches of pleaders (serjeantsand barristers or apprentices) and twobranches of attorneys (attorneys and solic-itors). While the pleaders were makingarguments before the courts, the functionof attorneys seems to have centred on the

business of working with clients to pre-pare cases.

Varlets and vipersBy the late Sixteenth Century, solicitors and

attorneys were being grouped together andwere clearly distinct from the ‘just and honestserjeants and counsellors at law’. The work ofsolicitors (from the Latin sollicitare, to agitate,urge, solicit) was uncontrolled at this time, andthey earned the reputation of ‘varlets, vipers andpettyfoggers’.

In 1614, attorneys and solicitors were formallyexcluded from membership of the Inns of Court.(They were readmitted to the Court of CommonPleas in 1665.) The Benchers of the four Inns ofCourt stated at the time: ‘There ought to be pre-served a difference between a counsellor at law... and attorneys and solicitors which are butministerial persons of an inferior nature, there-fore it is ordered that henceforth no commonattorney or solicitor shall be admitted to any ofthe four Houses of Court’.

By the time the title ‘solicitor’ was substi-tuted for the various functionaries (attor-neys, solicitors, proctors, and other non-bar-risters) in 1874, solicitors were a separate

profession from barristers, with a separate governing body and legaleducation.

There seems to be little question that the attitude of disdain for a branchof the profession seen as being ‘lower’, in terms of ability and qualifica-tion remains in the profession to this day, despite the fact that there’s nodifference in the degree of qualification, and despite the irony that the Baris dependent for its survival on the solicitors’ profession, which is also itsonly competitor.

A case could be made that the Bar’s restrictive practices may be hurt-ing its own members. A barrister cannot deal with the public directly, can-not be a partner with anyone else, and has to practise as a referral-onlyconsultant. A lawyer in a unified system, on the other hand, can deal withthe public directly, can enter into partnerships and can also practise as areferral-only freelance advocate, if he or she so chooses. Perhaps someyounger, hungrier barristers might be interested in the options that a uni-fied profession would offer them.

Why should a lawyer choose to be a barrister when becoming a solici-tor-advocate has so many advantages?

One argument traditionally put forward by the Bar in its own defenceis that it allows for specialisation. Fused systems, however, do not lackspecialists. In the United States, for example, if a client has, say, a copy-right issue, a defamation issue or a medical malpractice issue, he uses alawyer who specialises in that particular field. If a client has a generalpractice lawyer who does not specialise in the area in question, this gen-eral practitioner will refer the case to a specialist, and then either drop out(sometimes commanding a referral fee, sometimes not) or remaininvolved, the other attorney being retained in an ‘of counsel’ or advisorycapacity.

In any event, the client and the lawyer conducting the case speak andmeet each other as often as necessary. If the parties are not compatible,either one can terminate the relationship at any point. The lawyer who lit-igates when the matter eventually comes on for hearing is the same per-son who is familiar with the case, who knows the client and in whom theclient has confidence.

Contrast this with the system in Ireland. The client (excepting frequentlitigators) usually has no input regarding the barrister briefed by his solic-itor. The parties have little or no contact while the case is being prepared,so that on the hearing day there is no relationship between them and notrust. Add to this the bewilderment which the average member of the pub-lic feels at the alien world of wigs and robes into which he has been thrust.

Experts available to allOne point that has been raised in the Bar’s favour is that the current sys-tem makes the services of experts available to all – to the countryman whovisits his sole general practitioner in Ballybeyond, as much as to the busi-nessman who retains the services of the biggest firm in Dublin.

This sounds wonderful, but what does it mean in practice? The client ofthe rural sole practitioner may well benefit from the expertise of a much

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COVER STORYCOVER STORY

sought-after member of the Bar in thedrafting of his papers, but where willthe eminent counsel be on the day ofthe hearing? And even if he or shedeigns to see the matter through, howmany other pressing issues will coun-sel have to attend to on the day, and inhow many other courtrooms willcounsel need to be?

The reality is that the little guy isnot the priority, and unlike the bigguy who calls the shots, he’ll have tomake do.

To take this scenario a step further,the brief may well be handed over onthe day of the hearing to another bar-rister who knows absolutely nothingabout the case. What sense does itmake to have one lawyer, the solici-tor, who knows everything about thecase bound to silence, while anotherlawyer, who is not familiar with it, litigates? It is true that some solicitorshave no advocacy skills, but this fact cannot justify the system.Transactional lawyers in a unified system often have no desire to litigate, butthere is no shortage of excellent advocates. Perhaps the solicitor in questionshould be given the option to act as advocate in these circumstances.

And last, but not least, how much economic sense does it all make? Inthe mid-1980s the issue received some bad press when a solicitor for CyrilSmith MP was refused permission to read out the terms of a libel actionsettlement in the High Court in London. He objected to the cost ofemploying a barrister for this simple task and the press naturally enjoyed

the in-house bickering.It does not make any economic

sense to pay two professionals whereone will suffice. Indeed, solicitorsoften take advantage of a systemwhere they can request an opinionfrom counsel, for which the client isbilled, rather than simply research thetopic themselves. And the client mustpay both parties. As in the CyrilSmith example, there is a lot ofunnecessary representation by barris-ters because the system allows it.

The divided profession may havebeen a good one in its day, but nosystem can exist unchanged for alltime. Edmund Christian, an Englishsolicitor and distinguished legal his-torian, wrote that the TwentiethCentury ‘may begin and end withbarristers in sole possession of the

right of audience in the superior courts, and solicitors still sitting (asDickens said) silent like truth at the bottom of the well’.

It remains to be seen whether the profession will rise to the new chal-lenges and realities of the next century.

Deirdre O’Brien is an Irish-qualified solicitor now practising as an attor-ney in New York with O’Brien and Associates. The views expressed in thisarticle are entirely her own. Last year the Council of the Law Societyreaffirmed its policy that the public is best served by the current divisionof the legal profession into solicitors and barristers.

G

Deirdre O’Brien: ‘Will the legal profession rise to the new challenges andrealities of the next century?’


W hy would any husband or wifewho has already been through thetrauma of a separation agreement

want to institute judicial separation proceed-ings? The answer is simple – a hope that fol-lowing the granting of a judicial separationdecree, ancillary relief orders will be maderesulting in a better financial or property dealthan that provided for in the original agree-ment.

It fell to the Supreme Court by way of casestated in P O’D v A O’D (unreported,December 1997) to definitively determinewhether the judicial separation jurisdiction ofthe courts can be properly so invoked. CircuitCourt Judge Catherine McGuinness (as shethen was) had originally determined that theapplicant husband was not prevented fromseeking a decree of judicial separation pur-suant to the Judicial Separation and FamilyLaw Reform Act, 1989 and ancillary orderspursuant to the aforesaid Act by virtue of thefact that he had 19 years earlier entered into adeed of separation with his wife (see 3 Fam LJ96). The decision of Judge McGuinnessaccorded with an earlier judgment delivered byher in CN v RN (1995 1 Fam LJ 14) in whichshe had also held that a separation agreementconcluded between a couple in 1981, and a fur-ther one which revoked and replaced the orig-inal agreement concluded in 1986, did not pre-vent an applicant wife from seeking a decree ofjudicial separation and ancillary relief.

In P O’D v A O’D, having found in favourof the husband, Judge McGuinness agreed tostate a case to the Supreme Court to ascertain

whether she was correct in holding that she hadjurisdiction to grant a decree of separationwhere a deed of separation already existed. Shedetermined that the public importance of theissue, which affected thousands of already sep-arated couples, justified a Supreme Court deci-sion on the issue.

In the earlier case of Courtney v Courtney(1923 2IR 31), the Court of Appeal had heldthat a covenant in a separation agreement not tobring divorce a mensa et thoro proceedingsagainst a spouse for misbehaviour prior to theexecution of the agreement would be upheld bythe court. In that case, the court dismissed thewife’s petition for a decree of divorce a mensaet thoro from her husband on the ground of cru-elty, Dodd J stating that parties to a bindingcontract ‘who agreed so to settle a matrimonialcontroversy must be taken to contract that theywould not go behind the settlement and cannotbe listened to saying that they did not make anexpress stipulation not to sue’.

No express covenantIn K v K (1988 IR 161), while the parties hadconcluded a deed of separation, there was noexpress covenant contained in the agreementthat neither would in the future sue for a decreeof divorce a mensa et thoro. The husband’scentral objective in seeking a decree of divorcea mensa et thoro was to effect an automatic ter-mination of his wife’s inheritance rights.McKenzie J in the High Court refused to grantthe decree, stating:

‘All that a divorce a mensa et thoro can do isto give the parties the right to live separately

Degrees

A recent Supreme Court decision found that spouseswho already have separation agreements cannot institute proceedings for judicial separation. Alan

Shatter discusses the background to this case and itsimplications for family law practitioners

sepof


FAMILY LAWFAMILY LAW

and this they had already under the deed. Inmy opinion the fact that the parties entered intothe deed, whereby they agreed to separate andlive apart, separate and free from all maritalcontrol and authority, is a bar to the presentproceedings’.

One month after Judge McGuinness haddelivered her Circuit Court judgment in P O’Dv A O’D, the Supreme Court in F v F (19952IR 354) held that a separation agreemententered into for the purpose of settling existingproceedings seeking a decree of divorce amensa et thoro barred a wife from subsequent-ly bringing judicial separation proceedingsunder the 1989 Act. The court held that an

application for judicial separation is the sametype of action as the former application for adecree of divorce a mensa et thoro. In thecourt’s view, the wife was seeking to bring thesame action under a different name.

Relief not neededBlayney J in his judgment cited with approvalthe judgments of Dodd J in Courtney vCourtney and that of McKenzie J in K v K andgave as an additional reason for dismissing thewife’s claim the fact that she did not need ajudicial separation as she had ‘been lawfullyseparated from her husband for the last sevenyears’. She was, Blayney J stated, ‘asking the

court to give her relief she does not need (ie adecree of judicial separation) with a view tobeing in a position to obtain other (ancillary)orders that she would like to have’. He con-cluded that this was not a form of proceeding towhich the court should lend its support.

Denham J in her judgment emphasised that‘the issue of living apart is critical to the analy-sis of the situation’. As it was ‘quite clear fromthe Circuit Court order and settlement that theparties agreed to live separate and apart’, sheheld that the wife was not entitled to proceedwith a new action for judicial separation.Stating that an order of judicial separation ‘isthe gateway to the field of ancillary reliefs in

aration


FAMILY LAWFAMILY LAW

the 1989 Act’, she held that as thewife could not walk through thegateway, she could not benefit fromthe ancillary reliefs.

The P O’D v A O’D case was dis-tinguishable from F v F insofar as adeed of separation had been enteredinto between the parties in 1979without the institution of divorce amensa et thoro or any other type ofproceedings. In the Supreme Court,the following arguments were madeon behalf of the wife:● That since the separation agree-

ment had relieved the parties ofthe matrimonial duty to co-habit,it followed that it was not open tothe husband to issue proceedingsseeking a decree of judicial sepa-ration and consequent relief

● The underlying policy of the 1989 Act wasto encourage estranged spouses to resolvecontroversies between them withoutrecourse to litigation, and if the courts wereto hold that a couple who had entered into aseparation agreement and resolved all out-standing disputes between them could havethe agreement set aside in judicial separa-tion proceedings, the public policy underly-ing the 1989 Act would be seriously under-mined

● As a matter of principle, upon the break-down of a marriage certainty and finalitywith regard to new family arrangements aredesirable insofar as is practicable

● Section 20 (3) of the Family Law (Divorce)Act, 1996 which requires the court to haveregard to the terms of any separation agree-ment still in force when considering theancillary relief (if any) to order in divorceproceedings had no counterpart in the 1989Act. This is significant as it indicated thelegislature assumed that once a spouse wasrelieved of the duty to co-habit, the courthad no jurisdiction to grant a decree of judi-cial separation.

It was argued on behalf of the husband that:● The 1989 Act neither expressly nor by

implication restrained parties to a separationagreement from applying for a decree ofjudicial separation and accordingly jurisdic-tion to grant such decree after a separationagreement had been concluded vested in thecourts

● The 1989 Act was a reforming measure inboth legal and social terms and should notbe construed as excluding persons who hadentered into separation agreements fromobtaining the ancillary relief envisaged bythe Act

● The decision of the Supreme Court in F v Fwas distinguishable as in that case the appli-

cant wife had already sought a decree ofdivorce a mensa et thoro and those proceed-ings had been settled and adjourned gener-ally with liberty to apply

● The 1989 Act envisaged the variation ofpost-nuptial settlements. As it ‘was clear’that this phrase included separation agree-ments, it was entirely inconsistent to con-tend that a party to such an agreement couldnot obtain a judicial separation decree inancillary relief

● As the Family Law Act, 1995, in amendingthe 1989 Act, envisaged the making ofproperty adjustment orders on more thanone occasion the argument as to ‘the desir-ability of finality in family law’ was signif-icantly weakened.

Binding contractKeane J, delivering the judgment of theSupreme Court in December 1997, consideredin detail various arguments made and found infavour of the wife. Citing the above passagedelivered by Blayney J in F v F, Keane J stat-ed that reasoning to be ‘fully applicable to theposition of the husband in the present case’. Hecontinued, noting the reasons for treating aseparation agreement which takes the form ofa binding contract as a bar to subsequent pro-ceedings for a decree of judicial separation tobe two-fold:

‘First, where the agreement provides, as itinvariably does, that the parties are to live sep-arate and apart, the granting of such a decreewould be superfluous. Secondly, where partieshave entered into a binding contract to disposeof differences that have arisen between them ashusband and wife, it would be unjust to allowone party unilaterally to repudiate that agree-ment, irrespective of whether it took the formof a compromise of proceedings actually insti-tuted’.

As a consequence of the Supreme Court

judgment in P O’D v A O’D, it isnow clear that where estrangedspouses have concluded a separa-tion agreement it is not open to onespouse to institute judicial separa-tion proceedings against the otherspouse. For such proceedings to bebarred, it is not necessary that anagreement contain an express provi-sion that one spouse will not seek adecree of judicial separation againstthe other, nor does it matter whethersuch agreement was entered intobefore or after enactment of theJudicial Separation and FamilyLaw Reform Act, 1989. A simpleclause in an agreement wherebyestranged spouses agree to live sep-arate and apart from each other issufficient.

Essential prerequisiteMoreover, a spouse barred from seeking adecree of judicial separation also cannot seekthe orders by way of ancillary relief that acourt may normally grant upon the granting ofa decree of judicial separation. The obtainingof a judicial separation decree is an essentialprerequisite to invoking the court’s jurisdictionto grant such ancillary relief orders.

It should be noted that this judgment doesnot act as any barrier to a spouse who is a partyto a separation agreement instituting mainte-nance proceedings to seek a maintenance orderfor his or her support pursuant to the FamilyLaw (Maintenance of Spouses and Children)Act, 1976. The Supreme Court decision in HDv PD (unreported, May 1978) remains applica-ble to such maintenance proceedings. Nor doesthe decision in P O’D v A O’D prevent anyspouse, as a parent, bringing proceedingsunder the Guardianship of Infants Act, 1964 tovary arrangements previously agreed relatingto the guardianship, custody of or access tochildren. Finally, the decision does not, and ofcourse cannot, act as a barrier to a separatedspouse seeking a decree of divorce under the1996 Act and orders for ancillary relief underthat Act.

The 1996 Act merely requires the court, indeciding whether to make any orders for ancil-lary relief in divorce proceedings and in deter-mining the nature of any such orders, to ‘haveregard to the terms of any separation agree-ment which has been entered into by the spous-es and is still in force’.

Alan Shatter TD is the author of Shatter’s fam-ily law (the fourth edition of which was pub-lished by Butterworths last year) and is a part-ner in solicitors’ firm Gallagher Shatter. Heappeared on behalf of the wife in the SupremeCourt in P O’D v A O’D.

G

Alan Shatter (centre) pictured at the launch of Shatter’s family law withButterworths Director Gerard Coakley (left) and Chief Justice

Liam Hamilton

GREAT GAZETTE GRISHAMGIVEAWAY

Who says we never give anything away?This month the Law Society Gazette in conjunction with CIC Video is offer-

ing ten copies of The chamber – the latest movie adaptation of JohnGrisham’s legal thrillers. Not only that, CIC has thrown in a leather briefcasefor good measure.

The movie boasts a stellar cast – Chris O’Donnell, Gene Hackman and FayeDunaway – and a gripping plot. O’Donnell plays an idealistic young lawyerbattling against time to save his klansman grandfather from the electricchair. All in all, it’s just the ticket for a good night in.

All you have to do is answer one shamefully simple question and returnyour entry to The chamber competition, Law Society Gazette, BlackhallPlace, Dublin 7. The winner receives the briefcase and the movie, while thenine runners up will get one copy of the video each.

Name:

Address

Question: Name one other best-selling John Grisham novel based on the legal profession.

Closing date: 27 March.

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Your Your GThe demand for legal secretaries is growingas the solicitors’ pro-fession expands, and

there are a lot of goodcandidates out there.

But how do youchoose the right Girl

Friday? BarryO’Halloran asks the

professionals

T hey play a vital role in your office, andmay even be the first contact that clientshave with your firm, so when it comes

to looking for a good legal secretary, how doyou sort the wheat from the chaff?

‘When you hire a secretary, you’re makingan investment of around half a million pounds

in terms of both wages and training’, saysRisteard Pierse, Chairman of the Law Society’sPractice Management Committee. ‘That’s atremendous investment, so you need to makesure you’ve got the right person’.

As a general rule of thumb, salaries rangefrom around £10,000 a year for a junior with


Girl FridayPRACTICEPRACTICE

Girl Fridaysome experience and who has completed a sec-retarial course, up to £12,000 for someone withtwo years under their belt. After three yearsyou can expect to pay around £13,000, and£14-14,500 for five years’ experience.Partners’ secretaries can command at least£15,000, and possibly more, depending ondemand in the marketplace.

Pierse stresses that you need to pay closeattention to the selection process. His Tralee-based firm first makes sure that potential can-didates have the basic skills and checks theirreferences very carefully. After the interviewstage, once the firm has decided on the candi-date, it makes an offer subject to the comple-tion of a psychometric test.

Personality filterPsychometric testing measures your intelli-gence, aptitudes, behaviours and emotionalresponses on the basis of a series of questions.Pierse explains that this is a ‘filter procedure’designed to gauge the candidate’s personality,ensure they can work in a team situation andthat they have good interpersonal skills. Headds that the test does not make a huge differ-ence, but says it does aid the selectionprocess.

Putting the emphasis on a candidate’s per-sonality may not seem very practical to somepeople, but Pierse argues that it is important fora number of reasons. First, the individual has tobe capable and willing to take responsibility fortheir own work as time goes on. Second, andeven more importantly, solicitors’ secretarieshandle a large volume of documents relating toclients’ business and personal affairs so theymust respect confidentiality and realise itsimportance when handling client affairs.

‘It’s very important to check references inthat context’, says Pierse. ‘A lot of damagecould be done to your business if you take onsomeone who is likely to talkoutside the office’.

Lesley Osborne, director ofOsborne Recruitment, anagency which provideslegal secretaries for a widerange of practices, advisesthat you have to be able to trustthe person you hire. She does notrely on psychometric testing, andprefers to question candidates abouttheir previous work history, amongother criteria, and to draw conclusionsfrom that.

She puts the same emphasis on personality,arguing that there’s no point in having some-one who is highly skilled if they cannot workwith the people around them. ‘You can tellthese things from interviewing the candi-dates’, she says. ‘You look at their trackrecord and at how they project themselves,and see if they have proven that they are will-ing to commit themselves to the job’.

In terms of practical skills, Risteard Piersesays he does not necessarily look for experi-ence in a legal office because his firm trainsits own secretaries. But he does emphasisethat secretaries should have good word-pro-cessing skills and – a rare enough skill thesedays – must be able to spell.

‘What we look for are the same skills thatany secretary would have, along with anunderstanding of court procedures and thedocumentation required. On the conveyancingside, we’d look for a knowledge of the basicdocumentation used in property transactions’,he says.

‘Word-processing is very important. Eventhough most documents are standard, secre-taries need to be able to adapt or adjust themaccordingly. They need to be good documentmanagers’.

High demandLesley Osborne stresses that legal secre-taries need to have very fast and accuratetyping skills. Her agency gives all candi-dates a typing test which measures bothspeed and accuracy. When looking at experi-ence, she says that in a commercial officesomeone who has experience in a financialinstitution should be able to adapt to theirnew role fairly easily.

Good secretaries do come at a premium,particularly in urban areas where there are

obviously more offices, so those with a highlevel of secretarial skill have

plenty of avenues to explore.According to Kelly

Recruitment Services,the market is currently

being driven by the appli-cants themselves.‘Because there is a high

demand, they are not onlylooking at salaries, they are also

looking at the other benefits that anemployer has to offer, like VHI, pen-sions, and job satisfaction’, the com-

pany’s spokesman says.

The high demand for legal secretaries,coupled with inflated wage demands, is mak-ing it difficult for small practices, he says.‘We’ve come across juniors getting £14,000.For the smaller firms, that could become acrisis. They are going to need a secretary ifthey want expand, but they may not be able toafford it. It’s a real example of the CelticTiger biting the small operator’.

The best and the restBut the good news is that there are many verycapable secretaries out there. Pierse andAssociates advertised for a secretary last yearand found the quality of applicants was veryhigh. ‘There are a lot of people out there withexperience who want to come back to Ireland’,the Kerry solicitor observes, ‘and they areeven prepared to take a pay cut to do that’.

But you may not have the time to gothrough a pile of CVs and sort the best fromthe rest, or you may not necessarily be able toassess who is worth interviewing and who isnot. If that’s the case, this is a job you canleave to an employment agency.

Osborne Recruitment, based in Dublin’s ElyPlace, provides a general secretarial recruit-ment service and specialises in legal secre-taries. Its director, Lesley Osborne, worked ina recruitment agency in London for severalyears, and subsequently in a multinational inthis country before opening her business 18months ago.

She advises that any company that is con-sidering approaching her or any other agencyshould first define the role and decide exactlywhat their requirements are. ‘If a client comesto us and does not give us the correct informa-tion, it lessens our chances of selecting theright applicant’, she says. ‘Some positionsmay be more complex than you think, andother jobs may be less demanding, so youcould end up with someone who is either fartoo busy or very bored’.

Osborne deals mainly with the Dublin mar-ket, where demand for legal secretaries is veryhigh, and where turnover is also quite fast. ‘Itis not unusual to see movement in a two tothree year period’, she says.

This means that salaries are beginning to goup and companies are paying more now thanthey paid several years ago. For example,Osborne says that while the rule of thumbsalary for a partner’s secretary is £15-16,000,in some cases candidates are now beingoffered more than this. G



A growing tendency to work outside afixed base has turned portable com-munications and computer equipment

into essential tools for maintaining product-ivity while on the road or away from the tradi-tional office. In the bad old days, such equip-ment was prohibitively expensive for mostpeople and was never quite as good as theirnon-portable equivalents. Now, almost every-one seems to have a mobile phone firmlywedged to one ear, while the number of peoplewith notebook computers is also on the up: anestimated 18% of PCs sold in Ireland last yearwere of the portable kind.

Of course, there’s still a considerable price tobe paid for mobility. Paul Foley, managingdirector of Croft Computers, one of Toshiba’sIrish distributors, says that notebook computersgenerally cost around a third more than similar-ly equipped desktop PCs. However, that extraexpense can normally be justified by anyonewho spends a lot of time on the move and needsto have constant access to computer files.

Aggressive pricingAnd prospective purchasers can look forwardto aggressive pricing from manufacturers overthe coming months which could see the cost ofnotebook computers falling by as much as 20%by the summer. According to Dell’s notebookproduct marketing manager, Stephen Dignan,the best pricing for these computers should beavailable by April or May.

There’s even more good news. Portable com-puters use special low voltage processor chipswhich require less power than their desktopcounterparts. In the past, notebook manufactur-ers would often wait up to a year before Intel(the main processor manufacturer) introducedmobile processors to match the desktop ones.

According to Catherine Boyhan, manager ofGateway’s portable products unit for Europe,Intel is currently intent on narrowing the gapbetween launching equivalent processors fordesktop and portable machines. The mobileversion of the recently launched Pentium IIchip should be out by the middle of this year.‘By the end of the year, most new notebookcomputers should include Pentium II chips’,says Boyhan. ‘This will provide better perfor-mance and should reduce the amount of batterylife required’.

‘In the past, there were two big penalties forbuying a portable computer and these haveconsiderably reduced over the past couple ofyears’, says Paul Foley. ‘First of all, the speci-fication was normally around six to ninemonths behind that of the desktop computer.This has been reduced to a delay of aroundthree months. The other major drawback wasprice. Two years ago, portable machines werearound double the price of similarly powerfuldesktop computers; now you’ll pay around30% extra for portability’.

These days portable computers are so pow-erful that many people are buying them toreplace their desktop machines rather thansimply as a supplement to the office work-horse. Gavin Reynolds, marketing strategist inIBM’s personal systems group, says that themobile market is set to grow significantly overthe coming months. ‘Portables can now doeverything that desktops can. People realisethis and are now buying notebook machinesinstead of desktops’, he says.

Apart from the sheer convenience of com-puters that can be used on the move, notebooksare now objects of desire, reflecting a certainlifestyle. ‘Given a choice between a largedesktop PC and an equally powerful computerthe size of a telephone book, most peoplewould tend to go for the neat small box’, saysBilly Guy, joint managing director of BusinessManagement Systems, another Irish distributorfor Toshiba. ‘Although the smaller box is moreexpensive, you must consider the value of pay-ing the extra money. That value includes beingable to take data and files with you – even intocourt in the case of solicitors’.

What you need to look forWhen choosing a notebook computer, a num-ber of considerations must be taken account inaddition to the price and processor speed.Weight has to be near the top of the list foranyone who is lugging the machine around ona regular basis. Most of the current generationof notebooks weigh a minimum of 3 kg, whichis still relatively heavy. Catherine Boyhan saysthat manufacturers are now making a con-scious effort to reduce the weight of notebooksby using lighter materials in the computer cas-ing. New battery technology, meanwhile, isalso expected to lighten the load.

In the United States,they’re called road

warriors; here, they’rejust plain old mobile

professionals.Whatever the label,

there’s an everincreasing number ofpeople busily tappingaway on their note-book computers ontrains and buses, inwaiting rooms and

airport lounges and,most recently, even in

court. GrainneRothery finds out

what’s hot and what’snot in laptop land

Portable


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TECHNOLOGYTECHNOLOGY

Another important issue is battery power: ifyou don’t have access to a power point for longperiods of time, sufficient battery life is a must.The average is between three and four hours.Many industry experts point out that there hasbeen little real improvement in battery technol-ogy over the last five years when comparedwith all the other components of a laptop.However, the demands on batteries haveincreased substantially over the last few years,with the widespread inclusion of power-hungryelements such as larger screens, faster CD-ROM drives, huge hard disks and ever-expand-ing RAM.

The two main kinds of battery currentlyavailable are Nickel Metal Hydride (NiMH)and Lithium Ion. While cheaper than LithiumIon batteries, NiMH cells are not as efficientand are prone to degradation if they are notcompletely discharged before recharging.

If power really is a problem, it is possible tobuy an extra battery to use as a replacement ifyou do run out. However, at around £200 ashot, this is an expensive option. There havebeen vast improvements in power managementtechnologies over the last few years and someportables are now able to conserve batterypower by switching off or going into sleepmode when not in use for a certain amount oftime. The use of Pentium II processors, togeth-er with smart batteries and power managementfeatures, are expected to help increase batterylife to between six and seven hours.

Meanwhile, a new kind of battery technolo-gy called Lithium Polymer is currently beingdeveloped and is expected to be available inportables by the end of 1999. Lithium Polymerhas higher energy density and lower levels ofself-discharge than Lithium Ion, and thesequalities will help the batteries to last longer.Most revolutionary, however, is the fact thatthe material can be moulded into any shape.The batteries can therefore be designed to fitinto any spare areas within the notebook cas-ing. Billy Guy even points out that in the futurea portable’s battery could actually be the com-puter casing.

The kind of screen and its size are also crit-ical elements of a notebook computer. At themoment, the standard screen size is 12.1 inch-es, while 13.3 inches is available on some pre-

mium models. It is still possible to get smallerscreens, but the larger ones are easier on theeyes over prolonged periods. According toCatherine Boyhan, a 14.1 inch screen is nowavailable from a small number of manufactur-ers, while Dell’s Stephen Dignan says thatscreens could eventually be as large as 16 or 17inches. Although they are easier to read, largerscreens have the downsides of being moreexpensive and heavier than smaller displays.

Almost all portables now have colourscreens. The most common types currentlyavailable are active matrix (TFT) and passivematrix (SNT). Because the technology used inthe former allows the display to update quick-er, it offers enhanced picture quality. Passivematrix screens can sometimes appear to be abit washed out, although there have been vastimprovements in this technology in the lastfew years. Visibility and viewing angles aregenerally better with the TFT screens.However, those who have confidential infor-mation on their screens often prefer the morelimited viewing angles provided by passivematrix screens.

Traditionally, the limited size of notebookcomputers has left very little room for expan-sion slots to plug in peripherals like printers,modems and extra disk drives. Most notebooksnow, however, have at least one slot for creditcard-sized PC cards, which can be used to addfax/modems, network interfaces, GSM cardsor extra hard disks.

The majority of high-end portables nowhave CD-ROM drives. Quite a lot of legalinformation is now available on CD-ROM sohaving such a drive may be useful, particular-

ly if the portable is going to be your only com-puter. Digital versatile disks (DVD) driveshave also started to appear in notebooks andshould continue to do so throughout 1998.

DVD allows for the storage of massivequantities of information: entire films can bestored on a single disk. DVD drives are back-ward compatible and can therefore still readCD-ROM disks. ‘DVD will emerge as the mul-timedia choice for notebooks and will becomemainstream by the end of this year’, predictsDell’s Stephen Dignan.

Notebook manufacturers are expected tocontinue to try to improve on the current key-boards, which cannot include separate numerickeypads because of the limited amount ofspace available. ‘There have been variousattempts to fit standard keyboards into smallerspaces’, says Billy Guy. ‘The fold-up keyboardwas tried but didn’t work. Voice recognition isan option because it is now relatively afford-able and the levels of accuracy have greatlyimproved. However, if you’re working in pub-lic areas you obviously lose any privacy ifyou’re talking to your computer’.

With all these improvements in portablecomputer technology, notebooks look set tobecome faster, lighter, cheaper and more pow-erful over the coming year or two. It’s alwaystempting to wait for the next technology tocome along before buying, but if PC develop-ments continue at the same pace as they haveuntil now, there’ll always be something a bitbigger and better just around the corner.

The launch of the new Pentium II PCs willencourage the development of new softwarewhich will operate exclusively on that proces-sor. According to Stephen Dignan, the currentgeneration of Pentiums with MMX technologywill be obsolete within a year. That said, mostcomputers are used primarily for writing docu-ments and spreadsheets and for accessing e-mail, and such activities could all be carriedout quite efficiently on a relatively low specmachine.

As one manufacturer puts it, no amount ofextra processing power will help you write anyfaster.

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

G

According to the manufacturers, the following is the minimum specification

for a good portable machine capable of running word-processing software,

spreadsheet and communications package.

Pentium 166 with MMX

16 Mb of RAM – 32 Mb if possible. It’s worth buying as much RAM as you can

afford as it will make a considerable difference to the machine’s performance.

1 Gb of hard disk space (2 Gb or 3 Gb if possible)

12.1 inch TFT screen with a maximum resolution of 800 x 600

Quad or six speed CD-ROM drive

Floppy disk drive

Lithium Ion battery

Two PC card expansion slots

Windows 95 with Office 97

This package should cost around £1,600 or £1,700.

THE MINIMUM SPECIFICATIONS YOU NEED


R ecent revelations that Charles Haugheyand other prominent individuals evadedtax by using secret offshore accounts

sparked a massive wave of public protest. Inthe course of its investigations into paymentsto politicians, the Dunnes Tribunal, chaired byJustice McCracken, uncovered a tax evasionscheme where Irish taxpayers’ money wasdeposited without the knowledge of theRevenue Commissioners, in a Cayman Islandsbank. The Cayman bank, in turn, depositedthose funds in its own name with banks in thisstate, but the cash was used for the originalIrish taxpayers’ benefit.

Justice McCracken considered the wholescheme to be ‘a very ingenious system where-by Irish depositors could have the money off-shore, with no record of their deposits inIreland, and yet obtain an interest rate whichwas only one-eighth of 1% less than theywould have obtained had they deposited itthemselves in an Irish bank’.

Clearly there was impropriety in respect ofthe original deposits, the operation of the off-shore accounts and the interest earned bythem. But who can legitimately avoid tax byusing offshore accounts and how does thetreatment of domestic and foreign accountscompare?

A number of factors determine an individ-ual’s Irish tax liability and the extent of thatliability. In addition to their residence and theincome’s territorial source, three other factors

state’. That person is not liable to Irish incometax on foreign income, except from the UK,provided it is not received in the state. This isknown as ‘the remittance basis of taxation’.Therefore, anyone resident in the state who isnot entitled to the remittance basis of taxationis liable on all Irish and foreign income,including interest from a foreign bank account.

Double taxationAny double taxation agreements (DTA) towhich Ireland is a party have the force of lawand take precedence over domestic legislationin case of conflict. These agreements aredesigned to save an individual from paying taxon the same income in two jurisdictions. Theygive relief for tax paid in another jurisdictioneither by specifying that credit for tax sufferedabroad will be given against one’s Irish tax lia-bility, or that income is taxable only in thecountry where the recipient resides. Interest isgenerally taxable in the country of residenceonly.

Ireland has DTAs with most of its majortrading partners, but there are many jurisdic-tions with which we have no agreements, forexample, the Channel Islands, the CaymanIslands and the Isle of Man. Unilateral relief isgiven on income from jurisdictions with whichwe have no agreements. This operates byassessing for Irish income tax only the interestfrom the account after foreign tax is deducted.This is not as favourable to the taxpayer as aDTA.

Irish residentsIt is irrelevant to an Irish taxpayer whether theincome is from an account in Dublin, Douglasor elsewhere because it is still liable for Irishtax. But the tax return depends on a number offactors: whether double taxation relief is avail-able under an agreement or unilaterally; the

Casting ofThe complex provisions dealing with foreign bank

accounts and and the taxation of resident individualscan leave you all at sea. Kevin Maguire steers a steadycourse through the tax treatment of offshore acounts

and the penalties for non-compliance

have an impact: the concepts of residence andordinary residence; the individual’s domicile;and double taxation relief.

Residence and domicilePart 34 of the Taxes Consolidation Act, 1997(TCA) determines an individual’s residenceand ordinary resident status. An individual isresident in the state if he is present in the statefor 183 days or more in a year of assessment,or if he is present in the state for a total of 280days in two consecutive years of assessment.An individual becomes ordinarily residentafter three consecutive years of residency. Thisstatus lasts until three consecutive years ofnon-residency in the state have elapsed.

Domicile has always been important from ataxation point of view. Most individuals aredomiciled in the place where they are born andreside throughout their lives. A change indomicile must be evidenced by a change in res-idence along with an intention to stay perma-nently in the new place of residence.

Section 18 TCA provides for the taxation ofincome except certain dividends and PAYE.The section provides that individuals are tax-able on Irish income whether or not they areresident in the state. It also provides for the tax-ation of foreign income, but section 71 TCAprovides relief for ‘any person who satisfiesthe Revenue Commissioners that he is notdomiciled in the state, or that, being a citizen ofIreland, he is not ordinarily resident in the

Casting of

TAXATIONTAXATION


interest paid; and the fact that domestic andforeign interest attract different rates.

Domestic deposits are liable at 26%, even ifthe taxpayer is paying 48% on other income.PRSI and levies are paid on the gross interest.Special savings accounts are taxed at 15% andare not liable to levies or PRSI. Foreign sourceincome is liable at 48%, and for PRSI andlevies, whether or not it is subject to a DTA. Asit is the investment’s after-tax return which isimportant, it is necessary to balance the tax lia-bility against different jurisdictions’ interestrates and bank charges.

Disclosure obligationsSection 895 TCA provides that any residentwho directly or indirectly opens a foreign bankaccount in relation to which he is the beneficialowner must make a return of income. Thismust include the bank’s name and address, thedate on which the account was opened, and theamount deposited.

This section also obliges banks and otheragents who act in or in connection with theopening of a foreign bank account on behalf ofa resident to make a return. This must specifythe name and address of the resident, his taxnumber, the bank’s name and address, the dateopened, and the amount deposited.

Concealing the existence of, or incomefrom, an offshore account is a failure to com-ply with the provisions relating to returns andtheir contents. Failure to deliver a return ontime gives rise to an automatic surcharge onthe assessable tax. This is graded, with a max-imum payment calculated as the lesser of 10%of total assessable tax or £50,000. In additionto the automatic imposition of the surcharge,an individual will be exposed to interestcharges on the late payment of tax.

Interest on late payments is 15% a year butwhere the late payment is attributable to ‘the

fraud or neglect of any person’, the interest is24% a year, calculated from 1 November in theyear in which the tax was due to the actual dateof payment.

An inspector can amend an assessment evenif the tax has been paid. Where the return is afull and true disclosure of all necessary mater-ial facts, no assessment or amended assess-ment can be made after six years from the endof the tax year in which the return is made. Butwhere full and true disclosure is not made, no

time limit applies to amending an assessment.In addition to the various financial penalties

contained in sections 1052 and 1053 TCA, thedefaulter runs a potentially more serious riskunder section 1078. This makes it an offence to‘knowingly or willfully deliver any incorrectreturn, statement or accounts or knowingly orwillfully furnish any incorrect information inconnection with any tax’. The maximumpenalty is £1,000 and/or 12 months’ imprison-ment on summary conviction, or £10,000and/or five years on indictment.

Thus, a resident who fails to fully discloseincome from a foreign account is indefinitelyopen to a reassessment, a 10% surcharge,interest at the rate of 24% a year from 1November in that tax year until final payment,fines and even imprisonment.

Anti-avoidance provisionsThe anti-avoidance provisions contained insection 806 TCA are designed to prevent ordi-narily resident individuals from avoiding taxthrough offshore structures such as a companyor a trust. This section deems income fromsuch a structure to be that of anyone with‘power to enjoy’ that income. It does not applywhere the Revenue Commissioners are satis-fied that the relevant operations were effectedfor genuine business reasons.

Section 821 TCA provides that ordinarilyresident individuals are taxable in the sameway as residents. As individuals pay tax onIrish income regardless of residence, theimpact of the section is to make the foreignincome of non-residents with ordinary resi-dence status liable for Irish tax. But the sec-tion exempts foreign employment incomeand ‘other income of an individual which inany year of assessment does not exceed£3,000’.

This £3,000 limit is important. Where it isnot exceeded, the ordinarily resident individ-ual is not liable for tax on that income. But if

it is if exceeded, the entire other income,including any foreign interest, is taxable, notjust that portion over the specified limit.

The section refers to ‘other income’, mak-ing no distinction between foreign and domes-tic. But as it was designed to catch foreignincome, the Revenue view is that Irish incomeis not included in the £3,000 limit, as this istaxable anyway. As foreign employmentincome is excluded, the section can only applyto foreign investment income.

However, the treat-ment of UK sourceinvestment income andthe applicability of theremittance basis of tax-ation in the context ofsection 821 is lessclear. Section 71 pro-

vides relief to certain individuals in respect offoreign income taxable under section 18. If it ismore than £3,000, the foreign investmentincome of an ordinarily resident individual willbe taxable under section 18. Therefore, there isno reason why the remittance basis of taxationshould not apply to income taxable under thatsection by the application of section 821.

Irish income is taxable irrespective of resi-dence; UK income is not. The exclusion of UKincome from an otherwise ‘foreign’ treatmentarises only in the context of excluding it fromthe relief afforded to other foreign incomeunder the remittance basis of taxation.Therefore, if the application of section 18 isunrelieved, section 821 will apply and UKinvestment income will be taxable; however, ifrelieved, section 821 will not apply and the UKincome will not be taxable. I believe, then, thatUK investment income is properly taken intoaccount in calculating the £3,000 limit.

Offshore accounts are an effective means ofavoiding liability to Irish income tax for thoseindividuals who are not liable to income tax inthe state on income arising outside the state. Aresident individual who is not domiciled in thestate, or who is a citizen who is not ordinarilyresident in the state, can avoid liability to Irishtax provided the income arises to a non-UKforeign bank account and is not received in thestate. Non-residents who are ordinarily resi-dent in the state can avoid liability to Irish taxin respect of income arising from a foreignbank account provided the individual’s totalforeign investment income, including interestincome, does not exceed £3,000. Where it doesexceed £3,000, liability can be avoided if it isnot UK source income, is not received in thestate, and the individual is not domiciled in thestate.

Kevin Maguire is a Dublin-based barrister andan associate of the Institute of Taxation inIreland.

G

ff the tax netff the tax net


O n 16 October 1996, the EuropeanCommission published draft legisla-tion and some provisions for the intro-

duction of the Euro. This took the form of a pro-posal for Council regulations. In Dublin on thefollowing 12 December, the Economic andFinance Ministers’ Council endorsed the text ofthe two draft regulations, and a legal frameworkfor the Euro was born.

The object of the proposals was to establishlegal certainty for using the Euro before stagethree of European monetary union (EMU) began.Regulations are binding in their entirety and aredirectly applicable in Member States, that is, theEU’s entire territory. The regulations take theirnames from the relevant articles of the EUtreaties.

Article 235 regulationThis regulation is designed to:● Confirm the continuity of contracts which

may be denominated in national currencies orin European currency units (ECU) and willextend beyond 1 January 1999

● Determine conversion rates and the technicalrules for establishing them, including round-ing provisions

● Provide for replacing ECUs with the Euro ona one-for-one basis.

Article 3: Continuity of contracts If a contract becomes impossible to perform foreither commercial or other reasons, it is said tobe frustrated. The effect of the Euro’s introduc-tion into Ireland would suggest that any con-tracts denominated in the Irish currency may befrustrated because they clearly cannot be paid inthat currency beyond 1 January 2002.

The objective of the Article 235 regulation isto introduce certainty on this fundamental issue.The regulation will clearly provide that theEuro’s introduction will not give a party to acontract the power to unilaterally alter or termi-nate it on the grounds of frustration based on anincorrect denomination of currency.

It does not limit the freedom to contract –that is, parties should be free if they wish whenentering contracts, or reviewing or varyingexisting bargains, to agree that they can be var-ied or terminated with the introduction of thesingle currency.

Certain principles of international law maybe applied in these circumstances:● One recognises that every state has sover-

eignty over its own currency and it is a sub-principle that every other state must recog-nise that. The fact that contracts stipulatethat payment is to be made in Irish currencyand that our currency will change to Eurossuggests that we are entitled to pay for ser-vices in Euros, which will be recognised aslegal tender in the country

● A second principle provides that debtsdenominated in a country’s currency are anobligation to pay the nominal amount of thedebt in legal tender at the time of payment

according to that state’s laws. To minimiseany difficulties here, it is certain that jurisdic-tions outside of the EU will introduce theirown legislation to ensure that the frustra-tion/continuity situation is decided once andfor all. A working group of lawyers in NewYork is currently dealing with the issue andthey will almost certainly have legislationready for introduction by the end of the year,before the transition period for the Euro.

‘Force majeure’ and ‘change of circumstances’ clausesThese clauses may be inserted into contracts toexcuse the parties from performing their dutiesand obligations in certain circumstances. TheEuro’s introduction should not frustrate a con-tract unless both contracting parties clearlywant to discharge or excuse performance undera contract containing one or both of theseclauses.

After a long wait, EMU takes off at the beginning of next year, but threatens to leave a series of legal

problems in its wake. Maria O’Connell looks at the legal framework and tests the parachute

provided by the EU Commission

Taking a the E


EUROPEEUROPE

The regulation’s current draft may not bestrong enough in its language to provide forautomatic continuity and so there is a smallrisk of contracts being frustrated. But theCouncil has made it clear that this draft mere-ly establishes the legal framework for theEuro’s introduction and its final form will pos-sibly be more detailed in relation to continuityof contracts.

Articles 4 and 5: conversion androunding Article 4 states that conversion rates are to beadopted as one Euro expressed in terms ofeach national currency to six significant fig-ures. When converting from Euros to thenational currency, it is necessary to multiplyby the conversion rate and not divide by thereciprocal rate.

Article 5 sets out the sums to be paid oraccounted for when rounding takes place after

conversion to the Euro. It sets out what hap-pens when rounding up or down, but it doesnot set out the consequences of this. Forexample, what happens when rounding theshare capital of a company? When roundingdown, it may have legal implications as Irishcompanies are not allowed to reduce theirshare capital without applying to the HighCourt. Conversely, when rounding up, it maycause trouble in relation to reserves for capi-talisation.

Article 109 regulationThis regulation is designed to define monetarylaw provisions for Member States. During theproposed three-year transition period, startingon 1 January 1999 and ending at the latest on31 December 2001, the Member States’national currencies will be redefined as sub-divisions of the Euro.

During the three-year transition period

national currencies will continue to exist, butonly as fractions of the Euro and not as curren-cies in their own right. This does seem to raisesome issues regarding acts that should be per-formed under legal instruments which specifythe use of the national currency. These will con-tinue to be performed during the transition peri-od in national currencies unless the parties actu-ally agree to convert the payments into Euros.

So the replacement of the national curren-cies by the Euro on 1 January 1999 will notimpact on legal instruments. That is to say, ref-erences to the national currencies will not –unlike the ECU – be automatically replaced byreference to the Euro. This replacement willonly occur at the end of the transition period on31 December 2001.

During the transitional period the Euroshould be looked on as the umbrella currency,with all of the European currencies as beingfractions of it. All assets and liabilities shouldtherefore be looked on as Euro assets or liabil-ities, whether expressed as that or not.

In practical terms, any attempt at Euro com-pliance until 31 December 2001 is over andabove legal requirements. The ‘compulsion’does not begin until 1 January 2002. TheArticle 109 regulation also deals with Eurobanknotes and coins and sets out the timeframe– 1 January 2002 – as the latest date on whichMember States can issue coins which complywith the technical specifications laid down inaccordance with the treaty.

Banknotes and coins denominated innational currency units will remain legal ten-der in the territorial limits until 1 July 2002.This period may be shortened by national law,but that is unlikely as six months would beconsidered quite a short period for the generalpublic to familiarise itself with the new ban-knotes and coins and the relationship to theformer national currencies.

Maria O’Connell is Legal Manager at theStandard Life Assurance Company in Dublin.

G

punt onEuro

PIC: R

OSLY

N B

YR

NE


A re you overworked and underpaid?Do you have too few staff or toomany? And most importantly of all,

are you getting the financial reward youdeserve for all that hard work?

The results of the Law Society’s first-everpractice comparison survey may hold some ofthe answers to these questions. Last year, 26firms replied to a request from the PracticeManagement Committee to provide informa-tion on their businesses so that the Societycould come up with a picture of how the pro-fession was faring in all sectors and areas.

The objective was to allow all memberfirms to measure or benchmark themselvesagainst similar practices and work out howthey could improve their profitability andgrowth prospects.

While the Law Society’s Finance andAdministration Director Cillian MacDomhnaill(who co-ordinated the survey) emphasises that26 sets of results could not provide a definitivepicture of the profession, he says that the find-ings provide enough food for thought to justifya more complete study this year.

The survey focused on the following areas:● Practice size, location and premises tenure● Personnel (fee-earning and non-fee-earn-

ing) recruitment, remuneration and benefits● Partnership structure● Market structure: that is, revenue per hour,

revenue type in terms of fees and number ofclients

● Market profile: that is, private, commercialetc

● Finance and accounting structure● Expenditure and profits.

Earnings and hoursThe average principal or partner works 46hours a week, while assistants and associatesclock in 37 hours. But partners and principalsget more leave, averaging 23 days a yearagainst 21 for their assistants and associates.Most firms give privilege days. Table 1 showsthe average remuneration (profits and bonusesare included, but pensions are not).

Very few firms gave any benefits in kind:fewer than one in four (23%) offered a car andonly 4% offered disability/VHI. The other ben-efits in kind offered were VHI (12%), pension(15%), death benefit (8%), and others (16%).

StaffingOn the personnel side, the survey found thatsome firms had up to three fee-earning staff(partners, principals, assistants, apprentices)

compared with non-fee-earners. At the otherend of the scale, some firms had only onequarter as many non-fee-earners to fee-earners(see Table 2). Only 15% of firms reported aturnover in either staff grade, while 27% hirednew staff in 1996 and 15% took on new peo-ple last year (see Tables 3 and 4).

Half the partnerships questioned said theyhad a written partnership agreement, while20% said they charged for goodwill on admit-ting new external partners or partners promot-ed from within. No firm distinguishedbetween senior and junior partners, and only8% had salaried partners.

IncomeDefending personal injury (PI) actions provedto the biggest earner for the participatingfirms, with average firm turnover from thisamounting to £76,467, while the average casein this area earned £7,061. Taking on PI casesproved to be less lucrative, turning over£65,367 on average and making just £2,343per client. More firms acted for plaintiffs thandefendants: 81% as opposed to 62% (seeTable 5).

Residential conveyancing chalked up thesecond highest average turnover coming in at£69,137. This probably reflects the housing

The Law Society has just finished crunching the numbers from its first-ever practicecomparison survey. In the first of two articles, Barry O’Halloran details the results

and finds that benchmarking is not just a buzz word

Making your

Note: The median is the middle value in the range. The upper and lower points represent 75% and25% respectively, that is, the median for the top and bottom halves of the sample

TABLE 1 ANNUAL REMUNERATION (INCL PROFIT, BONUSES BUT EXCLUDING PENSIONS ETC)

Median25 50 75

Partners £46,234 £82,500 £105,873Principal with no assistants £13,000 £40,000 £65,000Principal with assistants £33,750 £62,500 £155,000Assistant/associate solicitor £18,000 £19,000 £22,325


PRACTICEPRACTICE

boom as revenue from this sector increased by27% over the year. Nearly all firms providedthis service, which on average accounted for22% of all business.

Arbitration proved to have the second high-est growth rate at 50%, but only a small num-ber of practices were involved in this area,which contributed £10,000 to turnover.Interestingly, it gave the highest per-clientreturn, earning £10,000 for each individual, anhonour it shared with constitutional law.

Criminal law gave the poorest returns perclient at £113. Revenue from this area fell by16% last year and it accounted for just £2,191in turnover and just 3% of revenue. But thisdid not deter 35% of practices from workingin criminal law.

Earnings from commercial law were alsodown (Table 5 shows a drop of 9% in revenuefrom this area, which contributed £21,916 toaverage turnover). Once again, 35% of firmswere active in this sector.

Employment law made the lowest contri-bution to average turnover at £1,938 butshowed the highest growth rate, increasingrevenue by 84%. Labour law made £456 perclient for the 19% of firms involved in thissector.

When it came to clients, private individualscontributed a massive 73% to turnover, fol-lowed by the services industry at 16% andmanufacturing at 12% (see Table 6). TheGovernment made the lowest contribution,accounting for just 2% of all business done bythe participating firms.

Financial managementOn the question of financial management,58% of firms said they compiled managementaccounts. Of these, 40% compiled themmonthly, 20% quarterly and 40% annually.Only 15% of firms valued work in progressand just 4% did this on the basis of timerecording.

Table 7 shows the length of time takenfrom the first consultation to issue of the finalbill for various types of work.

Do not adjust your practiceMacDomhnaill emphasises that no-one shouldmake any radical changes to their business onthe basis of these figures, as the 26 practiceswhich took part could not be regarded as rep-resentative of the profession as a whole.

r benchmarkService Average % firms Average % Average % Average Average

turnover providing of total change number revenueservice revenue in revenue of per

of service in 12 mths clients clientprovider

Trust and probate £39,006 69% 10% 35% 21 £1,536Conveyancing–residential £69,137 85% 22% 27% 86 £1,509Conveyancing–commercial £26,988 65% 7% 34% 9 £6,060Conveyancing–farm £20,432 38% 3% 13% 14 £748Commercial law £21,916 35% 3% -9% 8 £2,752Criminal law £2,191 35% 0% -16% 30 £113Family law £8,621 54% 2% 21% 6 £783Employment law £1,938 19% 0% 84% 4 £456Licensing law £9,654 31% 1% 36% 4 £1,310EU law - - - - - -Constitutional law £10,000 4% 0% -5% 1 £10,000Debt collection £6,278 54% 1% 8% 10 £1,067Personal injury–defence £76,467 62% 18% 13% 7 £7,061Personal injury–plaintiff £65,367 81% 20% 15% 28 £2,343Health and safety - - - - - -Environmental law £25,000 4% 0% 100% 1 £25,000Arbitration £10,000 4% 0% 50% 1 £10,000Town planning £37,650 8% 1% 25% 1 £37,650Litigation (non-PI) £31,884 46% 5% 35% 11 £1,746Road traffic acts £52,436 31% 6% 36% 14 £367Legal aid £3,136 27% 0% 5% 21 £146Taxation £4,217 15% 0% 41% 6 £3,472

REVENUE/INCOME SUMMARY TABLE

Billing time average monthConveyancing 3Personal injury – defence 23Personal injury – plaintiff 26Litigation (non PI) 25Commercial 7Other 7

Also, the study was originally meant to becarried out across nine sub-categories, madeup of various-sized practices in Dublin, otherurban centres and rural areas. Unfortunately,the small number of respondents made itimpossible to do this.

So is there any point to this exercise at all?According to Peter Coyne, director ofInterCompany Comparisons, the independentthird party which compiled and analysed thedata, more information from more practices isneeded before a clear picture emerges of theprofession. But he argues that the benefits willbe seen down the road.

‘It is literally the start of a process’, he says.‘By the end of the third or the fourth year, youwill be able to see patterns and trends emerg-ing, and you will have a much better idea ofhow you are performing, of sales and the costof sales.

‘At that stage, you will find that people willwant to know the results so they can see howtheir business did in comparison with othersimilar operations over the previous year’, headds.

In global terms, Irish businesses and pro-fessions are trailing behind everyone else


PRACTICEPRACTICE

Private individuals 73%Professionals (accountants, architects etc) 8%Corporate – manufacturing 12%Corporate – services 16%Institutional (schools, hospitals etc) 4%Government 2%Financial services 5%Foreign – UK 5%Foreign – elsewhere 2%

AVERAGE PERCENTAGE TURNOVER

ATTRIBUTABLE TO THE FOLLOWING

CATEGORIES FOR FIRMS IN THOSE

SECTORSAverage

when it comes to compiling this kind of infor-mation. InterCompany Comparison’s sisteroperation in Britain does around 200 reports ayear. These not only analyse a range of differ-ent sectors, but also provide detailed financialprofiles of all types of business activity.

Coyne explains that the theory behind inter-business comparisons is that it allows profes-sionals to build up a model based on the infor-mation gathered from across their particular

wise you are just going along on a wing and aprayer’, Coyne argues.

Even with the small sample that took partin this survey, Coyne found wide differencesbetween practices. For example, even thoughpartners and principals were putting in anaverage of 46 hours a week, he encounteredsome solicitors who were working 65-hourweeks, and so were not getting the samereturn for their efforts.

He argues that these surveys will be a realchance for solicitors to compare themselveswith their peers in a non-competitive way, andhopefully make changes which will increaseefficiency and more importantly, profitability.

‘The problem with the legal profession isthat to outsiders it looks very much like aclose-knit group that’s almost cliquish insome ways. But the reality is that many peo-ple within the profession are isolated and haveno way of knowing how well they are doing’,he says. ‘You have 1,200 one-man operationsout there who need this data’.

The Law Society intends to carry out itssecond practice comparison survey this year.Once and more firms begin to take part, it willnot be too long before members see tangiblebenefits from this exercise. Next month wewill examine expenditure and profits. G

sector. This in turn allows them to keep upwith technical developments, look at the gen-eral running of their business, and link saleswith particular costs so they can assesswhether or not they are getting the best returnfor their own and their staff’s efforts.

‘It is increasingly important for people tostop and reflect on how their business is run,and to look at things like staffing levels andrates of pay. Obviously, some people aregood, intuitive, business people, but most ofus still need this kind of information, other-

Director: Sheila Kavanagh

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LtdFour-year-old Sally is suffering from adisease called Myasthenia Gravis. Atpresent, she has difficulty keeping hereyes open and holding her headstraight. She also has problems smil-ing, eating and talking, and she mayneed a respirator to help her breathe.Sally’s muscles are refusing to respond to her brain’s commands.The disease is progressive.

Young Sally is one of thousands of sufferers from Myasthenia Gravisin this country. We are beginning to know something about this dis-ease and we can sometimes control it. But we still don’t know whatcauses it, and it can still kill.Nonetheless, of all the major diseases, Myasthenia Gravis is one ofthe most likely to be conquered in the forseeable future. Results fromour Oxford research centre are encouraging, and new techniquespromise progress.But research is expensive and we badly need the support of yourdonation or legacy. Please, ‘Give us Strength’ to help Sally.

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Council reportReport on Council meeting held on 11 December 1997


BRIEFINGBRIEFING

1. Army deafness casesThe President reported that, in aninterview on Morning Ireland,the Director General had indicat-ed that the Society was preparedto meet the Minister for Defenceto discuss the growing contro-versy in relation to army deafnesscases and, in particular, the focuswhich was being placed on legalcosts. A meeting had been heldon the previous Tuesday withrepresentatives of 40 solicitors’firms which were handling a sub-stantial number of these cases.On the same afternoon, thePresident, Senior Vice President,Director General and Chairmanof the Litigation Committee hadmet the Chief State Solicitor andtwo senior representatives of theDepartment of Defence. TheSociety’s representatives hadstrenuously defended the legalprofession and had urged that theState should approach thedefence of these cases in a moresensible fashion rather than con-tinuing to deny liability in everycase and then settling at a verylate stage. It was clear, however,that the Minister’s aim was tosecure a 50% reduction in solici-tors’ fees. Although there was noquestion of agreement on this, itwas agreed that a Joint WorkingGroup should be established toexamine how the overall cost ofthese cases to the taxpayer couldbe reduced. With reference tocriticism of solicitor advertisingby the Minister and also by theTaoiseach in the Dáil, thePresident said he proposed in aparchment speech that afternoonto make the points that advertis-ing had been imposed on the pro-

fession by politicians, only asmall percentage of solicitors’firms engaged in it, and that theSociety would be happy to re-visit this whole question with theGovernment. The Council indi-cated its full support for theviews expressed by thePresident.

2. SI 348 of 1997The President noted with satis-faction the success of theSociety’s lobbying for a newSuperior Court rule. This had theeffect that the rules on disclosureand admission of reports of state-ments, contained in SI 348 of1997, would only apply to HighCourt proceedings which wereinstituted and to reports or state-ments coming into existence onor after 1 September 1997. Asub-committee of the SuperiorCourt Rules Committee compris-ing Mr Justice Johnson, MrJustice Lynch, Gordon Holmesand Mr E Marray had been estab-lished to explore the other deepconcerns of the Law Society andBar Council. The Presidenthoped that this meeting would beheld soon and that the main prob-lems with SI 348 of 1997 wouldbe rectified.

3. Eligibility of solicitorsas judges of High andSupreme CourtsGeraldine Clarke reported thatthe working group was begin-ning to finalise its conclusions. Acompromise was emerging inrelation to the contentious issueof whether the elevation ofjudges in the Circuit Court to theHigh Court should be allowed to

continue. She assured MichaelCarroll that the Law Society rep-resentatives would not concedeon the question of eligibility ofcorporate and public servicesolicitors for appointmentalthough the working group wasdeeply divided on this and it wasimpossible to predict what rec-ommendation would be made tothe Minister.

4. Action plansThe President referred to a sum-mary of the action plans for com-mittees which had been circulat-ed. He said that, at an all-daymeeting of the Co-ordinationCommittee in mid-January, anaction plan for the Council wouldbe drafted.

5. Denham WorkingGroup on Courts ServiceThe Director General reportedthat the working group hadrecently considered the questionof the establishment of specialdrugs courts and a submissionhas been made by the CriminalLaw Committee. Another issueon which the working groupwould have to report to theMinister in the Spring was thatof the length of court vacations.The Courts Service Bill hadbeen introduced in the Seanad.There were certain concernsregarding the future role of thecounty registrars in the newCourt Service. The Councilreconfirmed its full backing forthe county registrars and itsbelief that their role in the futureshould be an enhanced one andcertainly not one that wasreduced in any way.

6. Investment intermediaries andinvestor compensationThe Deputy Director General, MaryKeane, gave a detailed report to theCouncil in relation to a meetingwhich she and Michael VO’Mahony had with representativesof the Department of Justice on theimpact of the proposed InvestorCompensation Bill on the Society’sCompensation Fund. Both sideswere in agreement that, as far aspossible, the Compensation Fundshould not be exposed as a ‘mark’for clients of investment businessfirms, which were either operatedby or involved a solicitor who,effectively, was offering servicesother than those of a solicitor. Inaddition, the potentially enormouscost and monitoring implications ofthe Society becoming an ‘approvedprofessional body’ within themeaning of the InvestmentIntermediaries Act should be avoid-ed if possible. Ms Keane and MrO’Mahony have put to theDepartment of Justice a proposalwhich would protect both invest-ment business clients and theCompensation Fund. The views ofthe Department of Finance on thiswould also have to be sought. ThePresident said that McCannFitzGerald had been engaged on aprofessional basis to advise theSociety on these complicated legalissues.

7. InsuranceThe Chairman of theCompensation Fund Committee,Gerard Griffin, said that theSociety had received a quotationon favourable terms for a very sub-stantial level of insurance for the

PROGRAMME

Introduction by Chairman - Frank Daly

ARBITRATION - How does a party get to arbitration- Arbitration schemes- Statutory arbitration- Advantages & disadvantages of arbitration

ARBITRATION CLAUSES - Drafting arbitration clause pre-dispute& APPOINTMENT OF - Drafting arbitration clause post-disputeARBITRATOR - Appointment of arbitrator

POWER OF ARBITRATOR - Section 19 of the Arbitration Act, 1954- Attendance of witnesses- Procedural issues

CONTROL BY THE COURTS - Section 22 of the Arbitration Act, 1954- Case stated- Section 5 of the Arbitration Act, 1980

ENFORCEMENT & - Rules of the Superior CourtCHALLENGING AWARD - Power of court to remit award

- Power of court to set aside award

ALTERNATIVE DISPUTE - ConciliationRESOLUTION TECHNIQUES - Mediation

- Mini Trials

COSTS - Power of the arbitrator- Power of the court

PANEL DISCUSSION

SPEAKERS INCLUDE

Solicitors Timothy Bouchier-Hayes, McCann FitzGeraldBernard Gogarty, Smyth & SonFrank Murphy, Gleeson McGrath Baldwin

Legal cost accountant Robert Connon, Cyril O’Neill & Co

LAW SOCIETY OF IRELANDARBITRATION SEMINAR

APPLICATION FORM: ARBITRATION SEMINAR

Name DX

Firm Phone

Address Fax

Year(s) Qualified

Fee: £60 per person

Please reserve place(s) for me on the above seminar

I enclose cheque £

Please return to: Mary Lynch, Law Society, Blackhall Place, Dublin 7Closing date for applications: Monday, 16 March 1998.

VENUE

JURY’S HOTEL,WESTERN

ROAD, CORK

DATE & TIME

FRIDAY, 20 MARCH 19989.00 AM TO

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A light continental breakfast will be availablebetween 8.00 am and 8.45 am.


BRIEFINGBRIEFING

candidates had successfully takenthe examination, out of a total of249 applicants.

9. FinanceThe Chairman of the FinanceCommittee, Ward McEllin,sought and obtained the Council’sapproval for an increase in thepractising certificates fee in linewith inflation of 1.8% represent-ing a £10 increase in the registra-tion fee for solicitors qualifiedmore than three years, from £555to £565, and an increase of £7 forsolicitors qualified less than threeyears, from £390 to £397.

Compensation Fund. He notedthat with the current balances inthe fund, together with the insur-ance, in the coming year therewould be a total cover of £14.5million. The Council approved theproposal for insurance cover.

8. EducationThe Chairman of the EducationCommittee, Owen Binchy, report-ed that the committee was current-ly considering the appointment ofindependent persons to the Boardof Examiners for the FE1. He alsoreported that, in respect of themost recent FE1 examination, 59

The Taxation Committee has received aquery concerning probate tax on jointaccounts in light of the Supreme Courtdecision in the case of Mary Lynch v Burkeand Allied Irish Banks plc (1996 1 ILRM).

When receiving instructions concern-ing wills, practitioners should enquire asto the existence of any joint account, thepurpose to which any such account wasset up and to whom the monies areintended to pass on death.

Similar enquiries should be made ondeath (prior to completing the InlandRevenue Affidavit) to ascertain whethera clear intention has been shown oralternatively whether a presumption ofadvancement or a presumption ofresulting trust applies. The effect of theLynch v Burke decision is that a pre-sumption of resulting trust would not beapplied if it would be inequitable giventhe weight of evidence indicating an

intention to benefit the surviving jointaccount holder.

If the circumstances do not involve apresumption of advancement (for exam-ple, a surviving spouse or child) andthere is no evidence of intention torebut the presumption of resulting trust,then the joint bank account will formpart of the deceased’s estate and will besubject to probate tax (and should beinserted in Part 3 of the Inland RevenueAffidavit).

If the probate tax is not dischargedwithin nine months of the date of death,interest becomes payable.

Where a joint bank account passes bysurvivorship, no probate tax will bepayable. In this instance, the details ofthe account should be inserted in Part 5(Question 7) of the Inland RevenueAffidavit.

Taxation Committee

Joint bank accountsThe implications of Lynch v Burke

on probate tax

PRACTICE NOTE

NOTICESolicitors’ Benevolent Association

Notes: Resolution (i): This resolution is to increase life membership subscription from £20 to £500. Resolution (ii): This resolution is to abolish the distinctionbetween metropolitan and provincial directors. Resolution (iii): This resolution authorises the directors to approve grants to beneficiaries on a monthly basis.Resolution (iv): This resolution gives the directors power to borrow money from its bank.

Notice is hereby given that the 134th Annual General Meeting of theSolicitors’ Benevolent Association will be held at the Law Society, BlackhallPlace, Dublin 7, on Wednesday 1 April 1998 at 12.30 pm.

1. To consider the annual report and accounts for the year ended 30November 1997

2. To elect directors3. To propose the following resolutions:

That the rules of the association be altered as follows:i) By the deletion of ‘twenty’ in Rule 4 and the substitution therefor of

the words ‘five hundred’.ii) By the deletion of ‘of whom at least ten shall be metropolitan and the

remainder provincial directors’ in Rule 6.iii) By the insertion of a new Rule 11A of the following:

‘All grants payable to beneficiaries shall be voted on and approved atmonthly meetings of the directors’.

iv) By the insertion of a new Rule 23B of the following:‘The directors shall have power to borrow, on behalf of the associa-tion, by way of overdraft, term loan, loan account or otherwise, fromthe association’s bankers, with interest in the category of the accom-modation granted, such amount of money either at one time or fromtime to time as it may deem proper, such borrowings to be effected inthe name of the association and to give security for such borrowingsand the interest thereon by the issue of bills of exchange promissorynotes or other obligations or securities of the association or by mort-gage or charge upon all or any part of the property of the associationand thereupon the trustees shall at the direction of the directors makeall such dispositions of the property of the association or any partthereof and enter into such agreements in relation thereto as thedirectors may deem proper for giving such security.’

To deal with other matters appropriate to a general meeting.Geraldine Pearse, Secretary

In an effort to provide speedy hearingsfor short cases – a duration of one dayor less – involving an assessment ofdamages only, the following provisionsshall apply:1. Such cases will, on the application

of the plaintiff, be listed for trial onthe Wednesday, Thursday andFriday of the last week of each sit-ting

2. Applications may be made inrespect of any such case which hasbeen set down for trial regardlessof whether or not it has appearedin the published list

3. Applications for such listing must bemade to the presiding judge at thecall-over in Dublin which precedesthe hearings in each country venue

4. This direction shall take effect inrespect of all trials at countryvenues from Easter term 1998onwards. Applications for the list-ing of such cases at the Easter ses-sions should therefore be made atthe call-over lists to be taken duringthe current law term.

Frederick Morris President of the High Court

Personal injury actions to betried at country venues

PRACTICE DIRECTION

Practitioners are reminded that the new 20% rate for capital gains tax does notextend to disposals, which includes gifts, of development land which continues tobe taxable at 40%. The fact that there is no planning permission or that the land isnot even zoned for development does not necessarily mean it cannot be treated as‘development land’ for the purposes of capital gains tax. Land is deemed to bedevelopment land where the consideration for the disposal, or the market value atthe time of disposal, exceeds the current use-value of the land. ‘Current use value’is the value which the land would have were it to be sterilised for material devel-opment. Solicitors are referred to section 648 of the Taxes Consolidation Act, 1997.

Taxation Committee

Capital gains tax: development land

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EurlegalNews from the EU and International Affairs Committee

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This is the second part of GavinBarrett’s analysis of recent caselaw on the Acquired RightsDirective (see Gazette, January/February, page 29)

Henke v GemeindeSchierke andVerwaltungsgemeinschaftBrocken (Case C-298/94)15 October 1996 [1997] 1CMLR 373This was a further case in which abrake was applied by theEuropean Court of Justice to thecontinued expansion of the inter-pretation given to the concept of‘undertaking’. Henke argued thather employment relationship hadbeen transferred by virtue of theAcquired Rights Directive whenthe municipal authority for whichshe worked amalgamated withothers to form a larger administra-tive unit. It was held by the ECJ,however, that, in the light of thewording and the purpose of thedirective, the directive did notapply to transfers of this nature.Nor would the fact that an under-taking carried out non-administra-tive activities bring it within theterms of the directive so long asthese activities were of a merelyancillary nature.

Particular stress was laid by thecourt in this case on the referencein the first recital of the directive’spreamble to the aim of protectingworkers against changes derivingfrom economic trends at nationaland at Community level – and the

apparent inapplicability of thisrationale to reorganisations ofpublic administrations. It is inter-esting to note, by way of contrast,that this argument did not prevailin the earlier Dr Sophie RedmondStichting case, however, althoughit seems to have been equallyapplicable there, in that theundertaking transferred was afoundation for drug addicts – anentity one would have expectedto be equally unaffected by eco-nomic trends at national or atEuropean level.

Rotsart de Hertsaing v JBenoidt SA (in liquida-tion) and Anor (Case C-305/94) 14 November1996 [1997] AER 40The facts of this case were thatBenoidt purportedly dismissedthe claimant after having trans-ferred the undertaking in whichshe worked to a new owner. Theissue (referred to the EuropeanCourt of Justice by the LabourCourt in Brussels) thus arose ofwhether the employment of aworker in a transferred undertak-ing could be maintained with thebusiness transferor. In a straight-forward application of its earlierdecision in D’Urso v ErcoleMarelli ElettromeccanicaGenerale SpA [1991] ECR I-4105, it was held by theEuropean Court of Justice thatthe answer to this question was‘no’. Contracts of employmentwere automatically transferred by

the mere fact of the transfer. Thecourt emphasised that the occur-rence of this automatic transfer ofthe contract of employment wasnot affected by the contrary inten-tion of the transferor and/or thetransferee.

Nor, the court added, wouldthe refusal of the transferee to ful-fil his obligations under thenewly-transferred contract ofemployment affect matters. Theemployment relationship wouldnonetheless be transferrednotwithstanding any such refusal.

Finally, basing its reasoning inpart on a literal reading of thedirective, the court went on tohold that the business transfereeand business transferor had nooption even to postpone thistransfer of the employment rela-tionship: the transfer of employ-ment contracts was required bythe directive to occur on the verydate of the transfer.

In the wake of Benoidt, it isclearer than ever before that theidea that business transferees canrely on the transferor of a busi-ness to tidy up staff arrangementssubsequent to the actual execu-tion of the business transfer is arecipe for legal problems.Personnel arrangements musteither be attended to by the trans-feror before the carrying out ofthe transfer or, alternatively, thetransferee must be prepared todeal with them subsequently,whether armed with indemnitiesfrom the transferor or otherwise.

Süzen v ZehnackerGebäudereinigung GmBHKrankenhausservice andLefarth GmBH (Case C-13/95) 11 March 1997[1997] 1 CMLR 768This case has been one of themost important decisions yetmade by the ECJ in relation to theAcquired Rights Directive – andalso one of the most controver-sial. Süzen worked for Zehnackerwho held the contract to clean aschool in Germany. They lost thiscontract to Lefarth (who tookover the contract without anyaccompanying transfer of assetsor staff) and in consequence ofthis Süzen was dismissed. Süzenclaimed that her legal rights hadbeen violated. The question camebefore the European Court ofJustice as to whether this situa-tion involved the transfer of anundertaking for the purposes ofthe Acquired Rights Directive.

It should be pointed out that ina previous controversial ruling –in Schmidt v Spar und Leihkasseder früheren Ämter Bordesholm,Kiel und Cronshagen [1994] ECR1311 – it had been held by thecourt that in circumstances suchas those in that case the contract-ing-out by an undertaking (thebusiness concerned in theSchmidt case was a bank) of theresponsibility to carry out clean-ing operations in one of itsbranches did attract the applica-tion of the directive. This was so,according to the court, even if

Acquired Rights Directive case law (part 2)


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before the contracting-out suchwork was carried out by only onesingle employee (such as FrauSchmidt). This was still the trans-fer of an undertaking for the pur-poses of the directive.

In the light of Schmidt, it mighthave been anticipated that a situa-tion involving a change of con-tractors – such as that in the Süzencase – also involved the transferof an undertaking. However, in aruling which some have founddifficult to reconcile with the ear-lier case, the court in Süzen heldthat the directive does not applyto the situation of the terminationof a contract with one undertak-ing and the entry into a new con-tract with another undertaking if‘there is no concomitant transferfrom one undertaking to the otherof significant tangible or intangi-ble assets or taking over by thenew employer of a major part ofthe workforce, in terms of theirnumbers and skills, assigned byhis predecessor to the perfor-mance of the contract’.

The quoted words may hold thekey to reconciling Süzen withSchmidt. For in Schmidt the entireworkforce assigned to the activityof cleaning was taken over (albeitthat this workforce consisted ofonly one individual, FrauSchmidt). In Süzen, the workforcewas not taken over. The contrarywas in fact the case: all of theemployees assigned by the origi-nal contractor to the task of clean-ing the school were dismissed. It isarguable that if the facts of Süzenwere slightly different, and if theentirety or even a major part of theworkforce assigned to the task ofcleaning was taken over by thenew contractor (as it was in theSchmidt case), then a transferwould have been held to have

occurred for the purposes of thedirective.

At any rate, just as Merkxshould not be taken as authority forthe proposition that a change of adealership automatically involvesthe transfer of an undertaking, Iwould argue that Süzen should notbe taken as authority for the pointthat a switch of contractors auto-matically does not involve thetransfer of an undertaking. On thecontrary, a switch-of-contractorssituation, just like a contracting-outsituation, may or may not involvethe transfer of an undertaking. It

depends on the facts. The ECJ hasalways emphasised that in deter-mining whether the transfer of anundertaking has occurred it is nec-essary to take account of all thefactual circumstances of the trans-action in question.

Pedro Burdalo Trevejoand others v Fondo deGarantía Salarial (Case C-33/95) 17 April 1997The facts of Trevejo, the final casewhich I propose to examine here,were that the claimants wereemployees of very long service

(ranging from 24 to 42 years) whoworked in a textile undertakinguntil they were dismissed forredundancy. By that time, howev-er, the undertaking for which theyworked had been transferred notonce, but on several occasions.The Spanish Fondo de GarantíaSalarial (which was responsiblefor making redundancy pay-ments) now refused to take intoaccount the claimants’ serviceinsofar as it dated from before1978, the date of the first of thesetransfers. The claimants sought toinvoke the benefit of the AcquiredRights Directive. However, it washeld by the ECJ that the directivecould not avail the claimantssince it was of no relevance totransfers which took place beforethe directive had begun to pro-duce legal effects in the MemberState concerned.

For Irish employees, then, thiscase makes clear (to the extentwhich was not already evident)that the directive has no relevanceinsofar as concerns business trans-fers which occurred before 1979,the year in which the directive wasrequired to be implemented intoIrish law. Thus, the very broaddefinition given to the concept ofa transfer by the Court of Justicewill not avail an employee whoseeks to rely on it in claimingunbroken continuity for the pur-poses of calculating his redundan-cy lump sum entitlements. Theeffects of a pre-1979 transfer herewill thus have to be assessed byreference to the much more strict-ly interpreted relevant statutoryprovisions specifically providedfor in the relevant legislation.

Dr Gavin Barrett BL is CourseDirector at the Academy ofEuropean Law, Trier.

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In late 1997, angry British farm-ers blockaded shipments of Irish

beef destined for the UK. In arecent case, the Court of Justiceruled that France violated EC lawwhen it failed to stop farmers fromdisrupting shipments of Spanishstrawberries and Belgian toma-toes. Is Britain guilty of a similarviolation?

Angry British farmers sought topressure the British governmentinto paying compensation for theBSE crisis by ‘inspecting’ Irishlorries at British ports and turningback those carrying Irish beef.Acts of vandalism occurred. Insome instances, police witnessedthe ‘inspections’ but failed tointervene. These protests threat-ened Ireland’s £170 million beeftrade with Britain.

A recent ECJ judgment mayinterest solicitors whose clientssuffered financial losses in therecent blockade. In Commission vFrench Republic, the Court ofJustice ruled that France violatedEuropean Community law when itfailed to prevent private individu-als from obstructing the freemovement of agricultural productsfrom other Member States. Thefinding of a violation of EuropeanCommunity law opens the door foran action against France for dam-ages under principles laid down inFrancovich and Bonifaci v Italy.

Does Commission v Francesuggest that a damage action canbe brought against the UnitedKingdom for the recent blockade?This article takes a close look atthe ruling in the French case andits implications for the recent UKblockade.

The farmers’ protestSince 1993, the EuropeanCommission had received com-plaints about the failure of Frenchauthorities to take adequate steps toprevent private individuals fromobstructing the free movement ofagricultural products from other

Did British farmers’ blockade of Irish beef violate EC law?

Member States. A private organisa-tion known as Co-ordinationRurale carried out many of the actsof obstruction. These acts includedthe interception of lorries anddestruction of their cargo, violenceagainst lorry drivers, and vandalismagainst French shops selling non-French produce. There were threatsto wholesalers to supply onlyFrench products, the imposition ofminimum selling prices, and organ-ised checks of compliance. Thecampaign was conducted primarilyagainst Spanish strawberries andBelgian tomatoes.

The Commission raised thematter with the French authorities.It suggested that France had failedto fulfil its obligations under theEC Treaty because it had notstopped the obstruction of agricul-tural products from other MemberStates. In 1994, the Commissiongave France two months to submitits observations.

France responded that it hadalways condemned acts of vandal-ism and that it had taken preven-tive measures, including surveil-lance and the gathering of infor-mation. It noted a dramatic reduc-tion in the number of such inci-dents. However, it admitted that‘unpredictable commando-typeoperations’ carried out by ‘small,highly-mobile groups’ of Frenchfarmers made it extremely difficultfor the French police to intervenesuccessfully. This also explainedthe low rate of successful criminalprosecutions.

After another incident in 1995,the Commission took the next stepin its enforcement action againstFrance. It delivered a reasonedopinion which stated that Francehad failed to fulfil its obligationsunder the EC Treaty. TheCommission gave France onemonth to correct its violation.France replied that it had adoptedall measures available to it toensure the free movement ofgoods and that its measures had

substantially reduced the numberof incidents. France identifiedcriminal convictions against 24farmers for acts of vandalism.France also assumed financialresponsibility for the damagescaused and stated its intention toexpedite damage claims.

While the Commission awaitedFrance’s formal response to thereasoned opinion, protestersobstructed three lorries carryingfruit and vegetables from Spain.The police failed to intervene. TheFrench Minister for Agriculturestated that although he condemnedthe acts of violence, he did notcontemplate police intervention tostop it.

Shortly after these further actsof violence and the comments bythe French Agriculture Minister,the Commission began proceed-ings before the Court of Justice.

Arguments of France andthe CommissionThe Commission argued that theinterception of lorries, threats, andacts of vandalism – as well as theclimate of insecurity created bythese incidents – constituted anobstacle to intra-Communitytrade. According to theCommission, France had an oblig-ation to prevent or stop suchobstacles and had failed to do so.The continuation of such acts andthe failure successfully to prose-cute those responsible amountedto a failure by France to fulfil itsobligations under the EC Treaty.

The Commission’s argumentwas novel because private individ-uals were responsible for the obsta-cles to free movement. Article 30of the European Community Treatyprohibits quantitative restrictions or‘measures’ equivalent to quantita-tive restrictions. However, article30 does not apply to purely privatebehaviour. While Member Stateliability does not require that theMember State issue ‘laws’ of abinding nature, some state involve-

ment typically is required. InCommission v French Republic, theCommission sought to establishthat a failure to prevent private indi-viduals from obstructing the freemovement of goods amounted to aviolation of Community law by theMember State.

France argued that it had putinto effect means to prevent theobstruction of the free movementof agricultural products. Thesemethods were similar to stepstaken to confront other types ofillegal activity.

France conceded that the largenumber of lorries transporting agri-cultural products through Francemade it difficult to prevent all actsof violence. The small number ofperpetrators involved and the high-ly-organised nature of the attacksmade it impossible to successfullyprosecute individuals in every case.The state compensated victims ofviolent attacks, and had paid outmore than 17 million francs for actsoccurring from 1993 though 1995.

The French governmentexplained that the dissatisfactionof French farmers was due to the‘flooding’ of French markets withSpanish agricultural productssince the accession of Spain to theEU. This had led to a substantialfall in agricultural prices. A subse-quent competitive devaluation ofthe peseta exacerbated the down-ward pressure on prices. TheFrench government argued that ithad taken all reasonable measuresto facilitate creation of a singlemarket in agricultural products,and to cope with the social disrup-tion that had accompanied this.

Analysis by the ECJThe court rejected all of France’sarguments. It held that France hadfailed to fulfil its obligations underarticle 30 of the EC Treaty.

The court noted that the freemovement of goods was one of thefundamental principles of the ECTreaty. Article 30, which imple-


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mented the fundamental principleof free movement, prohibitedquantitative restrictions and mea-sures equivalent to quantitativerestrictions. The latter prohibitionwas designed to eliminate all actu-al or potential, direct or indirect,barriers to intra-Community trade.

The court emphasised the effecton intra-Community trade, ratherthan its origin. The effect on intra-Community trade from a failure toprevent private acts of obstructionwas the same as if the state hadadopted positive measures to pre-vent the free flow of goods. Thecourt stated that ‘article 30 there-fore does not prohibit solely mea-sures emanating from the state’,but also applied where a MemberState failed to adopt measures toprevent obstacles to free move-ment caused by private parties.Article 30 required Member States‘to take all necessary and appro-priate measures’ to ensure that theprinciple of free movement isrespected in its territory.

The court stated that MemberStates enjoyed a margin of discre-tion in adopting methods to ensurethe free movement of goods. Itwas not for the court to prescribeparticular steps to be taken by theMember State. However, the courtdid have an obligation to verifythat the steps chosen by a MemberState were adequate to ensure thefree movement of goods.

The court concluded that Francehad not taken adequate steps toensure the free flow of goods. Thejudgment stressed that the inci-dents of which the Commission

complained had taken place regu-larly for more than ten years.France, therefore, had ample timeto adopt the necessary measures toprotect the free flow of goods.Nevertheless, repeated incidentsoccurred after the initial complaintsfrom the European Commission.These incidents occurred in partic-ular places and at particular timesof year.

French police either were notpresent or did not intervene whenincidents occurred, even whenthey substantially outnumberedthe protesters. Numerous acts ofvandalism had been filmed by TVcrews, and the protesters wereknown to police. However, only asmall number of prosecutions hadbeen undertaken. The inaction onthe part of French authorities cre-ated a climate of insecurity whichhad a deterrent effect on intra-Community trade as a whole,according to the court.

France’s defenceThe French government sought tojustify the failure to take moreserious steps to curb the obstaclesto free movement. France arguedthat a more serious response couldhave worsened the situation andled to social conflict. It pointed toits reimbursement of financiallosses caused by the disruptions indefence of its alleged violation ofCommunity law. It explained thefarmers’ protests as being pro-voked by the depression of pricesdue to the influx of Spanish fruitsand vegetables. The destabilisa-tion of the French market was in

some instances brought about byunfair practices on the part ofSpain.

The court rejected all of theseexplanations. A general appre-hension of internal difficulties didnot justify France’s manifestlyineffective efforts. Threat of seri-ous disruption to public ordermight, in proper cases, justifynon-intervention by the police.However, this could be reliedupon only in particular incidentsand not as a blanket excuse for afailure to intervene.

The mere payment of compen-sation to those injured by theobstruction of free movement didnot excuse France’s violation ofEC law. Nor could France relyupon the economic difficultiesposed to its agricultural marketsby competition from Spanishfruits and vegetables. Even ifSpain had engaged in unfair prac-tices, this did not justify France’sfailure to fulfil its obligationsunder the treaty.

The court concluded that byfailing to adopt all necessary andproportionate measures in orderto prevent the free movement offruit and vegetables from beingobstructed by private individuals,France had failed to fulfill itsobligations under the EC Treaty.

British versus FrenchprotestsThe protests in the UnitedKingdom are similar to those inCommission v French Republic.However, they differ in intensityand duration. Whereas the inci-

dents in France occurred over aperiod of ten years, those in theUK began only in late 1997.Furthermore, the protests in theUnited Kingdom, by and large,were limited to ports of entry. TheUK protests did not extend toretail and wholesale outlets forIrish beef in the UK.

The initial protests in the UKwere not stopped by Britishpolice. However, news reportsfrom early 1998 indicate that, inresponse to renewed blockades,British police intervened and pre-vented obstruction of lorries.Private farmers’ organisations inthe UK expressed sympathy forthe protesters. However, it doesnot appear that these protests wereorganised by these organisations.Nor were there inflammatorystatements by British Ministers. Insum, it appears the UK protestswere not as egregious as those inFrance.

Nevertheless, Commission vFrench Republic represents anexpansion of article 30 liability toinclude inaction on the part of aMember State. It may lay thefoundation for a future finding ofliability against the UK, ifobstruction of Irish beef contin-ues. The British government suc-cessfully intervened inCommission v French Republic tosupport the Commission’s posi-tion. It may come to regret thisstance.

Bruce Carolan is head of theDepartment of Legal Studies atthe Dublin Institute of Technology.

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Recent developments in European law

FinesThe Commission has announced new

guidelines for fining companies which

breach EU competition law. The basic

fine will be determined according to (1)

the gravity of the breach and (2) its

duration.

1. Breaches will be classed as minor or

serious or very serious. The corre-

sponding fines will vary between

1,000 ECU and 20 million ECU

2. Breaches of between one to five

years may attract an increase of up to

50% on the basic fine. Infringements

of more than five years will attract

an increase of up to 10% a year of

the amount determined by the grav-

ity criteria.

If there are aggravating or attenuating

circumstances, the fine will be increased

or reduced accordingly. No fine imposed

is to exceed 10% of the worldwide

turnover of the firms involved.

National time limitsIn Magiorrian and Cunningham v

Eastern Health and Social Services Board

(Case 246/96), 11 December 1997, the

court examined the application of

national limitation periods in direct

effect cases. The applicants were nurses

who had been the victims of indirect dis-

crimination and were entitled to rely

directly on article 119 of the treaty. The

court had to decide for what time peri-

od they were entitled to recover the

additional benefits which they should

have received. It held that the direct

effect of article 119 could be relied upon

from 8 April 1976, the date of the judg-

ment in Defrenne v Sabena, when article

119 was held to be directly effective. The

UK authorities had sought to invoke a

rule restricting claims of such benefits to

two years before the date of a successful

claim. The court held that such a rule

would prevent them claiming benefits

from 1976 to 1990 and thus effectively

deny them a remedy. Thus, the court

held that such a rule was contrary to

Community law. The court distinguished

its earlier rulings in Steenhorst-Neerings

and Johnson.

In Fantask and Others v

Industrimisteriet (Case 188/95), 2

December 1997, the court distinguished

its decision in Emmot. It held that the

Danish Government could rely on a five-

year limitation period for actions for

recovery of debts even where a directive

had not been properly implemented.

Obligations of states pendingimplementation of a directiveThe question of a state’s obligation

before a directive has been transposed

arose in Inter-Environnement Wallonie

ASBL v Région Wallonne (Case 129/96),

18 December 1997. The question arose

in the context of directive 75/442 on

waste. An order of the Walloon

Regional Executive on waste which had

been adopted during the implementa-

tion period was challenged on the basis

of its incompatibility with the directive.

Belgian law requires the validity of a

measure to be assessed at the time of its

adoption. The court looked to its earlier

decisions holding that Member States

are obliged by article 189 of the treaty

and directives themselves to take all

measures necessary to achieve the result

prescribed by a directive. A Member

State cannot be faulted for its failure to

implement a directive until the end of

the implementation period. However,

during that period a Member State must

refrain from taking any measure liable

seriously to compromise the result pre-

scribed by a directive.

Free movement of personsIn Kalliope Schöning-Kougebetopoulou

v Freie und Hansestadt Hamburg (Case

15/96), 15 January 1998, the court con-

sidered the application of the free

movement of persons provisions in arti-

cle 18 and regulation 1612/68 to med-

ical employment in the public service.

The applicant wished to have her work

experience in public service of another

Member State taken into effect in

determining her classification in a salary

scale in the German public service. The

court held that failing to take into

account periods of time spent in the

public service of other states was dis-

criminatory to migrant workers. Article

48(4) did not apply, as the position in

question was that of a doctor. The court

therefore found that a clause in a col-

lective agreement to this effect was null

and void.

Free movement of workers: socialadvantagesIn H Meints v Minister van Landbouw,

Natuurbeheer en Visserij (Case 57/96), 27

November 1997, a state benefit in the

form of a payment to agricultural work-

ers whose contract of employment had

been terminated as a result of the set-

ting aside of land belonging to their for-

mer employer was held to be a social

advantage under article 7(2) of regula-

tion 1612/68. Thus, a Member State

could not make such an advantage

dependent on the condition that recip-

ients be resident within its territory.

Jurisdiction and enforcement ofjudgmentsThe Council of Ministers has reached

agreement on a convention on the

jurisdiction, recognition and enforce-

ment of judgments in matrimonial mat-

ters. It provides that a couple of mixed

nationality can divorce in the Member

State where they reside. This will then

be accepted throughout the EU. Ireland

is allowed a transitional period and the

UK has derogated from the provisions

on child custody. The convention will

come into force when it has been rati-

fied by all the Member States.

Multi-disciplinary partnershipsCoopers & Lybrand, the international

accountancy firm, has a law firm in

Norway. In a recent Norwegian

Supreme Court case, one of its part-

ners sought to represent the Oslo

local authority against Sparebanken,

a client of Coopers & Lybrand audit-

ing. Sparebanken threatened to end

all its auditing and accounting busi-

ness with Coopers & Lybrand unless its

law firm refused to bring the case

against it. The Coopers & Lybrand law

firm then withdrew from the case.

However, the partner concerned

wished to continue with the case and

resigned from Coopers & Lybrand in

order to do so.

LEGAL PROFESSION

FAMILY LAW

EMPLOYMENT ANDSOCIAL POLICY

DIRECT EFFECT

COMPETITION

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Appropriation Act, 1997Number: 45/1997Minister/Department: Minister for FinanceDate enacted: 19/12/1997Commencement date: 19/12/1997Explan-memo: No

Bail Act, 1997Number: 16/1997Minister/Department: Minister for JusticeDate enacted: 5/5/1997Commencement date: Commencement order/s to be made.Explan-memo: Yes

Central Bank Act, 1997Number: 8/1997Minister/Department: Minister for FinanceDate enacted: 31/3/1997Commencement date: 9/4/1997 (per SI 150/1997)Explan-memo: Yes

Chemical Weapons Act, 1997Number: 28/1997Minister/Department: Minister forEnterprise and EmploymentDate enacted: 19/5/1997Commencement date: 1/7/1997(per SI 269/1997)Explan-memo: Yes

Children Act, 1997Number: 40/1997Minister/Department: Minister for Equality and Law ReformDate enacted: 9/12/1997Commencement date: 9/1/1998 for allsections – except s11 (insofar as it insertsss20, 21, 22, 26, 28 and 29 into theGuardianship of Infants Act, 1964) andPart III, for which commencementorder/s will be made (per s1 of the Act).Explan-memo: Yes

Committees of the Houses of the Oireachtas(Compellability, Privilegesand Immunities ofWitnesses) Act, 1997Number: 17/1997Minister/Department: Minister for FinanceDate enacted: 5/5/1997Commencement date: Dates to beappointed by resolution of either Houseof the Oireachtas (per s18 of the Act).Explan-memo: Yes

Courts Act, 1997Number: 6/1997Minister/Department: Senator MManningDate enacted: 20/3/1997Commencement date: 20/3/1997Explan-memo: Yes

Courts (No 2) Act, 1997Number: 43/1997Personal author: Senator D CassidyDate enacted: 18/12/1997Commencement date: 18/12/1997Explan-memo: Explanatory and financialmemo

Credit Union Act, 1997Number: 15/1997Minister/Department: Minister of State at the Department ofEnterprise and EmploymentDate enacted: 3/5/1997Commencement date: 1/10/1997 for allsections other than ss46-52, 68(1)(c),120(5) and 122(1)(f) (per SI 403/1997).Explan-memo: Yes

Criminal Justice(Miscellaneous Provisions)Act, 1997Number: 4/1997Minister/Department: Minister for JusticeDate enacted: 4/3/1997Commencement date: 4/3/1997 for allsections other than ss3-10, 12 and 18which came into operation on 4/4/1997(per s21 of the Act).Explan-memo: YesLeg-implemented: Dir 91/308

Criminal Law Act, 1997Number: 14/1997Minister/Department: Minister for JusticeDate enacted: 22/4/1997Commencement date: 22/7/1997 (per s1of the Act).Explan-memo: Yes

Decommissioning Act, 1997Number: 3/1997Minister/Department: Minister for JusticeDate enacted: 26/2/1997Commencement date: 24/9/1997 for ss1,2, 4, 7, 8 and 9 (per SI 397/1997);4/9/1997 for s3(2)-s3(7) (per SI398/1997).Explan-memo: Yes

Dublin DocklandsDevelopment Authority Act,1997Number: 7/1997Minister/Department: Minister for the EnvironmentDate enacted: 27/3/1997Commencement date: 27/3/1997 for ss1-7, 10, 14-17, 38(3) and 57; 1/5/1997 forremaining sections (per SI 135/1997).Establishment Day: 1/5/1997 (per SI136/1997).Explan-memo: Yes

Electoral Act, 1997Number: 25/1997Minister/Department: Minister for the EnvironmentDate enacted: 15/5/1997Commencement date: Various – see s1of the Act, SI 223/1997 and SI 245/1997.Explan-memo: Yes, with Electoral Bill,1994

European ParliamentElections Act, 1997Number: 2/1997Minister/Department: Minister for the EnvironmentDate enacted: 24/2/1997Commencement date: 21/4/1997 (per SI 163/1997).Explan-memo: Yes

Europol Act, 1997Number: 38/1997Minister/Department: Minister for Justice, Equality and Law ReformDate enacted: 24/11/1997Commencement date: Commencement order/s to be made.Explan-memo: Yes

Family Law (MiscellaneousProvisions) Act, 1997Number: 18/1997Minister/Department: Minister forEquality and Law ReformDate enacted: 5/5/1997Commencement date: 5/5/1997Explan-memo: Yes

Finance Act, 1997Number: 22/1997Minister/Department: Minister for FinanceDate enacted: 10/5/1997Commencement date: Various – seeAct. 1/9/1997 for ss101 and 113 (per SI13/1997).

Explan-memo: With Bill as introducedin the Dáil; and with Bill as passed bythe Dáil

Fisheries (Amendment) Act,1997Number: 23/1997Minister/Department: Senator M ManningDate enacted: 14/5/1997Commencement date: Commencements order/s to be made.Explan-memo: Yes

Fisheries (Commissions) Act,1997Number: 1/1997Minister/Department: Minister for the MarineDate enacted: 12/2/1997Commencement date: 12/2/1997. Dateof validation of order: 21/2/1996 (per s2of the Act).Explan-memo: Yes

Freedom of Information Act,1997Number: 13/1997Minister/Department: Senator M ManningDate enacted: 21/4/1997Commencement date: 21/4/1998 (pers1(2) of the Act); commencement orderto be made not later than 21/10/1998 inrespect of para 1(3) of the First Schedule(per s1(3) of the Act).Explan-memo: Yes

Health (Provision ofInformation) Act, 1997Number: 9/1997Minister/Department: Senator M ManningDate enacted: 1/4/1997Commencement date: 1/4/1997Explan-memo: Yes

Hepatitis C CompensationTribunal Act, 1997Number: 34/1997Minister/Department: Minister for HealthDate enacted: 21/5/1997Commencement date: 1/11/1997appointed as the establishment day (perSI 443/1997).Explan-memo: No

Housing (MiscellaneousProvisions) Act, 1997Number: 21/1997

Acts passed in 1997


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Minister/Department: Minister for the EnvironmentDate enacted: 7/5/1997Commencement date: 1/7/1997 (per SI 247/1997).Explan-memo: Yes

ICC Bank (Amendment) Act,1997Number: 32/1997Minister/Department: Minister for FinanceDate enacted: 21/5/1997Commencement date: 21/5/1997Explan-memo: Yes

International DevelopmentAssociation (Amendment)Act, 1997Number: 19/1997Minister/Department: Minister for FinanceDate enacted: 7/5/1997Commencement date: 7/5/1997Explan-memo: Yes

Interpretation (Amendment)Act, 1997Number: 36/1997Minister/Department: Minister for Justice, Equality and Law ReformDate enacted: 4/11/1997Commencement date: 4/11/1997Explan-memo: No

Irish Film Board(Amendment) Act, 1997Number: 44/1997Minister/Department: Minister for Arts, Heritage, Gaeltachtand the IslandsDate enacted: 18/12/1997Commencement date: 18/12/1997Explan-memo: Yes

Irish Takeover Panel Act,1997Number: 5/1997Minister/Department: Minister of State at the Department ofEnterprise and EmploymentDate enacted: 12/3/1997Commencement date: 14/4/1997 for allsections other than ss5(3), 7(1), 7(2), 9-15 (per SI 158/1997). 1/7/1997 forss5(3), 7(1), 7(2), 9-15 (per SI255/1997).Explan-memo: Yes

Licensing (Combating DrugAbuse) Act, 1997Number: 33/1997

Minister/Department: Minister for JusticeDate enacted: 21/5/1997Commencement date: 21/6/1997 (pers22(4) of the Act).Explan-memo: Yes

Litter Pollution Act, 1997Number: 12/1997Minister/Department: Minister for the EnvironmentDate enacted: 18/4/1997Commencement date: 1/7/1997 (per SI213/1997).Explan-memo: Yes

Local Government (FinancialProvisions) Act, 1997Number: 29/1997Minister/Department: Minister for the EnvironmentDate enacted: 20/5/1997Commencement date: 1/7/1997 for allsections other than s7 (per SI 263/1997).Explan-memo: Yes

Merchant Shipping(Commissioners of IrishLights) Act, 1997Number: 37/1997Minister/Department: Minister for the MarineDate enacted: 18/11/1997Commencement date: 18/11/1997Explan-memo: Yes

National Cultural InstitutionsAct, 1997Number: 11/1997Minister/Department: Senator M ManningDate enacted: 2/4/1997Commencement date: Various – see SI222/1997 and SI 328/1997.Explan-memo: Yes

Non-Fatal Offences againstthe Person Act, 1997Number: 26/1997Minister/Department:Minister for JusticeDate enacted: 19/5/1997Commencement date: 20/5/1997 for ss6,7, 8, 10; 19/8/1997 for all other sections(per s31 of the Act)Explan-memo: Yes

Organisation of WorkingTime Act, 1997Number: 20/1997Minister/Department: Minister for Enterprise and EmploymentDate enacted: 7/5/1997

Commencement date: 30/9/1997,30/11/1997 and 1/3/1998 appointed forspecified provisions of the Act (per SI392/1997 – see SI).Explan-memo: YesLeg-implemented: Dir 93/104

Prompt Payment of AccountsAct, 1997Number: 31/1997Minister/Department: Minister for Enterprise and EmploymentDate enacted: 21/5/1997Commencement date: 2/1/1998 (per SI239/1997).Explan-memo: Yes

Public Service ManagementAct, 1997Number: 27/1997Minister/Department: Senator M ManningDate enacted: 19/5/1997Commencement Date: 1/9/1997 (per SI339/1997).Explan-memo: Yes

Registration of Title(Amendment) Act, 1997Number: 35/1997Minister/Department: Minister for Justice, Equality and Law ReformDate enacted: 16/7/1997Commencement date: 16/7/1997Explan-memo: Yes

Scientific and TechnologicalEducation (Investment) FundAct, 1997Number: 46/1997Personal author: Senator D CassidyDate enacted: 24/12/1997Commencement date: 24/12/1997Explan-memo: Explanatory and financialmemo

Seventeenth Amendment ofthe Constitution Act, 1997Minister/Department: TaoiseachDate enacted: 14/11/1997Commencement date: 14/11/1997Explan-memo: Yes

Social Welfare Act, 1997Number: 10/1997Minister/Department: Minister for Social WelfareDate enacted: 2/4/1997Commencement date: 2/4/1997 and var-ious commencement dates – see Actand SI 161/1997, SI 162/1997, SI195/1997, SI 248/1997, SI 250/1997, SI

435/1997, SI 437/1997, SI 490/1997, SI493/1997Explan-memo: Yes

Taxes Consolidation Act,1997Number: 39/1997Minister/Department: Minister for FinanceDate enacted: 30/11/1997Commencement date: 6/4/1997 forspecified provisions (per s1097 of theAct), and see Act for other commence-ment datesExplan-memo: Yes, showing enact-ments repealed by the TaxesConsolidation Act, 1997, and sectionsof the Act in which those enactmentsare reproducedPhysical descrip: 2 v

Transfer of SentencedPersons (Amendment) Act,1997Number: 41/1997Personal author: Senator D CassidyDate enacted: 17/12/1997Commencement date: 17/12/1997Explan-memo: Explanatory and finan-cial memo

Tribunals of Inquiry(Evidence) (Amendment)Act, 1997Number: 42/1997Minister/Department: Minister for Justice, Equality and Law ReformDate enacted: 18/12/1997Commencement date: 18/12/1997Explan-memo: Yes

Universities Act, 1997Number: 24/1997Minister/Department: Minister for EducationDate enacted: 14/5/1997Commencement date: 16/6/1997 (per SI 254/1997).Explan-memo: Yes

Youth Work Act, 1997Number: 30/1997Minister/Department: Minister of State at the Department of EducationDate enacted: 20/5/1997Commencement date: 19/6/1997(per SI 260/1997).Explan-memo: Yes

Prepared by the Law SocietyLibrary

WHERE THERE’S A WILLTHIS IS THE WAY…

5 Northumberland Road, Dublin 4. Tel: (01) 668 1855

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

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

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

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

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

The Irish Kidney Association was formed in 1978 to:

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

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

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

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

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

REMEMBER US WHEN MAKING A WILL!

Certified by the Revenue Commissioners as a charity: 6327

OUR FINANCIAL ASSISTANCE IS NATIONWIDE

ILT digestof legislation and superior court decisions

Compiled by David P Boyle


BRIEFINGBRIEFING

Clarification and exten-sion of Minister’s powersThe Minister for Arts, Heritage,Gaeltacht and the Islands has pre-sented a Bill which aims to:● Clarify and extend the

Minister’s functions in relationto inland waterways and inrelation to the provision offerry services to inhabited off-shore islands, and

● Confer on the Minister certainfunctions in relation to propertyancillary to the Minister’s otherfunctions.

Minister for Arts, Heritage,Gaeltacht and the Islands(Powers and Functions) Bill, 1997

Commemorative poundcoin authorisedLegislation has been put in place toallow the State to issue a commem-orative £1 coin to mark the fiftiethanniversary of the United Nations.The proposed design features theUN logo together with a dove andthe inscriptions ‘Nations United forPeace’ and ‘1945-1995’.New Coinage (UN50 Commemor-ative One Pound) Order 1997 (SIno 442 of 1997) and Coinage(Dimension and Design) Regula-tions 1997 (SI no 447 of 1997)

Prompt payments interest rate setThe rate of interest payable underthe Prompt Payment of Accounts

ADMINISTRATIVE Act, 1997 has been set at0.0322% a day, which is equiva-lent to 11.75% a year. This figurewill be reviewed on a six-month-ly basis and may be amended asdeemed appropriate.Prompt Payment of Accounts Act,1997 (Rate of Interest Penalty)Order 1997 (SI no 502 of 1997)

Further changes to daylight saving timeAn order has been made with aview to implementing EUDirective 97/44/EC (of 22 July1997) concerning daylight sav-ing time in EU Member States,the effect of which is to vary theperiods of winter time, and con-sequently summer time, provid-ed for in s1(1)(c) of the StandardTime (Amendment) Act, 1971.The effects of the order will be:● That summer time will begin

one week later in 1998, 1999,2000 and 2001

● That summer time will end oneweek later in 1999, and

● That that time of the changefrom winter time to summertime and vice versa will be at1.00am (GMT) rather than2.00am.

The order will not come intooperation until it has beenapproved by a resolution of eachof the Houses of the Oireachtas.For the previous order, coveringthe years 1995-1997, see (1995)13 ILT 66.Winter Time Order 1997 (SI no484 of 1997)

Update of law relating toplant breedersThe current law relating to therights of plant breeders is set outin the Plant Varieties(Proprietary Rights) Act, 1980,based on the principles set out inthe international Convention forthe protection of new varieties ofplants (the UPOV convention)adopted in 1961.

Under this convention, breed-ers are entitled to obtain royal-ties for reproduction of theirplant material and protectionagainst infringement. TheUPOV convention was substan-tially revised in 1991 and legis-lation has been proposed whichwould, if passed, enable theState to ratify the 1991 UPOVconvention by:● Giving breeders greater con-

trol over their protected vari-eties of plants to take accountof developments in plantbreeding technology

● Extending the scope of protec-tion to propagating materialand harvested material

● Extending protection to theentire plant kingdom, and

● Allow the marketing of vari-eties for up to 12 monthsbefore an application forplant breeder’s rights is sub-mitted.

Plant Varieties (ProprietaryRights) (Amendment) Bill, 1997

AGRICULTURE

EMU changes at CentralBankA Bill has been introduced whichwill, if passed:● Bring the legislation governing

the Central Bank of Irelandinto conformity with certainprovisions of the treaty estab-lishing the EuropeanCommunity, the TEU, andother international agreementsand protocols

● Provide for the institutionalintegration of the Central Bankinto the European System ofCentral Banks and theEuropean Central Bank.

Central Bank Bill, 1997

Co-operation with warcrimes tribunalsA Bill has been presented whichwill, if passed, enable the State tofulfil its obligations to co-operatewith:● The war crimes tribunal estab-

lished by resolution 827 (1993)of the United Nations SecurityCouncil relating to the formerYugoslavia

● The war crimes tribunal estab-lished by resolution 955 (1994)of the Security Council relatingto Rwanda, and

● Any other tribunal or court

CRIMINAL

BANKING


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which might be established bythe UN with a similar remit.

International War CrimesTribunals Bill, 1997

DecommissioningCommission establishedThe Independent InternationalCommission on Decommission-ing was formally established bythe Government and the govern-ment of the UK on 24 September1997.

A series of SIs has been madeproviding for:● The Commission itself in

accordance with s4 of theDecommissioning Act, 1997

● The commencement of ss1, 2,3(2-7), 4 and 7-9 of theDecommissioning Act, 1997 on24 September 1997, and

● Inviolability, exemptions,facilities, immunities, privi-leges and rights in relation tothe Commission.

Decommissioning Act, 1997(Commencement) Order 1997,Decommissioning Act, 1997(Section 3) (Commencement)Order 1997; DecommissioningAct, 1997 (Independent Inter-national Commission onDecommissioning) (Privileges andImmunities) Order 1997; Decom-missioning Act, 1997 (Indep-endent International Commissionon Decommissioning) Regulations1997 (SI nos 397-400 of 1997)

Seanad representationfor all third level institutions?At present, representation of uni-versities in the Seanad is confinedto the University of Dublin andthe National University ofIreland. A private member’s Billhas been introduced which would,if passed:● Group all institutions of high-

er education together as a con-stituency for the election ofsix members of Seanad Éire-ann

ELECTORS

● Define institutes of highereducation as including allexisting universities, RTCs,DIT and recognised privatecolleges, with provision forthe addition of other institu-tions which might be givendegree-awarding status, and

● Provide for the proposed fran-chise to be extended to everystudent, employee and gradu-ate of such institutions.

Seanad Electoral (HigherEducation) Bill, 1997

Changes proposed toSunday workingA private member’s Bill has beenpresented which aims to increaseprotection for shop workers bymaking Sunday work optional asopposed to obligatory. If passed,the Bill will:● Apply to shop businesses

only● Provide that an employee can-

not be obliged to work on aSunday without his or herconsent

● Prevent discrimination againstemployees who refuse towork on Sunday

● Provide that at least time anda half shall be paid to employ-ees who work on Sundays

● Ensure that the employergives a minimum of fourdays’ notice of the option towork before any one Sunday

● Provide that the employeemust give at least three days’notice of his or her non-avail-ability on the followingSunday, in default of whichthe employer may assume thatthe employee consents towork on the Sunday, and

● Provide for application to aRights Commissioner by anaggrieved employee whomay, if successful, be award-ed a maximum of ten weeks’wages.

Protection of Workers (Shops)Bill, 1997

EMPLOYMENT

Employees must choosebetween remedies● Such declarations which the

applicant might have been enti-tled to were in aid of his com-mon law remedy for damagesand had no independent exis-tence apart from it.

The applicant was employed bythe respondent. In 1989, the appli-cant was informed that certainallegations were been madeagainst him. He denied the allega-tions and a hearing was conductedbefore a disciplinary committee,at the conclusion of which theapplicant was dismissed from hisjob. The applicant availed of aninternal appeals procedure andappealed against the decision, butit was upheld. One week prior tothe dismissal taking effect, theapplicant informed the respondentof his intention to seek relief pur-suant to the Unfair DismissalsAct, 1977. The applicant issuedproceedings for wrongful dis-missal and the respondent con-tended that the proceedings con-travened the 1977 Act as that Actstated that employees had tochoose between the 1977 Act orcommon law and that the appli-cant had already chosen. Thecourt dismissed the applicant’sappeal.Parsons v Iarnród Eireann/IrishRail (Supreme Court), 24 April1997

Remedies for non-compli-ance with transfer ofundertakings rulesThe transfer of undertakings rulescontained in the Protection ofEmployment Act, 1977 and theEuropean Communities (Safe-guarding of Employees’ Rights onTransfer of Undertakings)Regulations 1980 fail to provideadequate remedies for non-com-pliance. In view of the judgmentsof the Court of Justice of theEuropean Communities in CaseC-382/92 Commission v UK, 8June 1984 (transfer of undertak-ings) and Case C-383/92Commission v UK, 8 June 1984(collective redundancies), thisdefect is likely to be held to be

contrary to EC law. A Bill hasbeen introduced which will pro-vide, inter alia, if passed:● A mechanism for reference of

disputes in this area to a rightscommissioner with a right ofappeal to the EmploymentAppeals Tribunal

● For an appeal or a reference ona point of law to the HighCourt, and

● For a full range of compensato-ry remedies including re-instatement, re-engagement orup to two years’ pay.

Employment Rights ProtectionBill, 1997

GRA amenable to judicialreview● The decisions of the Garda

Representative Association arewithin the public domain andits activities are within thereach of judicial review.

The GRA was established underthe Garda Síochána Acts, 1923-1977 and 1978 regulations to rep-resent members of the GardaSíochána in matters affectingtheir welfare and efficiency. Astanding committee had power toregulate the membership of theGRA. A serious dispute arosewhen some members of the GRAtook issue with its representationof its members and, in judicialreview proceedings in 1994,Morris J dismissed a case broughtagainst the GRA by several appli-cants, including those bringingthe present action.Bane v Garda RepresentativeAssociation (Kelly J), 27 June1997

New rules for medicalservices on shipsRegulations have been made, giv-ing effect to Directive 92/29/EEC(of 31 March 1992), concerning

HEALTH & SAFETY

GARDA SÍOCHÁNA


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the minimum health and safetyrequirements for improved med-ical treatments on board sea-going vessels. The regulations:● Make it obligatory to provide

certain medical facilities onboard sea-going vessels, and

● Provide for the establishmentof a radio medical consultationservice to seafarers.

European Communities(Minimum Safety and HealthRequirements for ImprovedMedical Treatment on BoardVessels) Regulations 1997 (SI no506 of 1997)

Sovereign immunityrecognised for foreignstate● The trial judge was correct in

his decision that the defendantswere entitled to rely on sover-eign immunity and to have theservice of the proceedingsissued against them set aside.

In May 1993, the High Courtmade an order pursuant to Rulesof the superior courts 1986, o11,r1(f) on the ex parte applicationof the plaintiff allowing him toserve proceedings on the defen-dants out of the jurisdiction. InNovember 1994, that order wasset aside pursuant to o12, r26.The plaintiff appealed to theSupreme Court against that deci-sion. In the High Court, thedefendants were found to havesovereign immunity from suit inIreland. The plaintiff hadclaimed damages against thedefendants for an alleged breachof his constitutional rights. Hecontended that the defendantshad conspired against him inorder to procure his arrest in theUnited Kingdom and so facilitatehis extradition to Germany toface drugs charges. He was con-victed in Germany, and sen-tenced to five years’ imprison-ment. He then issued proceed-ings claiming damages againstthe defendants on foot of their

INTERNATIONAL LAW

alleged conspiracy to entice himto the United Kingdom in orderto facilitate his arrest and extra-dition to Germany. The defen-dants claimed sovereign immuni-ty from suit.Schmidt v the Home Secretary ofthe United Kingdom of GreatBritain and Northern Ireland andOrs (Supreme Court), 24 April1997

Interest and final repay-ment of governmentbonds to be separableWith effect from 1 January 1998,the Minister for Finance is beempowered to designate existingand future Irish governmentbonds as ‘strippable’. This terminvolves allowing the separateholding of the right to receiveeach of the interest payments on abond and the right to receive thefinal principal repayment of abond. It will be possible to pur-chase and sell these rights sepa-rately and the stripping of bondsis to be carried out at the discre-tion of the holder. The legislativebasis for this change is to befound in s5 of the NationalTreasury Management AgencyAct, 1990 and s54 of the FinanceAct, 1970.National Treasury ManagementAgency (Delegation of Functions)Order 1997 (SI no 456 of 1997)

Local authority must perform its licensingduties fairly● The fact that salmon traders

have to be licensed to engagein such a commercial activityis a potential interference withand restriction of their basicright to carry on lawful busi-ness

● Accordingly, when exercisingits function to grant or refusean application for a licence, therelevant Fisheries Board has to

LOCAL AUTHORITIES

INVESTMENT

perform its duty fairly and rea-sonably.

The Fisheries (Consolidation)Act, 1959 provides that it is nec-essary to obtain a licence fromthe respondent before one canengage in salmon dealing. TheAct also provides that a certifi-cate of fitness to hold such alicence has to be obtained fromthe District Court judge assignedto the area where the applicantcarries on or proposes to carry onbusiness. Section 159 of the Actstates that where such a certifi-cate has been obtained, the appli-cant should, within 28 days,apply to the respondent sendingthe certificate and applicationfee. The applicant was grantedsuch a certificate and dulyapplied to the respondent for alicence. The respondent consid-ered the application and, havingregard to the fact that there werealready several licensed dealersin the applicant’s area, rejectedthe application. The applicantwrote to the respondent seekingmore information and the respon-dent eventually replied that theapplicant’s certificate of fitnessdid not automatically entitle himto a licence and that the respon-dent had been entitled to take intoaccount all relevant matters. Theapplicant sought an order of cer-tiorari in respect of the respon-dent’s refusal, an order of man-damus directing the respondent toconsider the said application anda declaration that the respon-dent’s decision was void. Therespondent claimed that when alicence was granted, the dealerwas obliged to keep a registerwhich included details of all pur-chases and sales of salmon andtrout. This register was then reg-ularly checked by an official ofthe respondent. The respondentclaimed that this placed a burdenon its resources and, for this rea-son, it had a policy of restrictingthe number of licences granted.The court granted the applicantthe relief sought.Tiernan v the North WesternRegional Fisheries Board (BarrJ), 12 May 1997

Measures proposedagainst rogue developersA Bill has been introduced which,if passed, would:● Deny planning permission to an

applicant if the applicant (or aconnected person) has failed tocomplete works which were acondition of the granting of plan-ning permission for a previousdevelopment by them, and

● Allow the Minister for theEnvironment to regulate for theprovision of information byapplicants in relation to previ-ous planning applications andwhether or not they were com-pleted in accordance with theconditions attached to them.

Local Government (Planning andDevelopment) (No 2) Bill, 1997

District Court clerksOn 31 October 1997, McCracken Jhanded down a decision to theeffect that the Minister for Justice,Equality and Law Reform couldnot validly delegate to his or herofficials the statutory power toappoint District Court clerks andthat a particular appointment pur-portedly so made was invalid. Itfollowed from this that an applica-tion made to the clerk in questionfor the issue of a summons, and theissue of a summons by her, werealso invalid and that no prosecu-tion for a criminal offence couldproceed on foot of such an invalidsummons. A Bill has been intro-duced which aims to provide:● That acts done by officials in

connection with the appointmentof District Court clerks shall bedeemed to have been done per-sonally by the Minister, and

● For the issue of fresh summons-es in the case of any doubt.

Court Officers (Amendment) Bill,1997

PRACTICE & PROCEDURE

PLANNING & DEVELOPMENT


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Time limits mandatory inservice of third partynotices● The obligation to serve a third

party notice as soon as reason-ably possible was mandatory innature, and a failure to complywith this temporal obligationcould lead to the application forliberty to issue and serve thethird party notice being refusedor, if granted, being set aside onthe application of the newly-joined party.

Section 27(1)(b) of the CivilLiability Act, 1961 provides that aconcurrent wrongdoer who is suedfor damages or for contribution andwishes to make a claim for contribu-tion shall serve a third party noticeupon such person as soon as is rea-sonably possible. Order 16 of theRules of the superior courts 1986provides that application for leave toissue the third party notice shall bemade within 28 days from the timelimited for delivering the defence or,where the application is made by thedefendant to a counterclaim, thereply. Under o16, r8(3), third partyproceedings may at any time be setaside by the court, and it was thisjurisdiction which was invoked inthis application by the third andfourth third parties. Third partynotices were served on them on 26April 1996. The action between theplaintiff and the defendant was com-menced by the issue of a plenarysummons on 10 February 1994.Following correspondence betweenthe parties, a notice of motion dated8 February 1996 was issued seekingthe joinder of the third parties. TheHigh Court had made orders joiningthe third and fourth third parties.The Supreme Court set aside thethird party notices.SFL Engineering Ltd v SmythCladding Systems Ltd (Kelly J), 9May 1997

New rules for issue of civilbillsA set of rules has been made provid-ing for the issuing and service ofcivil bills in the Circuit Court. Therules, which replace the previousprocedures, and contain the form ofthe endorsement and declaration of

service to be used, came into opera-tion on 22 December 1997.Rules of the Circuit Court (No 3)1997 (SI no 500 of 1997)

No liberty to enter finaljudgement where a state-able defence● The power to allow a plaintiff to

enter final judgment was intend-ed to be exercised only in thosecases in which there was clearlyno defence

● A defendant should be allowedunconditionally to defend anaction where he stated what hisdefence was and gave reasons forthinking that it was substantialand would be sustained in evi-dence.

In 1996, the plaintiff became awarethat a company had been ‘kiting’cheques, whereby that companywas taking advantage of the four-day clearing period for chequesand the fact that they were allowedto draw cheques against unclearedeffects. As holders for value, theplaintiff decided to sue the defen-dant as drawers of nine chequestotalling £183,559 plus interest.The plaintiff sued the defendant byway of summary summons, andthen sought liberty to enter finaljudgment. The defendant sought todefend the plaintiff’s claim on anumber of grounds, namely thatthere was no consideration givenby the plaintiff for the nine chequesand that the plaintiff was not, as aresult, a holder for value and thatthe fraud perpetrated by the com-pany on the defendant tainted theentire transaction insofar as thecompany engaged in transactionswith the plaintiff and defeated theplaintiff’s claim. The defendantwas allowed liberty to defend theplaintiff’s claim and the matter wasremitted to plenary hearing.Bank of Ireland v EBS BuildingSociety (Morris J), 19 April 1997

Master requires evidenceof date of serviceThe party obtaining an order fromthe Master of the High Court mustbe in a position to provide evidenceestablishing not only that service ofan order made allowing for enforce-

ment of foreign judgment had beeneffected, but that it had been effect-ed as of a particular date.Barnaby (London) Limited v Mul-len (Supreme Court), 25 April 1997

Limit to number of provisional licences whichmay be obtained● Where a person who holds a sec-

ond or subsequent provisionaldriving licence does not under-take a driving test, that personwill only be allowed to apply fora further provisional licencewhere that application is accom-panied by evidence that he orshe has made an appointment fora driving test

● Any provisional licence soissued will be valid only for aperiod of one year, as opposed tothe usual two.

Road Traffic (Licensing of Drivers)(Amendment) Regulations 1997 (SIno 511 of 1997)

New motor vehicleapproval regulationsEC directives relating to the typeapproval of motor vehicles havebeen implemented in Irish law bythe European Communities (MotorVehicles Type Approval)Regulations 1978 and its variousamending regulations. New amend-ing regulations have been made,giving effect to 11 new Council andCommission directives.European Communities (MotorVehicles Type Approval) (No 2)Regulations 1997 (SI no 476 of1997)

Custom House Docks AreaexpandedThe Custom House Docks Areahas been expanded for the purpos-es of incentive tax reliefs for urbanrenewal provided for that area andalso for the purpose of the tax reliefprovided for certain trading opera-

TAXATION

ROAD TRAFFIC

tions carried on in the CustomHouse Docks Area by the additionof an area bounded by CommonsStreet, the River Liffey, GuildStreet and Mayor Street Lower. Thespecified period for the purposes ofs322 of the Taxes ConsolidationAct, 1997 begins on 10 May 1997and ends on 24 January 1999.Taxes Consolidation Act, 1997(Designation of Urban RenewalAreas and Tax Relief on Incomefrom Certain Trading Operations)Order 1997 (SI no 483 of 1997)

New research fund The Government has presented aBill in the Seanad which, if passedwould:● Provide for the establishment of

a fund to be known as theScientific and TechnologicalEducation (Investment) Fund

● Provide for the payment into thefund of £250,000 by the Stateover the three years from 1998-2000, and

● Allow for the application of themonies in the fund towards capi-tal expenditure (including expen-diture on equipment) on a rangeof areas in technological, scien-tific, and vocational educationand research.

Scientific and TechnologicalEducation (Investment) Fund Bill,1997

Further harmonisation ofEC telecommunicationsFrom 31 October 1997, and pur-suant to Directive 95/62/EC (of 13December 1995), provision hasbeen made for:● The harmonisation of open and

efficient access to and use offixed public telecommunicationsnetworks and public telephonyservices in the EU, and

● Community-wide availability ofa harmonised voice-telephonyservice.

TELECOMMUNICATIONS

TECHNOLOGY

Friday 15 May 19985 pm onwards Registration of SYS delegates.7.15 pm (sharp) Coach departs Hotel Dunloe Castle to

The Laurels, Main Street Killarney – seeNote 5

8 pm to 9 pm Dinner and entertainment at The Laurels –see Note 5

10.30 pm until late Céilí at Hotel Dunloe Castle

Saturday 16 May10 am to 10.15 am Opening of lecture session –

Hotel Dunloe Castle10.15 am - 11 am “The Euro – the legal framework”

Brian Sheridan, Solicitor, Group LawAgent, AIB Bank plc (with short summaryof UK perspective)

11 am - 11.45 am Post-traumatic stress disorder – underscrutiny Tony McGlennon, BLQueens University, Belfast

11.45 am - 12.05 pm Coffee break12.05 pm - 12.50 pm International arbitration in 1998

Brian Hutchinson, BLACIArb – Associate Dean, Faculty of Law,University College, Dublin

12.50 pm to 2 pm Lunch2 pm - 6. 00 pm Activities, including Leisure Centre with

swimming pool, steam room, sauna andgymnasium, horse riding, fishing, golf, his-torical gardens and Team Challenge

3.30 pm Indoor Tennis/Tennis Competition Tours to local places of interest

7.30 pm to 8.30 pm Reception – The Blue Lounge,Hotel Dunloe Castle

8.30 until late Banquet, followed by band and disco(Black Tie)

Sunday 17 May Up to 11 am Breakfast – Hotel Dunloe Castle1 pm Checkout of hotel

NOTES:1. This conference is being hosted by the SYS in conjunction with the

Northern Ireland Young Solicitors’ Association and also welcomes del-egates from young solicitors’ groups from Scotland, England, Wales andLondon).The SYS is a member of the European Young Bar Association (EYBA)and is pleased to host the EYBA Annual General Meeting in conjunctionwith this conference.

2 As we expect approximately 100 delegates from overseas to attend,accommodation at the conference hotel will be limited. Certain alterna-tive accommodation options are detailed below. Early booking is essen-tial and accommodation will be allotted strictly on a first come, firstserved basis. Individual applications only are acceptable (ie one applica-tion per envelope). All applications must be made by ordinary prepaidpost and only postal applications exhibiting a postal mark dated 16March 1998 or after will be processed.

3. Conference fee includes Friday and Saturday night accommodation, twobreakfasts, céilí, subsidised activities, Saturday evening banquet andconference materials.

4. AccommodationThe options are as follows:(i) Accommodation in Hotel Dunloe Castle or Hotel Europe (Option

A) £165 per person (No single rooms available)(ii) Guest House accommodation on Friday 15 May and transfer to

Hotel Europe on Saturday (Option B) £130 per person (Single sup-plement £40)

(iii) Guest House accommodation for Friday and Saturday night(Option C) £95 (Single supplement £20)Once all available accommodation under Option A is filled all sub-sequent applications shall be deemed to be for Option B until thataccommodation space is exhausted. All remaining applicationswill be deemed to be for Option C until accommodation spacethere is exhausted

5. Dinner and entertainment has been organised for Friday evening at TheLaurels, Main Street, Killarney, at a cost of £20 per person. This is notincluded in the registration fee. If you wish to be included, please tickthe relevant option on the registration form below. Spaces are limited.

6 No booking will be accepted without payment of the conference fee plusextra charges where relevant. Cheques made payable to the Society ofYoung Solicitors.

7. A shuttle bus will connect Hotel Dunloe Castle with Hotel Europe andGuest Houses over the weekend.

8. All cancellations must be notified to Julian Yarr by Friday 1 May 1998and no refunds will be given after that date.

THE SOCIETY OF YOUNG SOLICITORS IRELANDand Northern Ireland Young Solicitors’ Association

International Conference 199815-17 MAY 1998 AT HOTEL DUNLOE CASTLE, KILLARNEY, CO KERRY

PLEASE USE BLOCK LETTERS INDIVIDUAL POSTAL APPLICATIONS ONLY – NO BLOCK BOOKINGS

REGISTRATION FORM (photocopies accepted)

Name: Firm:

Business address Office tel no:

ACCOMMODATION (Please tick box)Option A – Hotel Dunloe Castle or Hotel Europe Double £165 Twin £165 Sharing with:Option B – B&B Friday, Hotel Europe Saturday Double £130 Twin £130 Single £170 Sharing with:Option C – B&B Friday and Saturday Double £95 Twin £95 Single £115 Sharing with:

I/We wish to avail of the following options/activities:Please tick boxFood at The Laurels (£20 extra) Participation in the EYBA Tennis Open Tour on Saturday afternoon Vegetarian option at the Banquet

I enclose cheque/postal order payable to the Society of Young Solicitors for £ in payment of the conference fee (plus extras)

Please send this registration form with the conference fee to: Sinead Behan, SYS Conference, Martin A Harvey & Co, Parliament House, 9 George’s Quay,Cork. Postal applications exhibiting a postal mark of on or after 16 March 1998 only will be accepted. All enquiries regarding the conference should bedirected to Julian Yarr at 6613311 between 6 pm and 7 pm on any weekday


PEOPLE AND PLACESPEOPLE AND PLACES

This year the Law Society cele-brates 20 years in its head-

quarters in Blackhall Place. Inorder to mark the anniversary, aGala Ball will be held in the build-ing and grounds on Friday 17 July.

This unique event will beattended by members of the pro-fession, including those who wereinvolved in acquiring the building,solicitors who have qualified inthe intervening years and thosewho are now graduating from itshallowed halls. This event willalso offer members an opportunityto entertain their colleagues, busi-ness associates and friends.

For further details, phoneElizabeth O’Brien, MemberServices Executive, on (01) 6710711.

Gala Ball to celebrate

20 years inBlackhall

Laurence K Shields and this year’s officers pictured with some of the Law Society’s past presidents at a dinner to honour last year’s incumbent, Frank Daly

President Laurence K Shields and Director General Ken Murphy pictured with members of the Donegal Solicitors’Association during their recent visit to the north west

Stuart Gilhooly of the Younger Members’ Committee(YMC) presents a cheque to Thomas Menton,

Chairman of the Solicitors’ Benevolent Association,watched by President Laurence K Shields and Monika

Leech of the YMCLaurence K Shields and Director General Ken Murphy pictured with members of the Sligo

Solicitors’ Association during a recent visit there


PEOPLE AND PLACESPEOPLE AND PLACES

This year the Law Society cel-ebrates 20 years in its head-

quarters in Blackhall Place. TheSociety is organising a photoexhibition to commemorate theanniversary. This exhibition willbe officially opened at theSociety’s Twentieth AnniversaryGala Dinner on 17 July and rununtil the end of December.

The organising committeewould like to hear from memberswho were involved in events atBlackhall Place since 1978 with aview to displaying photographs ormemorabilia that will present apicture of activities over this 20year period.

Please phone ElizabethO’Brien, Member ServicesExecutive, on (01) 671 0711 ifyou have any ideas or suggestionson what you would like to seeexhibited.

Law Societyrequests photosor memorabilia

Director General Ken Murphy, Law Society President Laurence KShields and Bar Council Chairman

John MacMenamin (front row)with the Bar Council/Law SocietyLiaison Committee which met in

Blackhall Place last month

The senior officers and directors general of the four home law societies at Blackhall Place (back row, left to right):Ken Murphy, Director General; Philip Dry, Senior Vice President, Scotland; Mary Keane, Deputy Director General; Pat

O’Connor, Senior Vice President; John Bailie, Secretary, Northern Ireland; Douglas Mill, Secretary, Scotland; (front row,left to right): Catherine Dixon, Vice President, Northern Ireland; John Elliot, President, Scotland; Laurence K Shields,

President; Antoinette Curran, President, Northern Ireland; Jane Betts, Secretary General, England and Wales

Credit card friendly: Maureen Prouse, in charge of selling Law Society publications, accepting the President’s Law Society credit card at the

launch of the Society’s new electronic credit card facility for paying formember services

Pictured at a dinner for outgoing president Frank Daly were (from left):Frank Daly, President Laurence K Shields and outgoing Junior Vice President

Elma Lynch


BOOKSBOOKS

Judge Bodkin’s book, long outof print, is a classic of Irish

legal literature. It is an account often trials in the NineteenthCentury, five of which were of apolitical nature in the latter part ofthe century, reflecting Bodkin’sown background in nationalistjournalism and IrishParliamentary Party politics.

The other trials dealt withinclude cases on breach of promise(1817), alleged undue influence ona testator (1872), two dramaticmurders (on Ireland’s Eye in 1852and in Newtownstewart, CountyTyrone, in 1871) and the famousYelverton case in 1861.

Serjeant Sullivan’s first wordsto Major Yelverton, who wasdenying that he had validly mar-ried Theresa Longworth, are per-haps the most famous opening toa cross-examination in the annalsof the Irish Bar:

‘Major Yelverton, did you everlove Theresa Longworth?’‘I did’.‘Did you ever love her purelyand honourably?’

(After a considerable pause)‘Not entirely, sir’.‘I will repeat my question. Didyou ever love TheresaLongworth purely and hon-ourably’.‘No’.

The book contains long passagesof cross-examination, including,in the chapter on the ParnellCommission in 1887, extractsfrom Charles Russell’s slowgrilling of Richard Pigott, includ-ing a long discussion of how onewould (hypothetically) set out toforge a letter.

The other cases arising out ofpolitics were the trial of Allen,Larkin and O’Brien, inManchester in 1867 for murder inthe course of helping a Fenianprisoner to escape (the‘Manchester Martyrs’), thefamous petition on the Galwayelection in 1872 leading to the trialof a bishop and priests for interfer-ence at the polls, a charge againstMichael Davitt in the MagistratesCourt in Sligo, when Davitt ably

represented himself, and the trialof the leaders of the Land Leaguein 1881. In that case, the prosecu-tion abandoned various chargeswhen defence counsel, FrancisMcDonagh QC, indicated thatevidence going back to the GreatFamine and its aftermath wouldbe called, to put in context theevents of 1879 and 1880.

Bodkin emphasises the extra-ordinary skill of the Bar as exem-plified in these dramatic cases.Many of them pitted RichardArmstrong QC against FrancisMcDonagh. Bodkin remarks thatthese two men were for a longtime the acknowledged leaders ofthe Irish Bar but that they neverattained judicial promotion,‘owing to some trouble at theSligo constituency which theycontested’.

This was a slight economywith the truth. They had contest-ed the election there against eachother three times, and after theelection in 1868 a commission ofinquiry reported that they hadboth been guilty of corrupt prac-

tices, and the town was disfran-chised. Their obituaries, publishedin the Irish Law Times andSolicitors’ Journal in 1881 and1882, paid tribute to their remark-able qualities, while also comment-ing on some issues of character,including, in McDonagh’s case, thetwo reported cases in which he wassued for the return of special feesor retainers paid for cases to whichhe had not actually attended.

A final observation on the con-duct of these stirring cases inVictorian times is the freedomwith which newspapers, thecrowds which attended in court,and even members of the jurycommented on cases in thecourse of trial. Bodkin remarksthat there was a freedom ofexpression by uninvolved partiesthat, at the time he was writing(1918), would not be tolerated orexpected. Our courts and news-papers today seem remarkablysedate in comparison.

Daire Hogan is a solicitor withMcCann FitzGerald.

G

Book reviewsFamous Irish trials

M McDonnell Bodkin KCAshfield Press (1997), 26 Eustace Street, Dublin 2. ISBN: 1-901658-03-1. Price £19.95 (h/b), £12.95 (p/b)

Oscar Wilde in The critic asartist wrote that ‘education

is an admirable thing, but it iswell to remember from time totime that nothing that is worthknowing can be taught’. OscarWilde’s witticism is one of theepigraphs quoted by the author,Dr Michael Farry, barrister, at thestart of each chapter. This is oneof the attractive features of thebook and, as Mr Justice PeterKelly of the High Court states inhis foreword, this is a truly schol-arly production, but is ‘transmit-ted lightly and in a most readable

and digestible form’.This is Dr Farry’s second book

following his major workEducation and the Constitution.Mr Justice Kelly refers to interest-ing insights in the book into therelationship between Church andState in the vocational sector. Healso recommends interviewers toread that part of the book dealingwith discovery and the author’scomments on the burden of prov-ing discrimination.

The author states that the scopeof the book is confined to explor-ing some of the effects of legisla-

tion and judicial decisions onvocational teachers’ employment.It is not possible in a short notelike this to do justice to any book.Suffice it for your reviewer torefer to the titles of some of thechapters of the book. After an his-torical introduction, the authorconsiders the issue of vocationaleducation committees, boards ofmanagement, the recruitment ofvocational teachers, qualifica-tions, disqualifications from hold-ing office, suspension of teachers,removal on statutory groundsafter local enquiry, removal by a

vocational education committeeand issues relating to rules of pro-cedures including, and with par-ticular reference to, the rules ofnatural justice.

Dr Farry’s book has severalvirtues. It is concise. Its secondvirtue is its clarity. The author hassucceeded superbly in what hehas set out to do, which is to pro-duce a comprehensive, readableand reliable book on vocationalteachers and the law.

Dr Eamonn Hall is Chief LegalOfficer with Telecom Éireann plc.

G

Vocational teachers and the lawMichael Farry

Blackhall Publishing (1998), 26 Eustace Street, Dublin 2. ISBN: 1-901657-03-5. Price: £19.95 (p/b), £29.95 (h/b)


BOOKSBOOKS

country solicitor if that were not‘to damn with faint praise’ whatMr Justice Geoghegan in his fore-word describes as an ‘erudite,lucid, and in every way quiteexcellent exposition of thisbranch of the law’. This is aremarkable and well-deservedtribute to the author, a busy bar-rister on the Midland Circuit.

The book contains some of themost varied and interestingresearch in any Irish legal text-book and the Mr Bland not onlyknows the law, he also sees how ithas shaped the landscape: ‘Dublinwill never look like Manhattanunless Ireland follows theAmerican jurisdictions by aban-doning the right to light’.

In England, an easement orprofit claimed by prescriptionmust be enjoyed by a fee simpleowner as against a fee simple

owner. Under Irish law, an ease-ment or profit can be acquired bystatutory prescription or by thedoctrine of lost modern grant byone tenant as against another evenif each of them holds under theone landlord (Hanna v Pollock(1900) 2 IR 664).

Peter Bland refers to this caseas the start of a distinctive Irishjurisprudence in this confusedarea of the law but does not sug-gest that the Irish law of ease-ments is so different, generallyspeaking, from English law that anIrish textbook is as necessary forthose interested in the law of ease-ments in this country as, say, Irishland law is for those studying realproperty.

However, this book does notneed this to be saleable. It maylack Gale’s authority but, with alldue respect to that great institution,

this work is, on the whole, just asuseful and much more readable.This is largely due to Bland’s eyefor a picturesque tale or incident.When, for example, the only rele-vant fact about the second Earl ofPortarlington is a certain sale tohim, the author passes quickly fromthis to mention the more amusingfact that the Earl was famous forhaving missed the Battle ofWaterloo due to a hangover!

In his foreword, Mr JusticeGeoghegan suggests that a gap inthe library of Irish law books hasnow been filled. Certainly I wouldhave no difficulty in acknowledg-ing that, with its publication, thelast major gap in the library on landlaw has been filled.

JMG Sweeney is former Professorof Common Law at UniversityCollege Galway.

G

For those to whom Gale –restricted as it is to the classi-

cal easements – is familiar, thisnew book has almost the aspect ofa legal encyclopaedia. There is achapter on turbary, estovers (theright to take wood) and rights tothe soil and another on fishingand other sporting rights. Thereare sections on parking, publicrights of way, rights of pasture,animals straying on to the high-way, agistment and conacre andpossibly other topics which myGale (largely, of course, becauseit deals only with easements) payslittle or no attention. There iseven a section on the right toeavesdrop, which is nothing moreprurient that the right to dischargerainwater from a house by a spoutor drip onto the lands of another!

I am tempted to suggest thatthis is a very useful book for a

The law of easements and profits a prendrePeter Bland

Round Hall Sweet & Maxwell, Upper Ormomd Quay, Dublin 7. ISBN: 1-899738-64-9. Price: £78

Brennans Law Searchers Ltd.103/105 Richmond Road

Dublin 3

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PROFESSIONAL INFORMATIONPROFESSIONAL INFORMATION

James Hyland & Company

FORENSIC ACCOUNTANTS

26/28 South Terrace, Cork

Phone (021) 319 200Fax: (021) 319 300

Dublin Office:Carmichael House

60 Lower Baggot StreetDublin 2

Phone: (01) 475 4640 Fax: (01) 475 4643

E-mail jhyland @ indigo.ie

STRESS MANAGEMENTAromatherapy & ReflexologyHelena Tubridy, R.G.N.,R.M.

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DUBLINSuccessful Sole Practice

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Reply Box No. M02

NORTH DONEGALSubstantial

Civil and Criminal Litigation Practice,

also Probate and Conveyancing.

Partner Retiring. Partnership (50%) for sale.

Alsooption to purchase entirepractice or outright salewould be considered.

Reply Box No. M011

Registration of Title Act, 1964

An application has been received from theregistered owners mentioned in the sched-ule hereto for the issue of a land certificateas stated to have been lost or inadvertentlydestroyed. A new certificate will be issuedunless notification is received in theRegistry within 28 days from the date ofpublication of this notice that the originalcertificate is in existence and in the custodyof some person other than the registeredowner. Any such notification should statethe grounds on which the certificate isbeing held.(Register of Titles), Central Office, LandRegistry, Chancery Street, Dublin

(Published 6 March 1998)

Regd owner: John McNamara, Folio:2638L; Land: Moorfield, Barony ofConnell; Co Kildare

Regd owner: John W McCann; Folio:5078; Lands: Ballincurry; Area: 25a 0r12p; Co Dublin

Regd owner: Louth County Council; Folio:9818; Lands: Haggardstown; Area: 0a1r 8p; Co Dublin

Regd owner: Dermot Cronin and MaryCronin; Folio: 2813L; Lands: Townlandof Carrigrohane and Barony of Cork; CoCork

Regd owner: John O’Brien (one undividedthird share); Folio: 56943; Lands:Coolroe in the Barony of Muskerry East,Co Cork; Co Cork

Regd owner: Margaret McManus; Folio:2986F; Lands: Uragh; Area: 0.250; CoCavan

Regd owner: Thomas and AntoinetteLawlor; Folio: 3719F; Lands: Keeloge;Area: 0.130 acres; Co Queens

Regd owner: Reginald Stocker of 3 BeltonAvenue, Donnycarney, Co Dublin;Folio: 1679L; Lands: 3 Belton Avenuesituate on the north side of the saidavenue in the parish of Artaine, districtof Clonturk; Co Dublin

Regd owner: Valerie Horgan and CarmelHorgan; Folio: 232F; Lands:Coolmurraghue; Co Cork

Regd owner: Mary Barry (orse Philomena),Rushaun, Kilnamona, Co Clare; Folio:4467F; Townland: Prop 1 – Rushaun,Barony of Inchiquin, Leckaun, Prop 2 –Barony of Inchiquin; Area: Prop 1 –

LOST LANDCERTIFICATES

ADVERTISING RATES

All advertisements must be paid for prior to publication. Deadline for AprilGazette: 20 March. For further information, contact Catherine Kearney orAndrea MacDermott on 01 671 0711.

• Lost land certificates – £30 plus 21% VAT• Wills – £50 plus 21% VAT• Lost title deeds – £50 plus 21% VAT• Employment miscellaneous – £6 per printed

line plus 21% VAT (approx 4/5 words a line)

Advertising rates in the Professional information section are as follows:

20.813 acres, Prop 2 – 11.200 acres; CoClare

Regd owner: Christopher Leahy; Folio:9545F; Area: 1.456 acres; Townland:Doonamountane, Barony ofClanmaurice; Co Kerry

Regd owner: William Brady; Folio: 2541,Lands: Knockieran Lower, Blessington,Barony of Talbotstown Lower; CoWicklow

Regd owner: Patrick Quinn (deceased);Folio: 7123; Land: Moygrerhan Lower;Area: 22a 2r 34p; Co Westmeath

Regd owner: Charles Doorly,Clooneenbaun, Roscommon, CoRoscommon; Folio 26433; Townland:Clooneenbaun, Barony Athlone North;Area: 103a 0r 26p; Co Roscommon

Regd owner: William Fenlon; Folio:2815F; Land: Coolroe; Co Kilkenny

Regd owner: James Dillon (as tenant incommon of an undivided moiety) Folio:4402F; Land: Moyle; Area: 73a 2r 7p;Co Donegal

Regd owner: Thomas Garry; Folio: 3508;Land: Ballygarrett; Area: Prop 1 –0.606 acres, Prop 2 – 2 0.350 acres; CoKings

Regd owner: the County Council of theCounty of Dublin of the CountySolicitor, 5/6 Parnell Square, Dublin;Folio: 16318; Lands: Townland ofToberburr in the Barony of Nethercross;Co Dublin

Regd owner: Redfield Nurseries Limited;Folio: 30964; Townland: Dromroe,Barony of Clanmaurice; Area: 48.042acres; Co Kerry

Regd owner: William O’Donovan; Folio:4382F; Townland: Killinane, Barony ofCoshlea; Area: 5 perches; Co Limerick

Regd owner: Sean Donnellan and SigridDonnellan of Site 15 ThormanbyWoods, Thormanby Road, Howth, Cityof Dublin; Folio: 53193F; Lands:Townland of Howth in the Barony ofCoolock; Co Dublin

Regd owner: George McNamee; Folio:1356; Lands: Calverstown; Barony ofEast Narragh; Co Kildare

Regd owner: Francis and Doris Healy of 8

Dromard Road, Drimnagh, Dublin 12(17 Brompton Green, Castleknock,County Dublin); Folio: 39373L; Lands:Property situate north of the RoyalCanal in the Parish of Castleknock,Town of Blanchardstown, Townland ofBlanchardstown and Barony ofCastleknock; Co Dublin

Regd owner: Patrick Delahunty andTherese Delahunty of 8 Talbot Park,Malahide, County Dublin; Folio:105373F; Lands: Site No 8 Talbot Parkin the Townland of Yellow Walls andBarony of Coolock; Co Dublin

Regd Owner: James Cogan (deceased);Folio: 19149; Lands: Prop 1 – Teltown,Prop 2 – Fyanstown; Area: Prop 1 – 17a1r 10p, Prop 2 – 11a 2r 30p; Co Meath

Regd owner: Patrick and John Morrison;Station Road, Ballina, Co Mayo; Folio:43977; Townland: Ballina, Barony ofTirawley; Area: 0a 1r 6p; Co Mayo

Regd owner: McMullen Brothers Ltd;Folio: 25572; Co Meath

Regd owner: Thomas Cullen; Folio: 4606;Land: Drumbannon; Co Cavan

O’Braonain, Criostoir, deceased, late of96C Mercer House, Mercer Street, Dublin2. Would any person having knowledge of

WILLS

the whereabouts of the original will/codicilof Criostoir P O’Braonain otherwiseknown as Frank Brennan, who died on 21December 1997, please contact O’RourkeReid & Company, Solicitors, 63 LowerBaggot Street, Dublin 2, tel: 6614440, fax:6614443

O’Donovan, Timothy, deceased, late ofTempleuesque, Whites Cross, Glanmire,Co Cork. Would any person having knowl-edge of a will executed by the abovenamed who died on 29 October 1997,please contact Henry PF Donegan & Son,Solicitors, 74 South Mall, Cork. Ref: MN,tel: 021 277155


PROFESSIONAL INFORMATIONPROFESSIONAL INFORMATION

LOST A WILL?

TRY THEREGISTRY OF WILLS

SERVICE

Tuckey’s House,8, Tuckey Street,

CORK.

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

Dx No: 2534 Cork Wst

English Agents - No Win, No Fee

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● Work Accidents & Chronic Work Related Illness● Employment ● Conveyancing ● Family problems

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ENGLISH AGENTS: Agency work undertaken

for Irish solicitors in both litigation and

non-contentious matters –including legal aid.

Fearon & Co,Solicitors,

Westminster House, 12 The Broadway, Woking,

Surrey GU21 5AU.Tel: 0044 1483 726272Fax: 0044 1483 725807

Sherry, Margaret Una (née McAdam),deceased, late of 47 Woodview Heights,Lucan, Co Dublin. Would any person hav-ing knowledge of a will of the abovenamed deceased who died on 19 June1997 or of title documents to 47Woodview Heights, Lucan, Co Dublin,vested in the names of Margaret Sherry orthe late James Sherry, please contactSherrys, Solicitors, Palmerstown Avenue,Palmerstown, Dublin 20, tel: 6232182,fax: 6232183

Helbig, Fritz Herman, deceased, late ofCamolin, Gorey, Co Wexford. Would anyperson having knowledge of the where-abouts of a will of the above named whodied on 20 December 1997, please contactLombard & Cullen, Solicitors, MarketSquare, Gorey, Co Wexford, tel: 05521324/22167, fax: 055 21380

Cafferkey, Bridget, deceased, late of 405Grange Abbey, Raheny, Dublin 13. Wouldany person having knowledge of thewhereabouts of a will dated 25 September1979 of the above named deceased whodied on 22 December 1985, please contactWalsh O’Donnchadha, Solicitors, 116Main Street, Bray, Co Wicklow, tel:2866400, fax: 2866813

Qualified Irish solicitor, two yrs interna-tional law experience and two yrs manage-ment experience (Paris). I am returning toIreland this year and I am seeking alegal/management position in the greaterDublin area. Reply to Box No 25

Northern Ireland agents for all con-tentious and non-contentious matters.Consultation in Dublin if required. Feesharing envisaged. Offices in Belfast,Newry and Carrickfergus. ContactNorville Connolly, D&E Fisher, Solicitors,8 Trevor Hill, Newry, tel: 0801693 61616,fax: 0801693 67712

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

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

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

Northern Ireland solicitors. Will adviseand undertake NI-related matters. All areascorporate/private. Agency or full referral

MISCELLANEOUS

of cases as preferred. Consultations inDublin or elsewhere if required. Fee sharingenvisaged. Donnelly Neary & Donnelly, 1Downshire Road, Newry, Co Down, tel:0801 693 64611, fax: 0801 693 67000.Contact KJ Neary

Northern Ireland solicitors providing anefficient and comprehensive legal service inall contentious/non-contentious matters.Dublin-based consultations and elsewhere.Fee apportionment. ML White, Solicitors, 43-45 Monaghan Street, Newry, County Down,tel: 08 01693 68144, fax: 08 01693 60966

For sale: ordinary seven day publican’slicence – County Monaghan. Contact BarryHickey & Henderson, Solicitors, Clones, CoMonaghan, tel: 047 51004

German law practice interested in co-operation with Irish solicitor(s) con-cerning consultation in German-Irishor European law related matters.Assistance in any case of litigation.Fischer & Partners, Rechtsanwaelte,tel: 0049 5222 400035, fax: 0049 5222400036

McGrath, Patrick Anthony, deceased, lateof Woodlands, Ratoath, Co Meath. Wouldany person having knowledge of a will exe-cuted by the above named deceased whodied on 8 March 1997, please contactFrances E Barron & Company, Solicitors, 1Frederick House, Main Street, Ashbourne,Co Meath, tel: 8352550/1, fax: 8353451

Burke, Madeleine, deceased, late of 10Breffni Terrace, Sandycove, County Dublinand Our Lady’s Manor, Bullock Harbour,Dalkey, Co Dublin. Would any person hav-ing knowledge of the whereabouts of a willof the above named who died on 21 May1997, please contact O’Driscoll &Company, Solicitors, 54 Upper LeesonStreet, Dublin 4, tel: 6609055, fax: 6681369

Flynn, Margaret Christine, deceased, lateof 4 Millbrook Terrace, Kilmacthomas, CoWaterford. Would any person havingknowledge of the whereabouts of a will ofthe above named deceased who died on 1December 1997, please contact T Kiersey& Company, Solicitors, 17 Catherine Street,Waterford, tel: 051 874366, fax: 051870390

Solicitor with 14 years’ post-qualificationexperience in probate, conveyancing andcivil litigation seeks position as solicitorwith practice in the Athlone/Mullingar orsurrounding regions. Reply to Box No 20

Hugh J Ward & Company, Solicitors, 32Upper Fitzwilliam Street, Dublin 2 requirerecently qualified conveyancing solicitor.Needs to be highly organised and computerliterate. Call Michelle at [email protected]’

Locum solicitor required – South Kerryarea, June 2-5 and August 4-21 inclusive.Accommodation available if required.Phone Maire at 066 72465

Solicitor required for a busy city centrepractice for conveyancing, criminal andcivil litigation and general legal work.Apply with CV to Box No 21

Solicitor required for Dublin city centrepractice with conveyancing and probateexperience. Must be proficient in MicrosoftWindows 6.0. Apply to Box No 22

Conveyancing/registration problems?Reply to Box No 23

County Kildare solicitor required for locumposition April to September. Experience inconveyancing/probate required. Apply to FBTaaffe & Company, Athy, Co Kildare

Apprenticeship required by economicsgraduate with FE-1 successfully completed.Reply to Box No 24

EMPLOYMENTFLORENCE ‘98LAW SOCIETY ANNUAL

CONFERENCE 1998

The conference is now fullybooked, no more applications

can be accepted.