INSIDE: PROPERTY PURCHASE • IBA UPHOLDS RULE OF LAW • PRACTICE DOCTOR • 15 PAGES OF JOBS

PUBLISH ANDBE DAMNED?

Blasphemy in Irish law

Gazette€3.75 April 2006

GazetteL A W S O C I E T Y

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LAW SOCIETY GAZETTE CONTENTS

Editor: Mark McDermott. Deputy editor: Garrett O’Boyle. Designer: Nuala Redmond.Editorial secretaries: Catherine Kearney, Valerie Farrell. For professional notice rates (lostland certificates, wills, title deeds, employment, miscellaneous), see page 63.

Commercial advertising: Seán Ó hOisín, 10 Arran Road, Dublin 9; tel: 837 5018, fax: 8844626, mobile: 086 811 7116, email: sean@lawsociety.ie. Printing: Turner’s PrintingCompany Ltd, Longford.

Editorial board: Stuart Gilhooly (chairman), Mark McDermott (secretary), PamelaCassidy, Tom Courtney, Eamonn Hall, Philip Joyce, Michael Kealey, Mary Keane, Patrick J McGonagle, Ken Murphy, Michael V O’Mahony, William Prentice.

REGULARSNews11 Human rights watch: slopping out in prisons –

Martin v Northern Ireland Prison Service

Strategic property acquisitionThe Law Society has acquired a 1.09 acre property,adjacent to Blackhall Place, at a total cost of €22.4 million

Child law report launchedThe Law Society has called for reforms in the law to givegreater rights and protection to children

ViewpointThe recent Oireachtas committee report on the family

Letters

Practice doctor

People and places

Book reviews

Briefing49 Council report50 Practice notes51 Legislation update: 16 January 2006 – 20 March 200654 Solicitors Disciplinary Tribunal56 Solicitors’ Benevolent Association report and accounts57 FirstLaw update60 Eurlegal: recent developments in European law

Professional notices

Recruitment advertisingFifteen pages of vacancies, offering over 130 jobs

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April 2006

Volume 100, number 3Subscriptions: €57

GazetteGazetteL A W S O C I E T YOn the coverThe Danish cartoonscontroversy sparked a fiercedebate about the limits of freespeech. But a similar debatetook place in Ireland when acase on the boundaries offree speech and blasphemywent to the Supreme Court

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CONTENTS APRIL 2006

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: gazette@lawsociety.ie Law Society website: www.lawsociety.ie

COVER STORY: Publish and be damnedThe issue of blasphemy has hit the headlines once again.But what does blasphemy really mean in the context ofIrish law? Michael Kealey goes to hell and back in searchof answers

20FEATURES

Free radicalWaheed Mudah was granted the right to Irish residency,thanks in part to representations made by the Law Societyand some close friends. He spoke to Mark McDermottabout his experiences

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Schools of thoughtDiscipline, bullying, health and safety in crèches, andschool evaluations are still hot topics. But are the peoplemanaging schools competent to do so? Emer Woodfullworks it out

Can’t sue, won’t sueDespite recent activity in the enforcement of competitionlaw, private actions are rare when seeking remedies againstanti-competitive conduct on the part of businesses.Margaret Gray examines the issue

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Red card for refereesIt’s difficult for employers to refuse to give references andto avoid liability for their contents. But how can they besure that what they say never comes back to haunt them,ask Peter McInnes and Aoife Henry

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Get more at lawsociety.ieGazette readers can access back issues of themagazine as far back as Jan/Feb 1997 right up tothe current issue at lawsociety.ie.

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The turbulent ’20sPartition, the destruction of the Four Courts and the civilwar: we continue our celebration of our 100th volume.Mark McDermott delves between the dusty covers andpicks the best from the early ’20s

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NEWS APRIL 2006

■ WEXFORDFarewell to 1798Legal history will soon be madein Wexford with theannouncement that the oldcourthouse will be vacated anda totally new courthouseprovided in two years’ time.

The current courthouse atthe county hall has been one ofthe most importantcourthouses in the south-eastsince the 1800s. The buildinghad been used for some yearsby the British as a prison,following the 1798 rebellion.

“While we will be sad toleave such a historic building, itis important that we moveforward,” says John Garahy,honorary secretary of theWexford Solicitors’Association. The CourtsService had been working oncourt facilities in the south-eastand local solicitors weresatisfied that the public wouldsoon be getting a courtbuilding in Wexford that theadministration of justicedeserved and required.

Progress has also been madein reducing the backlog ofcases in the Circuit Court inthe south-east region, with thecourt sitting for significantperiods. Three judges havebeen hearing Circuit Courtcases since the beginning ofthis year – Judges OliveButtimer, Michael O’Shea andAlice Doyle.

Howdy doA strong attendance is expectedby the Wexford Solicitors’Association for their full-dayprogramme of CPD courses on20 April. “We plan to have fourexcellent speakers coveringbasic topics in conveyancing,efficient transfers of familyproperty, family law and

mergers and acquisitions,” saysJohn Garahy.

The programme will beginat 10am and continue to 5pm.“The idea is to include lunchand to add an important socialdimension to the day. This way,we can learn while getting toknow each other a bit better,”he added.

■ LIMERICKA tradition continuesThe Dermod Morrissey-Murphy Golf Classic 2006 willtake place again this summer,

organised by the Limerick BarAssociation. Alreadypreparations are afoot for thegolf classic, which has nowbecome an annual event.

“The event is a major fund-raiser here and achieved morethan €11,000 for charity lastyear,” says Ann MarieO’Hanrahan, honorarysecretary of the association.They hope to raise similarfunds this year. The benefitingcharities include multiplesclerosis and the Children’s ArkProject for sick children inLimerick Regional Hospital.

Dermod Morrissey-Murphy

died only a few years ago, buthis contribution to charitieswas such that the golf classic,which began in 2004, is in hisname and in recognition of hischaritable efforts, Ann Marienoted.

■ DUBLINHere comes the judgeDinners with all Dublin judgesof the Circuit Court and theDistrict Court are beingplanned for members of theDSBA. “This was originallybegun by John O’Connor when

he was president of the DSBA afew years ago and proved to bevery popular and helpful,”noted the DSBA’s honorarysecretary, Kevin O’Higgins.The DSBA will try to gainaccess for a broad spectrum ofsolicitors practising in litigation.

Ferry across the MerseyThe DSBA continues toencourage both greater cross-border and Anglo-Irish contactand understanding. The annualweekend for solicitors ofDublin, Belfast and Liverpoolwill be held in Liverpool nextmonth. Places are still available

and details can be got fromKevin O’Higgins, Blackrock, orfrom Maura Smith at theDSBA office, email:maura@dsba.ie.

■ LOCAL AUTHORITIESIt’s all rubbishThe law and rubbishcollection, incinerators andlitter are among the topics tobe covered at next month’sannual spring seminar of theLocal Authorities’ Solicitors’Bar Association (LASBA), to beheld in Cork.

There will be a series ofpapers on various legal aspectsof waste management, whichare important issues forsolicitors, notes Bryan FCurtin, secretary of LASBAand a solicitor with DúnLaoghaire-Rathdown CountyCouncil.

Let’s talkLast month, Bryan F Curtinrepresented LASBA at theannual dinner of Solicitors inLocal Government (SLG) atthe University of Warwick inStaffordshire. SLG is a body ofsome 4,000 solicitors in localgovernment in England andWales. Terence O’Keeffe, lawagent of Dún Laoghaire-Rathdown County Council andpresident of LASBA, attendedthe Scottish Local AuthorityAssociation (SLAA) dinner alsolast month. LASBA, SLG andSLAA are all organisations ofIrish, English, Welsh andScottish solicitors working inlocal government. All spoke ofsimilar problems and theexchange of views andinformation was helpful.

Nationwide is compiled by PatIgoe, principal of the Dublin lawfirm Patrick Igoe & Co.

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Pictured at a recent meeting with the Sligo Bar Association are LawSociety Senior Vice-President Philip Joyce (centre), flanked by SBA

president Ita Lyster and director general Ken Murphy

nationwide

Send your news to: Law Society Gazette, Blackhall Place,Dublin 7, or email: nationwide@lawsociety.ie

ONE TO WATCH: NEW LEGISLATIONCompetition (Amendment) Act 2006This act ends the ban on thebelow-cost selling of groceries andprohibits resale price maintenancefor food and drink. To balance this,certain practices are prohibited:unfair discrimination in conditionsfor doing business and seekingpayments for advertising or ‘hellomoney’. The act was substantiallycommenced on 20 March 2006 bySI no 127 of 2006.

The act is based on a report bythe Department of Enterprise,Trade and Employment on a publicconsultation on the GroceriesOrder. The Competition Authoritywill be responsible for enforcing

the act instead of the Director forConsumer Affairs. Any personaggrieved may also seek a civilremedy in the Circuit or HighCourt.

OutlineSection 1 inserts new sections15A, 15B and 15C into theCompetition Act 2002. Section 15Acontains definitions, section 15Bprohibits conduct by groceriesgoods undertakings and retailers,and section 15C gives rights ofaction for breach of section 15B.

DefinitionsThe definition of ‘allowance’ insection 15A is wide enough to

include advertising allowancesand ‘hello money’. The definitionof ‘grocery goods’ refers only tofood and drink and does notinclude other household goods,such as cleaning materials. Theprohibitions in section 15B,therefore, apply only to food anddrink.

The definition of ‘grocery goodsundertaking’ appears to be wideenough to cover any organisationor person involved in the chain ofproduction and supply. However,persons involved in the additive,ingredient or processing-equipment business are notaffected, nor do these provisionsapply to catering, restaurant or

take-away services, or the supply of intoxicating liquor forconsumption on the premises.Lastly, these provisions are inaddition to part 2 of the 2002act, which imposes criminalpenalties. This means that thesame undertaking or personscould be liable for criminal and forcivil sanctions for the sameactions.

ProhibitionsThe actions prohibited in section15B concern attempts to compelor coerce retail pricemaintenance (actual successwould probably result in anagreement prohibited by section

6 www.lawsociety.ie

LAW SOCIETY GAZETTE NEWS

I t may be a ‘LEAP’ into theunknown, but a new project

that has the backing of theLaw Society’s EducationCentre is going to change thelives of many underprivilegedstudents for the better.

The Legal Education forAll Project (LEAP) isattempting to encouragestudents from disadvantagedcommunities to consider acareer in the law. The projectwill introduce students to thelegal process and assist themin developing routes into legaleducation and information.

Following its launch at theLaw Society on 1 December, afollow-up seminar was held inthe Mansion House on 23March to give an update onthe project and to draw in newsupports. The seminar wasaddressed by the Deputy Mayorof Dublin, Councillor BronwenMaher, and President of theLaw Society Michael Irvine,who expressed the Law Society’ssupport for the initiative. TheSociety’s education centre isoffering different types ofassistance that will beincorporated into the training

Students LEAP into the unknown

of participants over the lifetimeof the project, which is fundeduntil December 2007.

The Mansion Houseseminar was co-chaired byDavid Joyce BL, who is thefirst member of the Travellercommunity to be called to theBar, and Brigid O’Donoghue,a tutor on the project.

Several participants spokeabout their involvement inLEAP. Tutors and mentors –Roderic O’Gorman, a PhD

student from Trinity CollegeLaw School, Brendan FoleyBL and Roisin Webb BL –spoke about their work.

To date, 20 participantshave been recruited – ten fromBallymun and ten from theTraveller communitynationally. Students are linkedto law centres, where they aregiven high levels of support toassist them in fast-tracking tolegal education. Tutors willdeliver weekly law modules

that will be accredited byFETAC.

LEAP is also working to: • Design legal studies

modules for communityorganisations, with the aimof providing accreditedmodules through informalroutes,

• Design and pilot a lawcourse for local secondaryschools. The aim is to makedisadvantaged communitiesaware of the possibility oflaw studies as a viable careeroption,

• Commission research todocument the project andits impact on participantsand on the providers oflegal education andtraining,

• Build solidarity withSlovakian partners, theKolping Foundation, on arange of issues and toexchange modules oflearning, principally inhuman rights law.

LEAP is funded by EUEQUAL, through theDepartment of Enterprise,Trade and Employment.

At LEAP’s Mansion House seminar were (l to r) Elizabeth Davidson (project coordinator), David Joyce BL, and President of the Law Society

Michael Irvine

7www.lawsociety.ie

NEWS APRIL 2006

4 of the 2002 act). Alsoprohibited are the application ofdissimilar conditions toequivalent transactions, thecompelling or coercion ofpayments or allowances foradvertising or display, and thecompelling or coercion of ‘hellomoney’.

But as well as breaching theseprohibitions, the conduct mustalso have as its object or effectthe prevention, restriction ordistortion of competition in trade.Thus, any breach of this sectionmust prove the action, and alsothe objective or likely effect. Thereason this additional proof wasconsidered necessary was to

avoid an absolute prohibition ofsuch behaviour by small playersin the market. In suchcircumstances, it would be hardto justify an absolute prohibitionin economic terms.

RemedySection 15C gives any aggrievedperson a right of action againstthe undertaking or personsconcerned. As mentioned above,the Competition Authority alsohas a right of action. Section15C(4) applies certainsubsections of section 14 of the2002 act to actions taken. Thismeans that an aggrieved personmay avail of the reliefs listed:

injunction, declaration, damagesand/or exemplary damages, andthe Authority may be granted adeclaration or injunction. Whereactions were taken by acompany, it is presumed thatthose in a position to be involvedin decisions on the actions wereinvolved.

Effect in practiceApart from removing the ban onbelow-cost selling, will the actmake much difference inpractice? It re-enacts existingprovisions of the GroceriesOrder. Unfair discrimination isalready dealt with by sections 4and 5 of the 2002 act. It is also

arguable that demands foradvertising allowances or ‘hellomoney’ are also covered bythose sections.

Proving attempts to coerceand compel may be difficult. Itmay also be difficult to provethat the object or effect ofactions prohibited by section 15Bis to limit competition.

It remains to be seen if themeasures introduced to balancethe lifting of the prohibition onbelow-cost selling in fact bringanything new.

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

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The International BarAssociation (IBA) has

launched a worldwide campaignto promote the rule of law. At arecent conference, the IBACouncil passed a resolution thatsaid ‘no’ to arbitrary arrests,secret trials, indefinitedetention without trial, cruel ordegrading treatment orpunishment, and intimidationor corruption in the electoralprocess.

According to IBA PresidentFrancis Neate, the resolutionwas proposed in response to theincreasing erosion around theworld of the rule of law. Theresolution, passed by theCouncil in Prague, deplores“the increasing erosion aroundthe world of the rule of law”.The IBA’s 20,000 memberscomprise more than 190 lawsocieties and Bar associationsacross the globe.

The resolution states: “TheIBA welcomes recent decisionsof courts in some countries thatreiterate the principlesunderlying the rule of law.These decisions reflect the

fundamental role of anindependent judiciary and legalprofession in upholding theseprinciples. The IBA alsowelcomes and supports theefforts of its member Barassociations to draw attentionand seek adherence to theseprinciples.”

The resolution continues:“An independent, impartialjudiciary, the presumption ofinnocence, the right to a fairand public trial without unduedelay, a rational andproportionate approach to

punishment, a strong andindependent legal profession,strict protection of confidentialcommunications betweenlawyer and client, equality of allbefore the law: these are allfundamental principles of therule of law. Accordingly,arbitrary arrests, secret trials,indefinite detention withouttrial, cruel or degradingtreatment or punishment,intimidation or corruption inthe electoral process are allunacceptable.”

“The rule of law is the

foundation of a civilisedsociety,” the resolution states.“It establishes a transparentprocess accessible and equal toall. It ensures adherence toprinciples that both liberate andprotect. The IBA calls upon allcountries to respect thesefundamental principles. It alsocalls upon its members to speakout in support of the rule of lawwithin their respectivecommunities.”

The authoritative statementon behalf of the world’s legalprofession is seen as animportant reminder to theUnited States and UnitedKingdom – long seen as modelsof respect of the rule of law – tomaintain acceptable standards.

The IBA president said:“The rule of law is a rare andprecious commodity. It is theonly method yet devised tocontrol the arbitrary exercise ofstate power. It is imperative thatthe global legal communitystands united in itscommitment to ensure that thefundamental principles of therule of law are upheld.”

IBA deplores the increasing globalerosion of the rule of law

Prague’s Vltava River: bluer than the Danube

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

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Tel: 01 672 4800, fax: 01 672 4801E-mail: a.gilhooly@lawsociety.ie, website: www.lawsociety.ie

9www.lawsociety.ie

NEWS APRIL 2006

Land Registry’s landdirect.ieat your fingertips

■ MINIMUM TERMS FOR

MURDERS

People found guilty of murder

involving aggravating factors,

such as the use of firearms or

gangland involvement, should

serve sentences of at least

15 to 20 years, the justice

minister has said.

Speaking at the launch of the

Parole Board’s annual report,

the minister said he wanted to

send out a message “loud and

clear” that respect for human

life must be a cornerstone of our

society. He said he wished to

dispel the notion that life

sentence prisoners were being

released after seven years.

■ IRELAND IN ‘DARK AGES’

Leading British human rights

solicitor, Imran Khan, has said

that he is “incredibly shocked”

by the findings of a new report

on institutional racism in

Ireland. The Breaking DownBarriers report, commissioned

by Amnesty International, found

that the government had failed

to acknowledge the existence of

racial discrimination in its laws,

policies and practices and had

failed to take meaningful steps

to combat it.

The report was written by Dr

Vinodh Jaichand and Louise

Beirne of the Irish Centre for

Human Rights at NUI Galway.

■ RETIREMENT TRUST

SCHEME

Unit prices: 1 March 2006

Managed fund: €5.73225

All-equity fund: €1.31632

Cash fund: €2.63687

Long bond fund: €1.36815

■ FRANK MURRAY APPOINTED

COMMISSIONER

The governments of Ireland and

Britain have jointly appointed

Frank Murray as Commissioner

of the Independent Commission

for the Location of Victims’

Remains. Mr Murray is currently

chairman of the Public

Appointments Service and is a

former secretary general to the

government.

The latest milestone in theLand Registry’s extensive

online service delivery strategy– landdirect.ie – will go live on28 April. The new system willreplace the internet service thatthe organisation has operatedsince 1999. It will providecustomers with an extended setof services that will enablethem to view and search itsvast database, using digitalmapping technology.

Until now, professionalcustomers wishing to inspectLand Registry maps, and locateownership details from suchmaps, had to visit the Registryoffices in person. For the firsttime, customers using the LandRegistry’s online service willnow be able to conduct mapsearches over the internet andview the results and detailsfrom the comfort andconvenience of their ownpremises.

Effectively, this is the finalpiece of a jigsaw that wasbegun in the mid 1990s. It willintegrate seamlessly with themajor information andcommunications technologiesinfrastructure operated by theRegistry.

From 28 April, accountholders will be able to conductonline searches of the LandRegistry map across the entirecountry in three ways, by:

• Entering the folio number, • Simply navigating the online

map, or by• Entering the postal address

of the property.

The Land Registry detail willbe overlayed on the currentOrdnance Survey Ireland(OSI) digital map series andwill also be linked to adatabase of addresses jointlyproduced by An Post and OSI,known as the GeoDirectory.

The project also coversdigitisation of the individualland parcels in each county.This programme has alsobegun, with Westmeath as theinitial county to ‘go live’. Theremaining 25 counties of theRepublic will be digitised overthe next five years.

The Land Registry’s onlineservice has enjoyed hugesuccess since it was introducedin 1999. Uptake and usage ofthe service continues to growsteadily within a thrivingproperty market. At present:• More than 9,200

subscribers – approximately85% of the Land Registry’straditional professionalcustomer base – regularlyuse the service,

• Over 90% of applicationsfor certain services are madeonline,

• More than 4,200 businesstransactions per day areconducted online,

• During 2005 alone, wellover one million serviceswere availed of online bycustomers.

The Minister for Children,Brian Lenihan, has said that

he is looking at how a statementon the rights of children couldbe put to the people in aconstitutional referendum.

The minister was speaking atthe launch of the Law Society’sreport Rights-based Child Law:

The Case for Reform on 21March (see page 15). Hestressed, however, that he wasspeaking in a personal capacityand that no governmentdecision had been taken on thematter. However, he was of theopinion that the proposal of theOireachtas Committee on the

Constitution on the issue couldnot be put to the people in itscurrent format.

Mr Lenihan stated that theprinciples underlying the 2001Children Act were sound. Anyamendments he was bringingforward were aimed atstrengthening it.

Minister for Children to look at puttingrights of children to the people

10 www.lawsociety.ie

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11www.lawsociety.ie

NEWS APRIL 2006

Mr Martin spent eightmonths in an individual

cell in Magilligan Prison. TheH-blocks at Magilligan werebuilt in the 1980s without in-cellsanitation facilities. The situationwas reviewed in 1993 and anelectronic locking system wasinstalled to enable prisoners tobe released to use the toiletsduring lock-up periods, whichwere lunchtime (90 minutes),teatime (60 minutes) and night-time (12 hours, sometimes 16hours).

The judgment goes intoconsiderable detail on thecircumstances that prevailed.Girvan J found that there was alack of clear directions to prisonstaff, there could be delays inreleasing prisoners, much wasleft to staff discretion, andsometimes staff were less thanconsiderate. Generally, prisonerswere not released to go to thetoilets after midnight. There wasa problem with hygiene, poorsanitation, smell, spillages,cleaning materials andhumiliation.

The judge examined theawareness among prisonauthorities of human rightsobligations under s6 of theHuman Rights Act 1998, which issimilar to s3 of the ECHR Act2003 in this jurisdiction. Hefound that those formulatingpolicy and devisingadministrative proceduresappeared to be insufficientlytrained in relation to humanrights obligations.

The plaintiff alleged that hisprivate life under article 8suffered an unjustified anddisproportionate interferencebecause of the sanitation regime,and that it amounted todegrading treatment under

article 3. The judge examinedthe Scottish slopping-outdecision in Napier ([2004] ScotCS). He also examined the Prisonand Young Offenders Centre Rules(Northern Ireland) 1995 and theEuropean Prison Rules 1987, bothof which stressed the need toensure prisoners’ human dignity,to treat prisoners at anacceptable standard, and theneed to avoid adding to thepunishment of imprisonment bythe removal of other rights andfreedoms. Girvan J held that thecircumstances were notcomparable with those in theNapier case and did not amountto a violation of article 3.

The prison authoritiesaccepted that more should havebeen done to achieve hygienicconditions. They also acceptedthat clear instructions to staff inrelation to cell release shouldhave been given and thatprisoners should also have beeninformed of their entitlement touse the toilets. They acceptedthat no analysis of procedures inthe light of conventionprovisions or health and safetystandards had been carried out.

Managing slopping outGirvan J held, following aprevious decision in Carson, ReApplication for Judicial Review([2005] NIQB 80, 20 April2005), that the lack of in-cellsanitation, in itself, did notestablish a lack of respect for theprisoner’s privacy rights underarticle 8. He also held thatconsiderable care in themanagement of the practice ofslopping out would be needed toavoid significantly demeaning aprisoner. The Prison Service wasbound to put in place andoperate a system that minimised,

so far as possible, interferencewith the prisoner’s rights. It had,on its own admission, failed toproperly direct its mind to therequirements of article 8 inrelation to the sanitation system.The judge set out what a focusedinquiry would have to consider(§ 36):a) How to keep to a minimum

the occasions when excretionwithin the cells has to occur;

b) How to make as inoffensiveand as hygienic as possible thecircumstances in which suchexcretion occurs;

c) How the disposal of bodilywaste material can be effectedas discreetly and hygienicallyas possible, in a way thatkeeps to a minimum theindignity and humiliatingnature inherent in any processof disposal;

d) How to set in placemechanisms designed toensure, so far as possible, theattainment of objectives (a),(b) and (c) – such mechanismsto include periodic reviewsand education of prisonersand staff.

The judge held that the plaintiffwas entitled to a declaration thatthe Prison Service had failed toadequately respect his right to

respect for his private life.The judge considered the

question of damages andexamined case law on thequestion of when damages areappropriate – and, if appropriate,how they should be assessed. Hereferred to Lord Woolf’sdiscussion in Anufrijeva vSouthwark London BC ([2004] 1All ER 833), in which LordWoolf concluded that damagesare not an automaticentitlement, but a remedy of lastresort.

Public interestGirvan J found that, while theplaintiff found the toiletingarrangements demeaning anddisgusting, they did not causehim anxiety or psychiatric orpsychological consequences, butrather annoyance andfrustration. There was noevidence he suffered from illhealth as a result of the poorhygiene. He held that the PrisonService did not set out todeliberately humiliate or demeanprisoners. The failure of thesystem was a failure tounderstand and appreciate theobligation to carry out a focusedenquiry with explicit reference toarticle 8. He concluded that,having regard to the widerpublic’s interest in the continuedfunding of a public service andthe financial consequences ofeven a modest award (in view ofthe large numbers of prisonersgoing through Magilligan), thegranting of declaratory reliefrepresented just satisfaction andan adequate remedy for theplaintiff.

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

G

Alma Clissmann reports on Martin v Northern Ireland Prison Service ([2006] NIQB 1, 6 January 2006)

human rights watchMagilligan, slopping out and article 8 of the ECHR

12 www.lawsociety.ie

LAW SOCIETY GAZETTE NEWS FEATURE

Members of the LawSociety will be aware of

the purchase of a 1.09 acreproperty, adjacent to BlackhallPlace, costing €22.4 million.The acquisition has beencompleted by a wholly-ownedsubsidiary of the Society –Benburb Street PropertyCompany Limited.

Law Society PresidentMichael Irvine says: “I believethat this acquisition is a verygood decision, from which thesolicitors’ profession willbenefit for a great many yearsto come.”

The property is situatedbetween Benburb Street andthe Society’s existing BlackhallPlace property. This is the lastundeveloped site on theSociety’s periphery. On theLuas line, it opens up thepossibility of access to the rearof the existing landlockedBlackhall Place property.

“The purchase of this site

Law Society purchases Benburbwas a strategic decision,” saysthe president. “The opportunityfor such an acquisition mightnever have occurred again. TheSociety is positioned at thecentre of a developing legalservices zone and this site canbe at the forefront ofdevelopment within that zone.”

Fair market valueIn the course of a lengthydebate at the Law SocietyCouncil, one Council memberseemed to sum up the view ofmost when he said that “veryfew purchasers ever regretacquiring the site next door”.

The total purchase price ofthe property was€20,425,000.Additional transaction costs,including survey, professionalfees and 9% stamp duty, bringthe full cost to €22.4 million.The Society’s overall incomein 2005, excludingcompensation fund income,was €17.5 million.

The acquisition can befunded by a combination ofreserves, management of cashflow, obtaining a ten-yearcommercial mortgageaveraging €7,500,000 perannum, and an addition to thepractising certificate feeaveraging €95 per solicitorper annum over a ten-yearperiod. The funding of theacquisition has beenundertaken on a conservativebasis. The financialprojections have beenapproved by the Society’saccountants and bankers.

At a purchase price of€20,425,000, a fair marketvalue has been paid for thesite. This has been confirmedby the Society’s professionaladvisers, based on valuesachieved recently for anumber of reference sites inthe immediate vicinity ofBlackhall Place. The valuersadvised that a slightly smaller

site in the immediate vicinityof Blackhall Place soldrecently for a sumrepresenting €19.5 millionper acre. The site that hasnow been acquired at BenburbStreet represents €18.57million per acre. The BenburbStreet site was not availablefor purchase in smallerparcels.

The site is zoned ‘Z5’,which includes educational,office, car park, retail orresidential use. Indeed, AnBórd Pleanála last yeargranted planning permissionfor a development on the siteof 141 apartments.

Lengthy debateThe Property Strategy Sub-Committee, as well as theFinance Committee, debatedthe issue at length, with thebenefit of comprehensiveprofessional advice. Bothrecommended the purchase tothe Council. The Council,having heard from theSociety’s property valuers,architects and financialadvisers, and following alengthy debate, resolved by avote of 29 votes in favour,with no votes against, topurchase the property.

Under a resolution passed atan annual general meeting anumber of years ago, theSociety’s Property StrategySub-Committee has the powerto acquire property. Anydevelopment of that propertythat would cost more than€635,000, however, requiresthe approval of the members ata general meeting. No specificplan exists for the developmentof the site. A special task forcewill examine all options andreport to the Council withspecific proposals. Members ofthe Society are encouraged to

In a strategic move that allows for future expansion, the Society has invested in a site adjacentto its Blackhall Place headquarters

13www.lawsociety.ie

NEWS FEATURE APRIL 2006

Street property for €22.4m

contact the president in writing with any queries orobservations. Michael Irvine

concludes: “I believe that thegreat majority of solicitorstoday, and in the future, will

view the purchase of thisBenburb Street site, like thepurchase of Blackhall Place, as

a wise and practical decisionmade in the long-term interestsof the profession.” G

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

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

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

“Conquer Cancer Campaign” is a Registered Business Nameand is used by the Society forsome fund-raising purposes. The“Cancer Research AdvancementBoard” allocates all ResearchGrants on behalf of the Society.

The course will be presented by ADR Group,Oliver J Connolly BL FCIArb and the Friarylaw team.

If you require any further information please callthe Friary at tel 8728405, email at admin@the friary.ie or visit the website at www.friarylaw.ie

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• The training course satisfies 35 hours of the LawSociety of Ireland’s CPD requirements.

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ADR (Alternative Dispute Resolution) has brought about a remarkablechange in the solving of civil and commercial disputes worldwide. The lateststatistics available from the US reveal the extraordinary impact of ADR,where civil and commercial litigation in the public fora of the courts is at aforty year low; similar trends are now emerging in the UK.

As a result of the lessons learned in both the US and the UK, Irish civil andcommercial society is embracing new and innovative forms of dispute reso-lution. Recent legislative change at national (Civil Liability and Courts Act,2004 & Statutory Instrument S.I. No. 2 of 2004 Superior Court Rules regard-ing Commercial Proceedings) and at EU level (pending EU MediationDirective 2007) underpin the emergence of Mediation as an essential toolin the fast and efficient resolution of civil and commercial disputes.Sophisticated clients are increasingly aware of the benefits of mediation;namely, a speedier and more cost efficient method of dispute resolution.

Friarylaw & ADR Group provide the most comprehensive Mediation train-ing, Professional accreditation and Case Management Services in thisjurisdiction. Friarylaw administer a structured pupilage programme for ouraccredited mediators and we are committed to assisting in the develop-ment of mediation practice of our panel members.

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Friary Chambers, The Friary, Bow Street, Dublin 7.Tel: 01 872 8405. Fax: 01 872 8409Email: admin@thefriary.ie. Web: www.friarylaw.ie

15www.lawsociety.ie

NEWS FEATURE APRIL 2006

Anew report published bythe Law Society has

identified serious weaknesses inchild law. In a wide-rangingstudy published on 21 March,the Society has called forreforms in the law to givegreater rights and protection tochildren.

The report puts forwardproposals for amending theConstitution that goconsiderably further than theAll-Party Oireachtas Committeeon the Constitution’s report onthe family, which was publishedin January (see Viewpoint, p16 ofthis issue).

The study, entitled Rights-based Child Law: The Case forReform, asks:• Should children conceived

through assisted humanreproduction have the rightto know the identity of theirbiological parents?

• Should it be possible todonate surplus embryosconceived using in vitrofertilisation techniques toinfertile couples, and if so,under what conditions?

• Is the new requirement of aparent’s PPS number for abirth certificate likely toresult in more fathersrefusing to register?

• When should the consent ofboth parents be required totreat a child?

• In the absence of legislation,how do we protect theposition of child donors oforgans and tissue?

• Do mature minors have theright to doctor/patientconfidentiality when theyseek contraception oraddiction advice?

• Should dependent foster orstepchildren be able to applyfor provision from the estate

of their deceasedfoster/stepparent?

The study was launched by theMinister for Children, BrianLenihan. It recommends specificrights for children as individuals– and not just as family members– based on the children’s rightschapter of the South AfricanConstitution.

Geoffrey Shannon, one of theLaw Society authors, said that

the Oireachtas committee’samendment recommendationdid not require that the child’sbest interests be paramount.This did not improve on theexisting situation, he said, wherechildren were already entitled toequal rights under theConstitution. The statementthat children’s interests shouldbe considered “when theirwelfare is at stake” could actuallyworsen the position of some

children, he said. He also warned that some

children were seriouslyvulnerable to having second-bestchoices made for them in theabsence of a constitutionalprovision protecting theirinterests.

“Without constitutionalchange, the rights of children inIreland will never be trulyrecognised, nor will Ireland liveup to … international law. TheCouncil of Europe recommendsthat we guarantee children’srights through explicitrecognition in constitutionaltexts,” he said.

Chief Executive of theChildren’s Rights Alliance,Jillian van Turnhout, said thatthe report’s findings weredisturbing. “Bad law meanschildren are left vulnerable toabuse and without a means tohave a say on decisions affectingthem.”

The study examinesmodernising rules on minors’autonomy in relation to healthcare. This raises sensitive issuesrelated to contraception anddrug addiction. For example, towhat extent should parents havethe legal capacity to consent totreatment for their children?

The study also looks atprotection for children’ssuccession rights in the eventthat they are orphaned or aconflict of interest arises withthe next of kin. It makesrecommendations to improvethem.

The Law Society’s study willbe submitted to the Departmentof Health and Children andcirculated among interestedorganisations as part of its on-going programme ofhighlighting areas of the law inneed of reform. G

Society launches wide-ranging studyon reform of child lawThe Law Society has launched a new report that calls for law reforms to give greater rightsand protection to children

AMONG THE REPORT’S CHIEFRECOMMENDATIONS ARE: • Legislation to clarify children’s rights to guardians ad litem• Measures to involve the Health Service Executive and the

Education Welfare Board in criminal cases involving children.• Training and codes of practice for professionals involved with

children in the criminal justice system, including judges, lawyersand members of the Garda Síochána.

• Measures to protect children in the asylum system. This wouldinclude the use of DNA tests where necessary to help protectagainst child trafficking.

• The best interests of the child to be paramount in decisionsaffecting separated children in the asylum system.

• The right of children for their identity to be upheld in law, includingin cases involving donated genetic material.

• The clarification of the law with regard to the consent of childrenand both parents to medical treatment for children, including theissue of organ donation.

16 www.lawsociety.ie

LAW SOCIETY GAZETTE VIEWPOINT

The All-Party OireachtasCommittee on the

Constitution published itsreport The Family on 24January. Based on a year-longprocess of public hearings andprivate deliberations, thereport examines the changingnature of the Irish family andmakes a number ofrecommendations.

While acknowledging thefact that the nature of the Irishfamily has changed since theadoption of the Constitution in1937, the committee hasrecommended retaining thetraditional definition of thefamily. Instead of proposing anamendment to article 41 of theConstitution to extend thedefinition of the family, thecommittee has recommendedlegislation to provide forcohabiting heterosexual andsame-sex couples.

The committeerecommends legislation toprovide for cohabitingheterosexual couples by eithersome type of registrationsystem or a presumptivescheme. A presumptive regimeprovides a scheme wherebycertain rights and dutiesautomatically accrue to couplesonce they have cohabited for acertain number of years.Significantly, the committee, inrecommending legislation bymeans of a registration systemfor same-sex couples, statesthat a presumptive schemewould not be appropriate.

The Law ReformCommission, in its 2004consultation paper, Rights andDuties of Cohabitees, proposes a

Falling short of ourpresumptive scheme for‘qualified cohabitees’, which itdefines as intimate non-maritalcouples who have livedtogether for at least three yearsin a ‘marriage-like’relationship – two years if thecouple has resident children.Unlike the committee, thecommission does notdiscriminate between

cohabiting heterosexualcouples and same-sex couples.The approach adopted by thecommittee is more thanlamentable in what is clearlyan equality issue. It also showsa disregard for the state’sinternational commitments onthe equality value.

Global endorsementThe committee refers to theNovember 2004 declaration ofthe Doha InternationalConference as “the most

recent global endorsement ofthe family as an institution”. Itcites this declaration indefence of “the institution ofmarriage”, stating that it wasadopted without a vote by theUnited Nations in December2004. That, however, was notthe end of the matter.

It can be seen from a pressrelease dated 6 December

2004 that, after the adoptionof the aforementionedresolution, the EU (includingIreland) withdrew from theresolution, citing as a primaryreason “the omission oflanguage previously acceptedat international levels, whichrecognised that the familystructure could take variousforms”. Another reason citedwas the need to reaffirm theimportance of the UnitedNations Convention on theRights of the Child 1989 (CRC)

as the foundation for familypolicy.

The failure of thecommittee to make referenceto the withdrawal from theresolution on the part of theEU is regrettable. The realityis that the Doha declaration isnot an authoritative source forthe protection of the maritalfamily.

A recommendation tochange article 41.2 of theConstitution to a gender-neutral form has also beenadvanced by the committee.The outdated and sexist natureof article 41.2, which assigns towomen a domestic role aswives and mothers, has longbeen criticised as beingdiscriminatory.

Paramount considerationThe current constitutionalposition in Ireland embodies a‘seen but not heard’ approachto children, an issue thecommittee sought to address.Apart from a right toeducation, children have nodefined rights under theConstitution. Our fundamentallaw fails to recognise the childas a legal person and lacks achild focus.

In 1993, the Kilkenny IncestInvestigation Committeerecommended thatconsideration be given toamending articles 41 and 42 soas to include a statement of theconstitutional rights ofchildren. In 1996, the Report ofthe Constitution Review Groupindicated the need to “put intothe Constitution an expressobligation to treat the best

At the recent launch of Rights-based Child Law: the Case for Reform, areport by the Law Society’s Law Reform Committee, were John Costello,Chairman of the Society’s Child Law Group, committee secretary AlmaClissmann, Minister of State Brian Lenihan, Geoffrey Shannon and Law

Society President Michael Irvine

The recent report on the family by an Oireachtas committee fails to meet a commitment given bythe State to recognise children’s rights, argues Geoffrey Shannon

17www.lawsociety.ie

VIEWPOINT APRIL 2006

obligationsinterests of the child as aparamount consideration inany actions relating tochildren”.

In 1998, the United NationsCommittee on the Rights ofthe Child, in its concludingobservations on Ireland’simplementation of the CRC,emphasised that therecommendations of the Reportof the Constitution Review Groupwould reinforce “the status ofthe child as a full subject ofrights”.

The Oireachtas committeehas recommended that a newclause should be inserted inarticle 41 of the Constitutiondealing with the rights ofchildren as follows: “Allchildren, irrespective of birth,gender, race or religion, areequal before the law. In allcases where the welfare of thechild so requires, regard shallbe had to the best interests ofthat child.”

The recommendation onchildren is worthy of closerscrutiny. It provides thatchildren, as between eachother, are equal before the law.This merely reinforces theconstitutional requirement ofequality contained in article40.1: “All citizens shall, ashuman persons, be held equalbefore the law.” The first

sentence of the proposedamendment does not thereforeseem to improve the positionof children under theConstitution.

The second sentenceprovides that regard should behad to the child’s bestinterests, where the welfare ofthe child so requires. It doesnot require that the child’s bestinterests must be paramount,nor does it elaborate on whatweight should be given to thebest interests of the child. Itappears also that the child’swelfare must be underconsideration before the ‘bestinterests’ rule will apply.Therefore, therecommendation does not give

children rights that may beapplied in a general andsystemic manner. Moreover,the proposal does not addressfundamental issues identifiedin the CRC.

Weak, ambiguous andindecisiveA decade after the Kilkennyinvestigation and the Report ofthe Constitution Review Group,and eight years after therecommendations of the UNCommittee on the Rights ofthe Child, the foregoingrecommendation of theOireachtas committee is weak,ambiguous and indecisive.Despite protestations to thecontrary, the proposal falls far

short of our internationalobligations, including therequirements of the CRC.The recommendation alsodeparts from the approachadopted by the ConstitutionReview Group, that theConstitution should beamended to include an expressguarantee of certain rights forchildren and an expressrequirement that in all actionsconcerning children, the bestinterests of the child must bethe paramount consideration.

In summary, thecommittee’s recommendationon children is a cleardeparture from therecommendations of variousexpert groups. It fails to meeta commitment given by thestate to the recognition ofchildren’s rights through thesigning and ratification ofvarious internationalinstruments. Moreimportantly, therecommendation will notcause a re-evaluation of Irishsociety’s view of children,which emerges from theKilkenny incest and Fernsinquiries as an importantrequirement.

Geoffrey Shannon is the LawSociety’s deputy director ofeducation.

G

viewpoint

Brian Lenihan addresses the audience at the launch in Blackhall Place

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19www.lawsociety.ie

LETTERS APRIL 2006

THE PIAB ACT AND APPLICATIONS TO JOIN CO-DEFENDANTS

letters

Send your letters to: Law Society Gazette, BlackhallPlace, Dublin 7, or email: gazette@lawsociety.ie

From: Patrick V Boland & Son,Solicitors, Newbridge, Co Kildare

We wish to bring it to theattention of the Society

that we recently brought anapplication to join a co-defendant before the Master ofthe High Court, and theMaster refused to make theorder, indicating that we wouldneed the consent of thePersonal Injuries AssessmentBoard to join the proposed co-defendant. The matter wasadjourned and, eventually, afterour senior counsel attendedbefore the Master, the Masterrefused to join the said co-

defendant. This necessitatedappealing the Master’s order tothe High Court and the matterwas heard before JudgeJohnson, who allowed theapplication joining DeerhavenLimited. He specifically ruledthat section 6 of the PIAB Actwas expressly designed to meeta situation as had arisen in ourcase.

We wish to bring this to theattention of fellow practition-ers, as when our counsel made initial enquiries in theLaw Library, he was informedthat the Master had beenmaking this order for some

time and solicitors wereapproaching the PIAB boardand obtaining the necessary

authority. This, to us, did notseem to be a correctinterpretation of the PIAB Actand, indeed, would havesubjected our client to thepossibility of being fixed withsubstantial costs and delay, asthe PIAB board had indicatedto us that we would have to filea claim in the usual manner andwould have to wait for theappropriate time periods toexpire. Incidentally, the HighCourt has had no difficulty todate in joining co-defendantson consent, where the applic-ation is that of a defendant tojoin a third party. G

DIPLOMA PROGRAMME 2006The Law Society of Ireland has been offering a variety of diploma and certificate courses for more then ten years. These courses are open to solicitors, barristers, trainee solicitors and members of the business community with the requisite knowledge and experience.

The lecturing teams are composed of solicitors, barristers, accountants and members of the business community and are allapproved by the Law Society. Candidates will be provided with the materials necessary to study for the diploma and in certain cases legislation will be provided. All of the courses culminate in examination(s) and successful candidates will beawarded a Law Society diploma.

DIPLOMA COURSES STARTING IN 2006:

Finance law Tuesday 19 September 2006

Employment law (new) Thursday 5 October 2006

Commercial conveyancing Saturday 4 November 2006

Diploma in property tax (Cork) Nov/December 2006

For further information, please access the diploma section on the homepage of the Law Society’s website or email us givingdetails of your name, address and area of interest.

Email: diplomateam@lawsociety.ie. Tel: 01 672 4802. Fax: 01 672 4890. Website: www.lawsociety.ie

20 www.lawsociety.ie

LAW SOCIETY GAZETTE COVER STORY

The publication of cartoons of theProphet Muhammad in European andUS newspapers and on television hassparked protests across the Muslimworld. Alone among Irish national daily

newspapers, the Irish Daily Star reprinted them.They were also published on an Irish-based website.

The cartoons first appeared in a Danishnewspaper, Jyllands-Pooten, last September. One ofthem shows the prophet wearing a headdress shapedlike a bomb, while another shows him saying thatparadise is running short of virgins for suicidebombers. Some Islamic tradition bans depictions ofthe prophet or Allah.

Many Muslims view the cartoons as blasphemous.Their publication has sparked a fierce debate aboutthe limits of free speech. Largely unnoticed, a

The issue of blasphemy has hit the headlines once again. But what does blasphemy really mean

in the context of Irish law? Michael Kealey goes to hell and back in search of answers

Publish and be

similar debate took place in Ireland not that longago when a case on the boundaries of free speechand blasphemy went as far as the Supreme Court.The case was Corway v Independent Newspapers([1999] 4 1R 484). In addition, in 1991, the LawReform Commission carried out a detailed review ofthe law on blasphemy and recommended that thegovernment amend a grossly outdated law. It has,thus far, failed to do so.

Article 40.6.1 of Bunreacht na hÉireann providesthat “the publication or utterance of blasphemous,seditious, or indecent matter is an offence”.Significantly, this appears as a reservation on theright to freedom of expression rather than in thatpart of the Constitution dealing with freedom toworship. The Defamation Act 1961 lays downpenalties for blasphemous publications innewspapers: these include a possible two-year prisonterm. Yet there is no definition of blasphemy in theConstitution or in any act of the Oireachtas.

Opium of the peopleIn 1937, Ireland was an almost exclusively Christiancountry with a predominantly Catholic population.Its constitution reflected that ethos. For example,the Constitution recognised the “special position” ofthe Catholic Church in Irish life. The prohibitionon blasphemy was clearly there largely to protectChristian churches from insult.

In 1995, a constitutional referendum to allow fordivorce, until then banned, was passed by a smallmajority. Many commentators viewed this as a signof the waning influence of the Catholic Church onpolitical life in Ireland. The then Sunday Independentcolumnist and former government minister, ConorCruise O’Brien, wrote an article to this effect. It was

• Crime ofblasphemy

• Corway vIndependentNewspapers

• English case law

MAIN POINTS

“The Constitution declares that the publication or utterance of blasphemousmatter is an offence, which shall be punishable in accordance with law: 1937Constitution, article 40(6)(1)(i). Every person who composes, prints or publishesany blasphemous libel is guilty of an offence: Defamation Act 1961, s13(1).However, blasphemy is not defined in the Constitution or in any act of theOireachtas and it is impossible to say of what the offence consists; neither theactus reus nor the mens rea is clear: Corway v Independent Newspapers ([2000]1 ILRM 426 SC and [1999] 4 IR 484 SC). It was for the legislature and not thecourts to define the crime (Corway case). See LRC 41, 1991, The Crime of Libel.

It is an offence to be guilty of riotous, violent or indecent behaviour in a chapelor churchyard or burial ground, or to molest, disturb, vex or trouble a preacher orclergyman celebrating any sacrament or divine service or rite: EcclesiasticalCourts Jurisdiction Act 1860, s2.”

From Murdoch’s Dictionary of Irish Law (4th edition), p110.

UTTER PROFANITY

DAMNED

21www.lawsociety.ie

COVER STORY APRIL 2006

21www.lawsociety.ie

22 www.lawsociety.ie

LAW SOCIETY GAZETTE COVER STORY

Section 13 of the Defamation Act 1961 provides: 1) Every person who composes, prints or publishes any blasphemous

or obscene libel shall, on conviction thereof on indictment, be liableto a fine not exceeding £500 or imprisonment for a term notexceeding two years or to both fine and imprisonment or to penalservitude for a term not exceeding seven years.a) In every case in which a person is convicted of composing,

printing or publishing a blasphemous libel, the court may make anorder for the seizure and carrying away and detaining in safecustody, in such manner as shall be directed in the order, of allcopies of the libel in the possession of such person or of anyother person named in the order for his use, evidence upon oathhaving been previously given to the satisfaction of the court thatcopies of the said libel are in the possession of such otherperson for the use of the person convicted.

b) Upon the making of an order under paragraph (a) of this

subsection, any member of the Garda Síochána acting under suchorder may enter, if necessary by the use of force, and search forany copies of the said libel any building, house or other placebelonging to the person convicted or to such other person namedin the order and may seize and carry away and detain in themanner directed in such order all copies of the libel found therein.

c) If, in any such case, the conviction is quashed on appeal, anycopies of the libel seized under an order under paragraph (a) ofthis subsection shall be returned free of charge to the person orpersons from whom they were seized.

d) Where, in any such case, an appeal is not lodged or theconviction is confirmed on appeal, any copies of the libel seizedunder an order under paragraph (a) of this subsection shall, onthe application of a member of the Garda Síochána to the courtwhich made such order, be disposed of in such manner as suchcourt may direct.

ROAD TO PERDITION

accompanied by a cartoon that showed threegovernment ministers from the so-called RainbowCoalition – including the then taoiseach, JohnBruton, Prionsias de Rossa and Ruairí Quinn –rejecting a host and chalice being offered by a priest.The caption to the cartoon was a play on an anti-divorce slogan “Hello, divorce – bye, bye daddy?”The cartoon’s heading was “Hello, progress – bye,bye Father?” The priest was drawn wearing an old-fashioned surplice and holding a chalice in one handand a host in the other.

A Dublin carpenter, John Corway, told the HighCourt that he had “suffered offence and outrage byreason of the insult, ridicule and contempt showntowards the sacrament of the Eucharist” in thecartoon. Echoing the views of many Muslims in thepresent controversy, he argued that anyrepresentation of the Eucharist was blasphemous.He sought to bring a private prosecution against thenewspaper.

Under the Defamation Act 1961, blasphemyprosecutions can only be brought if the High Courtapproves. Section 8 of the act provides that: “Nocriminal prosecution shall be commenced againstany … person responsible for the publication of anewspaper for any [blasphemous] libel publishedtherein without the order of a judge of the HighCourt...”

The need for this approval, of itself, reflects thelevel of controversy to which such cases can giverise. The High Court refused Mr Corway’sapplication and its decision was upheld by theSupreme Court.

In the High Court, Mr Justice Geoghegan saidthat the principles to be applied in deciding whetherthe requirements of section 8 were satisfied were:• Is there a prima facie case, that it is beyond

argument there is a case to answer before acriminal court,

• The blasphemy must be so serious that it isproper for the criminal law to be involved,

• Although not a necessary ingredient, whetherpublication could provoke a breach of the peace,and

• Does the public interest require the institution ofcriminal proceedings?

Judge Geoghegan was “of the opinion that theapplicant … failed to establish the very firstprinciple, to say nothing of the others”. TheSupreme Court upheld this decision.

Saints and sinnersWorryingly, as it is a criminal offence, the SupremeCourt was forced to conclude that “it is impossibleto say of what the offence of blasphemy consists”under Irish law. There had been no blasphemyprosecutions in Ireland for over 75 years and caselaw was scant. The court reviewed relevant Englishcases, including R v Lemon ([1979] AC 617), a causecélèbre involving proceedings by Mary Whitehouseover a depiction of Christ in a poem in the magazineGay News. It laid down a gauntlet to the Oireachtasby pointing out that “the task of defining the crimeis one for the legislature, not for the courts”. Yet ourlegislators have allowed almost 70 years to pass sincethe enactment of the Constitution without doing so.

It is even unclear which religions are protected.As they are specifically mentioned in theConstitution, they appear to include those from theJudeo-Christian tradition. However, in a prescientreference to the challenges facing the now moreculturally-mixed Ireland, Judge Barrington posedthe question: “What then is the position of theMuslim religion? Or of the polytheistic religionssuch as Hinduism? Would the constitutionalguarantees of equality before the law and of the freeprofession and practice of religion be respected if

“The failureof theOireachtasover the last70 years to legislate,or evendebate, theboundaries ofblasphemy isunfortunate”

23www.lawsociety.ie

COVER STORY APRIL 2006

one citizen’s religion enjoyed constitutionalprotection from insult but others did not?”

In Britain in 2003, a House of Lords selectcommittee report, Religious Offences in England andWales, found that the law of blasphemy there onlyprotected the Church of England. Catholicism, aswell as Islam, does not find shelter under thisbranch of the English common law.

Losing my religionA few years before the Supreme Court tackled thisissue, the Law Reform Commission had alsoconcluded that Ireland’s blasphemy laws were inneed of reform and were unlikely to withstand achallenge before the European courts. Thecommission said that it was “absurd” that a crimeexisted in Irish law, carrying a potentially lengthyterm of imprisonment, whose component partswere “totally uncertain”. It believed that the law ofblasphemy was discriminatory in that it onlyprotected religions in the Judeo-Christian tradition.

Accordingly, the Law Reform Commissionconcluded that the offence had no place in a societythat valued free speech. It recommended that itshould be abolished and religious adherentsprotected by incitement to hatred legislation. Butthe commission’s hands were tied because of theconstitutional ban on blasphemy – there would have

to be a referendum if the crime of blasphemy wereto be abolished.

The commission therefore reluctantlyrecommended a redefined, and more limited,offence of the publication of “matter the effect ofwhich is to cause outrage to the adherents to areligion by reason of its insulting contentconcerning matters held sacred by that religion” (cfLRC 41, 1991, The Crime of Libel, S21(3), p12). Theoffence would be extended to protect Christian andnon-Christian religions, including Islam. Theprosecution would, however, have to show that thepublisher knew that the material was likely to causeoutrage and that this was the sole intent.

The challenges posed by the newly religiously-diverse and multicultural Ireland are great. Thosechallenges are arguably greatest at the intersectionof freedom of expression – which westerndemocracies hold dear, and which carries theconcomitant right to give offence – and thedeeply-held religious views of many of the old andnew Irish. The failure of the Oireachtas over thelast 70 years to legislate, or even debate, theboundaries of blasphemy is unfortunate. As eventsof the last few months have shown, this issue is notof academic legal interest.

Michael Kealey is a partner in William Fry.

G

24 www.lawsociety.ie

LAW SOCIETY GAZETTE EMPLOYMENT LAW

While one used to be able to saywith a reasonable degree ofconfidence that there was noabsolute obligation on employersto provide an employee with a

reference, English case law has developed a numberof exceptions to the proposition. It would nowappear that, in certain circumstances, an employeecan require an employer to give a reference. Britishcase law suggests that it may be appropriate, in somecases, to imply a term into a contract of employmentthat the employer will provide the employee with areference at the request of a prospective employer.We would suggest that the body of English case lawthat has developed over the last number of yearswould most likely find favour in the Irish courts.

There are several legal questions that flow fromthe issue of employment references. For example:• Is there a general legal obligation on employers to

provide an employee with a reference? • If such an obligation exists, what information

should a reference contain?• What are the potential legal consequences of a

breach of this obligation, should it exist?• To whom might an employer owe a legally

enforceable obligation in relation to theprovision, and the contents of, a reference?

• Does the increasingly common practice ofproviding brief factual statements of employmentmeet an employer’s obligations?

‘Kiss of death’The leading case is Spring v Guardian Assurance([1995] 2 AC 296). The plaintiff was dismissed fromhis position of sales director (designate) and officemanager by the defendant. He subsequently soughtto sell the insurance products of another company.Under the rules of the Life Assurance and UnitTrust Regulatory Organisation (LAUTRO), theother company was required to seek – and thedefendant to supply – a reference before they couldappoint the plaintiff as one of their representatives.In consequence of the unfavourable reference

supplied (described by the trial judge, with very littleunderstatement, as the “kiss of death”), the othercompany declined to appoint the plaintiff.

The plaintiff brought an action against his formeremployers on several grounds, including negligentmisstatement, malicious falsehood and breach ofcontract. The plaintiff would presumably haveincluded a claim of defamation but for the fact thatthere is no legal aid in Britain for such claims. TheHouse of Lords observed that the defendant mighthave had a good defence to any such claim on thebasis of qualified privilege, but that this line ofdefence would not avail the defendant to a claimbased on the tort of negligence.

The Lords held that an employer who gives areference in respect of a former employee owed thatemployee a duty to take reasonable care in itspreparation, and would be liable to him in negligenceif he failed to do so and the employee therebysuffered economic damage. Interestingly, the Lordsdid not draw a material distinction as to whether theplaintiff had been an employee of the defendant oracting under a contract for services.

The Lords also held that an implied term of thecontract existed between the plaintiff and thedefendant to ensure that reasonable care was taken inthe compiling and giving of the reference, and thatthe defendant was in breach of that implied term.

Hope springs eternalLord Slynn commented, albeit obiter, that even ifthere is no universal duty on an employer to give areference, it would seem that contracts may existwhen it is necessary to imply such a duty. He alsosaid: “It is a relevant circumstance that, in many cases,an employee will stand no chance of getting anotherjob, let alone a better job, unless he has been given areference.”

Furthermore, Lord Woolf attempted to specify thecircumstances that would enable such a term to beimplied. Those circumstances are: 1) The existence of the contract of employment or of

services,

Red card for

It’s increasingly difficult for employers to refuse to give references and avoid liability for their

contents. But how can they be sure that what they say never comes back to haunt them, ask

Peter McInnes and Aoife Henry

REFEREES• Obligation to

provide areference

• English case law• Employee

remedies

MAIN POINTS

25www.lawsociety.ie

EMPLOYMENT LAW APRIL 2006

2) The fact that the contract relates to anengagement of a class where it is normal practiceto require a reference from a previous employerbefore employment is offered, and

3) The fact that the employee cannot be expected toenter into a class of employment, except on thebasis that the employer will, on the request ofanother employer made not less than a reasonabletime after the termination of the previousemployment, provide a full and frank reference tothe employer.

In Spring, there was a duty on the employer toprovide a reference under the LAUTRO rules.However, not every industry has guidelines ascomprehensive, and the issue of whether there is acustom in a particular industry to provide referenceswill, more often than not, be a question of fact. Wewould, however, suggest that the tests laid out byLord Justice Woolf could be readily applied to awide variety of industry sectors in Ireland.

The existence of an obligation to provide areference was approved by subsequent British cases,also in the insurance industry: Kidd v Axa Equity &Life Assurance Society plc ([2000] IRLR 301) and Cox &

Cross v Sun Alliance Life Limited ([2001] IRLR 448).The duty of care set out in Spring was extended in

Bartholomew v Hackney London Borough and Another([1999] IRLR 246). In Bartholomew, the Court ofAppeal held that, on giving a reference to a formeremployee, a former employer owed a duty of care tothe former employee to provide a reference that wastrue, fair and accurate. It stated that, in order todetermine the fairness of the reference, it wasnecessary to have regard to the whole of thereference and the surrounding context, as a numberof discrete statements, though factually accurate inthemselves, could nevertheless – read as a whole –give an unfair, or potentially unfair, impression to arecipient of the reference. Significantly, it was heldthat it is not necessary that a reference, in everycase, be full and comprehensive.

Duty of care to future employers?We would suggest that it has long been the case thatan employer who provides a reference owes not onlya duty of care to the employee but also to the thirdparty recipient of that reference. The fact that thethird party and the employee will rely on thereference is clearly foreseeable. This creates a duty

26 www.lawsociety.ie

LAW SOCIETY GAZETTE EMPLOYMENT LAW

The possible remedies available to an employee for failure to providea reference, or for provision of an inaccurate reference, could include:• Breach of contract• Negligence• Unfair/constructive dismissal• Defamation• Malicious falsehood• Discrimination• European Convention on Human Rights Act 2003• Constitutional right to earn a livelihood• Data protection rights.

If an employer undertakes (or a duty is imposed on it) to provide areference and it fails to do so, this may be a breach of contract. Theemployee may be able to claim a breach of the employer/employeemutual duty of trust and confidence.

Employers should be aware that a reference given on terminationmay subsequently reappear in any dispute arising from thetermination. Accordingly, a reference should not be embellished toassist an employee in gaining future employment, as it may restrictan employer’s defence in any such claim. It could also expose anemployer to a claim from a third-party recipient of the reference.

Employers should also be wary of including details ofinvestigations, complaints or allegations of which an employee is

unaware in a reference (see TSB Bank v Harris, [2000] IRLR 157).The British case of Coote v Granada Hospitality ([1999] IRLR 452)

suggests that a refusal by an employer to provide a reference may befound to constitute discrimination under equality legislation.

Alleged breaches of various provisions of the European Conventionon Human Rights have been unsuccessfully advanced in recent Britishcases in the area of references: Griffith v Newport County BoroughCouncil ([2001] EWCA Civ 1860) and Legal and General Assurance vKirk ([2002] IRLR 124 CA). There is, however, potential for the rightsrecognised by the convention to have application in this area.

Under the 1988 and 2003 Data Protection Acts, an individual hasthe right to obtain a copy, clearly explained, of any informationrelating to him/her kept on computer or in a structured manual filingsystem, including personnel records.

The acts also provide that personal data containing expressions ofopinion about the data subject may be given to the data subjectwithout the permission of the person who expressed that opinion.This does not apply if the expression of opinion was given inconfidence or on the understanding that it would be treated asconfidential.

Accordingly, an employer may restrict itself to giving onlyconfidential expressions of opinion as references, in order to preventformer employees gaining access to references under data protectionlegislation.

EMPLOYEE REMEDIES

of care, on the basis of the accepted principles setout in the famous case of Hedley Byrne & Co Limitedv Heller & Partners Limited ([1964] AC 465).

The duty arises because the employer has specialknowledge derived from experience of theemployee’s character, skill and diligence whileworking for the employer. When the employerprovides a reference to a third party, he does so notonly for the assistance of the third party, but also forthe assistance of the employee.

What emerges from this case law is that there isstill no absolute obligation to provide a referenceand no requirement, where it is given, that it must befull and accurate in every respect. However, it must betrue, accurate and fair. Overall, the reference must notgive a misleading impression.

Damned by faint praiseRecent case law has contributed to the increasingpractice of employers adopting a formal policyregarding the provision of references. It is nowrelatively common for employers to only providereferences in the form of a brief ‘statement ofemployment’, containing only very basic, factualinformation concerning the employee.

However, in light of the Bartholomew case, there is aquestion as to whether or not the non-disclosure of amaterial fact on a ‘statement of employment’ wouldmeet the duty of care, developed by case law, to bothemployee and, perhaps in this context more particular-ly, a third-party recipient. Also, any prospectiveemployer who receives such a bland reference mayconsider the employee to be ‘damned by faint praise’.

An increase in the attempted use of disclaimers inrelation to references has also been noted. Where adisclaimer is used, it should pass the ‘reasonableness’test. It is questionable if any disclaimer of liabilitywould be held to be operative as against the employee.It is also extremely doubtful if a disclaimer couldexclude liability for any misstatement of facts thatwould normally be expected to be within theemployer’s knowledge. These would include matterssuch as performance or disciplinary record. Adisclaimer may be reasonable in relation to an opinionon the employee’s suitability for a particular position orjob.

It goes without saying that it would be unwise foremployers to divulge their true feelings about anemployee over the phone to a prospective employerwhere they have not been divulged in a writtenreference. How could an employer be certain that whatis said would never come back to haunt them?

It is becoming increasingly difficult for employers torefuse to give references and to avoid liability for theircontents, although it does remain to be seen whetherthe Irish courts will adopt the jurisprudence of theBritish courts. Consequently, significant care must betaken by an employer when preparing an employmentreference. The practice of providing ‘statements ofemployment’ is likely to increase, but employersshould be wary of omitting material facts relating tothe employee’s employment that could result in abreach of the duty of care imposed by case law.

Peter McInnes and Aoife Henry are solicitors in theemployment law unit at Mason Hayes & Curran.

G

27www.lawsociety.ie

INTERVIEW APRIL 2006

Waheed Mudah is animated,friendly and direct. He’s alsoextremely honest – as evidencedby his description of his arrival inIreland as an asylum seeker in

July 2001. Before coming here, he had practised as asolicitor, having been called to the Bar in Nigeria.(There is no distinction between solicitors andbarristers in that country.) He says that heexperienced nothing untoward in Nigeria that meanthaving to leave his home country, but it was theprospect of a better life for him and his wife thatencouraged his departure.

“When you are somebody from a non-EU countryand you are seeking residency here, it is known toyou, me and most people that the majority of asylumseekers are not asylum seekers in the true sense. It’sjust to give you a platform to get a visa or permissionto remain in the country. So I applied first and wasrefused. I appealed, making my application undersection 3 of the Immigration Act 1999 – which is forleave to remain on humanitarian grounds. As soon as

I came into this country I had in mind to work as asolicitor, having already served in the legal professionin Nigeria.”

Waheed and his wife Kemi were transferred to ahostel in Tramore, Co Waterford. “Fortunately, thebarrister who was appointed to us was Kieran Kelly.Since he was one of the first contacts I had with thelegal profession in Ireland, I asked Kieran how to goabout seeking permission to practise here as a solicitor.He told me that I should contact the Law Society.

“I put in an application seeking the consent of theLaw Society to allow me to start my legal training. Ialso made contact with the law school at GriffithCollege, where I met Philip Burke, who advised menot to go ahead with the entrance examination forthe preparatory course until I got the consent of theLaw Society. When the consent came in October2002, I registered at Griffith College and startedtraining for the FE1 entrance examination. In 2003,I passed all the exams. I did the preparatory course,got my results and was left with the option of findinga master for my traineeship.

radicalFREE

Asylum seeker Waheed Mudah was

granted the right to Irish residency,

thanks in part to representations

made to the justice minister by the

Law Society and some close friends.

Waheed spoke to Mark McDermott

about his experiences

• Seeking asylum• The search for a

master• Experiencing

free speech

MAIN POINTS

28 www.lawsociety.ie

LAW SOCIETY GAZETTE INTERVIEW

“I went all over Dublin looking for someone totake me on as an apprentice. It was very, verydifficult. I want to tell you, it is easier to pass theFE1 exam than to get an apprenticeship!”

Getting nowhereAt this time, he returned to Kieran Kelly again,looking for some advice. Waheed had made morethan 200 applications but was getting nowhere.“Kieran told me to continue until I had made asmany as 500 applications. I thought that because Iwas from Africa doors were refusing to open, butspeaking to other people I realised that the problemwas not peculiar to me. Not having roots andconnections here, however, was definitely adisadvantage.”

Eventually, after he had made about 300applications, Kieran spoke on his behalf to solicitorKevin Tunney, who promised to try some othercontacts. “I want to tell you, it was all in thenegative,” says Waheed. “Nobody was prepared totake me on.

“I discovered that the biggest obstacle was money.Most people out there think that, just because youare a legal practitioner, you are rolling in money.This is not the case for all practitioners – some arestruggling to make ends meet. It was the fear ofhaving to pay an apprentice that deterred many fromtaking me on.

“I got to the stage wondering if anyone wouldhelp me. I was going about some business at theFour Courts one day when I saw Niall Sheerin,whose office is nearby. I explained my situation. Heasked me to give him two days. Between Niall andKevin, we eventually got it sorted out, which meantthat I could now register in the Law Society. Thiswas in October 2004.”

Grasping everythingBefore moving to Ireland, Waheed graduated with anLLB degree from the University of Sokoto in Lagos,and followed it up with a BL.

How has he been finding his studies here? “Youhave so much information put before you. Whatwould take nine to ten months in Nigeria would becovered in six months in Ireland. There is so muchinformation put in front of you and they expect you

to grasp everything!” Waheed hopes to qualify by the end of 2006. The

most difficult aspect of his studies, he says, has beenwith communication. “As a non-national solicitoraspiring to practise in Ireland, it is not that easybecause I have a problem with my communication.You see, we speak very quickly in Nigeria. It is noteasy talking in another society, to integrate and to tryto learn how to speak slowly. To help me with this, Ihave joined Toastmasters. You have to move outsideyourself, because you are in another communityentirely. People who are relating to you want toknow about you. If you continue to have friends onlyamong your own people, it is very difficult tointegrate into society.”

He says that he would like to specialise inimmigration and criminal litigation when hequalifies. “But even if I want to specialise, I will haveto look after my clients first,” he says. “In the nextfive or six years, people who are getting residencytoday will want to buy their own private houses,which means that conveyancing is an area I will haveto go into.”

Despite the initial setbacks, Waheed says that he isvery happy with his new life in Ireland. “They havegot so many solicitors in Nigeria, but practice thereis not as rewarding as it is here. You give advice topeople here – you get your fees. In Nigeria, in ourculture, the only time clients want to come to you iswhen they see that they cannot resolve the matteramong themselves. It’s not a priority to go and getlegal advice. People prefer to resolve affairs amongthemselves, among the family.”

And is that not preferable, in one sense? “Well itcould be, but how would solicitors live if everybodysettled matters themselves! All joking aside, thereason I say it is more rewarding here is that peoplevalue what you do.”

Danish cartoonsWaheed’s ethnic background is Yoruba – one of themajority tribes of Nigeria – a fact of which he’s veryproud. “I am a Yoruba man from Erin-Ile, KwaraState, north of Nigeria, and a Muslim.” He says thatYoruba Nigerians distinguish themselves from otherethic Nigerian groups by being highly educated andhard working.

• The Federal Republic of Nigeria in western Africa isthe continent’s most populous country. Nigeria re-achieved democracy in 1999 with the adoption of anew constitution, following a 16-year interruption bya series of corrupt and brutal military dictators.

• From 1966 until 1999, Nigeria had been ruled(except the short-lived second republic, 1979-1983) by military dictators who seized (orattempted to seize) power in coups and counter-coups.

• Nigeria borders the Republic of Benin in the west,Chad and Cameroon in the east, Niger in the northand the Gulf of Guinea in the south. Major citiesinclude the capital Abuja and the former capitalLagos, among others.

• The country’s name comes from the river Niger. • Although the April 2003 elections were marred by

some irregularities, Nigeria is currently experiencingits longest period of civilian rule sinceindependence.

NIGERIA IN BRIEF

29www.lawsociety.ie

INTERVIEW APRIL 2006

Being a Muslim, what’s his take on the recentDanish cartoons controversy over depictions of theProphet Mohammed? “What is happening all aroundthe world is down to the failure of Muslims todialogue with people about their Islamic faith,” heanswers. “The Koran says that you must obey theconstituted authority, no matter what. But what ifthat authority commits atrocities all over? In Islamiccountries, people do not question authority. I am notnecessarily talking about God here – just theconstituted authority, you understand. Islam enjoinsobedience to constituted authorities and discouragesus from judging others. It is for God alone to judge.

“The problem is that we fail to dialogue – toexplain this to people. Let’s be honest with ourselves,most of the rights that Muslims have in the westernworld are not enjoyed by westerners in some Muslimcountries. I mean, it is something that has to beconsidered.

“People in my country have been ruled manytimes by the military. They don’t believe that thereis something like free speech until they come toplaces like Ireland. What we see here is democracyin practice – the majority of us have notexperienced it back home before we came toIreland. When Nigerians and many others from theThird World come here and witness free speechthey are surprised. In Ireland, a western democracy,you live a fulfilled life – so much so that you do notwant to go back. You are content with what younow have.”

“In all of this I owe a great deal of gratitude tomany people – among them, the Law Society ofIreland and, in particular, the director general KenMurphy, my training solicitor Kevin Tunney, andvery many others for their support in making myresidency and dream of practising as a solicitor inIreland a reality.” G

30 www.lawsociety.ie

LAW SOCIETY GAZETTE COMPETITION LAW

In April, May and June of 2004, the DPP tookproceedings against 24 defendants in 11 DistrictCourts across the west of Ireland. The chargesrelated to allegations of fixing the price of gasoil and kerosene and followed a Competition

Authority investigation. During March 2006, anumber of defendants were tried and sentenced,including one defendant who was tried at GalwayCircuit Court and received a fine of €3,500. Anotherdefendant, who pleaded guilty to the relevant charges,received a six-month suspended sentence and a fine of€15,000. Clearly, competition law is not to be takenlightly.

Fair tradeAnother news item was Minister for Enterprise, Tradeand Employment, Micheál Martin, signing the orderto commence the Competition (Amendment) Act 2006with effect from 20 March 2006. That act abolishesthe Restrictive Practices (Groceries) Order 1987, whichprohibited retailers from passing on off-invoicediscounts to customers. It also amends the CompetitionAct 2002 by creating four separate civil offences foranti-competitive conduct in the grocery market. Thenew section outlaws resale price maintenance, theapplication of dissimilar conditions to equivalenttransactions and the requirements of paying retailersin exchange for advertising or displaying grocerygoods in their stores and of paying retailers ‘hellomoney’ for providing shelf space for goods. Theseoffences relate to conduct in the grocery goods tradenot already covered by the Competition Act 2002. Suchconduct must also be shown to have as its object oreffect the prevention, restriction or distortion ofcompetition in trade in grocery goods in Ireland orany part of it (the so-called ‘competition test’). Theprohibitions are enforced by the CompetitionAuthority, which has the right to sue for breaches, aright also available to any person aggrieved by suchconduct.

Despite recent activity in the public enforcement of

competition law, private actions seeking remedies

against anti-competitive conduct on the part of

businesses are rare. Margaret Gray examines the issue

So, will the new causes of action invite a rash ofsuits against the bigger players in the grocery sector?“Highly unlikely” was the unequivocal response of anumber of experts speaking at a March conferenceorganised by Competition Press that addressed theimpact of these amendments as well as wider aspectsof competition law enforcement in Ireland. Forstarters, in situations that require the examination ofallegedly anti-competitive commercial conduct in thepast and over a potentially short period of time,evidentiary problems loom for any private partyconsidering claiming – this is particularly true asregards meeting the ‘competition test’. Moreover,there are a number of general obstacles to bringingclaims in this field, which means that, while private

31www.lawsociety.ie

COMPETITION LAW APRIL 2006

The role of private parties bringing civil actions andcontributing to a more effective enforcement of theEC antitrust regime has, however, been a key themerunning through recent public statements ofCommissioner Kroes, the member of the Commissionin charge of competition policy. Kroes views privateenforcement not only as a device for “optimising theimpact of competition policy” but also as a way ofproviding direct justice via the courts. That potential isnowhere near being realised. A 2004 study for theCommission revealed that, despite the possibility ofbringing an action for breach of antitrust rules as amatter of a general right of EC law or on foot of aseparate right protected by national law, the memberstates’ legal systems were in a state of “totalunderdevelopment”. The figures tell the story: therehave been around 60 judged cases for damages actions(12 on the basis of EC law, around 32 on the basis ofnational law and six on both). Of these judgments,only 28 resulted in an award being made (eight on thebasis of EC competition law, 16 on national law andfour on both). According to the Irish contribution tothat study (see Ireland Report, available athttp://europa.eu.int/comm/competition/antitrust/others/actions_for_damages/study.html), there hasonly been one award of damages for infringement ofIrish competition law (Donovan and others v ElectricitySupply Board [1994] 2 IR 305, [1997] 3 IR 573) andnone as regards EC law. There have been claims forbreaches of article 81 and article 82 in civil actions

actions are not entirely impossible or withoutprecedent, they are rare. More radical change wouldbe required to encourage private actions.

Bringing competition closerThis litigation malaise in the competition field is notconfined to the Irish courts but spreads to the rest ofthe EU, as a recent EC Commission Green Papershows (Damages Actions for Breach of the EC AntitrustRules, COM [2005] 672 available at http://europa.eu.int/comm/competition/antitrust/others/actions_for_damages/index_en.html). The Green Paper providesa useful summary of the disincentives to bringingclaims for infringements of EC competition law.Similar disincentives apply to bringing claims forbreaches of Irish competition law. The Green Paper ispart of a Commission programme that aims toencourage damages actions for infringements ofantitrust rules, which could bring radical change tothe competition enforcement regime. If, looking tothe future, such legislative changes are made, plaintiffsappearing before Irish courts could benefit fromprocedural changes, specifically as regards the burdenof proving an infringement and loss, quantification ofdamage and costs, making it easier for them to bringcivil actions for damages caused by anti-competitivebehaviour. Why does the current situation ofcompetition law enforcement require such drasticreforms? A quick synopsis can put us in the picture(see panel p32).

• Enforcement ofcompetition law

• Private civilactions

• EC CommissionGreen Paper

MAIN POINTS

The Competition(Amendment) Act 2006– removing hurdles forcustomers?

CAN’T SUE

sue?won’t

32 www.lawsociety.ie

LAW SOCIETY GAZETTE COMPETITION LAW

before the Irish courts: see, for example, CadburyIreland Ltd v Kerry Co-Operative Creameries Ltd andDairy Disposal Co Ltd [1982] ILRM 77 and MasterfoodsLtd v HB Ice Cream Ltd and HB Ice Cream Ltd vMasterfoods Ltd [1993] ILRM 145.‘Underdevelopment’ is an understatement.

The Green Paper does not provide a clear solutionto the disincentives facing parties contemplatinglitigation to protect their rights. Rather, it poses anumber of questions and offers a range of options.Depending on which options are adopted, damagesactions could be made subject to specific proceduralrules which would make them easier to bring under anew procedural code distinctly different from thatgoverning civil actions. Private parties would derivesignificant incentives to litigate if some of the optionsdiscussed by the Commission are adopted in practiceas regards evidentiary rules, quantification of damagesand costs.

Shifting the burden of proofAssistance to the plaintiff is proposed, first, by ashift of the burden of proof in cases of ‘informationasymmetry’ between the plaintiff and defendant,alleviating any weak disclosure rules applicable to

the plaintiff. Secondly, an unjustified refusal by aparty to provide evidence could shift the burden ofproof. This could vary between, on the one hand, arebuttable presumption or an irrebuttablepresumption of proof and, on the other hand, themere possibility for the court to take that refusalinto account when assessing whether the relevantfact has been proven.

Another related difficulty identified by theCommission is the fact that evidence that is key tomaking damages claims effective is often held by theparty committing the anti-competitive behaviour. Toalleviate this problem, the Commission suggests anobligation of disclosure of documents either byindividual relevance or by class, as well as anobligation to preserve and a sanction for thedestruction of evidence. The Irish courts could,subject to the preservation of confidentiality ofbusiness secrets, be given access to documents held bythe Commission.

Doing the mathsArguably, the most controversial proposals and thoselikely to be of most interest to clients concern thescope and quantification of the damages claim. Shouldan award be calculated by reference to the losssuffered by the plaintiff (compensatory) or to theillegal gain made by the infringer (restitutionary)? Anaward made on the latter basis is far from theestablished principles of Irish tort law, which allowdamages to be recovered for loss suffered by a plaintiff(see Donovan and others v Electricity Supply Board [1997]3 IR 573). Even more foreign to the Irish courts is thepossibility raised by the Commission that, in the caseof ‘hard-core’ infringements – such as price-fixingcartels – damages could be doubled at the discretionof the court. (Section 14(5) of the Competition Act 2002does provide that exemplary damages may be awardedto the plaintiff in an action for breach of section 4 or5. However, according to the Ireland Report, citingKennedy v Ireland ([1987] IR 587), exemplary damagesare rarely awarded in Ireland and are usually relativelymodest.) This would bring the EC position closer tothat in the United States, where section 4 of theClayton Act permits any injured person to bringactions for treble damages for federal antitrustviolations.

Favourable rules on costs would further strengthenthe position of the plaintiff. Bringing an action forinfringement of antitrust provisions, which almostcertainly involves complex factual evidence and expertevidence as well as a team of specialist legal advisers, isan expensive business. The substantial costs incurredare likely to deter potential plaintiffs, particularly inborderline cases. To get over that disincentive and toensure effective access to courts, the Commissionproposes either establishing a rule that unsuccessfulplaintiffs pay costs only if they act in a manifestlyunreasonable manner, or giving the court adiscretionary power to order, at the beginning of a

The competition rules are set down in article 81 of the EC Treaty, which prohibits anti-competitive agreements, decisions and concerted practices, and article 82, whichprohibits the abuse of a dominant position. The corresponding provisions in Irish laware section 4 and section 5 of the Competition Act 2002. These prohibitions operateas deterrents to anti-competitive behaviour and provide protection to competitors andconsumers. In Ireland, the prohibitions are enforced by public, private, criminal andcivil law procedures.

On the one hand, as regards public enforcement, the role of the CompetitionAuthority, which can bring summary criminal proceedings, can ask the DPP to bringcriminal proceedings on indictment, and can initiate civil suits for breaches ofeither prohibition, is key. It was the Competition Authority that referred theConnaught home-heating oil cartel to the DPP. It was also the CompetitionAuthority that successfully brought proceedings against the Irish League of CreditUnions, seeking declarations and injunctions in respect of anti-competitivepractices operated by it. Public enforcement of competition law, both at nationaland EU level, is in the driving seat.

On the other hand, as regards private enforcement, a right of action for anyperson aggrieved by conduct prohibited by either section 4 or section 5 of theCompetition Act 2002 is provided by section 14(1) of that act. In addition, asarticles 81 and 82 of the EC Treaty are directly applicable, private parties can relyon those provisions in civil disputes before national courts when there is anelement of inter-state trade. In Case C-453/99 Courage v Crehan [2001] ECR I-6297, the ECJ affirmed that the effective protection of the rights granted by thetreaty requires that individuals who have suffered a loss arising from aninfringement of articles 81 and 82 have the right to claim damages. As toremedies, an aggrieved person may be granted a declaration that an agreement isvoid, as well as injunctive relief. He may also be awarded damages, includingexemplary damages, relief that is not available to the Competition Authority. Yet,despite the availability of these remedies, actions by private parties are rare.

COMPETITION LAW ENFORCEMENT –A WHISTLE-STOP TOUR

“Providingplaintiffs withadditionalrights requiresremovingcorrespondingrights fromothers”

33www.lawsociety.ie

COMPETITION LAW APRIL 2006

trial, that the plaintiff not be exposed to any costseven if unsuccessful. Provided, therefore, that a clienthas an arguable case, the risk of litigating would below, given that he could have unconditional orconditional costs protection.

A relaxed approach to standingBeyond the specific protection of consumer interests,collective actions can serve to consolidate a largenumber of smaller claims into one action, saving timeand money. The first proposal in the Green Paper is acause of action for consumer associations withoutdepriving individual consumers of the right to bringan action. This in turn raises questions of standing,the distribution of damages (whether to theassociation or its members), and the quantification ofdamages (whether based on the illegal gain of thedefendant where awarded to the association or basedon damage caused where awarded to individuals). Thesecond proposal is for collective action by groups ofpurchasers other than final consumers. This type ofgroup litigation would be new in Ireland.

Crystal-ball gazingThe Commission’s proposals are no more thanopening bids at this early stage and only one smallstep on the long and winding road to EC legislation.

However, they do represent the culmination ofserious comparative research into an area that is ripefor improvement. The Green Paper represents adistinct shift in thinking at EC level that will directlyaffect national law. The proposal for a separateprocedural code favouring plaintiffs that applies inrespect of damages actions for breaches of articles 81and 82 could easily be tailored to fit actions forbreaches of section 4 and section 5, as well as the newsection of the Competition Act 2002. But how likely isthe codification of distinct procedural rules applyingto this field? And how desirable? Providing plaintiffsin these cases with additional rights requires removingcorresponding rights from others. The debate is onlygetting started.

One thing is clear, however. Heightened publicawareness of competition law brought about by therecent activity of the Competition Authority andHigh Court case-management procedures that canaccommodate anti-trust disputes in the competitionlist may facilitate private enforcement. The outlinedprocedural amendments would, by contrast, be amajor catalyst for change.

Margaret Gray BL, Brick Court Chambers London, was aréférendaire in the chambers of Judge Macken and JudgeÓ Caoimh at the ECJ from 2002-2005.

G

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

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

Talk to

Kieran FinnanAbout a

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21 O'Connell Street, Waterford. Phone 051 850672kieran@finnanfinancial.com www.finnanfinancial.com

LAW SOCIETY GAZETTE EDUCATION

34 www.lawsociety.ie

With the growth in school-relatedlegislation, there has been anassociated increase in litigation.“While boards of managementmay be doing their best,” says

Seán Cottrell, Director of the Irish PrimaryPrincipals’ Network, “they are under-resourced,unqualified, untrained and under-supported. Thereis no value put on prevention – €1 million spentnow on training them could save €10 million inlitigation.”

Both Cottrell and Fr Dan O’Connor, GeneralSecretary of the Catholic Primary Schools’Management Association, agree that employmentlaw is the biggest area of concern for boards ofmanagement. Fr O’Connor says: “Boards ofmanagement are supposed to be applying all the newemployment legislation with no training and noback-up.”

Whatever the shortcomings in the current system,two recent cases have highlighted the penaltiesschools will face if proper procedures are notfollowed by boards of management. In February, inthe Circuit Court case of Ó Donnchadha v ScoilChearbhaill Uí Dhálaigh, Judge Joseph Matthewsapproved a settlement offer of €10,000 damages, toinclude costs, in relation to the claim that the thensix-year-old boy had been bullied, verbally abused,kicked and punched, spat and jeered at, and hadstones thrown at him over a one-year period.

Counsel for the boy told the court that his parentsfelt the school was not doing enough to protect theirson after complaints were made. Judge Matthews

Schools ofTHOUGHT

Discipline, bullying, health and safety in crèches, and school evaluations

are hot topics. But are the people managing schools competent to do so?

Emer Woodfull works it out

said that the circumstances of the bullying had notbeen beyond the control of the school and that itwas unfortunate that it had taken so long to come tothe attention of the school.

Commenting on this case, Fionnuala Kilfeather,Chief Executive of the National Parents’ Council,said this case was “very significant and set down areal marker for schools not dealing with bullyingand other behaviour issues in a fair way”.

Final hurdleThe second case, Hennessy v St Gerard’s School Trust(High Court, 17 February 2006), concerned aprobationer teacher in a private school who wasawarded €15,000 damages because of a failure bythe school board to grant her a hearing beforedeciding whether to keep her on or let her go at theend of the probationary period.

While Mr Justice Kevin Haugh ruled that theschool’s board of governors had been entitled toreach its decision not to continue Ms Hennessy’scontract, he went on to say that he was satisfied thatcertain agreements or understandings had beenconcluded between a school managementorganisation, of which St Gerard’s was a member,and the ASTI, which would have afforded aprobationer the right to address the board. It wouldappear that, in the lead-up to the making of thedecision, the school had followed correctprocedures, in that the “headmaster had carried outappropriate and reasonable investigation”, theconclusion “was reached on reasonable grounds”,“the plaintiff had been informed in sufficient detail

• Educationlitigation

• Schools’ boardsof management

• Recent cases

MAIN POINTS

EDUCATION APRIL 2006

35www.lawsociety.ie

correct procedures had been followed, a complaintagainst a school was not upheld. In Mulvey v McDonagh (High Court, [2004] 1 IR 497), featured inthe last issue of the Gazette (p18ff), Mr JusticeJohnson, in refusing a claim for damages as a resultof an alleged assault and bullying by a fellow pupil,said, among other things, that “the school hadprovided documents for the parents, had attendedseminars and were all very concerned about thequestion of bullying”. He also found that therequired degree of care – that of a ‘prudent parent’– had been exercised by the school.

It would appear, therefore, that schools that failto have procedures in place in relation to howschool policies should be implemented, and/or whofail to implement those procedures in a fair way, doso at their peril.

A primary school’s board of management ischarged with a very difficult task. While the overallresponsibility for providing education in the statelies with the minister, the board of management ofthe school has responsibility for managing theschool, is required to publish the policy of theschool, and is the employer who appoints teachersand other staff and who may suspend or dismissstaff. The board of management, therefore – whichis unpaid, untrained and part time, with arequirement to meet only four times a year – has tonegotiate and implement the dizzying statutoryarray of everything from the Education Act 1998 tothe Occupiers’ Liability Act 1995, the Health, Safetyand Welfare at Work Act 2005, the Equal Status Act2000, the Employment Equality Act 1998 and the

throughout her period at St Gerard’s as to MrFoley’s concerns”, and “she had been offered helpand assistance”.

But the school fell at the last fence by not givingthe plaintiff the opportunity to address the boardabout complaints about her performance before theymade the crucial decision to terminate theirrelationship with her. Mr Justice Haugh said: “SinceI am satisfied as a matter of strong probability thatthe plaintiff would have been let go, even had shebeen afforded the opportunity to which she wasentitled, I think the compensation should be on amodest scale,” and, accordingly, he awarded a sum of€15,000. The plaintiff was awarded costs at CircuitCourt level for four days of a six-day hearing.

In contrast, in a case where the court ruled that

LAW SOCIETY GAZETTE EDUCATION

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Education Welfare Act 2000. In addition, boards needto have a general understanding of what the ever-growing body of common law has decided inrelation to school-related and employment issues.

Heavy loadIt’s not surprising that teachers, principals andboards of management may feel overwhelmed. SeánCottrell has described the current system as“harnessing a team of Clydesdales to a 40-foottrailer and asking them to negotiate their way safelyhome along a four-lane motorway”. Cottrell wouldprefer to see a system whereby school boards weregovernors of schools, as opposed to managers.

It is essential, however, that all of these partiesare aware of what they are required to do to ensurethat the school is properly run and is following fairprocedures that may go some way to providing adefence in the face of litigation.

While schools may indeed feel overwhelmed by,and afraid of, the law, it will not be a defence toplead ignorance of it. At a bare minimum, schoolsmust adhere to, and properly understand, the legalprinciples of audi alteram partem (‘hear the otherside’) and nemo judex in sua causa (‘no-one can be ajudge in his own cause’) in all of its dealings. Theseprinciples should obviously permeate everything,including fair and accurate record-keeping, sharingsuch records in a transparent manner where a partyseeks to rely on them, affording the other side theopportunity to respond to any allegations made,conducting any oral hearing or job interview in animpartial way and not asking questions like:“Considering that you’ve been teaching for 27years, why would you now be bothered with thehassle of the job of deputy principal?” This wasmentioned in the case of O’Neill v Board ofManagement, St Gabriel’s NS. An equality officerheld that the claimant had been discriminatedagainst on the ground of age.

Parents, of course, have a statutory right ofappeal to the board of management against thedecision of a teacher or other member of staff of

the school under the Education Act 1998, and theyalso have the right of appeal against a decision toexpel a pupil.

While schools will, no doubt, be familiar withthis procedure, they may not have fully appreciatedthe increased obligations they must now take onboard on foot of the Health, Safety and Welfare atWork Act 2005, which provides litigants with anenlarged statutory basis on which they might rely.

Section 8 of that act requires that: “Everyemployer shall ensure, so far as is reasonablypracticable, the safety health and welfare at work ofhis or her employees.” The act defines ‘reasonablypracticable’ as meaning “that an employer hasexercised all due care by putting in place thenecessary protective and preventive measures,having identified the hazards and assessed the risksto safety and health likely to result in accidents orinjury to health at the place of work concerned andwhere the putting in place of any further measuresis grossly disproportionate having regard to theunusual, unforeseeable and exceptional nature ofany circumstance or occurrence that may result inan accident at work or injury to health at that placeof work”.

Risky businessApart from requiring the school to exercise all duecare in assessing any potential physical hazards inthe workplace, and putting in place necessarypreventive measures, there are clear implicationsfor the school regarding identifying hazards such asadult bullying, and having in place an adequatewritten risk assessment and safety statement inrelation to this. The act goes on to require that therisk assessment be updated as appropriate and thata safety statement be prepared based on theidentification of the hazards.

In formulating such a statement, schools shouldhave regard to identifying what the hazard mightbe, who and how many people might be exposed toit, what might constitute a resultant injury, andwhat loss a person might suffer.

In undertaking such an assessment, schoolsmight consider the kind of behaviour that wasreported to a teacher’s bullying helpline. It rangedfrom the discontinuing of school duties withoutexplanation, comments ignored at school meetings,interference by principals with arrangements madeby teachers, and teachers interfering with otherteachers’ classes. They might also consider that, inaddition to the most commonly reported instanceof bullying reported to the helpline – that ofteacher by principal – parties exposed might be‘teacher by parent’ or ‘teacher to teacher’. Specialcare assistants also come into the equation.

There is an obligation also on the employerunder the Health, Safety and Welfare at Work Act2005 to provide training to staff. This is an areawhere boards of management might find

In addition to the areas of law outlined, schools should also be implementing theEducation Welfare Act 2000, which requires that the school publish a fairly wide-ranging code of behaviour that covers matters including acceptable standards ofbehaviour by students, and the procedures to be followed in the event of any breach.

It also states that the code of behaviour shall be prepared in accordance withguidelines as may be issued by the National Educational Welfare Board, set up underthe act. Schools have, however, been in the somewhat unfortunate position of havinghad to meet this requirement without the assistance of guidelines that still haven’tbeen published.

In relation to bullying, departmental guidelines issued in 1993 state that the anti-bullying code outlined therein “should be included as part of the school plan/policystatement and should be available to all, by way of a written code of behaviour anddiscipline for the school”.

STANDARDS OF BEHAVIOUR

‘Schools thatfail to haveprocedures inplace inrelation to howschool policiesshould beimplementeddo so at theirperil’

EDUCATION APRIL 2006

37www.lawsociety.ie

themselves exposed by not complying with thestatutory requirements.

In addition to these obligations, it wouldappear that the safety statement should also bebrought to the attention of other persons withinthe school, including parents and pupils, who maybe exposed to any specific risk to which the safetystatement applies.

Staff in schools also have wider statutoryduties. Section 13(1) of the act states that “anemployee shall, while at work ... comply with therelevant statutory provisions, as appropriate, andtake reasonable care to protect his or her safety,health and welfare and the safety, health andwelfare of any other person who may be affectedby the employee’s acts or omissions at work”.

As the employee’s obligations now extend,therefore, to any other person, that may be foundto include parents and pupils and other visitors.The act also mandates that the employee notengage in any improper conduct towards thoseother persons. As the act has enlarged thecategory of persons it affects, that wouldseemingly also widen the categories for which theemployer will be vicariously liable for torts doneby its employees – in this case, by teachers.

There would also appear to be a reporting

requirement placed on employees in relation toany breaches. It will be interesting to see howstrictly the courts require schools to follow theseenlarged requirements.

It is obvious, however, that boards ofmanagement and staff in schools carry a heavylegal burden. The publication of departmentalcirculars obviously provides some guidance.Individual teachers can avail of legal back-up fromtheir unions. Support is also provided by thedifferent religious and secular managementbodies, the National Parents’ Council and theIrish Primary Principals’ Network. Thepublication of documents such as WorkingTogether: Procedures and Policies for Positive StaffRelations (INTO, 2000), which sets outs a veryclear, graduated procedural framework at primarylevel for inter-staff complaints from the bottomup, is also helpful.

How well any procedures are implementeddepends on how well they are understood. Itappears, however, that there isn’t any oneumbrella under which boards of management canfind support and guidance in their pivotal role.

Emer Woodfull, a former teacher and journalist, is apractising barrister.

G

’20sLAW SOCIETY GAZETTE LOOKING BACK

38 www.lawsociety.ie

The 1920s were a time of momentouschange in the Irish political landscape.Again, the Gazette contains numerousreferences to many of the events thattook place – though sometimes it’s

necessary to read between the lines to get a truesense of the political and military turmoil of the civilwar years.

In May 1921, the Gazette contained news that areport had been submitted by the PrivilegesCommittee over the searching of solicitors’ officesby the military authorities. A letter was written tothe Commander of the Forces stating:“That in the opinion of this Council the removal bythe Crown forces from Solicitors’ offices ofCounsel’s briefs, or any documents prepared by aSolicitor in connection with the defence of hisclient, is a grave infringement of the recognisedprivileges of the Solicitors’ profession. The Councilurge for the protection of Solicitors’ privileges thatwhere the competent military authority exercises theright to search Solicitors’ offices, every care shouldbe taken to prevent undue interference withconfidential or privileged papers the property of theclients of the Solicitors” (May 1921, p2).

‘Disastrous condition’The half-yearly general meeting that year was heldon 11 May in the Solicitors’ Buildings, Four Courts.During his address to the meeting, the president(Charles G Gamble) had reason to refer to the civilstrife then taking place: “The disastrous condition of this country, and thecontinuance of civil strife is one that, in commonwith the rest of the community, we, as a profession,deplore, for professional pursuits have become mostdifficult and harassing to carry on. The conditionsprevailing re-act acutely on the prosperity andutility of the legal professions, and we who aredependent on professional pursuits naturally desire,not only from that point of view, but for every otherreason, to see our country as it might and should bein peace and prosperity.

The turbulent

The Gazettecontinues its

celebration of

the production

of its 100th

volume. Mark

McDermott

delves between

the covers and

picks the best

from the early

1920s

“... I may be permitted to express the convictionthat in the grave circumstances of the present itsmembers will at all times and at all seasons be trueto the best traditions and dignity of professional life,and lend their influence to subduing and effacing theangry passions at present prevalent” (June 1921, p7).

“I don’t think it is expedient on this occasion toconjecture as to our position under Partition, for atpresent nothing is very definite. We, as a Council,are fully alive to it, and will come to you in GeneralMeeting if occasion arises, and a Committee hasbeen set up and has our position under theGovernment of Ireland Bill in consideration.Meantime I ask you to accept my assurance thatyour interests are watched. If enforced loss ofincome results from this Partition legislation, thisSociety will have to consider its position andformulate its claims” (p9).

War memorialIn August 1921, the Gazette reported that the warmemorial to the memory of the 20 Irish solicitorsand 18 apprentices who had laid down their livesduring the Great War had been unveiled in theSolicitors’ Buildings on 8 July 1921. (In all, 155 Irishsolicitors and 83 apprentices joined the militaryforces during the war.)

Referring to meetings between Dublin andLondon in 1921 on the possible partition of theNorth and South of Ireland, the Society’s presidentspoke of the “wholly unprecedented and exceptionalcircumstances of present day national life” atNovember’s half-yearly general meeting (December1921, p34):“The conference which has since opened, probablythe most unique and the most criticised of its kind inour history, we in common with the rest of thecommunity are watching with much concern andanxiety … Whatever be the eventual form ofGovernment or constituted authority in this country,or the mode of electing representatives, theSolicitors may be depended upon to assist andloyally support it in every way as a section of the

• Military searches ofsolicitors’ offices

• Partition• The burning of the

Four Courts

MAIN POINTS

LOOKING BACK APRIL 2006

39www.lawsociety.ie

community who are wedded to the country andconcerned in its prosperity and in the maintainance[sic] of its legally constituted institutions” (p34).

Destruction of the Custom HouseIn the December issue, the president refers in hishalf-yearly address to the destruction of the CustomHouse: “Exactly a fortnight after our last GeneralMeeting, the Custom House – for a century past thecentre and scene of many of our professionalactivities – was destroyed.

“With the passing of this classic edifice and themanifold activities carried on therein, was involvedthe destruction of all records relating to the variousclasses of Crown Duties affecting the landed andother property of this country … a loss which hasimposed on us as a profession additional work,complication and responsibilities. Many of theserecords can only be reconstructed from the recordsin the Solicitors’ offices, and … it can be readilyappreciated what a block was threatened to all salesand transfer of property in this country … Allpending land purchase sales and all privatetransactions were affected” (p36).

‘Legal cataclysm’On 1 October 1921, Ireland was legally divided – apoint that earned much commentary from thepresident, Charles Gamble, in the Gazette:“The 1st of October marked a legal cataclysm in this

country in its division into two separate legaljurisdictions and that too in a country the legalbusiness of which had for centuries been hithertoefficiently administered under one. The Councilmade official protest against it, and endeavoured byamendments to the Bill to retain the whole countryunder one jurisdiction, but without avail. Thesetting up of the Northern jurisdiction has takenfrom amongst us some of those men mostappreciated in our local legal life … I do not labourthe subject on this occasion more than to say that I 1922: British troops leave

Dublin, but not Ireland

1921: The treaty negotiations didn’t gowell for the nation

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deplore this partition as a great blow to the legalprofession, and opposed to that unity which, in anyphase of national life, especially in a small country,whether political, professional, commercial orotherwise, stands for strength, national stability andefficiency, and much will depend on keeping therules and procedure in both jurisdictions identical.

“The ladies have now invaded, or are attemptingto invade, our profession under their new statutoryprivilege, and there are already several ladyapprentices in process of qualification” (p37) (seepanel).

Occupation of the Four CourtsAt a meeting of the Council on 21 April 1922, aspecial meeting was held “to consider matters arisingin consequence of the occupation of the Four Courtsby a force of armed men.

“It was resolved that offices be immediatelysecured for the Secretary and his staff. It was furtherresolved that the Vice-Presidents (in the absence ofthe President) should interview the Controller of theInland Revenue in reference to the arrangements forstamping of documents” (May 1922, p3).

As a result of the occupation of the Four Courtsand the Solicitors’ Buildings, the Law Society tookup temporary residence at 33 Molesworth Street,Dublin (June 1922, p6).

It would be some time before the Society returnedto the Four Courts. In the July/August 1922 issue ofthe Gazette, the Council announced “with very greatregret that on the 28th June the premises of theSociety were destroyed by fire, during military

operations conducted by the Free State Army for thepurpose of recovering possession of the Four Courtsfrom the armed force which had been in occupationsince 14th April.

“The contents of the Society’s premises, includingthe furniture and fittings, the library of books, andthe paintings and engravings, were destroyed. Thebronze figures and the tablets of the Society’s WarMemorial have been salved in good condition. Thestrong room, containing many of the Society’srecords, withstood the effects of the fire. TheSociety held the premises under lease of 28th June,1874, for 999 years, at one shilling per annum.”

The Council made a claim under the MaliciousInjuries Acts for a sum of £300,000 compensation forthe destroyed premises and their contents. A similarclaim was sent to the Provisional Government.

Luckily, prior to the destruction of the Solicitors’Buildings, the secretary, WG Wakely, had managedto get possession of the more important records ofthe Society. These included current minute books,the Registers of Practising Solicitors, the Roll ofSolicitors, the Roll of Members, apprentices’examinations books, a complete set of the Society’sGazette, and other books relating to the affairs of theSociety.

“The Society has sustained a very serious loss at acritical time,” mourned the Gazette, “but the Societywill be carried on for the advancement and use of theprofession, and the Council have no doubt that theywill receive the assistance of the profession towardsthe thorough restoration of the Society”(July/August, 1922, p15). G

The Gazette received a number of queries in relation to the article‘Another time, another place’ that appeared in the March 2006 issue.In particular, readers wanted to know the final outcome of actionstaken by four Oxbridge women – Gwyneth Bebb, Karin Costelloe, MaudIngram and Lucy Nettlefold – against the Law Society in the EnglishHigh Court in 1913. In their actions, the women argued their right tosit solicitor examinations, the first taken being that of Bebb v LawSociety.

Relying on the Solicitors Act 1843 and, in particular, the provisothat a ‘person’ with appropriate qualifications was entitled to train asa solicitor, the main argument focused on the definition of ‘person’.Counsel for the Law Society “argued that a woman was not a‘person’, relying on the long-established principle at common law”.

Mr Justice Joyce in his July 1913 judgment affirmed the LawSociety’s argument, noting that the above act and the InterpretationAct “never intended to make such a revolution” and “that there wasno statute which showed any intention of the legislature to alter thecommon law”. The case was dismissed. An appeal held in lateDecember 1913 and reported in the January 1914 Gazette reaffirmedthe decision of the lower court, arguing that since there had neverbeen a woman attorney, they were “very loth to depart from anythingsupported by long usage”. The courts, therefore, returnedresponsibility to the legislature.

While a working group was set up in early 1914 to formulate a bill,this was interrupted by the outbreak of war. By June 1919, theGazette was able to report that the Barristers and Solicitors(Qualification for Women) Bill had passed through the House of Lords.

Ireland’s first woman solicitor was Mary Dorothea Horan, who wasadmitted in April 1923, but the number entering the profession wasextremely small. By 1940, only 27 practising certificates were held bywomen. However, it should be noted that since such certificates werenot the norm until the late 1940s, it is not certain how many womenwere solicitors in all but name (and certificate).

As for the four women mentioned above, Gwyneth Bebb worked inthe Ministry of Food during the war and was admitted to a solicitor’sfirm in 1919. Lucy Nettlefold completed part 2 of the Cambridge LawTripos in 1915, was appointed as an articled clerk and, subsequently,had a celebrated career in local government, culminating in theawarding of an OBE in 1960. Karin Costello, who had graduated fromNewnham College in 1911, turned her attention to psychiatry andmarried Adrian Stephen in 1914, who became part of the famousBloomsbury Group. Maud Ingram Crofts was one of the first women tobe admitted as a solicitor in 1922. She was to specialise in women’srights throughout her lengthy career.

Thanks to Pamela Marin PhD for providing the above information.

“In the opinionof this Councilthe removal bythe Crownforces fromSolicitors’offices ofCounsel’s briefsis a graveinfringement ofthe recognisedprivileges of theSolicitors’profession”

FIRST WOMEN OF LAW

41www.lawsociety.ie

PRACTICE MANAGEMENT APRIL 2006

practice doctor

Practice management is an area wheremany small and medium-sized practicesstruggle. For many firms, the clientalways comes first – and it’s easy tounderstand why. In an environment

where clients demand more for less, response timesare expected to be almost instant, and themanagement of the solicitor’s own practice often fallsto the bottom of the priority list. This usually meansthat important management issues are not addressedat all, or else are not given the necessary time, leadingto greater problems in the future.

As well as the challenge of making the timeavailable, many solicitors do not feel adequatelyequipped to run a modern legal practice. Many saythat they qualified as lawyers to address legal issuesand find solutions for clients – they did not qualifywith the objective of managing and running abusiness. This role demands abilities in the areas offinance, human resources, information technology,marketing and general administration – areas outside asolicitor’s formal training.

Looking after your practice is no longer optional.The results reveal themselves in:

Got an issue you would like addressed by our panel of practice doctors? Email: practicedoctor@lawsociety.ie

David Rowe: “Lookingafter your practice is nolonger optional”

• The profitability of practices, • The stress levels for practitioners and for the staff

in general, • The quality of the legal work and, ultimately, • The service given to the client.

To get practice management right, you need to startwith establishing the proper structures, which willdepend on the type of firm you have. These varysignificantly between private-client firms andcommercial firms.

Installing the correct structures begins withemploying competent staff who are right for theservices that the firm provides. They should be trainedadequately to fulfil their roles. It is also essential toinstall systems for reviewing staff performance,incentivising them and rewarding them.

Business modelIn the area of finance, the correct structure entailshaving an appropriate business model for the type offirm you are running, having a budget, having feetargets, and ensuring that you are getting value fromall of the people and companies who supply services toyou.

Managing today’s busy legal practice presentsdiverse challenges in different areas. You can employthe skills of external providers who work with lawfirms on a part-time basis to supplement the skillsavailable in-house. An excellent starting point is tohave your practice benchmarked against others. Thisbenchmark will include a financial review, anevaluation of best practice in all areas of practicemanagement, and a strategic review, all tailored to thesize of the firm.

There is a consistent link between getting practicemanagement right and strong profits and peace ofmind for owners. This means that firms finally haveto give their own affairs some time and attention.Those that have already done so are reaping therewards, while those that have not frequently have torun faster to stand still.

David Rowe is a management consultant.

G

• Have a business plan that involvesknowing where the firm is, where it’sgoing, and how it’s going to get there;

• Plan and implement a programme forwinning and retaining clients, andkeep in touch with key clients who arenot currently active;

• Hold regular meetings with otherpartners/professional staff tomanage workloads, allocate newwork, pool legal knowledge and sharemarket intelligence;

• Keep your finger on the financialpulse of the firm by regularlyreviewing relevant and timely

management information;• Have the appropriate IT systems and

support for your firm – well-implemented IT systems are acompetitive advantage;

• Manage staff through a combinationof regular meetings and appraisals,together with appropriate incentivesand rewards – for solicitors thismeans having a visible career path;

• Use the in-house resources, togetherwith creating your own time andrelying on some external assistance,to give your own affairs the time andattention they deserve.

TOP TIPS FOR A SUCCESSFUL PRACTICE

MANAGE?Too busy to

LAW SOCIETY GAZETTE PEOPLE AND PLACES

42 www.lawsociety.ie

Annual Dinner of the Law Society 2006

At the Law Society’s Annual Dinner were Dermot McCarthy, SecretaryGeneral to the Government, and Josephine Feehily, Revenue

Commissioner

Attending the Annual Dinner were (l to r) Rory McShane, President of theLaw Society of Northern Ireland, James Hamilton, DPP, Carol Coulter,

legal affairs correspondent, Irish Times, and James Cooper, Junior Vice-President of the Law Society of Northern Ireland

Desmond Miller, Chairman of the Legal Costs Implementation Group,and Director General of the Law Society Ken Murphy share a word at the

pre-dinner reception

At the dinner, where the theme was ‘A South African Adventure’, were(l to r) Catherine Treacy, Registrar of Titles, Her Excellency Priscilla Jana,

South African Ambassador to Ireland, and Simon Murphy, Council member of the Law Society

Senior Vice-President of the Law Society Philip Joyce, President MichaelIrvine, guest speaker Nic Swart (Law Society of South Africa) and Junior

Vice-President Gerard Doherty

Attending the Annual Dinner were (l to r) Mr Justice Matthew Deery,President of the Circuit Court, Brendan Ryan, Director of Corporate

Services, Courts Service, and Olive Braiden, lay member of the Judicial Appointments Advisory Board

PEOPLE AND PLACES APRIL 2006

43www.lawsociety.ie

At the recent launch of Environmental and Land Use Law, written by YvonneScannell and published by Thomson Round Hall, were (l to r): Catherine Dolan,commercial manager with Thomson Round Hall, Mr Justice Nicholas Kearns,Supreme Court, Yvonne Scannell, author, and Pádraig Ó'Riordáin, managing

partner, Arthur Cox SolicitorsJohn D Shaw, Law Society Council member, and

Noel Conroy, Garda Commissioner, at the pre-dinnerreception at Blackhall Place

Chief Justice John Murray and President of the Law Society Michael Irvine

Enjoying the Law Society’s Annual Dinner were members of the Irvine family (l to r)Janet, Michael, Colin, Anne and Heather

Mingling at the annual dinner on 10 March were MrJustice Michael Peart and the Director of Operationsof the Supreme and High Courts, Nuala McLoughlin

LAW SOCIETY GAZETTE PEOPLE AND PLACES

44 www.lawsociety.ie

Who says that the GAAisn’t sexy? If you’d been

at the ‘Inaugural GAA GalaNight’ at the Law Society on 2 March, you would haveexperienced a change of mindmore dramatic than a ref onrohypnol! Dirty jerseys madeway for glitzy dresses anddapper suits as the members ofthe women’s and men’s teamscelebrated the officialinauguration of the LawSociety’s Gaelic football teams.

Among those invited to thecelebrations were: UachtaránCumann Lúthchleas Gael, SeanKelly, ministers of government,former GAA players, LawSociety luminaries, staff andstudents.

Taoiseach Bertie Ahern senthis warm wishes in an openletter, expressing his belief thatthe launch of both footballteams in the Societyrepresented the comingtogether of two importantorganisations. He was confi-dent, he said, that the LawSociety teams would contributesignificantly to thedevelopment of the game.

Captain’s speechThe speech from the presidentof the GAA was insightful, andwas followed by a livelyquestions and answers session.Enthusiastically welcoming theinauguration of both teams,Sean Kelly said that trainees, asboth players and solicitors, hada significant role to play in thefuture of the GAA – both atgrassroots and administrativelevel.

You can’t speak about theGAA these days withoutnodding in the direction of thecourts. More and more, playersare seeking recourse to the lawto settle disciplinary grievances.The president referred to thesignificant role that the lawcontinues to play in theevolution of the GAA – andhow it has forced the

association to reconsider someof its own procedural rules. Healso spoke about thedevelopment of Croke Park,the change in Rule 42, andguerrilla marketing.

The past six months will, nodoubt, prove to be historic inthe development of Gaelicsport in the Law Society. Muchhard work has been put inbehind the scenes by asignificant team of enthusiasts,including: Pádraig Mawe, Ciara

Cahill, Carol Kelly, Marcus ÓBuachalla, Ross Phillips, ConorO’Sullivan and Éamon Ó Cuív.Both teams also acknowledgethe generous support of theirsponsors, including: TPKennedy of the Law School,William Fry, MathesonOrmsby Prentice, Pierse &Fitzgibbon, HG Donnelly &Son, Meghen Group and theLegal Panel.

Gura fada buann an dáfhoireann.

Men’s team (Back, l to r): John Crean, Cormac Foley, Gerry Burke, Pádraig Mawe (manager), Bryan Coen,Raymond Lambe, Rob Ryan, Déaglán Ó Síothcháin, David Fitzgerald, Ross Phillips (PRO) and Danny Kiely.(Middle, l to r): Kevin McElhinney, Eoin McManus, Karol Corcoran, John Williams, Eamon Ó Cuiv, Stiofán

Fitzpatrick, Roy O’Carroll, Gavin Lawlor, Conor Minogue, John Lunney, Brendan McDonald, Marcus Ó Buachalla(captain) and Barry Murphy. (Front, l to r): Gerard Gallagher, Alan McGill, David Sweeney, Tony Hanahoe

(solicitor and former Dublin captain), Philip Joyce (Law Society senior vice-president), Seán Kelly (UachtaránCumann Lúthchleas Gael), Ken Murphy (director general), Conrad Murphy, John Flynn, Paddy Delaney and

Conor O’Sullivan (PPCI 2004)

Women’s team (Back, l to r): Deirdre Lennon, Catherine Boner, Elaine McCarthy, Aishling Mehan, Emer Carey,Mary Teresa Blake, Deirdre McCarthy, Ciara Cahill (vice-captain), Theresa Murphy, Lynne Martin, Orla Ni Bhroin,

Aoife Walsh, Carol Kelly (captain) and Anna Beresford. (Front, l to r): Alma Whelan, Trina Galvin, Roisin NiDhonnchadha, Mairead Cronin, Philip Joyce (senior vice-president), Sean Kelly (Uachtarán Cumann Lúthchleas

Gael), Ken Murphy (director general), Siobhan McCarthy, Sally Ann Boyle and Fiona O’Keeffe

Uachtarán Cumann LúthchleasGael, Sean Kelly

Legal teams put the ‘va va voom’ in Gaelic!

45www.lawsociety.ie

BOOK REVIEWS APRIL 2006

45www.lawsociety.ie

books

Couples whose relationshiphas broken down find

themselves in uncharted watersand expect their lawyers to guidethem to a safe haven. Theinadequacy of the court routehas encouraged a move towardsalternative dispute resolution(ADR) and prompted initiativessuch as ‘collaborative law’(described in the book), and nowKevin Liston’s ‘structured legalnegotiations’, which is a veryvaluable addition to the familylawyer’s toolbox. Mrs JusticeCatherine McGuinness, in theforeword, states: “While Iappreciate the advantages ofADR in many cases, years ofexperience as a family lawyer andlater a family law judge haveconvinced me that Kevin Listonis right in the emphasis he putson the value of well-preparedand structured negotiationswithin the traditionalframework.”

Very concrete guidelines areoffered on how to achieve anearly resolution of disputes in anon-confrontational way, whichare lawyer led. Negotiations canbe tailored to each case – forexample, meetings can be on thestandard ‘shuttle’ basis or withthe two lawyers and both clientspresent, as in the collaborativelaw model.

There are chapters on thebargaining phase, formalising theagreement reached, andmanaging the conflict. Chapter10 has an example of an

information leaflet that isdesigned to explain to the clientthe function and purpose ofstructured negotiations. (Thiscould be adapted to give veryuseful general information tofamily-law clients.)

Kevin Liston’s book is abreath of fresh air. It is written ina fluid, clear style without waffleand is full of ideas, suggestions,critical evaluations and nuggetsof useful information for thefamily lawyer (for example, thedifference between making anagreement a rule of court and anorder, the distinction betweenliberty to apply and re-enter, andthe enforceability of separationagreements and consent orders).

Managing the conflict can bethe key to a successful resolution.As lawyers, we are familiar withconflict behaviour, though wecan fall short on understandingits nature and management andsometimes “can communicatewith the other side in a mannerthat reflects and exacerbates theconfrontational exchanges” ofthe parties themselves. Theauthor gives examples of adestructive initial letter(including, for instance, aninappropriate heading – ‘AnneMurphy v You’, references to‘intolerable behaviour’ and thethreat of judicial separationproceedings), and examples ofnon-confrontational letters tothe other side. There is a sectionon the dynamics of conflict, andwe are reminded also of the need

to be aware of, and manage, ourown behaviour and prejudices.

The present family court andstructures are evaluated, withsuggestions for improvement, forexample, by judicial casemanagement and extending thecourts’ mandate to takeresponsibility for activelyfacilitating constructivenegotiations. The sections in thebook on pleadings will hopefullycome to the attention of rulescommittees. The unfortunateand often unnecessarilyconfrontational language inpleadings “increases polarisationand brings about conflictexpansion”, with negativeconsequences on attempts tonegotiate. Again, the author goesthe extra mile, with draftsuggestions for pleadings thatwould be intelligible and lessthreatening to the receivingparty. He also makes a strongcase for appropriate forms inconsensual divorce applications.

The use of plain language istopical and supported by theauthor (and, in my opinion, isparticularly appropriate in familycases). There are examples of thestandard form of separationagreement written in plainlanguage that is “client friendlyand intelligible to the layperson”– important, as it is “a workingdocument for the husband andwife in their post-separationrelationship”.

The alternative form ofseparation agreement resembles

wording used in mediatedagreements. There are twochapters on mediation: the firstis a very useful description of theprocess that family lawyers willbenefit from reading. Thebargaining techniques inmediation and the climate itencourages sit well with theauthor’s structured legalnegotiations. The second dealswith the strengths andweaknesses of mediation andwould form a useful backdropfor discussions between lawyersand mediators.

Chapter 9 deals with ethicalconsiderations, includingresponsibilities to theunrepresented child, with athoughtful examination of theLaw Society’s family law code ofpractice and its significantrecommendations that there be anon-adversarial approach and asearch for fair solutions.

General practitioners, traineesolicitors, mediators and otherswho want a general overview ofthe principles and on-the-groundpractice of family law will findthe book most readable andinformative. For those of us whoclaim to be family lawyers, thisbook is essential reading.

Phil Armstrong is vice-chair of theLaw Society’s Family Law andCivil Legal Aid Committee. Thisreview has been republished due totechnical errors during magazineproduction in the January/February 2006 issue.

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Family Law Negotiations: An Alternative ApproachKevin Liston. Thomson Round Hall (2005), 43 Fitzwilliam Place, Dublin 2. ISBN: 1-85800-403-9. Price: €192 (hardback).

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BOOK REVIEWS APRIL 2006

47www.lawsociety.ie

This is a timely publication,consisting of a detailed

annotation of the currentplanning regulations, includingthe draft Planning andDevelopment Regulations2004/2005 (which provide for arevised format for a site noticeand a standard planningapplication form). StephenDodd’s commentary is bothcomprehensive and lucid, andthe busy professional advisingon planning issues (and indeedthe interested layperson) willreadily find in the text theanswer to common and not-so-common questions that mayarise. A further benefit is theinclusion of references todecisions of An Bórd Pleanála aswell as a detailed commentaryon relevant case law (as recentas July 2005).

The principal regulationsnow in force are the Planningand Development Regulations2001 (SI 600/2001), enactedunder the Planning andDevelopment Act 2000, whichreplaced the earlier regulations

of 1977 and 1994. The 2001regulations introduced manysignificant changes to theplanning code and it is nosurprise that the commentaryruns to 390 pages of the text.The author takes great care toillustrate the many changes andadditions to the formerregulations. Regulation 26 ofthe 2001 regulations is ofparticular importance, as itprovides that planningapplications that do not satisfyformal notice requirements areautomatically invalid. This hasthe effect of removing theprevious discretion vested in aplanning authority to acceptincomplete applications. Strictcompliance with the formalrequirements of the 2001regulations is now mandatoryfor all applications. Attention isdrawn to the decision ofMacken J in Openeer v DonegalCounty Council (unreported,High Court, 13 April 2005),where it was held that anapplicant who paid the incorrectfee could not blame an

administrative officer of therespondent for requesting thewrong amount.

The commentary onexempted development inschedule 2, parts 1 to 4 of the2001 regulations is particularlyimpressive. Each class ofexempted development isreviewed in detail and helpfulreference is made to therelevant decisions of An BórdPleanála. One imagines that thispart of the book will befrequently referred to and thediscussion of what changes of

use within a class constituteexempted development iscomprehensively dealt with byMr Dodd.

At first glance, the bookappears to be overpriced at€195, given that one maysource material free of chargefrom the internet, and suchmaterial can also be purchasedin hard copy for a modest sum.However, the real benefit of thebook lies in the incisivecommentary and analysis of theregulations, An Bórd Pleanáladecisions and case law. Thequality of the commentaryjustifies the price. Although thebook is not stated to be acompanion volume to the otherrecent publication fromThomson Round Hall, Planningand Development Law by GarrettSimons, taken together, theyprovide a comprehensive andreliable guide to the distinctstatutory regime that comprisesthe current planning code.

Owen O’Sullivan is a partner inMatheson Ormsby Prentice.

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Planning Regulations, 2001-2005Stephen Dodd. Thomson Round Hall (2005), 43 Fitzwilliam Place, Dublin 2. ISBN: 1-85800-425-X. Price: €195.

King’s Inns Barristers, 1868-2004Kenneth Ferguson (ed). Honorable Society of King’s Inns, in association with the Irish Legal History Society (2005), Henrietta Street, Dublin 1.ISBN: 0-9512443-2-9. Price: €30 (plus post and packaging of €10).

My father treasured a littlebook, In a Nook with a

Book, a book of quotations forbook lovers. One quotationthat I remember was from ThePraise of Books by JA Langford:“In books, the past is ours aswell as the present. With themwe live yesterday over again. Allthe bygone ages are with us.”

Kenneth Ferguson hasrevived the past, brought thepast into the present andrecalled vividly some wonderfulmemories of bygone ages.

The book is, in one sense, acontinuation of King’s InnsAdmission Papers, 1607-1867,

edited by Keane, Phair andSadlier and published in 1982.The principal part of the bookcontains the names of thegraduating barristers fromKing’s Inns from 1868 to 1968,the names and places ofresidence of the graduate’sparents, and details of thegraduate’s age and education.

Two essays, one written byProf WN Osborough,‘Landmarks in the History ofKing’s Inns: 1872, 1885, 1921,1925’, and ‘A Portrait of theIrish Bar, 1868-1968’ by DrFerguson, provide fascinatinginsights into King’s Inns. One

interesting detail is howstudents reading for the IrishBar were obliged, from thereign of Henry VIII, to residefor a specific number of years atone of the Inns of Court inLondon. This lasted until 1885.

The issue of women beingcalled to the Bar is considered byboth Prof Osborough and DrFerguson. The first woman calledto the Bar was Frances ChristianKyle on 1 November 1921. Thisstory and the role of women atthe Bar is enlightening.

The period of the FirstWorld War is a fascinatingsection of the book, as is the

description of the turbulentperiod following 1916 up tothe foundation of the state.

This is a gem of a book, atour de force, a book ofenormous authority, a mostbalanced and insightfulanalysis. Dr Ferguson and hiscolleagues have produced anabsorbing history of the mostintriguing of men and womenwho have played a significantrole in Irish life over thecenturies.

Dr Eamonn Hall is the chiefsolicitor of the Eircom group ofcompanies.

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LAW SOCIETY GAZETTE BOOK REVIEWS

48 www.lawsociety.ie

Paul Ward’s book providesus with a comprehensive

and detailed examination of thechildcare legislation from 1991to 2001 inclusive. His firstedition was published in 1997,only two years after theimplementation of the ChildcareAct 1991 and, of necessity, hadlittle case law in it. Proceedingsin the District Court are incamera but the interveningyears have allowed for theimportant major decisions thatreached the High and SupremeCourts to be reported, and thisconsiderable body of judgmentsis now available. It is indeeduseful to have a concisereference in respect of thevarious sections of the ChildCare Act 1991 available handilyto practitioners. The bookcontains the full text of the act,as amended by the Children Act2001, with considerablyexpanded notes and case law. Itis particularly useful that otherpieces of legislation dealingwith different aspects of childwelfare, such as theImmigration Act 1998, theMental Health Treatment Act2001 (to be implemented) andthe Children Act 2001 areflagged, where appropriate.

Mr Ward devotesconsiderable space to an

analysis of section 3 of the1991 act and he teases out, withthe help of the relevant caselaw, the extent of the duties andfunctions of the Health Service

Executive in promoting thewelfare of children in its area.

Of particular interest is thatpart of the book dealing withspecial care orders in theChildren 2001 Act, which areinserted by section 16 thereofinto the Child Care Act 1991. Itis worth noting that the vastbulk of this section has beenbrought into effect as and fromSeptember 2004 – however,none of the special care unitshas been certified and, in thosecircumstances, applications forcivil detention of minorscontinue to be brought beforethe High Court under theinherent jurisdiction of thatcourt.

I found the section on access

and the implications for accessarrangements of judgments ofthe European Court of HumanRights very useful. It appearsfrom an examination of theEuropean case law that, whilethe European court will alloweach individual state a “widemargin of appreciation” inconsidering whether or not achild should be taken into care,it will not tolerate an ad hocapproach to the provision ofaccess between children andtheir parents, and that anyinterference with this will berigorously scrutinised. Themessage coming from theEuropean court is that access isthe right of the child, that anyconsideration of a restrictionof access and any decisionmade afterwards will not bevalid unless the parents havebeen consulted and have takenpart in the decision-makingprocess, and that decisionswith regard to access must betaken promptly and withoutdelay.

I have no doubt that thisbook will be consultedregularly by students andpractitioners in the legal andsocial work field alike.

Sinead Kearney is a partner inBCM Hanby Wallace.

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Child Care Act (2nd edition)Paul Ward. Thomson Round Hall (2005), 43 Fitzwilliam Place, Dublin 2. ISBN: 1-85800-288-5. Price: €102.

Sources for the Study ofCrime in 19th Century Ireland,1801-1921Brian Griffin. Four CourtsPress (2005), 7 MalpasStreet, Dublin 8. ISBN: 1-85182-8214. Price: €45.

A Star Chamber Court inIreland: the Court of CastleChamber, 1571-1641Jon G Crawford. Four CourtsPress (2005), 7 Malpas

Street, Dublin 8. ISBN: 1-85182-934-2. Price: €85(hardback).

Adventures of the Law:Proceedings of the 16thBritish Legal HistoryConference, Dublin 2003Paul Brand, Kevin Costello andWN Osborough (eds). FourCourts Press (2005), 7Malpas Street, Dublin 8. ISBN:1-85182-936-9. Price: €55.

RECENTLY PUBLISHED

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49www.lawsociety.ie

council report

Motion: independent lawcentres“That this Council approves theSolicitors Acts 1954-2002(Independent Law Centres)Regulations 2006, and that theregulations of the Council beamended to delegate the imple-mentation of the Solicitors Acts1954-2002 (Independent LawCentres) Regulations 2006 tothe Regulation of PracticeCommittee without reference tothe Council.”Proposed: James McCourtSeconded: John O’Connor

The Council approved thedraft Solicitors Acts 1954-2002(Independent Law Centres)Regulations 2006, which con-tained the criteria applying tosolicitors working in specifiedindependent law centres inorder to permit them to pro-vide legal services to membersof the public in pursuance ofthe charitable objectives ofthose centres. James McCourtconfirmed that the organisa-tions listed in the secondschedule to the regulations hadsatisfied the Regulation ofPractice Committee as to theirgovernance arrangements. Anyadditional applications wouldbe considered by the commit-tee as and when they arose.

Tax treatment of work-in-progressThe Council discussed section52 of the Finance Bill, togetherwith the relevant extract fromthe explanatory memorandumto the bill. Section 52 provid-ed for a deferment of tax overa five-year period in terms ofthe treatment of work-in-progress for tax purposes. TheCouncil noted that theTaxation Committee was con-sidering the matter furtherand would prepare a practicenote for the profession in duecourse. In the meantime,solicitors were encouraged todiscuss the implications of sec-tion 52 directly with theiraccountants.

Civil Law (MiscellaneousProvisions) Bill 2006The Council discussed a num-ber of statutory provisions thatit was proposed the Societywould seek to be included inthe Civil Law (MiscellaneousProvisions) Bill, currently beingdrafted.

Purchase of property adjacent to Blackhall PlaceThe president reported thatthe property at 32-41aBenburb Street had been pur-chased in trust by O’Connor

Solicitors on behalf ofBenburb Street PropertyCompany Limited. A letter tothe profession would issue indue course.

Lay member of Complaintsand Client RelationsCommitteeThe Council approved theappointment of Vera Hogan toreplace Carmel Foley as a laymember of the Complaintsand Client RelationsCommittee. The Councilnoted that Ms Foley wouldremain on the committee untila number of matters in whichshe had been involved werecompleted. On behalf of theCouncil, the president extend-ed the Society’s appreciationfor Ms Foley’s selfless partici-pation in the work of theComplaints and ClientRelations Committee overseveral years.

Decision by Master of the High CourtThe Council considered adecision of the Master of theHigh Court made on 2February 2006, and also notedthe contents of a number oforders made by the Master onthe following day, including anorder directing that the costs

of the motion and order of theplaintiff’s solicitor be disal-lowed and that the plaintiff’ssolicitor should repay to hisclient any costs that the clienthad been ordered to pay to thedefendant. The order went onto provide that, in the event ofthe solicitor for the plaintiffmaking an application to theHigh Court appealing theorder, the Master had appoint-ed Manus McClafferty as thesolicitor to represent theplaintiff at the hearing of anysuch application. The Masterhad himself described theorder as “unprecedented” anda “wake-up call” for solicitors.

The Council agreed thatthe decision raised fundamen-tal issues as to the jurisdictionof the Master to make ‘wastedcosts’ orders and as to theparameters of such a jurisdic-tion. It also raised issues aboutthe jurisdiction of the Masterto interfere in the solicitor/client relationship by appoint-ing another solicitor to repre-sent the plaintiff in any appeal.

It was agreed that theSociety should take independ-ent legal advice and, if advisedto do so, possibly with the sta-tus of amicus curiae, shouldseek to be joined in any appealor judicial review. G

Report of Law Society Council meeting held on 10 February 2006

C O N T I N U I N G P R O F E S S I O N A L D E V E L O P M E N T[ C P D ]DISCOVER THE EASY WAY TO GET YOUR CPD HOURS – CHOOSE THE LAW SOCIETY APPLYING IS EASYApply on-line and receive a €20 discount (www.lawsociety.ieand follow links for CPD) or simply return the application format the back of the CPD brochure which is enclosed with eachissue of the Gazette.

You can obtain more information on any CPD seminar by contacting the CPD team at:Tel: (01) 672 4802, fax: (01) 672 4890e-mail: lawschool@lawsociety.ieWebsite: www.lawsociety.ie

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LAW SOCIETY GAZETTE

50 www.lawsociety.ie

practice notes

Section 68 of the Solicitors(Amendment) Act 1994

imposes various obligations onsolicitors in relation to chargesto clients. Certain of these obli-gations contain specific provi-sions in relation to “contentiousbusiness” – most notably theprohibition on so-called percent-age charging contained in sec-tion 68(2).

The question has arisen as to

whether the representation of aclient making an application tothe Personal Injuries Assess-ment Board (PIAB) is contentiousbusiness for the purposes ofsection 68.

The Law Society has receivedlegal advice that applications toPIAB do fall within the definitionof contentious business undersection 68.

The legal advice referred to

the High Court judgment in thecase of O’Brien v Personal InjuryAssessment Board and theeffect of the observation of MrJustice McMenamin in that casethat the assessment by a statu-tory body for compensation inrespect of personal injuriescomes within the category ofproceedings in which the right toretain legal representation in thecontext of various contentious

matters has been recognised. Accordingly, the Society is

satisfied that the representationof a client making an applicationto PIAB is contentious businessfor the purposes of section 68and that, in particular, percent-age charging in such cases isprohibited.

John Elliot, Registrar ofSolicitors and Director of

Regulation

I It is expected that theCompanies Consolidation Bill

will be presented for enactmentthis year. The aim of the bill is toreform, restructure and updatecompany law in Ireland. The billwill replace the existing ten actsof the Oireachtas (including theCompanies Act 1963) plus a sub-stantial amount of secondary leg-islation. The Company LawReview Group (CLRG) has drafteda ‘General Scheme of NewCompanies Bill ’, which is avail-able through the following link onthe CLRG website: www.clrg.org/

companiesbill/default.asp.On behalf of the profession,

the Law Society’s Business LawCommittee is coordinating a sub-mission to the CLRG. If you wouldlike to contribute to this submis-sion, please send your com-ments to the secretary of theBusiness Law Committee, Den-ise Collins, at the Law Society,Blackhall Place, Dublin 7, oremail: d.collins@lawsociety.ie.

This opportunity is unlikely tobe available again for a numberof decades.

Business Law Committee

Solicitors are reminded that theLaw Society’s Guidance and

Ethics Committee offers a media-tion service for solicitors in areas

such as partnership break-up. Thesolicitors will be offered one medi-ation session with a member ofthe committee, free of charge,

except the mediator’s out-of-pock-et expenses. The panel of media-tors comprises the committeemembers of the Guidance and

Ethics Committee and other non-committee solicitors who have amediation qualification. Guidance and Ethics Committee

Practitioners should notethat it is open to RIAI mem-

bers to use the pre-printedforms of opinions on compli-ance published by the RIAI orthe online version of thoseforms downloaded from theRIAI website. The downloadedonline versions must containendorsements as follows: • On the front page after “by

registered RIAI membersonly”, “and it is warrantedby the signatory that thestandard text of this digitaldocument is unaltered”.

• On the last page at the sig-nature after “registeredmember of the RoyalInstitute of the Architects ofIreland”, “who warrantsthat the standard text ofthis digital document isunaltered”.

Certifying architects must signtheir original signatures on thedownloaded forms and apply acurrent membership stamp inthe same way as for the pre-printed forms.

Conveyancing Committee

RIAI ONLINE OPINIONS ONCOMPLIANCE

COMPANIESCONSOLIDATION BILL

COMMITTEE MEDIATION SERVICE

SECTION 68 AND PIAB

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

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GAPRIL 2006

51www.lawsociety.ie

legislation update

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

ACTS PASSEDCompetition (Amendment)Act 2006Number: 4/2006Contents note: Amends theCompetition Act 2002 by theinsertion of a new part 2A(ss15A-15C) to prevent certainunfair trading practices in thegrocery trade; revokes theRestrictive Practices (Groceries)Order 1987 (SI 142/1987);repeals the Restrictive Practices(Confirmation of Order) Act 1987and other confirming acts inrespect of orders made underthe Restrictive Practices Acts,which are now redundant; re-peals the Restrictive Practices Act1972 insofar as it is unrepealed;and provides for related matters.Date enacted: 11/3/2006Commencement date: Com-mencement order(s) to be made(per s6(3) of the act): 20/3/2006for all sections of the act excepts5(2) (repeal of the RestrictivePractices Act 1972 insofar as it isunrepealed) (per SI 127/2006)

Irish Medicines Board(Miscellaneous Provisions)Act 2006Number: 3/2006Contents note: Amends theMisuse of Drugs Act 1977 (asamended by the Misuse of DrugsAct 1984), the Irish MedicinesBoard Act 1995, the Control ofClinical Trials Act 1987, and con-sequentially amends regulationsthat are either made under the

Irish Medicines Board Act 1995 orreferred to in section 34(4) ofthat act and amends the AnimalRemedies Act 1993.Date enacted: 4/3/2006Commencement date: 4/3/2006 for part 7 (s41 – amend-ment of Animal Remedies Act1993); commencement order(s)to be made for all other sections(per s1(7) of the act)

Teaching Council(Amendment) Act 2006Number: 2/2006Contents note: Makes provi-sion for the operation of certainsections of the Teaching CouncilAct 2001 and the validity andeffect of certain things purport-ed to be done under the act.Provides that, notwithstandingsection 1(2) (which provides forthe making of commencementorders to bring the sections ofthe act into operation) of theTeaching Council Act 2001, ss1, 2,4, 5, 6, 8, 9 and 10 of that actshall be deemed to have comeinto operation on 10/9/2004,and that, accordingly, theTeaching Council (First Election ofMembers) Regulations 2004 (SI916/2004) shall be deemed tohave been validly made and tohave come into operation on thedate of their purported making,10/9/2004, and that anythingdone under these regulationsshall be deemed to have beenvalidly done, as if a commence-ment order had been made

under section 2(1) of the actappointing 10/9/2004 as thecommencement date for the rel-evant sections.Date enacted: 4/3/2006Commencement date: 4/3/2006

University College Galway(Amendment) Act 2006Number: 1/2006Contents note: Amends sec-tion 3 of the University CollegeGalway Act 1929 in relation tothe provision of education at thecollege through the Irish lan-guage.Date enacted: 22/2/2006Commencement date: 22/2/2006

SELECTED STATUTORYINSTRUMENTSAdoptive Leave Act 1995(Extension of Periods ofLeave) Order 2006Number: SI 52/2006Contents note: Extends theperiods of adoptive leave underthe Adoptive Leave Act 1995, asamended by the Adoptive LeaveAct 2005.Commencement date: 1/2/2006 for articles 1-7 (subject toparagraphs 2 and 3 of article 2);1/2/2007 for articles 8-11 (sub-ject to paragraphs 5 and 6 ofarticle 2) (per articles 2(1) and2(4) of the SI)

Adoptive Leave Act 2005(Commencement) Order 2006

Number: SI 16/2006Contents note: Appoints30/1/2006 as the commence-ment date for the sections of theAdoptive Leave Act 2005 notalready in operation (sections 9and 10 of the act)

Aer Lingus Act 2004(Commencement of CertainProvisions) Order 2005Number: SI 645/2005Contents note: Appoints28/9/2005 as the commence-ment date for section 2 of theAer Lingus Act 2004, insofar as itrelates to section 5(2) of the AirCompanies (Amendment) Act1993, and for section 7 of theAer Lingus Act 2004, concerningthe employee shareholdingscheme in Aer Lingus.

Companies (Auditing andAccounting) Act 2003(Commencement) Order 2006Number: SI 56/2006Contents note: Appoints 3/2/2006 as the commencementdate for the following sectionsof the act: s9 (other than para-graph 1 of s9(2)), s10, s23, s24,s25, s27, s28, s29 (other than s29(5)), s32 and schedule 1.These provisions bring intoeffect many of the powers andfunctions of the Irish Auditingand Accounting SupervisoryAuthority (IAASA) and, in par-ticular, transfer the powers ofthe Minister for Enterprise,Trade and Employment in rela-tion to the recognition ofaccountancy bodies under theCompanies Acts to the IAASA.

Double Taxation Relief (Taxeson Income) (Adjustment ofProfits of AssociatedEnterprises) (AccessionStates) Order 2006Number: SI 112/2006

16 January – 20 March 2006

District Court (Criminal Justice Act 1994, Section 38) Rules 2006Number: SI 47/2006Contents note: Amend order 38 of the District Court Rules 1997 (SI93/1997) by the substitution of new rules 4 to 8 inclusive, ‘Detentionof cash under section 38 of the Criminal Justice Act 1994 (as amend-ed)’, to take account of section 20 of the Proceeds of Crime Act (Amend-ment) Act 2005 amending section 38 of the Criminal Justice Act 1994.Commencement date: 24/2/2006

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Contents note: Gives the forceof law in Ireland to the admis-sion of the ten newest EU acces-sion states (Czech Republic,Estonia, Cyprus, Latvia,Lithuania, Hungary, Malta,Poland, Slovenia and Slovakia)to the convention between themember states of the EuropeanCommunities on the elimina-tion of double taxation in con-nection with the adjustment ofprofits of associated enterprises.The original convention is con-tained in SI 88/1994.

Electoral (Amendment) Act2001 (Commencement) Order2006Number: SI 26/2006Contents note: Appoints 26/1/2006 as the commencementdate for section 22 of theElectoral (Amendment) Act 2001.Section 22 provides for theinclusion of additional informa-tion on the polling informationcards issued to voters under sec-tion 92 of the Electoral Act 1992.

European Communities (Road Transport) (RecordingEquipment) Regulations 2006Number: SI 89/2006Contents note: Give effect toregulation 3821/85 as amendedby regulation 2135/98 and regu-lation 1360/2002 on recording

equipment in road transport.Provide for the introductionand enforcement of digitaltachograph technology that willgradually replace the existinganalogue tachograph devicesused to record information ondriving times, breaks and rest

periods for professional drivers.Commencement date: 20/2/2006

European Communities (RoadTransport) Regulations 2006Number: SI 88/2006Contents note: Provide for theimplementation and enforce-ment of regulation 3820/85 onthe harmonisation of certainsocial legislation relating to roadtransport. The regulationapplies to the carriage of goodsand passengers by road withinthe European Union. It appliesthe provisions of the Europeanagreement concerning the workof crews of vehicles engaged ininternational road transport(AETR) to certain internationalroad transport operations; pre-scribes the maximum periods ofdaily and fortnightly driving,minimum breaks, and daily andweekly rest periods for drivers;lays down minimum ages fordrivers; prohibits certain typesof payments to wage-earning

Rules of the Superior Courts (Arbitration) 2006Number: SI 109/2006Contents note: Amend order 56, rule 4 and insert a new order 56A,‘Arbitration (International Commercial) Act 1998’, in the Rules of theSuperior Courts (SI 15/1986) to provide procedures for the UNCITRALmodel law on international commercial arbitration – the text of themodel law is set out in the schedule to the 1998 act.Commencement date: 31/3/2006

Rules of the Superior Courts (Commissions of Investigation Act2004) 2006Number: SI 23/2006Contents note: Insert a new order 135, ‘Commissions of InvestigationAct 2004’, into the Rules of the Superior Courts (SI 15/1986) to pro-vide for the procedure to be followed in applications made to the HighCourt under various sections of the Commissions of Investigation Act2004 and in an appeal to the High Court against a determination of acommission of investigation under section 22(1) of that act.Commencement date: 21/2/2006

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drivers; prescribes the use ofduty rosters and service timeta-bles on certain regular passen-ger services; obliges transportundertakings to ensure compli-ance with the requirements ofthe regulation and of regulation3821/85 on recording equip-ment in road transport; and pro-vides for related matters.Commencement date: 20/2/2006

Industrial Relations Act 1990(Code of Practice on Accessto Part-Time Working)(Declaration) Order 2006Number: SI 8/2006Contents note: Declares thatthe code of practice set out inthe schedule to this order is acode of practice for the purpos-es of the Industrial Relations Act1990.Commencement date: 12/1/2006

Maternity Protection Act1994 (Extension of Periods ofLeave) Order 2006Number: SI 51/2006Contents note: Extends theperiods of maternity leave underthe Maternity Protection Act 1994as amended by the MaternityProtection (Amendment) Act 2004.Commencement date: 1/2/

2006 for articles 1-7, subject toparagraphs 2 and 3 of article 2;1/2/2007 for articles 8-11, sub-

ject to paragraphs 5 and 6 ofarticle 2 (per articles 2(1) and2(4) of the SI)

Private Security (LicenceFees) Regulations 2005Number: SI 835/2005Contents note: Prescribe thefees payable in respect of appli-cations for licences under thePrivate Security (Licensing andStandards) Regulations 2005.Commencement date: 19/12/2005

Private Security (Licensingand Standards) Regulations2005Number: SI 834/2005Contents note: Prescribe cate-gories of licence and the stan-dards to be observed bylicensees in the provision ofsecurity services under thePrivate Security Services Act 2004.Commencement date: 19/12/2005

Private Security (Licensing Ap-plications) Regulations 2005Number: SI 836/2005Contents note: Prescribe theform of application for a licenceunder the Private SecurityServices Act 2004 and the partic-ulars to be included in the regis-ter of licensees.Commencement date: 19/12/2005

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Solicitors’ Accounts (Amendment) Regulations 2006Number: SI 111/2006Contents note: Amend the Solicitors’ Accounts Regulations 2001 (SI421/2001) to provide, for the avoidance of doubt, that the investiga-tion of solicitors’ practices by the Law Society under the Solicitors’Accounts Regulations 2001 to 2005 includes investigating intowhether there has been due compliance with section 68 of theSolicitors (Amendment) Act 1994 relating to charges to clients.Commencement date: 1/3/2006

Solicitors Acts 1954 to 2002 (Independent Law Centres)Regulations 2006Number: SI 103/2006Contents note: Provide that a solicitor who is an employee of an inde-pendent law centre operated by a charitable organisation approved bythe Law Society for the purposes of these regulations may give adviceto and otherwise act for the public, provided certain conditions arecomplied with. Constitute an exception to sections 59 and 62 of theSolicitors Act 1954 as provided for in those sections.Commencement date: 1/3/2006

Solicitors (Adjudicator) (Amendment) Regulations 2005Number: SI 720/2005Contents note: Amend the Solicitors (Adjudicator) Regulations 1997(SI 406/1997) to provide for the adjudicator’s functions extending tothe receiving and examining of complaints by clients of solicitors con-cerning decisions of the Law Society relating to the making of a grant,or the refusal to make a grant, out of the compensation fund to clientsof solicitors or relating to the quantum of any such grants. Provide forthe appointment of an acting adjudicator in certain circumstances.Commencement date: 1/12/2005

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In the matter of NoraMcCarthy, a solicitor practis-ing as McCarthy & Company,Solicitors, at 42 TempleRoad, Dartry, Co Dublin, andin the matter of the SolicitorsActs 1954-2002 [3732/DT44/05] Law Society of Ireland(applicant)Nora McCarthy(respondent solicitor)

On 8 December 2005, theSolicitors Disciplinary Tribunalfound the respondent solicitorguilty of misconduct in herpractice as a solicitor in that shehad failed to file her accoun-tant’s report for the year ended

31 December 2002 with theSociety in a timely manner, hav-ing only filed same with theSociety on 30 March 2005,being approximately 21 monthslate, in breach of regulation21(1) of the Solicitors’ AccountsRegulations 2001 (SI no 421 of2001).

The tribunal ordered that therespondent solicitor:a) Do stand advised and

admonished,b) Pay a sum of €500 to the

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

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

In the matter of Niall CSheerin, a solicitor practisingas Niall Sheerin & Company,Solicitors, Merchant’s Court,24 Merchant’s Quay, Dublin8, and in the matter of theSolicitors Acts 1954-2002[5132/DT17/05] Law Society of Ireland(applicant)Niall C Sheerin(respondent solicitor)

On 8 December 2005, theSolicitors DisciplinaryTribunal found the respondentsolicitor guilty of misconductin his practice as a solicitor inthat he had:a) Failed to comply with an

undertaking to hand overdocumentation on the clos-ing of a sale in October 2002,and in particular those itemssummarised in the letter of22 June 2004 sent by thecomplainants to the solicitor,in a timely manner;

b) Failed to reply to theSociety’s correspondence andin particular the letters dated7 July 2004, 20 July 2004, 3August 2004, and 19 August2004.

The tribunal ordered that therespondent solicitor:a) Do stand censured,b) Pay a sum of €1,000 to the

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

the Law Society of Ireland,including the certified andreasonable travelling expens-es of a named witness, astaxed by a taxing master ofthe High Court in default ofagreement.

In the matter of SheilaMcConnell (otherwise Duff),a solicitor practising as SheilaMcConnell & Company,Solicitors, at 30 Main Street,

Newbridge, Co Kildare, andin the matter of the SolicitorsActs 1954-2002 [7489/DT36/05]Law Society of Ireland(applicant)Sheila McConnell(respondent solicitor)

On 10 January 2006, theSolicitors Disciplinary Tribunalfound that the respondent solic-itor, Sheila McConnell, hadbeen guilty of misconduct in herpractice as a solicitor in that shebreached regulation 21(1) of theSolicitors’ Accounts Regulations (SIno 421 of 2001) in failing toensure that there was furnishedto the Law Society an accoun-tant’s report within six monthsof her financial year ended 30June 2003.

The tribunal ordered that therespondent solicitor:a) Do stand advised and

admonished, b) Pay a sum of €500 to the

compensation fund,c) Pay a sum of €500 towards

the costs of the Law Societyof Ireland.

In the matter of DeclanMcCourt, solicitor, practisingas McCourt & Company atApollo’s Wings, Defenders’Row, Dundalk, Co Louth,and in the matter of an appli-cation by the Law Society ofIreland to the SolicitorsDisciplinary Tribunal and inthe matter of the SolicitorsActs 1954-2002 [S6951/DT/03/05]Law Society of Ireland(applicant)Declan McCourt(respondent solicitor)

On 12 January 2006, theSolicitors Disciplinary Tribunalfound the respondent solicitorguilty of misconduct as follows,

Solicitors Disciplinary TribunalThese reports of the outcome of Solicitors Disciplinary Tribunal inquiries are published by the Law Society of Ireland as provided for in section 23 (as amended by section 17 of the Solicitors (Amendment) Act 2002) of the Solicitors(Amendment) Act 1994

SOLICITORS’

HELPLINE

THE SERVICE IS COMPLETELY CONFIDENTIAL ANDTOTALLY INDEPENDENT OF THE LAW SOCIETY

The Solicitors’

Helpline is available

to assist every

member of the

profession with any

problem, whether

personal or

professional

01 284 8484

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WARMING UP BEFORE THE CALCUTTA RUN PARTICIPANTS RELAX AT THE BARBECUE AFTER THE EVENT

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

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

It’s never too late to startIf you have been following our training programme, see our website for week 9 (10 April) to week 12 (1 May)

www.calcuttarun.com

CALCUTTA RUN 2006Two months to go

Saturday 27 May • Fun run/walk at Blackhall Place

If you have not started already, you can still start at this point.

For previous training programmes or a sponsorship card, see our website, www.calcuttarun.com,

or phone: 01 649 2071

in that he had: a) Failed up to the date of the

swearing of the affidavit ofthe applicant (on 13 January2005) to comply with anundertaking dated 3 January2001 to a named buildingsociety in relation to a namedproperty,

b) Failed without reasonablecause to comply with a noticeserved on him pursuant tosection 10 of the Solicitors(Amendment) Act 1994 withinthe time specified.

The tribunal ordered that therespondent solicitor:a) Do stand censured,b) Pay a sum of €10,000 to the

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

the Law Society of Irelandand of any person appearing

before the tribunal, as taxedby a taxing master of theHigh Court in default ofagreement.

In the matter of EdwardFarrell, a solicitor of EdwardFarrell & Company, Solicit-ors, Irishtown, Athlone, CoWestmeath, and in the matterof the Solicitors Acts 1954-2002 [4555/DT475/04]Law Society of Ireland(applicant)Edward Farrell(respondent solicitor)

On 31 January 2006, theSolicitors Disciplinary Trib-unal found the respondentsolicitor guilty of misconductin his practice as a solicitor inthat he had failed to file hisaccountant’s report for the

year ended 30 June 2003, inbreach of regulation 21(1) ofthe Solicitors’ Accounts Regula-tions 2001 (SI no 421 of 2001),in a timely manner.

The tribunal ordered thatthe respondent solicitor: a) Pay a sum of €500 to the

compensation fund,b) Pay a contribution of €500

towards the costs of the LawSociety of Ireland.

In the matter of Canice MEgan, solicitor, practising asCanice M Egan & Companyat 9 Sarsfield Street, Clon-mel, Co Tipperary, and in thematter of the Solicitors Acts1954-2002 [10044/DT32/05]Law Society of Ireland(applicant)Canice M Egan(respondent solicitor)

On 2 February 2006, theSolicitors Disciplinary Tribunalfound that the respondent solic-itor was guilty of misconduct inhis practice as a solicitor in thathe had breached regulation21(1) of the Solicitors’ AccountsRegulations (SI no 421 of 2001)in failing to ensure that therewas furnished to the Society anaccountant’s report covering hisfinancial year ended 30November 2003 within sixmonths thereafter, that is, by 31May 2004.

The tribunal ordered thatthe respondent solicitor:a) Do stand admonished and

advised,b) Pay a sum of €500 to the

compensation fund,c) Pay a contribution of €500

towards the costs of the LawSociety of Ireland. G

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Solicitors’ Benevolent Association 142nd report and accountsYear: 1 December 2004 to 30 November 2005

RECEIPTS AND PAYMENTS ACCOUNTYEAR ENDED 30 NOVEMBER 2005

2005 2004RECEIPTS € €Subscriptions 288,372 273,868Donations 38,957 38,816Net investment income 65,800 60,737Bank interest 2,362 2,359Repayment of grants paid by way of loan 28,420 —Refund of dividend withholding tax 25,814 —

449,725 375,780

PAYMENTSGrants (421,414) (379,735)Bank interest and charges (1,940) (3,013)Administration expenses (24,327) (25,832)Currency loss (140) (1,434)

(447,821) (410,014)

SURPLUS/(DEFICIT) FOR THE YEAR BEFORE SPECIAL EVENTS 1,904 (34,234)

Royalties from NI Land Registration Manual 33,861 —Lawyers diaries and Christmas cards 353 20,924Irish Conveyancing Precedents 808 667Royalties from Law Society of Ireland: 1852-2003 — 499Proceeds of sale of library books — 640Other income — 571

SURPLUS/(DEFICIT) FOR THE YEAR BEFORE LEGACIES 36,926 (10,933)Legacies 1,000 —

SURPLUS/(DEFICIT) FOR THE YEAR 37,926 (10,933)

The Solicitors’ BenevolentAssociation is a voluntary

charitable body, consisting of allmembers of the profession inIreland. It assists members orformer members of the solici-tors’ profession in Ireland andtheir wives, husbands, widows,widowers, family and immediatedependants who are in need.The association was establishedin 1863 and is active in givingassistance on a confidential basisthroughout the 32 counties.

The amount paid out duringthe year in grants was€421,414, which was collectedfrom members’ subscriptions,donations, legacies, investmentincome and royalties from theNorthern Ireland LandRegistration Manual. Currently,there are 52 beneficiaries inreceipt of regular grants and

approximately one third of theseare themselves supportingspouses and children.

There are 15 directors, threeof whom reside in NorthernIreland, and they meet monthlyin the Law Society’s offices,Blackhall Place. They meet atLaw Society House, Belfast,every other year. The work ofthe directors, who provide theirservices entirely on a voluntarybasis, consists in the main ofreviewing applications for grantsand approving of new applica-tions. The directors also makethemselves available to thosewho may need personal or pro-fessional advice. The directorshave available the part-time serv-ices of a professional social work-er who, in appropriate cases, canadvise on state entitlements,including sickness benefits.

The directors are grateful toboth law societies for their sup-port and, in particular, wish toexpress thanks to Owen MBinchy, past president of theLaw Society of Ireland, AttractaWilson, past president of theLaw Society of NorthernIreland, Ken Murphy, directorgeneral, John Bailie, chief exec-utive, and the personnel of bothsocieties.

I wish to express particularappreciation to all those whocontributed to the associationwhen applying for their practis-ing certificates, to those whomade individual contributions,and to the following:• The Law Society,• Dublin Solicitors’ Bar

Association,• Belfast Solicitors’

Association,• Limavady Solicitors’

Association,• Local Authority Solicitors’

Bar Association,• Roscommon Bar

Association,• Tipperary and Offaly Bar

Association,• County Wexford Solicitors’

Association,• Contributors to Irish

Conveyancing Precedents,• Faculty of Notaries Public

in Ireland,• Sheriffs’ Association,• Arthur Moir,• The Southern Law

Association.

To cover the ever-greaterdemands on the association,additional subscriptions aremore than welcome as, ofcourse, are legacies and theproceeds of any fundraisingevents. Subscriptions anddonations will be received byany of the directors or by thesecretary, from whom all infor-mation may be obtained at 73

Park Avenue, Dublin 4. Iwould urge all members of theassociation, when making theirown wills, to leave a legacy tothe association. You will findthe appropriate wording of abequest at page 30 of the LawDirectory 2006.

I would like to thank all thedirectors and the association’ssecretary, Geraldine Pearse, fortheir valued hard work, dedica-tion and assistance during theyear.

Thomas A Menton, chairman G

DIRECTORS AND OTHERINFORMATION

DIRECTORSThomas A Menton (chairman)John Sexton (deputy chairman)Sheena Beale (Dublin)Caroline Boston (Belfast)Felicity M Foley (Cork)John Gordon (Belfast)Colin Haddick (Newtownards)Niall D Kennedy (Tipperary)John M O’Connor (Dublin)Brian K Overend (Dublin)Colm Price (Dublin)David Punch (Limerick)Andrew F Smyth (Dublin)

TRUSTEESBrian K OverendJohn M O’ConnorAndrew F SmythJohn Sexton

SECRETARYGeraldine Pearse

AUDITORSDeloitte & Touche, CharteredAccountants, Deloitte & ToucheHouse, Earlsfort Terrace,Dublin 2

STOCKBROKERSBloxham Stockbrokers, 2-3Exchange Place, IFSC, Dublin 1

BANKERSAIB plc, 37/38 UpperO’Connell Street, Dublin 1;First Trust, 31/35 High Street,Belfast BT1

OFFICES OF THE ASSOCIATIONLaw Society of Ireland,Blackhall Place, Dublin 7; LawSociety of Northern Ireland,Law Society House, 90/106Victoria Street

Revenue charity no: CHY 892

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firstlaw update

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

Search warrantWhether plaintiff breached defen-dant’s constitutional rights by enter-ing the defendant’s premises andretaining documents on foot of anillegal warrant – whether evidenceought to be excluded as inadmissible.The plaintiff instituted proceed-ings seeking declarations andinjunctive relief on the basis thatthe respondent breached section4 of the Competition Act 2002 andarticle 81 of the EC Treaty. Inorder to investigate the allegedbreach, the plaintiff obtained asearch warrant and used thatwarrant to search the defendant’spremises and remove certaindocumentation. However, due toan oversight, the warrant, on itsface, permitted the authorisedofficer to enter and search thedefendant’s premises andremove documents in connec-tion with its business of selling,supplying or distributing motorvehicles. The respondent sub-mitted that the search was car-ried out on foot of an illegalwarrant and was in breach ofthe respondent’s constitutionalrights and, consequently, theevidence obtained was inadmis-sible.

McKechnie J ruled the evi-dence inadmissible, holding thatthe search warrant was illegal andthe activities of the plaintiff inpursuance of that warrant, name-ly the search of the defendant’spremises and the removal of doc-uments, constituted a breach ofthe defendant’s constitutionalrights. Furthermore, the publicinterest favoured the exclusion ofthe evidence in this case. Competition Authority v TheIrish Dental Association, HighCourt, Mr Justice McKech-nie, 27/4/2005 [FL11849]

COMPETITION LAW

Legal aidWhether the plaintiff was entitledto the provision by the state oflegal representation to her inrespect of the inquest to be heldinto the death of her son – CivilLegal Aid Act 1995.The plaintiff, whose son col-lapsed while in the custody ofthe Garda Síochána and died ashort time later, sought legalrepresentation in respect of theinquest into her son’s death.However, she did not have thenecessary financial means tosecure such representation.The plaintiff claimed that thefailure of the state to providefor a publicly funded system oflegal aid in respect of enquiriesinto the death of persons instate custody, in circumstanceswhere they could not be rea-sonably expected to effectivelyrepresent themselves, consti-tuted a breach of the constitu-tional right to life and a breachof the right to fair proceduresand right of access to an effec-tive remedy.

Gilligan J held in favour ofthe plaintiff: having regard tothe fact that the coroner pre-sides over the relevant inquestand his role is judicial innature, that the inquest ofitself is inquisitorial and that ajury will record a verdict, andfurther considering the cir-cumstances of this case, fairprocedures under theConstitution required that theplaintiff be provided with legalaid for the purpose of beingadequately represented at theforthcoming inquest into herson’s death.Magee v Farrell, High Court,Mr Justice Gilligan, 26/10/2005 [FL11923]

Contempt of court Criminal trial – sub judice – arti-cle published after verdict but beforesentencing – report containingmaterial prejudicial to accused –whether publication likely to inter-fere with administration of justice. The respondents published arti-cles in their newspapers con-taining comments about thenotice party, referring to hisconviction for various crimes, inrespect of which he was due tobe sentenced by the trial judgeshortly. The articles were highlyprejudicial, containing materialthat was not before the trialcourt, and referred to what theauthors thought would be anappropriate sentence. The app-licant sought orders grantingleave to serve an order of attach-ment and committal on therespondents to answer the con-tempt referred to in the articles.

Dunne J declared that thearticles were a contempt ofcourt in that they were highlyprejudicial to the notice party,thus interfering in the adminis-tration of justice, holding thatthe issue was not whether thetrial judge had been affected ornot but whether there had beenan interference with the admin-istration of justice or whether aperception had been createdthat the administration of justicehad been interfered with. In thatrespect, the timing of the publi-cation, before sentencing hadbeen concluded, was of greatimportance. In deciding theissue, it was necessary for theapplicant to satisfy the courtbeyond reasonable doubt. DPP v Independent News-papers (Ireland) Ltd, HighCourt, Miss Justice Dunne,21/7/2005 [FL11987]

Indictment Form of indictment – whetherunnecessary proliferation of countsin indictment – whether sufficientinformation provided in indict-ments – whether lack of specificityin charges – whether trial con-ducted in due course of law –whether miscarriage of justice.The applicant was convicted bya jury of unlawful carnalknowledge and was sentencedto two years’ imprisonment onthe first count and five years oneach of the other 15 counts, torun concurrently. He soughtleave to appeal against his con-viction on the grounds, interalia, that the number of countson the indictment was prejudi-cial and that there was a lack ofspecificity in the counts in theindictment.

Herbert J dismissed theapplication for leave to appeal,holding that the number ofcounts on the indictment didnot amount to overloading andwas not prejudicial to the appli-cant and that the statutory obli-gation to provide such particu-lars as may be necessary for giv-ing reasonable information asto the nature of the chargescould only be satisfied if theindictment was so framed as toinform the accused in plain andunambiguous language what itwas that each count in theindictment alleged he haddone, and with sufficient partic-ularity as the circumstances ofthe case would allow, to enablethe accused to marshal his mindon more important evidence tocounter those allegations. Inthis case, there was an undulyrigid approach to drafting theindictment and insufficientattention was given to the actu-al times and dates indicated bythe complainant. However, no

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miscarriage of justice actuallyoccurred in the case. DPP v D(E), Court ofCriminal Appeal, 17/2/2006[FL12004]

Practice and procedureJudicial review – reliefs sought –claim for damages only remainingrelief sought in judicial reviewapplication – whether judicialreview proceedings should beremitted to plenary hearing.The applicants, in judicialreview proceedings, made acomplaint in relation to thevalidity of a search warrant andthe alleged illegal seizure ofrecords and other material andsought damages. It was agreedby all parties that no order ofcertiorari, mandamus or declara-tions were required and there-fore the only live issueremained in relation to theclaim for damages.

O’Leary J remitted the mat-ter to plenary hearing, holdingthat the issue in relation todamages could not be decidedin the course of a judicialreview as the issues relating tothe alleged illegal seizure ofdocuments and equipmentwere matters that required oralevidence at plenary hearing.Rogers v Maloney, HighCourt, Mr Justice O’Leary,21/12/2005 [FL11833]

Child abductionHague Convention – consentand acquiescence – husband livingin USA – whether husband acqui-esced in retention of children instate – whether wrongful reten-tion of children – whether graverisk in returning children – ChildAbduction and Enforcement ofCustody Orders Act 1991, sec-tion 9. The applicant applied for thereturn of his children to theUSA under the HagueConvention, after the respondenthad retained them in Ireland

after a holiday. The respondentcontended that the applicanthad consented and/or acqui-esced in their retention in thesate. She further contended thatthere would be a grave risk tothe children if they werereturned to the US. The HighCourt made an order for theirreturn to the US, the place oftheir habitual residence. Therespondent appealed to theSupreme Court.

The Supreme Court variedthe order of the High Court,holding that the onus of provingconsent rested on the personasserting it; the consent had tobe proved on the balance ofprobabilities; the evidence insupport of consent had to beclear and cogent; the consenthad to be real, positive andunequivocal; and there was noneed for consent to be in writ-ing. Re K (Abduction: Consent)([1997] 2 FLR 212) applied.The trial judge was entitled tomake the findings of fact thatthere was no consent to the per-manent removal of the childrento Ireland. Primary findings offact made by a trial judge couldonly be interfered with if theywere unreasonable, ie if therewas no evidence upon which toarrive at such a decision. Thecourt also held that the defenceof grave risk was a rare excep-tion to the requirement underthe convention to return chil-dren who had been wrongfullyretained in a jurisdiction otherthan that of their habitual resi-dence and had to be construedstrictly, thereby imposing aheavy burden on the personasserting it. R(S) v R(MM), SupremeCourt, 16/2/2006 [FL11995]

DivorceAncillary orders – proper provision– whether court should have regardto prior separation agreement –Family Law (Divorce) Act 1996,section 20.The parties separated by agree-ment in 1986. The sole depend-ent child of the marriage suf-

fered from cerebral palsy andwas primarily cared for by hismother, the applicant. The sep-aration agreement dealt onlywith property and provided thatthe respondent would reside inthe former family home, subjectto paying the applicant a sumrepresenting 72% of the value ofthe house so that the applicantcould purchase a house suitablefor the son’s needs. The formerfamily home had risen substan-tially in value since then. Theapplicant then sought a decreeof divorce and ancillary orders,primarily that the former familyhome and her present house beboth sold and that she be award-ed 50% of the joint proceeds.The respondent contended thatthe terms of the separationagreement could not be revisitedin the present proceedings.

McMahon J ordered, interalia, that the respondent pay tothe applicant a lump sum of€400,000, holding that theabsence of a maintenance provi-sion, a custody clause, a clausedealing with pension rights or afull and final settlement clauseindicated that the agreementwas not a comprehensive andfinal separation agreement.Accordingly, section 20(3) of theFamily Law (Divorce) Act 1996did not apply and the court didnot have to have regard to thatagreement. Moreover, there wassufficient change in the circum-stances of the parties since it hadbeen signed for it to be disre-garded in considering whatorders should be made ancillaryto the order for divorce. Inassessing property values, therelevant value was the value atthe date of the hearing. O’M v O’M, Circuit Court,Judge McMahon, 5/5/2004[FL11839]

InjunctionWhether the injunction sought by the plaintiff was proportionate to the legitimate aim pursued.

The plaintiffs were members ofa tribunal of inquiry. The tri-bunal experienced difficultiesconcerning the unauthoriseddisclosure of confidential infor-mation. Consequently, itsought and was granted an exparte injunction by Finnegan Prestraining the defendant frompublishing or using informa-tion or reproducing any docu-ment in relation to which thedefendant was aware that thetribunal had directed that suchinformation/document shouldremain confidential until dis-closed at public hearing or asotherwise directed by the tri-bunal. Furthermore, an injunc-tion was sought restraining thepublication of documents cir-culated on a confidential basisto any witness before such doc-umentation was disclosed at apublic hearing. In these pro-ceedings, the tribunal sought aperpetual injunction in thesame terms as the injunctiongranted by Finnegan P.

Kelly J refused the reliefsought, holding that theorders sought could not beregarded as proportionate.The applicant failed to estab-lish relevant and sufficient rea-sons to justify the restrictionand the restriction did notcorrespond to a pressing socialneed. Further-more, therestriction was not propor-tionate to the legitimate aimpursued. The tribunal soughtto impose confidentiality onmaterial some of which wasnot and could not be regardedas confidential in nature. Thefact that the material in thebrief might contain informa-tion obtained in confidencecould not justify the wide formof restraint sought by theapplicant. The injunctionsought went too far andsought to enforce a species ofconfidentiality created unilat-erally by the tribunal.His Honour Judge Alan PMahon v Post PublicationsLtd, High Court, Mr JusticeKelly, 4/10/2005 [FL11932]

FREEDOM OF EXPRESSION

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Legitimate expectationPromissory estoppel – HousingAct 1966 – whether in the partic-ular circumstances the plaintiffs’legitimate expectation was justifi-able.The plaintiffs, who were all res-idents of local authority housingand were tenants of the defen-dant, claimed that as a result ofrepresentations made or prom-ises given by the defendant, theyhad a legitimate expectationthat their maisonettes would besold to them at prices prevailingat that time. They furtherpleaded that, as local authoritytenants, they were entitled tothe benefit of the Housing Actsand they also sought to rely onthe doctrine of promissoryestoppel. The plaintiffs soughtdeclarations to the effect thatthey were entitled to purchasetheir respective maisonettes byreference to the market priceprevailing at that time under therelevant sales scheme.

Macken J made a declarationin favour of the plaintiffs, hold-ing that, within a reasonableperiod of time subsequent tothe coming into effect of theHousing (Sale of Houses)Regulations 1995 and the adop-tion of a model scheme by the

defendant, the plaintiffs had alegitimate expectation that themaisonettes would be sold tothem at the prices appropriateto that period. The plaintiffswere also entitled to invoke anentitlement to have themaisonettes offered to themunder the doctrine of promis-sory estoppel.Dunleavy & Others v DunLaoghaire-Rathdown CountyCouncil, High Court, MrsJustice Macken, 2/11/2005[FL11969]

Medical negligence Wrongful death – mental distress– whether the defendants werenegligent in their medical treat-ment of the plaintiff and thusliable for the death of her twins,who were stillborn – CivilLiability Act 1961.The plaintiff sought damagesfor negligence, as well as inrespect of mental distress aris-ing out of the death of herunborn twins and for the treat-ment she received both duringand after her pregnancy.Essentially, the plaintiff claimedthat the defendants incorrectlyidentified the type of twins shewas carrying, in that they diag-nosed dichorionicity instead ofmonochorionicity and conse-

quently failed to check for ordiagnose twin-to-twin transfu-sion syndrome, thus resultingin the death of her unbornbabies. The issue of liability,solely in respect of the medicalaspects of this case, was dealtwith as a preliminary issue.

Macken J determined thatthe fourth and fifth-nameddefendants were liable, holdingthat the negligence of both thefourth and fifth-named defen-dants, although both of themwere skilled and experienced,caused the twins to be stillborn,in that, but for their negli-gence, the twins would havebeen delivered and would havesurvived birth. The first-named defendant was theemployer of the fourth-nameddefendant and therefore wasliable for her negligence.Cunningham v Governor andGuardians of the CoombeLying-in Hospital and others,High Court, Mrs JusticeMacken, 5/9/2005 [FL11893]

CostsWhether costs should follow theevent – order 99, rule 1(1) of theRules of the Superior Courts.

The respondent successfullyopposed the applicant’s appli-

cation for judicial review andapplied for the costs of the pro-ceedings. The issue of costswas adjourned to allow the par-ties a reasonable opportunity toconsider the judgment of thecourt. The respondent againsought the costs of the pro-ceedings and the applicantopposed that application.

Herbert J awarded costs tothe respondent, holding thatthe proceedings comprised a lisinter partes and the applicantfailed to establish the existenceof very exceptional circum-stances sufficient to deprive therespondent, as successful party,of the costs of the proceedings.Furthermore, the respondentswere not guilty of misconductsufficient to override the rulethat costs follow the event.Phelan v The Minister forJustice, Equality and LawReform, High Court, MrJustice Herbert, 4/11/2005[FL11838]

The information contained here is taken from FirstLaw’s LegalCurrent Awareness Service, published every day on the inter-net at www.firstlaw.ie. For moreinformation, contact bartdaly@firstlaw.ie or FirstLaw,Merchant’s Court, Merchant’sQuay, Dublin 8, tel: 01 6790370, fax: 01 679 0057.

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PRACTICE AND PROCEDURE

TORT

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Case C-344/04, The Queen, onthe application of International AirTransport Association & EuropeanLow Fares Airline Association vDepartment for Transport, 10January 2006. The ECJ con-firmed the validity of EU legis-lation on air passengers’ rights.This legislation, which cameinto force on 17 February 2005(IP/05/181), has introducedvery significant improvementsto the protection of air passen-gers’ rights in the EuropeanUnion in the event of deniedboarding, flight cancellation orlong delays.

The reference for a prelimi-nary ruling concerned the valid-ity of legislation establishingcommon rules on compensationand assistance to passengers inthe event of denied boardingand of cancellation or long delayof flights. Regulation (EC) no261/2004 requires each memberstate to set up an independentbody responsible for dealingwith passengers’ complaints andany disputes they may have withairlines to avoid long and expen-sive court cases.

Case C-443/03, Götz Leffler vBerlin Chemia AG, 8 November2005. Regulation 1348/2000establishes the principle ofdirect transmission of judicialand extrajudicial documents incivil and commercial matters.The regulation provides thatthe addressee of such a docu-ment may refuse to accept it if itis not in the official language ofthe member state to which it istransmitted or a language of the

member state of transmissionthat the addressee understands.

In 2001, the applicantapplied to a Dutch court forinterim relief against therespondent, a German compa-ny. He sought the order torecover goods that the companyhad seized from him and to pro-hibit further such seizure. Hisclaim was dismissed and heappealed to a higher court. Itsummoned the respondent toappear at a sitting. However, itdid not enter an appearance,having refused to accept thesummonses because they werenot in German. The applicantrequested judgment in default.This was refused as the lan-guage rules in the regulationhad not been complied with andthus the summoning of theGerman company had no legaleffect.

The applicant appealedagainst this judgment to theDutch Supreme Court. Itreferred several questions to theECJ for a preliminary ruling.The ECJ held that the conse-quences of refusal of the docu-ment must be determined by anautonomous interpretation ofthe regulation and not bynational law. When theaddressee of a document refusesit on the ground that it is not inan official language of the mem-ber state addressed, or in a lan-guage of the member state oftransmission that the addresseeunderstands, it is possible forthe sender to remedy that bysending a translation of the doc-ument as soon as possible and inaccordance with the procedurelaid down by the regulation. Aperiod of one month fromreceipt by the transmitting

agency of the information relat-ing to the refusal may be regard-ed as appropriate, but this peri-od can be determined by thenational court according to thecircumstances.

The court then consideredthe effect that sending a transla-tion has on the date of service.The applicant must be able tobenefit from the effect of theinitial service insofar as he hasdisplayed diligence in regularis-ing the document by sending atranslation as soon as possible.However, effective protection ofthe addressee entails taking intoaccount only the date on whichhe received the translation ofthe document.

The court concluded that if adocument has been refused onthe ground that it is not inaccordance with the languagerule and the defendant has notappeared, judgment is not to begiven until it is established thatthe document in question hasbeen regularised by the sendingof a translation, and that thistook place in sufficient time toenable the defendant to preparehis defence.

Cases T-33/02, T-52/02, T-62/02 and T-64/02, BritanniaAlloys & Chemicals Ltd, Sociéténouvelle des couleurs zinciques SA(SNCZ), Union Pigments AS andDr Hans Heubach GmbH & COKG v Commission of the EuropeanCommunities, 29 November2005. The CFI dismissed theapplications for annulment orreduction of fines imposed bythe commission on members ofa cartel in the zinc phosphatemarket.

In view of the gravity andduration of the infringement,the court considered that thefines were justified and were cal-culated in an appropriate man-ner. By a decision dated 11December 2001 (decision2003/437/EC), the commissionimposed fines totalling €11.95million on six European under-takings, producing and sellingzinc-based products frequentlyused in the paint industry, for aninfringement of communitycompetition law.

The cartel, which was limitedto standard zinc phosphate, gaverise to an agreement on marketsharing and sales quotas. It alsoinvolved the fixing of ‘base’ or‘recommended’ prices and theallocation of customers. Theinfringement was properly clas-sified as “very serious”, havingregard to the nature of the con-duct involved, its actual impacton the market, and the fact thatit covered the entire commonmarket and, after its creation,the European Economic Area.

Cases C-317/04 and C-318/04,European Parliament v Council ofthe European Union andEuropean Parliament vCommission of the EuropeanCommunities, 22 November2005. Advocate General Légerproposed annulment of theCommission and Council deci-sions on transfer to the USauthorities of personal informa-tion concerning air passengers.

Following the New York ter-rorist attacks, the US adoptedlegislation to the effect that air-lines carrying passengers to,from, or across US territory are

DATA PROTECTION

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required to give the US author-ities electronic access to the datacontained in their system forcontrolling and monitoringdepartures (passenger-namerecords).

In the view of the advocategeneral, neither the Councildecision approving the agree-ment, nor the Commission deci-sion holding that information tobe sufficiently protected by theUnited States, have an adequatebasis. The judges of the ECJ arenow starting to deliberate in thiscase. The judgment will bedelivered at a later date.

Case C-14/04, Abdelkader Dellasand Others v Premier Ministerand Others, 1 December 2005.In this case, the ECJ confirmedthat on-call duty is classified asworking time. Council directive93/104/EC of 23 November1993 lays down minimum safetyand health requirements in thisfield. Under the directive,workers are entitled to mini-mum rest periods – particularlydaily and weekly – and adequatebreaks. It also fixes the maxi-mum weekly working time at 48hours, including overtime.

This case was referred fromthe council of state in France inrelation to a special needsteacher who works in residentialestablishments for handicappedyoung persons. The teacher wasdismissed by his employer as aresult of disagreements relatingin particular to the definition ofactual work and the remunera-tion due for hours of night workon call. The ECJ found that thehours of presence in questionmust be counted in their entire-ty as working time for ascertain-ing whether all the minimumrequirements laid down bydirective 91/104, in order toprovide effective protection ofthe safety and health of workers,have been complied with.

Case C-144/04, WernerMangold v Rüdiger Helm, 22November 2005. In this case,

the court consolidated protec-tion for workers with regard todifferent treatment on groundsof age. Questions were referredfor a preliminary ruling on theinterpretation of directive2000/78 in a dispute concerningthe German law on part-timeworking and fixed-term con-tracts. The German law inquestion authorises, withoutrestriction, except in cases of acontinuous employment rela-tionship, the conclusion offixed-term contracts of employ-ment once the worker hasreached the age of 52.

In this case, it was not shownthat fixing an age threshold, assuch, regardless of any otherconsideration linked to thestructure of the labour marketin question or the personal situ-ation of the person concerned,is objectively necessary to theattainment of the objective,which is the integration intoworking life of unemployedolder workers.

Case C-366/04, Georg Schwarzv Bürgermeister der Landeshaup-stadt Salzburg, 24 November2005. Austria prohibits the saleof sugar confectionary or simi-lar products made using sugarsubstitutes from vendingmachines without wrapping.

Mr Schwarz marketed vari-ous kinds of unwrapped chew-ing gum in vending machines inSalzburg. The mayor ofSalzburg then brought proceed-ings against him. He appealed,arguing that the Austrian ruleswere incompatible with EC lawand, in particular, with thetreaty provisions on free move-ment of goods.

The Independent Administ-rative Chamber, Salzburg,referred a question to the ECJfor a preliminary ruling. TheECJ pointed out that packagingof confectionery distributed byvending machines has not beenharmonised by the food hygienedirective (directive 93/43/EEC).

National measures must,therefore, be assessed againstthe EC Treaty provisions relat-ing to the free movement ofgoods. The Austrian legislationis an impediment to the freemovement of goods. Importerswishing to sell confectionery invending machines in Austriahave to package it. This makesits importation into Austriamore expensive.

Nevertheless, the court con-sidered that the ban was justi-fied, as it constitutes an ade-quate and proportionate meas-ure for the protection of publichealth. Non-packaged confec-tionery has, in the past, beenfound to be exposed in vendingmachines both to pathogenicgerms and to moisture andinsects.

Cases T-306/01 and T-315/01,Ahmed Ali Yusuf and Al BarakaatInternational Foundation andYassin Abdullah Kadi v Council ofthe European Union andCommission of the EuropeanCommunities, 21 September2005. The United NationsSecurity Council had adoptedseveral resolutions aimed at theTaliban, Osama bin Laden andal-Qaeda. All the UN memberstates were called on to freezethe funds and other financialresources controlled directly orindirectly by those individualsand entities. A UN sanctionscommittee identifies the per-sons concerned and the financialresources to be frozen and con-siders requests for exemption.

Within the EU, these resolu-tions were put into effect byregulation (EC) no 881/2002.This regulation orders thefreezing of the funds of individ-uals and entities listed in anannexe to the regulation. Thislist is regularly reviewed by theCommission, on the basis ofupdates from the UN sanctionscommittee. Derogations fromthe freezing of funds may begranted by states on humanitar-ian grounds. Several of the per-

sons and entities concernedrequested annulment of the reg-ulations before the CFI. TheCFI reviewed the legality ofthese measures.

Articles 60 and 301 of the ECTreaty empower the Council toimpose economic and financialsanctions on third states, on thebasis of a common positionadopted by the EU under thecommon foreign and securitypolicy.

The CFI held that the coun-cil is competent, under similarconditions, to impose economicand financial sanctions such asthe freezing of funds on individ-uals, in connection with thefight against international ter-rorism. The court found that,under international law, theobligations of the member statesof the UN under its charter pre-vail over any other obligation,including obligations under theEuropean Convention on HumanRights and the EC Treaty.

Although the EC is not amember of the UN, it must beconsidered to be bound by theobligations flowing from theUN Charter, in the same way asits member states, by virtue ofthe treaty. The EC may notinfringe on the obligationsimposed on its member states byvirtue of the charter or impedetheir performance. The EC isalso required to adopt all theprovisions necessary to allow itsmember states to fulfil thoseobligations.

The contested regulation islimited to putting into effect atEC level, decisions of theSecurity Council. Therefore,any review of the lawfulness ofthe regulation would involvethe court in examining the law-fulness of the decisions in ques-tion. These decisions fall, inprinciple, outside the ambit ofthe court’s judicial review. Thecourt has no authority to callinto question, even indirectly,their lawfulness in the light ofEC law or of fundamental rightsas recognised in the EC legalorder. On the contrary, thecourt is bound, so far as possi-

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ble, to interpret and apply thatlaw in a manner compatiblewith the obligations of themember states under the UNCharter.

Nevertheless, the court isempowered to check the lawful-ness of the contested regulationand, indirectly, of the SecurityCouncil resolutions implement-ed by that regulation in the lightof peremptory norms of publicinternational law (jus cogens).The ECJ held that the freezingof funds provided for by thecontested regulation does notinfringe the applicant’s funda-mental rights as protected by juscogens. The contested regulationmakes express provision forpossible derogations, at therequest of interested persons,allowing access to funds neces-sary to cover basic expenses. It istherefore neither the purposenor the effect of those measuresto subject the applicants toinhuman or degrading treat-

ment. The applicants have notbeen deprived of their right toproperty.

The freezing of funds is oneaspect of the UN’s legitimatefight against international ter-rorism and is a precautionarymeasure. Unlike confiscation,it does not affect the very sub-stance of the right of the per-sons concerned to property intheir financial assets, but onlythe use thereof. Furthermore,the Security Council resolu-tions provide for a means ofreviewing, after a certain peri-od, the overall system of sanc-tions and for a procedureenabling the persons con-cerned to present their case tothe sanctions committee forreview, through their state.

The court then consideredrights of defence. No rule ofjus cogens appears to require apersonal hearing of those indi-viduals concerned by the sanc-tions committee. The ECJ

then looked at the right toeffective judicial review. Inrespect of the applicants’action, the court carried out acomplete review of the lawful-ness of the contested regula-tion with regard to observanceby the EC institutions of therules of jurisdiction and therules of lawfulness and theessential procedural require-ments that bind their actions.

It also reviewed the lawful-ness of the regulation from theviewpoint of procedural andsubstantive appropriateness,internal consistency andwhether the regulation is pro-portionate to the SecurityCouncil’s resolutions.

The court also reviewed thelawfulness of the regulation inthe light of jus cogens. However,it is not for the court to reviewindirectly whether the SecurityCouncil’s regulations are com-patible with fundamentalrights as protected by the EC

legal order, or to verify thatthere has been no error ofassessment of the facts and evi-dence relied on by the SecurityCouncil in support of themeasures it has taken, or tocheck indirectly the appropri-ateness and proportionality ofthose measures. To that extent,there is no court procedureavailable to the applicants.

However, that lacuna in thejudicial protection available tothe applicants is not in itselfcontrary to jus cogens. Theright of access to the courts isnot absolute. In this instance,it is curtailed by the immunityfrom jurisdiction enjoyed bythe Security Council. Theapplicant’s interest in having acourt hear their case on itsmerits is not enough to out-weigh the essential publicinterest in the maintenance ofinternational peace and securi-ty clearly identified by theSecurity Council. G

ON THE MOVEMAURA CONNOLLYMaura has been named as apartner in Eugene F CollinsSolicitors. She heads thefirm’s employment law group.From 1 May 2006, herappointment brings the totalnumber of partners in thefirm to 18.

SINÉAD HAYESSinéad has been appointedas a solicitor in the litigationdepar tment and competi-tion/regulatory law group inEugene F Collins.

She holds a BSc (food sci-ence) and a postgraduatediploma in legal studies.

ELIZABETH RYANElizabeth has been appointedsenior associate with MasonHayes & Curran. Her focusareas are employment law,industrial relations law andhealth and safety law.

A graduate of UniversityCollege Cork, prior to qualify-ing as a solicitor Elizabethworked in IBEC.

TRÍONA SUGRUE Tríona has been appointedsolicitor to the employmentlaw group of Eugene F Collins.

Tríona holds a BCL (lawand German) and a mastersdegree in European law andhas extensive experience inthe areas of litigation andemployment law.

Career moves, new appointments and promotions

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Registration of Title Act 1964An application has been received fromthe registered owners mentioned inthe schedule hereto for the issue of aland certificate as stated to have beenlost or inadvertently destroyed. A newcertificate will be issued unless notifi-cation is received in the registry with-in 28 days from the date of publicationof this notice that the original certifi-cate is in existence and in the custodyof some person other than the regis-tered owner. Any such notificationshould state the grounds on which thecertificate is being held.(Register of Titles), Central Office, LandRegistry, Chancery Street, Dublin (Published 7 April 2006)

Regd owner: Gerard Carroll and EilishCarroll, Knocktemple, Virginia, CoCavan; folio: 2088F; lands:Tullynaskeagh; area: 0.2048hectares; Co Cavan

Regd owner: Michael Clancy; folio:4748; lands: townland of Cloon-colman and barony of Islands; area:12.2790 hectares; Co Clare

Regd owner: Martin Michael O’Sheaand Teresa O’Shea; folio: 5415;lands: townland of Breaghva andbarony of Moyarta; area: 46 acres, 3roods, 36 perches; Co Clare

Regd owner: Patrick Duggan(deceased); folios: 17841 and11616F; lands: townland ofCappaghlodge (17841) andCaherycahill (11616F) and baronyof Bunratty Lower (17841) andCorcomroe (11616F); area: (17841)4.1733 hectares and (11616F)0.0930 hectares; Co Clare

Regd owner: James Fitzgibbon; folio:28700; lands: plot of ground beingpart of the townland of Mohera inthe barony of Barrymore and thetownland of Glenarousk in thebarony of Barrymore in the countyof Cork; Co Cork

Regd owner: Jeremiah Kehily; folio:11220; lands: plot of ground beingpart of the townland of Sranavid-doge of Carbery East (west division)and county of Cork; Co Cork

Regd owner: Hannah Keniry; folio:33561; lands: plot of ground beingpart of the townland of Seafield inthe barony of Imokilly and countyof Cork; Co Cork

Regd owner: Patrick O’Brien; folio:9806; lands: plot of ground situatein the electoral division ofWarrenscourt, being part of thetownland of Curraghbeha in thebarony of Muskerry West andcounty of Cork; Co Cork

Regd owner: Michael O’Carroll; folio:

22957; lands: plot of ground beingpart of the townland of Glenacarneyin the barony of Dunhallow andcounty of Cork; Co Cork

Regd owner: John O’Leary; folio:18278; lands: plot of ground beingpart of the townland ofInchinarihen in the barony ofBantry and county of Cork; CoCork

Regd owner: Patrick O’Sullivan; folio:359; lands: plot of ground beingpart of the townland ofBallynafarsid in the barony ofImokilly and county of Cork; CoCork

Regd owner: Patrick O’Sullivan; folio:69281F; lands: plot of ground beingpart of the townland of Ballinbrittigin the barony of Barrymore andcounty of Cork; Co Cork

Regd owner: Sean O’Sullivan andCeline O’Sullivan; folio: 59722;lands: plot of ground being part ofthe townland of Carrignaneelagh inthe barony of Muskerry West andcounty of Cork; Co Cork

Regd owner: Martin Foley and CoraFoley; folio: 34826F; lands: plot ofground known as 36 The Rise,Waterfall Road, in the parish of StFinbar’s in the county borough ofCork; Co Cork

Regd owner: Michael Kieran Sullivan;folio: 6206; lands: plot of groundbeing part of the townland ofDerrycreeveen in the barony ofBear and county of Cork; Co Cork

Regd owner: Francine Renee Lamotteand Jean Pierre Hingre, c/o JohnMurray, Solicitors, Bayview Avenue,Bundoran, Co Donegal; folio:1547F; lands; Carricknahorna; area:0.1669 hectares; Co Donegal

Regd owner: William John McElchar,Drumcannon, Killygordan, CoDonegal; folio: 25276F; lands:

Drummcannon; area: 19.7944hectares; Co Donegal

Regd owner: John Martin, Carrick,Laghy, Co Donegal; folio: 28655;lands: Mullanasole; area: 3.9836hectares; Co Donegal

Regd owner: Sandra Clarke and GarryClarke; folio: DN128320F; lands:property situate in the townland ofIrishtown and barony ofCastleknock; Co Dublin

Regd owner: Kenneth Deeter andGeorgina Deeter; folio: DN5252F;lands: property situate in the town-land of Streamstown and barony ofCoolock, situate to the west ofMalahide Road in the town ofMalahide; Co Dublin

Regd owner: Peter Evans and GillianEvans; folio: DN83335L; lands:property known as Flat 254, Level4, Block W1, together with carspace no 168, Custom HouseHarbour, Custom House Docks, inthe parish of St Thomas and districtof North Central; Co Dublin

Regd owner: Sarah Hogan; folio:DN26251F; lands: property knownas 27 Melvin Road, situate in theparish of Rathfarnham and districtof Terenure; Co Dublin

Regd owner: Mark Lyons; folio:DN44366L; lands: property situatein the townland of Tonkegee andbarony of Coolock; Co Dublin

Regd owner: Liam O’Hora; folio:DN3666L; lands: the leaseholdinterest in the property situate tothe west of Greenhills Road, beingpart of the townland of Greenhillsand barony of Uppercross; CoDublin

Regd owner: Derek Ward; folio:DN11738F; lands: property situatein the townland of Hartstown andbarony of Castleknock; Co Dublin

Regd owner: John Chaney and Anne

Chaney; folio: DN47194L; lands:property known as 21 RedwoodClose being part of the townland ofKilnamanagh and barony ofUppercross; Co Dublin

Regd owner: Desmond Conran; folio:DN29772F; lands: property knownas no 8 Larkfield Park, Kimmage,situate on the south west ofLarkfield Park in the parish of StPeter’s and district of Rathmines;Co Dublin

Regd owner: the county council of thecounty of Dublin; folio: DN15534;lands: property situate in the town-land of Saggart and barony ofNewcastle; Co Dublin

Regd owner: Dakota PropertiesLimited; folio: DN1328F; lands:property situate to the east of theRatoath Road; in the parish ofFinglas, district of Finglas North;Co Dublin

Regd owner: Don Breen and MichelleBennett; folio: DN116490F; lands:property situate in the townland ofMurphystown and barony ofRathdown; Co Dublin

Regd owner: Gary Ryan; folio:DN136050F; lands: a plot ofground known as no 27 The Grove,Pheasant Run, Navan Road,Blanchardstown, situate in thetownland of Huntstown and baronyof Castleknock; Co Dublin

Regd owner: Paul Thorne; folio:DN7850; lands: property situate inthe townland of Rush and barony ofBalrothery East; Co Dublin

Regd owner: Bridget Cannon; folio:47707; lands: townland of (1)Loughaunbrean, (2) Lecarrowmac-tully and barony of (1) and (2)Kilconnell; area: (1) 13 acres, 1rood, 27 perches, (2) 18 acres, 17perches; Co Galway

Regd owner: John Naughton; folio:

LOST LAND CERTIFICATES

• Lost land certificates – €126 (incl VAT at 21%)

• Wills – €126 (incl VAT at 21%)

• Lost title deeds – €126 per deed (incl VAT at 21%)

• Employment/miscellaneous – €126 (incl VAT at 21%)

HIGHLIGHT YOUR NOTICE BY PUTTING A BOX AROUND IT – €30 EXTRA

RATES IN THE PROFESSIONAL NOTICE SECTION ARE AS FOLLOWS:PROFESSIONAL NOTICE RATES

All notices must be paid for prior to publication. CHEQUES SHOULD BE MADE PAYABLETO LAW SOCIETY OF IRELAND. Deadline for May Gazette: 21 April 2006. For furtherinformation, contact Catherine Kearney or Valerie Farrell on tel: 01 672 4828 (fax: 01 672 4877)

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15399; lands: townland of (1)Skeaghadereen, (2) CarrowntoberEast and barony of (1) and (2)Athenry; area: (1) 31.4010 hectares,(2) 1.0243 hectares; Co Galway

Regd owner: Bridie Brassil; folio: 4657;lands: townland of Gortalea andbarony of Trughanacmy; Co Kerry

Regd owner: Patrick Cronin; folio:17267F; lands: townland ofBallyhorgan West and barony ofClanmaurice; Co Kerry

Regd owner: Michael Dineen; folio:24179F; lands: townland ofAghabeg West and barony ofClanmaurice; Co Kerry

Regd owner: Joseph Brosnan; folio:20284F; lands: townland of DromEast and barony of Corkaguiny; CoKerry

Regd owner: Patrick King; folio:23387; lands: townland of ClashWest and barony of Trughanacmy;Co Kerry

Regd owner: Thomas John Kelliher;folio: 1951; lands: townland ofKilgobnet and barony ofDunkerron South; Co Kerry

Regd owner: James O’Gorman andMaureen O’Gorman; folio: 32015;lands: townland of Farrannahowand barony of Iveragh; Co Kerry

Regd owner: Patrick Clarke; folio:10837; lands: townland ofBallymore Eustace East and barony

of Naas South; Co KildareRegd owner: Patrick Fadden and Anne

Fadden; folio: 4773F; lands: town-lands of Capdoo and CapdooCommons and baronies of Clane;Co Kildare

Regd owner: Landenstown EstatesLimited; folio: 4961; lands: town-lands of Landenstown andLongtown and baronies of Clane;Co Kildare

Regd owner: Edward Millea; folio: 177Kilkenny; lands: Warrington andbarony of Shillelogher; CoKilkenny

Regd owner: James Roche (deceased);folio: 360 Kilkenny; lands: Bohillaand Ballyvool and barony ofGowran; Co Kilkenny

Regd owner: James Malone (deceased);folio: 2460; lands: Kilinapasron andbarony of Tinnahinch; Co Laois

Regd owner: Peter McHugh,Annaghbrennan, Cloone, CoLeitrim; folio: 18483; lands: (1)Annaghmacullen, (2) Sunnagh Beg,(3) Sunnagh More, (4) SunnaghMore, (5) Sunnagh Beg; area: (1)6.3864, (2) 7.7168, (3) 0.2074, (4)4.1834, (5) 0.0075 hectares; CoLeitrim

Regd owner: Patricia Enright; folio:16290F; lands: townland ofCastletown and barony of Kenry;Co Limerick

Regd owner: Seamus Fitzgerald; folio:13890F; lands: townland ofBallyellinan and barony of ConnelloLower; Co Limerick

Regd owner: Timothy J O’Connor;folio: 16282; lands: townland ofAbbeyfeale West and barony ofGlenquin; Co Limerick

Regd owner: Daniel J O’Riordan andMargaret O’Riordan; folio: 24254;lands: townland of Abbeyfeale Westand barony of Glenquin; CoLimerick

Regd owner: Michael Quinn,Cartrongolan, Drumlish, CoLongford; folio: 488; lands;Cartrongolan; area: 6.2347hectares; Co Longford

Regd owner: Edward McCloskey,Beltichbourne, Termonfeckin Road,Drogheda, Co Louth; folio: 10574;lands: Castlebellingham; area;0.4856 hectares; Co Louth

Regd owner: Joseph Daly; folio:8162F; lands: townland of TullyCommons and barony of Carra;area: 0.3391 hectares; Co Mayo

Regd owner: Kevin Gallagher andAnne-Marie Gallagher; folio: 4114;lands: townland of Lecarrow andbarony of Costello; area: 27 acres, 2roods, 7 perches; Co Mayo

Regd owner: Thomas Lynchenkaun;folio: 7111F; lands: townland ofDerreen and barony of Burrishoole;area: 9.3659 hectares; Co Mayo

Regd owner: John Malone and HelenMalone; folio: 9998F; lands: town-land of Rathkelly and barony ofKilmaine; Co Mayo

Regd owner: James Murtagh (de-ceased); folio: 1414; lands: townlandof Treankeel and barony of Gallen;area: 4.8563 hectares; Co Mayo

Regd owner: Edward Carroll andPhilomena Carroll, 61 RussellAvenue, Dublin 3; folio: 5026F;lands: Reask; area: 0.3338 hectares;Co Meath

Regd owner: Paul Darragh, WatersideStud, Balrath, Co Meath; folio:25256; lands: Waterside Great;area; 12.5647 hectares; Co Meath

Regd owner: Patrick O’Gorman andBarbara O’Gorman, Robertstown,Ashbourne, Co Meath; folio:17088F; lands: Robertstown; area:1.2140 hectares; Co Meath

Regd owner: Christopher, Bridget andJack O’Loughlin, 22 RathfarnhamRoad, Terenure, Dublin 6; folio:18660; lands: Ballinderrin; CoMeath

Regd owner: Charles Toal, Smithboro,Co Monaghan; folio: 14353R;lands: Mulladuff; area: 2.9210hectares; Co Monaghan

Regd owner: William Delaney(deceased); folio: 2655; lands;Ballyphilip and barony of Ballybrit;Co Offaly

Regd owner: John O’Reilly; folio:910L; lands: Kilmalogue andbarony of Philipstown; Co Offaly

Regd owner: Ronald Walsh; folio:334L; lands: Tullamore and baronyof Ballycowan; Co Offaly

Regd owner: Martin Keaveney; folio:21848; lands: townland ofTonaphubble and barony ofCarbury; area: 0.0227 hectares; CoSligo

Regd owner: Joseph McNasser andMarie McGlynn; folio: 791F; lands:townland of Fermoyle and baronyof Carbury; area: 0.1920 hectares;Co Sligo

Regd owner: Kathleen Finn; folio:10587; lands: townland of Munniaand barony of Owney and Arra; CoTipperary

Regd owner: Frank Gleeson; folio:38234; lands: townland ofLackenavea and barony of Owneyand Arra, Co Tipperary

Regd owner: John McCormack; folio:34862; lands: townland of Kilcom-mon and barony of KilnamanaghUpper; Co Tipperary

Regd owner: Patrick Flannery; folio:14133F; lands: townland of Monseaand barony of Lower Ormond; CoTipperary

Regd owner: Cornelius Ryan; folio:9672; lands: townland ofRathcloheen and barony ofClanwilliam; Co Tipperary

Regd owner: Mary Crowley; folio:4456; lands: plot of ground beingpart of the townland of Dysert inthe barony of Decies within Drumand county of Waterford; CoWaterford

Regd owner: Laurence Kiernan,Beechlawns, Mullingar, Co West-meath; folio: 10794; lands: Mull-aghcroy; area: 15.8860 hectares and5.8420 hectares; Co Westmeath

Regd owner: Thomas McLoughlin,Hall, Moate, Co Westmeath; folio:15781; lands: Magheramurry; CoWestmeath

Regd owner: Marie Dempsey(deceased); folio: 16371; lands:Ballyhighland and barony ofBantry; Co Wexford

Regd owner: John Devereux(deceased); folio: 19832; lands:Castlebridge and barony ofShelmaliere East; Co Wexford

Regd owner: Paul O’Boyce andCatherine Dunne; folio: 4250F;lands: townland of WhitestownLower and barony of TalbotstownUpper; Co Wicklow

Dollard, Joseph (deceased), late ofWillow Cottage, Bannpark, Gorey, CoWexford. Would any person with anyknowledge of a will executed by theabove-named deceased, who died on16 May 2004, please contact MiriamCarr of Dermot P Coyne, Solicitors,Liffey Bridge House, 1 Main Street,Lucan, Co Dublin; tel: 01 628 1000

Dunleavy, John J (deceased), late ofShanaghan, Loughros Point, Ardara,Co Donegal. Would any person hav-ing knowledge of a will executed bythe above-named deceased, who diedon 2 May 2001, please contactHartnett Hayes, Solicitors, GweedoreRoad, Dungloe, Co Donegal; tel: 074952 2208, fax: 074 952 2249

Gildea, Patrick, and Gildea, George(deceased), both late of Corsallagh,Cloonacool, Tubbercurry, Co Sligo.Would any person having knowledgeof a will or the whereabouts of a will inrespect of either the aforesaid PatrickGildea or the aforesaid George Gildeaplease contact Johnson and Johnson,Solicitors, Ballymote, Co Sligo; refer-ence KVJ/K005060001; tel: 071 9183304

Lynch, Dominic (deceased), late ofKilmoon, Ashbourne, Co Meath, whodied in September 2005. Would anyperson having knowledge of a will orthe whereabouts of a will executed bythe above-named deceased please con-

WILLS

COMMERCIALMEDIATION

An effective alternativeto Litigation,

in Commercialand

Legal disputes.

Failure to Mediate first,may amount to

professional negligence,& Clients may bepenalised in costs.

ESMOND REILLYSolicitor

Accredited MediatorCentre for Effective Dispute Resolution, London (CEDR)

RESOLVIT MEDIATION

Tel: +353 1 8416022 Fax: +353 1 8416024

resolvit@resolvitmediation.ie

www.resolvitmediation.ie

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NORTHERNIRELAND

SOLICITORSWe will engage in,

and advise on,all Northern Ireland-

related matters,particularly personal injury

litigation.

Consultations whereconvenient.

OLIVER M LOUGHRAN & COMPANY

9 HOLMVIEW TERRACE,OMAGH,

CO TYRONEPhone (004428) 8224 1530Fax: (004428) 8224 9865

e-mail:o.loughran@dial.pipex.com

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: rberdaguer@berdaguerabogados.com

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

tact B Vincent Hoey & Co, Solicitors,Law Chambers, Fair Street,Drogheda, Co Louth; tel: 041 9831001/2/3; fax: 041 983 9060

Mernagh, Bridget (deceased), late ofGreenanemore, Rathdrum in thecounty of Wicklow. Would any personhaving knowledge of a will executed bythe above-named deceased, who diedon 21 April 1972, please contact Aine SHogan & Co, Solicitors, 32 Ferrybank,Arklow, Co Wicklow; tel: 0402 91255,fax: 0402 91256, email:aineshogan@eircom.net

O’Donnell, Michael and DoloresMary (deceased), both late of 11Ailesbury Lawn, Dundrum, Dublin 16,who died on 1 February 2006 and 14July 2005 respectively. Would any per-son having knowledge of the where-abouts of a will executed by the above-named deceased persons please contactCahill & Company, Solicitors, 21Windsor Place, Dublin 2; tel: 01 6624454, fax: 01 676 5279, email: atur-ley@cahillsolicitors.ie

O’Herlihy, Daniel Joseph (other-wise Dan Joe Herlihy), late ofDrishane Road, Millstreet, Co Cork,and previously of Kiletra, Dromagh,Mallow, Co Cork, who died on 27January 2006. Would any person hav-ing knowledge of the whereabouts of awill made by the above-nameddeceased please contact DeirdreO’Callaghan, James Lucey & Sons,Solicitors, Kanturk, Co Cork; tel: 02950026

Northern Ireland agents for all con-tentious and non-contentious matters.Consultation in Dublin if required.Fee sharing envisaged. ContactNorville Connolly, D&E Fisher,

MISCELLANEOUS

Solicitors, 8 Trevor Hill, Newry; tel:048 3026 1616, fax: 048 3026 7712;email: norville@dandefisher.com

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;DX 83800 Fulham Broadway; tel:0044 2073 818311, fax: 0044 2073816723, email: arobbins@parfitts.co.uk

Ordinary seven-day publican’slicence for sale. Contact EunanGallagher, Gallagher McCarthy,

UNITED STATES LAWYERS

Contact Michael Kleeman, Esq., at (toll free) 00-800-221-56970 or bye-mail at mkleeman@kleemanlawfirm.com

For more information about our law firm visitour website at www.kleemanlawfirm.com

Kleeman, Abloeser & DiGiovanni, P.C. is a prominent U.S. law firm that specializes in providing the followinglegal services in the United States:

1 Travel law: Representing foreign visitors seriously injured in the United States

2 Personal injury litigation in the United States

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Joseph O’Neill BE, FIEI, DiplToxicol, Chartered Engineering

ToxicologistJoseph R O’Neill & Associates

Consulting Engineers andScientists, 61 Barton Road,

Rathfarnham, Dublin 14.Telephone: 01 493 1088

Fax: 01 495 0447Email: joneil@iol.ie

Website:www.iol.ie/~joneil/

Scientific investigation andexpert witness evidence on industrial and occupational

accidents, occupational accidents, fires and explosions

FRANCECABINET BARKER-DAVIES

29 Rue de Bassano, 75008 Paris. Telephone: 00331 56641220

Fax: 00331 4070 1563E-mail: cbdlaw@club-internet.fr

English/French Law FirmSpecialising in Company,

Commercial, Labour and Tax Law.Principal Lawyers are

C Barker-Davies, J Larousse, R Stadelhoffer.

Dublin enquiries to BrendanWalsh or Cara WalshPhone: 01 660 2955

Fax: 01 667 1080

Solicitors, New Row, Donegal town;tel: 074 972 1753 or email: egal-lagher@gmcclaw.ie

The partners in an establishedDublin City centre solicitor’s prac-tice are interested in merging ortransferring the goodwill of the prac-tice on a basis to be negotiated. Applyin confidence to box no 37/06

In the matter of the Landlord andTenant Acts 1967-1994 and in thematter of the Landlord and Tenant(Ground Rents) (No 2) Act 1978and in the matter of 43 HomefarmRoad, Drumcondra, Dublin 9: anapplication by Niall McCruddenand Kevin McCruddenTake notice that any person havingan interest in the freehold estate ofthe following property: the shop andpremises situate at no 43 HomefarmRoad, Drumcondra, in the city of

TITLE DEEDS

Dublin, held under lease dated 20August 1936 between James J Hart ofthe one part and Eileen McMahon ofthe other part for a term of 150 yearsfrom 1 November 1935.

Take notice that Niall McCruddenand Kevin McCrudden intend to sub-mit an application to the county reg-istrar for the city of Dublin for acqui-sition of the freehold interest in theaforesaid property, and any partyasserting that they hold a superiorinterest in the aforesaid premises arecalled upon to furnish evidence of thetitle to the aforementioned premisesto the below named within 21 daysfrom the date of this notice.

In default of any such notice beingreceived, Niall McCrudden andKevin McCrudden intend to proceedwith the application before the coun-ty registrar at the end of 21 days fromthe date of this notice and will applyto the county registrar for the city ofDublin for directions as may beappropriate on the basis that the per-sons beneficially entitled to the supe-rior interest including the freeholdreversion in each of the aforesaidpremises are unknown or unascer-tained.Date: 7 April 2006Signed: Colm Murphy (solicitors for theapplicant), Laurel Lodge BusinessCentre, Castleknock, Dublin 15

In the matter of the Landlord andTenant Acts 1967-1994 and in thematter of the Landlord and Tenant(Ground Rents) (No 2) Act 1978: anapplication by Helen MorrowTake notice that any person havingany interest in the freehold estate ofthe following property: all that andthose the piece or plot of ground withthe buildings thereon now known asMcCurtain Street, Clones, in thecounty of Monaghan.

Take notice that Helen Morrowintends to submit an application tothe county registrar for the county ofMonaghan for the acquisition of thefreehold interest in the aforesaidproperty, and any party asserting thatthey hold a superior interest in theaforesaid premises are called upon tofurnish evidence of title to the afore-mentioned premises to the belownamed within 21 days of the date ofthis notice.

In default of any such notice beingreceived, the applicant, HelenMorrow, intends to proceed with theapplication before the county regis-trar at the end of 21 days from thedate of this notice and will apply tothe county registrar for the county ofMonaghan for directions as maybeappropriate on the basis that the per-son or persons beneficially entitled tothe superior interest including the

freehold reversion in the aforesaidpremises are unknown or unascer-tained.Date: 7 April 2006Signed: Barry Healy & Co (solicitors forthe applicant), Laurel Lodge, Hillside,Monaghan

In the matter of the Landlord andTenant Acts 1967-1994 and in thematter of the Landlord and Tenant(Ground Rents) (No 2) Act 1978 andin the matter of the lands andpremises in the townland ofDrumacrin, parish of Innismac-saint, barony of Tirhugh and coun-ty of Donegal: an application byRosemary DalyTake notice that any person having aninterest in the freehold estate or supe-rior interest in the following premis-es: all that and those that piece or par-cel of ground situate at Main Street,Bundoran, in the parish ofInnismacsaint, barony of Tirhugh andcounty of Donegal, now trading asDaly’s Fashions and originally held bylease dated 21 February 1871,Hamilton Scott to Robert Moffitt, fora term of 90 years from 1 November1870, subject to the yearly rent ofseven pounds, eight shillings sterling.

Take notice that the applicant, MsRosemary Daly, being the personentitled under section 3 of theLandlord and Tenant (Ground Rents)Act 1967, as saved by section 73 of theLandlord and Tenant (Amendment) Act1980, sections 8 and 15 of theLandlord and Tenant (Ground Rents)(No 2) Act 1978, intends to submit anapplication to the county registrar forthe county of Donegal for the acqui-sition of the freehold interest and anyintermediate interest in the aforesaidproperty, and any party asserting thatthey hold a superior interest in thesaid aforesaid premises or any of themare called upon to furnish evidence oftitle to the aforementioned premisesto the below named within 21 daysfrom the date of this notice.

In default of any such notice beingreceived, the said Rosemary Dalyintends to proceed with the applica-tion before the county registrar at theend of the 21 days from the date of thisnotice and will apply to the countyregistrar for the county of Donegal 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 are unascertained.Date: 7 April 2006Signed: Kelly & Ryan (solicitors for theapplicant), Teeling Street, Sligo

In the matter of the Landlord andTenant (Ground Rents) Acts 1967-

2005 and in the matter of an appli-cation by Players Square LimitedTake notice that any person havingan interest in the freehold estate orany intermediate interest in thoseparts of the property formerly knownas the Bailey Gibson Printing Works,South Circular Road, in the parish ofSt James and city of Dublin, whichare held under:a) A fee farm grant dated 13

November 1852, made betweenCooper Penrose and ReverendJohn Dennis Penrose of the onepart and Reverend John Alexanderof the other part;

b) A fee farm grant dated 13November 1924, made betweenHarold B Bompas and Edwina MBrush of the one part and GeorgeWilliam Shannon, Arthur CSibthorpe and George Birney ofthe other part;

c) An indenture of lease dated 28October 1920, made betweenMaria Ryan of the one part andPatrick Higgins and Jane Higginsof the other part;

d) An indenture of lease dated 20 July1944, made between GeorgeWilliam Shannon, Arthur CSibthorpe, James C Evans, AlfredD Baldwin, James W Ross andWilliam J Walsh of the one partand Bailey Son & Gibson Limitedof the other part

should give notice of their interest tothe undersigned solicitors.

And take notice that PlayersSquare Limited intends to submit anapplication to the county registrar forthe county of the city of Dublin forthe acquisition of the freehold and allintermediate interests in the proper-ty aforesaid, and any party assertingthat they hold a superior interest inthe said property is called upon tofurnish evidence of their title theretoto the undersigned within 21 days ofthe date of publication of this notice.

In default of such notice beingreceived, Players Square Limitedintends to proceed with the applica-tion before the county registrar forthe county of the city of Dublin fordirections as may be appropriate onthe basis that the person or personsbeneficially entitled to the superiorinterests including the freeholdreversion in the property areunknown or unascertained. Date: 7 April 2006Signed: Eugene F Collins (solicitors forthe applicant), Temple Chambers, 3Burlington Road, Dublin 4

In the matter of the Landlord andTenant (Ground Rents) Acts 1967-2005 and in the matter of an appli-cation by Players Square Limited

Legal Professional/Company partnershiprequired to advance

Internet businessproposition.

Please e-mail

pbd@dublin.ie

APRIL 2006

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WestmorelandStreet, D2

1st , 2nd, 3rd & 4th

floors, 611sqm of

offices in this much

sought after central

location close to the

Four Courts, City

Centre and all

transport routes.

New lease terms

available. Ideal for

solicitors offices.

Contact Ronan

Corbett at

DTZ Sherry FitzGerald

01 6399310

TD Fitzpatrick CERTIFIED PUBLICACCOUNTANTS &

REGISTEREDAUDITORS

Specialists in SolicitorBookkeeping and

Accountants Reports

For Enquiries regardingour Solicitor services,please contact us at:

7 Argus House,Greenmount Office Park,

Harold’s Cross,Dublin 6W.

Phone: 01 4737455Email: trevorf@o2.ie

Take notice that any person having aninterest in the freehold estate or anyintermediate interest in those parts ofthe property known as John PlayerHouse, South Circular Road, parishof St James and city of Dublin, whichare held under lease by way of sub-lease dated 20 July 1923, madebetween Michael Flanagan of the onepart and the Imperial TobaccoCompany (of Great Britain andIreland) Limited of the other part anda fee farm grant dated 28 February1895, made between WilliamHamilton Maffett of the one part andEdward Dawson Atkinson, ReverendWilliam Atkinson Dickson and JamesSearight Atkinson of the other part,should give notice of their interest tothe undersigned solicitors.

And take notice that PlayersSquare Limited intends to submit anapplication to the county registrar forthe county of the city of Dublin forthe acquisition of the freehold and allintermediate interests in the aforesaidproperty, and any party asserting thatthey hold a superior interest in thesaid property is called upon to furnishevidence of their title thereto to theundersigned within 21 days of thedate of publication of this notice.

In default of such notice beingreceived, Players Square Limitedintends to proceed with the applica-tion before the county registrar forthe county of the city of Dublin fordirections as may be appropriate onthe basis that the person or personsbeneficially entitled to the superiorinterests including the freeholdreversion in the property areunknown or unascertained. Date: 7 April 2006Signed: Eugene F Collins (solicitors forthe applicant), Temple Chambers, 3Burlington Road, Dublin 4

In the matter of the Landlord andTenants Acts 1967-1994 and in thematter of the Landlord and Tenant(Ground Rents) (No 2) Act 1978: anapplication by Brendan Cahill andBairbre ShellyTake notice that any person havingan interest in the freehold estate orany intervening estate in the proper-ty known as 61 Mount ProspectAvenue, Clontarf, in the city ofDublin, being the premises com-prised in and demised by indentureof lease dated 28 April 1930 andmade between John J Fitzpatrick ofthe one part and Edithna Webb ofthe other part for a term of 249years, subject to the yearly rent of£10.10 shillings.

Take notice that the applicants,Brendan Cahill and Bairbre Shelly,intend to submit an application to thecounty registrar for the county of

Dublin for the acquisition of the free-hold interest and all intervening inthe aforesaid property, and any partyasserting that they hold a superiorinterest in the aforesaid property iscalled upon to furnish evidence oftitle to the aforesaid property to thebelow named within 21 days from thedate of this notice.

In default of any such notice beingreceived, the applicants, BrendanCahill and Bairbre Shelly, intend toproceed with the application beforethe county registrar at the end of 21days from the date of this notice andwill apply to the county registrar forthe county of Dublin for directions asmay be appropriate on the basis thatthe person or persons beneficiallyentitled to the intervening interestand the freehold reversion in theaforesaid property are unknown andunascertained.Date: 7 April 2006Signed: Aidan M Deasy & Co (solicitorsfor the applicants), 34 UpperFitzwilliam Street, Dublin 2

In the matter of the Landlord andTenants Acts 1967-1994 and in thematter of the Landlord and Tenant(Ground Rents) (No 2) Act 1978: anapplication by Anthony Bradfieldand Irene BradfieldTake notice that any person having aninterest in the freehold estate or anysuperior or intermediate interest inthe hereditaments and premises situ-ate at 1B Ring Terrace, Inchicore,Dublin 8. Take notice that AnthonyBradfield and Irene Bradfield intendto submit an application to the coun-try registrar for the county of the cityof Dublin for the acquisition of thefreehold interest in the aforemen-tioned properties, and any partyasserting that they hold a superiorinterest in the aforesaid properties (orany of them) are called upon to fur-nish evidence title to the aforemen-tioned premises to the below namedwithin 21 days from the date of thisnotice.

In default of any such notice beingreceived, the applicants, AnthonyBradfield and Irene Bradfield, intendto 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 Dublinfor directions as may be appropriateon the basis that the person or personbeneficially entitled to the superiorinterest including the freehold ineach of the aforesaid premises areunknown or unascertained.Date: 7 April 2006Signed: W&E Bradshaw (solicitors forthe applicant), 79 Merrion Square,Dublin 2

Apprentice solicitor required forpractice in Waterford. Please replyto box no 30/06

Bookkeeper – experienced legalbookkeeper available (12 years, dif-ferent accounts packages plus Sagepayroll); will travel. Please reply tobox no 32/06

Co Louth: senior solicitorrequired with a minimum of threeyears’ PQE for young, busy, dynam-ic practice. Commercial property,experience in landlord and tenantwork and development work.Immediate start. Apply in writing to principal of Catherine Allison & Co, 6 Roden Place, Dundalk, Co Louth; tel: 042 932 0854, fax:042 932 0855, email: info@callison.ie

Co Louth: junior solicitorrequired for young, busy, dynamicpractice with a minimum of oneyear’s PQE. Residential conveyanc-ing and litigation. Immediate start.Apply in writing to principal ofCatherine Allison & Co, 6 RodenPlace, Dundalk, Co Louth; tel: 042932 0854, fax: 042 932 0855, email:info@callison.ie

Full-time, experienced con-veyancing legal executive/legalsecretary required for a busy legalpractice in Carlow/Kilkenny area.Reply to box no 35/06

Vacancy for solicitor withtwo/three years’ commercial experi-ence in practice in the south-east.Please reply to box no 31/06

Locum solicitor required forWaterford city, June throughDecember 2006. General practiceexperience required and also, if pos-sible, some District Court experi-ence. Reply with full curriculumvitae to Sonja Kennedy, PurcellCullen Kennedy, Solicitors, 21Parnell Street, Waterford

Locum solicitor required to covermaternity leave from 1 June 2006 toend of October 2006. Principallyconveyancing and probate. CountyLimerick office. Reply with full cur-riculum vitae to box no 33/06

Part-time conveyancing/probatesolicitor required for legal practicein Carlow/Kilkenny area. Minimumtwo to three years’ post qualificationexperience. Two to three days perweek. Reply to box no 34/06

RECRUITMENTSolicitor required for rural generalpractice. Self-motivated solicitor isurgently required to join practice innorth Kerry. Conveyancing, probateand related taxation. Top salary willbe paid to suitable applicant. Pleasereply to box no 36/06

LAW SOCIETY GAZETTE RECRUITMENT

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COURTS AND COURTS OFFICERS ACTS 1995 – 2002JUDICIAL APPOINTMENTS ADVISORY BOARD

Appointment of Ordinary Judge of theDistrict Court

Notice is hereby given that applications are invited from practising barris-ters and solicitors who are eligible for appointment to the Office ofOrdinary Judge of the District Court for a vacancy that is due to arise inthe District Court.

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

The closing date for receipt of completed application forms, in rela-tion to this advertisement, is 5p.m. on Thursday 20th April, 2006.

It should be noted that The Standards in Public Office Act, 2001 prohibitsthe Board from recommending a person for judicial office unless the per-son has furnished to the Board a relevant tax clearance certificate (TC4)that was issued to the person not more than 18 months before the date ofa recommendation.

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

Canvassing is prohibited.

Dated the 30th March 2006.

Brendan Ryan BLSecretaryJudicial Appointments Advisory Board

Noonan Linehan Carroll Coffey

Solicitors

54 North Main Street

Cork

require anAssistant Solicitor

Three years pqe with conveyancingessential

Court experience desirableThis position will offer the right person the opportunity to do interesting work

Contact: Joe Noonan

jnoonan@nlcc.ie

Fax: 021 4274347

Tel: 021 4270518

RECRUITMENT APRIL 2006

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RECRUITMENT APRIL 2006

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RECRUITMENT APRIL 2006

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LAW SOCIETY GAZETTE RECRUITMENT

RECRUITMENT APRIL 2006

LAW SOCIETY GAZETTE RECRUITMENT

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STELFOX LEGAL IS IRELANDS

FASTEST GROWING LEGAL

RECRUITMENT AGENCY WITH AN

EVER-EXPANDING CLIENT AND

CANDIDATE BASE THROUGHOUT

THE GREATER DUBLIN AREA, AS

FAR NORTH AS DONEGAL AND

SOUTH AS FAR AS CORK. WE

PLACE SOLICITORS AND

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OF THE LEGAL FIELD RANGING

FROM SMALL INDIGENOUS

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WE HAVE A NUMBER OF

POSITIONS FOR ALL LEVELS OF

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If you are interested in finding the right position in the right firm with an agency who genuinely respects your need for confidentiality contact Stephen Kelly B.A., LL.B. at Stelfox Legal on (01) 679 3182

or email your CV to Stephen@stelfox.ie

Log on to our new website for more opportunities

www.stelfox.ie

Private Practice ■ E-business/Regulatory IP Lawyers

Mid Tier Practice. Dublin. Excellent.This is one of the fastest growing firms inDublin with an excellent reputation across allareas of practice. They are at present lookingto recruit two solicitors (one with two to threeyrs exp and one at senior level) both for theE-business/Regulatory IP Unit of the firm.Successful candidates will have experience incontentious and non-contentious IP,regulatory litigation, and commerciallitigation.

■ Commercial LitigatorInternational Law Firm. Dublin. 70,000+Solicitor with three to five years PQE isrequired for a well-known international lawfirm to join their Commercial Litigation team.Candidate must have strong commerciallitigation experience from a first classcommercial firm having dealt with insolvency,investment funds disputes,company/shareholder disputes etc. Excellentcareer progression prospects.

■ Construction/Projects LawyerTop Tier firm. Dublin. 85,000+Hugely successful firm is expanding theirConstruction department and is looking torecruit a solicitor with four yrs minimum post-qualified experience. Experience in bothcontentious and non-contentious constructionlaw and advising private and public sectordevelopers on all elements of constructionlaw essential. Knowledge of FIDIC contracts anecessity. Excellent opportunity for the rightcandidate.

■ Funds LawyerLeading Law firm. Dublin. 70,000+Excellent opportunity to join one of Irelandsstrongest funds teams within a leading legalpractice. Experience in funds is a prerequisite forthis position as is a natural ability to work wellboth within a team and as an individual. Salaryand benefits are extremely competitive for thechosen candidate who will have a minimum offour years experience.

■ General Practice SolicitorDonegal. Market leading salary.Well known firm in Donegal is looking for asolicitor with any amount of General Practiceexperience, ideally with strong conveyancingskills. Exceptional working atmosphere as well asmarket leading regional salary and benefits forthe North West.

■ Property solicitorCork City. Excellent salary.Highly regarded city centre Cork firm has anopening for a solicitor with a minimum of twoyears PQE in conveyancing. Experience in bothresidential and commercial is essential. Excellentopportunity for career progression.

In House■ Legal Advisor.

Dublin city centre. 60,000.In house solicitor/barrister required to join legal &compliance team for International Division of largecompany. Strong general commercial experienceand an ability to be flexible on workload essential.Ideal candidate will have between 1 - 3 years PQE.Experience in top tier legal practice or financialservices a distinct advantage.

CURRENT OPPORTUNITIES INCLUDE:

RECRUITMENT APRIL 2006

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RECRUITMENT APRIL 2006

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LAW SOCIETY GAZETTE RECRUITMENT

Construction LawyerLeading law firm requires an experienced Solicitor to join their progressive Construction practice.

Advising on a wide range of private and public bodies on all aspects of construction, you will have at least 5 years PQE in a similar environment. 0603-74

Commercial PropertyA number of Solicitors are required to build an entire new team for this medium sized practice. Partnership

opportunities for senior solicitors and a great progression plan for assistant/associate solicitors. 1 year + PQE.

Employment /Family LawyerThis Dublin based medium size law firm requires a Solicitor with experience in family law and

employment law to join their busy litigation team of five Solicitors. The ideal candidate will have circa 2 yearsPQE in family law and have the ability to work unsupervised managing a number of complex law matters

in a thriving department. 0603-71

IP/IT LawyerTop 20 law firm requires a Solicitor with a minimum of 2years PQE with specialist knowledge of trademark,

copyright, licensing and other related issues. 0603-145

Corporate/Banking SolicitorCorporate Solicitors of all levels of PQE are required for this Top 5 law firm. Applicants should come from

medium/large size commercial firms. 0603-89

Conveyancing SolicitorAn Assistant Solicitor is required to join this rapidly expanding firm. The successful candidate will have

approximately 2-3 years solid Conveyancing experience. Exposure to commercial developments is preferable but not essential. 0603-30

Newly Qualified Solicitor vacancies in all areas of law

In House FundsSenior Funds Lawyer is required by this leading Dublin based investment house to consult on compliance

and legal complexities. Interested parties will have a minimum of 5 years PQE.

In House Company SecretaryThis leading Dublin based company requires ICSA qualified/part qualified company secretaries to join

its expanding team. Excellent progression path on offer.

Cork: Commercial Property and Conveyancing Positions. 2-6 years PQE. 0603-28Louth: Conveyancing and Probate Position. 3 years + PQE. 0603-72

Monaghan: General Practice Solicitor. 2 years + PQE. 0602-174Wicklow: Senior Litigation Solicitor. 5 years +PQE. 0602-165