3.75 May 2008 - Law Society of Ireland · 2017-06-02 · 3 CONTENTS LAW SOCIETY GAZETTE MAY 2008...

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INSIDE: DNA DATABASE CONCERNS • MEDIATION VICTORY • FOCUS ON OVERTIME • ANNUAL CONFERENCE REPORT

GOOD SPORTS?How the GAA’s Disputes

Resolution Authority works

GOOD SPORTS?How the GAA’s Disputes

Resolution Authority works

€3.75 May 2008

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LAW SOCIETY GAZETTE MAY 2008 CONTENTS

Editor: Mark McDermott. Deputy editor: Dr Garrett O’Boyle. Designer: Nuala Redmond.Editorial secretaries: Catherine Kearney, Valerie Farrell. For professional notice rates (lost land certificates, wills, title deeds, employment, miscellaneous), see page 67.

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

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Volume 102, number 4Subscriptions: €57

GazetteGazetteL A W S O C I E T YOn the coverRecent on-pitch events mayultimately lead to referrals to theGAA’s sports disputes resolutionbody. But what is the DisputesResolution Authority and howdoes it work?

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President’s message

News

Comment12 Viewpoint: investigation into the death of Brian Rossiter

Analysis14 News feature: annual conference report16 Human rights watch: the right to an expeditious trial16 One to watch: Income Tax (Relevant Contracts)

(Amendment) Regulations 2008

People and places

Student spotlight

Obituary

Book reviewDefamed! Famous Irish Libel Trials

Tech trends

Briefing58 Council report59 Practice note60 Legislation update: 11 March – 15 April 200862 FirstLaw update64 Eurlegal: recent developments in European law

Professional notices

Recruitment advertising

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LAW SOCIETY GAZETTE MAY 2008CONTENTS

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

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

COVER STORY: A game of two halves?The courts are not always the most appropriate forumfor the resolution of sports disputes. Liam Keane fistsone over to the GAA’s Disputes Resolution Authority

20FEATURES

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...lest ye be judged in turnIn the second of two articles on judicial conduct, BrianHunt examines the various proposals for reform thathave been put forward by a range of committees – butwhich have never been implemented – and argues thatthere is a pressing need for immediate action

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Mediation meditationA High Court judge recently urged Pat Kenny and hisneighbours to consider mediation as a means of resolv-ing their property dispute. Caroline Murphy looks at theadvantages that mediation holds for dealing with con-tentious litigation issues

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Oracle of truth?In October 2007, the government brought forward theCriminal Justice (Forensic Evidence) Bill 2007 – suggestingthat the establishment of a DNA database is on the cards.Patrick McGonagle focuses his spectrometer

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Work, rest and playWhen is overtime not really overtime, and when do youget paid for it? Using examples, Michael Prendergastassesses whether overtime is an outmoded concept or aphoenix rising from the ashes

38

End of the ageThere are two ways to look at well-funded retirement: theend of employment income or the start of a pension. JoKenny and Philip Smith consider the interaction betweenemployment and pension law definitions of retirement

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LAW SOCIETY GAZETTE MARCH 2008PRESIDENT’S MESSAGE

“The presentposition,wherebylegislationemanating from Brussels is immune fromfundamentalchallenge byvirtue of article 29 of the Constitution,is a mostfrustrating one”

Thankfully, the year is flying in. There is aLaw Society adage that, once the annualconference is over, the president isyesterday’s man and any available respectis directed at the heir apparent. Proof

positive of this is that my good friend John Shaw’sforehead is a little more furrowed these days!

The conference was a great success, largely due tothe high-quality presentations from our speakers:Barry Donoghue (deputy director of publicprosecutions), John Bruton (EU ambassador to theUS), and Minister for Justice Brian Lenihan.

Despite the fact that some speakers had a clearposition on the Lisbon Treaty, the general view wasthat a lot of useful non-partisan information wasexchanged – much of it for the first time.Irrespective of anyone’s perspective, I wouldencourage colleagues to fully participate in publicinformation events concerning the treaty. From alegal point of view, the minister outlined that it willnow be possible to challenge Brussels’ directives byreference to the provisions of the Charter ofFundamental Rights. This is a type of jurisdictionwith which we are all familiar, both in the context ofconstitutional challenges and incompatibilitydeclarations by reference to the European Conventionon Human Rights.

It remains to be seen how practical this remedywill be in the event that the treaty is passed, butcertainly the present position, whereby legislationemanating from Brussels is immune fromfundamental challenge by virtue of article 29 of theConstitution, is a most frustrating one.

Next year, our conference will be in Bilbao, withprecise dates and arrangements to be confirmedshortly. I would encourage all members, especiallyyounger colleagues, to attend the conference and seefor themselves.

On 22 April, the Minister for the EnvironmentJohn Gormley launched the Society’s detailed reportentitled Enforcement of Environmental Law: The Casefor Reform. This wonderful document shows that,while media headlines are consumed with regulatoryissues, it is business as usual in all our otherdepartments. I would like to compliment all involvedwith the project and, in particular, our full-timepersonnel, Alma Clissman, who is now with the LawReform Commission, and Elaine Dewhurst.

One of the great pleasures of the presidency isthat it gives an opportunity to record theappreciation of the profession for many of theunsung heroes who do so much good work on ourbehalf. Recently, I attended the annual generalmeeting of the Solicitors’ Benevolent Association,whose members put in an enormous effort to assistcolleagues or their families who have fallen on hardtimes. In thanking members for their contributioneach year (with the practising certificate fee), Iwould nonetheless ask colleagues to considerincorporating a bequest to the association in theirown will. The good work of the SBA has beenessential since 1863, and there is no reason tobelieve other than that they will be needed longafter we are all gone.

James MacGuillPresident

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Éist lefuaim nahabhannagusgheobhaidhtú breac

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LAW SOCIETY GAZETTE MAY 2008NEWS

nationwide

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

■ DUBLINDSBA President MichaelQuinlan’s trip in September toChina has created tremendousinterest among members of theprofession. Colleagues seem toappreciate that a conference ofthis nature represents a chancein a lifetime. While there is stillavailability, places are filling up,and those seriously interestedin going are stronglyencouraged to secure a place byputting down their deposit now.It promises to be an amazingexperience.

The DSBA is to hold a lunchfor esteemed colleagues whohave soldiered on in practicefor over 50 years. While a datefor the event has yet to befixed, it is likely to be in theearly summer. We would beparticularly pleased to hearfrom any colleagues whoqualified in 1958.

■ LEITRIMColleagues throughout thecounty and beyond havewelcomed the appointment ofMohill solicitor Kevin PKilraine to the bench. Kevinhas been an outstandingadvocate for many decades andhis appointment will bring tothe bench a huge amount ofcommon sense and legalexpertise.

■ WEXFORDThe provision of courthousesthroughout the county has beenof huge concern to barassociation president HelenDoyle and her colleagues formany years. She tells us thatthe Courts Service has nowacquired the municipalbuildings in Wexford town forthe provision of court facilities.Currently, the District Courtand offices are in Ardcavan, two

miles outside the town, withthe considerable inconveniencethat entails for practitionersand witnesses alike. The newGorey courthouse is underconstruction, but is not due forcompletion until next year. TheEnniscorthy courthouserenovations are to becompleted next year also. Fundsare to be made available for therenovation of the New Rosscourthouse during the currentyear. The present courthouse inNew Ross is located in a GAAclub.

Helen has recently arrangedfor a number of seminars in thecounty, one on the new VATregime, as well as apresentation from the PropertyRegistration Authority. AnneNeary’s seminar ‘Succeeding ina Downturn’ will be held inJune and a dinner will takeplace in July.

■ MIDLANDSCharlie Kelly tells us that thebar association organised amost successful seminar inMullingar in early April oncompulsory registration and

registration of title based onpossession. John Murphy,examiner of titles, who hadgone to school in the town, wasdelighted to return and meet upwith many of his formerclassmates at a very well-attended seminar. He wasassisted by Brenda Feeney,examiner of titles for the northmidlands region. The barassociation also held a seminaron issues affecting the elderlyand the practical aspects ofcaring for the elderly invulnerable situations. Charliehopes to hold a further seminaron tax issues and conveyancing.

■ DONEGALBar association presidentBrendan Twomey is distinctlyunimpressed by the Courts

Service proposal for solvingthe county’s chronic backlog ofcases. “Their solution is tohive off Donegal Town andBallyshannon to Sligo, but thiswill have a negligible effect, asthe heart of the problem is thehuge caseload in Letterkenny.”Brendan tells us that, as ofFebruary of this year, therewere 3,123 cases on theDistrict Court lists throughoutthe county, with Donegal andBallyshannon accounting for amere 15% of the total,compared with Letterkenny’s61%. Says Brendan: “Theproblem can only be solvedwith the appointment of asecond permanent judge, asthe ceding to Sligo will notaddress the problem, makingnegligible difference to theoverall situation.” Likewise,Brendan feels the county iscrying out for the appointmentof a second Circuit Courtjudge, where again there is achronic overhang of 800 cases,with the county having only 64court days in the year.However, he is fulsome in his praise of the heroic effortsof Judge O’Hagan to deal with matters, but feels thatwithout the assistance ofanother full-time judge, thereis no hope of ever clearing thebacklog.

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

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Rosie O’Flynn, Bernadette Cahill and Marie Dennehy at the Waterford Law Society’s dinner on 4 April (see p48)

SOLICITORS’

HELPLINE

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LAW SOCIETY GAZETTE MAY 2008 NEWS

The Litigation Committeehas continued its ongoing

dialogue with the CourtsService. On 27 March last, itschairman Stuart Gilhooly andits secretary Colette Carey metwith Nuala McLoughlin andAngela Brennan of the HighCourt section of the CourtsService to discuss ongoingservice issues with the centraloffice. Top of the list ofconcerns was the length ofqueues to be served and the newclosing times.

In January, the CourtsService announced that thecentral office would close at

4.30pm sharp. The effect of thishas been that anyone stillwaiting in the queue at this timehas not been served.

The Courts Service has asked the Gazette to remindpractitioners of express servicesavailable. In the event that youhave less than five documents tofile, you may avail of the expressqueue – it also operates an evenquicker express service for thosewith only one document.

In terms of improving thegeneral service into the future,following an independentreview of its services, the CourtsService plans shortly tointroduce a postal system. It ishopeful that this will reduce thesizes of queues. In addition, itplans to streamline the checking

service it provides in respect offiled documents.

The Courts Service hasstated that it is very anxious toliaise closely with the legalprofession before introducingthese changes and will be infurther contact with theLitigation Committee in thenear future.

In the meantime, theLitigation Committee stronglyadvises practitioners with manydocuments to arrive early in thecentral office and, if possible, toavoid Wednesday afternoons,which are especially busy withbail application documentation.

The French Conseil d’Etat –the highest administrative

court in France – haseffectively ruled against theimplementation of the secondMoney-laundering Directive inFrance.

In a challenge mounted bythe French Bar and theCouncil of Bars and LawSocieties of Europe (CCBE)against the implementation ofthe directive in that country,the Conseil d’Etat ruled (10April 2008) that EU memberstates should not just have theoption to respect lawyers’professional secrecy within theframework of judicial activitiesand legal advice (as mentionedin the directive) – but areunder an obligation to do so.

The Conseil d’Etat alsostated that, in order tosafeguard professional secrecy,all direct contacts between thelawyer and the nationalfinancial intelligence unitshould be forbidden.

In referring to article 8 ofthe European Convention onHuman Rights, the Conseil

France’s highest court supportslawyers on money laundering

d’Etat gave the widest possiblemeaning to ‘legal advice’,putting to one side‘ascertaining the legal positionof a client’ mentioned in article

6 of the directive. The decision complements

the recent case law decision ofthe European Court of Justice(26 June 2007) and that of the

Belgian Constitutional Court(23 January 2008).

The CCBE has warmlywelcomed the decision. CCBEPresident Péter Köves said:“This decision, as well as therecent decisions given by theEuropean Court of Justice andthe Belgian ConstitutionalCourt, are a very firm warning.It is not possible to impose onthe European legal order anobligation on lawyers to betraythe trust of their clients, nor toimpose on them obligationsother than those of guardingwith independence the interestof their clients alone.”

The CCBE states that, at atime when the third Money-laundering Directive – whichincreases the information andcooperation duties on lawyers –is about to be implemented,the member states have acompelling need to takeaccount of the respect forfundamental rights,unanimously called for by theEuropean Court of Justice, theBelgian Constitutional Courtand now by the Conseil d’Etat.

Litigation Committee in Courts Service dialogue

‘It is not possible to impose on the European legal order an obligation onlawyers to betray the trust of their clients’ – Péter Köves, CCBE president

9www.lawsociety.ie


The Law Society’s LawReform Committee has

launched a new report, focusingon environmental law. TheEnforcement of EnvironmentalLaw: the Case for Reform waslaunched by EnvironmentMinister John Gormley, atBlackhall Place on 22 April2008.

The report considers thewide range of regulationscurrently in force in Irelandrelating to environmentalenforcement. It concludes thata rebalancing of theenforcement regime should beimplemented. This wouldencourage and rewardcompliance without hinderingthe effective use of the availableenforcement measures.

Environmental enforcementis considered from a number ofperspectives – that of publicenforcement, citizenenforcement, environmentalagreements and pre-emptivecosts orders. The reportstrongly supports theintroduction of unambiguousand effective mechanisms forenforcing environmental law bythe state and its citizens.

New enforcement measuresThe report recommends newenforcement measures,including the use ofenvironmental communityservice orders, publicisingbreaches, mandatory auditorders, the introduction of a‘penalty points’ system, as wellas the imposition of corporateresponsibility for majorenvironmental damage.

The report concludes thatthe current model of publicenforcement – which relies oncriminal prosecution and finesconsequent on conviction as thesole penalty – fails to giveregulators adequate means to

The Law Society of Irelandis pleased to announce the

second annual competition forthe Human Rights Essay Prize.Trainee solicitors, thosequalified in the previous year,and those preparing for FE1exams are invited to submit anessay identifying a particularaspect of human rights law thatthey believe will haveimportance in the applicationor interpretation of Irish law.They should briefly explain thecurrent understanding of law inthis area and outline their

Law Society launches report on environmental law reform

effectively deal with many casesin a proportionate and risk-based way.

The issue of implementingenvironmental agreements isaddressed, on the basis of theirsuccessful adoption in other EUmember states. These areusually set against a backgroundof the threat of more formal,binding regulation – butnonetheless offer morenegotiation, agreement andflexibility for industry.

Citizen enforcementThe Law Reform Committeereport also deals with theconcept of citizen enforcement.It makes a number ofrecommendations on the legalstanding of citizen enforcersand their right not only tocomplain to regulatoryauthorities, but for suchcomplaints to set in motion anobligation on the part of thatauthority to take further action.

The issue of partnershipsbetween members of the public,NGOs and regulatory bodies inthe enforcement ofenvironmental law is examined.The report also addresses thepossibility of widening theremit of the Legal Aid Board toencompass public interest

actions taken by special interestgroups in the area ofenvironmental law.

Legal costs have also beenconsidered. It was concludedthat such costs could often be abarrier to potential litigantstaking environmental judicialreview proceedings. The reportrecommends that pre-emptivecosts orders be made available.The Law Reform Committeeendorses the consideration anduse of these by the judiciary todate.

The committee hopes thatthis report will go some way toassisting the legislature in thetask of implementinglegislation and framing policyin Ireland in a balancedmanner. Indeed, MinisterGormley was very receptive tothe ideas raised in the reportand has invited an opendiscussion on the issues raised.The report is available on theLaw Reform Committee pagesof the Law Society’s website:www.lawsociety.ie.

Trainee solicitor HumanRights Essay Prize

argument for the influence ofhuman rights law.

Entries should be typed andapproximately 2,000 – 3,500words in length. Entries may beco-authored. Two prizes will beawarded in total: a first prize of€600 and a runner-up prize of€300.

Prize-winning and shortlistedessays may be published. Infor-mation in relation to marking,prizes and eligibility are availableon the Law Society websiteunder the Human RightsCommittee at www.lawsociety.ie.

At the launch of the report Enforcement of Environmental Law: The Case for Reform on 22 April 2008 were (l to r): Aoife Shields, Finola McCarthy, Minister for the Environment John Gormley TD, Deborah Spence,

Owen McIntyre and Alma Clissmann

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LAW SOCIETY GAZETTE MAY 2008 NEWS

HEALTH ADVICE AND SUPPORT FOR LAWYERS

YOU CAN MAKE A DIFFERENCE

Soon after she qualified as alawyer, Laurie (not her real

name) got a job with a medium-sized firm. Although she waspromised that she would be doingfamily law, she was almostimmediately placed in the civillitigation department, ‘to help out’.She found herself floundering, butthere was no one to turn to forsupport. “I had no knowledge,experience or even interest in thework. I hadn’t a clue what I wassupposed to be doing, but when Iasked for help, everyone was toobusy, or they said: ‘Are youqualified or aren’t you?’” Lauriespent a large amount of her timelooking through books for theguidance she needed, and working12-hour days in order to keep upwith both the reading and theworkload.

Inevitably, Laurie made a majormistake on a file and wasdisciplined. “Because of this, Iwas lucky enough to get one-to-onetime with the senior partner, andso I told him why it had happenedand he reluctantly agreed that Ishould be moved to family lawafter all. At least there I had someidea what I was doing, but thatdepartment was understaffed too.There was only one secretary, so Ihad to do all my own admin, andour billing targets were the sameas for those in civil litigation. Itwas totally unrealistic.”

Laurie began suffering severeheadaches and mood changes,which caused problems in herrelationship with her fiancé. Shewent to her GP, who diagnosed hersymptoms as being stress-relatedand suggested she take at least aweek off sick, before she had acomplete breakdown.

LawCare volunteerDuring that week, Laurie calledLawCare for help. After talkingthrough all her worries, she felt

the burden had lifted a little.LawCare sent her some practicaladvice about stressmanagement, which she foundvery helpful. They also offeredher the support of a LawCarevolunteer, which she gratefullyaccepted.

Anne (not her real name)called her the next day. Annewas a sole practitioner workingin a town 30 miles away, but shewell remembered the stressLaurie described fromexperiences in her own career.She offered support and,through talking to her, Lauriebegan to see light at the end ofthe tunnel.

“Anne phoned several timesduring that week,” Laurie said,“and I really felt she was there forme. Because she was a lawyertoo, I felt I had the one-to-onesupport I had craved so much inthe early months. I was able totalk to her about what I might doto resolve the problems. Shereminded me that I needed to putmy health and my relationshipwith my partner first.

“When I went back to work, Ispoke to the senior partner andexplained the problem. He toldme that, although the firm had aproblem with people taking timeoff with stress and various otherrelated illnesses, he had no

intention of employing moresolicitors to lessen the burden. Iexplained that I wasn’t preparedto work the long hours I hadbeen doing.”

Manageable stressLaurie continued: “After a coupleof months, while I felt better, Icould see that the firm was ashambles and it was a stressfulenvironment, even though I didmy best to apply the stressmanagement techniques I’dlearned. So, with Anne’ssupport, I left and now I have ajob in a provincial firm doing thefamily-law work I love, with lotsof autonomy and manageablestress. I can’t thank LawCare,and especially Anne, enough forthe help they gave me. I dread tothink what might have happenedwithout it.”

There are currently over 150LawCare volunteers and thesupport that they give isabsolutely vital to LawCare’swork in assisting the legalprofessions. Currently, around aquarter of all LawCare’s casesare referred to a volunteer forhelp, but this isn’t enough.

If you have useful lifeexperience, experience ofrecovery from addiction ormental illness, association withsuch problems through family orfriends, and/or knowledge ofcounselling techniques (asopposed to being a trainedcounsellor), then please considerbecoming a volunteer forLawCare. You’ll receive nomonetary reward, but you willhave the satisfaction of knowingthat you are putting somethingback into the profession andhelping your fellow lawyers. LikeAnne, you will have the reward ofseeing people you have helpedresuming effective professionaland personal lives. G

LawCare provides a range of health services to lawyers, their staff and families in Ireland

ABOUT LAWCARELawCare is an advisory and support service to help

solicitors, their staff and their immediate families to deal with health problems such as depression and addiction, and

related emotional difficulties. The service is free and entirely confidential.

For totally confidential, non-judgemental help, ring freephone

1800 991 801(9am – 7.30pm weekdays and 10am – 4pm

at weekends/bank holidays, 365 days a year. Web: www.lawcare.ie

Email: [email protected]

11www.lawsociety.ie


Justice Minister BrianLenihan has published the

Legal Services Ombudsman Bill2008. The ombudsman willoversee the handling ofcomplaints from clients ofsolicitors and barristers by theLaw Society and Bar Council.

The key functions of theombudsman will be to: • Provide a form of review for

clients of solicitors andbarristers who are dissatisfiedwith the handling of acomplaint made to the LawSociety or Bar Council,

• Oversee the complaintsprocedures in place in theLaw Society and BarCouncil, and

• Monitor and report annuallyto the minister and theOireachtas on the adequacyof the admissions policies ofboth professions.

“As the bill progresses throughthe Oireachtas,” said theminister, “I will consider any

■ RETIREMENT TRUST

SCHEME

Unit prices: 1 April 2008

Managed fund: €5.197777

Cash fund: €2.829940

Long-bond fund: €1.385574

All-equity fund: €1.193454

■ ‘PLAIN ENGLISH’ THUMBS UP

The National Adult Literacy

Agency (NALA) has awarded its

‘Plain English’ mark for the Law

Society’s new precedent letter of

engagement (see insert with this

issue). This document, and a pre-

cedent letter of disengagement,

were prepared by the Guidance

and Ethics Committee as an aid

to solicitors. The committee

suggests that the precedent

document be used simply as a

letter, with the client’s details

added. Alternatively, it can be

incorporated into a pamphlet or

brochure with the firm’s own

logo. It can then be sent to

potential clients with a covering

letter.

■ BROWN FACES REVOLT OVER

COUNTER-TERRORISM BILL

A new Counter-terrorism Bill that

proposes to lengthen the time a

suspect can be detained without

charge seems set for defeat in

Britain’s House of Commons. Ten

former ministers look set to join

a growing revolt against Labour’s

plans to hold terrorist suspects

for 42 days.

Separately, on 24 April 2008,

the High Court ruled against

powers to freeze suspects’ bank

accounts after five men

successfully challenged the

British government’s powers to

freeze bank accounts, stop

benefit payments and control the

spending of people it has

designated as terrorist suspects.

■ LOST IN TRANSLATION

Interpretation and translation

services provider, Lionbridge

Technologies, has secured a

major contract for the provision of

services to the Courts Service.

The contract is the second

largest interpretation contract in

the country.

Publication of Legal Services Ombudsman Bill

IBA conference to return to Ireland after 44 yearsThe International Bar

Association’s (IBA) annualconference will be returning toIreland in 2012 after a period of44 years. The last IBA annualconference was held in Dublinin 1968.

The National ConferenceCentre has been booked for theevent, which will be heldbetween 30 September 2012and 5 October 2012. Around4,000 lawyers from around theworld will descend on thecapital to discuss a vast range oftopics in more than 260 sessionsthroughout the week.

The Law Society has workedhard to secure Dublin as thechoice for this conference.Particular recognition goes toGeraldine Clarke, John Buckleyand Laurence Shields for theirefforts in securing Dublin asnext year’s venue.

“The International BarAssociation is the world’sleading organisation ofinternational leadingpractitioners, bar associationsand law societies,” explainsMichael Greene, the nominatedtreasurer of the IBA for 2009and 2010. “The IBA has amembership of around 33,000individual lawyers drawn fromjust about every country in theworld. It also comprises morethan 195 bar association and lawsocieties spanning everycontinent.

“People join the IBA for avariety of reasons,” saysMichael. “Sometimes it is forthe purpose of networking andensuring a regular stream offoreign referrals; sometimes it inorder to be at the cutting edgeof international practice and toraise awareness of the latestdevelopments in the relevantpractice area in otherjurisdictions. Whatever theirreasons, most lawyers find

membership of the IBA veryrewarding.”

The current membershipincludes around 140 Irishsolicitors. One firm, McCannFitzGerald, has signed up all ofits lawyers under the IBA’sgroup membership scheme. “Iwould hope that by 2012 wewill see a very significant

increase in Irish membership ofthe IBA,” says Michael. “Joiningthe association is very easy – afew clicks and your credit carddetails on www.ibanet.org willsee you signed up.”

Queries about the associationshould be addressed to Michaelat: [email protected] or tel: 087 2585 649.

practical amendment to the billthat complements theoverarching purpose of thispiece of legislation – theimproved regulation of thelegal professions.”

The current regulatoryarrangements for solicitorsinclude the independentSolicitors Disciplinary Tribunalappointed by the President ofthe High Court to investigatecomplaints of misconductagainst solicitors and anIndependent Adjudicator.

In addition, the Civil Law(Miscellaneous Provisions) Bill2006 – currently before theSeanad – provides for amajority of lay membership ofLaw Society complaintscommittee. Provision is alsomade to ensure betterenforcement of orders of theSolicitors Disciplinary Tribunal.

The Legal ServicesOmbudsman Bill 2008 isavailable on the Oireachaswebsite, www.oireachtas.ie.


LAW SOCIETY GAZETTE MAY 2008 COMMENT

Justice delayed is justice

In early September 2002, 14-year-old Brian Rossiter

was found unconscious in a cellin Clonmel Garda Station. Hedied in hospital, withouthaving regained consciousness,three days later. According to anumber of witnesses, he hadbeen ill-treated by a memberor members of An GardaSíochána during his arrest ordetention.

This April, the Departmentof Justice released a summaryof the Hartnett Inquiry’s reportinto the circumstancessurrounding his death. HughHartnett SC found that “thedocumentation produced in thecourse of the investigation intothe death of Brian Rossiter andthe evidence heard at thisinquiry does not show anyindication of there being anyreal investigation in relation tothe possibility of Brian Rossiterhaving been assaulted or hishaving received a fatal injurywhile in custody”.

In a line of judgmentsstretching back to 2001 (seepanel), the European Court ofHuman Rights has statedunequivocally that, wheneverthere is an allegation that aperson in custody may havebeen ill-treated by policeofficers, there must be an‘effective’ investigation.

The jurisprudence of theStrasbourg court has provideda series of clear benchmarksagainst which the effectivenessof an investigation may bejudged. When the findings ofthe Hartnett report are setagainst those benchmarks, theshortcomings of the

investigations into BrianRossiter’s death are throwninto sharp relief.

Benchmarks of effectiveness1. The persons responsiblefor and carrying out theinvestigation should beindependent from thoseimplicated in the events.

The investigation was carriedout by Superintendent RichardBurke who, according to theHartnett Inquiry, failed toarrange for witness statements“to be taken by members of AnGarda Síochána other thanClonmel members”.

2. The investigation mustbe capable of leading to adetermination of whetherforce used was or was notjustified under thecircumstances and to theidentification and, ifappropriate, the punishmentof those concerned.

Some media reports havesuggested that the Hartnettreport finds no evidence thatany member of the gardaíassaulted Brian Rossiter.

This is not the case: rather,the inquiry records that it “is not

satisfied that Brian Rossiter wasassaulted in the course of arrestor when he was in custody”[emphasis added]. It is plainfrom the summary of the inquiryreport that the original criminalinvestigation failed to takeadequate steps to establishwhether or not force was used ator after detention. As a result,the inquiry was simply not in aposition to satisfy itself on theissue of whether – or not – BrianRossiter was assaulted by gardaí.

3. All reasonable stepsshould be taken to secureevidence concerning theincident, including, amongother things, eyewitnesstestimony, forensic evidence,and, where appropriate, anautopsy that provides acomplete and accuraterecord of injury and anobjective analysis of clinicalfindings, including the causeof death.

According to the Hartnettreport, “despite the evidence ofSuperintendent Burke to theeffect that the possibility of anassault on Brian Rossiter duringhis arrest or detention was aline of enquiry, this inquiry

finds that there was noadequate investigation of thispossibility” and “certaininvestigative steps were nottaken after the possibility of anassault in custody was raised”.

In particular, the inquiryfound that there was a failureto direct that a materialwitness be interviewed inrelation to what he had seen orheard while in custody. DrMarie Cassidy, who carried outan autopsy, was never asked bygardaí if any of Brian Rossiter’sinjuries could have beenincurred in an assault otherthan one known to have takenplace before his detention.This was despite the fact that,while the criminal investi-gation was active, theinvestigating superintendentreceived a letter from theregional director of the SouthEastern Health Board settingout an allegation that a ‘Mr C’had witnessed ill-treatment ofa young man in ClonmelGarda Station between 9.30pmand 10pm on 10 September2002. The inquiry finds thatthe failure to make adequateinquiries after the receipt ofthe allegation contained in thatletter is “inexplicable”.

4. The investigation mustbe conducted in a promptand reasonably expeditiousmanner.

The Hartnett Inquiry foundthat “there was a failure toinvestigate all the circum-stances surrounding the deathof Brian Rossiter and that thiswas a neglect of duty on thepart of Superintendent Burke”.Moreover, it was more than

The European Court of Human Rights, Strasbourg

Whenever there is an allegation that a person may have been ill-treated in custody, there must be an‘effective’ investigation. Mark Kelly reviews the summary of the report into the death of Brian Rossiter

13www.lawsociety.ie

LAW SOCIETY GAZETTE MAY 2008COMMENT

viewpoint

deniedthree years after BrianRossiter’s death before theHartnett Inquiry itself was setup, and its full report has yet tobe made public.

5. There must be asufficient element of publicscrutiny of the investigationor its results in order tosecure accountability inpractice as well as in theory.

Five-and-a-half years afterBrian Rossiter’s tragic death,only a redacted summary ofthe Hartnett report has beenpublished. Brian’s parents were reportedly informed onlya few hours beforehand thatthis material would bepublished. It seems plain thatthey have not – as is requiredby the case law of theEuropean Court of Human

Rights – been involved in theinvestigation to “the extentnecessary to safeguard theirlegitimate interests”.

ECHR and article 2Article 2 of the EuropeanConvention on Human Rightsrequires that, whenever there isan allegation that someone hasbeen injured or has died as theresult of a garda assault, thatallegation must be investigated ina way that is independent,effective, prompt and transpar-ent. In the leading case of HughJordan v the United Kingdom, theStrasbourg court made clear that“the essential purpose of suchinvestigation is to secure theeffective implementation of thedomestic laws which protect theright to life and, in those cases

involving state agents or bodies,to ensure their accountability fordeaths occurring under their

responsibility”. To date, no one has been

held accountable for the deathof Brian Rossiter, and there hasyet to be an investigation intohis death that complies withIreland’s obligations underarticle 2 of the ECHR.

In future cases, investigationsby the independent GardaSíochána OmbudsmanCommission may well meet thestandard required by theconvention. However, wherethe death of Brian Rossiter isconcerned, it would appear thatjustice delayed is truly justicedenied.

Mark Kelly is an internationalhuman rights lawyer and directorof the Irish Council for CivilLiberties.

G

• Assenov and others vBulgaria, N 90/1997/874/108

• Hugh Jordan v UnitedKingdom, N 24746/94

• Kelly and others v theUnited Kingdom, N 30054/96

• McKerr v UnitedKingdom, N 28883/95

• McShane v UnitedKingdom, N 43290/98

• Sevtap Veznedaroglu vTurkey, N 32357/96

ECtHRjudgments

CRIMINAL LAW COMMITTEE SEMINARHotel Meyrick, Eyre Square, Galway • 9.30am – 1pm, Saturday 17 May 2008

Registration: 9am • Seminar: 9.30am – 1pmCPD hours: three (group study)

€160 per person (€80 trainee solicitors), includes materials, morning coffee and lunch

BOOKING FORMName(s):

Firm:

Please reserve place(s). Cheque in the sum of attached.

Please forward booking form and payment (to be received no later than 15 May 2008) to: Colette Carey, solicitor, Criminal Law Committee, Law Society of Ireland, Blackhall Place, Dublin 7.

Criminal Law (Insanity) Act, 2006Speaker: Dara Robinson, solicitor

Penalty Points OffencesSpeaker: Alan Gannon, solicitor

DPP’s “Reasons” Project Speakers: Hugh Sheridan, solicitor; Michael Staines, solicitor

Hostile Witnesses – Legislative DevelopmentsSpeaker: Hugh Sheridan, solicitor


LAW SOCIETY GAZETTE MAY 2008 ANALYSIS

If the Minister for Justice hadventured to gaze to his right

as he took to the podium in theAcademy of Sciences inBudapest, he would have seen,through the nearby window, thegraceful form of Lady Libertystanding guard over the city.

‘Lady Liberty’, the‘Liberation Monument’, or the‘Liberty Statue’ – take your pick– has been standing guard overthe Hungarian capital since1947, as a monument to theSoviet Army’s liberation of thecity in 1945. The statuesurvived the 1992 purge ofmore than 40 busts, statues andplaques of Soviet-era leaders,heroic workers and communistmartyrs that, till then, hadgraced the city’s public spaces.

The statue’s beauty – and itsuniversal theme of liberty –ensured that its place wassecure. It’s now a fitting iconicconnection between Hungary’sdarker, historic past and itsbrighter, Europe-focusedfuture.

And it was on Europe’sfuture that the gaze of JusticeMinister Brian Lenihan wasfirmly fixed during his addressto the 180 Law Societymembers who had travelled toBudapest for this year’s annualconference.

Quasi-religious termsMinister Lenihan emphasisedthe government’s view thatIreland’s future would be bestserved by a reformed Europe inwhich Ireland was a fullycommitted member. He spokeof the treaty in quasi-religiousterms: the plebiscite on thetreaty would “give us all anopportunity to renew our faithin the European project, whichhas been such a benefit to thenation”.

“The treaty has to be ratifiedby all 27 states to have legaleffect. And the other memberstates ratified the treaty byparliamentary process. So thisreferendum is unique to Irelandand to the Irish people, andthat’s a constitutionalrequirement,” he said. “And myscript writer has kindly said thatI should not see this as anegative and potentiallyembarrassing process. I have tosay I’m on the record on this assaying it is a negative andembarrassing process. I don’tactually agree with it.

“I think one of the problemswith our Constitution is that wehave had it since 1937. It’s anexcellent document. How couldI say anything else, since thedrafter was the founder of myparty? But it has gone througha minute-by-minute analysis bythe Supreme Court, which hasled to an extraordinary set ofconclusions. For example, ourpresent Supreme Court requiresthat we have a referendumevery time there is a marginalchange in the structure of theEuropean Union. Now, ofcourse, it was very difficult to

explain to people that this [theLisbon Treaty] is only a marginalchange in the structure of theEuropean Union. Peoplerightly think there is somethingafoot here. And one of thebiggest difficulties in thereferendum is going to beexplaining to people that thereisn’t all that much in the LisbonTreaty. Because people naturallysay, ‘Well, why are we having areferendum then?’”

The minister addressed someof the key features of the treaty,including the Charter ofFundamental Rights, which willhave legally-binding status ifthe treaty carries and will beseen as a significantdevelopment in underpinningthe values of the EU in theareas of citizens’ rights andfreedoms.

Another feature of the treatyis its proposal for a greater rolefor national parliaments inrelation to EU legislation. “Ithink that’s important. I thinkthat, given the volume ofEuropean legislation, it’simportant that the scrutinymeasures that do exist at anational level in nationalparliaments are strengthened,”he said.

Justice mattersThe minister next turned tojustice matters, specifically theissue of majority voting in thefields of criminal law and policecooperation.

“We were prepared to goalong with majority voting incriminal law and policecooperation. But ChancellorMerkel was anxious to bringfinality to the treaty. Therewere certain redline issueswhich Prime Minister Brown,in my view, wrongly identifiedas important issues for the

Sweet Liberty, I speak of theeThe Law Society’s annual conference in Budapest tackled big questions like the Lisbon Treaty,EU/US relations, and the possibility of an EU federal prosecutor. Mark McDermott reports

PIC: G

ETTY

Lady Liberty holds aloft the palm of victory on Gellért Hill in Budapest

Speakers at the business session of the annual conference were (l to r):EU Ambassador to Washington John Bruton, Minister for Justice, Equalityand Law Reform Brian Lenihan TD, President of the Law Society JamesMacGuill, and Deputy Director of Public Prosecutions Barry Donoghue

15www.lawsociety.ie

LAW SOCIETY GAZETTE MAY 2008ANALYSIS

United Kingdom – and one ofthem was this area. And hesecured for the UnitedKingdom an opt-out in relationto justice matters, which allowsthe United Kingdom to decidenot to accept qualified majorityvoting in this area. Now, whenChancellor Merkel agreed thiswith Mr Brown, ChancellorMerkel simply went to ourTaoiseach and said, ‘We aregiving the British this – we haveto offer it to you as well,because you are a common-lawcountry’.

“So, we were offered an opt-out. We are not opting out ofjustice cooperation, of course.We are opting out of qualifiedmajority voting if we want to[but] I don’t see us, I have tosay, exercising an opt-out veryoften … But again, I think whatwe have negotiated on thejustice front is in our interests.It allows us to look at matterson a case-by-case basis. Wehave lodged a declarationmaking clear our intention toparticipate to the maximumextent possible on justicecooperation and justiceproposals. But we do have theright to opt out if a significantcultural problem presents itself– and significant culturalproblems can presentthemselves in the legal area.”

European public prosecutor?The Deputy Director of PublicProsecutions, Barry Donoghue,addressed the topic of ‘TheEuropean Public Prosecutor:Will it Happen?’ Mr Donoghuepointed out that article 69E ofthe treaty made specificreference to a European publicprosecutor (EPP). “As there isno European criminal code andno European criminal courtbefore which such a prosecutorcould lay a charge,” he said,“the question arises as to whatsuch a prosecutor would beexpected to do and why it wasfelt necessary to signal in thetreaty the possibility ofestablishing such an office.”

“If the EPP is established,what will its functions be?”asked the Deputy DPP. “TheEPP will be ‘responsible forinvestigating, prosecuting andbringing to judgment, whereappropriate in liaison withEuropol, the perpetrators of,and accomplices in, offencesagainst the union’s financialinterests’. In carrying out thisrole, it shall exercise thefunctions of prosecutor in thecourts of the member states.”

The idea of establishing theoffice of EPP remained acontroversial proposal, hecontinued. “Having regard tothe reaction of a number ofmember states to the GreenPaper, one wonders whetherthere would be unanimity atEuropean Council level about

establishing such a body in theshort-to-medium term. In theabsence of such unanimity, ofcourse, a group of at least ninemembers could establish theEPP on the basis of enhancedcooperation between them.However, this EPP could onlyoperate in the territories ofthose states and would have towork alongside Eurojust, whichwould continue to operate on aunion-wide basis. Would suchan arrangement enhance thefight against EU fraud?” hequestioned.

How the US sees usThe EU Ambassador toWashington, John Bruton,speaking on the future ofEU/US relations, addressed theissue of American perceptionsof the EU and Europeancountries. “I think they regardus with a mixture of admirationand adoration,” said theambassador. “They do admirethe fact that we have been ableto come together voluntarily –that the union has worked.

“They, however, feel that weEuropeans are not fullyprepared to take our militaryshare of the policing role in theworld that they feel they arebeing asked to bear.

“But, of course, we say that ifyou want us to share the

policing role, will you agreethat you won’t do any policingunless we agree – both of us?Then they get a little bit lesskeen. They are happy for us toplay – but they want to have thefinal say.”

The meaning of freedomAs the business session drew toa close, Lady Liberty continuedto stand guard over Budapest,her giant palm frond lyingsteely still through the windowsof the magnificent Academy ofSciences building.

It remains to be seen whatthe Irish people will decide inthe impending vote on theLisbon Treaty. Will the resultsignal a cataclysm in Europeanpolitics, or will it be seen as amere ripple, leading simply tothe smoother running of the27-member union?

One thing you have toadmire about Ireland’s position,whether it accepts or rejects thetreaty, is the opportunitypresented to her people to voteon an issue that they care verydeeply about – having a say inshaping Europe’s future. Noother European country canmake that boast – which makesyou wonder about where libertystands in the modernexperiment that is the EuropeanUnion. G

ALL PICS

: MAR

K M

CD

ERM

OTT

Law Society members and guests in front of a Soviet-era monument in the quirky Statue Park, outside Budapest

Is it a bird, is it a plane? … No it’s ‘heroic worker’ Gulliver –demoted from pride of place in

downtown Budapest to the suburbs in Statue Park


LAW SOCIETY GAZETTE MAY 2008 ANALYSIS

ONE TO WATCH: NEW LEGISLATIONIncome Tax (Relevant Contracts)(Amendment) Regulations 2008(SI no 80 0f 2008)

Recent regulations on relevantcontracts tax (RCT) came intoforce on 1 April 2008. Theseregulations amend the IncomeTax (Relevant Contracts)Regulations 2000 (SI no 71 of2000) and govern the operationof RCT in respect of paymentsmade by principal contractors tosubcontractors in theconstruction, meat processingand forestry industries. The

regulations stem from acommitment made by the socialpartners in Towards 2016 tostrengthen the RCT system byputting in place new proceduresto help ensure that workers are correctly classified asemployees or self-employedsubcontractors.

A relevant contract is defined insection 530(1) of the TaxesConsolidation Act 1997 as acontract whereby a person (thecontractor) is liable to anotherperson (the principal) to carry outrelevant operations, to be

answerable for the carrying out ofsuch operations by others, or tofurnish the contractor’s ownlabour or the labour of others inthe carrying out of suchoperations.

DECLARATIONSThe principal and subcontractor toa relevant contract must make ajoint declaration to the RevenueCommissioners, prior to enteringinto the contract, to the effectthat they are satisfied that thecontract is not a contract ofemployment. The declaration is to

be made on the RCT 1 form. Thisdeclaration is to be retained bythe principal for a period of sixyears, or a shorter period, as maybe prescribed in writing by theRevenue Commissioners.

The declaration must bedelivered to the RevenueCommissioners within seven dayswhere:• The relevant contract is the

first such contract to beentered into by the principaland the subcontractor witheach other,

• The PPS number or tax

In two recent cases, Devoy vDPP and McFarlane v DPP,

the Supreme Court was facedwith the challenge of balancingthe entitlement of thecommunity to have an accusedprosecuted for the offences ofwhich he/she is suspected andthe right of the accused to anexpeditious trial. The casesprovide a great insight into themanner in which the SupremeCourt will examine the issue ofprosecutorial delay and thefactors that will be taken intoaccount in determiningwhether a trial should beprohibited where the right ofthe accused to a fair andexpeditious trial has beenbreached.

The applicants, Devoy andMcFarlane, had faced lengthydelays in the prosecution ofthe offences of which theywere accused. They soughtthe prohibition of the criminalproceedings against them onthe grounds that the

Delay and the right to anTwo recent cases provide an insight into how the Supreme Court will examine the issue ofprosecutorial delay, writes Elaine Dewhurst

prosecution had been delayedto such an extent that itconstituted a violation of theirrights to an expeditious trialin the due course of the lawunder article 38.1 of theConstitution and article 6.1 ofthe European Convention onHuman Rights. In Devoy, theSupreme Court held that,while the delay did constitutea breach of the applicant’srights under the Constitutionand the convention, theapplicant was not entitled toprohibition of the trial, takinginto account all thecircumstances of the case. InMcFarlane, the applicant didnot succeed in establishingthat the delay was a breach ofeither his constitutional orconvention rights. However,the Supreme Court did setdown the test that would befollowed in determiningwhether the right to anexpeditious trial had beenbreached in a particular case

and the circumstances inwhich the remedy ofprohibition could be granted.

Test under the ConstitutionArticle 38.1 of the Constitutionprovides that no person shallbe tried on any criminal chargesave in the due course of thelaw. This includes a right to a trial with reasonable exped-ition.

The Supreme Court heldthat a court should considerthe following four conditionsin determining whether theapplicant had suffered a breach of their right to anexpeditious trial:a) Length of the delay. The

length of the delay sufferedby the applicant and adetermination as to whetherthis constitutes a breach ofthe applicant’s rights willdepend on all thecircumstances of the case.Where the delay constitutesa “significant deviation from

the norm”, this would be animportant factor to considerin determining whether thatdelay was excessive orinordinate. Evidence shouldbe adduced to the court as tothe normal timeframe for aparticular proceeding to betaken. The court may alsotake into account the type ofcrime alleged against theaccused. The delay thatmight be tolerated for arelatively minor crime wouldbe considerably less thanthat for a complex case.

b) Reason for the delay. First,the court should considerwhether there was adeliberate attempt to delayon the part of theprosecution. If this is found,then this will weigh heavilyagainst the prosecution.Secondly, the court shouldexamine the more neutralreasons for a delay, such asnegligence or overcrowdedcourtrooms. The court

17www.lawsociety.ie


human rights watch

EXCLUSIONSThe principal and thesubcontractor will not have tomake a declaration where thesubcontractor has been issuedwith a notice of exclusion by theRevenue Commissioners.

A notice of exclusion will beissued to the subcontractor wherethe average annual sales of thecontractor arising from relevantoperations exceed €6.34 million inthe last three years. Exclusions canbe applied for by using form RCT 1-E. If the contractor qualifies, it willbe issued with a notice of

exclusion, which will be valid for aperiod of up to three years from thedate of issue.

A notice of exclusion will becancelled where false or misleadinginformation is given to the RevenueCommissioners or where the noticeis misused. Where a notice iscancelled, the Revenue Commis-sioners will notify the contractor inwriting and the contractor will beobliged to return the notice to theRevenue Commissioners.

More information on the newRCT regulations as well as the newRCT forms is available from the

Revenue Commissioners atwww.revenue.ie. The RevenueCommissioners have alsoproduced a series of electronicbriefings on the matter, which areavailable on their website: e-Brief16/2008 on the eligibility forexclusion from the new form RCT 1process for subcontractors in theconstruction, meat-processing andforestry sectors and e-Brief 17/2008 on the new regulations.

Elaine Dewhurst is the LawSociety’s parliamentary and lawreform executive.

G

reference number, the VATregistered number, or theemployer registered number ofthe subcontractor is notentered on form RCT 1,

• The subcontractor is notregistered for income tax orcorporation tax, is notregistered for VAT, or is notincluded in the register ofprincipals maintained by theRevenue Commissioners,where the subcontractorintends to subcontract someor all of the work to othersubcontractors.

expeditious trialshould be aware thatultimate responsibility forthis lies with the state. Withthis in mind, the SupremeCourt held that it would beadvisable to give the stateagencies responsible theopportunity to be heard, asissues such as the failure of acourt to sit or the absence offacilities may be amenable toan explanation from theresponsible authority.Finally, the court shouldconsider other valid reasonsfor the delay, for example, amissing witness.

c) Role of the applicant. Theapplicant should make surethat he/she asserts the rightto a speedy trial. Where anapplicant makes such anassertion, this should begiven strong evidentialweight.

d) Prejudice. The court shouldtake into account theinterests protected by theright to an expeditious trial.The right protects againstoppressive pretrialincarceration, reduces the

anxiety and concern of theaccused and, mostimportantly, limits thepossibility of an impaireddefence. These are allimportant matters to beweighed up by the court inmaking a determination as toprejudice.

Prohibition under theConstitutionThe Supreme Court held that,where the delay is inordinateand exceptional, prejudice willbe presumed and prohibitionwill be granted. However,where the delay is less thanexcessive and where there is noproof of actual prejudice, thecourt will revert to a balancingexercise as to whetherprohibition will be granted.The court must weigh up theentitlement of the communityat large to have the accusedprosecuted for the offences ofwhich he is suspected, againstthe right of the accused to anexpeditious trial. In makingthis determination, the court isentitled to take into account

certain factors, including thegravity and seriousness of theoffence alleged, the delay itself,and the role of the variousparties in contributing to thedelay. The Supreme Court alsoheld that, where there was aconfession made by theapplicant, it would be

extraordinary to prohibit thetrial in such circumstances.

Test under the ECHRThe Supreme Court held thatthe rights under article 38.1 ofthe Constitution and article6.1 of the convention areindistinguishable. Article 6.1protects the right of theaccused to a fair and publichearing within a reasonabletime by an independent andimpartial tribunal establishedby law. A reasonableness testhas been applied by theEuropean Court of HumanRights in many cases andprovides useful guidance onthe question of whether therehas been a breach of the rightof an accused person to a trialwithin a reasonable time. Thecourt, in considering whethera particular delay isreasonable, should look at thecomplexity of the case, theconduct of the applicant, theconduct of the relevantauthorities, and what is atstake for the applicant in thecase. At the end of this, a

Prosecutorial delay: Cyril was only22 when he was first indicted for

crimes against facial hair

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19www.lawsociety.ie


determination can be made asto whether there has been abreach of the applicant’s rights.

Prohibition under the ECHRIn deciding whether such aremedy was available, theSupreme Court made adistinction between theremedies available under theconvention and those availableunder the Constitution. Whilethe remedy of prohibition isavailable under theConstitution, the SupremeCourt held that this was notavailable where a breach of theconvention was established. Adetermination that there hasbeen a breach of article 6.1 ofthe convention will have noeffect on the decision as towhether a remedy ofprohibition could be granted.There is nothing in the case

law of the European Court ofHuman Rights to suggest thata prosecution must be stoppedwhere a breach is established.This was based on a reading ofarticle 41 of the convention,which allows an applicant toclaim just satisfaction but doesnot entitle the applicant torelief not otherwise available tohim.

Structured determinationIn these two cases, theSupreme Court provides for avery structured determinationof whether a breach of theaccused’s rights has occurred ina case involving prosecutorialdelay. While the determinationof the Supreme Court thatthere is no entitlement toprohibition in cases where theapplicant establishes a breachof article 6.1 of the ECHR is

unfortunate, the court didprovide that the rights underarticle 6.1 of the conventionand article 38.1 of theConstitution areindistinguishable. This

determination effectivelymeans that, if an applicant canshow a breach of article 6.1, itwill follow that a breach ofarticle 38.1 can also beestablished. The SupremeCourt also held that, in caseswhere a breach of article 38.1is found, the remedy ofprohibition would be availableas long as the applicant cansatisfy the balancing test laiddown by the court. While thistest sets a high bar for theapplicant, it does at leastprovide an avenue throughwhich the applicant can arguefor a tangible method ofenforcing his/herconstitutionally protectedrights.

Elaine Dewhurst is the LawSociety’s parliamentary and lawreform executive.

G

• B v DPP [1997] 3 IR 140 at202

• Barker v Wingo [1972] 407US 514

• Barry v Director of PublicProsecutions [2003] IESC 63

• Devoy v DPP [2008] IESC 13• DPP v Arthurs [2000] 2 ILRM

363 • DPP v Byrne [1994] 2 IR 236 • McFarlane v DPP [2008]

IESC 7• PM v DPP [2006] 3 IR172 • PM v Malone [2002] 2 IR 560 • SA v DPP [2007] IESC 43

LOOK IT UP


LAW SOCIETY GAZETTE MAY 2008 COVER STORY

A GAMEThe courts are

often the only

avenue available

to obtain

satisfactory

resolution of a

sports dispute,

but they are not

always the most

appropriate

forum. Liam

Keane fists one

over to the

GAA’s Disputes

Resolution

Authority

• Dispute resolutionin sport

• Sports arbitration • GAA’s Disputes

ResolutionAuthority

MAIN POINTS

The role of the law in sport is increasing, as people become moreconscious of their rights and as the role and profile of sport increases.This applies both to professional and amateur sport. The courts havetraditionally been slow to intervene in sports disputes, but will do so incertain circumstances. The position was summarised by McMahon J in

Barry and Rogers v Ginnity and Others when he pointed out: “The law will demand alevel of fair procedures which is sufficient in all the circumstances to ensure justicefor the player or member affected by the decision. The more serious theconsequences, the higher the standard that will be required.”

While the courts are often the only avenue available to obtain a satisfactoryresolution of a sports dispute, they are not always the most appropriate forumfor a number of reasons:• Court procedures can be slow and inflexible,• Legal proceedings can be costly,• The publicity attendant on a court hearing is rarely beneficial for either the

sports governing body or for the person or body challenging a disciplinarydecision.

Of major concern to sporting bodies is the concept of the ‘ambush injunction’,where a player who has been the subject of a disciplinary sanction by agoverning body applies ex parte to the court for a temporary injunction to allowhim/her to participate in an imminent sporting fixture. The legal test applied isthe requirement to show that the party seeking such relief can establish a primafacie case and that the balance of convenience favours the granting of aninjunction (Campus Oil) – not a difficult hurdle to cross in the sporting context.

Jumpers for goalpostsInternationally, many sports disputes are dealt with by the Court for Arbitrationin Sport, to which some – though not all – international sporting bodies areaffiliated. In some jurisdictions there is an equivalent local body, for example,the Sports Resolution Disputes Panel in Britain. There is currently noequivalent body in Ireland.

In 2004, the then president of the GAA set up a Rule Book Task Force

The Disputes Resolution Authority(DRA) comprises a secretary whomaintains a panel of arbitratorsavailable to sit on arbitration tribunals.The secretary and the arbitrators allwork in a voluntary capacity. There aretwo sections to the panel – onecomprised of qualified solicitors,barristers and arbitrators (group 1)and a second (group 2) comprised ofpersons “who, by virtue of theirexperience and expertise in the affairs

of the association, are properlyqualified to resolve disputes relating tothe rules of the association” (section1.1 of the Disputes Resolution Code).

At present, there are 65 arbitratorsin group 1 – of whom 37 are solicitors– and 38 in group 2. It is mostheartening to witness the largenumber of solicitors prepared to givefreely of their time and expertise toassist in the provision of aprofessional sports arbitration system.

OFF THE BALL

OF

21www.lawsociety.ie

LAW SOCIETY GAZETTE MAY 2008COVER STORY

TWO HALVES?

PICS

: CIAN

RED

MO

ND

AND

RO

SLYN

BYR

NE

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23www.lawsociety.ie


(RBTF) to examine the association’s administrative(as distinct from playing) rules. As part of thisreview, the RBTF looked at the concept of sportsarbitration as an alternative to the courts. Afterlooking carefully at various models internationallyand taking into account the particular nature andstructure of the GAA, the RBTF proposed theestablishment of the Disputes Resolution Authority(DRA) – a sports arbitration body to be created by,but independent of, the GAA. This proposal wasultimately adopted unanimously at the GAAcongress in 2005.

The basic principles underpinning the operationof the DRA are that it is fast, flexible, fair and final.This is reflected in the rules under which the DRAoperates – the Disputes Resolution Code. The code isincorporated into the rules of the GAA (the OfficialGuide). The secretary can amend the code, thoughany such amendments must be approved by theCentral Council of the GAA. Arbitration isconducted under the provisions of the ArbitrationActs. The Official Guide is the contract governing therelationship between GAA members, and rule 154of that guide is its arbitration clause.

Breaking ballsWhere a member or unit of the association wishes torefer a matter to arbitration, it must submit a requestfor arbitration to the DRA secretary within sevendays of the date of its last appeal under the rules ofthe GAA. This time limit is to ensure that disputesare resolved with due expedition. In appropriate cases,the secretary has the power to extend time limits, butthe practice has been to use this power sparingly.Respondents to claims must deliver a reply withinseven days, though again, in appropriate cases, thistime limit can be reduced or extended.

The secretary then appoints a tribunal from thepanel of arbitrators. Each tribunal contains at leastone lawyer and one non-lawyer. This balance hasproved most useful in ensuring that all issues are fullyunderstood by the tribunals, even where cases arepresented by non-lawyers. The practice has been to

try to ensure that at least one member of each tribunalhas sat on a previous tribunal, to ensure a level ofconsistency in procedure. This consistency inprocedure is also helped by the presence of thesecretary at each hearing.

Tribunal hearings are conducted with a reasonabledegree of formality, though much less so than at fullcourt proceedings. One observer described it as beingmidway between a raucous GAA county boardmeeting and a solemn High Court hearing! Alldecisions are given in writing, though it is commonfor tribunals to give an oral decision at the conclusionof the hearing, followed by a written reasoneddecision. Hearings are not open to the public, but alldecisions are published on the DRA website(www.sportsdra.ie). This is done in the interest ofopenness and consistency. It also contributes to thedevelopment of a body of sports law jurisprudence.

Despite the flexibility of the procedures and thespeed at which tribunals can be assembled – often at a

Just Sport Ireland (JSI) was established as an independent organisationto resolve sporting disputes by solicitor Deirdre McCarthy and barristerErcus Stewart.

JSI aims to ensure the independent and cost-effective resolution ofsports disputes through the intermediaries of mediation and/orarbitration so that the disruption of sports seasonal patterns byfrequent High Court challenges will be reduced and, hopefully,eliminated.

Arbitration proceedings are conducted in private and remain privateunless there is an issue in the proceedings that becomes the subject ofa reference to the courts. JSI panel members have the ability to actquickly should the case in question require urgent resolution, similar to

the way in which the Court of Arbitration for Sport/Tribunal Arbitral duSport (CAS/TAS) arbitrators are empowered to act.

The JSI panel of mediators and arbitrators comprises solicitors,barristers and arbitrators familiar with/and or experienced in some fieldof sport. The Law Society of Ireland and the Bar Council are supportingthe involvement of qualified members who act as JSI arbitrators or asadvocates on a pro bono basis to represent indigent parties, be theyathletes or national governing bodies, who are without the resources toafford legal representation, where legal representation is necessary.

Incidents of doping, employment disputes or industrial relationsdisputes of any nature are not subject to appeal or amenable to reviewby JSI.

JUST SPORT IRELAND

“One observerdescribed [aDRA tribunalhearing] asbeing midwaybetween araucous GAAcounty boardmeeting and asolemn HighCourthearing!”

25www.lawsociety.ie


LOOK IT UPCases: • Barry and Rogers v Ginnity and others,

unreported, Circuit Court, 13 April 2005• Campus Oil v Minister for Industry and

Commerce, 1983 IR 82• Mark Vaughan and others v Mícheál Ó

Dubhshláine, DRA 1/2005

Legislation:• Arbitration Acts

Literature: • Disputes Resolution Code, section 1.1 • Official Guide 2007, rule 154• Sport and the Law (Dr N Cox and A Schuster,

Firstlaw, Dublin, 2004)

forum where disputes can be satisfactorily finalised ina setting that is more appropriate than the courts. Ashearings are conducted under the provisions of theArbitration Acts, decisions can really only be set asidewhere arbitrators have misconducted themselveswithin the meaning of section 38 of the Arbitration Act1954. Despite having dealt with 99 cases since itsinception, there has been no legal challenge to eitherthe structure of the DRA or to any decision made bya DRA tribunal.

It is undoubtedly the case that some senior GAAadministrators were dismayed to see certain decisionsmade by GAA committees set aside. Indeed, the veryfirst case dealt with by the DRA, Mark Vaughan andothers v Mícheál Ó Dubhshláine, involved a successfulchallenge to the interpretation of a rule in the GAA’sOfficial Guide (incidentally, this hearing took place atthe Law Society building in Blackhall Place).However, most GAA members, including their seniorofficials, recognise that the price of a fair andindependent sport arbitration system is that decisionsmade by respected and experienced officials may wellbe overturned.

The real test of a system such as that operated bythe DRA is its general acceptance and its efficacy. Onboth these counts, the DRA has been successful.

Other sporting bodies are becoming aware of thebenefits of sports arbitration. Some are, indeed, in theprocess of setting up a system similar to the DRA.The Federation of Irish Sports has recentlyestablished an arbitration system for its affiliates,called Just Sports Ireland (see panel). Ultimately,consideration might be given to the establishment of anational sports arbitration body to which sportingdisputes arising from all sports could be referred.

Liam Keane is partner in the Meath law firm Liam Keane& Partners, secretary of the DRA, and a member of theLaw Society’s Arbitration and Mediation Committee.

G

day’s notice in urgent cases – there are occasions whenan emergency application for interim relief is the onlypossible course of action. While these can be heard exparte, the practice has been to conduct them in amanner akin to an interlocutory hearing. This is onlypossible with the cooperation of all parties to aparticular dispute. Where it is impossible to assemblea tribunal, the secretary can hear applications forinterim relief pending a full hearing.

Take your pointHas the DRA worked? Because the DRA provides aforum that is considered to be more accessible thanthe courts, a greater number of disputes have beenreferred to arbitration than would heretofore havebeen dealt with in the courts. The only requirementsare the exhaustion of internal GAA remedies, thecompletion of a claim form, and the submission of adeposit of €1,000. In its first year of operation, theDRA was dealing with an average of one case perweek. This frequency has now reduced. During 2006,the DRA dealt with 37 requests for arbitration, whilethe reduction in the number of cases continuedthrough 2007, with 24 being dealt with in that year.To date this year, the average number of cases hascontinued to fall, to about one per month. This meansthat, since 2005, the average number of cases dealtwith per month has fallen from five to one. For some,the relatively large number of cases suggests that theexistence of the DRA encourages litigation – but forothers, it suggests that there is now an independent


LAW SOCIETY GAZETTE MAY 2008 JUDICIAL CONDUCT

It is now de rigueur for policymakers to precedeany radical reform measures with the referral ofthe matter to an Oireachtas committee, a panelof experts, or even external consultants. In thecase of introducing reforms in the area of judicial

conduct, it’s very definitely a case of ‘been there, seenthat, done that’.

This issue has been in the spotlight since 1996 –and even long before that. When speaking on theSecond Amendment of the Constitution Bill 1940, SenatorDouglas emphasised the absence of any detailedmechanism on how the removal of a judge, pursuantto article 35.4.1, was to take place: “Machinery to dealwith that is not in the Constitution, and I do not thinkit is anywhere. It seems that, if in the future it shouldbe necessary for the minister to move for the removalof a judge from office, there should be some specificmachinery by which a representative committee ofboth houses would immediately be called and thefacts, or alleged facts, put before them. It wouldobviously not be a party matter. Responsible membersof the house would be able to give a consideredjudgment, and parliament would exercise its functionsas between the executive and the judiciary.”

In 1980, when contributing to the second stagedebate on the Courts Bill 1980, Deputy Keating spokeat length on the need to make improvements onarticle 35.4.1. He spoke about the measures in place inJapan for dealing with the misconduct of judges andsaid: “There should be some way in which the publiccan ventilate displeasure and disquiet at events in thecourt.”

In more recent times, the terms of article 35.4.1were the subject of detailed consideration by theConstitution Review Group. In giving its prognosis ofthe article in 1996, the group stated that “the presentimpeachment procedures are unsatisfactory” and wenton to recommend that a process similar to the article12.10 impeachment process relating to the Presidentshould also be provided in respect of the judiciary.

Ethics: not a place near SussexThe question of judicial conduct and ethics was thesubject of scrutiny by the Working Group on aCourts Commission, whose 1998 Sixth Reportadvocated the establishment of a non-statutory “self-

...lest ye beIn the second of two articles on judicial conduct, Brian Hunt examines the

various proposals for reform that have been put forward by a range of

committees – but which have never been implemented – and argues that

there is a pressing need for immediate action

disciplining” body that would be “controlled by thejudiciary” and thus be comprised of existing andretired members of the judiciary and be headed up bythe Chief Justice. It was envisaged that that bodywould be responsible for preparing a code of ethics.

The matter was subsequently examined by the all-party Oireachtas Committee on the Constitution andwas reported on in its Fourth Progress Report on theCourts and the Judiciary, published in 1998. Thatreport restated the need for improved proceduressurrounding judicial conduct and recommended theestablishment of a judicial council whose functionwould be to review judicial conduct and, to that end,it proposed a number of constitutional changes. Thereport also recommended the establishment of acommittee to examine the report and prepare for itsimplementation. That committee took the form ofthe Committee on Judicial Conduct and Ethics,chaired by then Chief Justice Ronan Keane andwhich reported in January 2001.

The Keane Committee found that the existingprocedures in place to deal with judicial misconductare inadequate. It proposed the establishment of ajudicial council, comprised solely of judges. Itenvisaged that the council would have a number ofsubcommittees, one of which would be a judicialconduct and ethics committee that would receivecomplaints about the conduct of judges and wouldthen send the more serious complaints to a panel ofinquiry.

First stepsThe first piece of concrete action emerged in theform of the 22nd Amendment of the Constitution Bill2001, which would have formed the basis of areferendum. The bill proposed the insertion of a newarticle 35.4 of the Constitution, which would providethat a body (comprised of judges and laypeople) couldbe established to investigate the misbehaviour orincapacity of judges. The new provision would alsohave given effect to the Report of the ConstitutionReview Group by spelling out how a charge of “statedmisbehaviour or incapacity” was to be pursuedthrough the provision of a process similar to thearticle 12.10 presidential impeachment process.

The opposition parties strenuously opposed the

• Past and currentefforts at reform

• Oireachtascommittees,working groupsand consultants

• Need for a moreelaboratemechanism fordealing with theconduct of judges

MAIN POINTS

27www.lawsociety.ie

LAW SOCIETY GAZETTE MAY 2008JUDICIAL CONDUCT

bill, and that opposition was given as the reason forthe government’s subsequent abandonment of itsproposal to put the bill to the people. Informing thehouse of the withdrawal of the bill, the taoiseachstated: “The government considered that afundamental proposal touching on the separation ofpowers between the respective organs ofgovernment in the state should not be proceededwith in a situation in which there is suchfundamental disagreement as was seen in this Houseon Tuesday night.”

The issue of reform was raised again in 2002,when Deputy Brendan Howlin tabled a number of

amendments to the Courts and Court Officers Bill2001, which, if accepted, would have requiredmembers of the judiciary to abide by a code ofconduct. Deputy Howlin was prevented fromtabling additional amendments that sought theestablishment of a judicial ethics tribunal to inquireinto complaints about alleged misconduct by judges.

Current effortsSuccessive programmes for government andnumerous legislative programmes have promisedand signalled the imminence of legislation in thearea of judicial conduct. However, ever since the

judged in turn

29www.lawsociety.ie

LAW SOCIETY GAZETTE MAY 2008JUDICIAL CONDUCT

abandonment of the 22nd Amendment of theConstitution Bill 2001, no new legislation in thisarea has been initiated. In 2006, the minister forjustice circulated a draft of the Judicial Council Bill.It provided for the establishment of a judicialcouncil that would feature lay participation, a codeof ethics for judges, and a mechanism for theinvestigation of complaints of judicial misconduct.

In view of the persistent absence of thenecessary reform measures, in 2007 the IrishCouncil for Civil Liberties published its ownreport on the matter, Justice Matters: Independence,Accountability and the Irish Judiciary. The reportwas prepared following a process of engagementwith members of the judiciary and itrecommended the establishment of a judicialcouncil and ethics committee, as already advocatedin the Report of the Committee on Judicial Conductand Ethics.

In March 2007, it was reported that thegovernment’s plans to introduce a code of conductfor judges were to be deferred until after thegeneral election. One of the reasons given for thedeferral was, in part, due to a delay in the judiciarymaking a formal submission on the process. In aninterview in The Irish Times on 28 December 2007,Justice Minister Brian Lenihan revealed that hewas still awaiting a submission from the ChiefJustice, and the minister informed the Dáil on 31January 2008 that he had still not received a finalresponse to his department’s proposals from theChief Justice. According to the Department ofJustice website (as of 15 April 2008): “Work isproceeding on the development of a JudicialCouncil Bill. The intention is that the bill willestablish a judicial council representative of thejudiciary of all the courts. The council will havefunctions relating to judicial ethics and judicialinformation.”

Astonishing inactionBy virtue of the sparse nature of article 35.4.1, it is clear that the framers of the Constitutionintended that the legislature would, after thecoming into force of the Constitution, devise astatutory mechanism along with parliamentaryprocedures under which the stated misbehaviouror incapacity of a judge could be investigated andadjudicated upon. The fact that we haveexperienced a number of controversial and seriousincidents of judicial misconduct in recent years,followed only by inaction in terms of reform, isastonishing.

A number of controversies later, five expertreports and 12 years after the Constitution ReviewGroup identified the pressing need for theprovision of a more elaborate mechanism fordealing with the conduct of judges, we seem nocloser than ever to seeing the implementation ofthe constitutional and legislative reforms

necessary. We can only console ourselves with thethought that, should the reforms be preceded byyet another controversy, the Supreme Court inCurtin v Clerk of Dáil Éireann very helpfully shonea light into the dark and untouched corner that isarticle 35.4.1.

The need to introduce reforms that will providea mechanism for the investigation and handling ofincidents of judicial misconduct is not urgent in thesense that judicial misconduct is problematic orcommonplace in the day-to-day workings of ourcourts – it goes without saying that our judiciary ishonourable, fair-minded and courteous. However,the need to introduce reforms in this area is urgentin the sense that it is in the interests of the public,lawyers and even the judiciary itself that a fair,efficient, transparent and manageable code ofconduct and disciplinary mechanism is put in placefor dealing with those incidents that do occur. Theprice for not doing so is a very high one, as wasdemonstrated by the failure, through no fault of itsown, of the Oireachtas committee to conclude itswork on the conduct of Brian Curtin in a timelyand efficient manner.

Dr Brian Hunt is the head of public affairs at MasonHayes & Curran.

G

Cases: • Curtin v Clerk of Dáil Éireann [2006] 2 ILRM 99

Legislation:• 22nd Amendment of the Constitution Bill 2001• Bunreacht na hÉireann• Courts and Court Officers Bill 2001• Courts Bill 1980• Judicial Council Bill 2006• Second Amendment of the Constitution Bill

1940

Literature:• Committee on Judicial Conduct and Ethics,

Report of the Committee on Judicial Conductand Ethics (2001)

• Constitution Review Group, Report of theConstitution Review Group (1996)

• Irish Council for Civil Liberties, Justice Matters:Independence, Accountability and the IrishJudiciary (2007)

• Oireachtas Committee on the Constitution,Fourth Progress Report on the Courts and theJudiciary (1998)

• Working Group on a Courts Commission, SixthReport of the Working Group on a CourtsCommission (1998)

• www.justice.ie/en/JELR/Pages/Civil_law_reform_proposed_legislation

LOOK IT UP


LAW SOCIETY GAZETTE MAY 2008 MEDIATION

As a solicitor working in an adversarialand litigious environment for almost14 years, I began to wonder whetherthere really was a better way. Risinglegal costs, delays in court timetables,

complexities in PIAB/personal injury claims, and theinflexibility and formality surrounding litigation isoften reason enough for clients to be left with someresidual dissatisfaction as to the process itself. Notsurprisingly, they often blame their lawyers for this.

Undoubtedly there are other factors at play. Thehistoric lack of any really viable alternative tolitigation, and a legal system over which the solicitorhas no control, play a role. Delays in courttimetables due to overworked and under-resourcedcourt staff are also factors.

Perhaps, however, though difficult to admit, wehave to recognise that this dissatisfaction could alsobe fed by our own traditional prejudices and fears assolicitors. We therefore stick with what we knowand trust – regardless. Although clients look to us asthe experts to give them all the options, is itpossible, just maybe, that we are in fact partiallyresponsible for our own fate?

The ‘feel-good’ factor that we desperately cravefor our profession rarely exists in the process ofdispute resolution and is a challenge for even thebest and most committed of solicitors. While someclients are often delighted with the excellent serviceand advice provided, this sentiment is, more oftenthan not, influenced by a favourable outcome – butfor every ‘winning’ client there is, in turn, a ‘losing’client, who may not share those happy sentiments.The penalty of significant legal costs being borne bythe losing client plays no small part in theirresponse, especially after, perhaps, several years oflitigation.

A rose by any other nameWhen an opportunity arose for me to study andqualify as a mediator, I approached the subject withinterest, though not without a certain level ofscepticism (which, as it happens, was initially sharedby a lot of my colleagues on my training course –many of whom were solicitors also). Let’s just say

Ms Justice Maureen Harding Clark recently urged Pat Kenny and his

neighbours to consider mediation as a means of resolving their property

dispute. Caroline Murphy looks at the advantages of mediation in dealing

with contentious litigation

MEDIATIONthat we were ‘reserving our judgment’ until thecourse was completed. Nothing had prepared me,however, for the change that followed my trainingand subsequent qualification as a mediator, insofaras I recognised the potential held by mediation tobring back satisfaction into a process that, up tonow, has caused so much dissatisfaction – and tobring back that elusive ‘feel-good’ factor to thesolicitor/client relationship.

What is mediation?It is a voluntary and non-binding ‘withoutprejudice’ process, in which a specially trainedindependent person – the mediator – attempts tobring parties in dispute to a mutually acceptableand binding written agreement regarding the issuesin dispute, which can be enforced like a contract.All of the information revealed in a mediation isentirely confidential and ‘without prejudice’ and, ifno settlement is reached, the parties can stillexercise their legal rights.

Why do we need to know about it?The March Gazette (p21) reported on the firstmedical negligence case to be referred to mediationby Mr Justice Kevin Feeney, under section 15 of theCivil Liability and Courts Act 2004. Where one judgehas gone, others are likely to follow.

Part 6 of the Commercial Court Rules provides formediations in the Commercial Court, and Mr JusticePeter Kelly has indicated a desire to see claims go tomediation if it can assist in reaching a settlementwithout the need for a full trial. He has also indicateda willingness to apply costs against the party whounreasonably refuses to consent to the process ofmediation. A similar power exists under section 16(3)of the 2004 act in a personal injuries case.

Why consider mediation?• It is estimated that 95% of litigated cases settle

prior to trial, with a portion of the value of thesettlement being incurred for legal costs,

• Consumers are demanding more creative andefficient ways to resolve disputes,

• More business leaders, particularly those with an

31www.lawsociety.ie

LAW SOCIETY GAZETTE MAY 2008MEDIATION

MEDITATION

international presence, want to resolve disputeswithout the publicity of litigation,

• Mediation has proved hugely successful in the USand Britain to date – in the US, litigation ratesare at a 40-year low, and

• Almost 80% of disputes that go to mediation aresuccessful.

What’s involved?• The mediation takes place over the course of a

day, at a suitable (neutral) venue, where bothparties have their own separate meeting rooms,and one joint meeting room.

• The mediator, who is suitably competent to dealwith the subject matter of the dispute, is jointlychosen by the parties. He or she hears bothparties give their account of the dispute and –through the application of a variety of differenttechniques and private meetings with the parties –attempts to facilitate them in arriving at asolution to the dispute.

• The solicitors will then draft the writtensettlement agreement.

• The mediator’s costs are set relative to theestimated time it will take to resolve the dispute,

the complexity of the issues and the number ofparties involved.

• Bear in mind that a minor or a person with adisability cannot enter a mediation session forobvious legal reasons. The next friend could act,however, but would need formal legal advice inorder for the settlement to be ruled, so there willbe a certain amount of legal costs involved.

Why is it different from litigation?• It is the parties who arrive at the solution – not

the mediator, who does not ‘sell’ any particularsolution, unlike a judge or an arbitrator,

• Because the process is not ‘legal’, the mediator isnot adjudicating on the rights or wrongs of thedispute, and any solution – as long as the partiesare happy to accept it – can be used,

• While litigation limits the remedies that can beclaimed to purely legal ones, such as damages or acourt order, mediation, on the other hand, candeal with ‘non-legal’ remedies also, such aspreserving a commercial relationship ornegotiating a new one,

• The process takes place behind closed doors:unlike a traditional court case, where ‘evidence’ is

Mediation evangelists:coming to a town near you

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LAW SOCIETY GAZETTE MAY 2008MEDIATION

given and then goes ‘on the record’ – and issometimes reported in the media (as we have seenin the Charlton v Kenny case) – any informationprovided during mediation remains confidentialand no transcript is recorded.

Turkeys voting for Christmas? Well maybe not. Here’s the good bit – if you speakto any experienced mediator, any mediation body, orany client who has been through the mediationprocess, all will tell you that the solicitor’s role isvital, insofar as he/she guides the client through theprocess, explains the implications of any decisionsreached at a mediation, finalises the terms of anysettlement, and draws up the written settlementagreement.

Mediation could, if supported, significantly freeup the judiciary’s time, help clear backlogs and longwaiting lists, and enable the courts to deal withpriority cases. It could also free up a solicitor’s time,allowing him or her to deal with other clients, orsimply go out and find new ones!

A bird in the handThere is no reason why mediation cannot bemutually advantageous. I also believe that it’s timefor a fresh approach to dispute resolution. We areexperiencing a changing economy, globalisation iscreeping in, and clients are demanding more forless. Most do not want to go to court and deal withall that this involves. It is time to constructivelyaddress this fear, however, and remember that weare in the service of our clients.

When it comes to commercial clients,understanding their underlying needs and what drivestheir business is paramount in maintaining a profitablesolicitor/client relationship. This is especially so if,through the delivery of practical, commerciallyfocused and client-specific advice, the solicitor canhelp to continue to drive that business forward. Therequirement to reduce the overhead of legal costs, andthe need to stay out of court for certain disputes (notall!) is often paramount to commercial clients and topreserving corporate reputation. A successful

mediation instead of litigation, therefore, could wellexceed client expectations.

Similarly, many people who have suffered apersonal injury, and even those who are being suedin connection with it, often don’t want to go tocourt – they just want their compensation or, ifliable, want to pay that compensation as quickly andcheaply as possible.

By promoting mediation as a viable alternative tolitigation, the solicitor can deliver on many clientobjectives. His or her role in facilitating a successfuloutcome becomes vital, if not essential. Bringingabout client satisfaction without compromising feeincome should surely amount to that elusive ‘win-win’ situation. It could, in fact, increase income,because as we all know, a satisfied client is a repeatclient.

Caroline Murphy is a solicitor specialising in civillitigation. Previously a partner in private practice, she iscurrently the principal of Dawson Solicitors, an accreditedmediator and member of the Mediators’ Institute ofIreland).

G

• It can be set up very quickly, thereby allowing a much speedier form of disputeresolution, which keeps legal costs, management time costs and resourcesfocused.

• If the claim is settled quickly, those resources can be freed up more quickly andapplied elsewhere, allowing the client to get back to running the business moreswiftly.

• As it allows parties to come together in a non-threatening, non-legal environment,mediation avoids the stress, cost and delay involved in traditional litigation.

• It allows for a more flexible type of settlement, which might better meet thebusiness needs of the commercial client and the personal needs of the claimant.It can often be the quickest and most cost-effective method of putting an income-generating relationship back on track.

• It offers a discreet and confidential means by which to resolve sensitive disputes. • The costs can be set and agreed in advance, giving better financial certainty to

clients.

HOW DOES MEDIATION DELIVERCLIENT ADDED VALUE?


LAW SOCIETY GAZETTE MAY 2008 CRIMINAL LAW

There can hardly have been a developmentin the area of criminal forensicinvestigation that has quite captured thepublic imagination like the advent ofDNA profiling. High-profile cases,

whether at home or abroad, that resort to the use ofDNA evidence are seized upon by mediacommentators and members of the general public –almost to the exclusion of any other evidence in suchcases. Just as the Victorians hailed the advent offingerprinting as the dawn of a new and better crime-free world, now similar claims are being made insome quarters on behalf of DNA sampling.

Of one thing there can be no doubt: the persuasivevalue of DNA evidence taken from a crime scene – ifits integrity has been impeccably preserved – is veryhigh indeed, as very ably demonstrated by JohnDolan in the October 2007 issue of the Gazette.

The various branches of law enforcement in thecountry seem equally uniformly enthusiastic for theuse of DNA evidence in criminal trials. Thisenthusiasm is reflected in a new bill currently beingpromulgated by the Department of Justice and soonto go before the Dáil.

As far back as February 2003, the former attorneygeneral, Rory Brady SC, charged the Law ReformCommission with the task of reporting on theestablishment of a national DNA database and toconsider the “constitutional and human rights issuesthat may arise”. The commission subsequentlyreported in 2005, recommending the establishment ofsuch a national database, a framework for the takingof samples, and administration of the database.

In October 2007, the government brought forwardthe Criminal Justice (Forensic Evidence) Bill 2007

In October 2007, the government brought forward the Criminal Justice(Forensic Evidence) Bill 2007 – suggesting that the establishment of a DNA

database is on the cards. Patrick McGonagle uses his spectrometer to

analyse the bill’s strengths and weaknesses

Oracle of(general scheme). As we go to press, the proposals areat outline stage and the bill is yet to be brought in itsfinal form before the Dáil. However, the bill wouldseem to be destined to become law with somevariations, and it is timely at this stage to considersome of the significant changes for suspects and thenovel ideas that could follow in its wake.

The right profileAs envisaged, the legislation would repeal our currentForensic Evidence Act 1990 and provide for the settingup of a national DNA database. The database wouldstore profiles derived from samples – rather than thesamples themselves – and would have two functions:1) An identification division that would consist of

profiles for use in identifying missing andunidentified persons, and

2) A criminal investigation division.

The database would consist, firstly, of profiles takenfrom samples from suspects and convicted peopleand, secondly, what are called ‘evidential samples’.This article is concerned with the criminalinvestigation aspects of the database and lays asidediscussion of the identification division.

The bill proposes, at head 8, that samples may betaken from suspects in custody, and indeed fromconvicted people serving prison sentences, and thoseon the sex offenders’ register. These will be used tosupply a DNA profile for retention on the DNAdatabase. These samples are investigatory in theirnature and can be used for comparison with samplestaken from the particular crime scene underinvestigation or from other crime scenes if, forexample, it is believed the suspect in another matter

• Provision for theestablishment ofa national DNAdatabase

• Criminalinvestigationaspects of theDNA database

• ‘Reasonableforce’ and thetaking of samples

• Investigatory andevidentialsamples

MAIN POINTS

35www.lawsociety.ie

LAW SOCIETY GAZETTE MAY 2008CRIMINAL LAW

truth?

or an already convicted prisoner, might have beeninvolved in another crime scene.

Police on my backOf equal significance under this head is that a sampletaken from a suspect could not be treated as evidenceunless it were taken in connection with the specificoffence for which the person had been detained.However, the bill goes further and proposes aframework whereby such a sample could becomeevidence in a prosecution.

The sample that is intended to be used as evidence ina case is given separate treatment in the bill. The gardaíare empowered, at head 14, to require the taking of anevidential sample. That sample taken in the correctstatutory circumstances, can be used in a subsequenttrial as evidence, and presented to a jury as such.

What is of particular interest here is what happens if a suspect in a particular case who gave an investigatorysample refuses to give a further evidential sample. Inthat situation, the bill allows, at head 8G, for theprosecution to apply for leave of court to use theinvestigatory sample as an evidential sample, and to rely on it as evidence in the prosecution of anyparticular offence.

Very significantly, it is intended to empower thegardaí to use reasonable force to take a sample.Couple this with the fact that the suspect’s consentwill not be required for non-intimate samples, andthat a sample may be taken from a citizen againsthis or her will and by use of force, and it will beunderstood why closer analysis is merited.

Under the Forensic Evidence Act 1990, there wasno specific power to use reasonable force bestowedupon the Garda Síochána. During the life of the act,the view came to be formed that such power wasimplicit. This view was recognised by the Law ReformCommission in its report on the establishment of aDNA database and commented upon. Thecommission’s view was that, if there were to be sucha power of using reasonable force in the taking ofsamples, it should be explicit and its parametersshould be set out. The powers proposed in thecurrent heads of bill under head 8D would appear tobe an attempted response to this concern.

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37www.lawsociety.ie

LAW SOCIETY GAZETTE MAY 2008CRIMINAL LAW

What this means, then, as the bill currently stands,is that a suspect in custody could have a sample takenfrom him without his consent, with the application offorce – and the profile extracted from that sample, ifrelevant, could be used as evidence to convict him.Significant fines and terms of imprisonment areenvisaged for those who refuse to cooperate (€5,000,and three years respectively).

How this proposed situation squares with whatremains of the rule against self-incrimination in thisjurisdiction is open to comment. The view that thepower to use reasonable force was implicit under the1990 act was always open to question, given the rulethat criminal statutes should be strictly construed.The commission, in its comments on the subject,merely accepted the existence of the implicit powerand, “considered” that the powers should be explicitlyprescribed but, in terms of recommendations,confined itself to recommending “implementation ofsafeguards to ensure that the power to use reasonableforce is not arbitrarily exercised” (see LRC report,The Establishment of a DNA Database).

The widely adopted view that the proposed bill willsimply be recognising a de facto situation in makingexplicit the power to use excessive force will, nodoubt, inevitably short-circuit debate on the issue – aregrettable situation in my view.

I fought the lawThe other main area of concern is the taking ofsamples from people not in custody, such asvolunteers and those taking part in a wider massscreening. Where a person volunteers to give asample, that sample may be analysed both for thepurposes of general criminal investigations or inconnection with a particular offence (or to assist inthe identification of a missing person or unidentifiedperson). Mass screening is only to be undertaken aspart of an investigation for a particular offence underthe bill. However, unhelpfully, the bill as currentlydrafted does not say whether a sample taken under amass screening for a particular offence can be thenused for the investigation of other offences.

A volunteered sample will not be capable in thefirst instance of being presented as evidence in acriminal prosecution. However, a volunteered sample

can be transformed into an evidential sample if certaincircumstances are triggered. As currently proposed, aperson from whom a sample has been taken, whetherhe was a volunteer or part of a mass screening, whothen fails or refuses to give a second sample for thepurposes of providing an evidential sample admissiblein court, can have their original sample entered inevidence as part of a prosecution, once leave has beengranted by the court.

The significance of this from a citizen’s point ofview is obviously quite worrying. From a criminalinvestigation standpoint, the cooperation of volunteerson an individual basis and in relation to massscreening demands faith in the process. A clearunderstanding of its significance must be aprerequisite for the citizen.

Complete controlAbsent from the bill at the moment is an appropriatestatutory warning to be given to any participant, to theeffect that the sample that he is about to provide could– should he fail to cooperate further if required – beused as evidence in a potential prosecution againsthim. In the absence of such a statutory admonition,the courts, no doubt, will feel constrained to agreewith the first defendant who argues that he was notwarned of the consequences of his failure to give thesample, and that the evidence was illegally obtained.

Given the general consensus in the Department ofJustice, the Garda Siochána, and other arms of thecriminal prosecution process on the desirability ofsetting up and maintaining a database, itsestablishment would appear to be a foregoneconclusion. Powers of the type outlined above (insome shape or form) are likely to become the law ofthis country within the next 12 months.

Confidence in the integrity of the database, and inthe investigative procedure in the taking of samples, isof fundamental importance for the proposal to havecredibility. Public fascination with the science of DNAand its reputation as an oracle of guilt or truth isalmost symmetrically balanced in the public mind byOrwellian fears of the misuses of personal informationon its innocent citizens by the state.

The proposed use of physical force requires closeexamination. At a minimum, the commission’srecommendations that the safeguards should besimilar to those “suggested by the Irish Human RightsCommission”, and should be explicitly used “onlywhere it is strictly necessary to the extent required bythe performance of the garda duty”, should beimmediately addressed by the draftsman.

We might all spare a thought for colleagues whohave to advise in relation to the above proposal whenenacted. For solicitors attending upon clients ingarda stations, life is about to become significantlymore interesting.

Pat McGonagle is a partner in the Dublin law firmMcGonagle.

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Legislation: • Criminal Justice (Forensic Evidence) Bill 2007

(general scheme)• Forensic Evidence Act 1990

Literature: • ‘DNA under the microscope’, by John Dolan,

Law Society Gazette, October 2007, p24ff• Law Reform Commission, The Establishment of a

DNA Database (LRC 78-2005)

LOOK IT UP

“As the billcurrentlystands, asuspect incustody couldhave a sampletaken fromhim withouthis consent,with theapplication offorce – andthe profileextracted fromthat sample, ifrelevant, couldbe used asevidence toconvict him”


LAW SOCIETY GAZETTE MAY 2008 EMPLOYMENT LAW

Irecently encountered Monika and Lasma.Monika was employed as a cleaning/kitchenassistant in a nursing home, worked onaverage 42 hours per week, and was not paidabove the standard rate of €9 per hour for any

overtime worked. No specific mention of overtimewas made in her contract of employment; however,the contract did state that she would be required towork approximately 36 hours per week or such otherhours/days as directed by management.

Similarly, Lasma was employed in an industriallaunderette where she was, as per her contract ofemployment, required to work 39 hours per weekand any overtime as requested by management. She,like Monika, was again paid €9 per hour for allhours worked, regardless of what days of the weekshe worked or what hours she worked.

These two scenarios contrast starkly with theevolving growth of overtime litigation in the US, ashighlighted by Michael Orey in the September 2007issue of Business Week. The article detailed recent classactions that disgruntled workers and professionals aretaking against stockbroking, trucking and ITcompanies, claiming overtime – notwithstanding thefact that there was no requirement for overtime intheir contracts of employment. These class actionshave resulted in settlements, with employers payingout more than $1 billion in compensation.

Irish status quoIn Ireland, legislation on overtime is fragmented,disconnected and not all-inclusive, consisting of actsand statutory instruments dating back to the 1930s.

When is overtime not really overtime, and when do you get paid for it? Using a couple of

examples, Michael Prendergast assesses whether overtime is an outmoded concept or a

phoenix rising from the ashes

WORK, REST

such qualifying activities, section 43 of the actstipulates that overtime should be remunerated at arate 25% above the standard rate. The act is silenton overtime rates for activities not covered undersection 3.

The Industrial Relations Act 1946, while notspecifically addressing overtime, introduced theconcepts of JLCs (joint labour committees), whichare independent bodies made up of equal numbersof employers’ and workers’ representatives,appointed by the Labour Court and chaired by theMinister for Enterprise, Trade and Employment.Currently, there are 19 JLCs covering bottling,agriculture, catering, cleaning, hairdressing, hotels,groceries, clothing, millers, law clerks, security andcontract cleaning. Agreements on pay andconditions made by the JLCs are known asemployment regulation orders (EROs), and thereare18 such agreements currently in place.

The 1946 act, under section 25, also introducedthe concept of REAs (registered employmentagreements) where “the remuneration andconditions of employment of workers of any class”can be agreed between trade unions and employersand registered with the Register of EmploymentAgreements. There are currently 45 suchagreements, covering drapery, footwear and alliedtrades, construction, printing and electricalcontracting.

EROs and REAs can essentially therefore bedescribed as industry-specific collective agreementsthat bind all employers and employees within aspecific sector but, unfortunately, it is not all-

• Irish law onovertime andEuropean norms

• Employmentcontracts

• US trends

MAIN POINTS

The main acts of the Oireachtas dealing withovertime are the Conditions of Employment Act 1936and the Industrial Relations Act 1946; however,qualifications apply to both acts. The EmploymentAct applies only to activities outlined in section 3 ofthe act, such as manufacturing, construction,quarrying, shipbuilding, printing, public utilities,animal slaughtering and industrial cleaning. For

inclusive, and stockbrokers, truckers, Lasma, Monikaand many other workers are not covered by suchagreements.

European status quoThis contrasts greatly with the European norm,where legislation directly intervenes to defineovertime and set overtime rates. In 1919, the ILO

39www.lawsociety.ie

LAW SOCIETY GAZETTE MAY 2008EMPLOYMENT LAW

AND PLAYHours of Work Convention (No 1) introduced thestandard maximum working week as 48 hours, andthis was adopted across Europe with the 1993Directive 93/104/EC. This 48-hour week isinclusive of overtime. It is interesting to note that,in this regard, the 1936 Conditions of Employment Actdefined “weekly overtime” as hours worked after aworker had completed 48 hours, and was thus in

conflict with the directive. This brings into questionwhether the 25% overtime premium, alsomentioned in section 43(3) of the act, is any longerapplicable.

To do a normative comparison between variouscountries, a threshold is set above which overtimemust be paid. This threshold is normally below themaximum 48 hours. The hourly thresholds above

Factory girls,beavering awaywith their tools

41www.lawsociety.ie

LAW SOCIETY GAZETTE MAY 2008EMPLOYMENT LAW

One cannot broach the subject of overtime withoutencountering the contract of employment, which anemployer is now mandated to give to an employeewithin two months of his or her start date. Section3(i) of the Terms of Employment (Information) Act1994 states that, in the terms of employment, theemployer must outline “any terms and conditionsrelated to hours of work (including overtime)”. Nofurther mention of overtime was made within the1994 act, thus creating the lacuna of the definitionof overtime. Under the act, it was not necessary forovertime to be included in the contract, nor was itnecessary to define overtime, with the result thatthe default definition is that as laid down in the1936 act (that is, hours above 48 hours per week).This lacuna was somewhat filled following the Langev Schunemann decision, which directed that anemployer must inform an employee in writing if thereis a requirement on him or her to work overtime. Thedirective, however, fell short on a requirement tostipulate the terms and conditions associated withsuch overtime, and today all that is required in acontract of employment is for the employee to beinformed of a requirement for overtime.

which overtime is paid are set by legislation and areas follows: Austria (40), Belgium (38), Hungary (40),Finland (40), France (35), Greece (40), Italy (40),Luxemburg (40), Norway (40), Poland (40),Portugal (44), Spain (40), Slovakia (40), and Sweden(40). In Ireland, Britain, Denmark, the Netherlandsand Germany, the thresholds are determined bycollective or sector agreements, and in bothGermany and the Netherlands, they must be ratifiedby works councils. Denmark has a 37-hourthreshold determined by an industry sectoragreement, and no common national sub-48-hourthreshold exists in either Ireland or Britain, abovewhich overtime must be paid.

Furthermore, it is common practice that overtimepay rates are also subject to legislation in countrieswhere overtime thresholds are legislated for. InPortugal, overtime pay is at the rate of +50% for thefirst hour and +75% thereafter. For rest days andholidays, the rate is +100% above normal rates, plustime in lieu at 25% of the hours worked. In Greece,the rate is +50% for the 40th to 43rd hour and +150%thereafter, while in Italy, the legislated rate is +10%.

TrendsAs noted earlier, there is growing litigation in theUS over overtime, primarily due to the evolution ofthe workplace from an industrial/manufacturing,blue-collar environment to a services, white-collarone. Technology and economics are blurring thisdistinction, with always-on technology redefiningwhen the working day begins and ends, and theinadequacies in the federal Fair Labor Standard Actof 1938 are beginning to appear. Mark Thierman, aUS specialist in labour law, has highlighted twocircumventions of the act: (a) the misclassification ofemployees and (b) the off-the-clock work that is notcompensated for. Thierman contends that whenemployees of Starbuck’s are called store managers,or when employees check emails and the likeremotely or telecommute, they are still eligible forovertime. Settlement in these areas alone have costSiebel Systems $27.5m, IBM $65m, Wal-Mart$72.5m, Merrill Lynch $37m and Morgan Stanley$42.5m.

In Ireland, like the US, our labour laws arefounded on a vintage 1930s mindset, and they havenot been updated or reviewed to cater for thetechnological advances that have since occurred orthe subsequent changes in work practices that haveresulted. Subsequently, the overtime penumbra hasbecome less clear, with workers working longerhours, while not necessarily being compensated asthe legislation had intended.

Interestingly, a recent Labour Court decision(LRC18673) reinforced this US litigation trend whenit mandated that academic staff of the NationalCollege of Art and Design are entitled to Saturdayovertime, notwithstanding that they were not partyto any labour agreement.

Irish legislation in the area of overtime isfragmented and not all-inclusive, leaving employeesopen to working 48 hours per week without anyadditional premium compensation for the first ninehours of ‘overtime’ above the standard 39-hour week.In addition, misclassification of work and off-the-clockovertime can allow for the circumvention of therequirement to pay overtime. However, it wouldappear that some employees are becoming enlightenedto these circumventions. How they choose to addressit – through the industrial relations processes orthrough litigation – remains to be seen.

Michael Prendergast is a practising barrister on theWestern Circuit.

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EMPLOYMENTCONTRACTS

Cases: • Case C-350/99, Lange v Schunemann

Legislation:• Conditions of Employment Act 1936 • Directive 93/104/EC• Fair Labor Standard Act 1938 (USA)• Industrial Relations Act 1946• International Labour Organisation Hours of Work

Convention (No 1)• Terms of Employment (Information) Act 1994

LOOK IT UP

“In Ireland, ourlabour laws arefounded on avintage 1930smindset, andthey have notbeen updatedor reviewed tocater for thetechnologicaladvances thathave sinceoccurred or thesubsequentchanges inwork practicesthat haveresulted”


LAW SOCIETY GAZETTE MAY 2008 PENSIONS LAW

Last month’s article on age discrimination,‘No Country for Old Men’, concluded,following the ECJ’s Palacios judgment, that amember state’s competence to impose amandatory retirement age is subject to an

EU yardstick of objective justification – and that theexemption in the Employment Equality Act 1998 for thesetting of retirement ages is open to challenge. In thebest Hollywood tradition, the author provided acliffhanger ending in raising the question ofoccupational pension schemes.

There are two ways to look at well-funded retire-ment – as either the end of employment income or thestart of a pension. There is a continuing debate as towhere employment law ends and pension law starts.

You might think ‘retirement age’ was an obviousterm but, as with mortality statistics, the difficulty liesin moving from the general to the individual. Ideally,the employment ‘contractual retirement age’ andpension scheme ‘normal retirement age’ would be oneand the same. Often, the employment and pensiondocumentation do not agree. This can createdifficulties if a member wishes or is forced to leaveservice in line with the contract, but before thepension scheme normal retirement age, as she maysuffer early retirement penalties. Alternatively, amember may wish to remain in service until the datein the pension booklet – does this override hisemployment contract?

A number of British cases have had to considersuch situations. It’s difficult to draw direct analogies,not least because of Britain’s statutory provisionsconcerning retirement age, but the general approach(see Waite and Jayawardane) has been to resolve

End of the

AGEThere are two ways to look at well-funded retirement: the end of employment

income or the start of a pension. Jo Kenny and Philip Smith consider the

interaction between the employment and pension law definitions of retirement

• Definitions ofretirement

• Contractualretirement agehas no impact onbenefits undermost pensiontrusts

• Beware – ‘normalpensionable age’and ‘earlyretirement rule’have specific andtechnical meanings

MAIN POINTS

ambiguity by reference to the custom and practiceapplicable to the group of employees in question.

So what does ‘retirement age’ really mean? In theemployment approach, ‘contractual retirement age’means the date an employer can force an employeeto retire and the date the employee can elect toretire without seeking anyone’s consent. ‘Normalretirement age’ may, in practice, be another date onwhich an employee has an expectation (from customor practice) of retiring.

In the pension approach, ‘contractual retirementage’ has no significance for the rights under a pensionscheme. ‘Normal retirement age’ means the datespecified in a scheme for the purposes of Revenuelimits, Pensions Act preservation, and benefitcalculations. This is the date at which members willretire provided they haven’t already left service (orbeen permitted to retire late). ‘Normal pensionableage’ is a Pensions Act definition for preservation andfunding standard purposes. It means the normalretirement age under the scheme unless a membercan receive benefits before then without obtainingemployer/trustee consent, in which case such earlierdate is treated as the normal retirement age.

Having worked out the terminology, where do youturn for the law on pension-related discriminationdisputes?

Part VII of the Pensions ActThe curious nature of part VII of the Pensions Act1990 is evident even before reading its provisions. Itstitle, ‘Equal Pension Treatment in OccupationalBenefit Schemes’, provides the clue, referring both to‘pensions’ and ‘occupational benefits’. Part VII is

43www.lawsociety.ie

LAW SOCIETY GAZETTE MAY 2008PENSIONS LAW

broader in scope than any other part of the PensionsAct. While the rest of the act is concerned with‘occupational pension schemes’ (and the similar trustRACs and PRSAs), part VII covers any form of“benefit … in the form of pension”.

The Pensions Act provides (section 69) that everyoccupational benefit scheme must comply with theprinciple of equal pension treatment – that is, thescheme rules must not be discriminatory on thefamiliar grounds (including age discrimination).

Exempting retirement agesEC Directive 2000/78 provides that the fixing of agesfor entitlement to benefit under ‘occupational socialsecurity schemes’ shall not constitute discrimination

on the age ground, provided it does not discriminateon the gender ground. This is implemented into Irishlaw (sections 72(1)(c) and 72(4) of the Pensions Act) asone of a number of exemptions in respect of agediscrimination. There is no requirement for objectivejustification in relation to this exemption.

However, matters are less clear-cut if a memberceases to accrue pension benefit while still employed.For a number of reasons, but primarily Revenuerequirements, benefit accrual has traditionally stoppedat normal retirement age. With flexible working, thismay no longer be the case (see comments on theGreen Paper, p33). It would seem at odds with thePalacios approach to justification of a mandatoryretirement age if the effect of a pension scheme’s

‘Occupational benefits’ mean benefits (other than remuneration, towhich sections 19 and 29 of the Employment Equality Act 1998 apply)in the form of pensions, payable in case or in kind in respect of: a) Termination of service,b) Retirement, old age or death,c) Sickness or invalidity,d) Accidents, injuries or disease,e) Unemployment, orf) Expenses incurred in connection with children or other dependants –

and, in the case of a member who is an employee, includes any

other benefit corresponding to a benefit provided by virtue of theSocial Welfare Acts, the Maternity Protection Act 1994 or the HealthActs 1947 to 2001, payable as a consequence of his employment.

The definition, therefore, captures, among other things, incomereplacement arrangements, ex gratia pensions and maternity benefitschemes. Technical exclusions include benefits to the extent that theyare financed by a member’s voluntary contributions, one-memberschemes for the self-employed, and insurance contracts to which theemployer is not a party.

OCCUPATIONAL BENEFITS

Does having to fiddlefor your crock of goldcount as pension-related discrimination?


LAW SOCIETY GAZETTE MAY 2008 PENSIONS LAW

normal retirement age were to hinder a member frombuilding up reasonable pension provision.

The normal retirement age in itself is not subject tochallenge (unless its imposition gives rise to a claim ofgender discrimination). However, age-relatedconditions to the accrual of benefits/contributions aresubject to justification (section 72(e) of the PensionsAct). If, in future, employment and retirement overlap,a rule that terminates or diminishesaccrual/contributions after normal retirement age maybe held to be subject to a requirement for justification.

Dealing with disputesDiscrimination claims under part VII of the PensionsAct are referred to the Equality Tribunal and, onappeal, to the Labour Court. The Pensions Board hasjurisdiction to prosecute all breaches of the PensionsAct, including those under part VII. The mechanismis essentially that under the Employment Equality Act1998, but the machinery of that EEA has been

incorporated into the Pensions Act for these purposes(see ‘What you should know’ panel above for details).

Green Paper on pensionsThe recent Green Paper on pensions proposes: • An optional later retirement age,• Prohibiting mandatory retirement ages (at all or

below a given age), and • Increasing the flexibility of tax legislation to allow

employees to draw partial pensions while working.

The government proposes that retirement age needsto “be appropriate to make it possible to provide anadequate pension; to rise in a rational way as lifeexpectancy increases; and to enable labour marketflexibility permitting a phased move from full-timework to full-time retirement”.

The proposal for flexible working arrangementsenvisaged under the Green Paper would appear toresult in the employment/retirement overlap referredto above. Comments on the Green Paper are invitedto www.pensionsgreenpaper.ie, and consultation closeson 31 May 2008.

Heyday judgmentAs noted last month, any default retirement age inIreland will need to take into account the realities ofthe Irish labour market. The Heyday judgment shouldbe instructive, as it considers the imposition of ablanket retirement age that is not dependent on atrade-specific collective agreement.

For clients, the message is that, to minimiseexposure, they should ensure that retirement dates intheir employment and pension documentation arealigned and that the written word is not contradictedby custom and practice. They may also wish toconsider whether their late retirement policies arejustified.

Philip Smith is a partner in the pensions group at ArthurCox and a former chairman of the Association of PensionLawyers in Ireland. Jo Kenny is an associate in thepensions group at Arthur Cox.

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• Occupational benefit schemes may imposeretirement ages, as long as imposing a retirementage is not discrimination on the gender ground,

• Less favourable accrual of definedbenefits/contribution rates on the ground of agerequires justification,

• The government is considering proposals to prohibita mandatory retirement age of less than 68.

HOW TO FIND THE PROVISIONS GOVERNING DISPUTESCONCERNING OCCUPATIONAL BENEFIT SCHEMES The age exemptions for occupational benefit schemesare contained in s72 of the Pensions Act 1990.

The statutory provisions governing equal treatmentoccupational benefit schemes disputes are to be foundin sections 81D-J in part VII of the Pensions Act 1990.Section 81J(2) sets out which of the administrativeprovisions of the Employment Equality Act 1998 arerelevant. Section 81J(3) modifies those provisions (asset out in the fourth schedule to the Pensions Act).These modifications mainly alter cross-references topart VII of the Pensions Act and effect amendments tocater for the role that the Pensions Board has undersome of the relevant sections. Disputes are stillreferred primarily to the director of the Equality Tribunal(s81E of the Pensions Act).

WHAT YOU SHOULD KNOW

Cases:• Bloxham v Freshfields Bruckhaus Deringer

(2007, Pensions Law Reports 375)• HM Customs & Excise v Jayawardane (2003,

Pensions Law Reports 1)• Palacios de la Villa v Cortefiel Servicios SA,

C-411/05• R (on the application of the Incorporated

Trustees of the National Council for Ageing(Age Concern England) v Secretary of Statefor Business, Enterprise and RegulatoryReform, C-388/07 (‘Heyday’)

• Waite v GCHQ [1983] IRLR 341

Legislation:• Employment Equality Act 1998• Pensions Act 1990• Council Directive 2000/78/EC

LOOK IT UP

“You mightthink‘retirementage’ was anobvious termbut, as withmortalitystatistics, thedifficulty liesin moving fromthe general tothe individual”

Flatley reinvents hisroutine once again

45www.lawsociety.ie

LAW SOCIETY GAZETTE MAY 2008PEOPLE AND PLACES

Past president of the LawSociety, Maurice Curran,

has retired as chairman of theSolicitors’ Mutual DefenceFund. Maurice played a leadingrole in establishing the mutualindemnity fund back in 1987and has been closely involved inits running ever since. It wasfitting, then, that the LawSociety should host a dinner inhis honour on 3 April atBlackhall Place.

Law Society President JamesMacGuill praised the“significant achievements ofthose visionary colleagues, led

by Maurice, who had establishedthe mutual indemnity fund as analternative protection to itsmembers, and through them tothe public at large”.

The establishment of the fundin the late ’80s – for solicitorsand by solicitors – waswelcomed by practitionersthroughout the country. Notonly had it provided analternative to other insurers, butit had influenced the offers madeby insurance companies tosolicitors. “This achievedimmediate and lastingreductions and ensured a

healthier, more honest and morecompetitive marketplace,” saidMr MacGuill. “Moreimportantly,” he added, “theSolicitors’ Mutual Defence Fundhad underlined the concern forthe protection of the public andof the profession.”

Twenty-one years after itsestablishment, the fund is stillthe preferred method ofprotection for a majority of theprofession. It provides excellentcover at reasonable prices –particularly to certainvulnerable sections of themarket – and provides terms

and conditions that identify thereal concerns of the practisingprofession.

The president concluded: “Ata time where we are, once again,exposed to the commoditisationof every service, with the bottomline apparently being the onlyconsideration, I trust thatcolleagues will continue toreflect on the greatachievements of the Solicitors’Mutual Defence Fund indelivering a qualitativedifference to practitioners and,most importantly, to the publicat large.”

Maurice honoured for service to solicitors

At the dinner held in honour of outgoing SMDF chairman Maurice Curran on 3 April were (back, l to r): Ken Murphy, Patrick Dorgan, Maria McCarthy, Pat Howett, Jim Graham, Michael P Houlihan, Cyril Forbes, Philip Joyce, Gerard Doherty, John F Buckley, Mary Keane and John Shaw; (front, l to r):

Elma Lynch, Patrick Groarke, Margaret Moran, Thomas D Shaw, Maurice Curran, James MacGuill (president, Law Society of Ireland), Geraldine Clarke and Laurence K Shields

PIC: LEN

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ENPIC

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Eating your GreensGreen Party leader John Gormley was the guest of honour at a

dinner held at Blackhall Place on 14 April 2008. Those who attendedincluded (front, l to r): Ciaran Cuffe TD (Green Party), John Gormley,

James MacGuill (president of the Law Society) and John D Shaw (senior vice-president). (Back, l to r): Philip Joyce (past president of the LawSociety), Cllr Mark Deary (Green Party), Donald Binchy (junior vice-

president) and Ken Murphy (director general)

The Norsemen comethA group of Norwegian lawyers recently visited the Law Society on a

fact-finding mission on ad hoc government tribunals. The Norwegian lawcommission members include: Arild O Eidesen (president of the Court of

Appeal of North Norway), Marit Arnstad (former Minister of Oil andEnergy), Harald Stabell (defence attorney), Professor Aanund Hylland

(University of Oslo), Edith Irgins (inspector with the AccidentInvestigation Board), Brit Denstad (former permanent secretary of theMinistry of Government Administration) and Kristian Trygstad (lawyerwith the Parliamentary Ombudsman). They are seen here with LawSociety President James MacGuill and Director General Ken Murphy

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LAW SOCIETY GAZETTE MAY 2008 PEOPLE AND PLACES

The annual dinner of theLaw Society was held on

11 April 2008 in thePresidents’ Hall at BlackhallPlace, Dublin, writes MarkMcDermott. President of theLaw Society, James MacGuill,welcomed guests to the black-tie event, which included guestspeaker, the Minister forForeign Affairs Dermot AhernTD, the Minister forEducation and Science MaryHanafin TD, and selectmembers of the Opposition.Also present were advisors togovernment, senior civil

Annual Dinner at Blackhall Placeservants, members of thejudiciary, members of theDefence Forces, pastpresidents of the Law Society,Council members and seniorexecutives, senior executives ofthe Law Society of NorthernIreland, members of theGeneral Council of the Bar ofIreland, luminaries of the legalprofession and of various legalbodies, specially invitedmembers of the media andother guests.

Minister Ahern spoke aboutthe impending vote on theLisbon Treaty, underscoring

the significant benefits thatIreland had gained from EUmembership. He alsoreminded guests about thesignificant aid that Irelandcontinued to invest in ThirdWorld countries. He referredto the sterling work beingcarried out in the tsunami-hitregions of the Far East, inKenya, Darfur in Sudan,Liberia, Chad and Lebanon, toname a few. He said that hewould be happy to considercertain Law Society projects inSouth Africa for potential IrishAid funding in the future.

The Gazette camera was onhand to capture the night’sproceedings.

Olive Braiden and Michael Carrigan

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MEN

Mary Keane (deputy director general) and Sinéad Kearney(Chair of the Family Law Committee)

James MacGuill (Law Society President) and Pat Rabbitte TD

Frances Twomey (Council Member), Carol Ann Casey (Independent Adjudicator) andMairéad Ahern (Dundalk County Registrar)

47www.lawsociety.ie


FACES IN THE CROWD

John D Shaw (Senior Vice President), James MacGuill (Law Society President), Minister for Foreign Affairs Dermot Ahern TD, and Donald Binchy (Junior Vice President)

James MacGuill, Lisa MacGuill, and Murdo McLeod (Faculty of Advocates, Edinburgh)

Ken Murphy (director general), James MacGuill (Law Society President) and

Michael McDowell SC

Colm Murphy (Minister for RegionalDevelopment in the Northern IrelandAssembly), Arthur Morgan TD, Boyce

Shubotham, and James MacGuill (Law Society President)



Waterford Law Society does it in style

James MacGuill (president, LawSociety of Ireland) and Morette

Kinsella (president of theWaterford Law Society)

Frank Heffarnen, John Goff, Morette Kinsella, Peter Cusack and Judge Bill Hartnett

Fiona Gillen, Tom Murran, Gillian Mahony and Sinead Gillen

Gerrard O’Connor, Niall Rooney (Jim Halley at rear) and Ian FarrellDeirdre McSweeney, Fiona Grogan

The glad rags were dusteddown for Waterford Law

Society’s annual dinner, whichtook place on Friday 4 April2008 in the Athenaeum Hotel,writes Fiona Fitzgerald. Thedinner was hosted byPresident of the WaterfordLaw Society, Morette Kinsella.

This year, however, thefeasting was put on temporaryhold for a short questions-and-answers session. Memberssubmitted their questions inadvance and the result was adetailed agenda, which centredon representation of solicitorsin and by the Law Society, theregulation and discipline ofsolicitors, and the public’sperception of solicitors and theLaw Society generally.Fielding the questions werehonoured guests, Law SocietyPresident James MacGuill andDirector General KenMurphy. Waterford membersleft the session with a sense ofconfidence that the LawSociety is, indeed, committedto its constantly evolving roleof representation and thedefence of its members. It ishoped that a further sessioncan be tabled in Waterfordlater this year to conclude thelively discussion.

Following the businesssession, the assembled guestsfeasted on the AthenaeumHotel’s wonderful culinaryofferings, washed down with

Clinical Society), FrankTreacy (PRA), SuperintendentChris Delaney, OwenO’Mahony (President ofKilkenny Bar Association), andPaddy Derivan (Vice Presidentof Tipperary Bar Association).

An excellent turn-out fromcity and county solicitorsincluded John Goff Snr, IainFarrell, Helen Bowe O’Brien,Frank Heffernan, FionaFitzGerald, Finola Cronin,Danny and Edel Morrissey,John Purcell, DeirdreMcSweeney (our wonderfulorganiser), Niall King, Fionaand Sinead Gillen, RonanCurran, Bernadette Cahill,Derry O’Carroll, Tom Murran,Neil Breheny and AndreThompson.

champagne. Guests includedJudge Bill Harnett, JudgeElizabeth McGrath, County

Registrar Niall Rooney, DrAnn O’Connor (VicePresident of Waterford

49www.lawsociety.ie


(Back, l to r): Marie Dennehy, Neil Breheny, Deidre McSweeney, Owen O’Mahony, John O’Donovan, Pat Dervan, Gerard Halley, Della Power, Liz Dowling, Orla Kenny, Sonja Kennedy, Gerard O’Connor, Jim Halley, Claire Ryan, Liz McArdle and Niall Rooney. (Sixth row, l to r): Finola Cronan,Peter Cusack, Fiona Grogan, Sinead Gillen, Fiona Gillen and John PC Goff. (Fifth row, l to r): Frank Heffernan, Cyril Cawley, Hellen Bowe O’Brien,

Bernadette Cahill, Rosie O’Flynn and Danny Morrissey. (Fourth row, l to r): Derry O’Carroll, Niall King, Judge Bill Hartnett, Jill Murphy, Rosa Eivers,Ellen Hegarty, Leona McDonald and Frank Tracey (Land Registry). (Third row, l to r): Kieran Curran, Sarah Power, Gillian O’Mahony, Ian Farrell,

Bridget Hynes and John Purcell. (Second row, l to r): Michael McLaughlin, Paddy O’Riordan, Ronan Curran, Jill Walsh, Laura Farrelly, Judge ElizabethMcGrath, Ann O’Connor (clinical society) and Jill Walsh. (Front row, l to r): Ken Murphy (director general, Law Society), Morette Kinsella (president,

Waterford Law Society), James MacGuill (president, Law Society), Tom Murran, William Hackett, Fiona Fitzgerald and Edel Morrissey

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Ann O’Connor, Ken Murphy (director general of the Law Society) andMorette Kinsella

Rosie O’Flynn, Liz Dowling, Sonja Kennedy and Finola Cronin

Stan Power (proprietor), Michael McLaughlin, Gillian Mahony and Niall King

Sarah Power, Ian Cunningham and Andrew Thompson



One would have beenforgiven for wanting to

stay at home on Friday 29February 2008. What withsheets of rain pouring down sohard, driving to the SYSSpring Conference in Cavanfelt more like being in acarwash, writes Alina Jokinen.

Some 200 young solicitorsbravely wended their way tothe Slieve Russell Hotel forthe joint conference, organisedby the Society of YoungSolicitors (SYS) and theNorthern Ireland YoungSolicitors’ Association (YSA).

Some of our Northerncolleagues took the scenicroute, taking in a brief tour ofthe M50 on their five-hourbus journey from Belfast toBallyconnell. There werenever travellers so relieved tosee the bright, beckoninglights of the hotel. Theweekend had started!

A spring in their step at the Slieve Russell!Friday night was all about

catching up, as many had notseen friends and colleaguessince the previous similarengagement, and catch up theydid until the early hours,mingling with the remnants ofa wedding and a GAA ball.Luckily, there was plenty ofroom for all.

Unprecedented crowdSaturday morning started brightand early, with the impressivespeaker line-up drawing anunprecedented crowd.Brightwater RecruitmentSpecialists, loyal sponsors ofSYS conferences, took the firstslot, sharing with us the recenttrends in legal recruitment bothnorth and south of the border.Unfortunately, Mr JusticeTreacy had been forced tocancel at short notice, so LawSociety President JamesMacGuill took the floor

instead, in response to BenRigby’s reflections on beingpast president of the EuropeanYoung Bar Association.Addleshaw Goddard, thenewest sponsor of the SYS,finished the morning on alighter note, with anentertaining quiz.

The afternoon golfers gottheir fair share of rain andcold winds, the spa-goersdelighted in their choice tostay inside, but one way oranother, by 7pm all delegateslooked primed and ready foranother night of socialising.

Husky-voiced divaThanks to the pre-dinnerdrinks reception, a livelycrowd took their places forthe gala ball in the elegantballroom. Before dinner wasserved, the outgoingchairperson of the SYS,Catherine Allen, thanked the

many generous sponsors, andintroduced President of theNorthern Ireland Law SocietyDonald Eakin, who also spokea few words. Theentertainment for the nightwas provided by Spring Break,a favourite and frequentperformer at SYS conferences,after which DJ Glenn Tectormade sure the dance floornever emptied until the fulllights in the room wereturned on and the microphonewas removed from the graspof a lone, husky-voiced diva.Back at the hotel bar,delegates yearning for moremanaged to carry on for evenlonger.

A roaring success, the 2008joint spring conferencebetween the SYS and theNorthern Ireland YSA provedonce again that relationsbetween north and south arenow better than ever.

Niall Pelly, Deirdre St John, Michelle Quinn, Sinead Casey and Tristan Conway-Behan

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James MacGuill (president of the Law Society of Ireland), CatherineAllen (chairperson of the SYS), Donald Eakin (president of the Northern

Ireland Law Society) Fionnuala Finn, Fiona Neville and Melissa McCague

Ronan Savage, John Macklin, Kate Coughlan (all Brightwater), Catherine Allen, Donogh O’Donovan, Alina Jokinen, Micheál Grace (all SYS), Hilary Flynn, Alannah O’Reilly, Eileen Moloney (all Brightwater)

Julie Reid, Conor Houston, Claire Reid, Emma Hunt (all from the committee of the NIYSA) and Ronan Savage (Brightwater Recruitment)

Mary Hurley, Siobhan Kirrane, Susan Quigley, Eadaoin Ni Chaoimh,Marilyn Walsh and Katie Byrne



European Commission surveyAt the European Commission Survey dinner at Blackhall Place on 8 April 2008 were (l to r): Julia Bateman,

Mr Justice Michael Peart, Dara Robinson, Laura Surano, President of the Law Society James MacGuill,Madame Gisele Vernimmen-Van Tiggelen, Barry Donoghue, Kenneth Ruane and Derek Kenneally SC

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The Law Society’s annualconference in Budapest

from 26-30 March 2008 was awonderful success. Thewelcome reception in thehistoric Dominican Courtyardof the Hilton Hotel in theCastle District, sponsored byrecruitment firm Benson &Associates, broke the ice.

Friday’s business session,sponsored by the Solicitors’Mutual Defence Fund andJardine Lloyd ThompsonIreland Ltd, proved a majordraw (see page 14). This waschiefly due to the pullingpower of Minister for Justice,Equality and Law ReformBrian Lenihan TD, EUAmbassador to the US, JohnBruton, and Deputy DPPBarry Donoghue.

Budapest offered manydelights, chief among thembeing the night at the city’sstunning opera house, wherethe audience enjoyed aperformance of Bizet’s Carmen,with Attila Wendler in the roleof Don José and Erika Gál asCarmen.

No one missed out on theopportunity to tour the city bybus, which gave us theopportunity to view thestunning St Mátyás Church inthe Castle District, the RoyalPalace, the Chain Bridgelinking Buda and Pest, theoutstanding parliamentbuilding, the impressiveHeroes’ Square, art museums,the surreal Statue Park, thechilling House of Terrormuseum, and the GellértBaths, among so much more.

The social highlight of theweek was Friday night’s galadinner, generously sponsoredby Bank of Ireland. Here wepresent a number of photosfrom a night that hadeverything – fun, laughter,great food and wonderfulentertainment. See you nextyear in sunny Bilbao!

53www.lawsociety.ie

LAW SOCIETY GAZETTE MAY 2008STUDENT PAGE

student spotlight

Society team makes finalfour in Mumbai mootALaw Society team of

PPCI studentsrepresented Ireland at theDM Harish InternationalMoot Court Competition,held in Mumbai, India, from8-11 February 2008. This wasthe first time for the LawSociety to enter thiscompetition, beingrepresented by Carol Eager(William Fry), FionnualaHynes (Astons WealthManagement), Jerry Healyand Michelle Cunningham(Arthur Cox).

The competition involvedrepresenting a fictitiousnation, through a writtensubmission and oral advocacy,in a hypothetical disputebefore the International Courtof Justice. The focus was onhuman rights issues, includingeuthanasia, abortion, secularand economic rights. Judgesincluded members of thebench of the High Court inMumbai, legal practitionersand scholars. Outside of thecompetition, there were visitsto the state palaces and theHigh Court, as well as manymeetings with dignitaries.

From a field of over 26international participants, theLaw Society team was theonly European team to reachthe semi-finals. In thepreliminary rounds, teamsfrom Cambridge (last year’swinners), Westminster,Exeter, Southampton, Greece,Spain, Australia and Indiawere knocked out. The semi-finals were also contested byCornell Law School (USA),NALSAR University of Law(India) – and the eventualwinners, the University ofWashington St Louis (USA).

Irish trainee FionnualaHynes won the competition’sjoint award for ‘bestresearcher’, alongside theNALSAR’s Indian researcher.In addition, Carol Eager wasnamed fifth-best speaker inthe competition, with JerryHealy finishing in acommendable eighth position.

Given the success of ourmaiden trip to thecompetition, it is hoped thatfuture teams can emulate orbetter this year’s performance.Congratulations to allconcerned. G

Congratulating the winners of the recent Trainee Moot CourtCompetition at the Society’s Law School were (l to r): Ken Murphy(director general), Louise Rouse (Arthur Cox), James MacGuill (Law

Society president), TP Kennedy (director of education), the Mr JusticeNicholas Kearns (Supreme Court), the Mr Justice Michael Peart (HighCourt), winning team members Eleanor Dunne (Autumn 2007 PPCI,A&L Goodbody) and Maria O’Donnell (Cork 2007 PPCI, Wolfe & Co

Solicitors, Cork), James O’Sullivan (Chairman, Education Committee),Catherine Dolan (commercial manager, Thomson Roundhall, sponsors) and Mr Justice Joseph Finnegan (Supreme Court)

The PPC1 team and friends fly the flag for Ireland

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LAW SOCIETY GAZETTE MAY 2008 OBITUARY

The contribution to Irish lawof Professor Paul

O’Higgins (a former RegiusProfessor of Laws at TrinityCollege, Dublin) has beensignificant. As a law student inTrinity in the period 1954-1957, he found his lawteachers, for the most part,unaware of the vast literature ofIrish law. His teachers werealso unaware of the great Irishlawyers – practitioners andadvocates – of the past. Thelaw student, Paul O’Higgins, at the Trinity College of the time,stated that if he were preparing a paper for the DublinUniversity Law Society or drafting a minor piece of research,he found the basic tools of research, in particular adequatebibliographies of Irish law, to be almost wholly lacking. TrinityCollege was not unique.

These influences compelled Paul O’Higgins, as anundergraduate, to commence the mammoth task of preparing abibliography of Irish law, which is his permanent legacy toanyone interested in Irish law and legal proceedings.

Paul O’Higgins was born on 4 October 1927, spent his earlyyears in Ireland, and studied medicine at Trinity College, Dublin.His left-wing political views were not to the liking of the medicalestablishment and he parted with medicine. He then switched tolaw. He was called to the Irish and English bars in 1957, at theage of 30. His doctoral thesis in Cambridge University, underProfessor (later Sir) Robert Jennings, on political asylum wasregarded as outstanding, although it has never been published.Subsequently, O’Higgins lectured in law at Cambridge, with aparticular focus on human rights and labour law.

The part-time hobby of Prof O’Higgins was, in time, toyield an accumulation of bibliographical data about Irish law,which constitutes (to this day) building blocks for futuregenerations.

In 1966, Paul O’Higgins published his Bibliography ofPeriodical Literature Relating to Irish Law. At that time, in thegeneral absence of textbooks on Irish law, periodical literature(for example, articles in the Gazette of the Law Society ofIreland, which are frequently cited) was the main source onIrish law. Paul O’Higgins was primarily interested in therequirements of practitioners as well as the research scholar –

and these requirements werekept constantly in mind. In the1966 work, he made referenceto over 5,000 legal articlesculled from 130 periodicals onIrish law from all over theworld. The 1966 opus wasfollowed by two supplementalperiodicals in 1973 and 1983.

O’Higgins returned toIreland (where his heart lay) in1984 as the Regius Professor ofLaws in Trinity College, Dublin.

In 1986, O’Higginspublished a Bibliography of Irish Trials and other LegalProceedings, dedicated as a token of affection and respect toColum Gavan Duffy, solicitor, the librarian of the LawSociety of Ireland, whom he described as the doyen of Irishlaw librarians, and Willi Steiner, whom he described as thedoyen of British law librarians. O’Higgins’ thesis was that, ina small country such as Ireland, it was important not to losecontact with the scholars who had laboured before us in thepast, often to great effect, and whose work had been largelyforgotten and overlooked.

O’Higgins was elected to the Royal Irish Academy in 1986.Sadly, health and personal reasons compelled him to resignthe Trinity chair, and he returned to England in 1987. King’sCollege London subsequently offered him a chair, which heheld for five years until his retirement. Later, he became avice-master of Christ College, Cambridge, until 1995.

Prof O’Higgins was not only a graduate of Trinity Collegewith an LLB degree, but was a doctor of the university, amember of the Royal Irish Academy, the holder of a PhDdegree, and was awarded the degree of honorary doctor of lawsfrom Cambridge University. He was an honorary fellow ofTCD and Christ College, Cambridge.

Paul O’Higgins died (aged 80 years) on 13 March 2008 inCambridge. His principal interests as a law teacher were in civilliberties, human rights and social law (described as labour lawto most of us), of which he was a dedicated pioneer. He wrotemany works on these subjects. He left a legacy to each of us inthe form of his bibliographies of Irish law, which are uniqueand unrivalled.

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Professor Paul O’Higgins4 October 1927 – 13 March 2008

55www.lawsociety.ie

LAW SOCIETY GAZETTE MAY 2008BOOK REVIEW

AJ Davidson. Gill & Macmillan (2008), Hume Avenue, Park West, Dublin 12. ISBN: 978-0-71713-803-6. Price: €12.99.

Lawyers should declare allpossible conflicts of interest.

I must do so in relation to AJDavidson’s book, a racy andreadable account of what hedescribes as a “litany of libelhighs and lows”. Of the caseshighlighted, I acted in two –one for the defendant and theother for the plaintiff. I lostboth. Mostly lows for me then!

Davidson’s book is aimed atthe general reader. His book onnotorious Irish kidnappings wasalso published by Gill &Macmillan.

Davidson highlights 11 well-known defamation actionsinvolving Irish plaintiffs. Theserange from politicians (AlbertReynolds, Proinsias De Rossaand Beverly Cooper Flynn), tomembers of our own profession(Judge Joseph Mangan and theNorthern Irish solicitors’ firmof McCartan, Turkington &

Breen).Not all of the cases took

place in this jurisdiction. Thenow infamous award of onepenny to Albert Reynolds, inhis case against the Britishedition of The Sunday Times,was given by a jury in London.McCartan, Turkington &Breen sued The Times inNorthern Ireland. They hadrepresented a British soldier,Lee Clegg, who was convictedof murdering a young womanjoyrider. Their handling of thecase was criticised at a pressconference in Yorkshire, uponwhich The Times reported.They were awardedstg£145,000 by a Belfast jury,subsequently reduced on appealto stg£75,000. However, theHouse of Lords overturned theaward, as the report wasprivileged. The firm’sdisappointment was probably

tempered by previoussettlements with threenewspapers for an estimatedstg£500,000.

The fact that Gill &Macmillan have published abook on defamation for thegeneral reader reflects aninterest in such trials that is

beaten only by the humandrama of criminal cases. Thispublic interest is prompted lessby the minutiae of the law thanby the theatrical elementinvolved in defamation casesbefore a jury.

While focusing on thepersonal stories of the victorsand vanquished, Davidson isnot afraid to analyse theprocedural quirks of libel law,including the shameful inabilityof defendants to lodge withoutan admission of liability, a rulethat hinders settlement andacts, in my view, to thedetriment of both claimantsand defendants. Perhaps thispopular publication will helpbring about reform quickerthan the many legal articleswritten on the topic.

Michael Kealey is a partner inWilliam Fry.

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booksDefamed! Famous Irish Libel Trials

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Email: [email protected] eb: doylecourtreporters.com

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

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LAW SOCIETY GAZETTE MAY 2008 GADGETS

tech trends

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

You know the way you’recruising down the dual

carriageway, just a tad-and-a-half over the speed limit,flashing your high beams in anaggressive manner at any poorsod in a Micra who can’tcompete with the girth of yourmassive torque? And then somespotty boy racer in a modifiedpurple Corsa (with thoseridiculous neon lights under thedoor sills) tears up behind youand sits on your tail until yougive up and get back into thelane you should have been in tobegin with? Well now you cantake ’em down!

But not in an Arnie sort ofway. No siree, we’re talkingabout the sort of documentaryevidence that is one step awayfrom hearsay, in the wrong

And in the‘that’s a

good idea,must get oneof those’folder, wehave a fewmobile-phone-relatedproducts.First up arethe emergencychargers.

It’s good to talk, unless you’re on the run

direction. Witness the OregonScientific ‘action camera’(www.oregonscientific.co.uk,stg£99), designed to be worn onthe helmets of skiers andclimbers, but equally capable ofsitting on your shoulder andcapturing on film theoutrageous law-breaking of thatyoung fellow who was probablyonly boosting his first car stereoat the time you qualified.

But if you’reserious about portablecameras, you owe it toyourself to check out what Sonyclaims to be the world’s smallesthigh-definition digitalcamcorder, the snappilymonikered HDR-TG3E(www.sony.ie). Just a bit biggerthan your mobile, this weebeastie features HD 1920x1080recording on removablememory stick, a top-notch CarlZeiss lens with 10x optical

They’re all basically the same,varying only in the number ofAA batteries they use: twobatteries good, one battery, er, a bit less than that. They allinvolve batteries, a case, and avariety of connection leads,including adaptors to power upan iPod. Naturally, ourfavourite is the PowerChimpTravel Charger (www.ogormans.co.uk/powermonkey, stg£15).The emergency chargers fromwww.paramountzone.com

(stg£4.95) andwww.iwantoneofthose.com (about€10) are cheaperand will do thejob, but don’thave thatmonkeyish cachet.

And if you’re of the greenpersuasion and can’t be doingwith those nasty toxic batterythings, you could always try thewind-up multi-mobile charger(www.iwantoneofthose.com,about €9). Even if your local7/11, 9/11 or 24/7 is closed,you still have the power of theoul’ pedal and crank. Threeminutes winding will get you“up to” eight minutestalk time. Don’tforget to billfor all thatwrist activity.

Also worthy ofnote is the USBSIM-card reader,which enables you toback up your contacts,appointments, saved

Admissable evidence?

zoom, optical imagestabilisation, face detection forvideo and photo, and fourmegapixel still photo recordingplus “Dual Rec” whilerecording movies – whateverthat means; we only reproducethe press releases and pocketthe cash.

messages and all that jazz fromyour phone to your PC. We’resurprised we don’t have onealready. Indeed, we’re goingout for one now (availablefrom Argos at about €15). Justwatch out for that dodgy-looking boy racer in the purpleCorsa who’s getting a newsovereign ring. He’s mental, he is.

57www.lawsociety.ie

LAW SOCIETY GAZETTE MAY 2008GADGETS

Impress your friends and alienate your boss. Or vice versa(http://plato.stanford.edu/contents.html). Why do anarchists onlydrink herbal tea? Because all proper tea is theft. If you’ve everhad trouble telling your Kropotkin from your Bakunin or trieddesperately to understand how libertarians and anarchists seemso similar yet are so different, then this site is for you: theStanford University Encyclopaedia of Philosophy online.

Monkeys in the news (www.monkeydaynews.blogspot.com).Everyone loves monkeys, and this site will give you your daily fixof monkey-related happenings around the world, including “Manin trouble for feeding monkey chilli peppers”, “Boozy smokingchimp rescued from navy”, and “How to survive a monkeyattack”, which is especially important if you happen to be anelected city official in New Delhi.

It certainly won’t win anydesign awards – not with the

overhyped and overpricediPhone and the new SamsungArmani on the scene – but thesuper-slim Motorola Moto Q9h (right) might win out interms of functionality for thosesick of predictive and, indeed,non-predictive texting.Although what your averagestubby-fingered badger-baitermight make of its QWERTYkeyboard is anyone’s guess.

But for those of us with

opposable thumbs, this quad-band phone (pretty muchmeaning that you can use it allover the world) handles textmessaging and emails withaplomb. It also supports variousmusic files for your ultra-hiptoons and has an impressivecamera and video facility.

Altogether, quite a tastypackage, even if it does looklike something you took intoyour Leaving Cert maths exam.Check out the impressive specsat http://direct.motorola.com/

hellomoto/motoq9h, andit’s availablethrough both Meteorand Vodafone.

Another story entirely isthis dedicated web browser(left) that looks something likethose hand-held games unitsthat Nicole Kidman is alwaystrying to flog on TV toincrease your brainpower. Betshe wished she’d used onebefore she signed up for Farand Away...

Anyway, the Pocket Surfer 2promises an end to the patchyand slow web access you mightget on your ‘internet-enabled’phone. This thing isn’t a

phone, but promises to allowyou to wirelessly surf the webwith full graphics, Java supportand all the other techy stuffyou can find out about atwww.pocketsurfer.co.uk. Butwe’re still not sure if it issupported by any Irish networkprovider.

SITES FOR SORE EYES

Looks like a calculator, though...

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LAW SOCIETY GAZETTE MAY 2008


council reportLaw Society Council meeting, 29 February 2008

Vision of an electronic system of conveyancingThe Society’s eConveyancingTask Force, represented by thechairman, Dan O’Connor,Eamonn Keenan and GabrielBrennan, made a presentationto the Council of the taskforce’s ‘Vision of an ElectronicSystem of Conveyancing’(‘eVision’).

It was noted that the taskforce had been established in2005 with terms of referencethat required them, havingregard to the rapid progress intechnological development ofall systems that supported theconveyancing process, to ascer-tain and define all relevantareas where issues arise, todevelop a policy in relation toall such issues, to examine howthe current system might bet-ter embrace technology, and toliaise with the Land Registryand the Law ReformCommission to this end.

Dan O’Connor briefed theCouncil on developments inthe area of conveyancing since2003, both in terms of legisla-tion and policy. He noted that,following its 2006 report enti-tled eConveyancing: Modelling ofthe Irish Conveyancing System,the Law Reform Commissionhad commenced a process ofengagement with other stake-holders, including the financialinstitutions, the Property

Registration Authority, theRevenue Commissioners, thelocal authorities, the govern-ment, estate agents, lawsearchers, architects and sur-veyors, builders and propertydevelopers, the OrdnanceSurvey and the Consumers’Association. As part of thisprocess, the Law Society hadbeen asked to draft its visionfor e-conveyancing in Ireland.

Eamonn Keenan presentedthe principles underpinningthe task force’s ‘eVision’.Gabriel Brennan then present-ed a series of diagrams thatsummarised how the new pro-posed system would operate inpractice, both in circumstanceswhere there was a simple e-contract and in circumstanceswhere there was both an e-con-tract and an e-deed. Followinga series of questions fromCouncil members, the Councilformally endorsed the taskforce’s eVision, and it wasagreed that the proposal shouldbe formally launched at anevent to which the Minister forJustice, Equality and LawReform would be invited.

Report on meeting with theBar CouncilThe president reported on ameeting of the JointConsultative Committee of theLaw Society and the BarCouncil, held on 21 February.

In relation to the Bar Councilruling on fee estimates, it hadbeen agreed that both the BarCouncil and the Law Societywould establish small workinggroups to consider issues aris-ing from the ruling.

Criminal Justice (MoneyLaundering) Bill 2008The president reported that thedraft scheme of the CriminalJustice (Money Laundering) Bill2008 had been publishedrecently and the Society intend-ed to engage in a consultationprocess with the Department ofJustice, Equality and LawReform on the content of thedraft scheme.

Civil Law (MiscellaneousProvisions) Bill 2006The director general reportedthat the report stage of the billhad been taken in the Dáil onthe previous Wednesday.However, the bill was stillcapable of amendment in theSeanad.

Education – in-office training periodThe chairman of the EducationCommittee, James O’Sullivan,reported that the committeewas engaged in an examinationof the in-office training periodand, in particular, the require-ment of training solicitors toprovide trainees with four sep-

arate blocks of training. Thisstructure had been in placesince 1978, and certain difficul-ties were experienced in com-plying with the requirement toprovide experience in all fourblocks. The committee wouldreview the matter further andfeedback would be sought fromtraining solicitors.

CCBEMichael Irvine reported brieflyon the Akzo Nobel case in rela-tion to privilege for in-housecounsel and also on the con-veyancing study conducted bythe EU Commission. He alsonoted that the BelgianConstitutional Court had con-firmed the decision of theEuropean Court of Justice inrelation to money launderingand the priority in law forsolicitors’ advices and thatthere was a discussion beingconducted within the CCBEabout multi-jurisdictionalpractices. The president notedthat it was the policy of theSociety to support the conceptof privilege for in-house coun-sel. An unhelpful decision hadbeen handed down in the AkzoNobel case, and it was proposedthat the Society would write tothe Attorney General indicat-ing its support for the interven-tion announced by the Irishgovernment in relation to thematter. G

Are you gettingyour e-zine?

The Law Society’s e-zine is the legalnewsletter of the solicitors’ profession. Thee-zine issues once every two months andbrings news and information directly to yourcomputer screen in a brief and easily-digestible manner. If you’re not receivingthe e-zine, or have opted out previouslyand would like to start receiving it again,

you can sign up by visiting the members’section on the Law Society’s website atwww.lawsociety.ie. Click on the ‘New e-zinefor members’ section in the left-hand menubar and follow the instructions. You willneed your solicitor’s number, which can beobtained by emailing the recordsdepartment at: [email protected].

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59www.lawsociety.ie

The Cour ts Service hasadvised that the waiting

time for a hearing date for certi-fied non-jury cases has recentlybeen reduced from a period inexcess of three years to lessthan three months.

Non-jury and chancery caseshave been fixed for hearing at anumber of courthouses outsideDublin, thereby clearing signifi-cant backlogs in lists. To date,cases have been listed at Bruff,Castlebar, Cork, Dundalk,Ennis, Galway, Limerick,Tullamore and Tralee. Thisapproach has allowed the listingof an additional 140 non-jurycases in Hilary Term 2008.

At the last non-jury list to fix

dates, all remaining cases inthe list were assigned hearingdates before the summer vaca-tion. In all, 135 certified non-jury actions were listed for hear-ing at Castlebar, Cork, Dundalk,Trim and Tullamore for bothEaster and Trinity terms 2008.Practitioners wishing to ascer-tain the status of a case cancheck it online using the HighCour t search facility onwww.courts.ie.

With additional judicialresources and the resultantincrease in the throughput ofcases, pressure for courtroomspace in Dublin has increasedsignificantly. The President ofthe High Court has directed that

on any day where there is ashor tage of cour trooms inDublin, cases will be assignedto venues close to Dublin forhearing. It is also very likelythat, in the near future, non-jurymiscellaneous matters will belisted for hearing at venues out-side Dublin. This ensures thatcases get dates quicker, thatHigh Court business is spreadacross the country, and thatcourthouses are fully utilised.

Queries in respect of non-jury cases assigned to provin-cial venues should be directedto Paul Gunning, Registrar,Courts Service, tel: 01 8886691.

Judicial review cases are cur-

rently taking approximately 18months to get a hearing datefrom the time they are trans-ferred into the list to fix dates.This waiting period does notapply to cases to which priorityis given or to cases that can beheard within a period of twohours. Short cases are listedfor hearing on Mondays and areheard within a few weeks of thecourt being notified that thecase is ready for hearing.

Queries in respect of the non-jury or judicial review list to fixdates should be directed toAngela Denning, Registrar,Courts Service, tel: 01 8886454.

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JUDICIAL REVIEW AND NON-JURY LISTS – WAITING TIMES

practice notes

The High CourtIn the matter of James PMurphy, a solicitor of Doire,Ballygaddy Road, Tuam, CoGalway, and in the matter of the

Solicitors Acts 1954–2002. Take notice that, by order of theHigh Court made on Monday 7April 2008, it was ordered that

James P Murphy, solicitor, ofDoire, Ballygaddy Road, Tuam,Co Galway, be suspended frompractice as a solicitor until fur-

ther order of the court. John Elliott, Registrar of Solicitors,

Law Society of Ireland, 21 April 2008

NOTICE

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legislation update

11 March – 15 April 2008Details of all bills, acts andstatutory instruments since1997 are on the library cata-logue – www.lawsociety.ie(members’ and students’areas) – with updated infor-mation on the current stagea bill has reached and thecommencement date(s) ofeach act.

ACTS PASSEDFinance Act 2008Number: 3/2008Contents note: Provides forthe imposition, repeal, remis-sion, alteration and regulationof taxation, of stamp duties andof duties relating to excise, andotherwise makes further provi-sion in connection withfinance, including the regula-tion of customs.Commencement date: 1/1/2008 for part 1, except whereotherwise expressly provided inpart 1 (per section 144(8) of theact); 13/3/2008 for other partsof the act, except where other-wise expressly provided orwhere provisions of the act willcome into force on the makingof commencement orders – seeact for details

Motor Vehicle (Duties andLicences) Act 2008Number: 5/2008Contents note: Gives effect toincreases in motor taxationwith effect from 1/2/2008 andprovides for a new motor-taxsystem based on CO2 emissionsfor new and pre-ownedimported cars registered on orafter 1/7/2008. Amends andextends the Finance (ExciseDuties) (Vehicles) Act 1952 andthe Finance (No 2) Act 1992,and provides for related mat-ters.Commencement date: 26/3/2008

Passports Act 2008Number: 4/2008Contents note: Provides forthe issue by the Minister forForeign Affairs, on the author-ity of the government, of pass-ports to Irish citizens; providesfor the processing of personaldata, including biometric data,for the issue of passports; pro-vides for the cancellation andsurrender of passports in cer-tain circumstances, for offencesrelating to passports and forthe issue of emergency travelcertificates in certain circum-stances. Amends the Diplomaticand Consular Officers (Provisionof Services) Act 1993 and pro-vides for related matters.Commencement date: Com-mencement order(s) to bemade (per section 1(2) of theact)

Social Welfare and PensionsAct 2008Number: 2/2008Contents note: Provides forthe implementation of certainsocial welfare measuresannounced in the 2008 budget.Provides for increases in childbenefit, early childcare supple-ment and the respite caregrant. Also provides for anincrease in income limit for theone-parent family payment andfor change in the assessment ofincome for the purposes ofqualification for the payment.Provides for the operation ofCouncil Regulation 259/68 toallow officials employed in anEC institution to transfer theactuarial value of their pensionrights from the SocialInsurance Fund into thePension Scheme of theEuropean CommunitiesInstitution (PSEC) and viceversa. Makes the necessary leg-islative changes to the Pensions

Act 1990 to allow for theimplementation of the recom-mendations in the Report of thePensions Board to the Minister forSocial and Family Affairs onTrusteeship. Provides for a num-ber of miscellaneous amend-ments to the Social WelfareConsolidation Act 2005, thePensions Act 1990, the FamilyLaw Act 1995 and the FamilyLaw (Divorce) Act 1996, andprovides for related matters.Commencement date: 1/4/2008 for section 3, 8/5/2008for section 8, 5/6/2008 for sec-tion 9 and 1/6/2005 for section10 (per section 1(5) and therespective sections of the act);commencement orders to bemade for sections 5, 12 to 17,18(2) to (4) and 27 to 31 (persection 1(6) of the act);7/3/2008 for all other sections(per section 1(4) of the act);14/4/2008 for sections 29, 30and 31 (per SI 84/2008)

SELECTED STATUTORYINSTRUMENTSAsset Covered Securities(Amendment) Act 2007(Commencement) (Section30) Order 2008Number: SI 90/2008Contents note: Appoints6/5/2008 as the commence-ment date for section 30 of theact. Section 30 relates to theregime for designated com-mercial mortgage credit insti-tutions.

Energy (MiscellaneousProvisions) Act 2006(Commencement of CertainProvisions) Order 2008Number: SI 68/2008Contents note: Appoints12/3/2008 as the commence-ment date for sections 4, 11and 12 of the Energy(Miscellaneous Provisions) Act

2006 and for section 13 of theact, except insofar as section 13relates to subsections (3) and(4) of section 9G (inserted bythe said section 13) of theElectricity Regulation Act 1999.The sections being com-menced assign responsibilityfor the regulation of electricalcontractors, gas installers andgas undertakings with respectto safety and related matters tothe Commission for EnergyRegulation.

European Communities(Public Limited Companies –Directive 2006/68/EC)Regulations 2008Number: SI 89/2008Contents note: Amend theCompanies Act 1963 and theCompanies Act 1990 to giveeffect to certain provisions ofDirective 2006/68/EC, whichamended Council Directive77/91/EEC as regards the for-mation of public limited liabil-ity companies and the mainte-nance and alteration of theircapital. The provisions imple-mented by these regulationsdeal with creditor protection incases of capital reduction andpurchase by a company of itsown shares.Commencement date: 15/4/2008

European Communities(Railway Safety) Regulations2008Number: SI 61/2008Contents note: Amend theRailway Safety Act 2005 to giveeffect to Directive 2004/49/ECon safety on the community’srailways. Make minor amend-ments to the European Com-munities (Licensing of RailwayUndertakings) Regulations 2003(SI 537/2003) and the EuropeanCommunities (Allocation of

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Railway Infrastructure Capacityand the Levying of Charges for theuse of Railway Infrastructure andSafety Certification) Regulations2004 (SI 643/2004).Commencement date: 6/3/2008

European Communities(Road Transport) (WorkingConditions and Road Safety)Regulations 2008Number: SI 62/2008Contents note: Prescribe pro-cedures to facilitate the imple-mentation of: (1) CouncilRegulation (EEC) 3821/85 onrecording equipment in roadtransport, as amended byCouncil Regulation (EC)2135/98 and CommissionRegulation (EC) 1360/2002and Council Regulation (EC)

561/2006; and (2) CouncilRegulation (EC) 561/2006 onthe harmonisation of certainsocial legislation relating toroad transport, and amendingCouncil Regulations (EEC)3821/85 and (EC) 2135/98 and repealing Council Regu-lation (EEC) 3820/85. Revokethe European Communities (RoadTransport) Regulations 2006 (SI88/2006) and the EuropeanCommunities (Road Transport)(Recording Equipment) Regula-tions 2006 (SI 89/2006). Commencement date: 6/3/2008

European Communities(Settlement Finality)Regulations 2008Number: SI 88/2008Contents note: Transpose the

mandatory provisions ofDirective 98/26/EC on settle-ment finality in payment andsecurities settlement systems.The primary aim of the direc-tive is to reduce the legal riskassociated with participation insettlement systems, in particu-lar as regards the legality ofnetting agreements and theenforceability of collateralsecurity. The directive’s provi-sions apply to any EuropeanCommunity payment or secu-rities settlements system oper-ating in any currency or the euro, any EuropeanCommunity institution thatparticipates in such a system,collateral security provided inconnection with participationin such a system, and collateralsecurity provided in connec-

tion with monetary policyoperations.Commencement date: 9/4/2008

Health Act 2007(Commencement) Order2008Number: SI 57/2008Contents note: Appoints29/2/2008 as the commence-ment date for section 8(1)(c)and associated provisions of theHealth Act 2007. See SI for fulldetails. Section 8(1)(c) of theact makes provision for theHealth Information andQuality Authority to monitorcompliance with standards itsets on safety and quality ofservices.

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News from Ireland’s online legal awareness serviceCompiled by Bart Daly for FirstLaw

firstlaw update

ComplianceInterlocutory relief requiring bankto resume compliance with man-date – application imminent inCommercial Court – whether nec-essary for court to intervene at thisstage.This was an application for aninterlocutory order requiringthe defendant to, in effect,resume compliance with amandate given by two compa-nies to pay out on cheques andaccept other orders for pay-ment drawn on the account ofthese two companies.

Hedigan J adjourned thematter for mention, holdingthat the making of an inter-locutory order at a stage wherethere was an application immi-nent in the Commercial Courtmight have the opposite effectto that of helping to resolve thevery difficult situation in whichthe companies and the familyfound themselves.Sherlock (plaintiff) v UlsterBank Ireland Ltd (defendant),High Court, Mr JusticeHedigan, 13/7/2007, 2007 no5072 P [FL14485]

Practice and procedureRape – sentencing principles –suspension of sentence – aims –Sex Offenders Act 2001.A jury convicted the accused ofone count of rape of a student.The accused had not given evi-dence and had claimed instatements that the events hadbeen consensual. He had com-mitted the offence when hewas 18 years of age and hadhad no previous convictions.The victim had suffered seri-

ous adverse effects from theincident.

Charleton J held that thenature of the attack and itseffect on the victim were worsethan usual and required a sen-tence at the upper end of thenormal range. The sentencewould be imposed under theSex Offenders Act 2001. Sevenyears would be imposed, withthe last 18 months being sus-pended on an undertaking of abond to keep the peace and totake a course of counselling.The convicted defendantwould be registered as a sexoffender. People (DPP) (prosecutor) vDrought (accused), HighCourt, Mr Justice Charleton,4/5/2007, bill no CC 50/2006 [FL14498]

AsylumDelay – extension of time – perse-cution in civil war – credibility –whether breach of fair proceduresor lack of jurisdiction – IllegalImmigrants (Trafficking) Act2000, s5.The applicant applied for leaveto apply for judicial review, con-tending, among other things,that the tribunal applied theincorrect test of persecution in acivil war and erred in findingthe applicant not credible.

Hedigan J refused the appli-cant leave, holding that themotion was issued well outsidethe time limit and there wereno good and substantial rea-sons to extend the time. Therewas no breach of fair proce-dures or lack of jurisdiction.B(J) (applicant) v Minister forJustice, Equality and LawReform (respondent), High

Court, Mr Justice Hedigan,18/5/2007, 2004 no 1016 JR[FL14484]

AsylumDelay – whether good or sufficientreasons to extend time – whetherminister complied with obliga-tions – Illegal Immigrants(Trafficking) Act 2000, s5(2).This was an application forleave to apply for judicialreview for an order of certiorariquashing the decision of thesecond respondent to refusethe applicant refugee status andalso for an order of certiorariquashing the decision of thefirst respondent to issue adeportation order in respect ofthe applicant.

McGovern J refused therelief sought, holding that theapplicant was out of time andthere were no good or sufficientreasons for extending the periodto enable the applicant chal-lenge the decision of the secondrespondent. The first respon-dent complied with his obliga-tions under the legislation andthere was no basis for quashingthe deportation order.I(H) v Minister for Justice,Equality and Law Reform(respondent), High Court, MrJustice McGovern, 19/6/2007, 2005 no 1035 JR[FL14500]

CopyrightAssessment of damages – innocentinfringer defence – discovery ofinfringement – quantification ofdamages – convoyed goods princi-ple – damage to business generally– aggravated and exemplarydamages – Copyright and

Related Rights Act 2000, s128.The plaintiff claimed that itscopyright in an electronicpoint-of-sale software productknown as ‘iTouch’ had beeninfringed by the defendants.Liability was conceded and theplaintiff elected for an assess-ment of damages rather thanan account of profits.

Kelly J held that there wouldbe judgment for the plaintiffagainst the first and seconddefendants in the total sum of€214,000.Retail Systems Technology Ltd(plaintiff) v McGuire (defen-dant), High Court, MrJustice Kelly, 2/2/2007, 2005no 2599 P [FL14486]

Social and affordable housingLetters of compliance – legitimateexpectation – limits of expectation– Planning and DevelopmentAct 2000, part V – Planningand Development (Amend-ment) Act 2002.These proceedings concernedthe legal entitlement, if any, ofthe defendant to alter the pre-viously existing practice of issu-ing what had come to be called‘letters of compliance’ in rela-tion to the payment of financialcontributions required under aplanning permission. Theissues concerning certificates ofcompliance were inextricablylinked to the statutory regimein respect of social and afford-able housing.

Clarke J held that he wouldmake a declaration to the effectthat the defendant was obligedto make available certificates ofcompliance in respect of anyunit within the development

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unless the defendant had rea-sonable grounds for believingthat the grant of such a certifi-cate would facilitate a sale thatwould deprive the defendant ofthe opportunity to obtain thebenefit of obtaining units inthe development under part V.Glenkerrin Homes (plaintiff)v Dun Laoghaire RathdownCounty Council (defendant),High Court, Mr JusticeClarke, 26/4/2007, 2006 no5574 P [FL14499]

DelayWant of prosecution – interest ofjustice – whether plaintiffs justi-fied in delaying proceedings –whether balance of justice infavour or against matter proceed-ing – whether proceedings shouldbe dismissed.The plaintiffs brought proceed-ings alleging corruption, mis-feasance in public office, fraud,and deceit against the statedefendants in connection withthe 1995 decision to award amobile phone licence to theother defendants in preferenceto the plaintiffs’ application.The state defendants brought amotion seeking to have theplaintiffs’ claims against themdismissed pursuant to the

inherent jurisdiction of thecourt on the grounds of delayand want of prosecution and inthe interest of justice. Theplaintiffs submitted, amongother things, as a reason for thedelay, the fact that they wereawaiting the outcome of theinquiries in the MoriartyTribunal before proceedingwith the High Court action.

Mr Justice Gilligan dis-missed the plaintiffs’ claims asagainst the state defendants,holding (1) that the inquisitori-al inquiry before the MoriartyTribunal could have no bearingon the outcome of the withinproceedings in the High Courtand failed to excuse the delay;(2) that the factors to be con-sidered in exercising the inher-ent jurisdiction of the court todismiss were (a) whether thedefendant contributed to thelapse of time, (b) the nature ofthe claims, (c) the probableissues to be determined, in par-ticular whether there would befactual issues or only legalissues, (d) the nature of theprincipal evidence, in particu-lar whether there would be oralevidence, (e) the availability ofrelevant witnesses, (f) thelength of the lapse of time, andin particular the length of timebetween the acts or omissionsin relation to which the court

would be asked to make factualdeterminations and the proba-ble trial date; (3) that the delaywas both inordinate and inex-cusable; (4) that where (a) theresponsibility for inordinateand inexcusable delay restedprimarily with the plaintiff, (b)there was presumed prejudiceof a moderate nature, (c) theissues to be determined were ofa substantial commercialnature, (d) the actions leadingto the delay involved weredeliberate and conscious, (e)the prospects of a fair trial hadbeen undermined, and (f) theplaintiff had failed after a latestart to advance the proceed-ings expeditiously, the balanceof justice favoured the dis-missal of the proceedings; (5)that the European Convention onHuman Rights was an extra fac-tor to be added into considera-tion, subject to the applicationof existing Irish law andjurisprudence. Comcast International (plain-tiff) v Minister for PublicEnterprise (defendant), HighCourt, Mr Justice Gilligan,13/6/2007, 2001 no 9223 P[FL14542]

Professional negligencePractice and procedure – Medical

Council – cancel decision – onus ofproof – evidence – beyond reason-able doubt – whether decision ofMedical Council correct –Medical Practitioners Act1978.The deceased had lodged acomplaint with the MedicalCouncil in relation to his med-ical treatment. The MedicalCouncil asked a fitness-to-practice committee to inquireinto the conduct of the appellant as to professionalmisconduct, which formed anopinion that professional mis-conduct existed. Extensive evidence was given as to thetreatment.

Finnegan J held that the decision of the MedicalCouncil would be cancelled.Insufficient evidence or find-ings of fact were adduced to support the validity of the decision. The evidence had to establish findings of fact beyond all reasonabledoubt.O’Connor (appellant) vMedical Council (respondent),High Court, Mr JusticeFinnegan, 17/7/2007, 2005638 Sp [FL14487]

This information is taken fromFirstLaw’s legal current awarenessservice, published every day on theinternet at www.firstlaw.ie.

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eurlegal

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

Recent developments in European law

Scottish & Newcastle v OthonGalanos [2008] UKHL 11. Thecase concerned a contract forthe sale of goods. The contractwas characterised as a contractFOB (free on board). Theinvoices referred to Cyprus asthe place of delivery. The ques-tion considered was the inter-pretation of article 5(1)(b) of theBrussels I Regulation (44/2001)relating to contracts for the saleof goods or the supply of servic-es. This provides that the courtsof the place of performance ofthe contract have jurisdiction.In the case of contracts for thesale of goods, this is deemed tobe where the goods have beenor are to be delivered. TheHouse of Lords held that thisjurisdiction was England, aspossession, title and risk hadpassed to the seller in Englandunder English law, the law gov-erning the contract.

Case C-438/05, InternationalTransport Workers’ Federation &The Finnish Seamen’s Union vViking Line ABP & Oü VikingLine Eesti, 11 December 2007.Viking Line is a Finnish ferrycompany that owns the Rosella, aferry that sails between Finlandand Estonia, flying the Finnishflag. Its crew are members ofthe Finnish Seamen’s Union(FSU), which is affiliated to the International TransportWorkers’ Federation (ITF).The Rosella was operating at aloss. In October 2003, Vikingnotified the FSU of its intention

to reflag the Rosella in Estonia,which would enable Viking toemploy an Estonian crew at alower rate of pay than thatapplicable in Finland. InNovember, the ITF, following arequest from the FSU, sent acircular to its affiliates requiringthem to refrain from enteringinto negotiations with Viking,with the threat of sanctions ifthey failed to comply. This pre-vented the Estonian tradeunions from entering intonegotiations with Viking. TheFSU laid down conditions onthe renewal of the manningagreement with Viking andannounced its intention tostrike. It required an increase inthe number of the crew on theRosella and the conclusion of acollective agreement underwhich, even if the ship werereflagged, Viking would contin-ue to comply with Finnishlabour law and would not lay offcrew members. After Estoniajoined the EU, Viking broughtproceedings in Britain, wherethe ITF has its seat. Vikingrequested that the ITF with-draw the circular and that theFSU be ordered not to infringeits right of establishment withregard to the reflagging of theship. The Court of Appealreferred a number of questionsto the ECJ on the application ofrules on freedom of establish-ment and free movement to thefacts of the case. The ECJ con-firmed that the treaty rules onestablishment apply to collec-tion action initiated by a tradeunion against an undertaking inorder to induce it to enter into acollective agreement, the terms

of which are liable to deter itfrom exercising that freedom.The establishment provisionsconfer rights on a privateundertaking, which can berelied on against a trade unionnegotiating about conditions ofemployment and the pay ofworkers. The conditions laiddown for registration of vesselsshould not form an obstacle tofreedom of establishment.Collective action, such as thatenvisaged by the FSU, has theeffect of making Viking’s exer-cise of its right to freedom ofestablishment less attractive orpointless. The threatenedaction of the FSU prevents bothViking and its Estonian sub-sidiary from enjoying the sametreatment in Estonia as othereconomic operators establishedthere. Collective action taken inorder to implement the ITF’spolicy of combating the use offlags of convenience must beconsidered to be at least liableto restrict Viking’s exercise of itsright of freedom of establish-ment. Such a restriction canonly be accepted if it pursues alegitimate aim, such as the pro-tection of workers. It is for thenational court to determinewhether the objectives pursuedby the FSU and the ITF bymeans of the collective actionthat they initiated concernedthe protection of workers. Theobjective of the FSU was toprotect the jobs and conditionsof employment of the membersof the union likely to beadversely affected by the reflag-ging of the ship. However, thisobjective would not be regardedas tenable if it were established

that the jobs or conditions ofemployment at issue were notjeopardised or under seriousthreat. If there was a seriousthreat, it would then have to beascertained whether the collec-tive action is suitable for theachievement of the objectivepursued and does not gobeyond what is necessary toachieve that objective. Thenational court will have toexamine whether, under thenational rules and collectiveagreement law, the FSU did nothave other means at its disposalthat were less restrictive of free-dom of establishment in orderto bring the collective negotia-tions entered into with Vikingto a successful conclusion andwhether that trade union hadexhausted those means beforeinitiating such action.

Case C-435/06, C, 27 Nov-ember 2007. In February 2005,a social welfare board inSweden ordered the taking intocare of two children who wereliving in that town, with a viewto placing them with a fosterfamily. Both the children haveFinnish nationality and theolder child also has Swedishnationality. The followingmonth, the mother of the twochildren, Mrs C, took up resi-dence in Finland. An adminis-trative court confirmed thedecision of the social welfareboard in Sweden, and an appealtaken by C against the decisionwas dismissed. The Swedishpolice asked their Finnish coun-terparts to assist them in the

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enforcement of that decision.The Finnish police agreed toassist, and Mrs C challengedthat decision in the Finnishcourts. The matter wasappealed to the SupremeAdministrative Court, whichconsidered that an interpreta-tion of the scope of Regulation2201/2003 was necessary for itto decide the dispute. Decisionson the taking into care andplacement of children are gov-erned by public law in Finland.Thus, it sought guidance fromthe ECJ on whether such deci-sions fell within the definitionof ‘civil matters’ in the regula-tion. In Finland, child protec-tion requires the adoption ofnot just one decision, but awhole series of decisions. Thecourt asked for guidance onwhether the regulation coversboth the taking into care andthe placement of children, orsolely the placement decision.The ECJ indicated that, whiletaking a child into care does notfeature expressly among thematters that, according to arti-cle 1(2) of the regulation, relateto parental responsibility, thatdoes not exclude a decision totake a child into care from thescope of the regulation. Thecourt then turned to the inter-pretation of ‘civil matters’. Itheld that if decisions on the tak-ing into care and placement of achild, which in some states aregoverned by public law, werefor that reason alone to beexcluded from the scope of theregulation, the very purpose ofmutual recognition andenforcement of decisions inmatters of parental responsibil-ity would be compromised.The ECJ held that such deci-sions are covered by the term‘civil matters’.

Case T-289/03, British UnitedProvident Association Ltd (BUPA)and Others v Commission of theEuropean Communities, 12February 2008. Between 1957

and 1996, the Voluntary HealthInsurance Board (VHI) was theonly operator on the privatehealth insurance market inIreland. Between 1994 and1996, this market was liber-alised and, on 1 January 1997,BUPA Ireland commencedoperations. It is now the VHI’smain competitor. The legisla-tion that allowed for competi-tion in the market provided forthe establishment of a riskequalisation system adminis-tered by a state body – theHealth Insurance Authority.This system provides for a levyto be paid by insurers with arisk profile below the averagemarket risk profile and for acorresponding payment toinsurers with a risk profilehigher than the average. Thesystem specifies differentthresholds at which the pay-ments may be activated. Atpresent, BUPA should transferfunds to VHI under the system.In 2003, Ireland notified thesystem to the commission, inaccordance with the commis-sion’s rules on state aid. Thecommission decided not toraise objections to it. BUPAbrought an action before theCFI seeking annulment of thatdecision. The CFI dismissedthe action. The court notedthat member states have widediscretion as to the definition ofservices of general economicinterest, particularly in the areaof health, which falls almostexclusively within their compe-tence. The control that the ECinstitutions are authorised toexercise is limited to ascertain-ing whether there is a manifesterror of assessment. However,where a member state invokesthe existence and the need forthe protection of a special eco-nomic interest, certain mini-mum criteria must be satisfied.In particular, that must be anaction of a public authorityentrusting the operations inquestion with a special generaleconomic interest mission thatmust be universal and compul-

sory. Those conditions are sat-isfied in this case. The legisla-tion is the act of a publicauthority. The fact that insurersare required to cover any per-son requesting insurance meansthat the private medical insur-ance services are compulsoryand universal. The commissionwas thus entitled to considerthat the imposition of the pay-ment scheme related to a serv-ice of general economic interestmission. The court found thatthe commission was correct infinding that risk equalisationwas necessary where insurersare required to cover any per-son at the same price and inde-pendently of the individual riskin order to ensure the cross-subsidy of premiums betweenthe generations to permit eachsuch insurer to bear only theburdens associated with theaverage market risk profile. Inaddition, the system seeks onlyto compensate insurers for thefinancial consequences arisingfrom the insurance obligations,which prohibit them from set-ting premiums according to therisk insured and from rejectingthe ‘bad’ risks.

Case C-436/06, FBTOSchadeverzekeringen NV v JackOdenbreit, 13 December 2007.Jack Odenbreit is domiciled inGermany and was injured in aroad traffic accident in theNetherlands. The other partyto the accident was insured byFBTO. Mr Odenbreit broughtproceedings in the Germancourts against FBTO. FBTOcontested the jurisdiction of theGerman courts and the casereached the Federal Court ofJustice. It referred the matter tothe ECJ, asking whether article11(2) of Regulation 44/2001means that an injured party canbring an action against aninsurer in the courts of themember state where the injuredparty is domiciled, providedthat such a direct action is per-mitted and the insurer is domi-ciled in a member state. The

ECJ considered the specialjurisdictional rules relating toinsurance that are contained inarticles 8 to 14. Article 9 allowsfor an insurer to be sued in themember state where it is domi-ciled or where the plaintiff isdomiciled if the action isbrought by the policyholder,the insured or a beneficiary.Article 11(2), concerning liabil-ity insurance, refers back toarticle 9 in the case of actionsbrought by the injured partydirectly against the insurer. Thereference back leads to a widen-ing of the scope of the article 9rule to categories of plaintiffother than the policyholder, theinsured or the beneficiary of theinsurance contract. Thus, thereference adds injured partiesto the list of plaintiffs containedin article 9(1)(b). These provi-sions are designed to give morefavourable protection to theweaker party in a dispute thanthe general rules of jurisdiction.To deny the injured party theright to bring a case in thecourts of his own domicilewould deprive him of the sameprotection as that afforded bythe regulation to other partiesregarded as weaker in disputesrelating to insurance. Thiswould be contrary to the spiritof the regulation, one of theaims of which was to strengthensuch protection relative to theBrussels Convention.

Case C-276/06, Productores deMúsica de España (Promusicae) vTelefónica de España SAU, 29January 2008. Promusicae is aSpanish non-profit-makingorganisation of producers andpublishers of musical andaudiovisual records. It appliedto the Spanish courts for anorder that Telefónica shoulddisclose the identities and phys-ical addresses of certain personsto whom it provided internetaccess services, whose IPaddress and date and time of

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connection were known. Theapplicant argued that theseindividuals were using fileexchange programmes to pro-vide access to recordings inwhich their members held theexploitation rights. It soughtdisclosure of this informationso that it could bring civil pro-ceedings against these persons.Telefónica argued that commu-nication of this data was onlyauthorised in a criminal investi-gation or for the purpose ofsafeguarding public securityand national defence. TheSpanish court asked the ECJwhether EC law requires mem-ber states to lay down an obli-gation to communicate person-al data in the context of civilproceedings to ensure effectiveprotection of copyright. TheECJ noted that the directiveson the protection of personaldata permitted exceptions suchas measures necessary for theprotection of the rights andfreedoms of others. These

directives should be interpretedas expressing the EC legisla-ture’s intention not to excludefrom their scope the protectionof the right to property or situ-ations in which authors seeks toobtain that protection in civilproceedings. Member states arenot precluded from layingdown an obligation to disclosepersonal data in the context ofcivil proceedings. However,they are not compelled to laydown such an obligation. Thereis equally no obligation onmember states to lay down anobligation to communicate per-sonal data in the context of civilproceedings to ensure effectiveprotection of copyright. Thisreference raises the question ofthe need to reconcile therequirements of the protectionof different fundamental rights,namely the right to respect forprivate life on the one hand andthe rights to protection ofproperty and effective remedyon the other. In transposing

directives on intellectual prop-erty and the protection of per-sonal data, member states mustallow a fair balance to be stuckbetween the various fundamen-tal rights protected by the EClegal order. When implement-ing the measures transposingthose directives, the authoritiesand courts of member statesmust not only interpret theirnational law in a manner con-sistent with the directives, butalso ensure that they do not relyon an interpretation of themthat would be in conflict withthose fundamental rights orwith other general principles ofEC law, such as the principle ofproportionality.

Case T-134/06, Xentral LLC vOHIM, 13 December 2007. In2000, the applicant sought toregister the word sign ‘PAGES-JAUNES.COM’ as an ECtrademark for various goods –printed matter, periodicals anddirectories. Following publica-

tion of the application, PagesJaunes SA opposed the registra-tion. OHIM refused the regis-tration and in 2006 the Boardof Appeal upheld this ruling. Itsaid that the relevant goodswere identical and there was thelikelihood of confusion inFrance. The trademark appliedfor could be perceived as theinternet version of the paper-based directory bearing the‘LES PAGES JAUNES’ trade-mark. Consumers may considerthe goods in question to comefrom the same undertaking.The applicant contested thatdecision before the CFI. TheCFI found that that the marksin question are similar. TheBoard of Appeal was fully enti-tled to find that the similaritybetween the marks was striking,both at the visual and aural lev-els and at the conceptual level.The court held that there wasthe likelihood of confusion and,on that basis, upheld the deci-sion of the Board of Appeal. G


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GazetteGazetteL A W S O C I E T YLOST LAND CERTIFICATES

Registration of Deeds and Title Acts1964 and 2006An application has been receivedfrom the registered owners men-tioned in the schedule hereto for anorder dispensing with the land certifi-cate issued in respect of the landsspecified in the schedule, which orig-inal land certificate is stated to havebeen lost or inadvertently destroyed.The land certificate will be dispensedwith unless notification is received inthe registry within 28 days from thedate of publication of this notice thatthe original certificate is in existenceand in the custody of some personother than the registered owner. Anysuch notification should state thegrounds on which the certificate isbeing held.Property Registration Authority,Chancery Street, Dublin 7(published 2 May 2008)

Regd owner: Padraic Bruen andMatthew Mulvey; folio: 9327F;lands: Staplestown Road, Carlowand barony of Carlow; Co Carlow

Regd owner: Peter Carroll(deceased); folio: 6051F; lands:Knocklishen Beg and barony ofRathvilly; Co Carlow

Regd owner: Hugh Kevin Reilly,Carrigan, Co Cavan; folio: 9828;lands: Carrigan; Co Cavan

Regd owner: Mary Garry; folio:1350; lands: townland ofInishmacowney and barony ofClonderalaw, Co Clare; area:5.6479 hectares; Co Clare

Regd owner: Frank J Slattery andMary Slattery; folio: 4770F; lands:townland of Ballyellery andbarony of Corcomroe; area:11.2040 hectares; Co Clare

Regd owner: Shannon Free AirportDevelopment Company Limited;folio: 5382; lands: townland ofBallycasey More and barony ofBunratty Lower; area: 10.7848hectares; Co Clare

Regd owner: William Cronin(deceased) and Marie Cronin;folio: 45474F; lands: plot of groundsituate in the townland of Fergusand barony of Muskerry East in thecounty of Cork; Co Cork

Regd owner: David Richards; folio:55321; lands: plot of ground situatein the townland of Castleredmondand barony of Imokilly in the coun-ty of Cork; Co Cork

Regd owner: (a) CK22829F LiamDunne (deceased) and (b) CK43264F Liam Dunne (deceased) andRosalie Dunne; folios: (a) 22829Fand (b) 43264F; lands: (a) a plot ofground situate in the townland of(1), (2), (3) Ballylongane and (4)

Shanagary North and barony ofImokilly in the county of Cork, (b)a plot of ground situate in thetownland of Ballycotton andbarony of Imokilly in the county ofCork; Co Cork

Regd owner: Catherine Walsh(deceased); folio: 37301; lands: plotof ground situate in the townland ofBallymagooly and barony ofFermoy; Co Cork

Regd owner: Biddy Barr, Magher-aclogher, Bunbeg, Co Donegal;folio: 3693F; lands: Magher-aclogher; Co Donegal

Regd owner: Elizabeth Fusco,Tirhomin, Milford, Co Donegal;folio: 11464F; lands: Tirhomin, CoDonegal; Co Donegal

Regd owner: John James McGuinness,Roshine, Killybegs, Co Donegal;folio: 23071; lands: Roshin, CoDonegal; Co Donegal

Regd owner: Martin McLaughlin,Main Street, Kilcar, Co Donegal;folio: 19812F; lands: Kilcasey; CoDonegal

Regd owner: Matthew Stevenson,Ballygay, Milford, Co Donegal;folio: 7710; lands: Ballylin; CoDonegal

Regd owner: Margaret Carton andCathleen Oldham; folio:DN12619; lands: property situatein the townland of Westmanstown(ED Rathcoole) in the barony ofNewcastle; Co Dublin

Regd owner: Denis Feeley and EllenRuane; folio: DN16435L; lands:property situate in the townland ofSheepmoor and barony ofCastleknock, situate to the east ofCoolmine Road in the town ofBlanchardstown; Co Dublin

Regd owner: Thomas Finn andSuphaphorn Finn; folio: 2764L;

lands: no 114 Collins Avenue West,Finglas, Dublin 9; Co Dublin

Regd owner: Padraig Judge and EddieDoyle; folio: 108091F; lands: no 11Westbourne Green, WestbourneManor, Clondalkin, Dublin 22; CoDublin

Regd owner: Siobhan Reid; folio:DN60862F; lands: property situatein the townland of Shanganagh andbarony of Rathdown, known as no26 Dorney Court, Shankill, CoDublin; Co Dublin

Regd owner: Siobhan Reid; folio:DN74761L; lands: property situatein the townland of Shanganagh andbarony of Rathdown, Co Dublin;Co Dublin

Regd owner: Siobhan Reid; folio:DN74756L; lands: the propertyknown as 26 Dorney Court,Shankill, Co Dublin; Co Dublin

Regd owner: Patrick V Smyth; folio:DN30290F; lands: property knownas 20 Glasnamana Road, situate onthe west of Ballygall Road; CoDublin

Regd owner: Sean Harte and MariaPatricia Harte; folio: DN89044F;lands: property known as 7Woodview Grove, Blanchardstown,situate to the south of ClonsillaRoad in the town ofBlanchardstown; Co Dublin

Regd owner: James Beckett; folio:46885; lands: townland of Ballygarand barony of Killian; area: 22perches; Co Galway

Regd owner: Donal Hickey andMargaret Hickey; folio: 34599F;lands: townland of Knocknacarraghand barony of Galway; area: 0.02hectares approximately; CoGalway

Regd owner: Michael McGann(deceased); folio: 42820; lands:

townland of Baunoges and baronyof Tiaquin; area: 0.4046 hectares;Co Galway

Regd owner: Hermann Scho; folio:44799; lands: townland of Kilkieranand barony of Ballynahinch; area:0.3010 hectares; Co Galway

Regd owner: Thomas Coyne andBernadette Coyne; folio: 18085F;lands: townland of Ballynahalliaand barony of Moycullen; area:0.555 acres; Co Galway

Regd owner: Bryan Kelly and AlanKelly; folio: 39978F; lands: situatein the townland of Gannoughs andbarony of Ballynahinch and countyof Galway; Co Galway

Regd owner: James Cox; folio: 8585;lands: townland of CummeenUpper and barony of Glanarought;Co Kerry

Regd owner: Denis Lucey; folio: 8168;lands: townland of Gortnanooranand barony of Corkaguiny; CoKerry

Regd owner: Michael Ashe andCatherine Ashe, 4 Oldtown, SallinsRoad, Naas, Co Kildare, folio:20162F; lands: townland ofMonread South, known as 4Oldtown Court, Naas, Co Kildare,in the barony of Naas North in theelectoral division of Naas Urban,Co Kildare; Co Kildare

Regd owner: Kathleen Cody and PaulDuggan, 7 Butterstream Lawn,Clane, Co Kildare; folio: 25413F;lands: townland of CrockaunCommons and barony of Clane;Co Kildare

Regd owner: Tom Whelan and AngelaWhelan of Tyrrellstown, Athy, CoKildare; folio: 6065; lands: town-land of Tyrrellstown and barony ofNarragh and Reban West; CoKildare

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Regd owner: Sophie Shirley; folio:17372; lands: Donaguile andbarony of Fassadinin; Co Kilkenny

Regd owner: Bridget Cleere; folio:9882; lands: Listorlin and barony ofIverk; Co Kilkenny

Regd owner: John Phelan (deceased);folio: 16442F; lands: Killeen orKilleenlynagh (Maryborough EastBy) and barony of MaryboroughEast; Co Laois

Regd owner: Elsie Moloney; folio:19114F; lands: townland ofMountblakeney and barony ofCoshma; Co Limerick

Regd owner: William J Ambrose;folio: 6078F; lands: townland ofGortnacreha Lower and barony ofConnello Upper; Co Limerick

Regd owner: Daniel Kirby; folio:27847; lands: townland ofMongfune and barony ofOwneybeg; Co Limerick

Regd owner: Peter Reilly,Drumhaldry, Moyne, CoLongford; folio: 389; lands:Lettergullion, Co Longford; CoLongford

Regd owner: Kathleen Sheridan;folio: 32727; lands: townland ofSraheen and barony ofBurrishoole; Co Mayo

Regd owner: (1) Henry Barrett,Birdhill, Drumconrath, Co Meath;folio: 987F; lands: Birdhill; (2)Henry Barrett and KathleenBarrett, Drumconrath, Navan, CoMeath; folio: 1834F; lands:Rathcoon; Co Meath

Regd owner: Elizabeth Burke, 57Bourne Avenue, Ashbourne, CoMeath; folio: 1471L; lands:Killegland; Co Meath

Regd owner: Joseph Sheridan,Johnstown, Enfield, Co Meath;folio: 23033; lands: Johnstown; CoMeath

Regd owner: Sean G Treanor andAnne M Treanor, Drumbart,Tydavnet, Co Monaghan; folios:2049 and 2054; lands: Drumfurrer;Co Monaghan

Regd owner: Brendan Cosgrove;folio: 12100; lands: Fenter andbarony of Geashill; Co Offaly

Regd owner: Anne Scully; folio: 9026;lands: Ballycollin and barony ofBallyboy, Co Offaly; Co Offaly

Regd owner: Mildred Beirne; folio:2229F; lands: townland ofLoughlinn Demesne and barony ofFrenchpark; Co Roscommon

Regd owner: Patrick JosephMcCrann; folio: 13990; lands:townland of Sheepwalk andRunnabehy and barony ofFrenchpark, Co Roscommon; CoRoscommon

Regd owner: Mae Keane; folio:11810F; lands: townland of Curryand barony of Athlone South; area:5.767 hectares; Co Roscommon

Regd owner: Annie MariaMcDermott (deceased); folio:33341; lands: townland ofStrokestown and barony ofRoscommon; Co Roscommon

Regd owner: Michael Leyden; folio:2783; lands: townland of Doonforeand barony of Carbury; area: 3.288hectares; Co Sligo

Regd owner: Keith Barry; folio:35047F; lands: townland of Casheland barony of Middlethird; CoTipperary

Regd owner: James Hennessy; folio:24695; lands: townland ofCormackstown/Beakstown andbarony of Eliogarty; Co Tipperary

Regd owner: John Hourigan; folio:3405; lands: townland ofBawnbrack and barony ofClanwilliam; Co Tipperary

Regd owner: Geraldine O’Dwyer;folio: 27984; lands: townland ofClonoulty Hill and barony ofKilnamanagh Lower; CoTipperary

Regd owner: Gerard O’Meara and InaO’Meara; folio: 28005F; lands:townland of Stonepark and baronyof Ormond Lower; Co Tipperary

Regd owner: Sean and Mary Minogue;folio: 39914; lands: townland ofShesheraghkeale and barony ofOrmond Lower; Co Tipperary

Regd owner: Helen Askins; folio: 2838;lands: plot of ground situate in thetownland of Derrinlaur Lower andbarony of Upperthird in the countyof Waterford; Co Waterford

Regd owner: Thomas Neville(deceased); folio: 3423; lands: plotof ground situate in the townland ofBallyroe and barony of Coshmoreand Coshbride in the county ofWaterford; Co Waterford

Regd owner: James Whelan; folio:8697; lands: plot of ground situatein the townland of Kingsmeadowand barony of Middlethird in thecounty of Waterford; CoWaterford

Regd owner: Desmond Purcell; folio:4217L; lands: plot of ground situateto the south of Scotch Quay in theparish of St John’s Without,Division A, and in the city ofWaterford; Co Waterford

Regd owner: Paul Walsh and AmandaFlynn; folio: 20078F; lands: plot ofground known as no 13Williamstown Park situate in theparish of Ballynakill, Division A1,and in the city and county ofWaterford; Co Waterford

Regd owner: John Murphy; folio:254F; lands: Drumgold, known asClonhaston, and barony ofBallaghkeen South, Co Wexford;Co Wexford

Regd owner: Patrick Kenny; folio:19374F; lands: Rossminogue andbarony of Gorey; Co Wexford

Regd owner: Damien Kiernan, 14Grattan Park, Greystones, CoWicklow; folio: 10203; lands: town-land of Kindlestown Lower andbarony of Rathdown; Co Wicklow

Burke, William (deceased), late of114 Shelmartin Avenue, Fairview,Dublin 3, who died on 1 January 2008.Would any person having knowledgeof a will made by the above-nameddeceased, or if any firm is holdingsame, please contact Paul O’Sullivan& Co, Solicitors, Upper Floor, 63Deerpark Road, Mount Merrion, CoDublin; tel: 01 278 4050, fax: 01 2784052, email: [email protected]

Cunnea, Andy (deceased), other-wise known as Andrew Quinn, lateof Meenaneary, Carrick, Co Donegal.Would any person having knowledgeof a will executed by the above-nameddeceased, who died on 10 March 2008,please contact O’Donnell McKenna,Solicitors, Waterloo Place, DonegalTown, Co Donegal; tel: 074 974 0444,fax: 074 974 0455

Farrell, Peader (deceased), other-wise Peter Joseph, late of BondHouse, Derrymullen, Robertstown,Co Kildare, haulage contractor(deceased), who died on 23 December2007. Would any person havingknowledge of a will made by theabove-mentioned deceased pleasecontact Wilkinson & Price, Solicitors,South Main Street, Naas, Co Kildare;tel: 045 897 551, fax: 045 876 478,email: [email protected]

Gillan, William Stuart (deceased),late of 64 Ringsend Park, Ringsend,Dublin 4, who died on 30 January2008. Would any person havingknowledge of a will made by theabove-named deceased, or if any firmis holding same, please contactThomas P O’Reilly, Solicitors, 20Sandymount Green, Dublin 4; tel: 01260 2099, fax: 01 260 2195, email:[email protected]

Leonard, Gerard (otherwise Jerry)(deceased), late of Ballywilliam,Kilcormac, Co Offaly. Would any per-son having knowledge of a will madeby the above-named deceased, whodied on 5 July 2007, please contactMessrs Donal Farrelly & Co,Solicitors, Tullagh House, HighStreet, Tullamore, Co Offaly; tel: 057932 1324, fax: 057 932 1328

Meehan, Mary Elizabeth (other-wise Maura) (deceased), late of 10Annaville Grove, Dundrum, Dublin14. Would any person having knowl-

edge of a will made by the above-named deceased, who died on 14March 2008, please contact CoraHiggins, Regan McEntee & Partners,Solicitors, High Street, Trim, CoMeath; tel: 046 943 1202, fax: 046 9431932, email: [email protected]

McGann, Patricia (deceased), late of22 Ratoath Drive, Ratoath, Finglas,Dublin 11, who died on 12 March2007. Would any person havingknowledge of any will made by theabove-named deceased please contactBowler Geraghty & Co, Solicitors, 2Lower Ormond Quay, Dublin 1,under reference ‘KOB’

Quail, Christopher (deceased), lateof Castletown, Kilberry, Navan, CoMeath, who died on 16 March 1989 atOur Lady’s Hospital, Navan, CoMeath. Would any person havingknowledge of a will made by theabove-named deceased please contactOliver Shanley & Co, Solicitors, 62-63Academy Street, Navan, Co Meath;tel: 046 909 3200, fax: 046 902 9937

Rainsford, Sara (deceased), late ofCappanahanagh, Murroe, CoLimerick, who died on 24 November2007. Would any person havingknowledge of a will made by theabove-named deceased please contactPatrick J D’Alton, solicitor, no 119O’Connell Street, Limerick; tel: 061417 2886

Sheridan, Donald JR (deceased),late of St Germans, Vico Road,Dalkey, Co Dublin. Would any personhaving knowledge of a will made bythe above-named deceased, who diedon 9 February 2008, please contactCoonan Cawley, Solicitors, WolfeTone House, Naas Town Centre,Naas, Co Kildare; tel: 045 899 571,fax: 045 899 572, email: [email protected]

Timothy, Patrick (deceased), late ofCorgarva, Creggs, Co Galway, whodied on 19 December 1984. Wouldany person having knowledge of a willmade by the above-named deceasedplease contact John O’Leary & Co,Solicitors, Millennium House, MainStreet, Tallaght, Dublin 24; tel: 01 4271000, fax: 01 427 1001, email: [email protected]

London solicitors will be pleased toadvise on UK matters and undertakeagency work. We handle probate, liti-gation, property and company/com-mercial. Parfitt Cresswell, 567/569Fulham Road, London SW6 1EU;

MISCELLANEOUS

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DX 83800 Fulham Broadway; tel:0044 2073 818311, fax: 0044 2073814044, email: [email protected]

English qualified solicitors – is yourclient buying or selling property in theUK or Northern Ireland? We holdcurrent practicing certificates andinsurance in the three jurisdictions ofIreland, N Ireland and the UK. Withlarge volumes of Irish clients buyingproperty in the UK, we can act asagents or take matters on referral.Contact Catherine Allison & Co, 6Roden Place, Dundalk, Co Louth, at042 932 0854 or [email protected]

Seven-day publican’s licence forsale. Contact: SF Hughes & Co,Solicitors, Castlebar Road, Westport,Co Mayo; tel: 098 28422

Seven-day on-licence for sale.Please contact: Gearóid McGann,Sweeney McGann, Solicitors, 67O’Connell Street, Limerick; tel: 061418 277, fax: 061 319 496, email: [email protected]

Thinking of retiring? Dublin north.Shannons of Swords have acquiredadjoining premises. They now wish toacquire a solicitor’s practice or takeover a retiring solicitor’s caseload/clientele. Reply in confidence toVincent Shannon at 01 840 1780 [email protected]

James Shanley, born at Corgowan,Strokestown, Co Roscommon,Republic of Ireland, on 26 October1936. The above named or any personaware of his current whereabouts isrequested to contact the under-namedsolicitors.Date: 2 May 2008Signed: Peter A Connellan & Co, Solici-tors, Strokestown, Co Roscommon, Repub-lic of Ireland; tel: (00353) 71 963 3009

Title deed search re: 1 ChurchyardLane, Blackrock, Cork. Any solicitorholding/having knowledge of titledeeds to the property at 1 ChurchyardLane, Blackrock, Cork, please contact:John Sheehan, JW O’Donovan,Solicitors, 53 South Mall, Cork; tel:021 730 0200, email: [email protected]

In the matter of the Landlord andTenant Acts 1967-2005 and in thematter of the Landlord and Tenant(Ground Rents) (No 2) Act 1978: anapplication by Mel Bates andPatricia BatesAny person having a freehold estate orany intermediate interest in all that

and those the property known as no 17Fairview Strand, in the parish ofClonturk, barony of Coolock and cityof Dublin, held under an indenture ofsublease dated 1 September 1964made between Kathleen Mary AgnesMaguire of the one part and JamesFlynn of the other part for a term of 88years from 25 July 1964, subject to theyearly rent of £10 and subject to thecovenants on the part of the lessee andconditions therein contained.

Take notice that Mel Bates andPatricia Bates, being the persons cur-rently entitled to the lessees’ interestin the premises, intend to apply to thecounty registrar for the county of thecity of Dublin for the acquisition ofthe freehold interest and all intermedi-ate interests in the aforesaid premises,and any party asserting that they holda superior interest in the aforesaidpremises (or any of them) are calledupon to furnish evidence of title tosame to the below named within 21days from the date of this notice.

In default of any such notice beingreceived, Mel Bates and Patricia Batesintend to proceed with the applicationbefore the county registrar at the endof 21 days from the date of this noticeand will apply to the county registrarfor the county of the city of Dublin forsuch directions as may be appropriateon the basis that the person or personsbeneficially entitled to the superiorinterest including the freehold rever-sion in the aforesaid premises areunknown or unascertained.Date: 2 May 2008Signed: Ralph McMahon Solicitors (solic-itors for the applicants), Suite 130-132The Capel Building, Mary’s Abbey,Dublin 7

In the matter of the Landlord andTenant Acts 1967-2005 and in thematter of the Landlord and Tenant(Ground Rents) (No 2) Act 1978 andin the matter of an application byColm CarrollTake notice that any person havinginterest in the freehold estate or anyintermediate interest in the followingproperty: all that the premises knownas number 100/100A Parnell Street,formerly Great Britain Street, in theparish of St Thomas and city ofDublin, held under a lease dated 7August 1865, made between WilliamTodd of the one part and Ellen Clearyof the other part for a term of 868years from 25 March 1865, subject tothe yearly rent of 22 pounds, tenshillings sterling.

Take notice that Colm Carrollintends to submit an application to thecounty registrar for the county ofDublin for the acquisition of the free-hold interest in the aforesaid proper-ties, and any party asserting that theyhold a superior interest in the afore-

said premises (or any of them) arecalled upon to furnish evidence of titleto the aforementioned premises to thebelow named within 21 days from thedate of this notice.

In default of any such notice beingreceived, the said Colm Carrollintends to proceed with the applica-tion before the county registrar at theend of 21 days from the date of thisnotice and will apply to the countyregistrar for the county of Dublin fordirections as may be appropriate onthe basis that the person or personsbeneficially entitled to the superiorinterest including the freehold rever-sion in each of the aforesaid premisesare unknown or unascertained. Date: 2 May 2008Signed: Smith Foy & Partners (solicitorsfor the applicant), 59 Fitzwilliam Square,Dublin 2

In the matter of the Landlord andTenant (Ground Rents) Acts 1967-2005 and in the matter of theLandlord and Tenant (Ground Rents)(No 2) Act 1978 and in the matter ofthe property known as FerrybankMills, North Wharf, Dock Road,Ferrybank, in the city and county ofWaterford: an application by Zella(Waterford) LimitedTake notice that any person having aninterest in the freehold estate or anysuperior interest in part of the proper-ty known as all that Ferrybank Mills,North Wharf, Dock Road, Ferrybank,in the city and county of Waterford,held under one of the following leases,namely a lease dated 18 August 1857made between Thomas Samuel Grubbof the one part and William Parle ofthe other part for the term of 300years from 25 March 1857, subject tothe yearly rent of £40.0s.0d; a leasedated 9 October 1854 made betweenThomas Samuel Grubb of the onepart and Charles Smith and HenryPenrose of the other part for the termof 300 years from 29 September 1854,

subject to the yearly rent of £40.0s.0d;and a lease dated 14 October 1758made between John Congreve of theone part and John Hulings of theother part for the term of 900 yearsfrom 12 May 1790, subject to the year-ly rent of £3.0s.0d, should give noticeof their interest to the undersignedsolicitors.

And take notice that the applicant,Zella (Waterford) Limited, intends tosubmit an application to the countyregistrar for the county of Waterfordfor the acquisition of the freeholdinterest in the aforesaid property, andany party asserting that they hold asuperior interest in the said property iscalled upon to furnish evidence of titleto the said property to the belownamed within 21 days from the date ofthis notice.

In default of any such notice beingreceived, the said applicant, Zella(Waterford) Limited, intends to pro-ceed with the application before thecounty registrar at the end of 21 daysfrom the date of this notice and willapply to the county registrar for thecounty of Waterford for such direc-tions as may be appropriate on thebasis that the person or persons bene-ficially entitled to the superior interestincluding the freehold reversion areunknown or unascertained.Date: 2 May 2008 Signed: BCM Hanby Wallace (solicitorsfor the applicant), 88 Harcourt Street,Dublin 2

In the matter of the Landlord andTenant Acts 1967-2005 and in thematter of the Landlord and Tenant(Ground Rents) (No 2) Act 1978 andin the matter of an application byO’Regan Brothers (Electrical)Limited of 13 Fitton Street, in thecity of CorkTake notice any person having inter-est in the freehold estate of the fol-lowing property: 26b and 26dWellington Road, otherwise 5/6

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Belgrave Avenue, in the city of Cork.Take notice that O’Regan Brothers(Electrical) Limited intend to submitan application to the county registrarfor the county of Cork for the acqui-sition of the freehold interest and allsuperior interests in the aforemen-tioned property, and any party assert-ing that they hold a superior interestin the aforesaid property are calledupon to furnish evidence of title tothe aforementioned premises to thebelow named.

In particular, such person or per-sons who are entitled to the interest ofMargaret Coughlan, deceased, pur-suant to a lease of 25 March 1965

between Margaret Coughlan andO’Regan Brothers (Electrical)Limited for a term of 83 years from 25March 1965 in lands, the stables,coach house and gardens at the rear ofthe premises known as no 26Wellington Road, in the parish of StAnne Shandon and city of Cork,should provide evidence of their titleto the below named.

In default of any such notice beingreceived, the applicant, O’ReganBrothers (Electrical) Limited, intendsto proceed with the application beforethe county registrar and will apply tothe county registrar for the county ofCork for directions as may be appro-priate on the basis that the person orpersons beneficially entitled to thesuperior interest including the free-hold in each of the aforesaid premisesare unknown or unascertained. Date: 2 May 2008Signed: Chris O’Shea, Solicitors, Wood-view, Glanmire, Co Cork

In the matter of the Landlord andTenant (Ground Rents) Acts 1967-1987 and in the matter of an appli-cation by Richard Power and JyttePower: notice of intention toacquire the fee simpleTake notice that the applicants, beingthe persons entitled under the abovementioned acts, propose to purchasethe fee simple in the lands described inparagraph no 1.

1. Description of land to whichthis notice refers: all that and thosethe lands and premises now known as10 Avondale Crescent, Killiney, in thecounty of Dublin, and as more partic-ularly described in an indenture oflease dated 30 June 1956 and madebetween Richard Bohan of the onepart and Robert Elliott Nixon of theother part and therein described as site

number 20 Avondale Crescent,Killiney Road, situate in the barony ofRathdown and county of Dublin, andas more particularly delineated on themap attached thereto.

2. Particulars of applicants’ lease:the applicants hold the lessee’s interestin the said lands under the said leasedated 30 June 1956 and made betweenRichard Bohan of the one part andRobert Elliott Nixon of the other part,whereby the lands and hereditamentsas therein described were demised tothe lessee therein for a term of 300years from 5 October 1955 (less thelast three days thereof).Date: 2 May 2008Signed: Paul MacCormack (solicitor forthe applicants), Coyle KennedyMcCormack Solicitors, Thomas Street,Castleblayney, Co Monaghan

In the matter of the Landlord andTenant (Ground Rents) Act 1967-1987 and in the matter of an appli-cation by Jimmy Conlon andKathleen O’Neill: notice of inten-tion to acquire the fee simpleTake notice that the applicants, beingthe persons entitled under the abovementioned acts, propose to purchasethe fee simple in the lands described inparagraph no 1.

1. Description of land to whichthis notice refers: all that and thosethe lands and premises now known as9 Avondale Crescent, Killiney, in thecounty of Dublin, and as more partic-ularly described in an indenture oflease dated 14 December 1959 andmade between Frances Bohan of thefirst part, Richard Belton of the sec-ond part and John Quinn of the thirdpart, and therein described as sitenumber 21 Avondale Crescent,Killiney Road, situate in the barony ofRathdown and county of Dublin, and

as more particularly delineated on themap attached thereto.

2. Particulars of applicants’ lease:the applicants hold the lessee’s interestin the said lands under the said leasedated 14 December 1959 and madebetween Frances Bohan of the firstpart, Richard Belton of the secondpart and John Quinn of the third part,whereby the lands and hereditamentsas therein described were demised tothe lessee therein for a term of 288years from the 14 December 1959(subject to a yearly rent of £18).Date: 2 May 2008Signed: Tom Conlon Solicitors (solicitorsfor the applicants), 14 South LeinsterStreet, Dublin 2

In the matter of the Landlord andTenant Acts 1967-2005, and in par-ticular the Landlord and Tenant(Ground Rents) Act 1967, sections 8and 17, and the Landlord andTenant (Ground Rents) (No 2) Act1978, sections 9 and 10: an applica-tion by Basil Good, Charles HenryBrett and Christopher BennettTake notice that any person having aninterest in the freehold estate of theproperty at the rear of 33/35 TalbotStreet, in the parish of St Thomas inthe city of Dublin, being part of theproperty comprised in folios 141L and77848L of the register of leaseholders,Co Dublin, and held under indentureof lease dated 11 February 1891 madebetween Robert Spencer and EdmundSpencer of the first part, Michael Kingof the second part and Joseph Downesof the third part for the term of 500years from 1 July 1889 at the annualrent of £75.

Take notice that Basil Good,Charles Henry Brett and ChristopherBennett intend to submit an applica-tion to the county registrar for the city

FREE EMPLOYMENT

REGISTERRECRUITMENT

For Law Society members to advertise for all theirlegal staff requirements, not just qualified solicitors.

Log onto the new expanded employment recruitment register onthe members’ area of the Law Society website, www.lawsociety.ie,or contact Trina Murphy, recruitmentadministrator, at the Law Society’sCork office, tel: 021 422 6203 oremail: [email protected]

FREE LOCUM

REGISTERRECRUITMENT

For Law Society members seeking a position as alocum solicitor or seeking to employ a locum solicitor.

Log onto the new self-maintained locum recruitment register on themembers’ area of the Law Society website, www.lawsociety.ie, orcontact Trina Murphy, recruitmentadministrator, at the Law Society’sCork office, tel: 021 422 6203 oremail: [email protected]

GROUND RENTSValuation advice on

purchase and disposal of ground rents

Appearances before theCounty Registrar acting forboth building lessees and

lessors.

Contact Conor Ó Cléirigh & Co

Tel: 8096030email: [email protected]

GROUND RENTS


PR

OFE

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71www.lawsociety.ie

of Dublin for the acquisition of thefreehold interest in the aforesaid prop-erty, and any party or parties assertingthat they hold a superior interest inthe aforesaid property are called uponto furnish evidence of title to theaforementioned property to the belownamed within 21 days from the date ofthis notice.

In default of any such notice beingreceived, Basil Good, Charles HenryBrett and Christopher Bennett intendto proceed with the application beforethe county registrar at the end of 21days from the date of this notice andwill apply to the county registrar forthe city of Dublin for directions asmay be appropriate on the basis thatthe person or persons beneficiallyentitled to the superior interestincluding the freehold reversion in theaforesaid property are unknown orunascertained. Date: 2 May 2008Signed: Rutherfords (solicitors for theapplicants), 41 Fitzwilliam Square,Dublin 2

In the matter of the Landlord andTenant Acts 1967-2005 and in thematter of the Landlord and Tenant

(Ground Rents) (No 2) Act 1978:acquisition of fee simple (section 4of the said act of 1967)To any person having interest in thefollowing property: all that piece orplot of ground heretofore built uponby Issac Gatchell, situate, lying andbeing in the town of Rathangan,barony of Offaly East and county ofKildare, together with the buildingsthereon and appurtenants thereto andall other premises comprised in anddemised by a lease for lives renewableforever dated 24 October 1799 andmade between Joshua Pimm of theone part and Issac Gatchell of theother part, which said premises aresubject to a perpetual fee farm rent of£14.14s.0d, since adjusted to£14.11s.6d per annum.

Take notice that John Dunne (oth-erwise Sean Dunne) and Anne Dunnehereby intend to submit an applicationto the county registrar for the countyof Kildare for the acquisition in feesimple in the aforesaid property, andany party asserting that they hold asuperior interest in the aforesaidpremises (or any of them) to the lease-hold interest created by the saidindenture of lease for life perpetual

renewable forever made 24 October1799, and made between Joshua Pimmof the one part and Issac Gatchell ofthe other part, are called upon to fur-nish evidence of title to the aforemen-

tioned premises to the below namedwithin 21 days from the date of thisnotice.

In default of any such evidencebeing adduced, Sean Dunne (other-wise John Dunne) and Anne Dunneintend to proceed with the applicationbefore the county registrar at the endof 21 days from the date of this noticeand will apply to the county registrarfor the county of Kildare at NaasCourthouse, Main St, Naas, CoKildare, for directions as may beappropriate on the basis that the per-son or persons beneficially entitled tothe superior interests including the feesimple in each of the aforesaid premis-es are unknown or unascertained.Date: 2 May 2008Signed: Burns Nowlan (solicitors for theapplicants), 31 Main Street, Newbridge,Co Kildare

Solicitor, semi-retired: experiencedgeneral practitioner experienced in allareas of law, interested in part-time/full-time or locum work. Pleasecontact: 086 320 7180

RECRUITMENT

NOTICE TO THOSE PLACING RECRUITMENT

ADVERTISEMENTS IN THELAW SOCIETY GAZETTE

Please note that, as and from the

August/September 2006 issue of

the Law Society Gazette,

NO recruitment advertisements

will be published that include

references to years of post-

qualification experience (PQE).

The Gazette Editorial Board has

taken this decision based on legal

advice, which indicates that such

references may be in breach of

the Employment Equality Acts

1998 and 2004.

Publication of advertisements in this section is on a fee basis and does not represent an endorsement by the Law Society of Ireland.

SPANISH LAWYERS

RAFAEL BERDAGUER ABOGADOS

Avda. Ricardo Soriano, 29,Edificio Azahara Oficinas, 4 Planta, 29601 Marbella, Malaga, Spain

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

Web site: www.berdaguerabogados.com

PROFILE:

Spanish Lawyers Firm focusedon serving the need of the

foreign investors, whether incompany or property transac-tions and all attendant legalitiessuch as questions of inheritance,taxation, accounting and book-keeping, planning, land use andlitigation in all Courts.

FIELD OF PRACTICES:

General Practice, Administra-tive Law, Civil and Commer-

cial Law, Company Law, Bankingand Foreign Investments inSpain, Arbitration, Taxation,Family Law, International Law,Litigation in all Courts.

TWENTY YEARS ADVISING CLIENTS IN REAL ESTATE TRANSACTIONS IN SPAIN

Regulated by the Solicitors Regulation Authority of England and Wales

3.75 May 2008 - Law Society of Ireland · 2017-06-02 · 3 CONTENTS LAW SOCIETY GAZETTE MAY 2008...

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Transcript of 3.75 May 2008 - Law Society of Ireland · 2017-06-02 · 3 CONTENTS LAW SOCIETY GAZETTE MAY 2008...