Writ Redesign 2 (John) - Law Society of Northern …...Northern Ireland Legal Services Commission,...

WrittheI S S U E 1 5 7 J U L Y / A U G U S T 2 0 0 4J O U R N A L O F T H E L A W S O C I E T Y O F N O R T H E R N I R E L A N D

Inside this issue...

Criminal Justice Act 2003Page 6

Certificates of Readiness9

Houses in Multiple OccupationPage 22

Allocation of FamilyProceedingsPage 29

Treatment of CommissionsPage 42

A perfect holiday...but what are you bringing back?

J O U R N A L O F T H E L S N I J U L Y / A U G U S T 2 0 0 42

I have often wondered how the lateAlistair Cook managed to produce his“Letter from America” for the BBCweek after week, year after year, foralmost sixty years. I listened to thosebroadcasts on and off since I was achild and it never ceased to amaze methe way he could start off with onesubject and then, with the aid ofvarious links and connections, end uptalking about something completelydifferent. It all flowed so effortlesslyand he made it all sound so easy. Howdo you think he might have dealtwith, for example, Access to Justice?

“I was recently touring in the west ofEngland and found myself in Bristol,with its grand merchants’ houses builtclose to the port, but not closeenough to be affected by its soundsand smells, but particularly the smells.Bristol, in those days a bustling andprosperous hive of maritime activitybut now virtually inaccessible to allbut the smallest of commercial vessels,was once one of Britain’s principalsea ports. Its merchants derived thewealth with which they built theirfine houses from shipping variouscommodities on the infamoustriangular trade route. Manufacturedgoods were shipped from Bristol toAfrica where they were traded forslaves, who were then sold in theAmericas. The ships then returned toBristol with cargoes of tobacco,cotton, etc. from the Colonies.

“But the days of slavery were alreadynumbered and in Britain campaignswere being mounted to bring aboutits abolition. The anti-slavery lobby inthe House of Commons wasspearheaded by Fox and Wilberforcebut it was the impassioned speechesby Lord Greenville in the House ofLords that finally won the day. Heargued that the trade was"….contrary to the principles ofjustice, humanity and sound policy…."However, the Slave Trade Act of 1807was ineffective in putting paid to thebarbarous practice and it was notfinally ended in the United Kingdomuntil the passing of the SlaveryAbolition Act in 1833.

“Meanwhile, back in the USA, thesouthern states were becomingincreasingly dependent upon theirprincipal product, cotton, and alsoupon slavery as its means of

President’s Messageproduction. The predominantlyindustrial northern states hadconsigned slavery to the historybooks because of the plentifulsupply of immigrant labour fromEurope, most of whom were fleeingfrom oppression and famine andthus were not inclined to swap oneform of enslavement for another.The whole thing came to a head inthe Civil War once the southernstates seceded from the Union.

“Slavery may have been abolished inthe United States as a result of theCivil War but it did not greatly alterthe attitudes of many of the whitepopulation in the deep south. It tookanother hundred years and theemergence of fearless crusaders likeMartin Luther King and the birth ofthe Civil Rights movement to throwoff the shackles of segregation anddiscrimination. The demand for civilrights became universal butparticularly in Northern Ireland, thattiny western province of the UnitedKingdom with a population just overhalf that of Greater Manchester.Unfortunately, for reasons far tocomplex for me to explain, theclamour for civil rights rapidlyevolved into a shooting war whichdragged on with a steady loss of lifeand destruction of property foralmost thirty years. The civil rights ofthe entire population becamesubjugated to the wills of those withother agendas for the duration ofthe conflict.

“Ulster has had a significance in theworld order which is quitedisproportionate to its size andnames like Harry Ferguson, whorevolutionised the agriculturalindustry, immediately spring tomind. In America, Ulster’s Diasporanot only provided many of therevolutionaries who wereresponsible for the birth of thenation but also the seed-bed of awhole series of US Presidents. Whichis one reason, I suppose, in additionto the need to keep the Irish votehappy, why recent Presidents and inparticular Bill Clinton, have takensuch an interest in an issue which, inthe global scale of things, is reallyvery small beer.

“By and by the factions involved inUlster’s conflict came to the

conclusion that enough wasenough. It was a long gestationperiod and not an easy birth butthe Belfast Agreement that finallyemerged in 1998 was facilitated byBill Clinton, Bertie Aherne, TonyBlair and other individuals andbodies too numerous to mention.Many of the terms of thatagreement were difficult for a lotof people to accept but there wasan overwhelming desire for peaceand it was finally accepted by areferendum held in May of that year.

“One of the products of theAgreement was the establishmentof a local legislative Assembly inthe old Parliament buildings atStormont, an impressive neo-classical pile attractively situated onthe outskirts of Belfast. A lot oflegislation had been “on thestocks” in London for some timeawaiting the establishment of justsuch an institution and could nowbe brought forward in Belfast forenactment. Ironically, because thelocal politicians had thrown theirteddy in the corner, the StormontAssembly was suspended and a lotof legislation which should havebeen enacted there had to be done by way of Orders In Council in London.

“One such Order in Council was theAccess to Justice (Northern Ireland)Order 2003 under which, accordingto the explanatory note, theNorthern Ireland Legal ServicesCommission, “….a body withresponsibility for funding civil legalservices and criminal defenceservices….”, was set up. I reallymust try to find out whether thelitigants in Northern Ireland arenow better served than they werepreviously and indeed whethertheir lawyers are being adequatelyand promptly paid for their work.

“Goodbye”

There you are, from Bristol toAccess to Justice in a few easy steps!

John W D PinkertonAugust 2004


At this time of year many touristsbring home micro-organisms thatwould have been better left at theirholiday destination. Travel isassociated with infections that areless common in Northern Irelandbecause of its lower temperatures,good public, environmental andanimal health systems, and stringentlegal requirements on food business owners.

The surveillance of infection andprofessional follow-up in manyholiday destinations is poor, andinformation on infections acquired isoften limited. When tourists returnhome the public health follow-up will probably fall between two jurisdictions.

Anecdotal evidence and questionnairestudies show that gastric upsets arecommon in travellers. Some may beserious and even fatal. TwentyEuropean countries reported 676cases of travel-associatedLegionnaire’s disease in 2002, and 43of these people died. Norovirusesperiodically cause illness in shellfisheaters, and have causeddramatic outbreaks ofhighly-infectiousvomiting anddiarrhoea on cruise liners.

Ear and skin infections have occurredbecause of poor maintenance ofswimming pools. The consequences ofinfection ruin vacations and affect theentire party that travels, not just theindividuals who were ill.

A client who presents with this typeof problem should have been seenpromptly by a doctor whose notesand report will be vital. Once thesymptoms have passed, in many casesthe causative organism is no longerpresent in the body and laboratorytests are less likely to provide usefulinformation regarding the source ofthe infection.

Where symptoms have been mild theclient may not have consulted adoctor. It is always helpful to havemedical verification of the history. Inmost cases it is also helpful to instructan expert with experience in outbreakinvestigation and the surveillance ofinfection who may be able to providedetailed knowledge of other reportsof similar infections. This data can becritical in assessing the probable cause

of infection when more directevidence can be sparse.

Not all allegations of foodpoisoning are well-founded.Complainants often blame the most recent meal they ate, butmany infections may have beencaused by something eaten up toseveral days earlier. Some clientsare mistaken and a few may bemalicious claimants.

Defence solicitors may also useevidence of good qualitymanagement systems such asHazard Analysis Critical ControlPoint (HACCP) to counterallegations that a particular foodwas responsible for illness. If noother complaints or officialnotifications of illness werereceived concerning a batch offood eaten by 1000 people andwith evidence of good processcontrol, it is very unlikely that anindividual claim against themanufacturer is valid. Experienceof examining foods implicated inoutbreaks has enabled theproduction of guidelines that arehelpful in determining whether thenumbers of pathogens found in afood are a credible cause of illness.Being informed about these issues,the solicitor can make bestprovision for the client’s case.

HHoolliiddaayy IInnffeeccttiioonnss

3


What evidence is required forInfections Cases?

The solicitor’s role must be tocollect full and reliable informationfrom the client as soon as possible.

Food history. The client shouldrecount all the foods eaten withinaround three days of illness, andlonger if possible. For many clientsthis is difficult, but infection couldhave been caused by a casualsnack. Bacteria which producecertain toxins cause symptomsmore rapidly than those whichproduce more serious infections,and remains of food are morelikely to be available when toxinsare the cause. Drinks, ice and thetamper-evident seals on waterbottles may all be important.Retained packing and receipts willbe helpful in tracing the batch offood eaten. Beach sand, water andanimal contacts are also possiblesources of infection.

An unreliable food history mayresult in the case coming apart oncross-examination whenuncertainty or another possiblesource of infection is revealed. Thesolicitor should record a completefood history as soon as possiblesince doctors will have focussed onsymptoms and treatment and mayhave paid less attention to otherdetails that become important inthe courtroom. Occasionally clientshave retained samples of theimplicated food. These are usuallycompromised by inexpert samplingpractices or temperature abuse,but if they are available, laboratoryexamination should becommissioned as soon as possible.Certain pathogens should not bepresent in any food and areunlikely accidental contaminants.

Their discovery may be of somevalue in the case. Microbiologicalexamination may be done throughthe Environmental Health

Department of a Local Authority,or directly by a privatemicrobiology laboratory. UKASaccreditation will assure laboratoryquality standards.

Symptoms must be described indetail. Timing of onset andduration is important. Medicalrecords will be helpful. In somecases, pre-existing medicalconditions may make the plaintiffmore susceptible to infection orcause more severesymptoms. Later re-examination by aspecialist may beuseful where thereare persistingproblems.

Other parties affected.It will considerablystrengthen the client’s case ifthere is information about othertravellers who suffered similarsymptoms. Anecdotal evidence canbe strengthened by witnessstatements. In some countriesepidemiological reports may beavailable from the localenvironmental health or publichealth authorities. In largeoutbreaks, epidemiologists willsometimes be able to reach firmconclusions about the cause.Statistical evidence may assist thecourt in assessing the likelihood ofa particular cause.

Laboratory results. The strongestevidence will be obtained wheresamples of faeces and vomitus havebeen investigated by a hospitallaboratory. Ideally, examination ofthe suspect food will have beenconducted and any organismsfound matched to the patient’sisolates. Often this cannot beachieved because of the delaybetween consumption and firstsymptoms which renders thecontaminated food unavailable.Efforts should be made to obtainthe fullest information from themicrobiology laboratory and public

health department regarding theidentification of infectious agents.For example, it is much more helpfulto know that the illness was causedby Salmonella Enteritidis Phage Type6 than simply by Salmonella.Epidemiological information existson previous infections which in some

cases may help topinpoint a

causative foodwith certainty.

The assistance of a microbiologyexpert can be particularly helpful in this area.

By acting promptly to collect factsfrom food history, symptoms, epide-miology and laboratory results, thesolicitor can ensure that the evidenceis as complete as possible, enablingthe strongest case to be made.

Dr Ian Wilson is a ClinicalMicrobiologist specialising in food,water and environmentalmicrobiology. He is a recognised FoodExaminer, has experience insupporting litigation for the plaintiffand defendant, and has receivedinstructions as a Single Joint Expert.

Dr Wilson can be contacted at:Northern Ireland Public HealthLaboratory, Bacteriology Department, Belfast City Hospital, Lisburn Road,Belfast BT9 7AD.

Tel: 028 90263553.

Admissions Ceremonies


Copies of these photographs can be purchased by contacting Aurora Photography on 028 9092 3347


An introduction to theCriminal Justice Act 2003

6

Background

The Criminal Justice Act 2003received Royal Assent on 20November 2003. Although primarilyan Act for England and Wales, anumber of the Act’s Parts andprovisions are extended to NorthernIreland, either directly on the face ofthe Act or by means of negativeresolution Orders in Council. Detailsof the provisions extended toNorthern Ireland are provided below.

Amendments to PACE

Part 1 of the Act amends the Policeand Criminal Evidence Act 1984 forEngland and Wales, whilst equivalentamendments to the Police andCriminal Evidence (Northern Ireland)Order 1989 are made in the CriminalJustice (No. 2) (Northern Ireland)Order 2003 [S.I. 3194/2003 (N.I. 18)]and the Criminal Justice (NorthernIreland) Order 2004 [S.I. 1500/2004(N.I. 9)].

A power of arrest for the possessionof cannabis is provided under theCriminal Justice (No. 2) (NorthernIreland) Order 2003. This measurecame into effect on 29 January 2004.

Part II of the Criminal Justice(Northern Ireland) Order 2004extends the remaining PACEamendments that are extended tothis jurisdiction. These measuresinclude the extension of thedefinition of prohibited articles, withthe effect that police officers areempowered to stop and searchwhere they have reasonablesuspicion that a person is carryingarticles for use in causing criminaldamage and an enabling power forthe immediate grant of bail from thescene of arrest (“street bail”), wherethere is no immediate need to dealwith the arrested person at a policestation. The time for which someonemay be detained without chargeunder the authority of asuperintendent is extended, from 24to 36 hours, with provision applyingto any arrestable offence. The Orderalso reduces police workloads byempowering them to makejudgements about how to balance

the need for recording propertyagainst the amount of administrativework entailed. Police powers toenable them to take fingerprints andDNA samples from a person while heis in police detention following hisarrest for a recordable offence arealso extended under this Part of theOrder. The majority of theseprovisions are scheduled to comeinto effect in September 2004, withthe “street bail” provisions beingcommenced later this year.

Disclosure

Part 5 of the Criminal Justice Act2003 amends the Criminal Procedureand Investigations Act 1996 tosimplify and streamline the disclosureprovisions in criminal proceedings.Under the 2003 Act a singledisclosure test for unusedprosecution material to the defenceis introduced, simplifying the currenttwo tests that apply at the primaryand secondary disclosure stages.Requirements are placed on theaccused in respect of defencestatements and the notices to beserved, before trial, giving details ofany witnesses to be called, andexpert witnesses consulted. The Actalso places a requirement on thejudge at pre-trial hearing to alert theaccused to apparent inadequacies inhis defence statement, from whichinferences could be drawn, makesprovision for the judge to give thejury a copy of the defence statementand imposes a continuing duty onprosecutors to disclose unusedmaterial. The Act also adds to the listof defence disclosure failures whichmay give rise to adverse inferencesand removes the leave requirementfor making comment in respect ofsome of these. Finally, provision ismade for the Secretary of State toprepare a code of practice for policeinterviews of defence witnesses. Thebulk of provisions in Part 5 arescheduled to commence in April 2005.

Trials on indictment without a jury Part 7 of the Act extends directly toNorthern Ireland and sets out thecircumstances in which a trial on

indictment in the Crown Court must,or may, be heard by a judge sittingalone without a jury. These are incases of serious or complex fraud(section 43) and where there isdanger of jury tampering (section44). Before making an order to thiseffect under section 43, the courtmust be satisfied that the length orcomplexity (or both) of the trialwould be so burdensome on the jurythat it would be in the interests ofjustice to conduct the trial without ajury. Such an order must be madewith the approval of the Lord ChiefJustice or a judge nominated by him.The Act sets out the procedure forapplications and makes furtherprovisions about such trials, inrespect of the discharge of juries incases of jury tampering, appeals,procedures and rules of court.Section 50 sets out how this Part is tobe applied to Northern Ireland andspecifies that the provisions of Part 7do not apply to trials to whichsection 75 of the Terrorism Act 2000applies. Part 7 is scheduled to comeinto effect in April 2005.

Live links

Part 8 of the Act relates to live links.These provisions are extended toNorthern Ireland through Part III ofthe Criminal Justice (NorthernIreland) Order 2004. The Ordergrants powers for courts to hearevidence by way of a live televisionlink from outside the court building.Currently witnesses are generallyrequired to attend the court inperson however live links can beused in limited cases, such as withyoung, disabled, vulnerable orintimidated witnesses. The Orderextends live link provision to anywitness other than the defendant,where it is in the interests ofefficiency or effectiveness to hearthat witness’s evidence by way of alive link. Again, commencement ofthese provisions is scheduled forApril 2005.

Prosecution appeals

The Criminal Justice (NorthernIreland) Order 2004 extends the


provisions of Part 9 of the Act toNorthern Ireland. Part IV of theOrder provides for prosecutors tohave the opportunity to challenge ajudicial ruling which either directlyor effectively ends their hearing.This right of appeal is against twocategories of ruling by a CrownCourt judge. These are:

• A ruling that has the effect of terminating the trial, made at either a pre-trial hearing or during the trial, at any time up until the start of the judge’s summing up; and

• An evidentiary ruling or series of rulings, made in certain trials for qualifying offences. This right of appeal is limited to those rulings that significantly weaken the prosecution case and may only beexercised up to the opening of the defence case.

Under these provisions, leave toappeal must be obtained from eitherthe judge or the Court of Appeal.The judge is to decide whether theappeal follows an expedited route,where the trial is adjourned pendingthe conclusion of the appeal, or anon-expedited route, where any jurythat has been empanelled may bedischarged. The Order also makesprovision for reporting restrictions.Again, these provisions are scheduledto commence in April 2005.

Retrial for serious offences

Part 10 of the Act reforms the ruleagainst “double jeopardy” and setsout the circumstances andprocedures under which a personmay be retried for an offence, eventhough they have already beenacquitted. The relevant offences arelisted in Schedule 5 to the Act and allinvolve serious offences which in themain carry a maximum sentence oflife imprisonment. The Court ofAppeal can only make an order toquash an acquittal and order a retrialif it is satisfied that there is both newand compelling evidence and that itis in the interests of justice. The Partalso makes provisions in respect ofreporting restrictions, theauthorisation of police investigationsby the DPP and procedures forurgent investigative steps where thepolice need to act urgently, as well asprovisions relating to the arrest,charge, bail and custody of theaccused. Section 96 applies theprovisions of this Part, subject tocertain modifications, to Northern

Ireland. Commencement dates havenot yet been established for Part 10.

Evidence

Part 11 of the Act provides forgreater admissibility of evidence ofbad character and hearsay atcriminal proceedings. The equivalentprovisions for this jurisdiction areprovided under the Criminal Justice(Evidence) (Northern Ireland) Order 2004.

Part II of the Order deals withevidence of bad character. Currentlythe prosecution is generallyprevented from producing evidencein a trial of a defendant’s previousmisconduct. The Order providescomprehensive rules for theadmissibility of bad characterevidence in respect of both witnessesand defendants. Accordingly, existingcommon law rules are abolished andother statute law substantiallyrepealed.

Part III of the Order relates to theadmissibility of hearsay evidence incriminal proceedings. The provisionssimplify the law and provide greatercertainty as to the circumstanceswhen such evidence will beadmitted. The main provisionsremove the old common law ruleagainst the admissibility of hearsayevidence and provide that suchevidence will be admissible, providedcertain safeguards are met. TheOrder also makes provisions inrespect of other types of evidence.Whilst the bulk of theseprovisions should becommenced in April 2005,Article 41 (Use of documentsto refresh memory) shouldcome into effect inSeptember 2004.

Sentencing andMiscellaneous

A number of the provisionsin Parts 12 (Sentencing)and 13 (Miscellaneous) ofthe Act extend toNorthern Ireland. Inparticular Part 12increases penalties fordrug related offences(section 284) and forcausing death orgrievous bodily injuryby dangerous drivingor by careless drivingwhen impaired(section 285).

Section 292 also introduces minimumcustodial sentences for unauthorisedpossession of certain types of firearm.Part 13 makes miscellaneousprovisions, including powers to extendthe period of detention withoutcharge of suspected terrorists for upto a total of 14 days (section 306) andfor reporting restrictions forpreparatory hearings in long orcomplex cases in Northern Ireland(section 311). Part 13 also makesseveral provisions in respect ofinvestigations by, and appealsfollowing reference by, the CriminalCases Review Commission. (sections314, 315 and 317).

With the exception of section 311,most of these provisions have alreadycome into force. Sections 314, 315 and317 are to commence on 1 September2004. Commencement dates have notyet been set for the remainingprovisions of Parts 12 and 13.

The full texts of the Criminal JusticeAct 2003, its Explanatory Notes andthe related Orders in Council may befound on the HMSO website[http://www.hmso.gov.uk].

We are grateful toJulie Wilson of theNorthern IrelandOffice for thisarticle.


Purpose

1. The Lord Chief Justice, followingdiscussion with colleagues, the NI CourtService, the Law Society, Bar Council,Director of Public Prosecutions andLegal Services Commission, hasintroduced a new pro-forma to identify,and enable early resolution, of any pre-trial issues and to assist the process ofmeeting the date for trial. The aim isto deal with any difficulties as early aspossible after committal to reduce anydelay in the processing of criminaltrials. It has been recognised that thisis in the interests not only of thedefendant but of victims and witnessestoo. This form is designed to assist theprocess without eroding the rights ofthe defendants or the interests of justice.

2. One form will be issued for eachdefendant. Initially at least the courtwill copy the front page from the formto the defence solicitor to put him onnotice of the form.

3. The date for arraignment will beinserted into the form. This will bearound 4 to 4 1/2 weeks from committal.The existing practice whereby theCrown Court, where appropriate1,notifies the parties in advance of thearraignment of the proposed trial dateis not affected and will continue.

Detail

3. The Trial Status Report will be issuedto the DPP representative to pass toprosecution counsel at, or shortly after,

The Lord Chief Justice’s Office has notified the Societythat the new pro-forma “Trial Status Report” which isto be introduced from the beginning of the new legalterm on a pilot basis for all Crown Court cases (see TheWrit – June 2004 at p23) is now available on the CourtService website at www.courtsni.gov.uk - see “TrialStatus Report – Pilot Scheme” on list of “Quick Links”.

The Lord Chief Justice has also indicated that he intendsto review the effectiveness of this scheme in early 2005after it has had a reasonable period to settle in.

committal in a Crown case at HighCourt or County Court level. The Reportwill give the dates for completion andthe date and venue for arraignment.

4. The prosecution counsel will beexpected to complete the form within10 working days and then to pass it tothe defence solicitor who will briefdefence counsel to complete it andconsult the prosecution counsel in 12working days. The form should then bereturned to:

• for Belfast cases, scheduled cases andcases at High Court level

Belfast Crown Court Laganside 45 Oxford Street Belfast BT1 3LL - e-mail –[email protected] - telephone – 9072 4554- fax – 9024 2078

• for all other cases the local CourtOffice (the details will be indicated onthe front of the form).

5. It should be copied by the defence(to avoid delay), to the prosecutioncounsel and the solicitor of any other defendant.

6. If the form is going to be late thenthe Court Office should be notified sothat it can inform the relevant judge.

The Form

7. This is split into four sections:

(i) for court office use, giving details of

the case and date for completion andarraignment,(ii) for the prosecution to complete,(iii) for the defence to complete,(iv) for both prosecution and defence to complete.

8. It is recognised that there may bequestions that cannot be answered inthe interests of justice. It is notintended, for instance, to forcedisclosure of an unheard ex partewithout notice application or difficultieswith a reluctant witness. it is alsorecognised that the form may notcover, for example, all evidence; thatthe defence position may change onseeing certain material; or thatadditional evidence might becomeavailable to the prosecution whichcould not be readily anticipated at thetime the form was completed.

9. Counsel is asked to use his or herbest endeavours to complete the form.If he or she has doubts about the formhe or she should contact Andy Boyd atLaganside for advice. (Telephonenumber (028) 9072 4554).

10. Those completing the form areasked to consider carefully issuesaround disclosure and expert reportswhich are recognised as causingdifficulties in the listing of cases for trial.

11. If extra space is needed to answer aquestion then a separate sheet may beannexed to the form.

Accordingly if practitioners, during the early stages ofits operation, experience any particular difficulties orproblems with the scheme, either in the way the form isto be completed or in the way the review hearings arebeing conducted, the Society would be grateful to hearfrom them – please contact Peter O’Brien, Secretary tothe Criminal Law Committee.

The Guidance Notes which have been issued to assistwith completion of the form are set out below.

REMINDERNEW ARRANGEMENTS FOR REVIEWING CROWN COURT CASES

FROM SEPTEMBER 2004

Trial Status Report – Notes for Guidance

1 Usually in County Court judge Crown cases


CASE STATUS REVIEW

Relevant Crown office to issue a letter toparties giving the date for trial, if appropriate.(These will normally be given for County Courtjudge cases pre-arraignment but not for High

Court cases until arraignment).

Arranged, issuesaddressed and

trial dateconfirmed4

Trial dateconfirmed4

New date for arraignment3 /case status review hearing

1 week later

1 These include return dates and the date for arraignment, which will be about 4 1/2 weeks after committal.2 Leading counsel.3 While a hearing will take place, arraignment will not occur until the form is available.4 Within 18 weeks from committal.

Committal hearing

Court clerk inserts target dates1 in pro-forma forarraignment/case status review hearing and issuesit with the guidance to the DPP representative for

Prosecution counsel2 and copied to defencesolicitor. Copy kept on court file.

Prosecution sections of the form completed within 10 working daysof committal and sent to defence solicitor for defence counsel2

Defence counsel to complete defence sections within 12 workingdays and to speak to prosecution counsel about trial dates and to

return the form to the court office at the address set out in the frontpage of the form. It should be copied by the defence to prosecution

counsel and any solicitor acting for another defendant.

Papers incomplete or no papers

Either Or

Papers incomplete or no papers

Papers complete

Papers complete

Need for pre-trial hearing?

Yes No

Arraignment/Case status review hearing

Sections of Justice (NI) Act 2004 now in force


The June edition of The Writ carried an article by wayof overview of the Justice (NI) Act 2004.

By virtue of the Justice (NI) Act 2004 (Commencement)Order 2004 [SR2004 No 267] a number of provisions ofthe Act came into operation on 14th July 2004. Thefollowing changes will be of particular interest tocriminal law practitioners:-

Bail

Section 11 (bail under section 67 of the Terrorism Act2000) together with Schedule 2 (bail under TerrorismAct 2000) and

Section 12 (bail to which Part II of the Criminal Justice(NI) Order 2003 applies).

These two sections tighten and align the powers ofenforcement of bail conditions by placing additionalrequirements on persons granted bail and also givethe police additional powers to monitor and ensurecompliance with bail conditions.

Transfer of prisoners

Section 13 provides for the transfer of prisoners fromNorthern Ireland to another part of the UK in theinterests of maintaining security or good order inprisons in Northern Ireland.

Driving while disqualified

Section 15 makes driving whilst disqualified anarrestable offence under the Police and CriminalEvidence (NI) Order 1989.

The Order also brings into operation from 14th July 2004: -

Section 9 substituting references to the Juvenile Justice Board with referencesto the Youth Justice Agency

Section 14 amending section 103 of the Terrorism Act 2000

Section 17 granting the right to a barrister to enter into contract for the provision of his services

Section 18 certain repeals referred to in Schedule 4 of the Act.

The Northern Ireland Office has published forconsultation Guidance on firearms controls.

The firearms legislation has recently undergone acomprehensive review which resulted in the making ofthe Firearms (Northern Ireland) Order 2004 in March. The new legislation is due to be commenced in October 2004in line with the implementation of the PSNI's new firearms licensing computer system and otheradministrative arrangements.

The Government made it known during the course of thereview that it intended to provide comprehensiveguidance on the new legislation. This does not presentlyexist and it should prove to be of benefit to shootingenthusiasts and everyone else with a legitimate interest in firearms.

The Government's intention is to have the Guidanceavailable at the same time as the legislation iscommenced.

The Guidance can be accessed atwww.nio.gov.uk/pdf/draftfirearmscontrol.pdf andcomments can be sent by email to [email protected] or inwriting to the following address: -Northern Ireland Office, Firearms & Explosives Branch,Block B, Castle Buildings, Stormont, BT4 3SG.

The closing date for responses is Friday,10 September 2004.

Transfer of womenprisoners and detaineesOn 21st June 2004 the Northern Ireland Prison Servicetransferred 15 female prisoners from Mourne House,Maghaberry to Hydebank Wood and 5 male immigrationdetainees from Mourne House to Maghaberry's facility inBelfast. Two female immigration detainees weretransferred from Mourne House to Hydebank Wood.

The intention to relocate female prisoners andimmigration detainees follows public consultation, theoutcome of which was announced on 23 April 2004.

Mourne House will now form part of the Service'semergency accommodation but will not routinely hold any prisoners.

An order designating Ash House (one of the fiveresidential houses at Hydebank) as a prison and renaming it Hydebank Wood came into effect on 18 June2004. Hydebank Wood Young Offenders Centre will nowbecome Hydebank Wood Young Offenders Centre and Prison.

Firearms controls – new draft guidance


Draft Criminal Justice (No.2) (NI) Order 2004 A draft Criminal Justice (No.2)(NI) Order 2004 has been laid in Parliament. The key features of the draftlegislation are as follows:-

Hate Crime

Where on conviction, an offence involves hostility based on religion, race, disability or sexual orientation, theCourt must take this into account when sentencing. The Court's sentencing powers - mainly in relation to specified crimes of violence and which are often connectedwith "hate crime" - are also proposed for increase.

For example, offences of "grievous bodily harm", "assault occasioning actual bodily harm" and "putting someonein fear of violence" will increase from 5 to 7 years imprisonment; and criminal damage will increase from 10 to 14years imprisonment. Common assault will have a maximum penalty of two years imprisonment, a fine, or both.

The legislation will cover attacks on both people and property.

Road Traffic Offences

Two new offences will be created:

(1) the offence of aggravated vehicle-taking (which would involve taking a vehicle without consent, which is then driven dangerously, or causes an accident which results in injury, damage to property, or damage to the vehicle)with a penalty of up to five years imprisonment, a fine, or both; and

(2) the more serious offence of causing death or grievous bodily injury by the new offence of aggravated vehicle taking (the taking of a vehicle without consent, but which is then driven in a manner which causes an accident in which someone is killed or suffers grievous bodily harm). The maximum penalty for this offence will be up tofourteen years imprisonment, a fine, or both.

The proposals also increase the maximum penalty for dangerous driving from two to five years imprisonment.

The draft Order and the Explanatory Memorandum is available on www.hmso.gov.uk/si/si2004/draft/20049153.htm

CRIMESTATISTICSREPORTThe Northern Ireland Office haspublished a statistical reportentitled 'A Commentary onNorthern Ireland CrimeStatistics 2003'.

The Commentary is acompendium publication ofinformation on crime andcriminal justice in NorthernIreland, covering five mainareas:- recorded crime, offencescleared by the police, courtproceedings, sentencing andprison population andreceptions. It is a NationalStatistics publication which canbe downloaded fromwww.nio.gov.uk/pdf/commentarynipart1.pdf

ADVERTISEMENT

AFP Consulting, A Division of Alexander Forbes Risk Services UK Ltd. A Member of the General Insurance Standards Council. A Lloyd’s Broker.

• Strategic and organisational development

• Quality systems and implementation (such as Lexcel)

• Strategic and operational risk

• Information and communication systems

• Training and development

• Business development and marketing

• Anti-money laundering

Providing Solutions to

your Management Issues

Lexcel is the practice management quality markawarded by the Law Society of Northern Ireland.Our consultants can discuss where your practicecurrently measures up to the Lexcelrequirements and then guide you through theprocess necessary to achieve accreditation.

AFP Consulting has assisted a number ofpractices with achieving Lexcel and we aredelighted that one of our clients - Belfast-basedBrangam Bagnall & Co - were recently awardedthe prestigious Lexcel quality mark.

For further information on AFP Consultingplease call: 0845 600 2729,

email: [email protected] or visitour website at: www.afpconsulting.co.uk

Pictured from left to right: Patrick Oliver (AFP Consulting),

Brian Adgey (Brangam Bagnall & Co),

George Brangam (Brangam Bagnall & Co) and

Iona Milton-Jones (AFP Consulting)

Lexcel

AFP Consulting is a specialist consultancy for the legal services sector, advising practices on all areas of management including:

12

ANTI-MONEY LAUNDERING – 1st September 2004This seminar features information on how the moneylaundering regulations (MLR2003) will affect your practice.The seminar covers: money laundering strategies, thelegislation, responsibilities of the nominated officer,Suspicious Transactions Reports, protected disclosure andstatutory immunity, record keeping and internal reportingprocedures, ethical issues.

RISK MANAGEMENT – 15th September 2004What is the probability of a risk occurring in your firm and what would be the consequence of that risk - for you,your clients, or your practice? Using techniques for riskmodelling it is possible to profile potential risks and the likely consequences - crucial for your practice to maintain an appropriate risk management strategy.

LIMITING LIABILITY – 6th October 2004This seminar will give you the opportunity to gain insight onkey issues surrounding limiting liabilities, focussing on how to minimise your firm’s and your own individual exposure.

BUSINESS DEVELOPMENT STAGE 1 – 20th October 2004(Maximising profits from existing clients)It is becoming increasingly important to positively differentiateyour practice from its competitors. Proactive businessdevelopment can provide real competitive advantage. Thisseminar will help you to manage existing client relationshipsin order to attract additional business and to develop systemsthat will effectively manage and monitor businessdevelopment activity.

COMPLAINTS HANDLING – 3rd November 2004Learn how to profit from complaints. Research shows that97% of complainants will return to do business or makerecommendations to your firm if their complaint has beenhandled properly. This 3 hour CPD seminar covers thenecessary steps for implementing an effective complaintshandling programme in your firm.

The cost of replacing clients can be 5 times higher thanlooking after the ones you already have, so it makes sense to put strategies in place for client retention.

BUSINESS DEVELOPMENT STAGE 2 – 17th November 2004(New client development )A good client base is of fundamental importance whenmanaging a successful law firm. Not only is it essential toensure that your firm has developed a strategy to determinewho you want your clients to be and how to attract them inthe most appropriate way, but it is critical that your clients arethen profitable for your firm.

CLIENT CARE – 1st December 2004Building profits through improved client care. Learn how toincrease repeat business, build client loyalty and keep clientshappy - a key factor in competitiveness. It has never been moreimportant for practices to provide excellence in client care.

PRACTICE MANAGEMENT – 8th December 2004All practices benefit from good practice management.Adopting management structures and best practice to ensure a quality service is the key to future success. This seminar will provide valuable insights into qualitymanagement for those considering introducing a qualitymanagement programme into their practice.

2004 CPD SEMINAR PROGRAMME FOR NORTHERN IRELAND

CPD Seminars

I wish to reserve _______ place(s) at the following seminarsQualifies for 3 hours CPDAll seminar times: 2.00pm - 5.00pmCost per seminar: £100.00 + VAT per delegate

❑ ANTI-MONEY LAUNDERING - 1st September 2004

❑ RISK MANAGEMENT - 15th September 2004

❑ LIMITING LIABILITY - 6th October 2004

❑ BUSINESS DEVELOPMENT STAGE 1 - 20th October 2004

❑ COMPLAINTS HANDLING - 3rd November 2004

❑ BUSINESS DEVELOPMENT STAGE 2 - 17th November 2004

❑ CLIENT CARE - 1st December 2004

❑ PRACTICE MANAGEMENT - 8th December 2004

All seminars will be held at The Law Society, Belfast

Alternatively, you can copy and post this form to:

AFP Consulting, 40 Linenhall Street, Belfast BT2 8BAor call: 0845 600 2729or email: [email protected]

Please list the names of those attending in BLOCK CAPITALS

Practice:

Tel:

Email:

Name:

Position:

Name:

Position:

TO RESERVE A PLACE ON ANY CPD SEMINAR, PLEASE COPY & FAX THIS FORM

TO 0845 080 4542 OR VISIT OUR WEB SITE AT www.afpconsulting.co.uk

13

BELFAST SOLICITORS

A S S O C I A T I O N


BSA On-LineThe BSA website can be found at:

www.belfast-solicitors-association.org

The first choice for MRI inNorthern Ireland

MRIMedico Legal

ScansRegional Specialists inMusculo Skeletal andNeurological diagnosis

• Northern Ireland basedregional specialists, all of

whom are ConsultantRadiologists

• No waiting list

• All inclusive pricing

Tel: 028 9066 0050Fax: 028 9038 6733

www.northernmri.com

ADVERTISEMENT

14

And watch your firm enjoy the benefits

We have an innovative range ofsolutions to meet your individualneeds:

■ Accounting■ Case and Document

Management■ Time Recording and Billing■ Management Information■ Reporting■ Database■ Marketing■ E-commerce■ Remote Working

To find out how your firm can benefit from oursolutions please contact our team in Belfast.

TFB plc, Floral Buildings2–14 East Bridge Street, Belfast, BT1 3MQ

Tel. 028 9092 3851 or e-mail [email protected]

www.tfbplc.co.uk

Choose the rightsolution…

…not just software

ADVERTISEMENT

ADVERTISEMENT

Annual LectureSeries 2004

Please note that the undernotedlecture (originally scheduled forThursday 29th April 2004) hasbeen re-scheduled for 9 September 2004.

John Beattie and Ann Williams‘Capital Taxes on assets based inthe Repubic of Ireland - Why Irish Capital Taxes couldcause unwelcome liabilities, evenfor those who may have a goodUK Tax Strategy’Thursday 9th September 2004

Paul Kerr‘Taxation – an Update’Thursday 7th October 2004

H A Yeates FRCS‘The Facts and Myths of Whiplash’Tuesday 2nd November 2004

Tony McGleenan‘Human Rights Law in Practice;An analysis of recent NIJurisprudence – the up to date position’Thursday 4th November 2004

Joe Rice‘Presenting Cases in MagistratesCourts’Thursday 2nd December 2004

HM Coroner John L Leckey LL.M.‘Coronial Law and PracticeUpdate’Thursday 9th December 2004

All seminars will take place atLaw Society House. Coffee andsandwiches will be available from12.30pm and the talks will startat 1.00pm.

The cost of all lunchtimeseminars is £10 for BSA membersand £20 for others.

Cheques payable to the BSA, c/oThe Administrator, BSA, Suite 7,Merrion Business Centre, 58Howard Street, Belfast BT1 6PJ.

BSA HandbookFurther to the recent publication of the BSA Handbook, members are

advised that further copies may be purchased from the BSA Administrator, Suite 7, Merrion Business Centre, 58 Howard Street,

Belfast BT1 6PJ, at a cost of £10.00 per copy.The Handbook, amongst other useful matters, contains a handy guide toHigh Court, County Court, Conveyancing and Non-contentious Probate

matter costs. It also contains the CPD lecture programme for 2004.

A must for every practitioner's desk or briefcase


At the Wellington Park Hotel on Saturday 18 September 2004

9.00 am - 9.30 am Registration and coffee9.30 am - 10.10 am “ISO/Lexcel Computerised Case Management”

By Gary Millar of GSM Management Consultants

10.10 am -10.45 am “Client Management to Avoid Claims”By Tom McGrath of Marsh

10.45 am -11.00 am Coffee11.00 am -11.45 am “Client Management”

By Fergal McCormick, Accountant11.45 am -12.30 am “Money Laundering”

By John Horan of Harbinson Mulholland

The cost is £60.00 for BSA members or £90.00 for others.

Attendance at this lecture will qualify for three hours CPD

BELFAST SOLICITORS

A S S O C I A T I O N

Name

Firm

Address

DX NO

Telephone

Does CPD apply to you? YES / NO

Please make cheques payable to Belfast Solicitors Association

I enclose a cheque in the sum of £………………….

Please complete the form and return it to Briege Williams, BSAAdministrator, Suite 7 Merrion Business Centre, 58 Howard Street,Belfast, BT1 6PJ.

PRACTICE MANAGEMENTAND CLIENT CARE HALF DAY SEMINAR

BOOKING FORM

15

J O U R N A L O F T H E L S N I16

How to answer this question?

A consideration of the importantissues arising from the Court ofAppeal in England in the case ofHalsey v Milton Keynes GeneralNHS Trust.

By Brian H Speers, Solicitor, MediatorChair Law Society ADR Committee

Many practitioners will have beenencouraged by our High Court inrecent months to take steps toresolve their cases. Sometimes thejudges will ask if the parties haveconsidered mediation. If partiesreject mediation the representativesmay be asked to explain why.

In a judgement delivered on 11thMay 2004 in the case Halsey v MiltonKeynes NHS Trust 2004 WECA (Civ)576 (“Halsey”) the Court of Appeal,while providing generalencouragement for the use of ADR,clarified the circumstances where aparty might reasonably argue thatmediation was not appropriate touse in a particular case. Thesecircumstances will be consideredbelow. It is a measure of theimportance attached to this case thatthe Court asked for submissions fromthe Law Society of England andWales, and the ADR Group.

Of particular importance to legalpractitioners is that the Court ofAppeal stated that lawyers, at leastin England and Wales, have aprofessional duty to consider withtheir clients whether their disputesare suitable for mediation. It wouldseem likely that the Courts inNorthern Ireland will follow the line adopted by the Court of Appeal in England.

Legal Duty to Consider Mediation

Lord Justice Dyson said in hisjudgement (para 11) in Halsey:-“All members of the legal professionwho conduct litigation should nowroutinely consider with their clientswhether their disputes are suitablefor ADR.”

The clear implication is that legaladvisers may be at risk of aprofessional negligence claim if theydo not consider with their clientwhether mediation or some otherform of ADR is appropriate.

I would suggest that in order toconsider whether a dispute issuitable for ADR the legal advisershould have:-

1. knowledge of the possible alternatives to litigation and

2. awareness of the process of mediation and

3. capacity to assess whether or not the features of a particular case made it suitable for mediation.

As with all legal advice lawyersshould only advise on ADR andmediation when they have therequisite knowledge to give abalanced, informed and up to date opinion.

The Court of Appeal providedimportant clarification that the Courthad no role to compel parties tomediate. The Court stated:-“the Court’s role is to encourage notto compel. The form ofencouragement may be robust.”It will be noted later that where aCourt does “encourage” parties tomediate that in itself is a significantfactor in determining whether arefusal is reasonable.

Refusing to Mediate

The particular matter which Halseyconsidered was whether a party whorefused to mediate and is thensuccessful in the litigation should beordered to pay costs. Earlier casessuch as Dunnett v Railtrack (20021WLR 2434) and Leicester Circuits Ltdv Coates Brothers plc (2002 EWCA Civ290) seemed to suggest thatsuccessful parties who had refusedmediation would, nonetheless, beliable to pay costs of the litigation.The only basis for refusing seemed tobe the test established by Mr JusticeLightman in the case of Hurst vLeeming (2001 EWHC 1051 Ch). Inthat case it was stated that:-

“If mediation can have no realprospect of success a partymay….refuse to proceed tomediation on this ground”. Thejudge continued:

“But refusal is a high risk course totake for if the Court finds that therewas a real prospect, the partyrefusing to proceed to mediationmay….be severely penalised”.

In Halsey while agreeing that manycases were suitable for mediation,such as commercial claims, clinicalnegligence cases, family disputes andaccident compensation claims, theCourt of Appeal acknowledged thatjudges should not force parties tomediate. The Court felt that to do sowould be counter-productive andlikely to damage the process andstatus of mediation. The judgementstated that a Court should notcompel a party to mediation whoremains “intransigently opposed”.

While it is welcome that there isclarification that the role and powerof the Court is to “encourage” asopposed to “order” parties tomediate their disputes there wasconsiderable judicial encouragementgiven for the benefits of mediation.

At the same time the Court ofAppeal recognised that “ADRprocesses do not offer a panacea andcan have disadvantages as well asadvantages; they may not beappropriate for every case.”

The Halsey case, however, is perhapsmost important because it identifiesa list of factors that will be relevantin determining whether a party hasunreasonably refused ADR. If a partyhas unreasonably refused thenadverse costs consequences are likelyto follow.

Halsey – the Facts

The claim was brought by Mrs Halseyunder the Fatal Accidents Act 1976(as amended) in respect of the deathof her husband at the Milton KeynesGeneral Hospital. At the time of hisdeath Mr Halsey was 83 years of age.

Attention Litigation Lawyers!“To mediate or not to mediate”


The claim alleged negligenttreatment while he was a patient inthe hospital. Mrs Halsey’s lawyersmade a number of offers to mediatethe claim. All suggestions ofmediation were rejected by theHospital Trust. The hospitalconsidered that there was no meritin the case. At trial the Court agreedthat there was no negligence anddismissed the claim. The lawyers forMrs Halsey then argued that thereshould be no order for costs as theHospital Trust had refused to mediate.

The judge at first instance found thatthe Trust should not be deprived ofits costs. The Court of Appeal agreedand stated:- “In our view, theclaimant has come nowhere nearshowing that the Trust actedunreasonably in refusing to agree toa mediation.”

Earlier in the judgement the Court ofAppeal had set out a list of matterswhich would be relevant in decidingif a party was unreasonable inrefusing to mediate. If a party didunreasonably refuse then the Courtconfirmed that adverse costconsequences could follow.

What litigation lawyers and otherlegal advisers will have to consider ineach case is the list of factorsdescribed by the Court of Appealwhich are relevant in determiningwhether a party would bereasonable in refusing a mediation.What may become known as theHalsey criteria are:-

The nature of the dispute – some cases such as those involved fraud, or requiring injunctive relief, or where interpretation or a binding precedent is required,

do not lend themselves to ADR. It should be noted that the Court observed that “most cases are notby their very nature unsuitable for ADR”.

The merits of the case – the Courtstated “the fact that a party reasonably believes that he has a watertight case may well be sufficient justification for a refusal to mediate”.

Attempts to settle by other means – the fact that settlement offers have already been made may be a relevant factor. However, the Court of Appeal observed “mediation often succeeds where previous attemptsto settle have failed”.

Whether the costs of mediation would be disproportionately high – this would be particularly relevant if the sums in issue are comparatively small.

Delay – if mediation is suggested late in the proceedings the effect of accepting may delay the trial and this may be a factor in deciding if a refusal to mediate was reasonable.

Whether mediation has a reasonable prospect of success – the Court concluded that the burden was on the unsuccessful party to establish that there was a reasonable prospect of the mediation succeeding.

Whether the Court has encouraged mediation – the stronger the Court’s encouragement “the easier it willbe for the unsuccessful party to discharge the burden of showing that the successful party’s refusal

Pictured at the presentation of certificates marking the completion of the most recent Mediation Training Course are JohnWD Pinkerton, President of the Law Society with Margaret-Ann Dinsmore QC and Arthur Moir, Clerk to the Assembly.

was unreasonable”.

Public bodies – these criteria applied to public bodies and the Court downplayed the significance of the so called “government pledge” given in 2001.

Concluding Observations

The Halsey decision has providedvaluable support for mediation andstrikes a balance between compellingparties to mediate – which isindicated was inappropriate – whileat the same time confirming themerits of mediation and establishingdetailed and challenging criteria forwhen it may be consideredreasonable to refuse to mediate. Particularly where the Court itselfhas encouraged mediation it will bea very bold decision to advise thatmediation should be refused.In all ligitation lawyers will have toconsider with their clients whetherADR may be appropriate and if sowhich method of ADR may beappropriate and in theirconsideration will have to apply theHalsey criteria.

Law Society Dispute ResolutionService

The Law Society Dispute ResolutionService can assist in the provision ofmediators for disputes. A furthertraining course in conjunction withSLS will commence on 15thSeptember 2004. This training coursewill inform those attending of thecases suitable for mediation, willexplain the mediation process andwill acquaint participants with therole of mediator. Further details andapplication form can be found atpage 38.


Court Service has issued its BusinessPlan for the period April 2004 toMarch 2005. It states that it intendsto pursue its corporate aim of“serving the community through theAdministration of Justice”, underfour key themes, each with a numberof objectives and performancemilestones. These four themes areReform, Modernisation,Responsiveness and Empowerment.

Details are printed below in respectof the first two which will be ofparticular interest to practitioners.The full text can be downloadedfrom www.courtsni.gov.uk

REFORM

(i) Objective: To promote confidence in the Criminal Justice System

Performance Milestones:

• To enact court rules to introduce Anti-Social Behaviour Orders by August 2004.

• To enact court rules to give effectto the Criminal Justice Act 2003 by March 2005.

• To appoint Lay Magistrates by April 2005.

• To bring cases involving 17-year olds into the Youth Court by April 2005.

• To establish the Judicial Appointments Commission for Northern Ireland by June 2005.

(ii) Objective: To reform the Office of Lord Chancellor in Northern Ireland


• To deliver the Northern Ireland part of the Constitutional ReformBill by March 2005.

• To transfer the Lord Chancellor’s judiciary related functions to the Lord Chief Justice by October 2005.

(iii)Objective: To promote a modern and efficient Civil Justice System


• To establish by November 2004 aninter-departmental working group to modernise the delivery of administrative justice in Northern Ireland.

• To establish a Northern Ireland Civil Justice Council by December 2004.

• To develop an implementation plan for the Campbell Committeeproposals by March 2005.

(iv)Objective: To modernise the Coroners Service


• To publish by October 2004 proposals to modernise the Coroners Service.

• To report to Ministers by January 2005 on the reform of death certification and the Coroners Service.

MODERNISATION

(i) Objective: To modernise the way we deliver our business


• To establish a Modernisation Board by July 2004.

• To deliver the Integrated Court Operations System (ICOS) civil module by November 2004.

• To publish a Modernisation Strategy by March 2005.

• To meet all Causeway Programme objectives during this period.

(ii) Objective: To improve value for money in service delivery


• To publish a consultation document on civil fee policy by December 2004.

• To achieve a 5% efficiency gain inthe delivery of civil court businessby March 2005.

(iii)Objective: To improve Corporate Governance


• To have in place Business Continuity Plans by September 2004.

• To test Business Continuity Plans by March 2005.

• To have in place a new audit and risk management structure by March 2005.

(iv)Objective: To improve the management of funds in court


• To establish the specification for the procurement of stockbroker services by December 2004.

• To produce a revised Investment Strategy and administrative structure for the management of funds in court by March 2005.

ADVERTISEMENT

We are willing to act as agents in most legal matters.

Our offices are close to Courts,Government Buildings and

Commercial Centre.

Fee splitting by arrangement.

Hughes & LiddySolicitors

2 Upper Fitzwilliam StreetDublin 2

Tel: (00 3531) 6766763or (00 3531) 6789701

Fax: (00 3531) 6766702

Republic of Ireland

Agents

Court Service publishes Business Plan 2004-2005


1. The Belfast Solicitor’s Association hassought advice as to what a plaintiff’ssolicitor has to do to check that allinterlocutory matters are dealt withbefore serving a Certificate of Readinessunder Order 8 Rule 3 of the County CourtRules. Following consultation with TheCouncil of HM County Court Judges andthe County Court Liaison Committee thisPractice Note is being issued to theprofession in response to that request inan effort to provide guidance forpractictioners.

2. The obligation to lodge a Certificate ofReadiness under Order 8 Rule 3(1) of theCounty Court Rules arises in twosituations. The first is where the judgedirects under Order 8 Rule 3(2) that thecase be set down for hearing in defaultof a Certificate of Readiness being lodgedwithin six months from the filing of thenotice of intention to defend. The secondis where a Certificate of Readiness islodged in the normal way by the plain-tiff’s solicitor under Order 8 Rule 3(1).

3. In the first situation, that is where thejudge directs that the case be set downfor hearing and fixes a date for thehearing, by virtue of the

4. Certificate of Readiness must belodged within 14 days. In thosecircumstances the date for hearing willhave been fixed by the judge to allowany remaining steps that are required(including, where necessary, interlocutoryapplications) to be completed. Where ajudge has set the matter down theplaintiff’s solicitor is not entitled to delayserving the Certificate of Readinessbecause there may still be outstandinginterlocutory issues. A failure to lodge aCertificate of Readiness within 14 daysmay result in the case being dismissedwithout prejudice.

5. In the second, and more usual,situation where the plaintiff’s solicitorbelieves the case is ready for hearing aCertificate of Readiness complying withForm 43 is lodged. Form 43 requires theplaintiff or plaintiff’s solicitor to certify“(1) that to the knowledge of theplaintiff;a) there are no remaining interlocutoryissues between the parites;b) and that these proceedings are readyfor hearing;…”

6. Whilst it is not possible to identify inadvance every type of issue that mightbe relevant, nevertheless there are anumber of situations that arise inpractice which have a bearing on eitheror both of these questions.

• The plaintiff has not replied to the defendant’s notice of particulars.

• The plaintiff is aware that a further medical examination has been, or will have to be arranged, either on behalf of the plaintiff or on behalf of the defendant, and serving a Certificate of Readiness may result in the case being set down for hearing before the date of the medical examination. This often results in an application for an adjournment because in many divisions on receipt of a Certificate of Readiness the case will be listed for a date in advance of any date on which it is possible to arrange a further medical examination. The judge may strike out the Certificate of Readiness in such cases, and the fee is thereby forfeited and the hearing date vacated.

• The plaintiff has not served any, or the most recent, medical evidence on the defendant yet sends the Certificate of Readiness with the medical evidence and/or the replies to the notice for particulars. This deprives the defendant of the opportunity to consider the evidence and respond as appropriate.

• The plaintiff serves the Certificate of Readiness before replying to the defendant’s solicitor’s request for disclosure of the plaintiff’s medical notes and records and/or a request for the identify of the plaintiff’s general practitioner to enable such an application to be brought.

• The defendant’s solicitors indicate that they wish to join a third or subsequent party out of time.

• Discovery is still outstanding from the defendant

• The defendant’s solicitors ignore requests for inspection.

These are the most common problems

that arise in practice. Where theplaintiff’s solicitor is at fault, they canarise because the Certificate ofReadiness is served before the counselhas directed proofs (if counsel is to beinstructed), and may result in asuccessful application being made bythe defendant’s solicitors to strike outthe Certificate of Readiness on the basisthat they have not had adequate timeto respond to the plaintiff’s case. Onthe other hand, the plaintiff’s solicitor isnot infrequently faced with thedilemma created by failure of thedefendant’s solicitor to indicatewhether the defendant is ready for trialonce the plaintiff has served all of hisevidence. In such circumstances howcan the plaintiff’s solicitor decidewhether both sides are ready for trial?

7. A plaintiff’s solicitor is not obliged to,and should not, wait for a lengthyperiod before lodging a Certificate ofReadiness if the defendant’s solicitorhas had a reasonable period of time toconsider and respond to the plaintiff’scase. The plaintiff’s solicitor is entitledto serve a Certificate of Readiness onceit appears that all reasonable stepshave been taken by both sides toprepare the case for hearing. Thisdecision can only be made in the lightof a common sense evaluation of allthe matters known to, or reasonablyanticipated by, the plaintiff’s solicitor. Itis not always possible for the plaintiff’ssolicitor to anticipate what steps thedefendant might wish to take onreceipt of the plaintiff’s evidence, orotherwise prepare for trial. Theprudent course for the plaintiff’ssolicitor to adopt when he or she feelsthat the case is now ready for hearingis therefore to write an open letter tothe defendant’s solicitors saying that asthe plaintiff considers the case is nowready for hearing a Certificate ofReadiness will be served within 14 daysof the date of the letter unless thedefendant’s solicitor objects within thattime, and, if the defendant contendsthat it is not ready for hearing, gives asatisfactory reason why the Certificateof Readiness should not be lodged.

8. If the defendant’s solicitor does notreply within that period, or theplaintiff’s solicitor considers that thedefendant’s solicitor’s objection to theCertificate of Readiness being served isunreasonable, the plaintiff’s solicitorshould lodge the Certificate ofReadiness and leave the defendant tomove to strike it out, so that the courtcan decide whether the case should beset down or not.

Practice Note No 9Certificates of Readiness

COURT SERVICE NOTICE

ADVERTISEMENT

STEPHEN DONAGHY I.Eng. M.Inst.AEA. F.IMI. M.SOE.

AUTOMOTIVE CONSULTING ENGINEER & ASSESSOR

Tel & Fax: 028 9022 3357Mobile: 0780 895 2608

Email: [email protected]: www.sdonaghy.co.uk

Ideally qualified and suitablyexperienced to undertake

Appropriate Accident Investigationand Reconstruction of cases where,

private cars, light & heavy commercial vehicles, farm machinery, industrial site

machines & their associatedequipments are the subject.

Experienced in Forensic Examination, the collection & recording of

evidence, compiling material factsleading to detailed reporting

for the purposesof Litigation.

6 Knockvale Grove, Knock, Belfast BT5 6HL

Justice Oversight Commissioner, LordClyde, has released his second reporton the progress which has beenmade in implementing the 293recommendations of the CriminalJustice Review.

Presenting the report torepresentatives of justice andvoluntary organisations, Lord Clyde,gave an overview of progress in theperiod December 2003 to June 2004.He said, “There are some areas forconcern. In particular, there is aconcern regarding the sufficiency ofresources, and secondly a continuingconcern about the time taken for theprocessing of criminal cases. As Inoted in my First Report, theavoidance of delay is one of theprime essentials for an effective andefficient criminal justice system.Public confidence in the system isenhanced when cases aredetermined speedily and efficiently”.

“As for the substance of this SecondReport, I would mention twohighlights which distinguish the lastsix months. The first is the continuedrolling out of the new ProsecutionService, with the second stage of thepilot scheme commencing inFermanagh and Tyrone in April 2004,and along with all of that the rollingout of the Youth ConferencingScheme in tandem with theProsecution Service. The secondhighlight has been the passing of theJustice (Northern Ireland) Act 2004which among other things opens theway for the establishment of theJudicial Appointments Commissionnext year.”

He also indicated that impressiveprogress had been made in otherareas, such as the creation of theCommunity Safety Partnerships.There had also been good workundertaken on a basis of cross-border activity despite the absenceof the signing of the ministerialagreement.

Lord Clyde also reported that histeam had started a succession ofvisits to the courts in NorthernIreland, to ascertain progress on a

variety ofrecomme-ndations,which relateto the facilitiesand practiceof the courts.This allowedthem to seethe extent towhich avariety ofrecomme-ndations havebeenimplemented.

He stressedtheimportance ofthe criminaljustice system,for the public.“Obviouslymembers of the public becomeinvolved as witnesses or victims inthe judicial process but the scope ofthe reforms with which I amconcerned carries the publicparticipation far beyond suchobvious involvement.

“The public have judicialresponsibilities, as members of a jury,or as lay magistrates under thearrangements currently beingpromoted. The views of the publicare sought not only by consultationon proposals for reform, but throughsuch bodies as the court user groupswhich seek to secure a more efficientworking of the local court.”

Lord Clyde also disclosed that plansfor a new Law Commission forNorthern Ireland may have to bescaled back. Plans for it had beeninhibited through lack of fundingand it would be the autumn beforeit was known if funding wasavailable to establish a commissionon the scale which had previouslybeen thought appropriate.

Lord Clyde’s reports, together withfurther details on the JusticeOversight Commission are availableon the Justice Oversight Commissionwebsite www.justiceoversight.com

Justice Oversight Commissionerhighlights concerns



NORTHERN IRELAND YOUNGSOLICITORS’ ASSOCIATION PRESENTS A

LUNCHTIME LECTURE ON:

FAMILY LAW - RECENTMESSAGES FROM EUROPE

Speaker: Ms Siobhan O’Hagan BL

Date: Tuesday 28th September 2004

Time: 1pm- 2pm (tea, coffee andsandwiches from 12.30 pm)

Venue: Law Society House, Victoria Street,Belfast

Cost: £10 for members of the NIYSA*and £20 for non-members.

Attendance at this Seminar will provide onehour’s CPD entitlement.

Cheques and Booking Forms to NIYSA c/oEmma Hunt, Mills Selig Solicitors, 21 ArthurStreet, Belfast BT1 4GA Fax to 028 90243878. E-mail to [email protected]

* All Solicitors aged 36 or under areautomatically members of the NIYSA.

BOOKING FORM

NAME

FIRM

ADDRESS

E-MAIL ADDRESS

TEL

NUMBER OF PERSONS ATTENDING

I ENCLOSE REMITTANCE OF £

NIYSA would like to invite its members to a half day PracticeManagement Seminar on Friday 15 October 2004 at 1.00 pm inLaw Society House followed by an early evening reception withlimited free bar, jazz band and nibbles at Altos Café, FountainStreet, Belfast.

Practice Management Seminar Programme

1.00pm - 1.30pm Registration, sandwiches, tea and coffee

1.30pm - 2.15pm ‘Perils and Pitfalls of Practice’ by Suzanne Bryson, Deputy Secretary of the Law Society of Northern Ireland

2.15 pm - 3.00 pm ‘The Importance of the Financial Function to a Successful Legal Practice’ by Gabriel Greene of Goldblatt McGuigan

3.00pm - 3.15pm Tea and coffee

3.15pm - 4.00pm ‘Money Laundering – A Banker’s View’ by Mark Ellesmere of First Trust Bank

4.00pm - 4.45pm ‘Partnership: What to do?’ by Patrick Oliver of AFP Consulting

The cost is £40.00 for NIYSA members and £60.00 for others.

All Solicitors aged 36 or under are automatically members of NIYSA.

All delegates at this seminar are invited to a reception at AltosCafé, Fountain Street, Belfast at 5.00pm for drinks and nibbles withlive jazz band.

Attendance at this seminar will qualify for 3 hours’ PracticeManagement CPD

BOOKING FORM

NAME

FIRM

ADDRESS

E-MAIL ADDRESS

TEL

NUMBER OF PERSONS ATTENDING

I ENCLOSE REMITTANCE OF £

Please make cheques payable to Northern Ireland Young Solicitors Association

I enclose a cheque in the sum of £

Please complete this form and return it with cheque to NIYSA c/o Darren Toombs, Carson McDowell Solicitors, Murray House, Murray Street, Belfast, BT1 6DN. Tel: 028 9024 4951 Email [email protected]

PRACTICE MANAGEMENT HALF DAY SEMINAR

FOLLOWED BY JAZZ RECEPTION ATALTOS CAFÉ, BELFAST


Practitioners acting for clients whoare landlords or tenants of houseswhich are let for multiple occupationshould note that the HousingExecutive (in accordance with itsobligations under the Housing(Northern Ireland) Order 2003) hasput in place, with effect from 1stMay 2004, a compulsory StatutoryRegistration Scheme for Houses inMultiple Occupation (HMOs).

Background

The Scheme’s introduction followedan extensive consultation processduring which 50 government,statutory and representative bodiestogether with individual landlordsand residents responded with widelydiverse comments.

The Statutory Registration Schemeitself was drafted with the objectivesof ensuring that safe and wellmanaged HMO accommodation isavailable for the 40,000 individualswho occupy close to 10,000properties in this sector of thehousing market.

Some of these individuals areamongst the most vulnerablemembers of society. The aim of theScheme is to try to address, inconjunction with other statutoryagencies, landlords, tenants andresident groups, some of the adverseaffects associated with the existenceof HMO properties and thebehaviour of their residents.

What constitutes a House in MultipleOccupation?

The original definition of a HMO wascontained in Article 75 of theHousing (Northern Ireland) Order1992. Through case law (Barnes vSheffield Council), the scope of theterm had become restricted. Theoriginal definition is now substitutedby Article 143 of the Housing(Northern Ireland) Order 2003 whichcame into effect on the 1st January2004. It provides that a HMO is:

“A house occupied by more than 2qualifying persons, being personswho are not all members of thesame family”.

“Qualifying persons” means personswhose only or principal residence isthe house in multiple occupation,and for that purpose a personundertaking a full time course offurther or higher education whoresides during term time in a houseshall, during the period of thatperson’s residence, be regarded asresiding there as his/her onlyprincipal residence.

A person’s family is defined as thatperson’s grandparent, parent, childor grandchild, brother or sister,spouse or persons living together ashusband and wife. (A person’s familyincludes stepchildren andrelationships of the half-blood aretreated as relationships of whole blood).

This amended definition allows theHousing Executive to initiateappropriate statutory action againststudent type accommodation whichfails to comply with the adoptedHMO standards. Previously, due tothe mode of living and tenancyagreement drawn up betweenlandlords and tenants, many studentproperties fell outside of thedefinition contained within the 1992 Order.

Standards Required

At the launch of the StatutoryRegistration Scheme the ChiefExecutive of the Housing Executive,Mr Paddy McIntyre said,

“Private Sector tenants have theright to live in property that is of adecent standard with up to date firesafety measures. Inclusion in theRegister demonstrates that theproperty is safe and should helppeople to make informed choices onwhere to live. This Scheme willbecome a hallmark of quality in theprivate rented sector and registeredproperties will have been judged tocomply with the highest standards to protect the health and safety of occupants.”

Apart from fire safety, otherstandards relate to kitchen, toiletand washing facilities.

HOUSES IN MULTIPLE OCCUPATIONStatutory Registration Scheme now in force


Implementation

The registration scheme specifiesthose properties which are requiredto register initially, and defines theperson required to ensurecompliance with the provisions ofthe scheme, known as “the specifiedperson”. The Housing Executive willcontinue to specify properties forregistration on a rolling programmeover the coming years.

Compliance

The Statutory Registration Schemetook effect on 1st May 2004.Consequently owners or managers ofthose HMO properties which arespecified to register are required tocomply with all of the provisions ofthe scheme by the dates shown inthe registration scheme document.

Control provisions within the schemealso enable the Housing Executive torefuse an application for firstregistration or a renewal or variationof registration, on the grounds thatthe “person having control of thehouse” or the person intended to bethe “person managing the house” isnot a “fit and proper person”.

Non-compliance with the scheme’sprovisions will lead to penaltiesbeing imposed such as fines, andmay also result in the property inquestion being no longer permittedto operate as a HMO.

Anti-social behaviour

The registration scheme also requireslandlords to do what is reasonablypracticable to prevent nuisance oranti-social behaviour on the part oftenants of registered properties. TheExplanatory Notes which accompanythe provisions of the Scheme giveexamples of the type of reasonablypracticable steps that a landlordmight take to prevent or reduce suchbehaviour. The following will be ofparticular relevance to practitionersacting for landlords of HMOproperties:

• The inclusion of clauses relating to behaviour in the written tenancy agreement, to set the parameters and boundaries for behaviour at the outset. It is then possible for the manager to consider eviction on grounds of breach of the tenancy agreement should problem behaviour arise;

• The inclusion of clauses in the

ADVERTISEMENT

Republic of Ireland Agents

• All Litigation and Conveyancingwork undertaken on an agency basis.

• Consultations in Northern Ireland if required.

• Quality Assurance.

• First firm in Northern Ireland to achieve ISO EN 9001 and Lexcel accreditations.

34 Hill Street, NewryCo Down BT34 1ARDX 2050 NR, NewryTel: 028 3026 6611Fax: 028 3026 9492Email: [email protected]

tenancy agreement whereby the tenant agrees to keep the gardenand curtilage of the house free from refuse and litter, except where properly is stored pending disposal;

• The inclusion of clauses in the tenancy agreement relating to the proper use of bins and other means of disposal of refuse and litter.

Practitioners should also note thatHMO landlords now have the powerto obtain injunctions against anti-social behaviour under StatutoryRule 2003 No.409, “InjunctionsAgainst Anti-Social Behaviour(Prescribed Premises) Regulations (NI) 2003” which prescribesaccommodation for the purposes ofArticle 26(2)(d) of Housing (NI) Order 2003.

Further information on the StatutoryRegistration Scheme can bedownloaded fromwww.nihe.gov.uk/publications/news/HMO_statutory_reg_scheme.pdf.

We are grateful to Kevin Bloomfieldof the NIHE foe his assistance withthe preparation of this article.


Queries That Can be Answered Over the Telephone

Q5.2 Restrictions, covenants or conditions

Q27 Certificate for each property

Q29 Local Authority number

Q32.2 Area of land

Q40.3 Agents address missing

Q50 NINO missing

Q55 Is purchaser acting as a trustee

Q69 Is the (Second) purchaser acting as a trustee

Q70 Supplementary returns not enclosed

Queries that will need an SDLT8 returned

Q1 Type of property

Q2 Description of transaction

Q3 Interest transferred or created

Q4 Effective date of Transaction

Q7.4 Exchange/Part Exchange of land

Q9.1 Relief claimed

Q9.2 Relief type

Q9.3 Charity registered number

Q9.4 Amount remaining chargeable

Q10 What is the total consideration in moneys worth including and VAT actually payable for the transaction notified

Q12 What form does the consideration take

Q13.1 Is the transaction linked to any others

Q13.2 If not answered and 13.1 yes

Q16 Type of lease

Q17 Start date as specified in lease

Q18 End date as specified in lease

Q28.3 Address or situation of land

Q36 Vendor (1) Surname or Company Name

Q38.3 Vendor (1) address

Q46 Vendor (2) Surname or Company Name

Q48.4 Vendor (2) address

Q52 Purchaser (1) Surname/Company Name

Q54.4 Purchaser (1) address

Q57 Are the purchaser and vendor connected

Q57 Address to send certificate to

Q58 Authorised agent

Q59 Agents address

Q61.3 Purchaser (2) surname or company name

Q66 Purchaser (2) address

Q71 Declaration - the purchaser(s) must sign the return

Ending of “Light Touch”Circumstances in which an SDLT 8 letter will be issued

The Inland Revenue made an announcement inNovember 2003 about special ‘Light Touch’administrative arrangements. These arrangementswere brought in to help the transition to Stamp DutyLand Tax introduced on 1 December 2003.

During the ‘Light Touch’ period their objective was toprocess SDLT 1 forms and issue certificates even wherereturns had been filled in unsatisfactorily or containederrors and omissions. Letters were sent out withcertificates explaining where the form had been filledin incorrectly so that the practitioner was aware of thecorrect procedure.

With ‘Light Touch’ being phased out from 19 July 2004any incomplete or incorrect SDLT forms mayautomatically generate an SDLT 8 letter.

The SDLT 8 will indicate which items of information aremissing or unclear so that the practitioners or clientscan provide the information on the returned form. Acertificate will not be provided unless the correct ormissing information is provided. The issue of an SDLT 8means that the SDLT 1 will remain on the system to be

completed when the SDLT 8 is returned. Unlike theSDLT 1, the SDLT 8 does not need to be signed by the purchaser.

Where this happens it is important to remember the 30day period triggered by the effective date of thetransaction will still be running and the SDLT 8 shouldbe returned as soon as possible so that penalties donot become applicable.

Practitioners or clients may fax through completed SDLT8’s to the office shown at the top of the form. Faxnumbers can be obtained from the Enquiry Line on0845 6030135 or via the Revenue’s website athttp://www.inlandrevenue.gov.uk/so/contact_details.htm

Following the issue of an SDLT 8 letter, the Revenue willalso be able to accept certain minor amendments andqueries to a previously submitted SDLT1 over thephone. In other instances, the query can only be dealtwith by the return to them of the SDLT 8. A list of thetypes of enquiries that can be answered over the phoneby their staff and those that will require the submissionof an SDLT 8 is as follows:

Shake up of Corporate Laws planned


Government has recently unveiledplans to change the law relating tothree separate areas of corporatelegislation. The Department ofEnterprise, Trade and Investmenthas announced proposals:-

- to modernise company law in Northern Ireland

- to reform the legal framework for personal and corporate insolvency and

- to extend the law relating to directors disqualification

• MODERNISATION OF COMPANYLAW IN NORTHERN IRELAND

Enterprise Minister, Barry Gardiner,has issued for consultation a paperentitled ‘Flexibility andAccessibility’. Mr Gardiner said:"Company law is fundamental tothe effective operation of oureconomy. We need to cut out ‘redtape’. We need to make the lawmore accessible to privatecompanies which, after all,represent the vast majority ofregistered and trading bodies.

"We also need to maintaincompany law consistent with GreatBritain and in harmony withEurope. It is more efficient forbusinesses, their representativebodies and professional advisers tooperate within consistent codes.

"These proposals represent a majorprogramme of consolidation andreform of company law. The endresult will be a modern, simplifiedand more accessible framework,which will reduce the regulatoryand administrative burden for thevast majority of companies."

The proposals in "Flexibility andAccessibility" are designed to makecompany law more accessible to allusers. At present, company law iscontained mainly in primarylegislation.

New powers are proposed toenable future changes bysecondary or subordinatelegislation. A power to "restate"the existing law in subordinatelegislation will make it simpler to

understand for all users. A power to"reform" or amend the law is alsoproposed. However, in both cases,proposals would be introduced in amanner, which would retainprocesses for full consultation on,and parliamentary scrutiny of, the changes.

A second paper outlining the CurrentCompany Law LegislationProgramme has been issued forinformation. It describes provisionscontained in the Companies (Audit,Investigations and CommunityEnterprise) Bill, which are designedto restore investor confidence,following high profile corporatefailures. The proposals strengthenthe regulatory regime of theaccountancy and audit professionsand are aimed mainly at public andlarge private companies. Otherlegislative initiatives emanate fromEurope and are required toimplement various Regulations andDirectives dealing with InternationalAccounting Standards, Fair Value andother matters.

The period for comments runs until29 October 2004. The ‘Flexibility andAccessibility’ paper can be accessedon the DETI website atwww.companiesregistry.detini.gov.uk

• REFORM OF INSOLVENCY LAW

A draft Order in Council has beenpublished which aims to reform thelegal framework for personal andcorporate insolvency.

The publication of the draft Orderfollows a consultation carried out in2003 on proposals to modernise theinsolvency system. The mainprovisions of the proposedlegislation are:

• the reduction of the normal bankruptcy period for individuals,

• the imposition of continuing restrictions on culpable bankrupts,

• allowing the removal of outdatedstatutory restrictions on bankrupts,

• the abolition of the right to appoint an administrative receiver except in special cases.

• the streamlining of the administrative procedure and the abolition of Crown preference (through which the Crown is entitled to receive payment in priority to other creditors).

A copy of the draft Order andaccompanying ExplanatoryMemorandum is available on theInsolvency Service website atwww.insolvencyservice.detini.gov.uk

The consultation period on thedraft Order will run until 29October 2004. It is planned to takeforward the legislation in 2005.

• DIRECTORS DISQUALIFICATION

Proposals have been published toextend Northern Ireland legislationcovering the basis on whichcompany directors may bedisqualified.

A spokesperson for DETI’sInsolvency Service explained: “The aim is to protect the public by ensuring that the means exist toenable directors whose companieshave been in breach of competitionlaw to be disqualified.”

Competition law is designed toensure that prices in the marketplace are arrived at through a faircompetition and not as a result ofsuppliers colluding with others toset a price higher than what wouldresult from the operation ofnormal market forces.

These proposals will bring NorthernIreland legislation into line withthat in Great Britain where similarprovisions were introduced by theEnterprise Act 2002.

DETI will be consultingsimultaneously on the proposedchanges and the associated draftlegislation. A copy of theConsultation Document, draftOrder in Council and accompanyingExplanatory Memorandum areavailable onwww.insolvencyservice.detini.gov.uk

Responses are due by 29 October 2004.


The Department of Finance &Personnel has launched twoseparate consultations onproposals relating to the rating system.

(1) HARDSHIP RATE RELIEF FORBUSINESSES

A Consultation Paper has beenissued proposing a Hardship RateRelief Scheme to help businessratepayers. On 1 March 2004, IanPearson MP, the Minister withresponsibility for Finance,announced in Parliament that thedraft Rates (Amendment)(Northern Ireland) Order would beamended to include an enablingpower to introduce a hardship raterelief scheme by Regulations. Thisannouncement followed anextensive public consultation onthe Order that began in October 2003.

During the parliamentary stages ofthe Order in early 2004 there wasbroad support for the introductionof a hardship rate relief scheme. The proposed scheme is intendedto allow Government to respond ina practical and timely way to theneeds of businesses facing

Changes proposed to rating system

difficulty for reasons beyond normal commercial risk.

It will not be a replacement forindustrial de-rating, but it will allowGovernment to be more responsiveand flexible in targeting support atindividual businesses where andwhen it is most needed.

Article 8 of the Rates (Amendment)(Northern Ireland) Order 2004 setsout the four broad principlesrelating to hardship rate relief:

1. The relief is to be granted only inrespect of rates payable on non-domestic property;

2. The relief is to be ‘discretionary’; 3. The circumstances that give rise

to a request from a ratepayer forhardship relief have to be ‘exceptional’; and

4. The relief may be given only where a ratepayer would otherwise suffer ‘hardship’.

There are several key issuesassociated with these broadprinciples on which final decisionshave yet to be taken. These are setout in the Consultation Paper andresponses thereto will inform thepreparation of the Regulations. The Department requests that anycomments on these issues should be

submitted to the Department by 17September 2004.

The consultation documentation isavailable on the Internet at:www.nics.gov.uk/ratingpolicy It is intended that the regulationswill come into operation on 1st April 2005.

(2) REFORM OF DOMESTIC RATING SYSTEM

The Government has published apolicy paper on the reform of thedomestic rating system. Thedomestic sector was last re-valuednearly 30 years ago and isconsidered to be riddled withanomalies and inequities.Launching the document, theFinance Minister Ian Pearson saidthat a new domestic rating system,due to come into effect from April2007, will mean households inNorthern Ireland will pay rates on afairer basis.

Under the new arrangements,domestic rate bills in NorthernIreland will be calculated on thebasis of each property’s assessedcapital value rather than a bandedsystem. This builds on the decisionannounced in 2002, in light of theoutcomes of the consultationexercise carried out at that time, tochange the basis of valuation fromrental to capital values. TheMinister also announced thatregular revaluations will be carriedout to ensure that the new systemis up-to-date and reflects changesin the property market. In addition,a new appeal process will beestablished for householdersunhappy with their propertyvaluation.

Commenting on the redistributiveimpact of the proposals, MrPearson said: "It is likely that therewill be some significant shifts inrate bills, particularly at the topend of the market. It is only fairthat those who can afford to paydo pay a fairer share as soon aspossible, but there is also a need tomanage the transition effectively. Ihave therefore decided thattransitional arrangements will be


ADVERTISEMENT

Gillian McClenahan ATT TEP TaxTrust & Estate specialist has establishedWillplantax to provide a confidential consultancy service for solicitorsaccountants and financial advisersthroughout the Province where help ora second opinion is required with

• Inheritance Tax, Capital GainsTax & Personal Tax planning &compliance

• Drafting Tax efficient Wills,Trust Deeds & Deeds ofVariation

• Self Assessment Tax Returnsfor Individuals, Estates, Trusts& for Non UK Residents

• Controllership Applications andfunding for care.

Web: www.willplantax.co.ukE-mail: [email protected]/Fax: 02891-274634Or 07967 581702

ATT TEP

MORTGAGES: ACTIONSFOR POSSESSION

The Northern Ireland CourtService has published statisticsfor writs and originatingsummonses issued during thesecond quarter of 2004 inrespect of mortgages in theChancery Division of theNorthern Ireland High Court.The statistics cover bothNorthern Ireland HousingExecutive and private (e.g.banks and building societies)mortgages and relate to bothdomestic and commercialproperties.

During this period, 597 writsand originating summonseswere issued. The comparablefigure for 2003 was 451.

Figures on mortgage possessionactions are published on aquarterly basis. The publicationdate for the figures covering thethird quarter of 2004 will be27th October 2004.

100 Days to Freedomof Information

22nd September 2004: London - £299 plus vat

A major one day conferenceaddressed by all the leading expertson the Freedom of Information Act2000. Attend and benchmark yourcompliance ready for 1st January2005. Speakers include:

• The UK and Irish Information Commissioner’s Office

• The Campaign for Freedom of Information

• The Department of Constitutional Affairs

• The Guardian Newspaper

Full Autumn programme of otherseminars can be downloaded fromour website (£159 plus vat)

Data Protection & Data Sharing 28th September - Belfast Freedom ofInformation 14th October - Belfast

Website: www.actnow.org.uk Tel: 01924 496495 Fax: 01924 520242

introduced to assist those who mayexperience significant increases intheir rate bill. These arrangementswill be finalised when therevaluation exercise is completedand published well in advance ofApril 2007 when the first rate billsunder the new system will be issued."

On the issue of rate reliefs hestated "It is critically importantthat we provide a safety net forthose who can least afford to pay.Blanket reliefs, however, are notthe answer. Instead, I am proposingto introduce a rate relief schemethat will provide targetedassistance to those ratepayers onlow incomes who are just beyondthe reach of the housing benefit system.

"The new system will also cater forpeople with a disability whoqualify for Disabled Person’sAllowance. New applicants willreceive a standard 25% reductionin their rate bill to ensure they arenot disadvantaged because ofmodifications made to their home."

The Minister also expressed theGovernment’s desire that futuredecisions on rating reform wouldbe taken forward by a restoredExecutive and Assembly. This willbe taken into account in thelegislation required to implementthe Government’s reforms.

Commenting on the Government’sdecision not to introduce therating of vacant domestic property,the Minister said: "While, as I haveindicated previously, I think that itis right in principle that vacantproperty should be rated, the costof extending it to the domesticsector would be excessive whencompared with the revenue likelyto be raised. Unlike the position inthe non-domestic sector, the ratingof vacant domestic property wouldbe an inefficient measure andtherefore I do not intend tointroduce it at this stage. However,provision will also be made for anenabling power that would allowa future Executive to introduce itat a later date if circumstanceswere to change."

The Minister also stated that the

reform of the domestic ratingsystem will need to take accountof the outcomes of the ongoingReview of Public Administrationin Northern Ireland and theBalance of Funding Review in England.

Concluding the announcement,the Minister said: "There will nowbe a 16 week consultation periodduring which I hope as manyinterested parties as possible willconsider the proposals andcomment on them.

The detailed analysisunderpinning the proposals iscontained in the policy paper. Ashorter summary paper is alsoavailable. An explanatory leafletwill be issued to householders inSeptember.” The detail containedwithin the Policy paper is subjectto consultation, concluding on 12 November 2004.

Both the main policy paper,summary document and finalEQIA are available on the Ratingpolicy website: www.nics.gov.uk/ratingpolicy/

ADVERTISEMENT


Children Order Panel !!!Solicitors wishing to be accredited to the Children Order Panel are invited to apply for membership on orbefore Friday 10th September 2004.

To summarise the requirements, you are eligible to apply for membership if you: -

(i) are in private practice;

(ii) have three years post-qualification experience;

(iii) can demonstrate relevant experience and knowledge gained by representing parents, grandparents or other parties in both public and private law proceedings under the Children (NI) Order 1995 or under the Children Act 1989 (if appropriate);

(iv) can demonstrate attendance at courses and seminars etc as required;

(v) can give an undertaking in the form required;

(vi) agree to provide references as required;

(vii) authorise the Law Society to use the Pre-Employment Consultancy Service (PECS) to confirm the accuracy and completeness of the information provided.

Application forms are available from the Society on request and completed forms should be returned with afee of £200.00. When you have submitted the application you will be required to attend a 2-day trainingsession which has been provisionally arranged for 11th & 12th October 2004. You will then be asked tocomplete a case study on a question which relates to working with children. You will also be asked to attendan interview before the Accreditation Board.

When you are accepted as a member of the Children Order Panel by the Accreditation Board, you will benotified in writing and your name will be added to the Society’s Children Order Panel membership list. This ispassed on to the Guardian Ad Litem Agency for inclusion on the Panel of Solicitors who can be instructed toact for children.

Membership of the Panel will last for a period of two years from 1st January 2005. During that time you mustattend courses and training as required. After two years you can apply for re-accreditation which involvescompleting a questionnaire and giving details of your experience and updated training.

PLEASE SUBMIT YOUR WRITTEN APPLICATION TO:KEVIN DELANEY

LAW SOCIETY OF NORTHERN IRELAND LAW SOCIETY HOUSE98 VICTORIA STREET

BELFAST BT1 3JZDX422NR BELFAST 1

TEL: 90231614 FAX: 90232606E-MAIL [email protected]


REVIEW OF CHILDPROTECTION VETTINGARRANGEMENTS

Both the Secretary of State forNorthern Ireland and theCommissioner for Children andYoung People have welcomed thepublication of the report of SirMichael Bichard’s inquiry into thetragic events at Soham in August 2002.

In March of this year theCommissioner was asked by theSecretary of State to undertake areview into child protection vettingprocedures in Northern Ireland. Itwas agreed at that the time that SirMichael’s report would inform the review.

The Commissioner has announcedthat the chair of the review will beRuth Lavery who was formerly asenior lecturer in the School of Lawat QUB, specialising in Family Law.

The Commissioner will in comingmonths unveil details of howchildren, young people, parents andorganisations can help inform thechairperson’s recommendations forimproving practice.

One of the first tasks facing thereview will be to benchmark practicein terms of vetting those who workwith children against the standardsproposed by Sir Michael Bichard.

Allocation of FamilyProceedings

Family law practitioners should note that theundermentioned Rules are in force from 6thSeptember 2004.

1. THE CHILDREN (ALLOCATION OF PROCEEDINGS) (AMENDMENT) ORDER (NORTHERN IRELAND) 2004 (SR 2004 NO.310)

This Order amends the Children (Allocation of Proceedings) Order(Northern Ireland) 1996:-

• to provide in certain circumstances for the transfer of specified proceedings from one family proceedings court to another family proceedings court. The circumstances for such a transfer are where

(a) having regard to the principle set out in Article 3(2) of Children (NI) Order 1995 the transferring court considers that the transferis in the interests of the child –

(i) because it is likely to significantly accelerate the determination of the proceedings,

(ii) because it would be appropriate for those proceedings to be heard together with other family proceedings which are pending in the receiving court, or,

(iii) for some other reason, and

(b) the receiving court consents to the transfer.

• to specify Dungannon County Court as a Family Care Centre; and

• to make other minor amendments.

2. THE DECLARATIONS OF PARENTAGE (ALLOCATION OF PROCEEDINGS) (AMENDMENT) ORDER (NORTHERN IRELAND) 2004 (SR 2004 NO. 311)

This Order amends the Declarations of Parentage (Allocation ofProceedings) Order (Northern Ireland) 2002:-

• to provide in certain circumstances for the transfer of proceedings under Article 31B of the Matrimonial and Family Proceedings (Northern Ireland) Order 1989 from one family proceedings court to another family proceedings court;

• to specify Dungannon County Court as a Family Care Centre; and

• to designate the juvenile court for the petty sessions district of East Tyrone as a family proceedings court, in place of the juvenile court for the petty sessions district in Omagh.

“THE MAYOCONNECTION”Junior Vice President AttractaWilson is believed to have secureda hotel of top international -standing in her native county fornext year’s (05) conference.

It is rumoured that she hasnegotiated the prime Easterweekend slot at the venue downto standard conference prices.

Members are urged to “watchthis space” as annual conferenceattendance has gone fromstrength to strength in recent years.


Fourth Reportof Children OrderAdvisoryCommitteeThe Fourth Report of the ChildrenOrder Advisory Committee (COAC)has been published. It focuses on thework of the Committee in monitoringthe operation of the Children Orderin the courts and presents an overallview together with statisticalinformation and commentary duringthe period April 2002 until March 2003.

This period saw the completion ofthree major pieces of work namely areport on delay in the court process, a report on best practice in ChildrenOrder cases and a report on separaterepresentation for children in publicand private law cases. The first tworeports have since been published and the third is being distributed as a basis for further considerationbefore receiving the imprimatur of the Committee.

In addition to these three majorpieces of work the Committeethrough its sub-Committees hasexamined on an ongoing basis abreadth of issues falling within itsterms of reference to includedomestic violence, contact centres,mediation, secure accommodation,inter-country co-operation and multi-disciplinary literature.

COAC also considered a number ofdisparate issues emphasising themulti-disciplinary approach itconsiders vital to the implementationof its remit. It states that it has takena close interest in the experience ofCAFCASS in England and its possibleapplication to Northern Ireland, childcare developments on a broad canvasthroughout Northern Ireland, thedevelopment of mediation, thetraining of social workers and thegrowing recognition of informationtechnology as an aid in its work e.g.introduction of telephone and videoconferencing in the court process.

The report is available from www.courtsni.gov.uk/en-GB/Publications/Family_Law_and_Childcare_Literature/p_flc_COAC_Fourth_Report.htm

Director of Appeals

The General Dental Council is the body which regulates dentistry in the UnitedKingdom. One of the Council’s functions is to determine appeals by dentists againstdecisions not to allow them entry to one or more of the Specialist Lists (which showexpertise in distinctive branches of dentistry). The Council is seeking to appoint a newDirector of Appeals to chair the panels of 3 (Director of Appeals plus 2 dentists) whichhear these appeals. All appeals are heard at the Council’s offices in London W1.

The main functions of the Director of Appeals are to ensure the impartiality of theappeal system and to ensure that appeals are determined promptly. The commitmentrequired is likely to be 5 – 10 days per year, plus the same number of days’ readingtime. Reading and hearing days are paid at the daily rate set for Recorders by theDept for Constitutional Affairs.

The primary qualification is that the Director of Appeals shall be a barrister, advocateor solicitor of at least 10 years’ standing; but candidates should in addition have notless than 5 years’ experience of chairing statutory tribunals or acting in a similarjudicial capacity. Good organisational/managerial skills will be a distinct advantage.Applicants must be aged 68 or under at the time of appointment.

An application form for appointment as the Director of Appealsshould be requested in writing from Tom Peplow at the GeneralDental Council, 37 Wimpole Street, London W1G 8DQ; or by fax on020 7224 3294; by email to [email protected] or by calling 0207887 3835. The closing date for the return of completed applicationforms is 15 October 2004.

The General Dental Council is committed to promoting and developingequality and diversity in all its work. Applications from all sections of the community are welcomed. www.gdc-uk.org

Legal Assessors

The General Dental Council is the body which regulates dentistry in the UnitedKingdom. The Council appoints Legal Assessors to sit with its fitness to practisecommittees to advise on questions of law and procedure in proceedings before them,in accordance with paragraph 5 of Schedule 3 to the Dentists Act 1984. The Council isseeking to increase the number of Legal Assessors on its approved list.

Legal Assessors may not involve themselves in any proceedings before the Council’sfitness to practise committees, nor in appeals against decisions by those committees.Applicants must be aged 65 or under at the time of appointment.

Legal Assessors may be asked to sit for half days, single days or sessions of between 2and 10 days. All cases are heard at the Council’s offices in London W1. Hearing daysare paid at the daily rate set for Recorders by the Department for ConstitutionalAffairs; with additional reading fees as appropriate.

The primary qualification is that a Legal Assessor shall be a barrister, advocate orsolicitor of at least 10 years’ standing; but candidates should in addition be able todemonstrate not less than 5 years’ practice of criminal law. Previous service as a LegalAssessor, Chair of a Tribunal, or Recorder will be a distinct advantage.

An application form for appointment as a Legal Assessor should berequested in writing from Tom Peplow at The General DentalCouncil, 37 Wimpole Street, London W1G 8DQ; or by fax on 0207224 3294; by email to [email protected] or by calling 020 78873835. The closing date for the return of completed applicationforms is 15 October 2004.

The General Dental Council is committed to promoting and developingequality and diversity in all its work. Applications from all sections of thecommunity are welcomed.

GENERAL DENTAL COUNCIL

www.gdc-uk.org

GENERAL DENTAL COUNCIL


Retainer letters are also known asletters of engagement and probablyone of the most importantdocuments in a solicitor’s defenceagainst a claim of negligence. Theyare, if properly written andcomprehensive, fair proof that thesolicitor has done the work aspromised. Below we have outlinedwhat should be set out in a retainerletter, which will hopefully vindicateyou, should you be hit with anunfair claim of negligence.

Cost is one of the main underlyingreasons for negligence claims beingbrought against a solicitor. Youshould always be realistic when youquote costs in the retainer letter,and it is better to overestimate thanunderestimate what the end, ormonthly, fee will be. If you cannotestimate a price due to the fact thatthe work is too complicated toassess, then this fact should beoutlined within the retainer letter,along with a proper breakdown of costs which will and could be incurred.

Timing is another big cause ofnegligence claims. As with costs, ourbest advice here is to be completelypractical. Do not promise yourclient that you can do a job in twomonths just because that is whatthe client wants to hear. If the jobwill take three months at the most,then the retainer letter shouldstipulate that, in your opinion, thework undertaken will take ‘at least three months’.

The client’s instructions, and yourinterpretation of them, should alsobe set out in the retainer letter.You need to list everything youbelieve you will be undertaking on behalf of your clients, and also,

the case of what work is beingundertaken. It is the lawyer’sresponsibility to ensure the clientfully understands everything setout in the retainer letter.

The retainer letter should be ascomprehensive as possible andwritten in simple language.Should a claim be broughtagainst you and your practice fornegligence, then your retainerletter will make up a key part ofthe defence, and as such needs tobe carefully considered.

This column was prepared by theAlexander Forbes Professions riskmanagement team.

This article first appeared in ‘TheGazette’, the journal of the LawSociety of England and Wales,99/40 17 October 2002.

Retainer Lettersjust as importantly, any areaswhich you will not be working on.It is often the case that thesolicitor, following an initialmeeting with the client, will thinkthe client has instructed him fully.However, often the client has notstipulated exactly what he wantsdoing and will assume alternativeareas of the law are also beingcovered. For example, if tax is notyour area of expertise when youare drafting a will, let the clientknow in the retainer letter youwill not be covering any tax issuesin the work you are undertaking.

Legalese should also be avoided asmuch as possible in the retainerletter. The majority of clients willnot understand the language ofthe law and therefore, can easilymisconstrue what is being set outin the retainer letter, especially in

Les Allamby examines newrestrictions in social securityentitlements which, althoughprimarily aimed at workers from theEuropean Union accession states,affect all social security claimants.

On May 2004, the European Unionexpanded from fifteen to 25 memberstates when the Czech Republic,Estonia, Hungary, Latvia, Lithuania,Poland, Slovakia, Slovenia, Cyprus andMalta joined the European Union.

The Accession Treaty allows memberstates to restrict the right of accessioncountry nationals (except those fromCyprus or Malta) to freedom ofmovement as workers for a transit-ional period of up to seven years.

The UK government has modifiedarrangements for eight of the tenaccession states (the A8) by setting upa registration scheme requiringaccession state nationals to registerfor employment within a month ofstarting work.

The United Kingdom has alsoamended the habitual residence testfor certain social security benefits. Ineffect, a claimant must now be bothhabitually resident in Northern

Social SecurityNew arrangements for EU migrant workers

Ireland and also have a right to residein the common travel area (ie theUnited Kingdom, Republic of Ireland,Isle of Man and the Channel Islands).In addition, the right to reside test hasbeen introduced for Child Tax Creditand Child Benefit. The new rules areprimarily aimed at nationals from theaccession states although they affectall social security claimants.

The habitual residence test

A claimant is not entitled to IncomeSupport, Income-based Jobseeker’sAllowance, Pension Credit or HousingBenefit unless s/he is habituallyresident (or treated as such) in thecommon travel area. A claimant whodoes not satisfy the habitually residenttest is classed as a ‘person fromabroad’ and, alongside those definedas ‘subject to immigration control’, isexcluded from entitlement. Thehabitual residence test is applied to allclaimants of the benefits outlinedabove (but not partners ordependants) including UK citizens.

From 1 May 2004, the test has beenamended so that, in order to satisfythe habitually resident test, a claimantmust also have a ‘right to reside’ inthe common travel area.

Certain groups are automaticallytreated as being exempt from the test.The groups exempt include:• European Economic Area nationals

and their dependants who are workers under EC Regulations 1612/68 or EC 1251/70;

• EEA nationals who have a right to reside in the UK under EC Directives 68/360 or 73/148. This right depends on the person being a worker.

• people who have been granted refugee status or exceptional leaveto remain in the UK;

• people who have been deported, expelled or compulsorily removed

from another country to the UK;

• accession nationals registered under the Home Office Scheme who are working in the UK for an authorised employer.

European Economic Area nationalsare people from the 25 EuropeanUnion member states plus Iceland,Lichtenstein and Norway. Switzerlandis also covered even though it has notjoined the EEA.

The term habitually resident has notbeen defined and the words must begiven their ordinary and naturalmeaning. What has emerged fromcase law is that there is no definitivelist of factors or time limit thatdetermines whether or not a claimantis habitually resident in the UK. It is aquestion of fact to be decided by asocial security decision maker or onappeal by a tribunal.

From case law it is possible to divine anumber of pointers. To be habituallyresident, a claimant must have asettled intention to reside. This doesnot necessarily have to be for apermanent period. For a claimantwho has never been in the UnitedKingdom, this means actual residencefor an appreciable period of time (seeNessa v CAO 1999) (HL). Morerecently, a Social SecurityCommissioner’s decision in Britain, CIS4474/2003, suggested that anappreciable period will normallymean between one and three monthsand should not normally exceed thislength of time. In effect, the longer aclaimant has been in the UK, thestronger the claim will be to establishhabitual residence. Other factors thatwill strengthen a claim include anydurable ties with the United Kingdom(for example, family or friends),bringing over possessions, doingeverything necessary to establish tiesin advance. All relevant factors need



to be taken into account whendeciding whether habitual residencehas been established.

The right to reside

To satisfy the habitual residence testfor Income Support, Income-basedJobseeker’s Allowance, PensionCredit, Housing Benefit, Child TaxCredit or Child Benefit after 1 May2004, a claimant must have a right toreside in the United Kingdom.The regulations provide no statutorydefinition of the right to reside.Nonetheless, domestic legislationand European Community directivesset out that the following groups are covered:

• UK nationals and others who have a right of abode in the UK under Section 1 of the Immigration Act 1971;

• citizens of the Republic of Ireland, Channel Islands and Isle of Man who have a right to reside under their own legislation;

• third country nationals who have a right to stay in the United Kingdom under leave to enter or remain in the United Kingdom under certain provisions of the Immigration Act 1971.

This will generally cover peoplewhose immigration status is notsubject to ‘no recourse to publicfunds’. For example, people grantedindefinite leave to remain,exceptional leave to enter or remain,humanitarian protection ordiscretionary leave should all be covered.

The rights of nationals from theother EEA member states andSwitzerland will depend on theeconomic category into which aperson falls. The following have aright to reside:

• a worker for the purposes of Regulation 1612/68 or Directive 68/360;

• the self-employed who are providing a service on a commercial basis and covered by Directive 73/148;

• work seekers have the right to move freely within the European Union to search for work for at least six months and longer providing they continue to genuinely seek work.

In addition, retired or incapacitatedworkers who have worked in the UKare entitled to remain if they satisfycertain conditions contained inRegulation 1251/70.

Nationals of Accession States

The Accession Treaty allows memberstates to derogate from Articles 1 to6 of Regulation 1612/68 coveringfreedom of movement of workers.In February 2004, the governmentannounced its intention to introducespecific arrangements to cover all theaccession state countries (A8nationals) except Malta and Cyprus.

The government has decided tointroduce a new workers registrationscheme for A8 nationals for the nextfive years. As a result, A8 nationalsmust register their employmentwithin one month of taking up a job(see Peter Fitzmaurice’s article, WritJune 2004). Registration is requiredfor a period of twelve monthsuninterrupted employment. Timespent working legally in the UK priorto 1 May 2004 can count towards thetwelve month registration period.An A8 national who has workedlegally for twelve months does nothave to register.

A worker who is registered underthe Home Office scheme andworking for an authorized employerin the UK will be treated as having aright to reside and will be able toclaim Working Tax Credit, Child TaxCredit, Child Benefit, HousingBenefit, Income Support and Pension Credit.

A8 nationals who are still required toregister (ie who have worked for lessthan twelve months withoutinterruption) and lose their job willno longer be treated as having aright to reside and will not beentitled to Income Support, Income-based Jobseeker’s Allowance,Housing Benefit, Child Tax Credit,Child Benefit or Pension Credit.After registration, for twelvemonths, an A8 national will beentitled to the above benefitsproviding s/he satisfies the otherconditions attached to the benefits.Family members will also have theright to the income related benefitsoutlined. Family members for thispurpose include a spouse, children orgrandchildren under 21 ordependent on the worker and alsodependent parents, grand-parentsand great grandparents.

Work seekers from A8 countries who,if they found work, would have toregister, will not be treated as having aright to reside in the UK and will notbe entitled to the benefits outlined above.

A question arises as to whether thenew rules are compatible with existingEuropean Community law. TheAccession Treaty does not derogatefrom EC Regulation 1408/71. Inaddition, there is no derogation fromArticle 7(2) of 1612/68 which entitlesmigrant workers to the same tax andsocial advantages as nationals in thehost member state. As a result, an A8national who has exercised freedom ofmovement as a worker may be able torely on these provisions to establishentitlement to means tested benefitsand Child Benefit. There is norequirement to have worked in amember state for at least twelvemonths before being able to utilise theprovisions contained in Regulation1408/71 and Article 7(2) of 1612/68.

Conclusion

The new rules have made an alreadydifficult area of law even morecomplex. Advisers need to understanddomestic and European law whendealing with the entitlement ofEuropean Union migrant workers tosocial security benefits.

Migrant workers from the newaccession states face particulardifficulties accessing entitlement to keybenefits if they become unemployedduring the first twelve months whenregistered for work. This is likely tolead to a number of legal challenges.The Law Centre will be happy toprovide advice on migrant workers’entitlement to social security benefits.

33

Tax credit briefings

The Law Centre has produced aseries of briefings on tax credits,with support from the InlandRevenue. Free copies have beendistributed to full and compre-hensive associate members of theLaw Centre. Additional copies areavailable at the cost of £4.95including P&P. Order from:Publications, Law Centre (NI), 124Donegall Street, Belfast BT1 2GY.Alternatively, look them up onthe publications page ofwww.lawcentreni.org.


Government has announced the start of aconsultation process on a Single EqualityBill for Northern Ireland. The concept of aSingle Equality Bill was originally advancedin the Assembly’s First Programme forGovernment, which was published in 2001.This envisaged that a Single Equality Billwould harmonise existing equality andanti-discrimination legislation and embracenew aspects of the equality agenda, suchas age and sexual orientation.

Speaking at the launch in ParliamentBuildings of a consultation document, theUnder Secretary of State, Mr John Spellar said:

"This process of consultation on a SingleEquality Bill, is a very importantdevelopment that will ultimately providethe people of Northern Ireland with clearand concise anti-discrimination and equalitylaw, in one legal instrument."

The Minister, stressing that publicconsultation was the key to a successfulSingle Equality Bill, said "This consultationdocument does not provide definitiveproposals. No decisions on the content ofthe Bill will be taken in advance of the typeof comprehensive and inclusiveconsultation process that we are embarking on today’’.

He paid tribute to the panel of academicand legal experts, who had providedinvaluable advice and assistance to theDepartment, on a range of general andspecific issues relating to the Bill. He alsothanked the main political parties andrepresentatives from employers and serviceproviders organisations, the trade unions,the churches, equality interests and theEquality and Human Rights Commissions,for their invaluable contribution to thepreparation of the consultation document.

Mr Spellar added: "We have come a verylong way since the introduction of equalpay legislation in 1970 and we havelearned a great deal along the way. TheSingle Equality Bill now gives us theopportunity to harness all that experienceand will serve the people of NorthernIreland for many years to come."

Welcoming the publication, Evelyn Collins,Chief Executive of the Equality Commissionsaid, “It has always been the view of theEquality Commission that equality lawsshould be brought together in a single act.

Our experience of operating different legislation in five distinctequality areas has reinforced our belief that a single law willbest serve equality for all, and address the interests of everyone– employers and employees, providers of services andconsumers of those services.”

The consultation process will run until 12th November 2004 andcopies of the consultation document are available from theSingle Equality Bill Team, Office of the First Minister andDeputy First Minister, Room E.3.18, Castle Buildings, Belfast, BT43SR, Tel: 028 9052 3433. The document can also be accessed onthe website of the Office of the First Minister and the DeputyFirst Minister at www.ofmdfmni.gov.uk/equality

Single Equality Bill Consultation Launched

ADVERTISEMENT


New Teleworking GuideModern information and communicationtechnologies are rapidly changing the traditionalway in which people and businesses work. Onesuch area is teleworking. The Department forEmployment and Learning has recently issuedguidance on telework arrangements for employersand employees.

Telework uses information technology to enablework, which could also be performed at theemployer’s premises, to be carried out away fromthose premises, on a regular basis, usually in theworker’s home.

These arrangements have the potential to bring awide range of benefits to both employers andemployees and introduce flexibilities that can also enable employees to achieve a better work-life balance.

A spokesman for the Department said:"Teleworking can enable companies and publicservice organisations to modernise the way theyorganise their business and help employees betterreconcile work and home life. The guidancepublished will enable management and employeerepresentatives to draw up company specificpolicies on teleworking. Having policies whichmeet both employer and employee needs, is keyto implementing telework successfully. Theguidelines are designed to help both get to gripswith the practical issues around implementing andmanaging teleworking."

Among the issues for consideration are:1. Contractual arrangements for distance workers; 2. Health and safety arrangements; 3. Provision of equipment and remote access; 4. Information security; 5. Expenses and allowances; 6. Personal support.

There is no definition of teleworking in UK law.Telework is voluntary for the worker and theemployer concerned. It is important that bothreach agreement on how they will regulate thework they do, in order to make sure that thearrangement works effectively.

A non-binding framework agreement onteleworking has been developed at European levelby employer and employee organisations, as partof the Social Dialogue process.

The guidance on teleworking is accessible on theDepartment’s website at,http://www.delni.gov.uk/er under "publications". Copies of the guidance are also available, free ofcharge, from Employment Rights Branch, AdelaideHouse, 39-49 Adelaide Street, Belfast, BT2 8FD.

Telephone 028 9025 7580 Facsimile 028 9025 7555.

DRAFT RULES OF PROCEDURE FORINDUSTRIAL TRIBUNALS AND THEFAIR EMPLOYMENT TRIBUNAL

The Department for Employment and Learning (DEL) isseeking the views of interested parties on ‘Phase 2’ of itsproject to update the Regulations and Rules of Proceduregoverning Industrial Tribunals and the Fair EmploymentTribunal for Northern Ireland.

The new Rules of Procedure are due to come intooperation on 3rd April 2005. The original intention hadbeen to bring these Rules into effect simultaneously withGreat Britain in October 2004. However, due to thecomplexity of the legislation, as well as to a number ofoperational constraints, the Department has opted todefer their introduction by 6 months to 3rd April 2005.This move should facilitate the Rules’ smoothimplementation.

The consultation document contains further informationabout the proposed new legislation which is designed to

• further strengthen tribunals’ ability to deal with cases justly and effectively;

• build into tribunal processes measures to encourage employers and employees, before submitting a tribunal application, to attempt to resolve employment disputes in the workplace; and

• recast the legislation in a manner that is more ‘user-friendly’, with greater clarity in the language used.

Comment is also sought on new tribunal forms.

The consultation document in addition includespreliminary Equality and Regulatory Impact Assessments,together with a questionnaire for responses.

The consultation document may be downloaded from theConsultation and Debate area of the Departmentswebsite atwww.delni.gov.uk/consultDebate/viewdetails.cfm?conID=74or by following the link fromwww.delni.gov.uk/resolvingdisputes. Anyone may registerto download the consultation and, in so doing, gainaccess to a questionnaire allowing a response to besubmitted online.

The document may be made available in alternativeformats upon request.

Replies to the consultation should be posted or e-mailedbefore the consultation’s closing date of 20th October to:

Dr Alan ScottEmployment Rights BranchRoom 203Department for Employment and LearningAdelaide House39-49 Adelaide StreetBELFAST BT2 8FD

Tel: 028 9025 7542E-mail: [email protected]


The Equality Commission is calling on everyone, including all smallbusinesses, disabled people, qualifications bodies and lawyers, to respondto guidance outlining new employment rights for disabled people from1st October 2004.

The Commission, in partnership with the Disability Rights Commission inGreat Britain, has drawn up two draft Codes of Practice supportingchanges to the employment provisions of the Disability Discrimination Act(DDA) which will be implemented in October.

The Codes of Practice produced by the Equality Commission are: -

(a) DDA Code of Practice Employment and Occupation (b) DDA Code of Practice Trade Organisations and Qualifications Bodies

The Codes take account of changes to the Disability Discrimination Actthat reflect the requirements of the European Union's EmploymentFramework Directive (Council Directive 2000/78/EC of 27 November 2000),which established an anti discrimination principle of equal treatment inrelation to disability (as well as a number of other grounds) across allMember States.

From 1 October 2004 service providers will also have new duties under theDDA. They may have to make ‘reasonable adjustments’ to the physicalfeatures of their premises, if these features make it impossible, orunreasonably difficult, for disabled customers to gain access to goods orto make use of facilities or services on offer. This includes shops, banks,hotels, restaurants, parks, leisure centres, doctors and churches – andthat’s just a few examples.

Launching the consultation Dame Joan Harbison, Chief Commissioner ofthe Equality Commission said, “Although disabled people have beenprotected from discrimination in employment since the DDA was enactedin 1996, these latest changes will provide greater protection for disabledemployees. From 1st October disabled people employed by smallbusinesses and those working as officers in the fire, police and prisonservices, will – for the first time – be protected by the Act. Qualificationsbodies and trade organisations will also assume much broaderresponsibilities under the DDA.”

“The draft Codes have been produced to help people understand themajor changes taking place to improve disabled people’s rights at work.One is aimed at employers, the second is aimed at Qualifications Bodiesand Trade Organisations. If you will be affected by the new laws in anyway and have a contribution to make, it is important that you respond tothe Commission’s consultation so that we can make sure the Codes arecomprehensive and workable.”

The consultation period will run to 10 September. Copies of the draftCodes of Practice are available from the Commission’s websitewww.equalityni.org.

The Equality Commission has also produced a range of supportingpublications to help disabled people and employers to understand theirrights under the DDA. These can be obtained from the Commission’swebsite or by contacting the Equality Commission directly at: -

7 – 9 Shaftesbury Square, Belfast BT2 7DP

Tel. 028 90 500 600 Fax. 028 90 331 544 Textphone. 028 90 500 589 Email: [email protected]

36

ASSOCIATION VICTIMSMEDICAL ACCIDENTS:

SEMINAR on 16th September 2004

1.00 – 3.30 pm atLAW SOCIETY HOUSE

Topics:NEGLIGENCE OF GPs

by Dr. Martin Shutkeverand

HUMAN RIGHTS IN CLINICALNEGLIGENCE CLAIMSby John O’Hara QC

COST: £10.00 for non AVMAmembers

Send cheques to Paddy MullarkeyPayable to AVMA Services Ltd, atCampbell Fitzpatrick, Solicitors,

51 Adelaide Street, Belfast.

Consultation on majorchanges to employment

of disabled people

IndependentCase Examiner The Independent Case Examiner, MsJodi Berg, has issued her thirdAnnual Report on her findings intocomplaints made about the work ofthe Social Security Agency and theChild Support Agency in Northern Ireland.

The Independent Case Examinerinvestigates cases where Agency customers have gone through theexisting complaints procedures andare still dissatisfied.

During the 2003/2004 business year,the Independent Case Examinerreceived 27 complaints relating tothe Social Security Agency, 15 ofwhich were accepted forinvestigation. The most commonproblems complained aboutincluded staff attitude,correspondence, failure to take theappropriate action, the handling ofappeals, the failure to supplyinformation and complaint handling.

In the same year, the IndependentCase Examiner received 39complaints about the Child SupportAgency in Northern Ireland, 16 ofwhich were accepted forinvestigation. The most commonservice area causing complaints,during the reporting year, related todelays in the calculation of themaintenance assessment.


EMPLOYMENT LAWYERS’ GROUP(NI)

Sec. John O’Neill, Thompsons McClure Solicitors,171 Victoria Street, Belfast

E-mail: JohnO’[email protected]

Chairperson Adam Brett

Hon. Treasurer Orlagh O’Neill

Speaker: Peter Schofield, EEF Director of Employment & Legal Affairs, London

Date: Friday 24 September 2004

Time: 1pm (tea coffee and sandwiches from 12.30pm)

Venue: Law Society House, Victoria Street, Belfast

Cost: Members £5, Non-members £10.

Attendance at this seminar will provide one hour's CPD entitlement

Lunchtime Seminar

Dispute Resolution Procedures - Statutory Disciplinary, Dismissal & Grievance Procedures

Website: www.legal-island.com/elg.htm

Booking forms and cheques, payable to The Employment Lawyers' Group (NI), should be sent to our Treasurer, Ms Orlagh O’Neill, Napier & Sons, Solicitors, 1-9 Castle Arcade, High Street, Belfast BT1 5DE.

Booking Form

Name

Firm

Address

I enclose remittance of

£

I enclose cheque for £20.00 made payable to ELG (NI)

Name

Firm

Address

Tel (work) E-mail

MembershipThe Employment Lawyers' Group welcomes new members.Membership fees are now due for 2004-05. Membership fee for theyear is £20. Please return the form below to our Treasurer, Ms OrlaghO'Neill, at the address cited above, with cheques made payable toEmployment Lawyers' Group (NI).

Membership Form

J O U R N A L O F T H E L S N I J U L Y / A U G U S T 2 0 0 4 38

Legal Studies forLegal AssistantsThe School of Law at Queen’s, inconjunction with SLS LegalPublications (SLS), runs anintroductory course in legal skillsfor those who work with law butwho do not have a legalqualification. The course is aimedprimarily at legal secretaries andsolicitors’ clerks although itwould be of interest to anyonewhose work has a legaldimension. Taught by a smallgroup of lecturers from the LawSchool, the course aims to clarifycore legal principles and enhancethe legal knowledge andexperience participants havegained through their work. Thecourse will run from September2004 to May 2005 culminating ina small graduation ceremony. Itinvolves one weekly two-hourclass held on Tuesdays from 5-7pm and it runs for twenty-fourweeks with Christmas and Easterbreaks. The classes are informal innature and students will berequired to complete a numberof assessment exercises. Thecourse is divided into six parts:-

The Legal SystemContract Law and Tort

Criminal LawFamily Law and InheritanceAspects of Commercial LawLand Law and Conveyancing

For further information and anapplication form please contact:

SLS Legal Publications (NI)School of Law

The Queen’s University of BelfastBelfast BT7 1NNTel: 028 90975224 Fax: 028 90326308

DX: 4330 NR Belfast 34

We look forward to meeting you in September!

ALTERNATIVE DISPUTE RESOLUTIONand

MEDIATION TRAINING COURSE

Wednesday 15 September – 27 October 2004

at the Institute of Professional Legal Studies, 10 Lennoxvale, Malone Road, Belfast

SLS in conjunction with the Law Society is pleased to announce theseventh repeat of this very successful course which provides training inadvanced negotiation, dispute resolution and mediation. The course willbe delivered by experienced mediators and skills trainers led by BrianSpeers (Carnson Morrow Graham), David Gaston (Gaston Graham) andAlva Brangam QC and will combine lectures with experiential role playand analysis.

Response to this course has been immensely enthusiastic and those whohave taken part to date have found the course to be of great interest,value and enjoyment.

The course is open to both solicitors and barristers but numbers arelimited to 15 participants.

The course will run for 6 evenings (15, 22, 29 September, 6, 13 and 20October at IPLS from 6.00-9.00pm). There is also an all day Saturdayprogramme on 23 October from 10am–4.00pm which it is essential toattend and it is expected that people will be committed to attend thecomplete programme. There will be a review of the course andpresentation of certificates on 27 October.

This course provides a minimum 18 hours of CPD training and costs £725.

To reserve your place - please post, phone or fax:SLS Legal Publications (NI), School of Law, Queen’s University, Belfast BT7 1NN

Tel: 028 9097 5224 / Fax: 028 9032 6308 / DX 4330 NR BELFAST 34

Please reserve ___ place(s): Cost £725.00 per person

NAME(S)

ADDRESS

TEL FAX DX

Payment method:

Cheque made payable to “SLS Legal Publications (NI)”

Credit Card: Visa Mastercard Switch Iss No:

Other

Card number: Expiry Date:

Signature Date:

BOOKING FORM


Please note new telephone number for SLS Legal Publications:

028 9097 5224Our fax number remains unchanged.

SLS Legal PublicationsSchool of LawQueen’s UniversityBelfastBT7 1NN

Miscarriagesof Justice

Saturday 23 October 20049.30 am – 1.00 pm

The Canada Room, Queen’sUniversity Belfast

SPEAKERSSeamus Treacey QC, SC

Joe Rice: JJ Rice & Co, SolicitorIvor Morrison: Assistant Director of

Public ProsecutionsMichael Allen: Commissioner:

Criminal Cases Review CommissionClive Harding: Investigations

Adviser: Criminal Cases ReviewCommission

Angela Flower: Legal Adviser:Criminal Cases Review Commission

The objective of this seminar is toraise awareness of the role of theCriminal Cases Review Commission

in investigating allegedmiscarriages of justice in Northern

Ireland. Information will beprovided about the powers and

procedures of the Commission andthese will be illustrated by means

of a case study. In addition tospeakers from the Commission, JoeRice, Solicitor, Seamus Treacy QC, SC

and Ivor Morrison, AssistantDirector of Public Prosecutions willprovide a local perspective on the

work of the Commission and speakof their experiences in representingapplicants before the Commission,

taking appeals to the NorthernIreland Court of Appeal following

referrals by the Commission,defending such appeals, and

judicially reviewing decisions by theCommission not to refer cases

to the Court of Appeal.The seminar will be of interest to

all local practitioners who deal withcriminal law issues and will provide

3 hours of CPD.

For more details and to obtain abooking form, please contact:

SLS Legal Publications (NI)School of Law

Queen’s University Belfast BT7 1NN

Tel: 028 9097 5224 Fax: 028 9032 6308

DX: 4330 NR Belfast 34

PROBATE PRACTICE COURSE forLEGAL ASSISTANTS

Course Tutor: Sheena Grattan BL, Senior Lecturer in Law, QUB

This 7 week course is designed for legal assistants, clerks or secretaries whoare involved in aspects of probate practice within their offices. Theemphasis will be as practical as possible, equipping participants to dealmore confidently with the “routine” aspects of their work whilehighlighting some of the more unusual and interesting problems that canface the probate practitioner.

This course is not intended for solicitors.

Topics to be covered include:• The will – its preparation, execution, alteration and revocation• Entitlement under the intestacy rules• Administration that does not require a grant• Extracting the grant of representation• Collection of assets, payment of debts and distribution of the estate• Common challenges to wills

During the course participants will follow a file from the preparation andexecution of the will through the taking out of the grant of probate andadministration of the estate, to the ultimate distribution and thepreparation of estate accounts. Participants who successfully complete theweekly assignments and attend regularly will be awarded a certificate.

Numbers will be limited to 20 and the course will run for 7 weeks fromThursday 30 September 2004 to Thursday 11 November at Queen’sUniversity from 5–6.30 pm. The cost per person will be £295. Bookings willbe taken in order of receipt.

The course has been developed by Sheena Grattan, who is a practisingbarrister and senior lecturer in the School of Law. She is also the author of“Succession Law in Northern Ireland” which is the recognised authority forall practitioners working in this field. Sheena herself will be taking thecourse and her vast experience in teaching both undergraduates andmembers of the legal profession will make this a very lively and interesting course.

Please contact SLS for an application form:

SLS Legal Publications (NI) School of LawQueen’s University BelfastBelfast BT7 1NNTel: (028) 90975224 Fax: (028) 90326308 DX No: 4330 NR Belfast 34

Tel: 028 9097 5224Fax: 028 9032 6308DX 4330 NR Belfast 34


NEW EU LAW ONENVIRONMENTALASSESSMENT

Citizens in Northern Ireland willsoon be able to have moreinfluence on decisions which willaffect their environment. A newpiece of EU law, the Directive onStrategic Environmental Assessment(SEA), which has now beentransposed by the United Kingdominto domestic law, will ensure thatthe environmental effects of a widerange of public plans andprogrammes must be assessedunder improved planningprocedures. The distinguishingfeature of this Directive is that amember of the public mayinfluence the decision-makingprocess at an earlier stage thanpreviously provided for under EU law.

Background

Prior to the SEA Directive,environmental impacts wereassessed at project approval levelunder the Environmental ImpactAssessment Directive (EIA). Theactual EIA of those projects came inat stage in the decision-makingwhen important commitments hadalready been made. The SEADirective now allows citizens toinfluence decisions at a muchearlier stage. The European Councilformally adopted the SEA Directiveon 5 June 2001* and it has nowbeen transposed into national lawby the United Kingdom.

The SEA Directive

The main elements of the newDirective are as follows:

• When drawing up relevant plans or programmes, public authorities will have to make anenvironmental report to identify, describe and assess their likely effects on the

AGE RELATED PAYMENTSPROPOSALS LAID New legislation that will provide fora £100 payment this year to eligiblepensioner households in NorthernIreland with someone aged 70 orover has been laid at Westminster.

It is intended that the new moneywill be paid later this year alongwith the Winter Fuel Payment. Thismeans that eligible pensionerhouseholds with someone aged 70or over will get up to £300(including the £200 Winter FuelPayment) in 2004/05 and eligiblepensioner households with someoneaged 80 or over will get up to £400(including the enhanced £300Winter Fuel Payment). To qualify forthe payment, people must beordinarily resident in NorthernIreland on at least one day of theweek 20-26 September 2004 and be70 or over on or before 26September 2004. The payment is notliable for income tax and will notaffect any other social securitybenefits or tax credits. There is alsoa power in the Order so that, ifcircumstances warrant it, regulationscan provide for future paymentswhich may be made to people over60, for example, in specified agegroups. The draft Order which issubject to approval is obtainablefrom The Stationery OfficeBookshop, 16 Arthur Street, Belfast,BT1 4GD. It is also available on thewebsite of the Department forSocial Development atwww.dsdni.gov.uk

The European Lawyerenvironment. Amongst the effects to be covered are those on biodiversity, fauna and flora, soil and water, climatic factors, landscape and on human health.

• A member of the public or an environmental authority may give an opinion on the environmental report, the draft plan or programme. All results are taken into account in the course of the planning procedure.

• The public is informed of the decision and the way in which it was made following adoption.

• If a decision will have effects on another EU Member State, that Member State shall be informed and may make comments which will be integrated into the national decision making process.

• The areas covered by the SEA Directive include: road building plans, local waste management, land use, agriculture, water management, tourism industry and energy.

The SEA Directive is important in twokey respects. First, it lends greatertransparency to the planningprocedure. Second, and perhaps ofgreater practical effect, it gives thepublic a greater voice at an earlystage of the decision-making process.The practical effects of the Directivehave been in force since 21 July 2004.For further information, visit theEnvironment Directorate-General ofthe European Commission atwww.europa.eu.int.

FIONNUALA CONNOLLY BL

*Directive 2001/42/EC of theEuropean Parliament andCouncil.

Eight other Member Stateshave now transposed theDirective. They are: Cyprus,Czech Republic, Denmark,Ireland, Latvia, Lithuania,Malta, Slovenia and the UK.

To advertise in the WritIf you wish to advertise in theWrit please contact Karen Irwinfor rates, specification and copydeadlines at:

Citigate NI Public Affairs Ltd128a High StreetHolywoodBT18 9HW

Tel: 028 9042 8899Fax: 028 9042 8877Email: [email protected]


The Department for Culture, Arts and Leisure hasannounced the publication of a consultationdocument on a proposal to introduce legislation togovern safety at sports grounds in Northern Ireland.The proposed new legislation relates only to thehealth and safety of spectators and will not addressspectator behaviour.

At present there is no specific legislation in NorthernIreland relating to spectator safety. However, thislegislation is intended to bring us into line with therest of the UK by introducing a safety certificationscheme for larger sports grounds and spectator stands.

It will give powers to local District Councils to issuesafety certificates, enforce the conditions of thesafety certificates and, if necessary, issue prohibitionnotices. Valid certificates would be required not onlyfor sporting events but also for any other publicevent held in the sports grounds.

Get to know the acronym UKAWJ, because it stands for a new and potentially very powerful organisation, whichwas formed in June 2003. Out of a potential membership of about 190 the UKAWJ now has 95 members, at alllevels of the judiciary and from England, Wales, Scotland and Northern Ireland. It can therefore justly claim to be atruly national organisation.

PurposeThe Association was formed and is organised for the purpose of promoting greater understanding and betterresolution of legal issues facing women and issues concerning women judges, and in particular;• To encourage co-operation and collaboration among women judges;• To contribute to the understanding and resolution of legal issues facing women;• To increase understanding of the broad range of social, economic, psychological and cultural factors that

influence women affected by the court system;• To increase understanding about women judges, their numbers, the process by which they are selected, the

barriers which may interfere with their selection, with a view to achieving a judiciary which more accurately reflects the population it serves;

• To increase understanding of human rights law and the role of the judiciary in implementing that law to promote and protect the rights of women on an equal basis.

The UKAWJ and solicitorsMembership of the Association is, unsurprisingly, open to anyperson who holds or has retired from a permanent or salariedjudicial post. But of more interest to women solicitors, any personwho supports the objectives of the Association may be elected by the Executive Committee as a supporting member.

Indeed the Association has offered to help anyoneconsidering applying for judicial appointment. If youwould welcome an informal discussion with an UKAWJmember; which will be treated in confidence, pleasecontact Mrs B Kelly, Resident Magistrate at Laganside Courts, 45 Oxford Street, Belfast, BT1 311.

The United Kingdom Association of Women Judges

Proposed new safety at sports grounds legislationThe certificates would incorporate spectator viewingcapacities, entry and exiting arrangements, safetymanagement arrangements and contingency plans.

The Department also considers that there should be abody to oversee the implementation of this legislationand to ensure that the same standards are appliedacross Northern Ireland. It would also provide adviceand guidance to all interested parties, includinggoverning bodies of sporting organisations, clubsand the District Councils responsible forissuing the safety certificates.

The consultation period will endon 1 October 2004. TheConsultation Document isavailable on theDepartment of Culture,Arts and Leisure’swebsite atwww.dcalni.gov.uk


Treatment of CommissionsGuidance for Solicitors

LAW REFORMADVISORY

COMMITTEE ANNUALREPORT

The Law Reform AdvisoryCommittee for Northern Irelandhas issued its 14th AnnualReport, covering the period from1st January 2003 to 31stDecember 2003.

During the year the Committeecompleted Reports onFormalities of Contracts relatingto the Sale of Land and the Rulein Bain v Fothergill (LRAC No 12)and Third Party Discovery in CivilProceedings (LRAC No 13). Italso issued Discussion Papers onNullity of Marriage (No 10) andLeasehold Covenants in Restraintof Alienation (No 11). Work wasalso ongoing in relation tounincorporated associations,commonhold and separaterepresentation of children inprivate law proceedings underthe Children (NI) Order 1995.

A copy of the Report is availableat www.olrni.gov.uk/advisory_committee

MEMORIAL EVENT FORPROFESSOR STEPHENLIVINGSTONE

On Saturday 11th September2004 at 11.30 a.m. a thanksgivingevent for the life and work ofStephen Livingstone will be held.It will take place in the UnionTheological College building at108 Botanic Avenue, Belfast(opposite the Law SchoolBuilding in University Square –directions at www.union.ac.uk/).

Stephen was reported missing on20th March this year and theevent is planned as anopportunity for family, friendsand colleagues to remember andcelebrate his many contributions.Everyone is welcome.

Further details are available [email protected]

Solicitors are all well aware of theestablished principle that asolicitor must not make a secretprofit or benefit from transactionson behalf of clientsthis isreflected in Regulation 11 of theSolicitor’s Practice Regulations1987, which read, “a solicitor shallnot, without the knowledge of ordisclosure to his client, make orreceive any secret profit orcommission in connection with orarising out of the business of that client.”

The general principle is repeated inthe Society’s Financial ServicesRegulations 2001 in relation toexempt professional activities asdefined by the Financial Servicesand Markets Act 2000. However,there is a distinction between themanner in which commissions andprofits arising as a result of afinancial services or regulatedbusiness must be handled by the solicitor.

In relation to the former, it issatisfactory to indicate to the client that the profit or commissionhas been received; to show sameon a Statement of Account and toset it off (if appropriate) againstprofessional fees and outlays incurred.

In relation to the latter, the

commission may only be retained ifthe solicitor has the clientsinformed consent in each set ofcircumstances - a blanket authorityor negative consent is insufficient.If consent is not forthcoming thecommission must be paid over tothe client.

Following enquiries from a numberof members, Senior Counsel’sOpinion has been sought in relation to:-

a) Stockbrokers’ commissionon the sale of investments and the administration of estates; and

b) Introducer’s commission for investment business- is this a commission for which the solicitor is accountable pursuant to the Financial Services arrangements or a referral fee where the general accountability principle arises?

Senior Counsel has advised that anycommission or payment which arisesout of a regulated activity pursuantto FSMA 2000 by a party other thana solicitor, must be accounted for inaccordance with the FinancialServices Regulations. This includescommissions received from stock-brokers and introducer’s commission- there is no distinction in themanner in which a referral fee anda commission should be treated.


SLS Legal Publications (NI) 2004.303 pp. Price £60 + £1.50 p&p

Debt recovery practitioners have fora dozen years had the benefit ofbeing able to refer to “NorthernIreland Personal Insolvency” byformer Bankruptcy Master, John MHunter. A text on the other avenueof debt recovery by way ofjudgment and enforcement hasbeen sadly lacking. David Capper’snew book, “The Enforcement ofJudgments in Northern Ireland” isadvertised as the firstcomprehensive text coveringjudgment enforcement in thisjurisdiction and certainly fits thebill. It is an academic work ratherthan a practical guide. It places thecurrent law in its historical contextwhile making proposals for change.It covers all aspects of theenforcement process, includingmoney judgments and orders forpossession of land and goods.

The book is both easy to read andinformative. By the author’s ownadmission, it has been a lengthyproject. Its publication is, however,timely in that it comes at a timewhen the Enforcement ofJudgments Office [“EJO”] itself,under Chief Enforcement OfficerTrevor Long, is implementing a“Growth & Change” Programme.The EJO has long been a target forcriticism in relation to delays.However it is clear that in an effortto improve quality of service,changes have been made, such asthe introduction of three BusinessProcess Teams which take casesfrom start to finish and furtherchanges are contemplated such asthe introduction of online casetracking and searching.

In his introduction, the authordraws a distinction between thosedebtors who “can’t pay” and thosewho “won’t pay”. He seems toindicate that insolvency proceedingsare appropriate only for the formercategory. However, in practicalterms creditors’ solicitors regularlyresort to bankruptcy proceedingsbecause of some of theinadequacies of the enforcement

“The Enforcement of Judgements in Northern Ireland”By David Capper

system, especially in the context ofdealing with the self-employed.Somewhat controversially theauthor criticises the first come firstserved priority system which goes tothe heart of the current legislation.He states that the diligence of onecreditor in getting to the front ofthe queue owes as much to luck asanything else. He describes debtcollection as an “unpleasantbusiness”. Those of us who strive tomake sure that Judgments are morethan pieces of paper and seek toobtain payment on behalf of clientsfrom those who seek to avoid theirresponsibilities would beg to differ.The current system rewards thosewho implement good credit controlprocedures and whose solicitorswork with efficiency to obtain “poleposition”. Instead the authorfavours a “fair shares” system.While the writer does not agreewith the author’s conclusions, his

analysis of this issue provides foodfor thought as do his views oninterest on Judgments and mortgagepossession cases among other issues.Master Napier in the Forewordrecognises that legislativeadjustments are needed. Thechanges being made in the EJO canonly be limited subject to the currentlegislation but the hierarchy in theOffice also seem to favour newlegislation. I have no hesitation inrecommending this book to theprofession. It is to be hoped that allof these calls for legislative changewill not fall on deaf ears and thatthe author’s admirable work will actas a further catalyst for change. If so,David Capper may find himselfinvited again to produce asupplementary work.

John ForsytheDiamond Heron

ADVERTISEMENT

Legal Appointments

Property Solicitor, Co Derry, 1 yr contract.Excellent opportunity has arisen to join a large public sector body. The ideal candidate should have atleast 3 yrs PQE in General Conveyance. Opportunity to go perm for the right person.

4 x Conveyancing Solicitor, Co Antrim / Co Down, £18-28K.Reputable firms wish to recruit a dedicated Solicitor with excellence in General Conveyancing. Superbopportunity to join well known busy firms. Suit 1-7 yrs PQE.

Criminal Solicitor/Barrister, Belfast, 7mth contract.Excellent opportunity has arisen to join a large public sector body. Experience in prosecuting andpresenting cases in Magistrates court essential. Suit 1-8 yrs PQE.

Senior Conveyancing Solicitor, Co Antrim, £23-30K.Superb opportunity has arisen to manage an expanding successful sub office. The ideal candidate willhave at least 3-9 yrs PQE in both Commercial and Residential Conveyancing.

Litigation and Matrimonial Solicitor, Co Down, £21k+.Busy client focussed practice seek a highly motivated and dedicated individual to help develop theMatrimonial & Litigation department. Suit 2yrs + PQE.

For more details contact Orla or Brona at BluePrint LegalAppointments on 028 9032 3333 or email legal@blueprintap-

pointments.com


The International NegotiationCompetition took place this year inParis from 9-10 July. With fourteenteams of post-graduate students invocational training from England, theUnited States, Australia, New Zealand,Canada, Singapore, the Republic ofIreland, India, Hong Kong andDenmark, Rosie McBurney and LisaCasey from the Institute were in exaltedcompany. Rosie and Lisa have justcompleted the Bar course and are to becalled to the Bar on 6 September 2004,and - from their performance in Paris -they have proven themselves possessedof daunting savoir faire to bargain theirway through the most factually andlegally complex cases that will cometheir way in practice.

The competition was held in the Centrede Recherches Historiques et Juridiqueson 9 Rue Mahler, just around the cornerfrom the Bastille. Les advocates Casey etMcBurney grappled with a problemconcerning the composition of amusical based on the life and loves ofAuguste Rodin. As the contestprogressed, the Institute team tradedterms on the performing rights, billingand merchandising royalties with

Pictured abovefrom left: KateMcKnight(Coach), RosieMcBurney, MartinO’Brien (Coach)and ElizabethCasey.

Right: Kate McKnight and Elizabeth Casey

COURT SERVICE NOTICE

Following the retirement of HisHonour Judge Brady QC, HisHonour Judge Burgess has beenassigned to the Court Division of Belfast.

To advertise in the WritIf you wish to advertise in theWrit please contact Karen Irwinfor rates, specification and copydeadlines at:

Citigate NI Public Affairs Ltd128a High Street, HolywoodBT18 9HW

Tel: 028 9042 8899Fax: 028 9042 8877Email: [email protected]

THE FRENCH CONNECTIONcompeting theatrical interests. Thisrequired much more than cannyacumen, and – purely in the interests oflegal research, of course – saw theUlster delegation tour the Rodinmuseum and marvel at The Thinker,ascend to the top of the Eiffel Tower(to gasp at the delightful views of Parisby midnight), and cruise down theSeine by day. Legal eagles becameculture vultures in the Musée duLouvre, with its shamelesslyextravagant royal apartments, pricelesssculptures by Bernini andMichelangelo, and – the coup de grâce– daVinci’s dainty masterpiece, LaJoconde: the Mona Lisa. Stopping shortof storming the Bastille in July, wecontented ourselves with café au lait atLes Invalides, and felt forced to eat forIreland in the restaurants aroundL’École Militaire.

Defying this nocturnal hedonism, andin the best tradition of the Bar ofNorthern Ireland, Rosie and Lisashowed stoical joie de vivre each newday when they resumed their toilingfor the artistes. Their adroitnessbrought them to fourth place in thefirst round of the competition, and first

place overall in the second round. In thefinal round they were ceded first andsecond. On judgement day, the Instituteteam was placed fifth in thecompetition.

We commend Rosie and Lisa for all thework they put into such an impressiveperformance (ably coached by KateMcKnight), and are justifiably proud oftheir achievement. Everyone atLennoxvale wishes them every success intheir careers at the Bar. Bonne chance.

Stewart Title can solve even the most unusual property search and title problems

Property Searches and Defects in TitleCut out any delays with our Property Search Insurances.Defects in Title and other issues are underwritten without delay.Call us for a quote.

RemortgagesA Stewart policy gives you speed, flexibility and security. The RiskManagement approach is the way forward in the 21st century andbeyond. Talk to us about a no property search or title policy.

For more information call 01392 680680or contact Kim Hart [email protected] or Mark Davies [email protected] Title Limited, Stewart House, Pynes Hill, Exeter EX2 5AZ Stewart Title Ltd is authorised and regulated by the Financial Services Authority.

With our property searches and title insurances conveyancingwill proceed like clockwork

45

IN THE MATTER OF ANAPPLICATION BY BW FOR JUDICIALREVIEW Application for judicial review ofdecisions of the General OfficerCommanding in Northern Irelandand the Ministry of Defencedischarging applicant from theArmy on grounds of security. -whether the GOC has jurisdiction toauthorise the discharge of theapplicant. - whether discharge wascarried out in accordance withQueen's Regulations. - whetherprocedural fairness was applied. -whether breach of human rights. -Application for judicial reviewdismissed QUEEN'S BENCH DIVISION18 JUNE 2004WEATHERUP J

IN THE MATTER OF ANAPPLICATION BY CITY HOTEL(DERRY) LIMITED FOR JUDICIALREVIEW Application for judicial review of adecision of the Department ofSocial Development relating to thedevelopment of lands owned bythe Department at Foyle Street,Londonderry. - whether dispute is apublic law matter or a private lawissue. - whether applicant made fulland frank disclosure in relation tofinancial position. - application forjudicial review dismissedQUEEN'S BENCH DIVISION 18 JUNE 2004WEATHERUP J

CLANMIL HOUSING ASSOCIATION,MS D SHANKS AND MS S FEARONV MARK MADDEN Appeal by way of case stated by anIndustrial Tribunal in accordancewith Order 61 of the Rules of theSupreme Court (Northern Ireland)1980 and Article 22 of the IndustrialTribunals (Northern Ireland) Order1996 for the opinion of the Courtof Appeal. - HELD that theIndustrial Tribunal erred in law byreaching decisions that noreasonable Industrial Tribunal couldhave reached with regard to fourdifferent questionsCOURT OF APPEAL 30 JUNE 2004NICHOLSON LJ

High Court, Court of Appeal Decisions

IN THE MATTER OF AN APPLICATIONBY MARTIN CORDEN FOR JUDICIALREVIEW Application for judicial review ofdecision of a Governor at HMPMagilligan for removal fromassociation of applicant after he faileda test by a passive drugs dog. -whether decision was in breach ofapplicant's human rights. - whetherdrugs dog was reliable. - applicationdismissedQUEEN'S BENCH DIVISION 9 JULY 2004WEATHERUP J

DEPARTMENT OF HEALTH, SOCIALSERVICES & PERSONAL SAFETY VSTELLA STACEY Parties involved in industrial tribunal. -Whether proposed treatment of thedefendant by the plaintiff is contraryto the Equal Pay (NI) Act 1970 andrelevant EC law. - plaintiff seekinginjunction to restrain and prohibitdefendant from using a documentover which they were entitled to assertlegal advice privilege. - whetherdefendant can rely upon legalprofessional privilege documents. -Plaintiff entitled to the remedy sought.- advice as to how Tribunals shoulddeal with this situation in the futureCHANCERY DIVISION22 JUNE 2004MORGAN J

IN THE MATTER OF AN APPLICATIONBY KIERAN DOHERTY FOR LEAVE TOAPPLY FOR JUDICIAL REVIEW AND INTHE MATTER OF A DECISION OF THENORTHERN IRELAND PRISON SERVICEApplication for leave to apply forjudicial review of a decision of theNorthern Ireland Prison Servicerefusing the applicant's application totransfer from prison in the Republic ofIreland to a prison in Northern Ireland.- whether prisoner's human rightswere infringed by reason of the refusalto treat him in the same way asapplicants from Great Britain. - UnitedKingdom under no obligation toaccept applicant as transferredprisoner under the Convention on theTransfer of Sentenced Prisoners. -Application refusedQUEEN'S BENCH DIVISION24 JUNE 2006GIRVAN J

IN THE MATTER OF AN APPLICATIONBY “E” FOR JUDICIAL REVIEWApplication by the mother of one ofthe children affected by the "HolyCross dispute"; applicant seeksjudicial review in the form of adeclaration that the Chief Constableof the Royal Ulster Constabulary andthe Secretary of State for NorthernIreland failed to secure the effectiveimplementation of the criminal lawand to ensure the safe passage forher and her daughter to the HolyCross primary school; Application forjudicial review dismissed.KERR LCJQUEENS BENCH DIVISION16 JUNE 2004

IN THE MATTER OF AN APPLICATIONBY DAVID ANDREW GLASGOW FORJUDICIAL REVIEWApplicant is a police officer whostands accused of three disciplinarycharges under the Police Service ofNorthern Ireland (Discipline andDisciplinary Appeals) Regulations1988; at disciplinary hearing it wassubmitted that the applicant wasentitled to rely on Article 6 of theECHR; disciplinary board rejected theargument that Article 6 wasengaged; applicant seeking to quashthat decision; Application refusedQUEENS BENCH DIVISION1 JUNE 2004MORGAN J

IN THE MATTER OF AN APPLICATIONBY JAMES KEMP FOR JUDICIALREVIEW Application by a prisoner at HMPMaghaberry for judicial review of adecision removing him fromassociation. - applicant complains hewas not informed of the reason forhis removal. - application dismissedQUEENS BENCH DIVISION 9 JULY 2004WEATHERUP J

IN THE MATTER OF AN APPLICATIONBY SHARON MCBURNEY FORJUDICIAL REVIEW Application by patient detainedunder the Mental Health (NI) Order1986 for judicial review of a decisionof the Mental Health Review Tribunalwhich dismissed her application fordischarge. - whether the Tribunal


exercised procedural unfairness in theconduct of the proceedings. - whetherTribunal erred in declining to considerrequest for a hospital transfer. -whether Tribunal infringed Article 5 ofthe European Convention on HumanRights. - application dismissedQUEEN'S BENCH DIVISION18 JUNE 2004 WEATHERUP J

IN THE MATTER OF AN APPLICATIONFOR JUDICIAL REVIEW BY THENORTHERN IRELAND COMMISSIONERFOR CHILDREN AND YOUNG PEOPLEOF THE DECISIONS ANNOUNCED BYTHE MINISTER OF STATE FORCRIMINAL JUSTICE, JOHN SPELLAR ON 10 MAY 2004 Application to challenge minister'sdecision to introduce new legislation. -anti-social behaviour orders. - whethera duty to consult. - whether a duty toconsult children. - effect of the UNConvention on the Rights of Children.- whether the Commissioner forChildren and Young People a victimfor the purposes of the HRA. - whetherthe decision to introduce legislationunreasonable. - Application for leavedismissedQUEEN'S BENCH DIVISION (CROWNSIDE) 23 JUNE 2004GIRVAN, J

R V BAIRD Defendant pleaded guilty to murderand sentenced to life imprisonment. -court to fix tariff, which will later bereviewed by the Life Sentence ReviewCommissioners. - appropriate startingpoint for any person sentenced to amandatory life sentence. - Defendantsentenced to 10-year minimum periodCROWN COURT 18 JUNE 2004 MORGAN, J

R V DOYLE Murder. - sentencing. - tariff. -determination of minimum term to beserved in accordance with theprovisions of Article 5 of the LifeSentences (Northern Ireland) Order2001. - minimum term set at ten yearsCROWN COURT 11 JUNE 2004WEIR, J

R V GAULT Application for leave to appealconviction for murder. - whether judgemisdirected the jury as to the state ofmind necessary to constitute theapplicant an accessory to murder. -

whether applicant participated in ajoint venture. - granted leave toappeal the conviction, appealallowed and conviction quashedCOURT OF APPEAL 9 JULY 2004KERR, LCJ

R V GRAHAM Application for leave to appealagainst conviction for murder andthe tariff imposed by the judge. -whether jury's verdict was againstthe weight of evidence. - HELD thatapplication for leave to appealagainst conviction is dismissed,appeal allowed and convictionquashedCOURT OF APPEAL 9 JULY 2004KERR, LCJ

R V MAUGHAN Application for leave to appealagainst conviction re-opened aftercounsel for the applicant drewattention to what he said wereerrors of fact or misapprehensions inthe judgment. - whether the trialjudge failed to have sufficient regardto six evidential issues in decidingwhether to withdraw the case fromthe jury. - Application dismissed COURT OF APPEAL 18 JUNE 2004KERR, LCJ

R V Z IN THE MATTER OF AREFERENCE UNDER SECTION 15 OFTHE CRIMINAL APPEAL (NORTHERNIRELAND) ACT 1980 Attorney General asks Court for itsopinion on whether a personcommits an offence contrary tosection 11(1) of the Terrorism act2000 if he belongs or professes tobelong to the Real Irish RepublicanArmy. - History of proscription. -HELD that the Real Irish RepublicanArmy is proscribed by virtue ofsection 3(1) of the Terrorism Act 2000and Schedule 2. - HELD that a personwho belongs to or professes tobelong to the Real IRA commits anoffence contrary to section 11(1) ofthe Terrorism Act 2000COURT OF APPEAL 30 JUNE 2004KERR, LCJ

IN THE MATTER OF AN APPLICATIONBY BERNADETTE TODD FOR JUDICIALREVIEW Judicial review of a decision of anRM by which it is alleged that sherefused to hear an emergency ex

parte application for a non-molestation order. - whether therewas good reason in the public interestthat the application should proceed. -application dismissedQUEEN'S BENCH DIVISION 9 JULY 2004 WEATHERUP, J

IN THE MATTER OF AN APPLICATIONBY WINDSOR SECURITIES LTD FORLEAVE TO APPLY FOR JUDICIALREVIEW AND IN THE MATTER OF ADECISION OF THE PLANNING APPEALSCOMMISSION DATED 17 DECEMBER2003 Planning. - judicial review of PlanningAppeals Commission decision, whichrejected an application to varycondition 5 of planning permissiongranting development of retailwarehouse units. - whether grantingof permission would set a damagingprecedent. - Commission decisionquashed and appeal remitted to thePlanning Appeals Commission forreconsiderationQUEEN'S BENCH DIVISION 28 JUNE 2004 GIRVAN, J


Editor: John Bailie. Published by the Law Society

of Northern Ireland, 98 Victoria St. Belfast, BT1 3GN

The views expressed are not necessarily those of the Law Society

of Northern Ireland.

Copy deadline for SeptemberMonday 6th September 2004

We are seeking information as to theidentity of the Employer's LiabilityInsurers of the Blackstaff FlaxSpinning and Weaving Company(also known as the Blackstaff Mill),Springfield Road, Belfast, betweenthe years of 1952 and 1956. Anyonewith any information should contact:Ciaran McConnellWilson Nesbitt SolicitorsCitylink Business ParkAlbert StreetBelfast BT12 4HBEmail: [email protected]: 028 9032 3864

InformationSought

Missing

Folio: 19654County: LondonderryRegistered Owner: Post OfficeLands at: Main Street, Feeny, CountyLondonderryTake notice that any person havingcustody of or information as to thewhereabouts of the Land Certificaterelating to the above mentioned folioshould forthwith produce saidCertificate or communicate suchinformation to the undermentionedsolicitors.And take further notice that unlessthe said Land Certificate is soproduced or adequate information asto its whereabouts is socommunicated within three weeks ofpublication of this notice, a duplicateLand Certificate may be applied for.Cleaver Fulton RankinSolicitors50 Bedford StreetBELFAST BT2 7FW

Folio: 8880County: AntrimRegistered Owner: Post OfficeLands at: Ballylession Road,Ballymena, County AntrimTake notice that any person havingcustody of or information as to thewhereabouts of the Land Certificaterelating to the above mentioned folioshould forthwith produce saidCertificate or communicate suchinformation to the undermentionedsolicitors.And take further notice that unlessthe said Land Certificate is soproduced or adequate information asto its whereabouts is socommunicated within three weeks ofpublication of this notice, a duplicateLand Certificate may be applied for.Cleaver Fulton RankinSolicitors50 Bedford StreetBELFAST BT2 7FW

Folio: DN25252County: DownRegistered Owner: Post OfficeLands at: Abbey Road, Newtownards,County DownTake notice that any person havingcustody of or information as to thewhereabouts of the Land Certificaterelating to the above mentioned folio

Title Deeds


should forthwith produce saidCertificate or communicate suchinformation to the undermentionedsolicitors.And take further notice that unlessthe said Land Certificate is soproduced or adequate information asto its whereabouts is socommunicated within three weeks ofpublication of this notice, a duplicateLand Certificate may be applied for.Cleaver Fulton RankinSolicitors50 Bedford StreetBELFAST BT2 7FW

Folio: 26655County: ArmaghRegistered Owner: Post OfficeLands at: Chapel Road, Killeavy,NewryTake notice that any person havingcustody of or information as to thewhereabouts of the Land Certificaterelating to the above mentioned folioshould forthwith produce saidCertificate or communicate suchinformation to the undermentionedsolicitors.And take further notice that unlessthe said Land Certificate is soproduced or adequate information asto its whereabouts is socommunicated within three weeks ofpublication of this notice, a duplicateLand Certificate may be applied for.Cleaver Fulton RankinSolicitors50 Bedford StreetBELFAST BT2 7FW

Folio: 20514County: LondonderryRegistered Owner: Post OfficeLands at: Main Street, Feeny, CountyLondonderryTake notice that any person havingcustody of or information as to thewhereabouts of the Land Certificaterelating to the above mentioned folioshould forthwith produce saidCertificate or communicate suchinformation to the undermentionedsolicitors.And take further notice that unlessthe said Land Certificate is soproduced or adequate information asto its whereabouts is socommunicated within three weeks ofpublication of this notice, a duplicateLand Certificate may be applied for.Cleaver Fulton RankinSolicitors50 Bedford StreetBELFAST BT2 7FW

Folio: 27829County: ArmaghRegistered Owner: Post OfficeLands at: Chapel Road, Killeavy,NewryTake notice that any person havingcustody of or information as to thewhereabouts of the Land Certificaterelating to the above mentionedfolio should forthwith produce saidCertificate or communicate suchinformation to the undermentionedsolicitors.And take further notice that unlessthe said Land Certificate is soproduced or adequate informationas to its whereabouts is socommunicated within three weeks ofpublication of this notice, a duplicateLand Certificate may be applied for.Cleaver Fulton RankinSolicitors50 Bedford StreetBELFAST BT2 7FW

Folio: 25888County: ArmaghRegistered Owner: Post OfficeLands at: Deadmans Hill RadioStation, Friary Road, Mowhan,Armagh, County ArmaghTake notice that any person havingcustody of or information as to thewhereabouts of the Land Certificaterelating to the above mentionedfolio should forthwith produce saidCertificate or communicate suchinformation to the undermentionedsolicitors.And take further notice that unlessthe said Land Certificate is soproduced or adequate informationas to its whereabouts is socommunicated within three weeks ofpublication of this notice, a duplicateLand Certificate may be applied for.Cleaver Fulton RankinSolicitors50 Bedford StreetBELFAST BT2 7FW

Folio:20698County: LondonderryRegistered Owner: Post OfficeLands at: Ballyneil Road,Magherafelt, County LondonderryTake notice that any person havingcustody of or information as to thewhereabouts of the Land Certificaterelating to the above mentionedfolio should forthwith produce saidCertificate or communicate suchinformation to the undermentionedsolicitors.And take further notice that unlessthe said Land Certificate is so

48


produced or adequate information asto its whereabouts is socommunicated within three weeks ofpublication of this notice, a duplicateLand Certificate may be applied for.Cleaver Fulton RankinSolicitors50 Bedford StreetBELFAST BT2 7FW

Folio: 26210County: LondonderryRegistered Owner: Post OfficeLands at: Sherriffs Road, SherriffsMountain, LondonderryTake notice that any person havingcustody of or information as to thewhereabouts of the Land Certificaterelating to the above mentioned folioshould forthwith produce saidCertificate or communicate suchinformation to the undermentionedsolicitors.And take further notice that unlessthe said Land Certificate is soproduced or adequate information asto its whereabouts is socommunicated within three weeks ofpublication of this notice, a duplicateLand Certificate may be applied for.Cleaver Fulton RankinSolicitors50 Bedford StreetBELFAST BT2 7FW

Folio: DN 36145County DownRegistered Owner: Theresa GrantLands at: 387 Glassdrumman Road,Annalong, Co. DownTake notice that any person havingcustody of or information as to thewhereabouts of the Land Certificaterelating to the above mentioned folioshould forthwith produce saidCertificate or communicate suchinformation to the undermentionedsolicitors.And take further notice that unlessthe said Land Certificate is soproduced or adequate information asto its whereabouts is socommunicated within three weeks ofpublication of this notice, a duplicateLand Certificate may be applied for.Holmes & MoffittSolicitors289 Shankill RoadBELFASTBT13 1FTTel: 028 9023 0836

Folio: 1632County: DownRegistered Owners: Andrew SamuelJohnstonLands at: Meenan, Barony of IveaghUpper (Upper Half) and County ofDownTake notice that any person havingcustody of or information as to thewhereabouts of the Land Certificaterelating to the above mentionedfolio should forthwith produce saidCertificate or communicate suchinformation to the undermentionedsolicitors.And take further notice that unlessthe said Land Certificate is soproduced or adequate informationas to its whereabouts is socommunicated within three weeks ofpublication of this notice, a duplicateLand Certificate may be applied for.Nelson-Singleton Solicitors21 Gallows StreetDromoreCounty DownBT25 1BG

Folio: AN13110County: AntrimRegistered Owner: Lucia Finneganand Martina DunbarTake notice that any person havingcustody of or information as to thewhereabouts of the Land Certificaterelating to the above mentionedfolio should forthwith produce saidCertificate or communicate suchinformation to the undermentionedsolicitors.And take further notice that unlessthe said Land Certificate is soproduced or adequate informationas to its whereabouts is socommunicated within three weeks ofpublication of this notice, a duplicateLand Certificate may be applied for.McIntosh Solicitors5 Upper Abbey StreetColeraineCounty LondonderryBT52 1EZ

Re: 10 Lenamore Park, LisburnRegistered owner: Arlene MargaretStanyon deceased.Would any Solicitor holding orhaving knowledgeof the whereabouts of the titledeeds to the above property please contact:R J Eastwood Solicitors7 Linenhall StreetLisburnCounty AntrimTel: 028 9266 2727

Re: Alfred Bennett deceasedLate of: 36 Kirkiston Walk, Belvoir,Belfast BT8 7FFWould any Solicitor having anyknowledge of the whereabouts oftitle deeds of the above property,please contact:Jennifer Turley, Sheridan & LeonardSolicitors, 19-21 High StreetBELFAST BT1 2AATel: 028 9043 8833Fax: 028 9023 5809

Re: 43 Dorothy Avenue, Bangor BT20 4PGRegistered owner: Kenneth Mooredeceased.Would any Solicitor holding orhaving knowledge of thewhereabouts of the title deeds tothe above property please contact:Mr Huw Worthington, WorthingtonsSolicitors, 2 Court Street,Newtownards BT23 2NXTelephone: 028 9181 1538

49

Anyone with information regardingJOHN J MOSS Solicitor formerly of 18Arthur Street, Belfast, could theyplease contact:-Michael McGonigle, SolicitorMcGuinness & Canavan, Solicitors42 Great James Street, DerryTel: 028 7128 4422We are endeavouring to locate thewhereabouts of Mr Moss or hissurviving family.

MissingPerson

Re: Robert John Collins (deceased)Late of: 14 Londonderry Park, Comber,County Down, BT23 5EUDate of death: 8 July 2004Would anyone holding a Will of theabove named deceased (also known asRoy) having any knowledge of thewhereabouts of same please contact:-M D Loughrey, Solicitors9 Portland AvenueCounty AntrimBT36 5EYTel: 028 9084 8116Fax: 028 9084 9110

MissingWill


SolicitorsRequired

Newly qualified – one year PQESolicitor required for busy generalpractice, dealing mainly withdomestic and commercialconveyancing. Realistic long termprospects for the right candidate.Apply in writing with CV to:-Gerry DrainGallery & Campbell48a Church PlaceLurganCraigavonCounty Armagh BT66 6HDEmail: [email protected]

Expanding South Down Practiceseeks Solicitor with at least one yearPQE in Litigation and Conveyancing.Please apply in writing to:C Murnion & Co Solicitors7 Greencastle StreetKilkeelCounty DownBT34 4BHSalary commensurate withexperience.

Assistant Solicitor required forestablished and expanding practice Experience in conveyancing, familylaw and Magistrates Court anadvantage.High level of initiative andenthusiasm required.Good prospects for the rightcandidate.Send full CV to:Leo P McKeeCampbell McKee Solicitors5 Victoria StreetBallymoneyEmail: [email protected]

Experienced solicitor required forCommercial and ResidentialConveyancing and general Litigationwork with young rapidly expandingand dynamic practice. Excellentsalary and prospects for rightcandidate. Apply in writing toprincipal.Catherine Allison & CoSolicitors15A Margaret StreetNewryCounty Down BT34 1DEEmail: [email protected]: 003531 429320854

L K Bannon & Co require twosolicitors.Position 1: 2 years+ PQE – for ourStewartstown Road office, Belfast.The applicant must be able todemonstrate a good knowledge infamily law.Position 2: 5 years PQE – this positionis for our Crumlin office. Candidatemust have conveyancing experience.Salary commensurate with experience.Apply with CV to:-LK Bannon & CoSolicitorsMarlon House21 Main StreetCrumlinBT29 4UP

Solicitor/Solicitors required for busyGlengormley practice.Experience in Conveyancing and/orLitigation will be required for thispost/posts.A good working knowledge ofMatrimonial Law would be anadvantage.Salary commensurate with experience.Apply with CV to:M D Loughrey Solicitors9 Portland AvenueGlengormleyCounty Antrim BT36 5EYEmail: [email protected] D Loughrey Solicitors is an EqualOpportunities Employer

Burnside & Logue Solicitors require anassistant solicitor with at least 2-3years’ experience, who is a goodcommunicator and who hasexperience of conveyancing andCounty Court litigation. Knowledge ofall aspects of family law would be anadvantage. Experienced in informationtechnology is desirable. The successfulcandidate will be expected tocontribute to the growth of thepractice and in return will beremunerated accordingly.Our core practice is that ofconveyancing, plaintiff’s civil litigation,wills and probate.A starting salary of £20,000 will beoffered to the appropriate candidate.Please apply in writing withCurriculum Vitae to:-James BurnsideBurnside & Logue43-49 Main StreetMagheraCounty LondonderryNo later than 23rd September 2004

SolicitorSeeking Employment

Newly Qualified SolicitorSeeking employmentTemporary position preferredPart time also consideredTel: 028 90622248

Solicitor with PQE available to workp/t in Commercial Conveyancing.Greater Belfast area only.Telephone: 07855 705640 or email:[email protected]

Experienced plaintiff litigationsolicitor, recently semi-retired, seeksfull-time or part-time position –locum work considered.Apply in writing to PO Box 134c/o Citigate Northern Ireland PublicAffairs Ltd128a High StreetHolywoodCounty DownBT18 9HW

CareerOpportunities for SolicitorsA new section has been addedto the Society’s website entitled“Appointments”.

Any advertisement received andaccepted for inclusion in TheWrit in relation to the“Solicitors Required” section willnow immediately be placed onthe Society website withoutawaiting publication of TheWrit. This will afford solicitorsan additional facility foradvertising any full-time, part-time or locum positions theymay have available.

Practitioners should also notethat this section will include,from time to time, details ofvacancies notified to the Societywith regard to judicialappointments, social securityappeal tribunals, industrialtribunals etc.

J O U R N A L O F T H E L S N I J U N E 2 0 0 4

LibraryUpdate

Recommended Reading -

Electronic Signatures

Legislation

Electronic Communications Act 2000 (applies in Northern Ireland)http://www.legislation.hmso.gov.uk/acts/acts2000/20000007.htm#16

The Electronic Signatures Regulations 2002http://www.legislation.hmso.gov.uk/si/si2002/20020318.htm

Directive 1999/93/EC of the European Parliamentand of the Council of 13 December 1999 on aCommunity framework for electronic signatureshttp://europa.eu.int/eur-lex/en/index.html

Articles

Electronic signatures are here to stay (discusseselectronic signatures and their risks)Mason: 2004 2(10) A.B. 7-8

ePen technology and electronic signatures(considers the effect of the ePen and its impact onelectronic signature legislation)Zekos: 2004 8(6) I.P. & I. T. Law 2-5

Electronic signatures: the parties in the chainMason: 2003 9(8) C.T.L.R. 215-216

Electronic signatures explainedMason: 2003 1(5) A.B. 12-14

Books available in the Library

Brazell: Electronic signatures law and regulation.Sweet & Maxwell. 2004.

Chissick: Electronic commerce law and practice.Sweet & Maxwell. 2002.

Law Society Library Email:

[email protected]

Munkman: Damages for personal injuries and death. 11thedition. Butterworths. 2004

White: Northern Ireland Social Work Law. Butterworths. 2004

Cape: Defending suspects at police stations: The practitioner’sguide to advice and representation. 4th edition. Legal ActionGroup. 2003.

Ashton: The Elderly Client Handbook. 3rd edition. The Law Society. 2004

May: Criminal Evidence. 5th edition. Sweet & Maxwell. 2004.

Sherrin: The Law and Practice of Intestate Succession. 3rd edition. Sweet & Maxwell. 2004.

Lester: Human rights law and practice. 2nd edition. Butterworths. 2004.

Singleton: Tolleys Data Protection Handbook. 3rd edition.Butterworths. 2004.

Capper: The Enforcement of Judgements in Northern Ireland. SLS. 2004.

West: Companies limited by guarantee. 2nd edition.Jordans. 2004.

Tolley’s Company Acquisitions Handbook. 7th edition. 2004.

Northern Ireland Office: Digest of information on the NorthernIreland criminal justice system. 2004.

51

New Books in the Library

Annual Abstract of Decisions 2003 from Northern HighCourt & Court of Appeal - £30

Annual Abstract of Decisions 2003 from Fair Employmentand Industrial Tribunals - £30

Please contact a member of library staff to purchase your copy.

Library Publications for sale

CARTRIDGEWORLD

STARTING SEPTEMBER 2004 WEARE ABLE TO OFFER A WEEKLY

COLLECTION & DELIVERY SERVICETO THE FOLLOWING LOCATIONS

COOKSTOWNCOALISLANDCRAIGAVON

DUNGANNONLISBURNLURGAN

MAGHERAFELTMOIRA

PORTADOWNOMAGH

Using Re-manufacturing Cartridges doesnot Invalidate your printers Warranty

(Office of Fair Trade – Ruling)

Cartridge World (NI) LtdDirectors

Sydney Lomas(Retd Solicitor)

Roger Lomas(MD)

Writ Redesign 2 (John) - Law Society of Northern …...Northern Ireland Legal Services Commission,...

Documents

Transcript of Writ Redesign 2 (John) - Law Society of Northern …...Northern Ireland Legal Services Commission,...