Contents Gazette LawSociety · 3. Patrick O’Connor 1,484 4. Michael Quinlan 1,468 5. Donald...

Contents

Law Society GazetteDecember 2002

1

Regulars

News 2

Viewpoint 6

Letters 6

Stockwatch 38

Briefing 39

Committee reports 39

Practice notes 40

Legislation update 41

Personal injuryjudgment 42

FirstLaw update 46

Eurlegal 49

People and places 53

Apprentices’ page 57

Professional information 59

Avoiding professional negligence in conveyancing Professional negligence is a serious concern for all solicitors.Brian Gallagher discusses some of the pitfalls facing conveyancersand explains how to avoid them

10

The Law Society of Ireland can accept no responsibility for the accuracy of contributed articles or statements appearing in this magazine, andany views or opinions expressed are not necessarily those of the Law Society’s Council, save where otherwise indicated. No responsibility forloss or distress occasioned to any person acting or refraining from acting as a result of the material in this publication can be accepted by theauthors, contributors, Editor or publishers. The Editor reserves the right to make publishing decisions on any advertisement or editorial articlesubmitted to this magazine, and to refuse publication or to edit any editorial material as seems appropriate to him. Professionallegal advice should always be sought in relation to any specific matter.

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

Editor: Conal O’Boyle MA. Assistant editor: Garrett O’Boyle. Designer: Nuala Redmond. Editorial secretaries: Catherine Kearney,Valerie Farrell. Advertising: Seán Ó hOisín, 10 Arran Road, Dublin 9, tel: 837 5018, fax: 884 4626, mobile: 086 8117116, e-mail:[email protected]. Printing: Turners Printing Company Ltd, Longford. Editorial Board: Pat Igoe (Chairman), Conal O’Boyle (Secretary),Tom Courtney, Eamonn Hall, Mary Keane, Ken Murphy, Michael V O’Mahony, Alma Sheehan, Keith Walsh

Volume 96, number 10Subscriptions: �57.15

Cover Story

GazetteLawSociety

What price a ‘clean break’divorce now?The day of the ‘clean break divorce’seems to have come a step closer as aresult of the Supreme Court’s decision inT v T recently. Geoffrey Shannon exam-ines the controversial judgment andassesses its impact on family law

Data protection: the implications for solicitorsThe data protection commissioner has announced that solicitors’ firms are obliged to register themselves under the Data Protection Act.Paul Lavery sets out the Law Society’s official position on the data protection regime as it affects the profession

20

Fighting talkStrap on your flak jacket, because newpresident Geraldine Clarke has declaredwar on media misrepresentation of thesolicitors’ profession. Here, she talks toConal O’Boyle about her career andher plans for the coming year

16

[email protected]?Ireland’s ambition to become an international centre for e-business is wellknown, but we may have to change manyof our traditional court processes toachieve it. Denis Kelleher argues the case for establishing an ‘e-court’

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35

FREE WITH THIS ISSUE!

Your Gazette

legal planner 2003

COVER: [email protected]

ORDER YOUR GAZETTE DESK DIARY NOW!SEE ADVERTISEMENT IN THIS ISSUE

ONE TO WATCH: NEW LEGISLATION

News


2

The Law Society has a newCouncil and a new officer

team, with Geraldine Clarketaking over as president for thenext year.

Clarke was deemed electedto the post after serving assenior vice-president last year,while Gerard Griffin waselected senior vice-presidentfor 2002/03, with John Fish asjunior vice-president.

The following memberswere elected to the LawSociety Council in the recentballot, with the number ofvotes received appearing aftertheir names:Name Votes1. Gerard Griffin 1,5882. Anne Colley 1,4873. Patrick O’Connor 1,4844. Michael Quinlan 1,4685. Donald Binchy 1,4666. John P Shaw 1,3887. Michael Irvine 1,3808. Philip Joyce 1,3329. Simon Murphy 1,30610. James MacGuill 1,30511. John Fish 1,28512. James McCourt 1,279

Solicitor’s (Advertising)Regulations 2002 (SI 518)These regulations were introducedpursuant to section 4 of theSolicitors (Amendment) Act, 2002,which preserves the right of asolicitor to advertise, but severelyrestricts personal injuriesadvertising. They came into effecton 8 November 2002, but do notapply to advertisements publishedbefore 1 February 2003.

The 1996 Solicitors AdvertisingRegulations (SI 351 of 1996) arerevoked by regulation 1 andregulation 2 defines the termsused in the regulations. Most ofthe definitions follow the exactwording of the statutory definitionscontained in the 1994 and 2002acts.

Regulation 3 providesspecifically that solicitors mayadvertise.

Regulation 4(a) re-introduces thegeneral prohibitions contained inthe 1996 regulations, that is,

advertisements that:• Are likely to bring the profession

into disrepute• Are in bad taste• Reflect unfavourably on other

solicitors• Assert that a solicitor has

specialist knowledge superior toother solicitors

• Are false or misleading• Are contrary to public policy.

This section also prohibits for thefirst time advertising in an‘inappropriate location’. This isdefined in section 4(10) of the2002 act as ‘a hospital, clinic,doctor’s surgery, funeral home,crematorium, or other location of asimilar character’. These provisionsapply to all types of advertising,not just personal injuriesadvertising.

Regulation (4)(a)(viii) thenintroduces for the first time a banon advertisements that refer toclaims or possible claims for

damages for personal injuries, theoutcome of such claims or theprovision of services by solicitorsin conjunction with such claims.Regulation 4(a)(ix) prohibitsadvertisements that ‘solicit,encourage or offer any inducement’to make such claims.

Regulation 4(b) specifies that alladvertisements shall not includemore than:• The solicitor’s name, address,

telephone and fax numbers,place of business and locationof information provided by thesolicitor that is accessibleelectronically

• Particulars of the solicitor’squalifications and legalexpertise

• Factual information on the legalservices and areas of law towhich the services relate

• Particulars of charges, and• Any other information permitted

by regulation 5 of theseregulations.

Regulation 4(c) replicates section4(4) of the 2002 act: anyadvertisement which containsfactual information on the legalservices provided may include thewords ‘personal injuries’. Theregulations specifically allow anadvertisement to include the words‘personal injuries’ in a list ofservices (see regulation 8(b)below).

Regulation 5 contains a list ofthe ‘other information’ permitted bythe regulations, such as hours ofbusiness, job descriptions,membership of organisations,reference to other clients (with thatclient’s consent) and othermiscellaneous information.

The content of anyadvertisement must therefore bepermissible either under regulation4(b) or regulation 5. The inclusionof anything else in anadvertisement will constitute abreach of the regulations.

Regulations 6 and 7 deal with

New officer team takes charge

13. Peter Allen 1,26914. Helen Sheehy 1,26615. Orla Coyne 1,220

were not elected and thenumber of votes received bythem appear after their names:Name Votes17. Edward Hughes 91818. John P O’Malley 775

As there was only onecandidate nominated for eachof the two relevant provinces(Leinster and Ulster), therewas no election and thecandidate nominated in eachinstance was returnedunopposed, as follows: Leinster– Andrew Cody; Ulster –James Sweeney.

Council members areelected for a two-year term:the sitting Council memberswho were elected last year are:Owen Binchy, Brian Sheridan,John D Shaw, John O’Connor,Kevin O’Higgins, MoyaQuinlan, John Costello,Gerard Doherty, MichaelBoylan, Stuart Gilhooly,Angela Condon, HughO’Neill, Andrew Dillon,Thomas Murran, RosemarieLoftus, and Eamon O’Brien.

16. Marie Quirke 1,160

The following candidates

Law Society president Geraldine Clarke with senior vice-president GerardGriffin (left) and junior vice-president John Fish

News


3

Personal injuries litigationwork by solicitors was

branded ‘a socially valuablelegal service’ by Law Societydirector general Ken Murphyon RTÉ’s Morning Irelandprogramme recently.

Murphy said it wasimportant to distinguishbetween the service itself andthe advertising of the service:‘Solicitors simply assistingpeople who have sufferedpersonal injuries through thenegligence of others to obtainthe reasonable compensation towhich they are entitled by lawis a perfectly proper andsocially valuable legal service’.But he added that much of theadvertising of that service bysolicitors had now been judgedby the Oireachtas for widerpublic policy reasons to beundesirable.

While it was tempting for the Law Society to say ‘wetold you so’ when theOireachtas turned its originalpolicy on its head in this way,continued Murphy, the society

where advertisements may or maynot be published. Henceforth,advertisements may not appear onany form of transport soadvertisements on the back ofbuses are no longer permissible.Solicitors may not advertiseimmediately adjacent to deathnotices, or in any inappropriatelocation, as defined in section4(10) of the 2002 act.

If a solicitor decides to refer inan advertisement to personalinjuries or other contentiousbusiness, regulation 8(a) specifiesthat the advertisement must alsoclearly refer to the prohibition onpercentage charging in connectionwith contentious business.Regulation 8(b) extends thelimitation on the use of the words‘personal injuries’ to phrases suchas ‘motor accidents’, ‘workplaceaccidents’ and other words orphrases of a similar nature.

Regulation 9(a) forbids theinclusion of any words or phrases

which suggest that legal servicesrelating to contentious businesswill be provided at no cost or at areduced cost, such as ‘no foal, nofee’, ‘most cases settle out ofcourt’, ‘insurance cover arrangedto cover legal costs’. Thisprohibition is in line with thestatutory ban on advertisementsthat encourage or induce claims fordamages for personal injuries. Noadvertisement can containcartoons, dramatic or emotivewords or pictures, nor can it referto calamitous events such as atrain or bus crash. This regulationalso prohibits reference to thesolicitor’s willingness to makehome or hospital visits. Obviously,the willingness of a solicitor tomake such visits is laudable, butthe advertisement of such servicescan be (and has been) interpretedas a form of ‘ambulance chasing’and is therefore prohibited by theregulations pursuant to the generalstatutory restrictions contained in

section 4(2) of the 2002 act.Billboard advertising is restricted

to the solicitor’s name, address,telephone and fax numbers, placeof business and the location ofinformation provided by the solicitorthat is electronically accessible(regulation 9(b)).

Regulation 10 deals withwebsites and provides thatsolicitors will be responsible (forthe purpose of compliance with theregulations) for the content of sitesthat are linked to the solicitor’ssite, where it is reasonable toconclude that the intention of thelinked site is to publicise thesolicitor’s practice. For example, ifa solicitor’s website has a link to asite that contains informationencouraging personal injury claims,it is reasonable to construe such asite as being intended to promotethe solicitor’s practice. This wouldmean that the solicitor is deemedto be responsible for the contents,and, if they are in breach of the

regulations, the solicitor will beaccountable.

Advertisements must be of asize appropriate to the medium inwhich they appear (regulation11(a)), and where anadvertisement contains factualinformation on services provided,no one category shall be givenprominence (regulation 11 (b)).Thus, for example, the followingadvertisement would not bepermissible:

XYZ Solicitors, Blackhall Place, Dublin 7Personal injuries, conveyancing,probate, matrimonial.

Regulation 11(c) is similar inconcept to regulation 10 where theadvertisement is in written form, asopposed to an advertisement on awebsite. If an advertisement for asolicitor appears in a newspaperand, immediately under it, asecond advertisement appears‘which could reasonably be

PRIZE BOND WINNERS 2002The winners of the LawSociety’s prize bond drawwere: Michael Cody, JamesCody & Sons, Bagenalstown,Co Carlow; Liam MacHale,MacHales Solicitors, PearseStreet, Ballina, Co Mayo;Michael Foy, Smith Foy &Partners, 59 FitzwilliamSquare, Dublin 2; and Patrick TMoran, Michael Moran & Co,Mountain View, Castlebar, CoMayo.

FORENSIC ENGINEERSEMINARThe Association of ConsultingForensic Engineers is holdinga seminar on asbestos onFriday 21 February 2003 atthe Institution of Engineers ofIreland, 22 Clyde Road, Dublin4. For further information,contact Paul Romeril on tel:01 6620448.

RETIREMENT TRUST SCHEMEUnit prices: 1 November 2002Managed fund: 387.846cAll-equity fund: 95.950cCash fund: 246.726cPension protector fund:100.000c

PI litigation ‘valuable service’

simply contented itself withfully supporting the abolition of a type of advertising whichmost solicitors had neverengaged in and wish had never

been permitted.Quizzed about the contribu-

tion of solicitor advertising tothe ‘compensation culture’,Murphy said that this was atabloid term whose exactmeaning was difficult toidentify. But he accepted thatsolicitor advertising, alongwith many other social factors,had contributed to an increasein personal injuries litigation.‘We are delighted to see that asa result of this new legislationand the society’s regulations,this type of advertising, whichhas diminished the publicesteem in which the solicitors’profession is held, will shortlybecome a thing of the past’, heconcluded.

LAST CHANCE FOR GAZETTEYEARBOOK AND DIARYThe 2003 Law Society Gazette Yearbook and Diary is now available(please see order form on page 36). Last year the Solicitors’Benevolent Association benefited to the tune of over 20,000 as aresult of proceeds from the Gazette Yearbook and Diary, and yourcontinued support is very much appreciated.

Murphy: ‘perfectly proper’

construed as relating to orelaborating on’ the solicitor’sadvertisement, the secondadvertisement shall be deemed tohave been published by thesolicitor, until the contrary isproved. Similarly, if a solicitor’sadvertisement refers to the factthat the solicitor is a member of aparticular organisation of solicitors,any advertisements published bythat organisation shall be deemedto be published by the solicitor untilthe contrary is proven (regulation11(d)).

Regulation 12(a) removescertain forms of communications(those designed primarily to giveinformation on the law) from thedefinition of advertisement. A book,or unpaid article or interview on alegal topic by a solicitor will not beregarded as an advertisement.Regulations 11(b) and (c) thenprovide for specific exceptions tothis rule – a book that issues forfree or at a reduced cost may be

regarded as an advertisement, asmay the repeated publication of anarticle or interview.

The 1994 act provided insection 69(4)(f) that noadvertisement should ‘comprise orinclude unsolicited approaches toany person with a view to obtaininginstructions in any legal matter’.This express prohibition is notincluded in the 2002 act, as it wasa source of considerable confusioninsofar as all advertisements couldarguably be regarded as‘unsolicited approaches’. The 2002act now specifies that the LawSociety shall make regulations ‘toprovide for restrictions on asolicitor making, or causing to bemade, unsolicited approaches toany person or group or class ofpersons with a view to beinginstructed to provide legalservices’. These restrictions arecontained in regulation 13(a), whichsimply states that an unsolicitedapproach may not be made where

it is likely to bring the professioninto disrepute. In particular,approaches at an ‘inappropriatelocation’ (as defined), or at oradjacent to a calamitous event, aGarda station, courthouse orprison, shall not be made(regulation 13(b)).

If an advertisement does nototherwise make it clear on the faceof it that it is an advertisement fora solicitor (for example, ‘Buying orselling your house? Contact theexperts at 01 987654321’), itmust state that it is published by asolicitor. The solicitor isresponsible for ensuring that alladvertisements published orcaused to be published by him orher comply with the regulations andany advertisement in which thesolicitor’s name appears shall bedeemed to be published or causedto be published by him or her(regulation 14).

Regulations 15 and 16 deal withinvestigation and enforcement of

possible breaches. Regulation 17provides that if the solicitorobtained the society’s writtenapproval of the advertisement, thatshall be a defence to any allegationof breach of the regulations. It alsoprovides that the society can issueguidelines from time to time.

The statutory definition of‘claims for damages for personalinjuries’ includes claims ‘whethermade in court proceedings, orotherwise’ and therefore wouldinclude claims made before atribunal. The 2002 act alsocontains a section which prohibitsa person who is not a solicitorpublishing advertisements whichundertake to provide ‘a service ofa legal nature that could otherwisebe provided by a solicitor’ forreward and which, if published by asolicitor, would be in breach of thelegislation.

Linda Kirwan is head of the LawSociety’s Complaints Section.

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News


4

Solicitor MauriceO’Callaghan of 18/20 Lr

Kilmacud Road, Stillorgan, CoDublin was struck off the rollof solicitors by order of thepresident of the High Court on21 October 2002. The matterfollowed the recommendationsof the Law Society’sDisciplinary Tribunal made atits hearing on 31 January 2001,following a complaint made bya former client ofO’Callaghan’s. The tribunalmade the following findings ofmisconduct:a) That the solicitor produced

a letter to the Law Society’sRegistrar’s Committeepurporting to be a copy of a

Solicitor is struck off the roll

letter dated 24 June 1991and failed to explain thefollowing discrepancieswhich quickly becameapparent:(i) The letter was a

photocopy of anoriginal, whereas theother letters on file werecarbon copies

(ii) The reference on theletter was different tothe reference on anyother copycorrespondence on thesolicitor’s file. Thereference was similar tothe current referenceused by the solicitorwhen responding to the

In view of the findings of theDisciplinary Tribunal andhaving considered thesubmissions in relation tosanction and costs, the tribunalwas of the opinion that thesolicitor was not a fit person tobe a member of the solicitors’profession and recommendedto the president of the HighCourt that his name be struckoff the roll of solicitors andthat he pay the Law Society’scosts. This recommendationwas endorsed by the presidentwhen the matter came beforehim on 21 October 2002.

Gazette ChristmaspublicationAs usual, the Gazette will betaking a well-earned break overthe Christmas period, so therewill be no issue in January.Normal publication will resumewith a joint January/Februaryissue, due out in early February.

COMPENSATIONFUND PAYOUTThe following claim amountwas admitted by theCompensation FundCommittee and approved forpayment by the Law SocietyCouncil at its meeting inNovember 2002: Michael PMcMahon, 5/6 UpperO’Connell St, Dublin 1 –�2,285.5383.

Law Society(iii) The typeface on the

letter was different toother letters on the file

(iv) The telephone numberon the letter was aseven-digit number andin 1991 the solicitor’stelephone was a six-digitnumber

b) The solicitor failed to advisethe client of the correctamount of the settlement

c) The solicitor concealedfigures from his client inrelation to the settlement

d) The solicitor deductedmonies from the settlementwithout his client’sknowledge or consent

e) The solicitor misled theLaw Society incorrespondence and, inparticular, in his letter of 7September 1995

f) The solicitor misled theRegistrar’s Committee byproducing a doctored letterand attendance to them atthe meeting on 19 October1995.

News


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Aplaintiff has let it be knownthat she intends to appeal a

decision of the taxing masterthat she should recover no costsdespite a Supreme Court awardof costs in her favour.

In a decision of 12November 2002, Taxing MasterJames Flynn in the case of MaryJohnston v the Church ofScientology and Others held thatthe plaintiff had failed to provethat she was under a liability topay her own legal costs and thatthe defendants could have nogreater liability than theplaintiff could. He held that ‘a“no win, no fee” arrangementbetween the solicitor and theclient does not remove legalresponsibility, but if the client

Taxing master’s surprise costs rulingis expected to be appealed

cannot prove the legalresponsibility, regrettably thedefendant, rightly or wrongly,is not obliged to discharge thatwhich the client will not beheld liable for’.

The Law Society’s Litigation

Committee is consideringwhether or not to issue apractice note to the professionin the light of this decision,even though it is under appeal.Director General Ken Murphysaid: ‘This decision wasreported in the newspapers onthe basis that it underminedthe right of plaintiffs to recovercosts from defendants wherethe plaintiff’s solicitor hadtaken the case on a “no win, nofee” basis. However, this doesnot appear to be a correctinterpretation of the taxingmaster’s decision. In fact, thiscase appears to turn on its ownparticular facts and, inparticular, on rules of evidence

in relation to the proof of theplaintiff’s obligation to pay herown solicitor’s costs. There wasno section 68 letter in this case,as it was initiated before therelevant legislation came intoeffect’.

In the course of hisjudgment, Taxing Master Flynnremarked that ‘usually thesection 68 letter is sufficientproof of the legal liability inthat it impresses the wholespectrum of costs upon theclient who wishes to embarkupon litigation. In future, itmay be of benefit if such lettersare appended to the bill ofcosts so as to truncate theproofs required at taxation’.

Change of Address NoticeWe wish to advise that with effect from 2nd December 2002

the business previously carried on at:

AIB Cork Securities Unit, 66 South Mall Cork

AIB Galway Securities Unit, Eyre Square, Galway

AIB Limerick Securities Unit, 106/108 O'Connell Street Limerick

and AIB Waterford Securities Unit, Broad Street Waterford

is being transferred to:

Allied Irish Banks p.l.c.

Central Securities

1 Adelaide Road

Dublin 2

DX No. 236

Telephone: (01) 475 3555. Fax: (01) 475 4259.

Viewpoint


6

One year ago, on 5December 2001, Mr Justice

Kearns in the High Court hearda landmark application for anorder against unfair conditionsin building agreements.Judgment was duly given and 15sample terms in buildingcontracts were held to be unfair.

The successful application bythe Director of ConsumerAffairs, Carmel Foley, at thebehest of the Law Society, toaddress unfair and onerousterms and conditions, receivedmedia coverage, including beingthe lead article in the Jan/Feb2002 issue of the Gazette. Sincethen, the ConveyancingCommittee has remindedpractitioners (in October) of thefutility of inserting such terms‘as they are unenforceable’.

As noted by ConveyancingCommittee chairman PatrickDorgan in the Jan/Feb 2002issue, this problem had becomevery onerous both on solicitorsand on purchasers of newhouses. Essentially, somebuilders’ solicitors wereinserting unfair andunreasonable terms.

The extent of the problemSo how much has changedsince then? Unless a matter is

Unfair conditions: has the pen

referred to the court orotherwise comes into thepublic domain, it is notpossible to know the extent towhich the problem still exists.But it does still exist. To whatextent is known only toindividual solicitors andclients.

The ConveyancingCommittee noted in Octoberthat it had received ‘numerouscomplaints’ that some builders’solicitors persisted in refusingto remove such terms. ‘Thecontinued use of such terms isin breach of the regulationsand the order of the High

Court’, the committee warned. What are the terms that are

offensive? The EuropeanCommunities (Unfair Terms inConsumer Contracts) Regulations1995 provide that a contractualterm will be regarded as unfairif, contrary to therequirements of good faith, itcauses a significant imbalancein the parties’ rights andobligations to the detriment ofthe consumer. The strength ofthe bargaining positions ofparties will be a factor indeciding on good faith.

The background to unfairand unbalanced buildingagreements can be easilyaccessed by all practitioners.The 1995 regulations, underwhich the director of consumeraffairs took the High Courtaction, are contained instatutory instrument 27 of1995. This is contained in theIrish statute book, 1922-1998,published in August 1999 bythe Office of the AttorneyGeneral and distributed free toall solicitors’ offices in thestate.

The unfair terms andconditionsThe 15 sample terms (notethat they are samples only),

which are based on theunequal bargaining positionsof the individuals hoping tosecure a house or apartmentand the developers andbuilders, can be very broadlysummarised as:• The contract and building

agreement constitute theentire agreement. Thus, allassertions, promises,understandings and evencommitments by thebuilder or the builder’sagent have no effectwhatsoever. While thisprovision gives clarity tothe contract, should not allpre-contract promises tothe house-hunter orapartment-hunter carry a‘health warning’?

• If the employer does notpay the balance of thecontract price within 14days, the contractor mayrescind. This highlights theimbalance in the bargainingstrengths of the buyer andthe developer/builder

• If the employer (or, ofcourse, the employer’ssolicitor) raises anyobjection prior to thebalance contract price beingpaid, then the builder canrescind the agreement. The

LettersFrom: Dr Mary Redmond,Arthur Cox, Dublin

Madeline Reid’s letter inlast month’s Gazette

(page 9) in response to myarticle in September (page 18)merits reply. She directs hercomments to my concern thatin decisions under the EqualStatus Act, where it is manifestthat no evidence whatsoever

Equality officers: compare and contrasthas been adduced by thecomplainant as to acomparator, the equality officerwithout more finds in theirfavour on the basis of lessfavourable treatment with ahypothetical comparator. Iwrote that where the equalityofficer ‘picks’ or assumeswithout evidence who thecomparator is for the person

bringing the claim, he or she isacting as advocate and judge.

Ms Reid disagrees. Shewrites that similar wording inthe UK discrimination actsplace employment tribunalsthere ‘under a duty to considerintroducing a hypotheticalcomparator of their ownmotion where none had beenadduced by the complainant’.

The High Court recently prohibited 15 unfair terms in building contracts, but it seems that somemembers of the profession have yet to understand the implications of this. Pat Igoe provides arefresher course for slow learners

Pat Igoe: ‘Guess whose deskthe problem falls on?’

Viewpoint


7

ny dropped yet?court noted that this couldbe used by a builder to enda contract even where noevent had occurred going tothe root of the contract

• The builder’s liability alsoexcludes defects whichoccur before closing, unlessthe builder acknowledgesthese defects in writing. Soif the builder does notacknowledge in writing thealleged defect, then it is notactionable. As noted in thepleadings before Kearns J, itmakes the commitment ofthe builder subject toacknowledgement in writingby the same builder

• Only one snag list can besubmitted and it must besubmitted within seven daysof the completion notice. Aspleaded in court, this seeksto limit the liability of thebuilder in an unfair andunbalanced way

• The time period in generalcondition 4(c) is reducedfrom 14 days to seven days.This was argued successfullybefore the court asunreasonable because of theserious consequences offailing to meet the shortdeadline

• The builder may terminatethe contract. This clearlyallows the builder to endthe contract withoutreasonable cause and is nota right that is reciprocated

• If the employer does notpay the balance due onclosing day, the builder maygive 14 days’ notice and,after that, the deposit willbe forfeit, the property maybe re-sold and all expensesand any deficiency in saleprice will be theresponsibility of the would-be buyer. Again, it wasargued before the court that

• ‘The employer shall notassign …’. But the buildermay assign

• The builder may modify thematerials. Deviations fromthe specifications are notlimited to minor deviations

• ‘The contractor shall not beliable to the employer inrespect of any loss, expenses,costs or otherwise incurred asa result of any delayhowsoever caused incompleting the worksreferred to in clause Ahereof’. Enough said

• Any delay in completing theworks will not delay theclosing date. This requiresclosing payment to thebuilder irrespective ofwhether or not the works arecompleted

• The builder will not beresponsible for any damagecaused to materials for extrasfor the buyer. Thisdisadvantages the buyer inrespect of the extra materialsvis-à-vis the main buildingmaterials

• If any part of the closingbalance is not paid within fivedays, interest will be payableon a day-to-day basis at 20%.This was successfully arguedas being a disproportionatelyhigh rate of interest.

Unequal bargaining powerOne year on from the HighCourt judgment, too many of

these onerous conditions arestill familiar to conveyancers.So, if they are so oppressive,why do purchasers submit tothem? It obviously relates tothe market, purchasers’ needsand unequal bargainingpowers between the individualwould-be buyer and thebuilders.

Other conditions stillappearing that are arguablyunfairly onerous include: • That the contra preferentem

rule will not apply• That any site or layout plan

is for identificationpurposes only and does notnecessarily show the correctlocation, size or area of thesite, and

• That the builder will beentitled to vary or alter thedevelopment in any mannersubject to planningpermission.

The 15 condemned conditionsare explicitly non-exhaustive.

Like most of us, would-bepurchasers want to believethat everything will turn outfine. The small print is forlawyers. But if everything doesnot turn out fine and there areproblems after closing, guesson whose desks the problemsfall?

Pat Igoe is principal of Dublinlaw firm Patrick Igoe andCompany.

G

whether they are getting it right?She refers to Balamoody v UKCentral Council for Nursing, arecent decision of the Court ofAppeal (approving statementsin an EAT decision, ChiefConstable of West Yorkshire Policev Vento, reported in 2001).

Far from legitimising thecurrent practice of equalityofficers, these authorities makeit abundantly clear that the task

of constructing a hypotheticalcomparator is undertaken onlywhere there is evidence beforethe tribunal enabling it toconstruct a hypotheticalcomparator. In Vento, theemployment tribunal used fouractual cases on which it hadheard evidence as buildingblocks in the construction ofthe neighbourhood in which

the hypothetical male officerwas to be found. According tothe EAT, ‘It cannot be said [its]conclusion … represents sooutlandish an inference …from the actual cases examinedby the tribunal as to be aconclusion without support ofany evidence’. In Balamoody,the court found that thechairman of the tribunal

should have asked herself‘whether there was someevidence to support aninference … that evidenceseems … to have been beforethe tribunal … on the facts itwas incumbent on thechairman to construct ahypothetical comparator andtest the case against thatbenchmark’.

this would allow the builderto be unjustly enriched atthe expense of the would-bebuyer

• ‘The employer will buildwithin 18 months, failingwhich …’ But this provisionis under the control of thebuilder. Again, as noted inthe Jan/Feb Gazette,‘agreement binding onconsumer but at the will ofbuilder’

Letters


9

I would have no difficulty ifequality officers constructed ahypothetical comparator basedon evidence before them andtested the case against thatbenchmark (assuming no actualcomparator, or one that wasrejected as in Balamoody). Mydifficulty with the currentpractice is precisely that it isdone without support of anyevidence. Where an equality

officer so introduces ahypothetical comparator,which is necessaryjurisdictionally for a claimantto succeed, it constitutes in myview an impermissiblecombination of roles by theequality officer.

UK acts may use similarwords to ours, but they alsouse qualifying modifiersregarding the comparator,

namely that the relevantcircumstances in the one caseare the same, or not materiallydifferent, in the other. This means thehypothetical comparator mustbear some equivalence to the claimant.

Indeed, Ms Reid’s practicalexamples of investigative workby equality officers illustratethe importance of ‘evidence’

and of affording the parties anopportunity to commentthereon. The evidence whichresults from investigationeventually has to beadjudicated upon, and mythesis is that the equalityofficer’s decision must besupported by evidence.Otherwise, it runs the risk ofbeing seen not to be impartial.

Never metadata that I didn’t likeFrom: Seán MacCann,www.maccann.com

My article Do your files needa clean sweep? in the last

issue of the Gazette (page 29)dealt with the risks ofdisclosing confidential clientmaterial as metadata. One ofthe examples I gave in passingwas of a recent real-lifeinstance of a partner in a USlaw firm who, having beenasked both to supervise a minordeal and personally to draft therelated documents, decidedinstead to delegate the draftingaspect to an assistant. Despitethis, the partner still chargedpartner rates for all of thework. Fortunately, the partner’sstartling dishonesty was onlymatched by his ignorance ofmetadata, and his dishonestywas discovered.

Some readers have remarkedto me that even a neutraldescription of this incidentmight be construed asunwittingly encouraging othersto commit similar abuses.Obviously, that was not myintention. I simply selected atopical, widely-reported andextreme instance ofunintentional disclosure ofmetadata in a legal context toram home the wider pointabout the vulnerabilities ofmetadata generally and of theattendant dangers of breachingclient confidentiality. All theother selected instancesinvolved accidental disclosureof confidential clientinformation to a third party.

I have my own opinionsabout the calibre of person whowould cheat on his client and

unfairly take the credit for hisassistant’s work. However, I felthis downfall spoke for itself. Ifelt it unnecessary andinappropriate to gloat or tocomment further in the confinesof a practical technical article.

Incidentally, I should alsopoint out that, as an in-houselawyer to a security softwarecompany, I myself am apurchaser of legal services.While I have never encounteredfraudulent charging, it isobvious that lawyers and clientsneed to talk to each otherregularly to ensure that externallawyers do not carry outexpensive work that may nolonger be needed. Clients’circumstances and priorities canchange in minutes.

Accordingly, in 1998, I waspleased to note that the firm I

used to work with in Londonhad set up a system wherebyclients have a personal gatewayinto the firm’s internal systemsso that clients can access theirown files – and their ownbilling narratives and runningtotals – in real time. Thispassive-access facilitycomplements traditional, activecommunication channels. It isnot intended to be a substitutefor the lawyer simply pickingup the phone and talking to theclient. However, such systemsare convenient and thetechnology to provide this kindof secure transparency hasexisted for some time. I predictthat larger clients’ accountingdepartments will increasinglycome to demand that level ofservice and convenience as amatter of course.

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Cover story


10

MAI

N PO

INTS • Lessons to be

drawn fromcase law

• Duty of careto thirdparties

• Implicationsof Doran vDelaney

AVOIDPROFESSIONPROFESSION

Cover story


11

The standard of care required by a solicitorin carrying out the business entrusted tohim by his client was defined by JudgeGriffin in Roche v Peilow ([1985] IR 232) as‘the ordinary level and degree of skill and

competence generally exercised by reasonably carefulcolleagues in his profession’. The question as towhether or not a practitioner is in breach of thestandard of care depends on the circumstances of thecase, according to Hamilton J in his High Courtjudgment in Doran v Delaney ([1996] 2 ILRM). It issettled law that a client has a right of action in tort aswell as in contract against a solicitor who has failed toshow due care in the performance of his duty to thatclient.

1) You are obliged to exercise professional skilland judgement in your client’s interestsIn McMullen v Farrell ([1993] 1 IR 123), Mr JusticeBarron stated that a solicitor is not obliged toconsider every aspect of his client’s affairs because heis asked for advice on a particular matter, but, as partof his duty to his client, a solicitor is obliged toexercise professional skill and judgement in his client’sinterests. The extent of this duty is dependent on thenature of the case presented to him and Barron J heldthat where pending legislation affects advice given ina current matter, there is a duty on the part of thesolicitor to qualify or correct that advice as soon aspossible.

He went on to say that a solicitor must considernot only his instructions but also the legalimplications of the facts presented to him by hisclient. In this particular case, the fact that a solicitor

had ceased to act for the plaintiff did not entitle himto leave unanswered certain questions put to him bythe plaintiff. Instead, he ought either to have dealtwith them or indicated to the plaintiff that he wasnot doing so, since he was no longer acting.

2) Not enough to simply carry out instructionsIt is not enough for a solicitor to simply carry outinstructions; he must give advice. A solicitor mustseek knowledge of all the relevant circumstances.These principles were set out by the Supreme Courtin Carroll v Carroll ([1999] 4 IR 243; [2000] 1 ILRM243). This case related to a voluntary transfer, but theprinciples could also apply to all conveyancingtransactions. Mr Justice Barron stated in hisjudgment that ‘a solicitor or professional person doesnot fulfil his obligation to his client or patient bysimply doing what he is asked or instructed to do. Heowes such person a duty to exercise his professionalskill and judgement and he does not fulfil that dutyby blindly following instructions without stopping toconsider whether to do so is appropriate. Havingdone so, he must then give advice as to whether ornot what is required of him is proper’.

As solicitors, we must apprise ourselves of allrelevant circumstances and we must give advice, andnot merely carry out instructions. If someone asks usto push them over a cliff, it would clearly be wrongto do so.

3) Carry out all necessary investigations Part of apprising oneself of all the relevant circum-stances is to carry out all relevant investigations. InRoche v Peilow, the plaintiff house-purchaser was

It’s always worrying to hear of a colleague being sued. It’s worse still if you

are sued yourself. Brian Gallagher sets out some of the pitfalls facing

conveyancing solicitors and explains how to avoid them

in CONVEYANCING

DINGNAL NEGLIGENCE NAL NEGLIGENCE

Cover story


12

successful in an action for damages for negligenceand breach of contract against the defendantsolicitors, who had failed to investigate and discoverthe existence of an equitable mortgage registeredagainst the property, claiming it was not customaryto do so. The Supreme Court held that, as theuniversal conveyancing practice had inherent defectswhich ought to have been obvious to any persongiving the matter due consideration, then thedefendants were negligent in failing to carry out asearch in the Companies Registration Office againstthe builder of the new house being purchased.

4) Requisitions on title and contemporaneous notesIn Hanafin v Gaynor (unreported judgment of MrJustice Egan, 29 May 1990), the court held that noresponsibility attached to the solicitor who hadaccepted an answer regarding planning permission inthe requisitions on title which subsequently turnedout to be false. Proper requisitions had been raised

and searches undertaken which did not reveal theexistence of the defective planning permission.

Similarly, in Murphy v Proctor (11 October 2000),the question arose as to whether the defendantsolicitor was guilty of professional negligence in andabout the conduct of the purchase of a shop. MrJustice Kelly preferred the solicitor’s evidence to thatof his client with regard to their meetings, based onthe demeanour of the parties, the quality of theirevidence, their recall and the existence ofcontemporaneous notes. The court accepted thedefendant solicitor’s evidence that he had advised theplaintiffs in non-technical language as to what theywere purchasing before they entered into thecontract. This illustrates the usefulness of a solicitorkeeping contemporaneous notes.

5) You cannot be expected to physically or legallyrestrain a client from a course of action A solicitor cannot be expected, having advised aclient of the dangers of proceeding with a

1) Mala fides on behalf of a solicitor is not necessary. If insufficientregard is paid to the duty to the third party, a solicitor may beliable under the Hedley Byrne principle. In Dutton v Bognor RegisUDC ([1972] 1QB373 at 394), Lord Denning MR said that ‘since(Hedley Byrne) it is clear that a professional man who givesguidance to others owes a duty of care, not only to the client whoemploys him, but also to another who he knows is relying on hisskill to save him from harm. It is certain that a banker oraccountant is under such a duty, and I can see no reason why asolicitor is not likewise’

2) Breach of duty of care to avoid making negligent misstatementscan give rise to a cause of action for damage only if therepresented plaintiff has suffered loss by reason of reliance on themisstatement. That he has acted in reliance upon it without lossgives him no right of action for damages

3) It is not a blanket defence to an action for negligence by a thirdparty that a solicitor acted on the express instructions of his client.Where there is ‘any’ or ‘good’ reason to doubt the accuracy ofthose instructions, there may (depending on the facts of the case)be a positive duty on a solicitor to enquire further, if theinformation furnished on foot of same is such that the plaintiff‘must naturally be expected to act’ upon it

4) In replying to requisitions on title, a solicitor is acting in aprofessional capacity and not in some casual social context. Oncea solicitor ‘is acting professionally’, he warrants that, so far as hisown acts are concerned, he has taken the care and applied theskill and knowledge of a member of the profession (Mr JusticeBarron)

5) However, there are many occasions when, in furnishing replies toobjections or requisitions in a contract for the sale of land, asolicitor for the vendor cannot be said to assume any responsibilityfor information being transmitted. Thus, for example, expressing aprofessional opinion on whether appropriate words of limitation hadbeen used in a deed forming part of a title is not assumingresponsibility for information being furnished in the sense in whichthat expression is used in Doran v Delaney. In that situation, the

solicitors on either side are dealing with the same set ofdocuments and are doing no more than expressing theirprofessional opinion on matters of title. Similarly, there are manycircumstances in which the vendor’s solicitor, in drafting a reply,could be described as transmitting information but could not beregarded as assuming any particular responsibility for thatinformation. An example of this is a reply to the standardrequisition 11, which asked whether any notice, certificate or orderhas been served on the vendor under a long series of listedstatutes or ‘under any other act’

6) Care should be taken to transmit a client’s instructions accurately.In Doran v Delaney, it was argued that the vendors’ solicitors wentfurther than any instructions they had been given in saying that thevendors had instructed them that no adverse claim to the propertybeing sold was made by any person, when what they had been toldwas that the dispute had been settled. These instructions, on onereading, did not indicate, as the reply to the requisition did, that noclaim to the disputed portion was at that date being made by theadjoining landowner

7) A solicitor acting for a vendor is fixed with notice of any claim thatmay have been dealt with by the same solicitors’ firm relating tothe property. A solicitor acting in the sale of the property wouldtherefore need to make enquiries about any disputes or anylitigation that may have arisen regarding the property. In thecontext of Doran v Delaney, for example, the fourth-nameddefendant, having asked her client whether the dispute had beenresolved, should have followed this up by verifying her instructionswith her colleague and, if necessary, with the solicitors for theadjoining landowner

8) A solicitor’s responsibility, if any, for replies to requisitions doesnot depend on the wording used, Answers such as ‘vendor saysno’ or ‘no’ or ‘not to vendor’s knowledge’ all mean that it isbelieved there is no information of relevance. Thus, the use ofsuch phraseology does not make it clear that a solicitor is doing nomore than conveying his client’s instructions and will not result inthe avoidance of liability.

SCOPE OF A SOLICITOR’S DUTIES TO THIRD PARTIESFOLLOWING DORAN V DELANEY

Cover story


13

transaction, to physically or legally restrain him fromso doing. In the case of Pierce v Allen & Others(judgment of Mr Justice Murphy, delivered 9 June1993), there were allegations that the solicitor wasnegligent in allowing or permitting his clients tocarry out extensive renovation works while they werein possession of a property under a caretaker’sagreement. Judge Murphy stated that a solicitor,having properly warned his client of the danger of hisactions, could hardly be bound to take some physicalor legal course of action to prevent his clientpursuing a particular course if the client wasdetermined to do so. He referred to Roche v Peilowand went on to rule that in all the circumstances theclient was adequately advised as to the limitations ofthe rights that would be conferred on him by acaretaker’s agreement, and that the solicitor wasfound not to be negligent under this head.

6) Relying on the advice of counselThe case of Fox v O’Carroll ([1999] IEHC4)concerned the forgery of a transferor’s signature on aLand Registry transfer which was attested by thesolicitor for the vendors. The purchasers claimeddamages against their solicitors on the grounds thatthe solicitor had general instructions from them toget compensation from whichever party wasresponsible in law for their losses arising out of theforgery and to sue the solicitors for the vendors fortheir wrongful attestation of what transpired to bethe forged signature of the transferor. Thepurchasers’ solicitors did not sue in time and theclaim became statute-barred.

The solicitor for the purchasers explained to thecourt that he had instructed a barrister and counselhad advised that there was no claim against thevendors’ solicitor. The solicitor and the client wereboth disappointed with this advice and the solicitorasked counsel to reconsider, whereupon counselwrote a second letter of advice confirming that hewas satisfied that there were no grounds for anaction. There was a subsequent consultation withcounsel, in which counsel repeated his advice. Thesolicitor then got advice from another barrister, whoconfirmed the first barrister’s advice. Both counselwere wrong and the vendors’ solicitors could havebeen sued for deceit.

Justice O’Sullivan quoted from Cordery on solicitors(1998 edition) at paragraph 553: ‘as a general rule, asolicitor acting on the advice of properly instructedcounsel can hardly be said to be acting unreasonably,save perhaps in a very exceptional set ofcircumstances’. He went on to say that a solicitor isnot entitled to rely blindly with no mind of his ownon counsel’s views. Thus, it is the duty of a solicitorto reject counsel’s advice that is obviously orglaringly wrong. It has been said that a solicitor doesnot abdicate his professional responsibility when heseeks the advice of counsel; he must apply his mindto the advice received. But the more specialist thenature of the advice, the more reasonable it is likelyto be for a solicitor to accept it and act on it.

Justice O’Sullivan was unable to hold the solicitornegligent, as he did not accept the advice of counseluncritically; in fact, he had asked counsel toreconsider and on no fewer than four occasions wasadvised by counsel that his client had no action. Thecase against the solicitor was dismissed.

7) Existence of a duty of care to a third partyIt is bad enough to be sued by your own client, butthe case of Doran v Delaney ([1998] 2ILRM) showsthat you can be sued by someone else’s client too. Theplaintiffs purchased a plot of land which they believedhad planning permission and was accessible from theroad. They intended to build on the land. Post-completion, they discovered that planning permissionhad been granted due to the submission of anincorrect map with the application by the vendors andthat the land providing access was not owned by thevendors and had not been included in the purchase.Thus, they were left with a landlocked plot of land onwhich it was not possible to build.

The purchasers were not informed that theadjoining owner claimed to be the owner of part ofthe land nor that there was an on-going dispute. Inresponse to a requisition which asked whether therewas any dispute with adjoining owners in relation toparty walls and fences, the vendors’ solicitors replied:‘vendor says no’. In response to a requisition whichasked whether there was any litigation pending orthreatened in relation to the property or whether anyadverse claim had been made in respect of it, thevendors’ solicitors replied: ‘vendor says none’. Thevendors’ solicitors replied to the requisitions onlyafter taking instructions from one of the vendors.While a partner in the vendors’ solicitors’ firm knewof the dispute with the adjoining owner and herprevious threats of litigation, the partner in the firminformed the solicitor dealing with the matter that thedispute had been resolved. However, neither of thetwo solicitors ascertained from the vendors the termson which the dispute had allegedly been settled.

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Cover story


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The purchasers instituted proceedings against theirown solicitor in the purchase, claiming damages fornegligence, breach of duty and breach of contract, andagainst the vendors and the vendors’ solicitors claimingdamages for negligence, misrepresentation and breachof warranty. In the High Court, damages wereawarded to the plaintiffs against their own solicitorsand against the vendors, but their claim against thesolicitors for the vendors was dismissed on the groundsthat these defendants had merely transmitted theirclients’ instructions and had not assumed responsibilityfor, or the role of, principal in relation to thatinformation so far as the plaintiffs or their solicitor wasconcerned. The plaintiffs appealed this decision.

The Supreme Court allowed the appeal and foundthe solicitors for the vendors liable to the plaintiff fornegligence. The Supreme Court held that while therewas no contractual relationship between the plaintiffsand the solicitors for the vendors, this would not itselfnegate the existence of a duty of care. The solicitor’sobligations to protect his own client are perfectlyconsistent with the existence of a duty of care to thepurchaser in certain circumstances.

However, the transmission by a solicitor to a thirdparty of information which turns out to be inaccurateand upon which the third party relies to his detrimentdoes not, of itself, afford a cause of action ofnegligence to the injured third party. The followingfactors are relevant in determining whether a solicitor,while acting for a client, also owes a duty of care to athird party:• The solicitor must assume responsibility for advice

or information furnished to the third party• The solicitor must let it be known to the third party

expressly or by implication that he claims, by reasonof his calling, to have the requisite skill orknowledge to give the advice or furnish theinformation

• The third party must have relied on thatinformation

• The solicitor must have been aware that the thirdparty was likely to so rely.

In this case, the vendors’ solicitors were aware fromtheir own knowledge that threats of litigation andadverse claims had been made and so assumed someresponsibility for that information. However, thereare occasions where in furnishing replies torequisitions the solicitor for the vendor cannot besaid to assume responsibility, but this depends on thecircumstances of the case. The vendors’ solicitorswere clearly acting in a professional capacity inreplying to requisitions and must be assumed to beapplying the skill and knowledge to be expected of asolicitor in such circumstances.

The contract of sale clearly stated that the land wassold with the benefit of planning permission and thevendors’ solicitors were aware that the adjoiningowner claimed the planning permission was invalid.They were also aware of the dispute with theadjoining owner and that there was no physicalboundary between the site and the neighbour’s landand that the purchasers’ solicitors had unsuccessfullysought to have an ordnance survey map delineatingboundaries incorporated into the contract. Therefore,the solicitors for the vendor must have known that,regardless of whether their reply accurately reflectedthe vendors’ instructions to them, it wouldunquestionably be relied on by the purchasers.

The vendors’ solicitors owed a duty of care to thepurchasers, and by failing to ascertain the terms onwhich the dispute was resolved and by telling thepurchaser that there was no dispute, they were inbreach of that duty. This reply did not convey all theinformation to which the purchaser was entitled, anda partial statement in the circumstances may beequivalent to a misstatement or misrepresentation.Had the solicitors for the vendors got in touch withthe adjoining owner’s solicitors, it would have beendiscovered that the adjoining owner had notabandoned her claim to the disputed area and thatthe claim was well founded in law.

Brian Gallagher is a partner in the Dublin law firmGallagher Shatter.

G

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News analysis


16

The moron who said that there’s no suchthing as bad publicity ought to have hishead examined. And you really wouldn’twant to be in his shoes if he ever metGeraldine Clarke. She’d go through him

for a shortcut. Ms Clarke, the newly-electedpresident of the Law Society for 2002/03, has putpublic relations at the top of her agenda and haspromised to take the offensive against the kind oflazy and ill-informed comment about solicitors thathas littered the media in recent times.

‘Solicitors have taken a media battering over thelast numbers of years, which is quite unprecedentedand completely undeserved’, she says. ‘The problemis that we are finding it very, very hard to get anykind of positive response to our public statements.We have been counteracting what’s been said aboutus in the media, but our comments are not beingtaken into account. As president, I intend to doeverything I possibly can to redress that balance’.

She acknowledges that the image of the solicitors’profession has suffered from skirmishes on a numberof fronts: first came the sniping at increasinglytasteless personal injury advertising, then the scale oflegal fees at tribunals mobilised armies on both sides,and war was finally declared over the so-called‘compo culture’. But, as so often throughout history,the real casus belli was money – or, in this case, thesoaring cost of insurance bills.

‘The business community and insurance industryhave sought to put forward the case that it is lawyerswho are responsible for the problems they are nowfacing. We are not responsible, but our attempts toget that message across have been less thansuccessful’.

Full metal jacket The war between the legal profession and thebusiness and insurance lobbies has been fought inprint and on the airwaves – and there have been anumber of casualties. Truth, as usual, caught the firstbullet, but then objectivity and commonsense were

taken prisoner by the other side and sent to a re-education camp. The good news is that Clarke ismarshalling the troops for a winter offensive. One ofher first acts as president was to re-establish thesociety’s defunct Public Relations Committee.

‘I was never convinced that abolishing the PRCommittee was the right thing to do’, she says.

The ironic thing is that Geraldine Clarke didn’tset out to be a solicitor; she had her heart set onjournalism instead. She was halfway through herdegree in French, Philosophy and Irish at TrinityCollege, Dublin, when she made friends with afellow student who was an apprentice solicitor. Hiscareer seemed much more interesting than the oneshe had planned for herself so she approached afamily friend, Dublin solicitor Joe Deane, and heagreed to take her on as an apprentice after shequalified. Clarke supported herself during herapprenticeship by teaching French evening classes.

‘The system was totally different then’, she recalls.‘We didn’t have a law school and we didn’t have full-time courses, so my lectures were done part-time inUCD and some of them in Trinity. I worked fulltime as a solicitor’s apprentice, wearing out a path tothe High Court Central Office and Circuit CourtOffice. In those days, you literally did everythingfrom the photocopying right up to attending counselin the High Court. I was very lucky. I got very goodapprenticeship. I was given as much responsibility asI was prepared to take and was trusted probably a bitmore than I should have been in some cases!

‘It is gratifying to see how the profession hasdeveloped since then. Trainee solicitors areextremely well educated in the Law School andemerge more broadly qualified and more confidentthan we were’.

The profession, of course, is now much larger andthe areas have practice have expanded dramatically.This has resulted in much greater competition,which, she believes, is a good thing. ‘TheCompetition Authority is in the course ofcompleting its study of the legal profession’, she

Strap on your flak jacket, because new president Geraldine Clarke has

declared war on media misrepresentation of the solicitors’ profession. Here,

she talks to Conal O’Boyle about her career and her battle plan for the

coming year

Fighting ta

News analysis


17

lk

News analysis


18

involved in setting up the Irish Centre for EuropeanLaw. She retired two or three years ago from theboard of the ICEL because Law Societycommitments meant that she could not give it thetime it deserved. Among these commitments, shewas head of the Irish delegation to the CCBE (therepresentative body for European bars and lawsocieties) for five years.

Like many young solicitors, her association withthe Law Society sprang from her involvement in herlocal bar association, in this case the DSBA. ‘I wasroped into the bar association by Colm Price, whoproposed me for the council in my absence. When Icame back, I found I had been elected! I went on tobe elected president of the bar association, and at thesame time I was serving on a couple of Law Societycommittees. I thought that since I was doing thework, I might as well just run for the Law SocietyCouncil as well.

‘I firmly believe that bar associations play a vitalrole in providing support and a sense of collegialityfor the profession. Since I took office last month, Ihave visited three bar associations with Ken Murphy– Tipperary, Sligo and Leitrim – and I intend to visita great many more within my year’.

Clarke was elected at the second attempt, in 1986,and every year since, and the society has certainlygot its money worth out of her. Apart from her five-year stint on the CCBE, she has served on most ofthe society’s major committees during her 16 yearson Council.

‘I’ve enjoyed it enormously’, she says. ‘I’ve made alot of my best friends down here. This has been myequivalent of golf. Eric and I have two lovely littlegirls, Kate and Kamala, who are both adopted fromIndia, and they have really been the highlight of myprivate life, as opposed to my professional life. Allthe things that I used to do pre-children and pre-Law Society, such as the theatre and the ConcertHall, these have taken a back seat. The Law Societyhas taken over’.

Getting the balance right between the LawSociety’s regulatory functions and its representativerole is very important, Clarke believes. It is certainlyan issue that regulary gives rise to discussion withinthe profession. ‘I think it is a natural state of affairs’,she argues. ‘It’s a crucial balance that we have toachieve. My view is that, at the end of the day, theregulatory function is for the benefit of ourprofession as a whole. We have to be able todiscipline – and be seen to discipline – members whostep out of line. If we can’t do that, then we aredoing no service to the vast majority of ourprofession, who are actually doing it right, livingwithin the rules. We all have to accept that theregulations are there for the benefit of our clientsand to protect us in what we do. I have to know thatif I breach them, I will be disciplined.

‘Now, the question is whether I should bedisciplined by the Law Society – by my peers – or byan outside body. Personally, I would prefer to bedisciplined by my peers, because they understand the

notes. ‘We welcomed the authority’s decision toinitiate that study and await its findings withinterest’.

After qualifying in 1978, Clarke moved fromDublin to Longford, because it was closer to herfamily home in Ballymote, Co Sligo. She stayed ayear with Longford solicitor Patrick Groarke, beforemoving back to Dublin to take up an in-houseposition with CIE, doing High Court litigation.

The longest dayIn 1983, she joined Gleeson McGrath Baldwin,having made a firm agreement with Frank Murphythat she would only stay a year ‘because at that timehe thought he wanted to continue to be a solepractitioner’. Some 20 years later they are stilltogether as partners in the firm.

Clarke has no doubts that she made the rightcareer choice. ‘I’ve been very lucky in that I lovewhat I do’, she says. ‘What I’ve always enjoyed mostis the relationship with the client. To me, that’s whatit is all about. The whole purpose of our existence isto understand our clients, to provide impartial adviceand to act as a bridge between them and a systemthat they don’t understand or know very muchabout’.

Of course, for a young female solicitor startingout in practice, clients weren’t always such a delightto work with. ‘Certainly in the earlier days, it washarder to make your voice heard as a woman and tobe taken seriously. I remember having to have a malesolicitor sit in on some consultations with me inorder for certain clients to believe that the advice Iwas giving them was credible. They felt muchhappier if there was a man sitting there, saying:“well, I agree totally”. Those days have gone. I stillthink it is harder for women, but nothing like ashard as it was’.

These days, Geraldine Clarke specialises inintellectual property, employment law and civillitigation. She also has a long-standing interest inEuropean law and, along with Mary Robinson, was

Occupation: Solicitor (admitted to Roll of Solicitors in 1978). Partner in theDublin law firm Gleeson McGrath Baldwin. Specialises in intellectual property,employment law and civil litigation Education: Secondary: Marist Convent, Carrick on Shannon, County Leitrim; thirdlevel: BA, Trinity College, Dublin, 1975; MA, TCD, 1978 Family: Married to microbiologist Frederick Falkiner, two children – Kate andKamalaLaw Society career: First elected to Law Society Council in 1986. Junior Vice-President 1997, Senior Vice-President 2001, President of the Law Society foryear 2002/2003. Has chaired many of the society’s committees during her 16-year tenure on Council, including finance, registrar’s, compensation, litigation,public relations, and EU and International Affairs.

FACT FILEGERALDINE CLARKE

News analysis


19

job that I am trying to do. Our experience with theRegistrar’s Committee is that it is the solicitormembers, rather than the lay observers, who areactually stricter, who are more conscious of theimplications for the profession if their colleaguesstep out of line’.

Band of brothersWhile she accepts that a year is a short timeframe inwhich to make her mark, Geraldine Clarke has anumber of other goals apart from improving theimage of the profession. ‘I think that to a largeextent the Law Society is seen as remote fromyounger members of the profession. Now that’ssomething which most professions have a problemwith, but I believe that this is a society whichrepresents the whole of the profession, not just onesection of it. I would like to try to reach out to themand to make what we do somehow relevant for them,to bring them into this wonderful building that weown, to let them see that it’s their building – even ifit’s only playing soccer on the pitch or having a pintin the bar afterwards.

‘I would also like to develop a closer bond withthe large firms because, for different reasons, I thinkthey feel that maybe the Law Society is not terriblyrelevant to what they do. I have written to themanaging partners of the five biggest firms inDublin and I have invited them to identify for metwo issues that they would like to see the LawSociety deal with in the course of this coming year,and I hope that we will be able to address the issuesof concern for them.

‘And I would like to see a situation where we arethe first port of call for the client. All too often,clients come to us for advice when the damage isalready done – the employee has been sacked, thecontract has been signed. If more people asked theirsolicitors for advice before the problem arose, you

would substantially reduce the volume of litigation. Isaw a lovely logo on a pen once: it said Don’t sign thecontract, phone your solicitor. That would be mymessage’.

And that’s a message you can expect to hear timeand again. The fight has just begun. G

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Family law


20

The model of divorce introduced in Irelandis the ‘no clean break’ option. A ‘cleanbreak’ option is precluded in both theFamily Law (Divorce) Act, 1996 and article41.3.2º of the constitution. David Byrne,

former attorney general, explained the politicalcontext for the absence of a ‘clean break’ in thefollowing manner:‘The Irish people ascribe a very high value to theinstitution of marriage. It emerged very clearly duringthe pre-referendum debate that the electorate had a strongconcern for the position of the financially-weaker party tothe marriage. I think it is fair to say that generally theIrish people, although in favour of the introduction ofdivorce, did not regard divorce as being an easy solution tothe problem of marital breakdown. They did not see it asbeing a neat, clean or pain-free process and recognise thatit will have enduring consequences …

‘The Irish electorate ultimately chose – by a tinymajority – to opt for the introduction of divorce in thisjurisdiction. The realistic response to the demand for theintroduction of divorce was, I believe, tempered by a veryreal concern on the part of the electorate for the position ofwomen and children in divorce.

‘It is this compassionate consideration for thevulnerable parties to divorce that, in my view, led theOireachtas to conclude that once-off final settlements inthe area of divorce would not be acceptable to the Irishpeople and therefore should not, for now, be an option’. (Foreword in G Shannon, The Divorce Act inpractice, Dublin: Round Hall, 1999, pp viii-ix).

The issue of whether or not a ‘clean break’ or afull and final settlement is facilitated by the FamilyLaw (Divorce) Act, 1996 in ‘big money’ cases needs tobe re-assessed in the light of the judgments of theSupreme Court in T v T (unreported, Supreme

Could the Supreme Court’s recent decision in T v T lead to a two-tier divorce

system in this country, where those with the money can achieve a ‘clean

break’? Geoffrey Shannon examines the controversial judgment and assesses

its impact on family law

WHAT PRICE A

Court, 14 October 2002). In that case, the SupremeCourt upheld a decision of Lavan J in which thejudge awarded the respondent a lump sum of £5million (�6.35 million), in three instalments,together with maintenance of £800 a month for theyoungest dependent child of the marriage. The fearnow is that T v T will effectively lead to the creationof a two-tier system of divorce in Ireland betweenthose who are able to achieve a ‘clean break’ andthose who will have to resign themselves to thepossibility of repeated applications to court forancillary relief, so that finality can never be achieved.

T v T: the facts of the caseThe parties had been married for 22 years. Therewere three children from the marriage. The partieshad ‘separated’ at the time of the divorce. Theapplicant husband was involved in anotherrelationship and there was one child from thatrelationship. He argued that cognisance should betaken of the fact that 80% of his assets had beenacquired after the date of separation and that he nowhad additional responsibilities and dependants toconsider.

In making his award in the High Court, Lavan Jreviewed the factors set out in section 20 of theDivorce Act and stated:‘I have no difficulty with section 20(2) [(a) throughto (h)]. This is a family where the husband has assetsin excess of £20,000,000 and his wife has assets ofsome £1.15 million. In the later years of theirmarried life, they enjoyed an exceptional standard ofliving. Section 20(2)(i) causes me some difficulty ...Section 20(2)(j), (k) and (l), I have also taken accountof’.

Later in his judgment, Lavan J said that he did not

MAI

N PO

INTS • Analysis of

the SupremeCourtdecision

• Relevant caselaw discussed

• Implicationsof T v T

‘clean break’

Family law


21

divorceNOW?

see the making of a lump-sum payment asintroducing the ‘clean break’ concept into Irish law.In his view, it was making provision for the financialsecurity of the respondent. He reviewed the decisionin White v White (see panel, page 22) and said thatwhile distinguishing the case as a ‘clean break’ case,he nonetheless found the principles enunciatedtherein helpful in the interpretation of section 20(1)and (2) of the 1996 act.

He also endorsed the view of Mance LJ in Cowan

v Cowan ([2001] 2 FCR 331) to the effect that theassessment of assets must be at the date of the trialor appeal. In deciding to award the respondent a55% share of the pension funds, Lavan J stated that,while he would have been disposed to award theapplicant 51%, in deference to his findingsregarding the conduct of the applicant he wasallowing 55%. The applicant husband was obligedto pay the respondent’s costs. On appeal to theSupreme Court, the court upheld the decision of

Family law


22

Lavan J, save that the pension award was reduced to51% of the available funds.

Proper provisionThe Supreme Court in T v T held that the totality ofissues outlined in the legislation must be taken intoaccount and applied in every case in order todetermine what is ‘proper provision’ in anyindividual case. The Family Law (Divorce) Act, 1996provides that ‘proper provision’ be made for bothspouses, and lists in section 20 of the Divorce Actvarious criteria to be considered by the court, but itdoes not define what ‘proper provision’ is.

By virtue of section 5(1)(c) of the Divorce Act, thecourt must be satisfied that such provision as thecourt considers proper, having regard to thecircumstances, exists or will be made for the spousesand any dependent members of the family. Section2(1) of the Divorce Act defines a ‘dependent member’as any child under the age of 18 years (or 23, if infull-time education). It is significant that, whereassection 5(1)(c) alludes to ‘dependent members of thefamily’, article 41.3.2º of the constitution refers to‘any children of either or both’ of the spouses.

In the case of RC v CC ([1997] 1 ILRM 401),Barron J confirms that there is little doubt that thelatter interpretation will prevail:‘Since the jurisdiction invoked is that contained inthe constitution and not that amplified by the act, itis necessary for the court to consider the position ofthe children. While I do not purport to determinethat non-dependent children should necessarily haveprovision made for them, I am satisfied that in theparticular circumstances of the present case it is

proper that certainly the two daughters of themarriage should have provision made for them in theinterests of the family as a whole’.

The reference to ‘any children’ in article 41.3.2ºof the constitution is clearly capable of a much widerinterpretation than that of ‘any dependent membersof the family’ as set out in the Divorce Act, where theterm is defined as any person under the age of 18years, or, if over 18 but below 23, is in full-timeeducation. There are no such limitations on theinterpretation of ‘child’ in the provision contained inthe constitution. It is therefore possible for adivorcing parent to be ordered to continuemaintenance payments in respect of an adult childwhere he or she no longer wishes to do so, in orderthat the court might be satisfied that properprovision exists or will be made for the ‘children’ ofthe marriage.

The Supreme Court in T v T held that thereordering of the assets of a marriage is to bedecided on the individual facts and circumstances ofeach case. Denham J held that a figure of one-thirdof the net assets might be ‘a useful benchmark tofairness’ in big money cases, but cautioned asfollows: ‘The concept of one-third as a check onfairness may well be useful in some cases; however, itmay have no application in many cases. It may notbe applicable to a family with inadequate assets’.

The court said that it was interested in properprovision, not division. It was not, therefore, aquestion of reordering the assets on a percentage orequal basis. While the chief justice stated that thecourt in divorce proceedings in this jurisdiction isprimarily concerned with reordering assets bymaking proper provision for the spouses and theirdependent children, he also held that ‘it by no meansfollows that what is referred to as “the yardstick ofequality of division” is, in every case and for allpurposes, irrelevant’.

Equality and fairnessThe Supreme Court in T v T derived some guidancefrom the principles enunciated in White v White andCowan v Cowan.

The White v White decision was applied by theCourt of Appeal in Cowan v Cowan. In the course ofhis judgment, Thorpe LJ observed that the decisionin White v White clearly did not introduce a rule ofequality. Rather, the yardstick of equality was across-check against discrimination, and fairness wasthe rule. Later in his judgment, Thorpe LJsummarised the consequences of the White decisionas follows (at p352):‘Approved is the frequent theme of decisions in thiscourt that the trial judge must apply such criteria asare to be found in s25. Approved also is the almostinevitable judicial conclusion that the unexpressedobjective of the exercise is to arrive at a fair solution.Disapproved is any discriminatory appraisal of thetraditional role of the woman as homemaker and ofthe man as breadwinner and arbiter of thedestination of the family assets amongst the next

In White v White, the House of Lords emphasised the need for equality andfairness in the division of assets. The parties in that case, who were both farmers,had been married for over 30 years and had three children. The wife claimed that,as well as contracting a marriage, she had contracted an equal farmingpartnership. They had both brought money to the undertaking. One farm was injoint names, although the husband’s father had played a significant part inproviding the initial capital. Another farm was inherited later by the husband, as hisshare of the father’s estate. The assets were worth £4-5 million.

While the High Court accepted that the farm was run in partnership over theentire period of the marriage, the court rejected the wife’s claim for an equaldivision of the farm, which would have enabled her to run an independent farm.Instead, the court focused on the wife’s ‘reasonable requirements’. Adopting thisapproach, the court awarded the wife approximately one-fifth of the total wealth.The wife appealed to the Court of Appeal.

The Court of Appeal accepted that the dominant feature of the case was thatfrom first to last the parties traded as equal partners. However, the court did notconsider it appropriate to divide the assets equally, as the husband’s father hadmade a significant contribution to the acquisition of the farm. (This is consistentwith the approach adopted by the Supreme Court in T v T.) Instead, having regardto the parties’ contributions and the goal of overall fairness, it increased the wife’sshare to reflect approximately two-fifths of the estate.

Both parties appealed unsuccessfully to the House of Lords. The House of Lordsheld that in the division of assets on divorce, the court should approach the casefrom the point of view of fairness between the parties.

WHITE v WHITE

Family law


23

generation. A calculation of what would be the resultof equal division is a necessary cross-check againstsuch discrimination. Disapproved is any evaluation ofoutcome solely or even largely by reference toreasonable requirements’.

Regarding the demise of the reasonablerequirements yardstick, Thorpe LJ observed thatthat yardstick introduced ‘an element ofpredictability and accordingly curtailed the width ofthe judicial discretion conferred by Parliament’. Inhis view, the prohibition on the future use of the toolextended judicial discretion and created a heightenedneed for legislation to provide some guidanceregarding the application of the criteria set out insection 25.

Both White and Cowan were big money cases,involving assets totalling millions of pounds. Theapplication of the White principles to other casesinvolving applications for ancillary relief wasconsidered in the neighbouring jurisdiction in Cordlev Cordle (Court of Appeal, 15 November 2001). Inthe course of his judgment in that case, Thorpe LJstated:‘What White v White essentially decides … is that itis the first duty of the court of trial to apply thesection 25 criteria in search of the overarchingobjective of fairness. It seems to me that in search ofthat overarching object in the typical ancillary reliefcase, the district judge will always look first to thehousing needs of the parties … in many cases thesatisfaction of that need may absorb all that isimmediately available. But … where there issufficient to go beyond that, the court’s concern willbe to provide the means for the absent parent to re-house … Another factor that should be considered isbuttressing the ability of one or other of the partiesto work … Beyond that, if there be cash beyond that,then the judge has to look to what in his estimationis a fair result’.

Variation of ordersThe decision in T v T does not impact on the abilityto vary or discharge orders following a divorcedecree. Any order made on divorce may be variedpursuant to the provisions of section 22 of theDivorce Act, with the exception of a lump-sumpayment which is not being paid in instalments. The

class of person who may make an application undersection 22 includes, in the case of the re-marriage ofeither of the spouses, the new spouse. Before varyingany order under section 22, the court must haveregard to any change of circumstances which mayhave occurred, or any new evidence which there maybe. In addition to varying or discharging any orderpreviously made, the court may suspend theoperation of an existing order for a period of time.

Exercising judicial discretionThe Supreme Court in K v K ([2001] 3 IR 371)remitted the case back to the High Court, as thetrial judge had not given reasons for the manner inwhich he exercised his discretion under section 20 ofthe Divorce Act. McGuinness J stated:‘The provisions of the act of 1996 leave a consider-able area of discretion to the court in making properfinancial provision for spouses in divorce cases. Thisdiscretion, however, is not to be exercised at large.The statute lays down mandatory guidelines. Thecourt must have regard to all the factors set out ins20 in measuring their relevance and weightaccording to the facts of the individual case. Ingiving the decision of the court, a judge should givereasons for the way in which his or her discretionhas been exercised in light of the statutoryguidelines’.

Regarding the proper approach to the exercise ofa court’s discretion under section 20, Denham J in Tv T opined:‘In this case, the learned trial judge, in relation to anumber of the factors, stated that he had regard tothe provisions, or that he had taken them intoaccount. Better practice would be to consider all thecircumstances and each particular factor ad seriatimand give reasons for their relative weight in thecase’.

The Supreme Court in T v T, by a majority of 4to 1, held that the absence of a ‘clean break’principle in Irish divorce law did not prevent thepayment of a lump-sum order as part of the proper

LUMP-SUM ORDERSSection 13(1)(c) of the Divorce Act empowers the court to order either spouse tomake a lump-sum payment to the other spouse under the terms as specified inthe order for the benefit of the recipient spouse, or a dependent member of thefamily, allowing the court flexibility to deal with a variety of situations. It takes intoaccount the practical difficulties of raising a large sum immediately and allows thecourt to order the lump-sum payment to be made at various times and in varyingamounts. In addition, the court can also require such instalment payments to besecured. Where a lump sum is paid by way of instalments, tax benefits arise forthe paying spouse, because stage payments are tax deductible. The type of lump-sum order made by the court is dependent on the particular circumstances of thecase.

‘It is possible

for a divorcing

parent to be

ordered to

continue

maintenance

payments in

respect of an

adult child

where he or

she no longer

wishes to do

so’

Family law


24

provision for a spouse, even where no order forperiodic payments by way of maintenance has beenmade. Denham J stated the position in the followingterms:‘There is nothing in the constitution or legislationwhich prohibits a lump sum as part of a financialancillary order … The fact that … a lump sum ordermay exclude or greatly limit any further order by acourt does not make the provision improper or theorder unfair. The underlying principle of the act of1996 is fairness. As s20(5) provides: The court shallnot make an order under a provision referred to in sub-section (1) unless it would be in the interests of justice todo so’.

Keane CJ held that he did not believe that theOireachtas intended that the courts should excludethe possibility of achieving certainty and finalitywhen financially reordering the assets upon divorce,or of avoiding further litigation between ex-spouses.He expressed approval for the approach adopted byDenham J in F v F ([1995] 2 IR 354), wherein shestated that the principles of certainty apply to familylaw as to other areas of the law. The chief justicedisagreed with the view of McGuinness J in JD vDD ([1997] 3 IR 64) that ‘the statutory policy istotally opposed to the concept of the “clean break”’.

The case of JD v DD must now be re-assessed inthe light of the judgment in T v T. The caseinvolved the ending of a 30-year long marriage,where there were considerable financial resourcesavailable for distribution. McGuinness J held that no‘clean break’ provision could be made whenfinancially reordering a broken marriage.

She noted that the Oireachtas had legislated topermit repeated applications to court concerningancillary relief so that finality could not be achieved,and continued:‘It appears to me that by the subsequent enactmentof the Family Law Act, 1995 and the Family Law(Divorce) Act, 1996, the Oireachtas has made it clearthat a “clean break” situation is not to be sought andthat, if anything, financial finality is virtually to beprevented … The court, in making virtually anyorder in regard to finance and property on thebreakdown of a marriage, is faced with the situationwhere finality is not and never can be achieved. Thisalso appears to mean that no agreement on propertybetween the parties can be completely final, sincesuch finality would be contrary to the policy andprovisions of the legislation. The statutory policy is,therefore, totally opposed to the concept of the“clean break”’ (ibid at 89).

Considering the approach of the High Court inmaking a lump-sum payment without any provisionfor a periodic payments order, Keane CJ stated:‘The approach of the trial judge appears to havebeen to have effected a ‘clean break’ between theparties in financial terms insofar as that ispermissible having regard to the constitutional andlegal provisions; and, given the desirability ofavoiding future litigation between spouses whosemarriages have irretrievably broken down, I have nodoubt that this was the correct approach for him tohave adopted’.

In this regard, it is also worth noting the decisionof McKechnie J in W v W (ex tempore, 17 December2001), where, out of total assets valued at between£16.5 million and £17.5 million, he awarded theapplicant wife a lump sum of £4.7 million andallowed her to retain a sum of £220,000 which shehad already received. The assets consisted largely ofthe proceeds of the sale of land which had beentransferred to the respondent by his parents. Theapplicant wife had to a limited degree been involvedin running the family farm and had been primarilyresponsible for the rearing of the children. Inreaching his decision, McKechnie J noted that ifprovision was made for the wife by way of lump sum,it was highly unlikely that she would make anyfurther applications in regard to proper provision.

Marital responsibilitiesDenham J in T v T held that the court in makingancillary orders must take account of, andcompensate accordingly, a spouse’s past and futureearnings lost due to her assumption of marital anddomestic responsibilities. She stated: ‘Where onespouse alone is working and, in the result, a

CONDUCT OF THE SPOUSESIn granting ancillary relief, the court is required to take into account ‘the conduct ofeach of the spouses, if that conduct is such that in the opinion of the court it wouldin all the circumstances’ be repugnant to justice to disregard it (section 20(2)(i) ofthe Divorce Act). Considerations of conduct are rarely relevant in practice. Thecourts now place emphasis on financial circumstances with a view to removing thefocus on fault. Courts tend to realise that neither party will be entirely withoutblame, and will usually only refer to behaviour or conduct if it has caused animbalance in the relationship between the parties. Clearly, conduct will not beignored where it would be ‘unjust’ to do so, as referred to in section 20(2)(i) of theDivorce Act.

The approach required by section 20 is that, prima facie, the conduct of theparties is not relevant. Conduct, which it would be repugnant to justice to ignore, isrelevant. However, it is only one of the circumstances to be taken into accountalong with other relevant considerations set out in section 20 of the Divorce Act.The onus is on the spouse who wishes to raise conduct as an issue to establishthat it would be repugnant to justice to ignore it.

Even if a spouse proves conduct which should be taken into account, it may notdetermine the issue of entitlement to ancillary relief since the other statutorycriteria detailed in section 20 of the Divorce Act must be considered. Section 23 ofthe Divorce Act should be noted in this context, in that it provides that where anancillary relief order is being awarded or varied on behalf of a dependent familymember, the issue of the claimant’s conduct will not be relevant.

In T v T, Denham J stated that the 1996 act did not seek to establish a fault-based divorce system, and the High Court should not have reduced the applicant’sshare of his pension in light of what it considered to be the husband’s behaviour inthe course of the marriage. She considered section 20(2)(i) and stated:‘The facts as to the applicant’s affairs and ultimate relationship and child outsidemarriage do not equate with a concept of “conduct” set out in s20(2)(i), which hasan element of penalty … The act of 1996 does not seek to establish a faultsystem. Thus, the concept of “conduct” established by s20(2)(i) is of conduct whichit would be unjust to disregard’.

Family law


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significantly greater responsibility for looking afterthe home has devolved to the other, it is clear thatunder s20(f), the court must have regard to that as arelevant factor’.

In K v K ([2001] 3 IR 371), McGuinness J heldthat the concept of a single capital payment to thewife to meet her ‘reasonable requirements’ for theremainder of her life had never in fact formed partof Irish law. There were two reasons for this. First,such a capital payment was inevitably a part of a‘clean-break’ settlement, which was ‘neitherpermissible nor possible’ under the Family Law(Divorce) Act, 1996. Second, the approach of the Irishcourts in accordance with article 41.2 of theconstitution and the statutory guidelines has been togive full credit to the wife’s contribution through herwork in the home and as a mother to her children.The first reason is weakened by the approachadopted in T v T.

Full and final settlementThe case of T v T adds significant weight to ‘full andfinal settlement’ clauses in consent ancillary relieforders, in that it appears that the Supreme Courtvalues ‘certainty and finality’ over flexibility and thepower of the court to vary under section 22 (see alsoPO’D v AO’D [1998] 1 ILRM 543). The value of a‘full and final settlement’ clause in consentseparation/divorce ancillary relief proceedings willno doubt be the subject of future litigation. In themeantime, practitioners may include such clausesand simply hope for the best.

In respect of maintenance, however, it is veryclearly difficult to achieve a ‘clean break’. The caseof T v T may prompt practitioners into capitalisingthe periodic maintenance into a lump sum andtaking a risk on the willingness of the court to bindthe parties to the settlement unless there is a fairlysignificant change in circumstances. In summary,financial negotiation may now take place so as toprovide a lump sum in ‘big money’ cases, which will‘buy out’ maintenance, thereby facilitating a ‘cleanbreak’. While this may work in many cases, it isimportant to warn the client both verbally and inwriting that the court may alter the settlement on an

application by the other spouse.Where there is a lack of full and complete

disclosure in the negotiation of a consent order of acapital nature, there is a considerable danger that thecourt could set the consent order aside for materialnon-disclosure. This occurred in the English case ofLivesey (Formerly Jenkins) v Jenkins ([1985] FLR 813).It is therefore wise to ensure the exchange of fullaffidavits of means in advance of executing a consentorder or separation agreement. Clients should beadvised of the need to make full and completedisclosure and the consequences of failing to do so(see CF v JDF, unreported, High Court, O’SullivanJ, 16 May 2002).

Assets post-separationDenham J stated that assets are to be assessed as atthe date of the divorce. That said, the terms of aseparation agreement and the fact that the assetswere acquired post-separation are factors to betaken into account when reordering the assets ondivorce.

The court may depart from the benchmark offairness to ensure the survival of an income-generating asset. Denham J stated the position in thefollowing terms: ‘It [the check on fairness] may notbe relevant to a family of adequate means if, forexample, it could only be achieved by a sale of assetswhich would destroy a business, or the futureincome of a party or parties’.

The recent decision of the Supreme Court in T vT signposts a significant departure from previousjudicial interpretation of the existing statutoryprovisions, a departure that no doubt will facilitate a‘clean break’ in certain ‘ample resources’ casesinsofar as that is permitted by the constitution andthe Divorce Act. In particular, the lump-sumprovisions of the Family Law (Divorce) Act, 1996 arelikely to be used with greater frequency to achieve a‘clean break’ where the parties seeking a divorcehave ‘ample resources’.

Geoffrey Shannon is the Law Society’s deputy director ofeducation. The Law Society will be running a seminar onthe implications of T v T in February.

G

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‘T v T signposts

a significant

departure from

previous judicial

interpretation of

the existing

statutory

provisions’

Data protection


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Those who collect and process datarelating to living individuals are subjectto data protection obligations. In Ireland,these obligations are set out in the DataProtection Act, 1988, as amended by the

European Communities (Data Protection) Regulations2001. The 2001 regulations implement part of theEuropean data protection directive. The directive is dueto be implemented in full by the Data Protection(Amendment) Bill, 2002, which was published on 21February 2002. Although the bill has yet to beenacted, and may be subject to change as itprogresses through the Seanad and Dáil, it ispossible to identify the likely shape of the newregime.

Existing legislation The 1988 act relates to the processing of personaldata (that is, data relating to living individuals) heldon computer. It imposes obligations on ‘datacontrollers’ and on ‘data processors.’ Datacontrollers control the content and use of personaldata, while data processors process data on behalf ofdata controllers. Legal practices will usually beregarded as data controllers, as they control thecontent and use of personal data on computers.

Registration obligationThe 1988 act operates a selective registration policywhereby only certain categories of data controllersare required to register. Of relevance to legalpractices is the obligation to register as a datacontroller where sensitive personal data is beingprocessed. Sensitive personal data is defined aspersonal data relating to:• Racial origin• Political opinions or religious or other beliefs• Physical or mental health (other than any such

data reasonably kept in relation to the physical ormental health of employees in the ordinary course

The data protection commissioner has announced that solicitors’ firms are

obliged to register themselves under the Data Protection Act, 1988. The

2002 Data Protection Bill, which will be enacted shortly, is likely to leave

little room for doubt. As a consequence, the Law Society has sought the

advice of a practitioner with expertise in this area. Here, Paul Lavery

explains the society’s official position on the data protection regime as it

affects the profession

DATA PROTECTION:

of personnel administration)• Sexual life, or • Criminal convictions.

In light of the foregoing, it is likely that most legalpractices are processing sensitive personal data oncomputer and are therefore required to register. Inthe 1988 act, there was an exemption from dataprotection obligations in circumstances wherecomputer facilities were used solely for preparing thetext of documents. However, with the on-goingevolution of technology, the data protectioncommissioner no longer regards it as tenable toargue that the only use being made of computersystems in a legal practice is for word-processing.

Registering as a data controller is a relativelystraightforward and uncontroversial matter. Theapplication form is four pages long and requires,among other things, a general description of the typeof personal data held on the computer systems, thecategories of persons to whom data might bedisclosed, indications of the categories of sensitivedata held, along with the safeguards in operation forthe protection of the privacy of data subjects.Registration lasts for a year and the cost ofregistration depends on the number of thoseemployed in the legal practice. For legal practicesemploying one to five people, the registration fee is�25.37. For those employing six to 25 people, theregistration fee is �63.49. The registration fee forfirms employing in excess of 25 is �317.43.

Principal obligations of the 1988 act The principal obligations imposed on datacontrollers include the requirements:• That personal data is obtained and processed fairly

(meaning that the people to whom theinformation relates are aware of the uses anddisclosures being made of the information)

• That appropriate security measures are taken

MAI

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OIN

TS • Obligationsunder the1988 act

• Dataprotectionregulations2001

• New regimeunder the DataProtection(Amendment)Bill, 2002

the implications

Data protection


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against unauthorised access to, or alteration,disclosure or destruction of, personal data

• That personal data be kept accurate and up todate, and

• That personal data should not be kept for longerthan necessary.

Subject access rightsUnder the 1988 act, data subjects are, with fewexceptions, entitled to obtain a copy of their personaldata, and to have personal data amended or deletedwhere it is incorrect. The access right will generallyapply to employees and clients of the legal practice.For other data subjects, for example, the parties withwhom a client is involved in contentiousproceedings, it is worthy of note that section 5(1)(g)of the 1988 act provides that a right of access doesnot apply to personal data which would be thesubject of legal professional privilege.

The new regime: 2001 regulationsThe key provisions of the 2001 regulations, whichcame into force in April 2002, are:• Transfer of data outside the European

Economic Area (EU, Iceland, Norway andLiechtenstein). Personal data may not betransferred outside the EEA to any third countryunless that third country ensures an adequate levelof data protection. This prohibition on transferwill not apply if, among other things, the datasubject has consented to the transfer, or thetransfer is necessary for the performance of acontract to which the subject is a party, or thetransfer is necessary for the purpose of obtaininglegal advice or for the purpose of or in connectionwith legal proceedings. It is highly likely that alegal practice will be able to rely on at least one ofthe foregoing exemptions.

In view of concerns about the impact of thisrule, the EU and the United States agreed ‘safeharbour’ principles. Once a US entity signs up tothese principles, a company based in the EU maytransfer data to that US entity. The ‘safe harbour’principles impose similar obligations on UScompanies to those set out in the directive.Additionally, the EU Commission has approvedstandard contractual clauses which, when includedin contracts between a data exporter and dataimporter, will mean that adequate protection forthe data is deemed to have been provided

• Processing of personal data by a dataprocessor. Where processing is carried out by adata processor on behalf of a data controller, theremust be a written contract between the partieswhich contains provisions obliging the dataprocessor (i) to carry out the processing inaccordance with the instructions of the datacontroller, and (ii) to comply with the samesecurity obligations as those which are imposed onthe data controller. Legal practices may, forexample, outsource word-processing of payrollfunctions to a third party

• Security obligations. The 1988 act alreadyimposes obligations to ensure that personal data iskept safe and secure. The 2001 regulationselaborate further on what this means by specifyingthat, in determining whether appropriate securitymeasures are in place (in particular, where theprocessing involves the transmission of data over anetwork), a data controller must ensure that themeasures provide a level of security appropriate tothe harm that might result from unauthorised orunlawful processing, or accidental or unlawfuldestruction or loss of the data. At the same time,the regulations include a note of reasonableness by

REGISTRATIONGUIDE AVAILABLEThe data protectioncommissioner haspublished a helpfulregistration guide toassist legal practiceswhich are obliged toregister under the1988 Act. The guidecan be found atwww.dataprivacy.ie.

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Data protection


29

specifying that the data controller may have regardto the state of technological development and thecost of implementing the measures.

Data Protection (Amendment) Bill, 2002The provisions of the 2001 regulations have also beenset out in the bill. When the bill is enacted, the 2001regulations will be repealed. In addition, the followingare the main changes to be expected when the bill isenacted:• Registration obligations. The bill extends

registration obligations to the vast majority of datacontrollers. Under the 1988 act, only certaincategories of data controllers are obliged to register(for example, banks, insurance companies,telecommunications companies, public authoritiesand so on). Henceforth, only a minority of datacontrollers (such as certain charitable bodies) willescape the registration obligations

• Criteria for legitimising the processing ofpersonal and sensitive data. Section 3 of the billamends section 2 of the 1988 act and imposesadditional requirements on data controllers.Essentially, the data subject must give his ‘explicit’consent to the processing of personal data. However,processing necessary for the performance of acontract to which the data subject is party will be analternative to obtaining consent, as will processingwhich is necessary ‘for the purposes of the legitimateinterests’ of the data controller. The bill specifies thatthe minister may specify by regulation particularcircumstances in which the ‘legitimate interests’ testis complied with. This will be of interest to all datacontrollers, as the wider the scope of ‘legitimateinterests’, the less data controllers will need to seekconsent. With regard to ‘sensitive’ personal data, themain means of legitimising processing will be toobtain explicit consent or to show that the processingwas necessary for the purpose of obtaining legaladvice or in connection with legal proceedings.

It is worth noting that the bill’s use of ‘explicit’consent as one of the means of legitimising theprocessing of personal data (as opposed to sensitivepersonal data) is more onerous than the directive.The directive instead specifies ‘unambiguous’consent. Greater detail regarding disclosures of theinformation and the uses to which it may be put mustbe provided to the data subject prior to obtaining anexplicit, as opposed to unambiguous, consent.Further, it would appear that explicit consent mustbe re-confirmed regularly. It is to be hoped that laterversions of the bill will revert to the lesser obligationset out in the directive

• Requirements to notify data subjects. Section 4 ofthe bill inserts a new section 2D into the 1988 act.This new provision imposes obligations on datacontrollers to notify data subjects proactively that thedata controller holds information about them, toinform them of the uses and disclosures being madeof that data and to ensure that they are aware of theirright to access their data and modify it if it isincorrect

• Extension to manual filing systems. The billextends data protection obligations to manual files,as long as those files are organised in a way thatmeans specific information about individuals is‘readily accessible’. That the information must bereadily accessible appears to exclude miscellaneouscollections of data organised in chronologicalorder, even if the individual to whom the datarelates is named on the front of the file. Manualdata already held in filing systems on the date ofenactment of the bill will only have to comply withthe main data protection obligations from 24October 2007

• Disclosure of references. Section 5 of the billinserts a new section 4A into the 1988 act. Theeffect of this section will be that where personal datarelating to a data subject consists of an expression ofopinion by a person about the data subject, the datacan still be disclosed to the data subject without theconsent of the person who expressed the opinion.This may be a matter of concern to those who areasked to write a reference for a job hunter

• Individuals cannot be forced to make requests.The bill will prohibit a person, in connection withpossible or continuing employment of anotherperson, from obliging that person to make an accessrequest and supply him with the personal dataobtained on foot of such request

• Prohibition of automated decision-making.Section 7 of the bill inserts a new section 6B intothe 1988 act, which will provide a general ban ondecision-making based solely on processing byautomatic means. A decision significantly affectingan individual may not be based solely on theprocessing of personal data by automatic means thatis intended to evaluate certain personal matters suchas performance at work, creditworthiness, reliabilityor conduct. The general prohibition does not,however, apply where the decision is made in thecourse of steps taken for the purpose of consideringwhether to enter into a contract with the datasubject or in the course of performance of such acontract and the decision is to grant a request to thedata subject or adequate steps have been taken toprotect the data subject’s legitimate interests or thedata subject has provided his consent

• Exemptions for journalism, literature and art.The bill includes important exemptions for dataprocessed solely for the purposes of journalism orartistic or literary purposes. In such circumstances,most data protection obligations will not applywhere the data controller believes that thepublication of such work would be in the publicinterest and that compliance with data protectionobligations would be incompatible with journalistic,artistic or literary purposes. Codes of practice maybe drawn up and/or approved by the data protectioncommissioner in relation to the parameters of theexemption.

Paul Lavery is a partner in the Dublin law firm McCannFitzGerald.

G

‘It is likely

that most

legal practices

are processing

sensitive

personal data

on computer

and are

therefore

required to

register’

Solicitors’ Mutual Defence Fund Limited

Jardine Lloyd Thompson IrelandLimited

Istanbul 2003L A W S O C I E T Y O F I R E L A N D A N N U A L C O N F E R E N C E

2 3 - 2 7 A p r i l , 2 0 0 3

S P O N S O R S :

In 1997, he was elected to the Bar Council and chaired a numberof its committees, before becoming Chairman of the Bar Council inOctober 2000. In December of that year, he was elected a Bencherof the Honourable Society of the King’s Inns and is currently amember of the Standing Committee of the Council of the King’sInns, as well as a member of the Editorial Board of the Bar Review.

DR. MAURICE MANNINGDr. Maurice Manning is the President of theHuman Rights Commission. He wasappointed by the Government in August2002 to succeed the first holder of thatoffice, Mr Justice Donal Barrington.

Dr. Manning is an academic by back-ground. He lectured for many years in the Department of Politicsat University College Dublin and has been visiting Professor at theUniversity of Paris (Vincennes) and at the University of WestFlorida. He has published several books on modern Irish Politics,the most recent being James Dillon: A Biography. He has also writ-ten a political thriller, Betrayal, which dealt with sex and corruptionin Irish politics and he is currently working on a second novel.

Dr. Manning spent twenty-one years as a member of the Dail andSeanad. He was a member of the New Ireland Forum and of theBritish-Irish Inter-Parliamentary Body. He was Leader of theSeanad from 1994-1997 and Leader of the Opposition from 1987-1994 and 1997-2002.

PATRICK R. HOWETTPatrick R. Howett graduated from U.C.D.with a Bachelor of Commerce in 1975 and aMaster of Business Studies Degree in1976.

He joined PriceWaterhouseCoopers in 1976and completed his traineeship and becamean Associate of the Institute of Chartered

Accountants in 1979. He then spent a number of years in thePriceWaterhouseCoopers Taxation Department.

He joined Jardine Lloyd Thompson Ireland Limited in 1983 asAccountant. Having served in different capacities he was appoint-ed to his current position as Managing Director in 1995.

He is a past Chairman of the Dublin Chartered AccountantsStudents Society and was elected as a Council Member of theInsurance Brokers Association for three years when he chaired theStrategic Review Group and Technology Committees

KAZIM KOLCUOGLUPresident of the Istanbul Bar Association or representative to beconfirmed.

MESSAGE FROM THE PRESIDENT

Dear Colleague,

I have pleasure in inviting you to join me atthe Society’s Annual Conference inIstanbul on 23rd to 27th April, 2003.

Istanbul, Turkey is a vision of orientalsplendour located on the crossroads ofAsia and Europe. I look forward to meet-ing you there, for what I hope will be astimulating Conference in a truly magnificent location.

This year the theme of the Conference will be “The EuropeanConvention on Human Rights: Its implications for Lawyers”. Thedistinguished speakers will guide delegates through the principlesof the Convention, the proposals to implement it into Irish Law, itsimplications for solicitors and other lawyers in the EU and inEastern European Countries aspiring to join the EU.

We are most grateful to our sponsors - Bank of Ireland, Bank ofIreland Asset Management, Jardine Lloyd Thompson IrelandLimited, Solicitors’ Mutual Defence Fund and OsborneRecruitment for their continued support of the Law Society’sConference and I would ask you to give them your favourable con-sideration in return.

I thank all of you who have made advance bookings and I hopethose who have not yet booked will now do so and look forwardto a memorable conference which we hope will be enjoyed by all.

Geraldine ClarkePresident

BUSINESS SESSION

The European Convention on HumanRights: Its Implications for LawyersSPEAKERS WILL INCLUDE:

RORY BRADY, SCRory Brady, SC was appointed AttorneyGeneral in June of this year. Prior to hisappointment, he was Chairman of the BarCouncil of Ireland.

A native of Dublin, Rory Brady was edu-cated in Synge Street CBS, UniversityCollege Dublin and the King’s Inns. Hewas called to the Bar in 1979 and to the

Inner Bar in 1996. His practice involved mainly civil and commer-cial law cases, and he appeared as counsel for the tribunal in theinquiry into the BTSB (Finlay Tribunal) and has acted as counselfor various clients in other statutory tribunals.

PACKAGE A � BASED ON CHARTER FLIGHT - COST: �1,050.00 PER PERSON SHARING

The cost includes return flights (Dublin/Istanbul/Dublin), taxes, transfers, four nights’ bed and breakfast at the Conrad Istanbul,Welcome Reception, Conference Seminar and Gala Banquet. Surcharges could apply in respect of changes in air fares or increases ininsurance premiums or VAT/tax rates in respect of the hotel.

Charter Flights23rd April, 2003 departure from Dublin to Istanbul – morning flight – times to be confirmed27th April, 2003 departure from Istanbul to Dublin – afternoon flight – times to be confirmed (Times are subject to Air Traffic Control restrictions. However, we are endeavouring to secure mid morning departure and early afternoonreturn flight times so that we may facilitate those wishing to travel from Cork, Shannon, etc. Exact times will be detailed in your book-ing confirmations. The charter flight will be allocated strictly in order of bookings received.)

Those delegates not allocated to the Charter flight will be accommodated on scheduled flights which will incur a supplemental chargeand transfer charges.

Note: Connecting flights from Cork, Shannon etc. can be arranged by Abbey Travel. Please complete relevant section on the reservationform.

PACKAGE B � BASED ON SCHEDULED FLIGHT

Delegates travelling on scheduled flights will travel via various European cities and will have the option of extending their stay subject toairline and hotel availability.

Price will be based on the charter package but will not include airport transfers and may incur airline and hotel surcharges.

Delegates intending to travel on scheduled flights should return a completed reservation form as soon as possible with details of theirpreferred travel arrangements.

REGISTRATION FEE

Payable by delegates only and not accompanying persons �100.00

BOOKING ARRANGEMENTS

The closing date for receipt of bookings is 21st February 2003. Please complete the reservation form and return with deposit of �400.00 per person travelling.

CONTACT DETAILS

If you would like any further information please contact any member of the Organising Team:Sarah Ellins (Law Society) Tel: (01) 672 4823 Email: [email protected] James McCourt (Chairman) Tel: (01) 660 6377Gerry Griffin Tel: (01) 490 1185Mary Keane Tel: (01) 672 4800

For information on extending your stay please contact the conference travel agent:Marie ByrneAbbey Travel43-45 Middle Abbey Street Dublin 1.Tel: (01) 804 7199Fax: (01) 804 7342Email: [email protected]

CANCELLATIONS

Delegates are advised that cancellations made after 21st February 2003 will be subject to a 100% cancellation charge (full invoicedamount).

Travel insurance will be automatically invoiced at approximately �26.00 per person unless delegates indicate on the reservation formthat they have their own insurance and provide the name of the company with whom they are insured.

No contract shall arise until a full deposit has been received and a Reservation Form (which will be sent with written confirmation ofacceptance of the reservation) has been signed and returned.

SATURDAY, 26TH APRIL 2003● Half-day tour to Topkapi Palace

(10.30am – 1.00pm)● Afternoon at leisure● Reception – sponsored by

Bank of Ireland Asset ManagementConference Banquet and dancing– sponsored by Bank of IrelandVenue:Ciragan Palace (Dress:smart informal)

SUNDAY, 27TH APRIL 2003● Morning departure

ACCOMMODATION

Conrad Istanbul, Yildiz Caddesi, Besiktas, 80700 Istanbul, Turkey Tel: +90 212 227 3000 Fax: +90 212 227 3402

All delegates will be accommodated in the Conrad Istanbul****. The hotel offers a choice of restaurants, bars and tea lounges,room service, TV, air-conditioning, healthclub, fully equipped gym, indoor and outdoor swimming pool, hair and beauty salon.

SOCIAL PROGRAMME

● The conference will open on Wednesday evening with a welcome reception for all participants. ● On Thursday an optional all-day tour is available on a Bosphorus Cruise followed by a visit to the Spice Market with a stop-over for

shopping and lunch (not included) at leisure.● On Friday afternoon a half-day optional tour to the Blue Mosque is available.● On Saturday morning a half-day optional tour to visit Topkapi Palace is available. ● The conference will close on Saturday evening with a reception and banquet/dancing in the magnificent Ciragan Palace.

PROGRAMME

WEDNESDAY, 23RD APRIL 2003● Arrival at Istanbul Airport. Transfer to hotel for check-in and

conference registration● Welcome Reception for all participants

- sponsored by Osborne RecruitmentVenue: Conrad Istanbul

THURSDAY, 24TH APRIL 2003● Day tour on a Bosphorus Cruise departing at 10.30am

followed by a visit to the Spice Market with a stop-over for shopping and lunch (not included) at leisure.

● Evening at leisure

FRIDAY, 25TH APRIL 2003● Conference Business Session — The European Convention on Human Rights: Its Implications for Lawyers — sponsored by

Jardine Lloyd Thompson Ireland Limited and Solicitors’ Mutual Defence Fund LimitedThe distinguished speakers will guide delegates through the principles of the Convention, the proposals to implement it intoIrish Law, its implications for solicitors and other lawyers in the EU and in Eastern European Countries aspiring to join the EU. Venue: Junior Ballroom, Conrad Istanbul

● Half-day tour to the Blue Mosque (2pm – 5.30pm)● Evening at leisure

Courts system


35

[email protected]?

Ireland’s ambition to become an international centre for e-business is well

known, but we may have to change many of our traditional court processes

to achieve it. Denis Kelleher argues the case for establishing an ‘e-court’,

specialising in IT and intellectual property

Companies that deal in intellectualproperty and digital works rely on thecourts and the law to protect theirproducts from illegal exploitation. Thisis particularly so with regard to

intellectual property. England has developedsomething of an advantage in this regard, with twospecialised courts (the Patents Court and theTechnology and Construction Court) dedicated to theresolution of disputes in the intellectual property andtechnology areas. Both courts have specialisedprocedures, with judges who are internationally-recognised specialists in intellectual property andtechnology law.

English courts are already providing a world-leading system for dispute resolution in the area ofintellectual property and the enforcement of IPrights. In the English court system, the ‘money claimon-line’ system allows certain types of claim to belodged on-line and litigants can then monitor itsprogress through the courts (although once the claimis opposed, the litigation will revert to traditionalmeans). These courts help the UK to attract leadinge-business companies to base their headquarters inEngland. Other jurisdictions, such as Holland andScotland, are also making significant progress.

At the same time, Irish courts are developing totake account of the changing needs of Irish citizensand businesses. In March 2001, the Courts Serviceannounced an investment plan of up to �63 millionto create ‘e-courts’, which would allow many of thecourt processes to be automated (for example, e-filingand e-payments). It is hoped to introduce a system ofelectronic documents, evidence and pleadings in theSupreme Court next year.

Benefits of an e-courtEarlier this year, the 27th interim report of theCommittee on Court Practice and Procedurecommented that the specialist nature of an electronicCommercial Court would benefit the development ofDublin as an e-city and Ireland as an e-commercecentre. It suggested that Ireland’s position as an e-

commerce hub would be underpinned and reinforcedby such a development and it would be a significantservice. The committee noted that Ireland already hasmany advantages that assist international commercialtransactions, such as a settled common-lawjurisprudence, the use of English, and established skillsin major commercial litigation. The committeesuggested that the benefit of such a commercial courtwould include:• New businesses would be attracted to Ireland by the

advantages of a jurisdiction with a functioningCommercial Court which offers a court system thataccommodates modern business and commercialneeds

• Existing businesses would also benefit from the court• Business would be able to realise savings from using

the modern communication techniques of e-commerce when before the court

• Maintaining the state’s desire to be a global leaderand player in e-commerce through the provision ofe-court services.

This proposal was welcomed by the president of theHigh Court and the Courts Service itself. Last month,the minister for justice announced that such a courtwould be set up in the new year. Recommendations forthe creation of specialised courts have been made by anumber of different bodies, such as the Company LawReview Group and the Competition and MergersReview Group.

Developing the IT/IP expertise of our courts couldhave significant economic benefits, because legalexpertise is just one of the resources that will berequired if Ireland is to develop as a centre for e-business. This country is in the process of developinga cluster of globally-significant software and e-businessfirms, and these firms need access to legal expertise ifthey are to grow. This legal expertise has to beavailable locally.

Troubling implicationsA failure to develop this expertise could have troubling implications for Ireland, particularly if the

MAI

N PO

INTS • Changing

needs of Irishcitizens andbusinesses

• Competitiveadvantage inthe UK

• How e-courtswould work

Courts system


36

EU creates its own specialised Community Intellectual Property Court, as was suggested in theproposed Regulation on the Community patent. Initially,it has been proposed that this court would deal withdisputes relating to the granting of patents, but itsremit would inevitably be extended to all types ofdisputes, including those relating to copyright andtrademarks.

The proposed European court would comprisecourts of first instance (similar to the Irish HighCourt) and a court of appeals. If a Europeanintellectual property court of first instance were to beestablished in London, but not Dublin, the primacyof the UK in this field would be emphasised to ourdetriment. Already, the European Patents Office isbased in Germany and the Trademarks Office is basedin Spain. In this context, Ireland needs to be part of aEuropean forum for the litigation of intellectualproperty disputes.

Demonstrating expertiseIt is unlikely that simply reorganising the Irish courtsin imitation of their English counterparts would giveus a sufficient competitive advantage to justify thenecessary outlay. Any reform or reorganisation wouldhave to provide considerable savings in both the timetaken to bring litigation forward through the courtsand the costs of doing so. Obviously, our courtswould also have to demonstrate expertise in therelevant areas that is equal or superior to thatavailable in the English system. This may mean morethan simply appointing or training members of thejudiciary so that appropriate expertise can be appliedto IT/IP disputes: to heighten the profile of the Irishcourts system, it would be important for the selectedjudges to regularly participate in internationalconferences and seminars.

The training, research and other facilities madeavailable to the judiciary would have to be examinedto see whether any improvement was required.Similarly, the training – both initial and continuous –of the legal professions in this area should also bereviewed.

Much of the business of going to court is made upof processing information contained in writtendocuments such as summonses, statements of claim,notices for particulars, interrogatories, replies, thedefence and counterclaim. Last year, the CourtsService had to deal with some 600,000 differentmatters. The documents used in these proceedingsgenerate colossal amounts of information, and this isan obvious area where IT should be used to lower thecost of processing pleadings. It costs more to storedocuments in paper files and to transport them to and

from court; queues form in court offices, waiting tolodge and stamp court forms. Electronic pleadingwould lower or eliminate many of these costs, makingthe courts more efficient and productive.

However, the intelligent implementation of ITcould have far greater benefits than simply loweringadministration costs; it could also help to eliminatedelays in the court system. Take just one example:

when a High Court personal injury action is initiated,pleadings should take two to three months. So if anotice for trial was issued in April, the case should getinto the list to fix dates at the end of July and actuallybe heard on some date between October andDecember. But a survey of some of the cases listedfor Friday 26 July 2002 shows that delay iscommonplace, a finding consistent with theexperience of court practitioners. At one extreme,proceedings were issued in August 1995, taking sevenyears to get to court; at the other extreme,proceedings were issued in April 2000, taking twoyears to get to court.

‘The intelligent

implementation

of IT could

also help to

eliminate

delays in the

court system’

A review of how Ireland’s laws would have to change was undertaken by DenisKelleher BL for Forfás, the state research body, and published as Legislating forcompetitive advantage in e-business and information & communicationstechnologies in November 2002. The report is available at www.forfas.ie.

REPORT ON LEGISLATIVE CHANGE

Courts system


37

Electronic pleadingThe Rules of the Superior Courts do impose severesanctions on those who cause delay during pleading.If a defence is not lodged within 28 days of the entryof an appearance or a statement of claim, then theplaintiff is entitled to seek judgment in default. Butthe existing paper-based system of pleading meansthat this severe sanction is not matched by efficiency

of enforcement: at present, there is aburden on the party who is not indefault to seek enforcement.Issuing a motion for judgment indefault is an extreme example ofwaste in the court process – theplaintiff’s lawyers will have todraft and issue a motion andaffidavit, counsel will have toattend, the judiciary will have toprovide a judge, and the CourtsService has to provide afunctioning courtroom togetherwith a registrar and other staff.

Electronic pleading wouldenable the courts to take fullcontrol of their own procedures;software could automaticallyreview court lists to identify thosecases that were in default, and thecourts could then sanctiondefaulters. This sanction could besevere (fail to enter an appearanceand the system wouldautomatically issue judgment,following a review by the CentralOffice) or it could be mild (thesystem might place defaultingcases in an electronic limbo fromwhich they would only emerge ifthe defaulter could excuse itsdelay). The precise sanctions that

might be imposed arerelatively

unimportant;what is

significant is thatthe courts would be

in full control oftheir ownprocedures.

As soon asthe process isin train, thecourts could

case will take far longer than normal. In thesesituations, IT should make ‘case management’ mucheasier and more cost effective, making it possible toidentify those cases that will take longer and tomanage their progress through the courts.

Swifter access to justice might have beneficialconsequences for the Irish economy. In many of thehigh technology sectors in which Ireland iscompeting internationally, it is an accepted feature ofcase law that disputes will frequently be decided atthe interlocutory injunctive stage. In such sectors,technologies and markets change so quickly that it isnot practical to wait for a full hearing. Intellectualproperty is extremely valuable – owning the copyrightin the Windows operating system enables Microsoft toearn 86% profit margins on the sale of each copy ofthe Windows program. If Ireland wants to engage withthese industries in the long term, then it must providethem with the swift access to justice that they requireto protect their intellectual property.

Deterrent to vexatious claimsSwifter access to justice could also act as an effectivedeterrent to frivolous or vexatious claims. Currently, aplaintiff can issue a plenary or summary summons inthe High Court at a cost of �90, secure in theknowledge that it will be many years before the casewill come to trial. Defendants faced with such aprospect may agree to settle, as this is cheaper thanyears of legal costs and inconvenience. An electronicpleading system might create a certainty thatsomeone issuing a summons today would be in courtin three to six months. This would radically changethe calculation to be made by frivolous, vexatious or,indeed, fraudulent litigants.

Most importantly of all, electronic pleadings wouldgive the judiciary far more control over their diaries,making the management of the judicial day moreefficient. IT would allow the courts to query lawyersto confirm that individual cases are in fact going on,making the matching of available judges to actuallitigation more efficient.

Ireland is in the process of modernising andupdating its courts; this work will make us a morecompetitive location for investment. Making ourcourts more efficient and cost effective will havecompetitive advantages for the entire economy, but ifthis money is to be well spent it is vital that allelements of the courts should be engaged. We willonly derive the full benefits from these developmentsif it is cheap and easy for lawyers, courts and citizensto interact.

Finally, realising the full benefits of this work willalso require a reassessment and reappraisal of many ofthe procedures involved in our court system. Aproperly efficient electronic system should bedesigned to meet the needs of modern judges,litigants and lawyers. If it is simply designed as anelectronic imitation of the existing paper-basedsystem, it will fail to deliver its full potential.

Denis Kelleher is a Dublin-based barrister.

G

determine exactly thespeed at which a case travels through the system.They would be able to weed out frivolous claims,while ensuring that properly aggrieved people havethe swift and certain access to justice to which theyare entitled.

Of course, there are cases where the complexity ofthe subject matter means that the preparation of the

Stockwatch


38

Brian Weber: ‘Art has been arather uninspiring investment’

You might think that a clever way to avoid the downturn in the equitiesmarket is to invest some of your money in works of art – but you wouldbe wrong, as Brian Weber explains

Money for God’s sake

Since property versus equitywas a theme of this column

not so long ago, it may be ofinterest to examine theperformance of another assetclass – works of art – against theoverall performance of theequity markets.

On the surface, it would seemthat a wisely chosen artcollection could deliver strongreturns. But history has shownthat this is not always the case.During the early 1970srecession, the British RailPension Fund decided it neededto diversify its investments anddid so by investing nearly $60million, or 3% of its portfolio,in art.

Between 1975 and 1980, withthe help of experts fromSotheby’s, Britain’s biggestpension fund bought 2,400individual works. There was noattempt to manage the portfolio,for example, to sell works thathad risen in value. Rather, theart was viewed as a long-terminvestment, and when pieces ofthe collection weren’t loanedout, they were stored in aclimate-controlled warehouse.

This strategy was brought toan end when, in 1983, a newportfolio manager with lessenthusiasm for art arrived andstarted selling – a process thatcontinued for the next 15 years.There were some winners: aCanaletto Venetian view, bought in 1975 for $330,000, sold in 1997 for $7 million; and a Monetpurchased in 1979 for $380,000fetched $9 million in 1989.

Overall, though, theinvestment was adisappointment. Of all of thesectors within the pension fund’sart investments, only the 25Impressionist paintingsoutperformed the stock marketindexes as a group, and all thosegains came from just eight

winners. Overall, between 1975and 1999, the art fund returnedjust 4% a year, far less than thepension fund as a whole. And,over the same period, theStandard & Poor’s 500 indexgrew by 17% a year. When youlook back at the performance,just 60 of the 2,400 itemsgenerated a third of the profit.

Still, with the stock marketheaded for its third straightlosing year, a lot of investors arelooking for alternativeinvestments, and art is oftensuggested.

Prices in the broad art market

The massacre of the innocents byPeter Paul Rubens for $75million, a near-record price thatwas almost 20 times the pre-auction estimate and whichundoubtedly earned a handsomeprofit for the painting’sanonymous owner. Commissioncost may have reduced the gainssomewhat, with auction housestypically taking 10% or more.This, coupled with the cost ofinsurance and security measures,really takes its toll. Nonetheless,the Rubens sale is consideredone of the art world’s bigsuccess stories.

art in 1939. In each case, thecritics and experts tried tochoose the best contemporaryart for display. So did thiscontemporary recognitioncorrelate to the artist’s long-term success and survival?

In short, no. Taking the 850American artists featured at oneof more of these shows, Landeslooked to see how many hadworks that sold at a majorauction house between 1987 and1997, and how many are stillbeing mentioned in current artdictionaries and websites. Heconcluded that only a very fewdid well. Just five artists featuredin these shows now account forbetween 50% and 60% ofauction appearances of the totalgroup in terms of realized value.

Art for art’s sakeNoted value investor and artcollector Scott Black believesthat art isn’t an investment onecan easily recommend.However, buying a paintingbecause you love it is anotherstory altogether. ‘It’s a bigmistake to buy art as aninvestment’, he says. ‘You shouldonly buy art for the love of art.Otherwise, it’s no different frombuying soybeans. And if youdon’t know what you’re doing,it’s easy to lose money’.

Brian Weber is a director of DavyStockbrokers private clients’ unit.

G

have held up pretty well in thecurrent downturn, falling just8% over the two years ended inJune, according to theMei/Moses All-Art index, ahighly-regarded indexestablished by two Stern Schoolprofessors, Jianping Mei andMichael Moses. Over the sameperiod, the S&P 500 had fallen31%. But over the longer haul,from 1900 to the present andespecially from 1960 to thepresent, art has been a ratheruninspiring investment,consistently returning less thanthe S&P. Moreover, evidencesuggests that the art market andthe stock market are positivelycorrelated, making art nearlyuseless as a bear-market hedge.

Record one-off sales,however, keep making headlines.Last year, Sotheby’s auctioned

For every painting orsculpture trotted out as anexample of a profitable deal,evidence suggests there aremany that do less well, eitherbecause they sell for less thanwhat was paid or they don’t sellat all because the bidding doesn’treach the seller’s reserve.

Do the experts get it right?Even the experts are wrongmore often than right, accordingto a study by William Landes, aneconomics and law professor atthe University of Chicago. In anattempt to examine how wellcritics and experts can predictwhich artists will do well, hestudied three major artexhibitions: the Paris Expositionof 1900, the New York ArmoryShow of 1913 and the New YorkWorld’s Fair show of American

Landscape by Michael Flaherty (in Matheson Ormsby Prentice)

Briefing


39

BUSINESS LAW

The European Communities (DataProtection and Privacy inTelecommunications) Regulations2002 came into force on 8 May2002. These regulationsstrengthen privacy rules for tele-phone users and clarify data pro-tection standards, including theright of individuals to opt out ofunsolicited marketing via thetelephone. The text of the regu-lations and a full explanation isprovided on the data protectioncommissioner’s website atwww.dataprivacy.ie.

Business Law Committee

CONVEYANCING

AIB refunds old loan acceptance feesPractitioners may recall thatthe AIB Bank used to charge anacceptance fee to the borrowerbut would refund a portion ofit after the borrower’s solicitorhad lodged title deeds in dis-charge of the undertaking tothe bank. It seems that a num-ber of refunds were neverclaimed either because thesolicitors have not yet lodgedthe title deeds or because theclients have discharged theirloans having re-mortgaged orsold their properties before the deeds were lodged. Thebank had proposed to makerefunds directly to the borrow-ers but, following representa-tions by the ConveyancingCommittee, the bank will make

Committee reportsrefunds as follows:1) In cases where the bank is

still relying on the solicitor’sundertaking, it will refundthe acceptance fee throughthe solicitor’s office and willsend an advice note to theclient confirming that it isdoing so

2) In cases where the under-taking has been dischargedby the solicitor but a refundhas not been effected, thebank will correspond direct-ly with the client

3) If cheque refunds are notnegotiated within threemonths, the bank proposesdealing directly with theclients thereafter.

AIB Bank hopes to completethis process betweenNovember 2002 and the endof January 2003.

Conveyancing Committee

LITIGATION

Witness summonses Pressurised practitioners deal-ing with cases frequently takesomewhat for granted the peo-ple who are a central part ofthe litigation process and with-out whom the courts could notfunction – witnesses of fact.Litigation lawyers need toknow when to ask these toattend court, when and how tocompel attendance, and alsoneed to show courtesy andconsideration to witnesses.

When you, with counsel, if

instructed, decide that a wit-ness is necessary, the next stepis to decide whether to take therisk that the witness will attendvoluntarily. A possible down-side to compelling a witness toattend is that the witness maybe annoyed to receive a sub-poena. The client should beinformed of any risk. If indoubt, and if the witness isimportant, then the power ofwitness summons or subpoenashould be used.

The witness summons orsubpoena is an important pro-cedure for litigation lawyers.By simply serving the appropri-ate form in time, following pre-cisely the procedures set downin the relevant court rules, andtendering an adequate viaticumto cover reasonable travel costs,the witness is obliged to attendcourt on the day of trial, withrelevant documents if required.Issuing a witness summons orsubpoena does not require anyjudicial intervention in mostcases; it is simply an adminis-trative act. However, whereissuing a subpoena in respect ofproduction of any record in thecustody of an officer of thestate, a court order is necessary,except in the case of personalinjury actions (order 39, rule30, RSC as amended by SI166/1997).

Securing a witness’s atten-dance is thus a critical task.However, in achieving this,practitioners should not ignorehuman factors.

Whether a witness agrees or

www.lawsociety.iewww.lawsociety.ie

Have you accessed

is compelled to attend court,they often feel isolated, ill-informed and taken for grant-ed by solicitors and counsel.Too often witnesses are leftstanding and waiting, lost inan alien environment, caughtin a tumult of bewigged andbegowned barristers, policeand prison officers, courtclerks, tipstaffs and reporters.

The Litigation Committeetherefore urges solicitors in allcases to tell witnesses whytheir attendance has beenrequested, where exactly andwhen you will meet them, andwhen the case may be reached.On the trial day, you shouldspeak with witnesses and keepthem informed of when theirevidence may be taken.However, practitioners shouldbe careful to observe the ruleforbidding communicationwith witnesses under cross-examination. Witnesses underexamination-in-chief may bespoken to during the ordinarybreaks in proceedings, forexample, lunchtimes.

The basics of commoncourtesy to and considerationfor witnesses can sometimes belost in the stresses of the hear-ing of an action. Obviously,the solicitor’s duty is to his orher client, and the solicitorshould not be distracted fromthis.

But courtesy and considera-tion will reflect well on thesolicitor and, indirectly, on thesolicitor’s client.

Litigation Committee

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It has been drawn to the atten-tion of the Conveyancing

Committee that, in a number ofinstances, developers, in thecourse of building houses,have been making variations inreliance on the exempteddevelopment regulations. Suchvariations can involve the addi-tion of extensions or conserva-tories, conversion of atticspace, or revision of internallayout (with or without alter-ations to or additions of win-dows).

A planning permission mustbe implemented in its entirety,or not at all. The implementa-tion of the planning permissionentails the construction of thedwelling house in accordingwith the plans lodged and onfoot of which the planning per-mission issued.

Where a developer seeks to

carry out alterations or to addextensions or conservatories inreliance on the exempteddevelopment regulations, hewill first need to ensure thatthe house is fully complete inaccordance with the planningpermission and plans on footof which the planning permis-sion issued, and that only thenis the extension or additionalwork carried out.

Solicitors acting for pur-chasers where such extensionsor alterations are carried outafter the house has been builtshould get an architect’s opin-ion of compliance in the usualform and a further opinion con-firming that the extension orworks comprise exempteddevelopment and are in accor-dance with the Building ControlAct and regulations.


Practice notesINDEMNITY RE: ROADS, SERVICES

Queries have arisen recentlyin relation to the question of

whether a separate indemnity inrelation to roadways, servicesand so on in a new buildingestate is required, having regardto the provisions of clause 10(b)of the Law Society/CIF buildingagreement (2001 edition).

The view of the committee isthat such an indemnity shouldbe sought and furnished, for thefollowing principal reasons:• All of the relevant issues are

contained in one document,

the benefit of which may beassigned conveniently

• The document is under seal,while building agreementsgenerally are not.

The normal form of indemnityimposes further obligations onthe builder, in that the buildermust indemnify the purchaser inrelation to any loss arising as aresult of his failure to lay ormaintain such roads, servicesand so on.


NEW HOUSES AND EXEMPTED DEVELOPMENT

PRE-CONTRACT ENQUIRIES

There have been a number ofcomplaints to the Conveyanc-

ing Committee to the effect thatsome practitioners are refusingto deal with pre-contract queries.

It is the view of the commit-tee that the raising of reason-able and appropriate pre-con-tract queries is in accordance

with proper conveyancing prac-tice. It follows, therefore, thatsuch queries should be respond-ed to by a vendor’s solicitor andthat no unreasonable time orother constraints should beimposed in relation to suchqueries.


UPDATE: VHI UNDERTAKINGS

In May of this year, the LitigationCommittee advised practitioners

that the protocol which had exist-ed for many years between theSociety and VHI Healthcare inrespect of solicitors’ undertakingsto the VHI had come to an end.This occurred because, in thecourse of negotiations regardingan increase in the fee paid to solicitors in respect of such under-takings, VHI sought to impose con-ditions which were not onlyunworkable in the society’s viewbut which, in very many cases,would be contrary to clients’ inter-ests. In particular, VHI stated thatit would henceforward seek anundertaking that, subject to anycourt order to the contrary, thesolicitor will repay to VHI, out ofthe proceeds which come intohis/her hands, the full amount ofthe monies paid out by VHI on

behalf of the subscriber/client.Thus, in a case where only part ofthe full value of the claim hasbeen recovered, the client mighthave to pay not only any amountthat he had recovered specificallyin respect of VHI benefits, butcould also have to pay, out of theother damages recovered, anybalance due to VHI.

Practitioners should note that thewording of the undertaking whichVHI is now presenting to solici-tors has been unilaterallychanged to incorporate this newcondition.

As previously advised, practition-ers will in future have to concludetheir own agreement with VHI on acase-by-case basis. Practitionersshould note the following:1. A solicitor has no obligation to

give an undertaking to VHI2. If a client requests that the

solicitor gives such undertak-ing, the solicitor should explainto the client the full effect ofthe undertaking

3. If a practitioner decides, afterdue consideration and discus-sion with the client, that he/shewill provide an undertaking,he/she should be aware of theextent of the personal responsi-bility which this may entail

4. The fee to be paid is a matter ofnegotiation between the solici-tor and the VHI in each case. Inthe recent negotiations withVHI, the society’s representa-tives took the view that a fee ofapproximately �400 would bejustified in respect of undertak-ings in the form which hadbeen agreed heretofore

5. In the case of the ‘old’ form of

undertaking the solicitor’s obli-gation is to repay to the VHI,out of the proceeds that comeinto his/her hands, the netamount recovered in respect ofthe payments made by the VHI.Under the terms of the earlieragreement with VHI governingthat form of undertaking, thesolicitor is the ultimate arbiterof the sums recovered, subjectto a clear explanation being pro-vided to VHI where the fullmonies are not recovered. Thecommittee considers thatwhere a solicitor has given anundertaking to VHI in the ‘oldform’ and where a case is set-tled for a percentage of fullvalue, the payment to VHI ofthat percentage of the amountdue to VHI satisfies the termsof the undertaking.

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LEGISLATION UPDATE: 15 OCTOBER – 15 NOVEMBER 2002ACTS PASSEDEuropean Union (Scrutiny) Act,2002 Number: 25/2002 Contents note: Provides forscrutiny by the houses of theOireachtas of certain proposedmeasures presented by theCommission of the EuropeanCommunities or initiated by amember state, as the case maybe. ‘Measure’ is defined in s1 ofthe act as meaning: a) a regula-tion or directive adopted under thetreaty establishing the EuropeanCommunity; b) a joint actionadopted under article 14 of thetreaty on European Union; c) acommon position adopted underar ticle 15 of the treaty onEuropean Union; d) a measurerequiring the prior approval of bothhouses of the Oireachtas pur-suant to article 29.4.6 of the con-stitution not otherwise mentionedin this definition. Provides that theJoint Committee on EuropeanAffairs shall make an annualrepor t to each house of theOireachtas on the operation of theact in the preceding yearDate enacted: 23/10/2002Commencement date: 23/10/2002

Twenty-sixth Amendment of theConstitution Act, 2002 Contents note: Amends article29.4 of the constitution to enableIreland ratify the Treaty of Niceamending the treaty on EuropeanUnion, the treaties establishingthe European Communities andcertain related acts signed at Niceon 26/2/2001, and to providethat the state shall not adopt adecision taken by the EuropeanCouncil to establish a commondefence pursuant to article 1.2 ofthe Treaty of Nice where that com-mon defence would include IrelandDate enacted: 7/11/2002 Commencement date: 7/11/2002

SELECTED STATUTORY INSTRUMENTSEuropean Communities(Labelling, Presentation andAdvertising of Foodstuffs)Regulations 2002Number: SI 483/2002

Contents note: Consolidate regu-lations on labelling, presentationand advertising of foodstuffsimplementing directive 2000/13/ECCommencement date: 16/10/2002

Hepatitis C CompensationTribunal (Amendment) Act, 2002(Commencement) Order 2002Number: SI 473/2002Contents note: Appoints 9/10/2002 as the commencement datefor all sections of the act

Local Government Act, 2001(Commencement) (No 5) Order2002Number: SI 507/2002Contents note: Appoints 14/11/2002 as the commencement datefor part 12 of the act (ss96-126)(insofar as this part has notalready been commenced) andpart 21 of the act (ss215-220).Part 12 deals with financial proce-dures and audit and part 21 dealswith consequential provisions onfailure to per form functions.Appoints 14/11/2002 also as thecommencement date for the fol-lowing provisions of the act: i) para-graph 5 of schedule 10; ii) s5(1)and part 1 of schedule 3 to theextent specified in part 1 of theschedule to this order (SI507/2002); iii) s5(2) and part 2 ofschedule 3 to the extent specifiedin part 2 of the schedule to thisorder (SI 507/2002); iv) s5(3) andschedule 4 for the purpose of a)the amendment to the LocalGovernment (Ireland) Act 1898 inthe manner stated in column 3 ofschedule 4 of the 2001 act; b) theamendments to the LocalGovernment (Financial Provisions)Act, 1978 in the manner stated incolumn 3 of schedule 4 of the2001 act; c) the amendment to theLocal Government (FinancialProvisions) Act, 1997 in the man-ner stated in column 3 of schedule4 of the 2001 act; v) s231 (jointdrainage committees). Appoints1/1/2003 as the commencementdate for s135 of the act (report oncapital programme). Appoints1/1/2004 as the commencementdate for s1(4) of the act (collectivecitation)

Prevention of Corruption(Amendment) Act, 2001(Commencement) (No 2) Order2002Number: SI 477/2002Contents note: Appoints 4/11/2002 as the commencement datefor s4(2)(c) of the act. All otherprovisions of the act came intoforce on 26/11/2001 (per SI519/2001)

Registration of Births(Amendment) Regulations 2002Number: SI 493/2002Contents note: Part 6 of theschedule to the Social Welfare(Miscellaneous Provisions) Act,2002 provides for an amendmentto s1 of the Registration of BirthsAct, 1996 to allow for a change ofsurname, where jointly agreed bythe parents, of children whosebir ths are being re-registeredunder the Registration of Birthsand Deaths Acts, 1863 to 1996or the Legitimacy Act, 1931.These regulations provide for con-sequential amendments to theRegistration of Births Regulations1988 (SI 123/1988) and for theupdating of the forms set out inparts I and II of the schedule tothese regulationsCommencement date: 15/10/2002

Road Traffic Act, 1961 (Section103) (Offences) Regulations2002Number: SI 492/2002Contents note: Provide that thefixed-charge system will be appliedto the offence of exceeding aspeed limit. Also prescribe theform of the notices and docu-ments to be used where a memberof An Garda Síochána alleges thata speeding offence has been com-mitted, the amounts which a per-son who is liable to be prosecutedmay pay as an alternative to theinstitution of a prosecution, detailsof the penalty points that will beendorsed on the driver’s entry inthe licence record following pay-ment of a fixed charge and thesteps that must be taken by a reg-istered owner to identify the driverwhere he or she was not using thevehicle at the time of the commis-sion of the alleged offence

Commencement date: 31/10/2002

Road Traffic Act, 2002(Commencement) Order 2002Number: SI 491/2002Contents note: Appoints 31/10/2002 as the commencement datefor ss1, 11, 21, 23, 24 and 26 ofthe act and for reference no 7(offence of exceeding the speedlimit under s47 of the Road TrafficAct, 1961) in schedule I of the act(penalty points). Appoints31/10/2002 as the commence-ment date for ss2 to 7 and s22 ofthe act insofar as these sectionsapply to an offence under s47 ofthe Road Traffic Act, 1961 andappoints 31/10/2002 as thecommencement date for s25(2) ofthe act, as respects offencescommitted after 31/10/2002,insofar as it applies to s104 ofthe Road Traffic Act, 1961

Solicitors (Advertising)Regulations 2002 Number: SI 518/2002 Contents note: Prescribe detailedrules for advertising by solicitors.Set out the procedures for investi-gations by the Law Society of apossible breach of the regulationsand the subsequent finding of abreach of the regulations by the Disciplinary Tribunal. Revokethe Solicitors (Advertising)Regulations 1996 (SI 351/1996)with effect from 1/2/2003 Commencement date: 8/11/2002 (per reg 1(b)), subject to reg1(c), which provides that the regu-lations shall not apply to adver-tisements that are publishedbefore 1/2/2003

Solicitors (Amendment) Act,2002 (Commencement) Order2002Number: SI 494/2002Contents note: Appoints 1/11/2002 as the commencement datefor ss1 to 7 inclusive, 10, 12 to18 inclusive, 21 and 22 of theact. Appoints 1/12/2002 as thecommencement date for s8 of theact and 1/1/2003 as the com-mencement date for ss9, 11 and19 of the act.

Prepared by the Law Society Library

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Personal injury judgment

CASE Luke Boyne v Bus Átha Cliath and James McGrath, judgment of Finnegan P of 11 April 2002.

Passenger on bus – state of intoxication – passenger getting off bus – passenger injured by bus – issue of liability– contributory negligence – issue of extent that passenger had caused the accident due to his intoxication – lawon intoxication in the context of contributory negligence – dispute as to future loss of earnings – method of calculation of future loss of earnings

THE FACTSLuke Boyne resided on the

South Circular Road,Dublin, and at the time of thejudgment was a single man aged38 years. A diesel mechanic byoccupation, at the date of theaccident giving rise to the claimhe was in the employment of ahaulage company specialising inthe delivery of ready-mixedconcrete. On 20 January 1999at 11pm approximately, MrBoyne sustained serious injuriesas a result of being run over bya bus driven by James McGrath.

On the night in question, the51B Dublin bus left Dublin city

centre at 10.30pm to travel toBawnogue. Mr Boyne boardedthe bus at Thomas Street. Onthat day, he had finished workwith his employer at approxi-mately 8pm. In an adjoiningpremises, he had carried outwork on a car in a private capac-ity and delivered the repairedcar to Baker’s public house inThomas Street at approximately9pm. He had something todrink there and later thatevening had some more to drinkin O’Neill’s public house inThomas Street. In total, MrBoyne admitted to drinking six

pints. He boarded the bus, buthad no subsequent recollectionof the events of the evening.

Derek McKeown was a pas-senger in the bus at the back ofthe lower deck. He saw MrBoyne board the bus. He saw MrBoyne sitting on the side seat onthe left-hand side of the bus.During the journey, Mr Boynewas swaying in the seat and MrMcKeown formed the view thathe was under the influence ofalcohol. Mr Boyne and the pas-senger, Mr McKeown, alightedat the same bus stop. MrMcKeown pressed the bell and

moved towards the front of thebus, but before he got there, MrBoyne stood in the aisle withoutmaking any progress towardsthe door at the front of the bus.When the door of the busopened, Mr McKeown sprangfrom the bus to the kerb.Shortly thereafter, he heard amoan and, on looking around,he saw Mr Boyne falling to theground and being run over bythe rear wheel of the bus, whichcontinued on its journey. MrBoyne issued proceedingsagainst Bus Átha Cliath and thedriver James McGrath.

THE JUDGMENTThe case came before Mr

Justice Joseph Finnegan,who delivered judgment on 11April 2002. Having outlined thefacts, the judge referred to aninvestigation by a garda, whofound blood on the roadway.The judge found that the bushad travelled some 25 feetbefore it came in contact withMr Boyne. A necessary corol-lary of that fact was that, onalighting from the bus, MrBoyne proceeded past the frontof the bus and in the directionof the ‘travel’ of the bus and thatthe accident occurred in thecourse of the bus overtaking MrBoyne.

The president of the HighCourt referred to the evidenceof the driver of the bus, Mr

McGrath, who recalled MrBoyne boarding the bus atThomas Street. Mr McGrathconsidered that Mr Boyne wasvery drunk and had difficulty ingetting on the bus and, indeed,Mr McGrath had some con-cerns as to whether he shouldcarry Mr Boyne, but he kept aneye on him throughout thejourney. Finnegan P sum-marised the evidence of thedriver of the bus as to thedemeanour of Mr Boyne bydescribing him as being ‘pleas-antly drunk’. Before getting offthe bus, Mr Boyne had put 50pin the bus driver’s tray, presum-ably by way of gratuity. He wasslow getting off and, once hehad alighted, Mr McGrath, thedriver, had no further recollec-

tion of him. The driver wascompletely unaware of the acci-dent.

The issue of liabilityFinnegan P said he did notknow if Mr Boyne reached thefootpath and lost his balancethere and stumbled against thebus or if he was walking on theroadway. However, of the twopossibilities, the judge stated themost likely one, having regardto the evidence, was that the busstopped some distance from thepavement and Mr Boyne neverreached the footpath. Mr Boyneproceeded past the front of thebus and in the direction the buswas travelling and the accidentoccurred in the course of thebus overtaking him while Mr

Boyne was on the roadway. Thejudge considered that MrMcGrath, the driver of the bus,was well aware of Mr Boyne’scondition and ought to havetaken particular care by keepinghim under observation toensure that the bus would passhim in safety. The driver did notdo so and the evidence was thathe had lost sight of Mr Boyneonce he had alighted from thebus.

The issue of contributory negligenceBus Átha Cliath and the driverpleaded contributory negli-gence, stating that, among othermatters, Mr Boyne failed tohave any or adequate regard forhis own safety, primarily by rea-

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son of the excessive consump-tion of alcohol. In effect, it wasargued that Mr Boyne was theauthor of his own misfortune.

Finnegan P stated that theonus of establishing contributo-ry negligence was on the defen-dants. Where there is no directevidence, reliance must beplaced on inference as a matterof probability as to whatoccurred (Clancy v Commissionerof Public Works in Ireland [1992]2IR 449 at 467).

The issue of intoxicationEssentially, Finnegan P foundthat Mr Boyne, due to his intox-icated state while on the road-way and before reaching thefootpath, stumbled and fellagainst the bus and then underthe wheel of the bus.

The president referred to theissue of drunkenness inCharlesworth on negligence(eighth edition) at paragraph 3-48, which stated that: ‘theexcuse of drunkenness has to beregarded when considering con-tributory negligence’. Theauthor continued: ‘A drunkenman cannot demand from hisneighbour a higher standard ofcare than a sober man or pleaddrunkenness as an excuse for nottaking the same care of himselfwhen drunk as he would havetaken when sober’ (McCormick vCaledonian Railway [1903]).

The judge then referred to anumber of cases. In McEleney vMcCarron and Another ([1993] 2IR 132), an accident occurredwhen the plaintiff, who wasdrunk, was being assisted to hishome by two girls and he fell onthe road. The girls had succeed-ed in moving his body so that hislegs were on the footpath andhis torso on the road when thesecond defendant’s carapproached. The girls movedonto the footpath and attemptedto attract the attention of thedefendant. The defendantbelieved the girls wished tothumb a lift and did not stop hiscar and ran over the plaintiff’shead causing him severe person-al injuries. In the High Court,the plaintiff was found guilty of

contributory negligence andfault was apportioned at 30% tohim. The defendant appealed tothe Supreme Court, where itwas held that the defendant, inthe circumstances of that case,was not negligent. The courtexpressed no opinion on thequestions of contributory negli-gence and the apportionment offault.

In Judge v Reape ([1968] IR226), referred to by Finnegan P,the plaintiff had consumed aconsiderable amount of alcoholbefore accepting a lift in thedefendant’s motor car, when heknew or ought to have knownthat the defendant was drunk.The defendant did not denynegligence but pleaded that theplaintiff knew well that thedefendant was drunk and so wasguilty of contributory negli-gence. The jury found that theplaintiff had not been negligent.The Supreme Court on appealfound that there was plain evi-dence of contributory negli-gence and ordered a retrial.

Finnegan P applied the fol-lowing principles:• If a plaintiff is under the

influence of alcohol to anextent that affects his abilityto take care of himself andwhether he knows or oughtto know of the risk he is run-ning, this is a factor relevantto the existence and theextent of a defendant’s dutyof care

• In assessing the plaintiff’sconduct for the purposes ofcontributory negligence, hisintoxicated state is to be dis-regarded and this is notwith-standing his intoxicated state.He knew or ought to haveknown of the risk which hewas running or was incapableof so knowing.

In the circumstances of thepresent case and in apportion-ing liability, Finnegan P tookinto account the circumstancesthat the driver of the bus wasaware of the intoxicated condi-tion of Mr Boyne and the extentof his intoxication. In so far asMr Boyne was concerned, the

president evaluated his conductas if he were sober. The judgewas satisfied that Bus ÁthaCliath and the driver did nottake reasonable care.Undoubtedly, if Mr Boyne hadbeen sober, he would havemoved himself promptly into aposition of safety some wayfrom the bus and would nothave stumbled against andunder the bus, as he did.Finnegan P apportioned liabili-ty of 75% to Bus Átha Cliathand 25% to Mr Boyne.

The extent of the injuriesFinnegan P described MrBoyne’s injuries as ‘horrific’. MrBoyne was treated at TallaghtHospital. He was an in-patientfor almost six months. He hadsome 21 procedures, 20 ofwhich were under generalanaesthetic and one under localanaesthetic. From anorthopaedic point of view, themovement of his right knee wasvirtually non-existent and in theright ankle he had a passiverange so that he was just able toget his heel to come to thefloor.

Mr Boyne’s left leg was func-tioning normally. The right legwas virtually useless. In thefuture, the question of amputa-tion might arise, in which eventthere would be some difficultiesin fitting a satisfactory prosthe-sis in view of his extensive scar-ing. Mr Boyne’s ability to workwas seriously compromised,although he could do sedentaryor office work which did notrequire physical exertion. Skingrafts had become infected andhad taken several months toheal.

Not surprisingly, Mr Boynedeveloped a reactive depressionin February and March 2000.This had improved over time.However, Mr Boyne still suf-fered from mild to moderatemood changes and anxiety andwas a nervous passenger. It wasexpected that his psychiatriccondition would resolve. Amedical specialist expressed theview in evidence that it wouldhave been better for Mr Boyne

had his leg been amputated atthe beginning, as this wouldhave resulted in less pain, morefunction and a better overallresult.

The issue of future loss ofearningsThe issue of future loss of earn-ings is often contentious and itwas contentious in this particu-lar case. It was agreed betweenthe parties that Mr Boyne’sfuture loss of earnings shouldbe calculated on the basis of anet weekly loss of £175 (�222).Finnegan P noted that the taskof the court in assessing dam-ages in the context of future lossof earnings is to arrive at a lumpsum which represents as near aspossible full compensation to aplaintiff. In this case, the multi-plicand had been agreed but theparties differed as to the multi-plier; there was no agreement asto the assumed real rate ofreturn on capital, that is, thereturn net of tax and manage-ment expenses and the assumedrate of inflation. The higher theassumed rate of return on capi-tal, the lower will be the lump-sum award.

Finnegan P stated that thecourts have taken the approachthat inflation can be taken intoaccount by the assumption thata plaintiff can invest a lump-sum award and, more particu-larly, that it could be investedpartly in equities and partly ingilts, resulting in both a hedgeagainst inflation and a reason-able degree of security. In theUnited Kingdom, this approachwas reviewed in detail in Wells vWells ([1998] 3 All ER 481), thatreview being prompted by theavailability in the UnitedKingdom of index-linked gov-ernment stock which in addi-tion to providing an incomealso guaranteed that the capitalsum preserved its real value bybeing index-linked to the retailprice index. Finnegan P notedthat there was no equivalentinvestment available in thisjurisdiction.

The president of the HighCourt was impressed by the

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approach of the Court ofAppeal in Wells v Wells to theeffect that it was for the court tohold the balance evenlybetween both sides and, just asa plaintiff was entitled to anaward which achieves as near aspossible full compensation forthe injuries sustained, so alsothe defendant was entitled totake full advantage of the pre-sumption that a plaintiff wouldadopt a prudent investmentstrategy once he receives hisaward. Finnegan P was satisfiedthat a prudent investor having alump sum to invest wouldapportion the same betweengilts and equities. The appor-tionment in any particular case,however, would depend on theparticular circumstances.

Based on evidence presentedto the High Court, Finnegan Pconsidered that a percentage of70% invested in equities and30% in gilts (to include 5.6% inproperty and 4.7% cashdeposits) was reasonable andprudent. Finnegan P acceptedthe evidence that there was nosuch thing as a risk-free invest-ment and that the risk associat-ed with investment in gilts wasless than that in investment inequities.

The investment policy of theWards of Court Office (onadvice) follows a general policyin relation to longer-term funds(that is, over ten years) of main-taining a 70% to 30% equitiesand gilt split. Finnegan P there-fore considered that course tobe one which a prudentinvestor would follow and heregarded Mr Boyne as having aduty to act reasonably to miti-gate his damages and it should

be assumed that he would fol-low the course of a prudentinvestor.

The next matter to be deter-mined on the basis of the evi-dence was the return to beexpected if such an investmentpolicy were to be pursued. First,Finnegan P adopted the view ofthe House of Lords in Wells vWells that in the case of a plain-tiff it should not be assumedthat the income on investmentswould be reinvested. However,it appeared to Finnegan P thatsome account must be taken ofthe possibility of investingincome. The evidence for MrBoyne was that the real rate ofreturn on a portfolio containing70% equities and 30% giltswould be 2.9%. For Bus Átha

Cliath, the evidence was thatthe real rate of return on a splitportfolio would be 4% and per-haps even somewhat higher. MrBoyne’s calculations were on thebasis that income would not bereinvested, while Bus ÁthaCliath’s calculations were on thebasis that it would.

Having regard to the evi-dence and the view whichFinnegan P took of the coursewhich a prudent investor wouldpursue and the obligation of aplaintiff to act reasonably tomitigate his damages by actingas a prudent investor, the judgeaccepted Mr Boyne’s evidenceas to the real rate of return.That required some adjustmentto take account of the possibili-ty of reinvesting income to

some extent. Making thisadjustment, Finnegan P foundthat the appropriate multiplier,having regard to Mr Boyne’sparticular circumstances, shouldbe calculated on the basis of areal rate of return of 3%.

Finnegan P then consideredthe work history of Mr Boyne.He commenced employment in1978 as an apprentice mechanicand continued with thatemployer until 1983, followingwhich he remained out of workfor a year. He then obtainedemployment as a static guardwith a security company for oneyear. In 1985, he resumedemployment as a mechanic andcontinued in that employmentuntil 1990, after which he wasunemployed for some two years(other than for some casualwork). In 1992, Mr Boyne againobtained employment as a secu-rity guard for one year, afterwhich he returned to his tradeand continued to work until thedate of the accident.

Finnegan P had the opportu-nity of assessing Mr Boynewhile he gave evidence andaccepted that it was likely that,were it not for his accident, hewould have continued to workuntil the age of 65. Havingregard to the serious nature ofhis injuries and the difficultieswhich Mr Boyne experienced incarrying out his work, FinneganP stated that it was now unlike-ly that he would continue towork until 65 and was likely thathe would cease to work alto-gether in about 15 years’ time,at age 55.

This judgment was summarised bysolicitor Dr Eamonn Hall.

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General damagesPain and suffering to the date of the trial: £75,000 (�95,230)Pain and suffering into the future: £75,000 (�95,230)Agreed special damages: £60,111.77 (�76,326.20)Loss of earnings to date of trial: £43,019.77 (�54,623.84).

Future loss of earnings Taking into consideration Mr Boyne’s employment history pre-accident, and that it was appropriate to make some reductionunder Reddy v Bates, and further taking the view that notwith-standing that Mr Boyne would be unfit for full employmentbetween the ages of 55 to 65, he had special skills as a dieselmechanic and was likely to engage in some intermittent orcasual employment, Finnegan P abated the total award forfuture loss of earnings of £192,400 (�244,297) by 10%, whichresulted in a net award under this heading of £173,160(�219,867).

Total: £426,291.54 (�541,278.55).

Mr Boyne, having contributed to the accident by his own negli-gence to the extent of 25%, this total sum must be reduced inthat propor tion. Mr Boyne was awarded the sum of£319,718.65 (�405,958.95).

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UpdateNews from Ireland’s on-line legal awareness serviceCompiled by Karen Holmes for FirstLaw

CRIMINAL

Case stated, road traffic Defective summons – defendantcharged with offence unknown tolaw – whether defect in summonsmisled or prejudiced defendant –whether circuit judge entitled toamend summons to reflect amend-ed statutory provisions – CountyOfficers and Courts (Ireland)Act 1877, section 76 – RoadTraffic Act, 1961, section 49 –Road Traffic (Amendment) Act,1978, section 10 – Road TrafficAct, 1994, section 10The defendant was convictedin the District Court in cir-cumstances where the DistrictCourt judge had before her asummons which charged thedefendant with driving with aconcentration of alcoholexceeding 100 milligrams per100 mls of blood contrary tosection 49 of the Road TrafficAct, 1961, as inserted by sec-tion 10 of the Road Traffic(Amendment) Act, 1978.Section 10 was repealed andreplaced by section 10 of theRoad Traffic Act, 1994, theeffect of which was to replace80 milligrams of alcoholinstead of 100 milligrams. Thatconviction was appealed to theCircuit Court on the groundsthat the complaint made by theprosecuting garda was defec-tive and bad on its face, in thatit charged an offence whichwas not known to law, in thatthe offence of driving while thealcohol concentration in a per-son’s blood exceeded 100 mil-ligrams per 100 mls of bloodwas abolished by the act of1994. The Circuit Court, on anapplication by the state solici-tor, amended the defect in thesummons, and the convictionand order of the Circuit Courtreferred to the relevant offence

under the act of 1994. Thedefendant requested theCircuit Court to state a case tothe Supreme Court for itsopinion as to whether: ‘Thecourt was correct in law in soholding that it was entitled toamend the charging clause ofthe original summons to reflectthe statutory provisions as con-tained in the Road Traffic Act,1994’.

Geoghegan J (Denham andHardiman JJ concurring) heldthat the question stated that thecourt was not correct in makingthe amendment on the infor-mation then before it andremitted the case to the CircuitCourt, stating that the powersof amendment of the CircuitCourt in District Court appealswhich are contained in section76 of the County Officers andCourts (Ireland) Act 1877 areonly applicable in a case wherethe appellant was tried in theDistrict Court for the offencefor which he appears to havebeen convicted by reference tothe order. If the defendant wastried for a non-existent offence,he cannot have a convictionentered against him in respectof an existing offence. If thathappens, it cannot be cured byamendment. There could nothave been a valid convictionunder the 1994 act in theDistrict Court in the absence ofan amendment at the hearing,particularly having regard tothe increase in penalties effect-ed by the 1994 act.DPP (complainant) v Canniffe(defendant), Supreme Court,29/10/2002 [FL6175]

Certiorari, convictionJudicial review – certiorari – con-viction – road traffic offence –applicant sought order quashingorder of district judge – whether

insufficient evidence to supportconviction – whether judge exceed-ed his jurisdiction – whether recallof witness in unusual circum-stances gave rise to suspicion thatprocedures unfair – Road TrafficAct, 1961, s49 The applicant sought an orderof certiorari quashing the orderof the district judge whereby heconvicted and sentenced theapplicant for a road trafficoffence. The applicant claimedthat there was fundamentalunfairness in the trial and thatthe district judge exceeded hisjurisdiction in the manner inwhich he conducted the trial.The applicant argued that therewas no evidence of the time thatthe accident occurred and, as aresult, there was insufficientevidence to support a convic-tion. The applicant also arguedthat the judge had recalled awitness in unusual circum-stances, which gave rise to thereasonable perception that fairprocedures had not been fol-lowed.

O’Higgins J granted theorder sought, holding thatwhile evidence of the time ofthe accident was an essentialpart of the prosecution case andthe absence of such proofwould be fatal, the applicanthad not established that therewas no evidence before the dis-trict judge of the time of theaccident, and as a result hecould not succeed on thisground. However, the unusualcircumstances in which the dis-trict judge had recalled a wit-ness might give rise to a suspi-cion by an impartial observerthat fair procedures had notbeen adopted.Flynn v District Judge Kirby,High Court, Mr JusticeO’Higgins 19/12/2000[FL6239]

Certiorari, fair proceduresJudicial review – certiorari –refugee law – immigration andasylum – deportation – practiceand procedure – fair procedures –whether fair procedures followed –whether lack of reasoning in for-mulating decision – Refugee Act,1996 – Immigration Act, 1999 –Illegal Immigrants (Trafficking)Act, 2000The applicants sought leave toinstitute judicial review pro-ceedings to challenge the deci-sion to refuse them refugee sta-tus. The applicants contendedthat the decision was flawed fora number of reasons. It wasargued that the minister hadunfairly obtained informationrelating to the applications (inparticular, information onNigeria) from the Home Officein the United Kingdom. It wasalso contended that there hadbeen an impermissible delega-tion of function in the makingof the decision and that therewas a lack of reasoning behindthe decision.

Mr Justice Smyth dismissedthe applications. The ministerhad an obligation to be au faitwith country of origin informa-tion and the Home Office in theUnited Kingdom was an inter-nationally reliable source. It wasnot the function of the court toadvise the minister on how torun his department. There wasno lack of reasoning in the deci-sion and the applications wouldbe dismissed.Eduok and Others v Ministerfor Justice and Others, HighCourt, Mr Justice Smith,3/10/2002 [FL6229]

EvidenceCriminal law – evidence – casestated – fair procedures – GardaSíochána – contemporaneous notes– whether District Court judge

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correctly dismissed charge –whether evidence by garda admissi-ble – Summary Jurisdiction Act1857 – Courts (SupplementalProvisions) Act, 1961The respondent had been pros-ecuted with a drink-drivingoffence contrary to sections49(3) and (6)(a) of the RoadTraffic Act, 1961. While the casewas at hearing before theDistrict Court, one of the gardaí involved in the case gaveevidence from his garda note-book. The District Court judgetold the garda that he had notsought the court’s permission torefer to his notes. The DistrictCourt judge then dismissed thecharge on the basis that thegarda had given evidence with-out the permission of the court.A case was stated for the opinionof the High Court as to whetherthe District Court judge wascorrect in law in dismissing thecharge.

Ó Caoimh J held that theDistrict Court judge had incor-rectly dismissed the charge.This was not a case about thereception of illegally obtainedevidence. What was at issue waswhether the judge was entitledto exclude the evidence of agarda in circumstances wherethe evidence before the courtshowed that this was supportedby notes made contemporane-ously. The facts as outlined sug-gested that the garda in questionwas entitled to refer to his notesas a matter of law and that thiswas not a matter in which thejudge had a discretion. Strictlyspeaking, the garda should haveindicated that he wished to referto his notes. The judge erred intreating as inadmissible the evi-dence of the garda and had erredin law in dismissing the charge.DPP v Clifford, High Court,Mr Justice Ó Caoimh,22/7/2002 [FL6219]

CHILDREN AND YOUNGPERSONS

Sexual offences, tribunals, Statutory interpretation – purposeof legislation – right to fair hear-

ing – right to legal representation– right to vindication of one’s goodname – practice direction given byapplicant – number of legal repre-sentatives limited at hearing –whether applicant had jurisdictionto give direction in suit –Commission to Inquire intoChild Abuse Act, 2000, sections4, 12, 14, 20 and 25 –Bunreacht na hÉireann, article40.3The applicant made an orderdetermining that it was just andappropriate that, in the courseof giving evidence before theinvestigation committee, allparties entitled to appearshould have their legal repre-sentation limited to therebeing present on behalf of suchparties a solicitor and onecounsel only, on the groundsthat, in light of section 4 of theact of 2000, it was necessary soas to provide an atmospherethat is sympathetic to andunderstanding of persons whoallege that they were sexuallyabused. Having so determined,it applied to the High Courtpursuant to section 25(1) of the2000 act to seek the court’sapproval in that regard.

In refusing an order pur-suant to section 25(1) of the2000 act, Kelly J held that theapplicant did not have jurisdic-tion to make the direction ofthe type which it did. Further,if there was such jurisdiction, itwas one which was to be exer-cised in such a manner as notto substantially interfere withthe rights of the notice partiesand the interests of justice.The giving of such a directionhad to be done in such a way asto be compatible with therights of others and therequirements of justice. He wassatisfied that a substantialinterference with the right ofrepresentation was beingeffected when the applicantwas engaged in conducting aninvestigation of a type where aparty to the proceedings was atrisk of having his good namejeopardised. As the right tolegal representation before atribunal was a constitutional

one, justice required that par-ties be permitted to have pres-ent at all relevant times legalrepresentation of their choicein whatever number wasrequired to prosecute or defendclaims before the applicant tobest effect.In the matter of an applicationpursuant to section 25(1) of theCommission to Inquire intoChild Abuse Act, 2000, HighCourt, Mr Justice Kelly,9/10/2002 [FL6276]

FAMILY

DivorceMaintenance – lump-sum pay-ment – division of assets – proper-ty – policy of equal division – ruleof equality – conduct of parties –whether ‘clean break’ principleexists in Irish law – whetherdivorce decree should be granted –Family Law (Divorce) Act,1996, sections 5, 20 – Bunreachtna hÉireann 1937The applicant and respondentwere married in 1980. Theapplicant sought a divorce pur-suant to the terms of the FamilyLaw (Divorce) Act, 1996. Therespondent opposed the grant-ing of a divorce and insteadsought a decree of judicial sep-aration. There were three chil-dren from the marriage.Evidence was given that theassets of the applicant were inthe region of £20 million (inthe Supreme Court, a figure of£15 million was arrived at),whereas the respondent hadassets of around £1 million.Issues also arose relating to thepayment of maintenanceand/or a lump-sum payment.In the High Court, Mr JusticeLavan held that there was noreasonable prospect of a recon-ciliation between the parties.The respondent had made avery special financial contribu-tion to the marriage and hadassisted to a substantial degreein establishing her husband’spractice. A sum of £5 millionwould be paid by the applicantto the respondent without thepayment of continuing mainte-

nance. To one of the children,who was still an infant, £800 amonth would be paid in main-tenance. No order would bemade in relation to the othertwo children, as these would bediscussed with the applicant.Certain orders were also madein respect of pension provi-sions. The judge also held thatan appropriate report wasrequired pursuant to the 1996act in relation to determiningaccess between the youngestchild and the applicant. Theapplicant appealed the orderregarding the payment of £5million and the apportionmentrelating to the payment of 55%of the applicant’s pension poli-cy, which had been in partbased on wrongdoing commit-ted by the applicant. It wasargued that the High Courtjudge had been wrong inordering a lump-sum paymentand had been in error in treat-ing the date of the hearing asthe appropriate time for thevaluation of assets.

The Supreme Court dis-missed the appeal. Keane CJheld that the relevant Irish leg-islation precluded the ‘cleanbreak’ principle. However,Irish law could accommodatethose aspects of the principlewhich were clearly beneficial,and it was not correct to saythat the legislation went so faras to virtually prevent financialfinality. Ultimately, a trialjudge must be satisfied that anyfinancial orders made underthe 1996 act constituted prop-er provision for each of thespouses and their dependentchildren. To a limited extent, acourt might be justified in‘ample money’ cases in treatingone-third of the net assets ofthe earning partner as theappropriate yardstick at thelower end of the scale. Theappropriate time for the valua-tion of assets was at the date ofthe hearing. The trial judgewas entitled to exercise his dis-cretion in awarding therespondent a lump sum of £5million to be paid in instal-ments. However, the miscon-

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duct the trial judge had foundwith regard to the applicantdid not entitle him to alter theallocation of the pension planand the appeal in this regardwould be allowed. Denham Jheld that the fundamentalprinciple was that of making ofmaking ‘proper provision’.There was nothing in the legis-lation which prohibited themaking of a lump-sum order.The appeal would be dismissed,apart from the appeal withregard to the pension order.Murphy J (dissenting) held thata ‘clean break’ was not anoption and the current legisla-tion required that proper pro-vision be made for each spouse.The 1996 act made no refer-ence to division of assets. Thematter must be remitted to theHigh Court in order to deter-mine the proper provision.Murray J agreed with the judg-ment of the chief justice andheld that a court, in appropri-ate circumstances, might seekto achieve certainty and finali-

ty in the continuing obligationsof the divorced spouses to oneanother. Fennelly J agreed alsowith the judgment of the chiefjustice.T(DMP) v T(C), SupremeCourt, 14/10/2002 [FL6167]

Pensions, property Division of assets – property –family home – pension adjustmentorder – Family Law (Divorce)Act, 1996The applicant wife obtained adecree of divorce in the CircuitCourt whereby the familyhome was transferred into hersole name and she was grantedsole occupancy of the house.Orders were also made that shereceive 45% of the respon-dent’s pension benefits and alump sum of £5,000, plus a fur-ther £5,000 in costs. The housewas transferred into the appli-cant’s sole name in light of therespondent’s unacceptablebehaviour in the manner inwhich he pursued an applica-tion for planning permission in

relation to the property with-out the involvement of theapplicant. Those orders wereappealed to the High Court bythe husband.

Abbott J affirmed the orderof the Circuit Court in relationto the grant of divorce and theorder transferring the familyhome into the sole name of theapplicant, but reduced from45% to 40% the portion of therespondent’s pension that theapplicant was entitled to and,vacating the lump sum andcosts orders, held that theFamily Law (Divorce) Act, 1996was a relieving piece of sociallegislation through which thecourt could digress from strictproperty rights, and the pri-mary obligation on the courtunder it was to ensure that thespouse of the provider hasproper provision. In circum-stances where the applicant wasin poor health and there waslikely to be continuing litiga-tion over assets, the only way toavoid the threat of continuing

litigation in relation to the fam-ily home was to transfer it intothe applicant’s sole name. Onthe basis that the applicantwould have the benefit of aproperty adjustment order inrelation to the family home, therelevant pension order was var-ied downwards to 40%. Noorder was made as to the HighCourt costs, which was not tobe seen as an adjudication onthe merits but rather an ele-ment of compensation to therespondent in light of the prop-erty adjustment order. T(T) v T(T), High Court, MrJustice Abbott, 26/6/2002[FL6266]

The information contained here is taken from FirstLaw’s LegalCurrent Awareness Service, pub-lished every day on the Internet atwww.firstlaw.ie. For more infor-mation, contact [email protected] or FirstLaw, MerchantsCourt, Merchants Quay, Dublin8, tel: 01 679 0370, fax: 01 6790057.

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EurlegalNews from the EU and International Affairs CommitteeEdited by TP Kennedy, director of education, Law Society of Ireland

This note is intended to sum-marise two recent Irish

developments in the area of pub-lic procurement:• The recent judgment of the

Supreme Court in the SIACcase, in which the standard ofjudicial review in public pro-curement cases was clarified

• The new Competition Act,2002, which has serious impli-cations for those involved inthe practice of ‘bid-rigging’.

SIAC Construction Ltd v MayoCounty CouncilThis recent decision of theSupreme Court is probably oneof the most important in the areaof public procurement to date, asit establishes the standard ofjudicial review to be adopted bythe courts in hearing challengesto public tenders governed bythe European Community pro-curement rules.

On 14 February 1992, MayoCounty Council advertised in theIrish national newspapers, invit-ing tenders from civil engineer-ing contractors for the carryingout of major sewerage works.The advertisement stipulatedthat the lowest tender would notnecessarily be accepted. On 20February 1992, a contract noticewas published in the Official journal of the EuropeanCommunities. It stated that theaward criteria would be based onthe most advantageous tender inrespect of cost and technicalmerit.

The council received 24 ten-ders, three of which were short-listed, namely:• SIAC Construction Ltd,

which produced the lowesttender

Public procurement: recent Irish developments• Pat Mulcair, who produced

the second-lowest tender andto whom the contract wasultimately awarded, and

• Pierse Contracting Ltd,which produced the third-lowest tender.

The council awarded the con-tract to Mulcair. The followingreasons were cited for notawarding the contract to SIAC,notwithstanding the fact that ithad produced what appeared onpaper to be the lowest bid:• SIAC’s failure to specify a

completion date as requiredin the contract notice

• SIAC’s failure to price majoritems of work in its bills ofquantity, which renderedproper management and con-trol extremely difficult, and

• SIAC’s withdrawal, by meansof a 100% reduction, of aprovisional sum of £90,000.

In the opinion of the council’sconsulting engineer, SIAC’spricing proposals left too muchroom for uncertainty and, asMulcair’s bid was more com-plete, it was more likely to bethe lower tender.

High CourtSIAC sought a number of reliefsfrom the High Court by way ofan application for judicialreview:• A declaration that the coun-

cil’s decision to reject SIAC’stender was null and void andin breach of directive71/305/EEC and/or theEuropean Communities (Awardof Public Works Contracts)Regulations 1992 (SI no 36 of1992)

• A declaration that the councilacted ultra vires and/or with-out jurisdiction in rejectingSIAC’s tender

• A declaration that the accept-ance by the council ofMulcair’s tender was inbreach of the directive andthe implementing regula-tions, and

• Damages (SIAC did not seekto set aside or suspend thecouncil’s contact withMulcair).

SIAC argued in particular thatthe decision of the council wasultra vires because:• In rejecting SIAC’s tender on

the basis that it failed to pro-vide a completion date, thecouncil had taken an irrele-vant matter into account inthat the period for comple-tion was not a contractual cri-terion for the award of thecontract, and

• The methodology and rea-soning adopted by the coun-cil’s consulting engineers inthe comparison of the threelowest corrected tenders,which resulted in the coun-cil’s decision that SIAC’s ten-der was not the most eco-nomically advantageous, wasso unreasonable and irra-tional, on various grounds ofirrelevancy and self-misdirec-tion, as to be ultra vires.

In her judgment of 17 June 1997,Laffoy J first addressed SIAC’sargument that the council hadconsidered an irrelevant matter,namely, the absence of a comple-tion date. Notwithstanding thefact that the council’s consultingengineers found this omission to

be very serious, she found thatthe evidence established thatthey overcame their reservationsinsofar as they did not rejectSIAC’s tender on this ground.Accordingly, in her view, SIACfailed to establish that the coun-cil took into account a matterthat it should not have taken intoaccount. (This ground was notraised again on appeal.)

With regard to SIAC’s con-tention that the council’s deci-sion was unreasonable or irra-tional, Laffoy J held that it is notthe court’s function in reviewingthe exercise of a contractingauthority’s discretionary powerof selection to conduct an appealon the merits of its decisions.Rather, the court’s function wasto determine whether the coun-cil’s decision was unreasonablein the sense that it ‘plainly andunambiguously flew in the faceof fundamental reason and com-mon sense’.

Due to the highly competi-tive nature of the tender processin this case, a large measure ofprofessional judgement andexpertise as to the final out-turncame into play on both sides. Inthe judge’s view, it was not thecourt’s function to assess thetwo conflicting professionalopinions to determine whichone was correct on the balanceof probabilities. The court’sfunction was to determinewhether SIAC had establishedthat the council’s decision wasunreasonable in the sensedescribed above. Laffoy J con-cluded that SIAC had not dis-charged that onus and accord-ingly dismissed its claim andrefused to grant any of thereliefs sought.

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Supreme CourtSIAC appealed the decision ofLaffoy J to the Supreme Court.It argued a new point before thecourt: that the council couldonly take into account the ten-der price and not the ultimatecost to the council, as this hadnot been notified to tenderers.The Supreme Court stayed theappeal in order to make a refer-ral to the ECJ for a preliminaryruling under article 234 of theEC treaty.

On 18 October 2001, morethan four years after Laffoy J’sjudgment, the ECJ gave itsjudgment (case C-19/00). Itdetermined that where a con-tracting authority chooses toaward a contract to the mosteconomically-advantageoustenderer, this confers a certainamount of discretion on theauthority. However, this doesnot have the effect of conferringan unrestricted freedom ofchoice as regards the awardingof a contract to a tenderer, asthis would be incompatible witharticle 29 of directive 71/305.The mere fact that an awardcriterion relates to a factual ele-ment, which will be known pre-cisely only after the contract hasbeen awarded, cannot beregarded as conferring any suchunrestricted freedom on thecontracting authority.

The ECJ ruled that it istherefore permissible for a pub-lic authority to take intoaccount the ultimate cost of thebids, provided that this awardcriterion was clearly stated inthe contract notice or contractdocuments and the professionalopinion is based in all essentialpoints on objective factorsregarded in good professionalpractice as relevant and appro-priate to the assessment made.

On 9 May 2002, more thanten years after the council hadfirst tendered the contract, theSupreme Court gave its judg-ment.

The Supreme Court quicklydisposed of SIAC’s new argu-ment that the criterion of ulti-mate cost was not mentioned inany of the contract documents.

It concluded that as SIAC hadnot previously argued this pointbefore the High Court, it couldnot do so on appeal. As a result,the Supreme Court held thatclaim to be inadmissible. Thecourt did remark in passing,however, that it would havebeen ‘desirable if the court hadspecified that the award wouldbe made with due regard to theultimate cost of the bids’.

With regard to the unreason-ableness of the council’s deci-sion, the Supreme Courtbelieved that the test Laffoy Jhad applied, namely, that a deci-sion must plainly and unam-biguously fly in the face of fun-damental reason and commonsense was too extreme. Such aformulation of the test wouldrun the risk of not offering pro-tection of the interests of disap-pointed tenderers, as theRemedies directive clearly man-dates. Instead, the SupremeCourt found that the appropri-ate test was one of ‘manifesterror’, given the ‘explicit con-cession of a wide margin of dis-cretion to contracting authori-ties’.1

In the Supreme Court’s view,however, such a discretion is notunlimited: where there is a fail-ure to meet the principles ofequality, transparency or objec-tivity on the part of the con-tracting authority, there couldbe no question of permitting awide margin of discretion.

It viewed this case as involv-ing a highly speculative andcompetitive contract. Moreover,the costs of the contract couldnot be accurately determined atthe time of the award. In thesecircumstances, the SupremeCourt held that the countycouncil acted within its permit-ted margin of discretion and fol-lowed objective and objectivelyverified criteria. Thus, theSupreme Court affirmed theHigh Court order.

The Supreme Court alsoconsidered the notion of dam-ages under domestic and EClaw, although none were award-ed in this case. Under theRemedies directive, the state is

required to provide a judicialremedy for the purposes of fullyimplementing directive 71/305.It concluded that the courtsmust render those provisionseffective in favour of those in aposition to invoke them. Thetwo principles to be taken intoaccount in that regard are equiv-alence (the remedy must be atleast as favourable as that avail-able in national law for a similarcomplaint) and effectiveness (aremedy that will offer appropri-ate and sufficient protection forthe EC law rights in question).

Finally, the Supreme Courtrejected SIAC’s argument thatthe council should have soughtclarification of its pricing meth-ods on the basis that this wouldoffer one tenderer the opportu-nity to adopt a method of pric-ing not available to other com-petitors.

The decision of the SupremeCourt on the test to be appliedin the judicial review of publicprocurement decisions is likelyto provide only limited comfortto unsuccessful tenderers, as the‘manifest error’ test still affordscontracting authorities a widemargin of discretion. It is equal-ly clear, however, that there willbe no margin of discretionafforded where breaches of ECpublic procurement rules andgeneral principles of EC law,such as equality and non-dis-crimination, are concerned.

It will be interesting to seehow the ‘test of manifest error’is applied in practice by thecourts. It is submitted that,notwithstanding the less oner-ous test introduced by theSupreme Court, courts will con-tinue to adopt a conservativeapproach to overturning or pro-viding declaratory relief inrespect of decisions of contract-ing authorities in this area.

The case also underlines thatcontracting authorities shouldtake great care in specifying inthe contract notice the awardcriteria in any given contractgoverned by EC procurementrules, which in all cases shouldbe ‘objective and objectivelyverified’.

Finally, in this writer’s view,the court’s view that the councilshould not have sought clarifica-tion on the basis that this wouldoffer one tenderer the opportu-nity to adopt a method of pric-ing not available to other com-petitors is flawed and representsa misunderstanding of EC lawin this area. It is submitted thatthe seeking of clarifications,which is permitted under ECprocurement law, is usuallyhelpful to contracting authori-ties in arriving at a decision toselect (or reject) an interestedbidder or to award a given con-tract. It is not so much the clar-ification itself which is the prob-lem; rather, it is the treatment ofthe information provided inresponse. Clearly, if the infor-mation provided in response toa request for clarification adoptsan approach or methodologynot available to other competi-tors, then steps need to be takenby the contracting authority toensure equality of treatment andto avoid discrimination. It is tobe hoped that contractingauthorities will not be discour-aged from seeking clarifications,where necessary, as a result ofthe Supreme Court’s otherwisewelcome judgment.

Increased penalties for collusive tenderingThe Competition Act, 2002 wassigned into law in April 2002.2

One of the main purposes of theact is to provide extensive powersto enforce Irish, and potentiallyEC, competition law more effec-tively. Under the CompetitionAct 2002 (Commencement) Order2002, part 2 of the act, which setsout the principal competitionrules and the ways in which theymay be enforced, came intoeffect on 1 July 2002.

The act repeats the prohibi-tion of restrictive agreementsand concerted practices and theabuse of a dominant position. Interms of enforcing these rules,the act introduces harsherpenalties for certain ‘hardcore’competition law infringements,including collusive tendering or‘bid-rigging’. For this offence,

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the act raises the maximum jailsentence from two to five years.Under Irish criminal law, anyperson subject to an investiga-tion carrying a possible jail sen-tence of five years or more maybe arrested in the course of aninquiry. Accordingly, personsengaged, or suspected of beingengaged, in bid-rigging may bearrested and interrogated bymembers of the gardaí. An

undertaking found guilty of acollusive tendering can be finedup to �4 million or 10% of itsannual turnover, and its direc-tors or managers may be subjectto imprisonment.

In this context, it is worthrecalling that in 1997 theCompetition Authority pub-lished Guidelines on the detectionand prevention of collusive tender-ing on public sector contracts,

which, while in need of updat-ing to reflect the recent legisla-tive changes, still serve as a use-ful tool in helping public bodiesto detect bid-rigging.

John Gaffney is a partner in theDublin law firm William Fry. Hewishes to thank Gayle McGratten,a trainee solicitor with WilliamFry, for her valuable assistance inpreparing this article.

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Footnotes1 The Supreme Court referred

to a number of ECJ deci-sions, including case C-120/97 Upjohn Ltd v LicensingAuthority ([1999] ECR I-223).

2 See Hickey, The new competi-tion regime: Competition Act,2002, Gazette (October 2002,page 45) for a useful sum-mary.

New motor vehicle distributionblock exemption. On 1 August2002, the commission publisheda new block exemption concern-ing motor vehicle distribution.The new regulation replacescommission regulation 1475/95of 28 June 1995 and sets out theterms that a car distributionagreement must satisfy in orderto escape the application of theEC treaty competition rules.

The commission stated thatexperience acquired in the motorvehicle sector regarding the dis-tribution of new motor vehicles,spare parts and after-sales servicesmakes it possible to define cate-gories of vertical agreements thatcan be regarded as normally satis-fying the conditions laid down inarticle 81(3). This experience ledthe commission to the conclusionthat rules stricter than those pro-vided for by commission regula-tion (EC) no 2790/1999 of 22December 1999 on the applica-tion of article 81(3) of the treatyto categories of vertical agree-ments and concerted practices arenecessary in this sector.

‘Listing’ of sporting events. On8 August 2002, the commissionpublished details of the consoli-dated measures taken by fourmember states in accordance witharticle 3(a)2 of council directive89/552/EEC, known as theTelevision without frontiers directive.

Italy, Germany, the UnitedKingdom and Austria provideddetails of the measures taken atdomestic level to list certain

sporting events that must bemade available ‘free to air’ inthose member states. From anIrish perspective, it is interestingto note that Italy, Germany andAustria listed all competitivefootball matches involving thenational team, both home andaway. The United Kingdom list-ed the following sporting events:the Olympic Games, the FIFAWorld Cup Finals, the FA CupFinal, the Scottish FA Cup Final,the Grand National, the Derby,the Wimbledon Tennis Finals,the European FootballChampionship Finals, the RugbyLeague Challenge Cup Final, theRugby World Cup Finals, crickettest matches played in England,non-finals played in theWimbledon tournament, allother matches in the RugbyWorld Cup Finals, Six NationsRugby Tournament matchesinvolving home countries, theCommonwealth Games, theWorld Athletics Championship,the Cricket World Cup (final,semi-finals and matches involv-ing home nations’ teams), theRyder Cup and the Open GolfChampionship.

Competition law and UEFAChampions League. On 17August 2002, the commissionpublished a notice pursuant toarticle 19(3) of council regulationno 17 concerning caseCOMP/C.2/37.398 on the jointselling of the media rights of theUEFA Champions League on anexclusive basis. The commission

stated that it intends to take afavourable view in respect ofUEFA’s revised joint sellingarrangement. Before adopting afavourable opinion, the commis-sion invited third parties to sendtheir observations.

Financial services: amendedproposal on prospectuses. On 9August 2002, the EuropeanCommission presented anamended proposal for a directiveon prospectuses, taking accountof the European Parliament’sopinion on the original proposalput forward by the commissionon 30 May 2001.

The amended proposal wouldmake it easier and cheaper forcompanies to raise capitalthroughout the EU, while rein-forcing protection for investorsby guaranteeing that all prospec-tuses, wherever in the EU theyare issued, provide them with theclear and comprehensive infor-mation they need to make invest-ment decisions. The directivewould introduce a new ‘singlepassport for issuers’. This meansthat, once approved by theauthority in one member state, aprospectus would then have to beaccepted everywhere else in theEU. In order to ensure investorprotection, that approval wouldonly be granted if prospectusesmeet common EU standards oninformation disclosure.

Commission adopts proposal toimplement ban on conflict dia-monds. On 8 August 2002, the

European Commission adopted aproposal for a council regulationconcerning a community certifi-cation scheme for the interna-tional trade in rough diamonds.The purpose of the certificationscheme is to prevent ‘conflict’ or‘blood’ diamonds from fuellingarmed conflicts, such as those inAngola, Sierra Leone and the DRCongo, thereby contributing tothe EU’s policy on conflict pre-vention (see http://europa.eu.int/comm/external_relations/cpcm/cp.htm for further details). An effec-tive ban will deprive rebel move-ments of significant finances andwill therefore be an importantcontribution to peace and stabil-ity. The scheme also aims toprevent conflict diamonds fromdiscrediting the legitimate mar-ket for rough diamonds, whichmakes an important economiccontribution, not least to certaindeveloping countries in Africa.Less than 4% of global diamondproduction is regarded asinvolving ‘conflict diamonds’,while a number of developingcountries that are major produc-ers and processors of diamondsdepend heavily on the legitimatediamond industry for their eco-nomic and social development.The underlying certificationscheme has been developed inthe ‘Kimberley process’, withthe active participation of theEU.

Cormac Brennan is a trainee solici-tor with the Dublin law firmMcCann FitzGerald.

G

Recent EU legislative developments:August 2002

Recent developments in European law

Briefing


52

ASYLUM

On 25 April, the council reachedagreement on a proposed direc-tive to guarantee the same mini-mum standards for asylum-seek-ers in the EU member states.Minimum standards would beguaranteed in relation to educa-tion, accommodation and health-care. Asylum-seekers would havefreedom of movement within thehost state.

COMPANY LAW

The commission has presented aproposal to modify the First com-pany law directive (68/151/EEC)to make company informationmore readily available to the pub-lic and to simplify the disclosureformalities required from compa-nies. The proposed amendmentsare also designed to take fulladvantage of modern technology.Companies would be able to filetheir documents by either elec-tronic means or by paper. Memberstates would be required to makethe filing of company documentsby electronic means possible from1 January 2005.

EMPLOYMENT

Sexual harassmentOn 17 April 2002, the parliamentand council reached agreementon a proposed directive on sexual

harassment (Com (2001) 321).The directive defines sexualharassment as any ‘form ofunwanted verbal, non-verbal orphysical contact of a sexualnature that occurs with the pur-pose or effect of violating the dig-nity of a person in particularand/or creating or administering ahostile, degrading, humiliating oroffensive environment’. Employ-ers will be required to take pre-ventative measures against allforms of discrimination, includingsexual harassment. If an employ-ee proves the incidence of sexualharassment, the burden of prooflies with the employer to showthat the necessary steps weretaken to avoid its occurrence.

Temporary workersOn 20 March 2002, the commis-sion published a draft directive ongeneral principles for equal treat-ment of temporary workers. Thedirective will give temporaryagency workers the right to thesame pay and conditions as regu-lar employees, where their work isequivalent and the worker profilesare similar. Temporary workers willbe able to take advantage ofmaternity and sick leave, pensionsand training. Employment agen-cies will be obliged to ensure thatcompanies employing temporaryworkers comply with the rules.These provisions will not applywhere the worker is a permanent

employee of the agency and if theemployment relationship itselfaffords adequate protection to theworker. It will not apply in caseswhere an employee is replacing abetter-qualified or more experi-enced employee or if the employ-ment relationship itself gives ade-quate protection to the worker.

FAMILY LAW

On 22 May 2002, the commissionreleased a proposal for a new reg-ulation on recognition and enforce-ment of judgments in matrimonialmatters and in matters of parentalresponsibility. This proposal wouldamalgamate the current Brussels IIregulation (1347/2000), a com-mission proposal on parentalresponsibility and a French initia-tive on rights of access. The draftproposes to confer jurisdiction inmatters of access to the courts inthe member state of the child’shabitual residence. The decision ofthe court of the child’s habitualresidence has to be complied withby the authorities of the memberstate in which the child is found,within one month of the child beinglocated. The court in the state ofcurrent location may order a provi-sional stay for the child if it consid-ers that it would be dangerous forit to return. However, the final deci-sion on custody is with the courtsin the state of the child’s habitualresidence.

LITIGATION

European enforcement orderThe commission has adopted aproposal to create a Europeanenforcement order for uncontest-ed monetary claims in civil andcommercial judgments. Thismeasure is designed to comple-ment regulation 44/2001 (theBrussels I regulation). At presentto enforce a judgment under theBrussels I regulation, a numberof intermediate steps are neces-sary. The order will eliminatethese in the case of uncontestedclaims being enforced in othermember states. As with BrusselsI, it will not apply to wills and suc-cession rights, tax, customs oradministrative claims, bankrupt-cy or insolvency proceedings,social security or arbitration. Acreditor will be free to obtainsuch an order when a debtor hasagreed to the debt in court pro-ceedings or where the debtordoes not appear in court whenthe claim in heard. It is theresponsibility of the memberstate where the judgment isgiven to ensure that all the pro-cedural rules have been applied,as, once granted, there is noright of appeal against the order.The proposed regulation hasbeen forwarded to the council forits approval. The UK and Irelandmay opt in to this regulation, ifadopted. G

New service from the Law SocietyTRIBUNAL AND ARBITRATION CENTRETribunal and arbitration facilities at Bow Street Friary:• Five minutes from Four Courts• Tribunal room with PA system and public gallery• State-of-the-art recording system• Six consultation rooms

Also suitable for:• Board meetings• Training sessions

For booking phone: 01 804 4150

People and places


53

Everything's rosyPictured at the recent launch of Key issues in

planning and environmental law (Butterworths, 2002)at Blackhall Place are (from left) Kate Byrne, authorJohn Gore-Grimes and Chief Justice Ronan Keane

Any bequests?The Galway University Foundation at NUI Galway held a seminar in August for solicitors, tax

experts and other professional advisors on the issue of legacies and bequests. Thepurpose was to share the experience of US practitioners in this area, and the seminar was

led by San Francisco-based attorney Judith Hehir. Pictured at the seminar are (from left)James Costello of KPMG, Galway University Foundation’s Joe McKenna, Ray Murphy of NUIGalway’s law faculty, Una Jordan, Maria Quinn, Judith Hehir, Jerry O’Leary of Ernst & Young,

Michael Cunningham, Adrian Harris, Elizabeth Cazabon, Prof Liam O’Malley and Bruce St John Blake

Negligible benefitsPictured at the society’s recent CLE seminar onavoiding professional negligence are (from left)

Patrick Groarke of Groarke & Partners, Brian SpierinSC and Brian Gallagher of Gallagher Shatter,

Solicitors

Guess who’s coming to dinner?The president’s dinner table resembled a Cabinet table one night recently when GeraldineClarke hosted a remarkable group of senior government figures. An Taoiseach Bertie Ahernwas the guest of honour. All the lawyers who sit at the Cabinet table (except minister for for-eign affairs Brian Cowen, who was unavailable) were in attendance. In addition to ministersJohn O’Donoghue and Dermot Ahern, together with attorney general Rory Brady SC, who arepictured above, the group was later joined by justice minister Michael McDowell, who was

delayed by business in the Dáil

Last of the summer wineThe Law Society recently hosted a lunch in honour of solicitors from the class of

Michaelmas 1952. The event, which was organised by Law Society stalwart Colm Price andattended by director general Ken Murphy and president Geraldine Clarke, honoured thosesolicitors who qualified 50 years ago. The roll of attendees read: Eileen Bourke, BrendanBoushel, Finbarr Callanan, George Fairbrother, Frank Keane, Mary King, Brendan O’Flynn,

Brian Overend, Pat Markey, Nora Murphy, Jack Phelan, Brian Price, Colm Price David Punch,Tim Ryan, David Warren and Reggie White

Sibling rivalryFor the second year running, sisters Aisling and RuthNicAoidh from Dundrum, Dublin, have won the Gael

Linn moot court competition. High Court judgeAindrias ó Caoimh (above) presented the sisters

with the award

People and places


54

Take ’em to MissouriThe Magee College Summer Law Academy, run by the University ofMissouri (Kansas City) in co-operation with UCD’s law faculty, is an

intensive, six-week summer programme for US law students. This year,the academy’s third, it joined forces with Suffolk College, Boston, which

mounted a CLE programme for US attorneys at the Law Society, inconjunction with UMKC. Pictured at the Law Society dinner in honour ofthe academy are (from left) academy co-director Dermot Cahill of UCD,academy director Prof Edwin T Hood of the University of Missouri, RTÉ

journalist Mark Little, Law Society director of education TP Kennedy andUMKC’s Fred K Green

Aconference on the EuropeanConvention on Human Rights

Bill, 2001 was held by the LawSociety together with the HumanRights Commission on Saturday19 October, while the future ofEurope was being decided by theIrish electorate.

The conference was chaired byMr Justice Adrian Hardiman in themorning and the president of theHuman Rights Commission, DrMaurice Manning, in theafternoon. The Minister forJustice, Equality and Law Reform,Michael McDowell, spoke on therationale for the form of

incorporation chosen in the bill.He was followed by Prof WilliamBinchy, a member of the HumanRights Commission, who spokeon the advantages anddisadvantages of the approachtaken and possible alternatives.Solicitor Muriel Walls spoke onthe implications and short-comings of the bill from apractitioner’s point of view. ProfAlan Miller of Scotland spoke onthe working of the UK’s HumanRights Act 1998 in practice andthe lessons to be learned fromthat experience. Solicitor AnnaAustin of the Court of HumanRights in Strasbourg spoke on thelikely implications of the bill forthe implementation of the ECHRinto Irish law and Mr Justice BrianKerr of the High Court of NorthernIreland spoke of his experiencewith applications made under theHuman Rights Act 1998.

Aye, aye, captain!Pictured at the prize-giving at the Lady Solicitors’ Golf Society Captain’sDay at Mount Wolseley Golf and Country Club in September are (fromleft) Moya Quinlan; Yvonne O’Gara, winner of the Captain’s Prize andQuinlan Trophy; society captain Muriel Walls; Marc O’Connor, chief

executive of sponsors Company Formations International; CFI’s Paula O’Connor and incoming captain Mary Molloy

And justice for all

Portfolio House, 10 Springdale Road, Raheny, Dublin 5. Tel: (01) 832 9872 / 832 9849

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People and places


55

Come west along the roadThe then-president Elma Lynch and director general Ken Murphy visited the West Cork Bar Association in

September. Pictured at the event were (front row, left to right): Jim Long, Veronica Neville, Colette McCarthy,Ken Murphy, Elma Lynch, bar association president Con Murphy, Helen Hoare, Cindy McCarthy and RoniCollins; (middle row, left to right): Richard Barrett, Niamh O’Driscoll, Eamonn Fleming, Jim Brooks, CelineBarrett, Susan Fleming, Anne Lynch, Aine O’Donovan, Vivienne Ring, Lorna Brooks, Virgil Horgan, Kevin

O’Donovan, Anne Marie Hourihane and Ted Hallissey; (back row, left to right): Tony Greenway, Maeve O’Driscoll,Geraldine Crean, Joan O’Donovan, Ellen O’Mahony and Mairead Casey

Southern StarsThe Southern Law Association recently held its annual general meeting in Cork. Pictured with the AGM atten-dees were (front row, left to right): SLA treasurer Sean Durcan, director general Ken Murphy, then-presidentElma Lynch, SLA president Patrick Dorgan, vice-president Fiona Twomey and secretary Jerome O’Sullivan

Northern lightsLaw Society director general Ken Murphy and then-president Elma Lynch recently visited the Donegal Bar Association. Pictured on the occasion were(front row, left to right): Ken Murphy, Phylis McRory, Niall Sheridan, Elma Lynch, Thomas A Morrow, Margaret Mulrine, Judge John O’Donnell, Roisin

Doherty; (middle row): Laura McCloughan, Mura Bronwe, Michael Fogarty, Valerie Kearins, Berni Smith, Michelle Kennedy and Fiona Browne; (back row): Marshall McCloughan, Sean Boner, Brendan Twomey, Pat McTyler, Brian McMullin, Andrew Morrow, Marie Cullen, Frank Dorrian,

Yvonne McFadden and Patrick Sweeney

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CONTENTS

All proceeds from the Law SocietyGazette Yearbook and Diary will go the Solicitors’ BenevolentAssociation

A record �20,351.16 was raised for the Solicitors’ Benevolent Association from the proceeds of the Law Society Gazette Yearbook and Diary 2002. Pictured above are Elma Lynch, president

of the Law Society, and Thomas Menton, chairman of the Solicitors’ Benevolent Association, receiving a cheque from Gazette advertising manager Seán Ó hOisín

Apprentices’ page


57

SADSISolicitors Apprentices Debating

Society of Ireland The SADSI ball 2002The highlight of the SADSI

social calendar wasundoubtedly the SADSI ball,which took place on Saturday 2November in the Conrad Hotel,Dublin. The evening began witha wine reception kindlysponsored by LandwellSolicitors, followed by a five-course banquet with wine. Musicwas provided by the Kaye Twins,who were absolutely brilliant andreally got the crowd going. TheDJ then played ’til the earlyhours of the morning.

Sincere thanks are owed to allof our sponsors. There is nodoubt that we would not havebeen able to have as good a nightwithout the support of thefollowing firms: McCannFitzGerald, Arthur Cox, A&LGoodbody, Mason Hayes &

Curran, BCM Hanby Wallace,LK Shields, Rochford BradyLaw Searchers, Ellis & EllisLaw Searchers, McMahonO’Brien Downes, Dermot GO’Donovan & Partners,Connolly Sellors Geraghty Fitt,and Holmes O’Malley Sexton.

Many thanks are also owed tothe firms and enterprises thatsponsored our spot prizes. Therewere fantastic prizes on offer,including international rugbytickets (sponsored byDonnybrook Laundry), a digitalcamera (sponsored by Pixels onLiffey Street), a gift basket ofNeutrogena goodies (sponsoredby Johnson & Johnson),champagne and chocolates fromMOP, and a bottle of wine fromOsborne Recruitment.

Thanks also to Bizquip, whosponsored the tickets. Finally, thestaff of the Conrad must beacknowledged. They looked afterus well from start to finish,providing a fantastic room,excellent food and superb service. Julie Brennan, easternrepresentative

SADSI is pleased toannounce that it is hostingChristmas parties in Dublin,Galway, Limerick and Cork.Please contact your regionalrepresentative for furtherdetails.

The second Law SocietyIrish examination is taking

place on Wednesday 8January. Many trainees havecomplained about having totake an exam that isessentially a repeat of onethat they have already passed.Your views on the matter are,of course, welcome and wewould be happy to makerepresentations on yourbehalf in relation to this.

In the short term, however, in an effort to alleviate thefrustration among traineesand obviously to assist in theexamination preparation, weare putting together a SADSIgaeltacht weekend that willinclude the chance to practiceour Irish, enjoy a céilí andtake part in a shortpreparation course.

This weekend will takeplace only if the demandwarrants it.Martin Hayes, auditor

Following a most successfuland enjoyable year as SADSI

auditor, it is now time for me toformally thank you all for yourparticipation and support ofeach of the events and initiativeswe have undertaken this year.

Two key annual events – the SADSI careers day and theSADSI ball – built uponprevious years’ experience andproved to be extremely popularonce again. On a regional level,we are pleased that so many ofthe social events were so wellattended. Thanks to all traineeswho are helping to make SADSIevents around the countrycontinuously successful. It isencouraging to note that thesociety’s debating heritage isbeing maintained and we hopethat the trainees will encouragethe SADSI debating team invarious forthcomingcompetitions. Keep an eye onthe SADSI website for furtherinformation on these events.

The SADSI sports committeeadded a most enjoyable new

(Above and below) Trainee solicitors having a ball

Parting shots from the auditordimension to our organisedactivities, and it is hoped thatwe will have more opportunitiesto take on our colleagues in theKing’s Inns in the near future.Please remember that SADSI isalways delighted to receive ideasfor sporting events and willendeavor to realise those thatare possible.

The 2002 SADSI careers daybrought together a wealth ofknowledge from a widespectrum of the profession.Feedback from attendingtrainees indicated that thepurpose of the day had beenachieved, for many trainees feltthat they had gained a greaterinsight into our options for thefuture. This year’s event wasgenerously sponsored byBenson & Associates LegalRecruitment.

This year’s committee hasbeen working hard behind thescenes since coming into officelast January. Their generosityof spirit and organisationalskills should be noted. SADSI

simply could not survivewithout the willingness of thecommittee members to sharetheir own free time for thebenefit of all other busytrainees. Please continue tosupport the 2003 committee inorder to ensure that thewonderful 188-year-old SADSItradition is maintained.

I would hope that all traineestake an active role in decidingwho the new auditor will be.Prospective nominees can findout more about what theposition entails, by contactingme at [email protected]. Martin Hayes, auditor

Gaeltachtweekend

REGIONAL EVENTS:CHRISTMAS PARTIES

SOLICITORThe Redress Board has been established by

the Residential Institutions Redress Act, 2002to make financial awards to persons who as

children were abused while resident inindustrial schools, reformatories and similar

state institutions.

The Board is seeking an experienced andenergetic solicitor to advise and assist themembers of the Board and Counsel to the

Board on all aspects of the process of dealingwith applications for redress. The duties of

the post will involve the discharge of allfunctions normally carried out by a solicitor,

and will include advising the Board in relation to the settlement of applications and

assisting the Board in the conduct ofhearings. Experience of personal injury

litigation in the Circuit Court and/or HighCourt is preferable, as is the ability to form

part of a team dedicated to processingapplications informally and expeditiously.

Remuneration will depend on qualificationsand experience.

Further details of this appointment may beobtained by contacting the Board’s Registrar,

Mr. T. McCarthy, at 01 268 0029.

Please submit your application in writing,giving full details of your qualifications and

experience, to The Chairman, ResidentialInstitutions Redress Board, Belfield Office

Park, Beech Hill Road, Clonskeagh, Dublin 4.

The closing date for applications is Monday, 16 December 2002.

TRUSTEES

SO ARE WE.For almost 160 years, St. Vincent de Paul volunteers have served the community all around Ireland.

Using the money and resources provided by a generous public. To tackle real need in the most effective way.

Working today with families, children, homeless, elderly, marginalised -through a growing range of personaland community services.

Including hostels, social housing, educational supports, “good-as-new” shops, youth clubs - as well as cash assistance and food!

We’re trusted to use funds wisely.

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Professionalinformation


59

LOST LANDCERTIFICATES

Registration of Title Act, 1964An application has been receivedfrom the registered owners men-tioned in the schedule hereto for theissue of a land certificate as stated tohave been lost or inadvertentlydestroyed. A new certificate will beissued unless notification is receivedin the registry within 28 days fromthe date of publication of this noticethat the original certificate is in exis-tence and in the custody of some per-son other than the registered owner.Any such notification should state thegrounds on which the certificate isbeing held.(Register of Titles), Central Office, LandRegistry, Chancery Street, Dublin(Published 6 December 2002)

Regd owner: Joan Doyle; folio:1203F; lands: Coolnacuppoge andAghabeg and barony of IdroneEast; Co Carlow

Regd owner: Richard Nolan andCarmel Nolan; folio: 16631F;lands: Ballytarsna and Knocklowerand barony of Carlow; Co Carlow

Regd owner: Liam and CarolineBradley, Baunmore, Moyasta,Kilrush, Co Clare; Folio: 16783;lands: townland of Baunmore,Moanmore South andCarrowmore South and barony ofMoyarta and Ibrickan; Co Clare

Regd owner: Donal Hayes; folio:15061F; lands: a plot of groundbeing part of the townland ofMilltown and barony of Ibane andBarryroe; Co Cork

Regd owner: Joseph O’Mahony(deceased); folio: 28133 (nowincorporated in folio 9109F, CoCork); lands: townland ofBallynacarriga, electoral division ofKilleagh and barony of Imokilly;area: 91.169 acres; Co Cork

Regd owner: Patrick O’Mahony;folio: 14072; lands: a plot ofground being part of the townlandof Agharinagh and barony ofMuskerry East; Co Cork

Regd owner: Hannah Sheehan; folio:54883F; lands: a plot of groundknown as site no 16 LotamoreDrive, situate in the townland ofLotamore and barony of Cork; CoCork

Regd owner: Mary McGeehin,Meenatinney, Fintown, CoDonegal; folio: 107R; lands:Meenatinney; area: 57.0859 hec-tacres; Co Donegal

Regd owner: Francis O’Donnell,Ardara, Co Donegal; folio: 30706;lands: Ardara; area: 0.2828; CoDonegal

Regd owner: Patrick Gildea,

ADVERTISING RATES

All advertisements must be paid for prior to publication. Deadline for Jan/FebGazette: 24 january 2003. For further information, contact Catherine Kearneyor Valerie Farrell on tel: 01 672 4828 (fax: 01 672 4877)

• Lost land certificates – �46.50 (incl VAT at 21%)• Wills – �77.50 (incl VAT at 21%)• Lost title deeds – �77.50 (incl VAT at 21%)• Employment miscellaneous – �46.50 (incl VAT at 21%)

HIGHLIGHT YOUR ADVERTISEMENT BY PUTTING A BOX AROUND IT – �30 EXTRA

Advertising rates in the Professional information section are as follows:

GazetteLawSocietyDrumbaran, Ardara, CountyDonegal; folio: 5566R; lands:Drumbaran; area: 1.6656 acres; CoDonegal

Regd owner: James Gerald Gormley,Upper Main Street, Ballyshannon,Co Donegal; folio: 4014; lands:Cashelard; area: 21.3375 acres; CoDonegal

Regd owners: Edward Halleron andCecelia Halleron, c/o Reid &Sweeney, Solicitors, Ballyshannon,Co Donegal; folio: 39815F; lands:Ardfarn; area: 0.283 hectares; CoDonegal

Regd owner: Maria O’Donnell,Caravan Road, Dungloe, CoDonegal; folio: 34624; lands:Dunglow; area: 0.1625 acres; CoDonegal

Regd owner: Sheila Byrne; folio:DN18257; lands: property situatein the townland of Clonsills andbarony of Castleknock; Co Dublin

Regd owners: Vanessa Grehan andPeter D’Arcy; folio: DN56953F;lands: property situate in the town-land of Drinan and barony ofCoolock; Co Dublin

Regd owner: Michael McCarthy;folio: DN2010; lands: property sit-uate in the townland of Shallonand barony of Nethercross; CoDublin

Regd owner: Musgrave Limited;folio: DN1259F; lands: propertysituate in the townland ofRobinhood and barony ofUppercross; Co Dublin

Regd owner: Raymond Paul Sheedy;

folio: DN9459L; lands: propertysituate on the west side of KilmoreRoad in the parish of Coolock anddistrict of Coolock West; CoDublin

Regd owner: Maureen Leevy; folio:DN51485L; lands: property situ-ate in the townland Haroldsgrangeand barony of Rathdown; CoDublin

Regd owners: William Johnston andElizabeth Johnston; folio:DN44898L; lands: property situ-ate in the townland of Kilboggetand barony of Rathdown; CoDublin

Regd owner: John Coughlan(deceased), Esker, Banagher, CoGalway; folio: 42794; lands: town-land of Esker and barony ofLongford; area: 0.40468 hectares;

Co GalwayRegd owner: Gleeson Developments

Company (Ireland) Limited,Lenaboy, Galway; folio: 17209 &30133; lands: townlands ofCloghahatisky and Lenaboy andbarony of Costello; Co Galway

Regd owner: Matthew O’Donnell,Barraderry, Carraroe, Co Galway;folio: 54234; lands: townland ofKeeraunbeg and barony ofMoycullen; area: 1.0142 hectares;Co Galway

Regd owner: the Governor andCompany of the Bank of Ireland,Trustee Department, Ferryhouse,48/53 Lower Mount Street in theCounty of Dublin. Folio: 49684;Co Galway; area: 0 Acres 3 Roods6 Perches Lands: a plot of land sit-uate in Errisbeg East in the town-

Inquiry into the structures and operation ofthe Court Rules Committees

Invitation for written submissions

The Minister for Justice, Equality and Law Reform has requested the Committee

on Court Practice and Procedure to inquire into the structures and operation of the

Court Rules Committees and to consider whether the cost of litigation could bereduced and the convenience of the public and the efficient despatch of court

business could more effectively be served by making changes, by legislation or

otherwise.

The Committee invites written Submissions from the general public, which should

be forwarded on or before the 31st day of December 2002 to:

The Secretary

Committee on Court Practice and Procedure

c/o The Principal Registrar

The High Court

Four Courts

Committee on Court Practiceand Procedure



60

land of Ballynahinch; Co GalwayRegd owner: Mary Teresa Gaire;

folio: 19830; lands: townland ofFoildarrig and barony ofClanmaurice; Co Kerry

Regd owner: Thomas O’Connor;folio: 22702; lands: townland ofGarrynadur and barony ofCorkaguiny; Co Kerry

Regd owner: Charles Byrne; folio:4622; lands: Coolnambrisklawm orCoolnacoppoge and barony ofFassadinin; Co Kilkenny

Regd owner: Patrick Reade(deceased); folio: 10305; lands:Kilmacow and barony of Iverk; CoKilkenny

Regd owner: Thomas Delaney(deceased); folio: 1398, 1416, and8254; lands: Farnans andBallynakill and barony ofSlievemargy; Co Laois

Regd owner: Patrick Fahy; folio:9174; lands: Moneyquid andParkbeg and barony ofTinnahinch; Co Laois

Regd owner: John Finnerty; folio:23113; lands: townland ofShanagolden and barony ofShanid; Co Limerick

Regd owners: Hugh Mulcahy and PatKearney; folio: 26492; lands: town-land of Rivers and barony ofClanwilliam; Co Limerick

Regd owner: Andrew Rice; folio:14493; lands: townland ofBottomstown and barony ofSmallcounty; Co Limerick

Regd owner: Edward O’Grady; folio:

4051; lands: townland ofMountminnet and barony ofClanwilliam; Co Limerick

Regd owner: Martin Dunne, BarrackStreet, Charlestown, Co Mayo;folio: 9404; lands: townland of LavyBeg and barony of Costello; area: 4a3r and 19.5p; Co Mayo

Regd owner: Margaret PhilomenaFeehan, Brockagh, Cuilmore,Newport, Co Mayo; folio: 10572;lands: townlands of Brockagh andToorgarve and barony ofBurrishoole; area: 8.8268 hectares;Co Mayo

Regd owner: Christopher McNevin;folio: 3839; lands: Towlaght andbarony of Moyfenrath Upper; CoMeath

Regd owner: Erin HorticultureLimited; folio: 211L; lands:Derrinlough and barony of English;Co Offaly

Regd owner: Eileen Flynn; folio: 8487;lands: Curraghvarna and Portavolla(Banagher) and barony ofGarrycastle; Co Offaly

Regd owner: Rita Gunning; folio:1024F; lands: Bellmount or Lisdergand barony of Garrycastle; CoOffaly

Regd owner: Katie Ellen Higgins,Broher, Charlestown, Co Mayo;folio: 19632; lands: townland ofBunnacranagh and barony of Leyny;area: 3.7584 hectares; Co Sligo

Regd owners: Maura McNally(deceased) and Carmel Cummins,Rathfrask, Moneygold, Sligo; folio:

13663f; lands: townland ofRathfrask and barony of Carbury;area: 1.009 hectares; Co Sligo

Regd owner: Michael Bourke; folio:20402; lands: townland ofBallytohill and barony ofSlievardagh; Co Tipperary

Regd owners: Richard Heffernan andGeoffrey Dooley; folio: 4558;lands: townland of Nickeres andbarony of Clanwilliam; CoTipperary

Regd owner: James O’Neill; folios:8841,8847; lands: townland ofMoanvurrin and barony ofMiddlethird; Co Tipperary

Regd owner: Desmond Young; folio:268F; lands: townland of Corrigaand barony of Ikerrin; CoTipperary

Regd owner: Kieran Patrick Duffy,Cartrons, Fardrum, Athlone, CoWestmeath; folio: 13551; lands:Cartrons, Ballynahownwood,Killomenaghan; area: 23.4437acres, 1.0875 acres, 3.875 acres; CoWestmeath

Regd owners: Joseph and MariaHogan; folio: 25895F; lands:Clonhasten and barony ofBallaghkeen South; Co Wexford

Regd owner: Michael Shelley; folio:7526; lands: townland ofKilladreenan and barony ofNewcastle; Co Wicklow

WILLS

Bennett, Geoffrey Martin(deceased), late of 48 Brookside,Bettystown, Co Meath. Would anyperson having knowledge of a willmade by the above named deceasedwho died on 11 September 1999 orinformation in relation to a wife, defacto partner or children of thedeceased, please contact Paul AMoore & Co, Solicitors, 4 DyerStreet, Drogheda, Co Louth, tel: 041983 2451 or fax: 041 9832992

Burke, Daniel (Ailbe) (deceased),late of Ballyfauskin, Ballylanders, CoLimerick. Date of death: 9 July 2002.Would any person having knowledgeof the whereabouts of a will of theabove named person, please contactKaren Kearney, solicitor, of Michael JO’Callaghan & Son, Solicitors,Mitchelstown, Co Cork, tel: 02524500 or fax: 025 84325, e-mail: [email protected]

Condron (or Condren), Oliver(deceased), late of 1180 Greenfield,Maynooth, Co Kildare and formerlyof Curryhills, Prosperous, CoKildare. Would any person havingknowledge of a will made by theabove named deceased who died on or

about 3 September 2002, please con-tact Mary Cowhey & Co, Solicitors,Main Street, Maynooth, Co Kildare,tel: 01 628 5711 or fax: 01 628 5613

Conway, Mary Ellen (also knownas Maureen and Molly), late of 142Beaumont Road, Whitehall, Dublin9. Would any person having knowl-edge of the whereabouts of a willmade by the above named deceasedwho died on 24 October 2002 aged80 years, please contact PhyllisMcQuillan, 86 Garville Ave, Rathgar,Dublin 6

Freyne Michael (deceased), late of93 Baker’s Road, Gurranabraher inCork city. Would any person havingknowledge of the whereabouts of awill executed by the above nameddeceased on 23 October 1989, whodied on 26 January 1999, please con-tact Edmund W Cogan & Co,Solicitors, 85 South Mall, Cork, tel:021 427 0161, fax: 021 427 3593

Golden, Patrick J (ors Patsy)(deceased), late of James Street,Westport, Co Mayo. Would any per-son having knowledge of a will madeby the above named deceased, pleasecontact James Hanley & Co,Solicitors, The Mall, Westport, CoMayo, tel: 098 26076, fax: 098 26822or e-mail: [email protected]

Griffin, Philomena (deceased), lateof 29 Gandon Close, Harold’s Cross,Dublin 6W. Would any person hav-ing knowledge of a will made by theabove named deceased who died on 2September 2002, please contactTimothy JC O’Keeffe & Co,Solicitors, Abbey Street,Roscommon, Co Roscommon,tel/fax: 0903 26239

Hayden, Daniel (otherwiseDanno), late of Bridge Street,Graiguecullen, Carlow. Date ofdeath: 8 September 2002. Would anyperson having knowledge of thewhereabouts of a will of the abovenamed person, please contact John SO’Sullivan, Solicitor, 14 CastleStreet, Carlow, tel: 0503 30833, fax:0503 30256, e-mail: [email protected]

Harris, Patrick (deceased), late of 14St Kevin’s Road, off ClanbrassilStreet, Dublin 8. Would any personknowing the whereabouts of a will inconnection with the above nameddeceased, please contact Ferry’sSolicitors, 443 South Circular Road,Rialto, Dublin 8, tel: 01 454 4275

Joyce, Joan (otherwise JoanButler) (deceased), late of SarsfieldStreet, Abbeyside, Dungarvan, Co

DUBLIN SOLICITORS’PRACTICE OFFERS

AGENCY WORK IN NORTHERN

IRELAND

* All legal work undertaken on an agency basis

* All communications to clients through instructing solicitors

* Consultations in Dublin if required

Contact: Séamus ConnollyMoran & Ryan, Solicitors,

Arran House,35/36 Arran Quay, Dublin 7.

Tel: (01) 872 5622 Fax: (01) 872 5404

e-mail: [email protected] Bank Building, Hill Street

Newry, County Down.

Tel: (0801693) 65311Fax: (0801693) 62096E-mail: [email protected]

NORTHERNIRELAND

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We will engage in, and advise on,

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61

Waterford. Would any person hav-ing any knowledge of a will beingmade by the above named deceasedwho died on 19 October 2002, pleasecontact JF Williams & Co,Solicitors, Dungarvan

McDermott, Patrick (deceased),late of Deerpark, Manorhamilton,Co Leitrim. Would any person hav-ing any knowledge of a will for theabove named deceased who died on25 October 2002, please contactKelly & Ryan, Solicitors,Manorhamilton, Co Leitrim, ref: KR

McNaught Ruddick, JohnathanFrederic (deceased), late of 10Church Street, Cobh, Co Cork.Date of death: 29 May 2002. Wouldany person having knowledge of thewhereabouts of a will of the abovenamed person, please contactFrancis C Kelleher & Co, Solicitors,1 Pearse Square, Cobh, Co Cork,tel: 021 481 2300 or fax: 021 4812087

Murphy, Cornelius (deceased).Would any person knowing thewhereabouts of a will of the abovenamed deceased who died on 3 July2002 in the Bon Secours Hospital,Cork, aged 59 years, a retiredDistillery worker, please contactDaly Derham & Co, Solicitors, 32Washington Street, Cork, tel: 021427 3269 or fax: 021 427 3260

Murphy, Joseph (deceased), late of130 Cashel Road, Crumlin, Dublin12. Would any person havingknowledge of the whereabouts of awill which was made on 20 October1993, please contact Anthony Harris& Company, Solicitors, 8 SaintAgnes Road, Crumlin Village,Dublin 12, tel: 01 455 4723, fax: 01-455 4596

O’Connor Patrick (Paddy), late ofMoneenally, Williamstowm, CoGalway (otherwise Moneenally,Castlerea, Co Roscommon). Wouldany person having knowledge of awill made by the above nameddeceased who died on 11 April 2002,please contact O’Keeffe, O’Shea,O’Connor, Solicitors, CollegeSquare, Killarney, Co Kerry, tel: 06431137 or fax: 064 34195

Daly, Catherine (deceased) late of 7Market Street, Clogheen, CoTipperary. Would any person havingknowledge of a will made by theabove named deceased who died on 2October 1978, please contact DonalT Ryan & Company, Solicitors,Castle Street, Cahir, Co Tipperary,tel: 052 41244 or fax: 052 42050

EMPLOYMENT

Ambitious and able solicitor withtwo years’ PQE required by estab-lished practice. Attractive packageand prospects for suitable candidate.Apply with CV to Anthony Carroll& Co, Carlton House, Fermoy, CoCork

Assistant solicitor with two years’-plus PQE in conveyancing and liti-gation for Galway practice. Applywith CV to Bruce St John Blake &Co, Solicitors, Ross House,Merchants Road, Galway

Experienced able solicitor (con-veyancing, probate, civil litigation)seeks association with firm in NorthW i c k l o w / R a t h d o w n / D u nLaoghaire. Unusual titles a speciali-ty. Reply to box no 300

Lavelle Coleman, Solicitors, 51/52Fitzwilliam Square, Dublin 2 requirea solicitor with two years’ PQE incommercial and company law. Pleasesend CVs to [email protected] forthe attention of James-Paul Galligan

Legal book-keeping , nine years’experience with solicitors accts soft-ware. Good accountancy back-ground. Will convert from manual tocomputerised accts and assumeresponsibility for same. Thoroughknowledge of LS regulations,accountants’ requirements etc.Highly recommended. Tel: 01 2835760, mobile: 086 3503460

Locum solicitor available, exten-sive experience in all aspects of con-veyancing. Also probate and general.Full/part time or hours flexible tosuit. Full practising cert and owninsurance. Dublin/North Wicklowarea preferred. Fax: 01 667 4361 orreply box no 301

Part-time conveyancing solicitorrequired (hours to suit) to assist withlodging and registration of residen-tial conveyancing backlog. ContactRoddy Tyrell, Tyrell Solicitors, 56Haddington Road, Dublin 4, tel: 01667 1476, e-mail: [email protected]

Part-time solicitor required forCork city office, March 2003-July2003. Experience of conveyancingand probate required. Please e-mail:[email protected]

Solicitor, four years-plus PQE seeksposition in criminal trial area and/orgeneral practice. Wide variety of legalexperience. Full/part–time consid-ered. Computer literate. Please replyto box no 302

Solicitor required for busy generalpractice in Mullingar, CoWestmeath. PQE needed in con-veyancing, probate, litigation andfamily law. Applications with CV toJA Shaw & Co, Solicitors, Mullingar,Co Westmeath or e-mail:[email protected]

Solicitor required for small Dublin1 office. Experience in litigation,employment and/or commercialrequired. Please reply to box no 303

Trainee solicitor required: GPpractice, Temple Bar, Dublin 2,requires trainee post-PPC 1 to startApril 2003. Interest in conveyancingand commercial preferable.Excellent opportunity in young pro-gressive firm. Comprehensive train-ing provided. Pay as per Law Societyscale. Please forward CV [email protected]

Ernst & Young is seeking aqualified solicitor for ourPractice Protection Group. Therole will focus on defining anddeveloping the firm’s risk man-agement and compliance stan-dards and contract terms andconducting reviews to ensurethe firm is operating withinthose defined parameters.

The successful candidate willhave good experience of riskmanagement and/or complianceand commercial contractspreferably gained in either theprofessional or financial servicessector. Please respond with CVand details of current remunera-tion package to Philip Oxley,Ernst & Young, Ernst & YoungBuilding, Harcourt Centre,Harcourt Street, Dublin 2 or e-mail: [email protected]

MISCELLANEOUS

Northern Ireland solicitors provid-ing an efficient and comprehensivelegal service in all contentious/non-contentious matters. Dublin-basedconsultations and elsewhere. Feeapportionment. ML White,Solicitors, 43-45 Monaghan Street,Newry, County Down, tel: 080 169368144, fax: 080 1693 60966

Northern Ireland agents for allcontentious and non-contentiousmatters. Consultation in Dublin ifrequired. Fee sharing envisaged.Offices in Belfast, Newry andCarrickfergus. Contact NorvilleConnolly, D&E Fisher, Solicitors, 8Trevor Hill, Newry, tel: 080 169361616, fax: 080 1693 67712

London solicitors will advise on UKmatters and undertake agency work.All areas. Corporate/private clients.Ellis & Fairbairn, 26 Old BromptonRoad, South Kensington, LondonSW7 3DL, tel: 0044 171 589 0141,fax: 0044 171 225 3935

Northern Ireland solicitors. Willadvise and undertake NI-relatedmatters. All areas corporate/private.Agency or full referral of cases aspreferred. Consultations in Dublinor elsewhere if required. Fee sharingenvisaged. Donnelly Neary &Donnelly, 1 Downshire Road,Newry, Co Down, tel: 080 169364611, fax: 080 1693 67000. ContactK J Neary

Personal injury claims, employ-ment, family, criminal and propertylaw specialists in England and Wales.Offices in London (Wood Green,Camden Town and Stratford),Birmingham and Cardiff. ‘No win, nofee’ available for accident andemployment claims, legal aid for fam-ily and criminal cases. ContactLevenes Solicitors at Ashley House,235-239 High Road, Wood Green,London N22 8HF, tel: 0044 20 88817777. Alternatively, e-mail us [email protected] or visit our web-site at www.levenes.co.uk

www.liquidations.ieFor information on insolvency, employees entitlements,defending a Section 150 application, informal schemesof arrangement, dealing with the Sheriff, services toSolicitors and free Insolvency Helpline Service.

WHERE THERE’S A WILLTHIS IS THE WAY…

5 Northumberland Road, Dublin 4. Tel: (01) 231 050015 Bridge Street, Cork. Tel: (021) 4509 918 Web: www.cancer.ie

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

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

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

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

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LAW AGENCY SERVICESE N G L A N D & WA L E S

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• Each solicitor is available by direct line, fax or e-mail.

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PHONE NOW FOR A BROCHUREWestminster House

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PROPERTYJohn Phillips

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LITIGATIONMartin Williams

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PROBATEFrancesca Nash

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SPANISH LAWYERS

RAFAEL BERDAGUER ABOGADOS

Avda. Ricardo Soriano, 29,Edificio Azahara Oficinas, 4 Planta, 29600 Marbella, Malaga, Spain

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

PROFILE:

Spanish Lawyers Firm focussedon serving the need of the for-

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EYE INJURIES ANDOPHTHALMOLOGICAL

NEGLIGENCE

Mr Louis Clearkin ChM, FRCS, FRCOphth, DO, MAI, MEWI

Consultant Ophthalmic Surgeon

Experienced expert witness inophthalmological personal

injury, medical negligence and civil litigation

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secretary: +44 (0) 151 6047047fax: +44 (0) 151 6047152

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Wanted ordinary seven-day publi-can’s license. Please contact:O’Carroll & Co, Solicitors, 19aMerchants Road, Galway, tel: 091565516, fax: 091 562393 or e-mail:[email protected]

Wanted: seven-day ordinary publi-can’s licence. Reply to MarianHiggins, Solicitor, HigginsChambers & Flanagan, Solicitors,Headford, Co Galway, tel: 09335656, fax: 093 35741 or e-mail [email protected]

TITLE DEEDS

Harris, Patrick (deceased). Wouldany person knowing the where-abouts of title deeds to the propertyof the late Patrick Harris (deceased)of 14 St Kevin’s Road, offClanbrassil Street, Dublin 8, contactFerry’s Solicitors, 443 SouthCircular Road, Rialto, Dublin 8, tel:01 454 4275

Barry, Emily (deceased), Lakeview,Ballyhooley Road, Cork. Would anysolicitor holding any deeds or docu-ments regarding plans at Lakeview,Ballyhooley Road, Cork, please con-tact Eamonn Murray & Co,Solicitors, 6 Sheares Street, Cork, tel:021 427 6163 or fax: 021 427 4801

In the matter of the Landlord andTenant (Ground Rents) Acts, 1967-1994 and in the matter of theLandlord and Tenant (GroundRents) (No 2) Act, 1978: an applica-tion by Desmond MulreanyTake notice that any person havinginterest in the freehold estate of theproperty known as 6 Thompson

Cottages, North Circular Road,Dublin 1, being portion of the prop-erty held under an indenture of leasedated 8 August 1878 and madebetween the Honourable CharlesSpencer Cowper of the one part andJohn Thompson of the other part forthe term of 200 years from 1 May1878 subject to the yearly rent of £40and the covenants and conditionstherein contained, and an indentureof lease dated 11 January 1878 andmade between Luke Reilly of the onepart and John Thompson of the otherpart for the term of 91 years from the1 November 1877, subject to theyearly rent of £65 and the covenantsand conditions therein contained andbeing all of the property held underan indenture of sub-lease dated 17September 1954 and made betweenWilliam O’Dea of the one part andJohn Healy and Bridget Healy of theother part for the unexpired residueof the terms of the leases dated 8August 1878 and 11 January 1878except the last six months thereofsubject to the yearly rent of £5 andthe covenants and conditions thereincontained.

Take notice that DesmondMulreany intends to submit an appli-cation to the county registrar for thecity of Dublin at Aras Uí Dhálaigh,Inns Quay, Dublin 7 for the acquisi-tion of the freehold interest in theaforesaid property and that any partyasserting that they hold a superiorinterest in the aforesaid property arecalled upon to furnish evidence oftitle to the below named within 21days from the date of this notice.

In default of any such noticebeing received, Desmond Mulreanyintends to proceed with the applica-tion before the county registrar atthe end of 21 days from the date ofthis notice and will apply to thecounty registrar for the city ofDublin for directions as may beappropriate on the basis that the per-son or persons beneficially entitledto the superior interest including thefreehold reversion in the aforesaidproperty are unknown or unascer-tained.Date: 21 October 2002Signed: P J Walsh & Co, Solicitors, 12Upper Fitzwilliam Street, Dublin 2

In the matter of the Landlord andTenant (Ground Rents) Acts, 1967-1987: an application by AnnieHealyAny person claiming to be a personfor the time being entitled to thenext superior interest to that of theapplicant or a person who is a supe-rior lessor to the applicant or a per-son who is the owner of an encum-brance in respect of premises at 199,

201 and 201A Harold’s Cross Roadin the city of Dublin, formerlyknown as 56/57 Harold’s Cross Roadin the city of Dublin are requested tomake themselves known to theundersigned within 14 days from thedate hereof, providing details of thenature of their interest in the saidpremises.

Any person who is, or is aware of,the successor in title of Sarah Evansof Leinster Road, Dublin 6, JohnHawker Evans of Leinster Road,Dublin 6 and Isaac Molloy of 18Eustace Street, Dublin 2, all ofwhom resided at the addresses speci-fied in or about 1883 and 1884 arerequested to make themselves knownto the undersigned within 14 daysfrom the date hereof, providingdetails of the nature of the said suc-cession.Date: 20 November 2002Signed: John G Griffin (solicitors forthe applicant), 6 Cypress Park,Templeogue, Dublin 6

In the matter of the Landlord andTenant Acts, 1967-1994 and in thematter of the Landlord and Tenant(Ground Rents) (No 2) Act, 1978:an application by KingsbrookInvestments LimitedTake notice that any person havingany interest in the freehold estate of

the following property: all that andthose the hereditaments and premis-es situate at and known as numbers2,4 and 6 Lower Grand Canal Streetin the parish of Saint Mark and cityof Dublin being the premises com-prised in and demised by indentureof lease dated 31 January 1956 andmade between Ivy Kavanagh andRaymond Judd of the one part andElizabeth Molloy of the other partand being part of the premises com-prised in and demised by indentureof lease dated 31 July 1883 and madebetween William G Lennon andHenry E Taffe of the one part andWilliam Joseph Kavanagh of theother part.

Take notice that KingsbrookInvestments Limited intends to sub-mit an application to the county reg-istrar for the city of Dublin for theacquisition of the freehold interest inthe aforesaid property and that anyparty asserting that they hold a supe-rior interest in the aforesaid proper-ty are called upon to furnish evi-dence of title to the aforementionedproperty to the below named within21 days from the date of this notice.

In default of any such noticebeing received, KingsbrookInvestments Limited intends to pro-ceed with the application before thecounty registrar at the end of the 21

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days from the date of this notice andwill apply to the county registrar forthe county of Dublin for directions asmay be appropriate on the basis thatthe person or persons beneficiallyentitled to the superior interest andincluding the freehold reversion inthe aforementioned property areunknown or unascertained.Date: 18 November 2002Signed: Cahill & Co, Solicitors, 21Windsor Place, Dublin 2

In the matter of the Landlord andTenant (Ground Rents) Acts, 1967-1994 and in the matter of theLandlord and Tenant (GroundRents) (No 2) Act, 1978: an applica-tion by Suzanne O’BrienTake notice any person having anyinterest in the freehold estate of thepremises known as all that and those29 Wellington Street in the city ofDublin, being a portion of the prem-ises comprised in and demised by theindenture of lease dated 8 August1878 and made between theHonourable Charles SpencerCowper of the one part and RichardDonigan of the other part and there-in described as all that and those aplot of ground on the north side ofWellington Street in the possessionof the said Richard Donigan as ayearly tenant thereof and known ordescribed as no 1 on the map num-bered 6 attached and referred to inthe recited deed of conveyance situ-ate in the parish of St Mary andcounty of the city of Dublin and con-taining on the front to WellingtonStreet 48ft 6” or thereabouts in the

rear 49 ft 4” or thereabouts in depthfrom front to rear on the west side125ft or thereabouts and on the eastside 128ft 6” by said admeasure-ments more or less bounded on thenorth by Blessington Lane on theeast by the house and premises no 27Wellington Street in the possessionof Thomas Dalton and on the southside by Wellington Street and on thewest by the houses and premises no31 Wellington Street said and herebydemised premises as delineated onthe map thereof on the marginthereof and for a term of 200 yearsfrom 18 May 1878, subject to theyearly rent of six pounds and 17shillings six pence thereby reservedand to the covenants and conditionstherein contained.

Take notice that SuzanneO’Brien, the owner of the premises,has submitted an application to thecounty registrar for the county of thecity of Dublin for the acquisition ofthe freehold interest in the aforesaidpremises and any party asserting thatthey hold a superior interest in theaforesaid premises are now calledupon to furnish evidence of title tothe aforementioned premises to thebelow named solicitors within 21days from the date of this notice.In default of any such notice beingreceived by the below named solici-tors, the said Suzanne O’Brienintends to proceed with the applica-tion before the county registrar atthe end of 21 days from the date ofthis notice and will apply to thecounty registrar for the county andcity of Dublin for directions which

may be appropriate on the basis thatthe person or persons beneficiallyentitled to the superior interestincluding the freehold reversion inthe premises are unknown orunascertained.Date: 8 November 2002Signed: Peter Morrissey & Co (solicitorfor the applicant), Merrion Building,Lower Merrion Street, Dublin 2

In the matter of the Landlord andTenant Acts, 1967-1989 and in thematter of the Landlord and Tenant(Ground Rents) (No 2) Act, 1978:an application by Frederick andMargaret RocheNotice to any person having anyinterest in the freehold estate of thefollowing property: Woodville, YorkRoad, Rathgar, formerly known assite number 3 York Road, held underlease dated 2 February 1968 andmade between John Fallon of theone part and James Richard Harveyof the other part for 113 years fromthe 25 March 1950 (less the last tendays) at the yearly rent of £12.

Take notice the Frederick andMargaret Roche, the owners, havesubmitted an application to the coun-ty registrar for the county of the cityof Dublin for the acquisition of thefreehold interest in the aforesaidproperty and any party asserting thatthey hold a superior interest in theaforesaid property are called upon tofurnish evidence of title to the belownamed solicitors within 21 days fromthe date of this notice.

In default of any such notice beingreceived by the below named solici-tors, the said Frederick and MargaretRoche intend to proceed with theapplication before the county regis-trar at the end of 21 days from thedate of this notice and will apply tothe county registrar for the county ofthe city of Dublin for directions asmay be appropriate on the basis thatthe person or persons beneficiallyentitled to the superior interestincluding the freehold reversion inthe aforesaid property are unknownor unascertained.Date: 12 November 2002

Signed: Brendan Walsh and Partners(solicitors for the applicants), 34 UpperBaggot Street, Dublin 4

In the matter of the Landlord andTenant Acts, 1967-1989 and in thematter of the Landlord and Tenant(Ground Rents) (No 2) Act, 1978: anapplication by Michael and HelenMcKennaNotice to any person having an inter-est in the freehold estate of propertysituate at 18 Villa Park Gardens, offNavan Road, Dublin 6, held underindenture of lease dated 19 May 1959and made between Evelyn DorisWilkinson, Gladys Beatrice Jackson,Doreen Elliott Slattery and SheilaLouise Rosemary Goodbody of theone part and Robert AugustineJordan of the other part for a term of250 years from 29 September 1959subject to the yearly rent of £25.

Take notice that Michael McKennaand Helen McKenna have submittedan application to the county registrarfor the county of the city of Dublin forthe acquisition of the freehold interestin the said property and any partyasserting that they hold a superiorinterest in the aforesaid property arecalled upon to furnish evidence of titleto the aforementioned property to thebelow named solicitors within 21 daysof the date of this notice.

In default of any such notice beingreceived by the below named solici-tors, the said Michael McKenna andHelen McKenna intend to proceedwith the application before the coun-ty registrar at the end of 21 days fromthe date of this notice and will applyto the county registrar for the countyof the city of Dublin for an order thatthe fee simple interest title to theabove mentioned property shall bevested in the said applicants, MichaelMcKenna and Helen McKenna, onthe basis that the person or personsbeneficially entitled to the superiorinterest including the freehold rever-sion in the aforesaid property areunknown or unascertained.Date: 27 November 2002 Signed: Reynolds & Co, Solicitors, TheAvenue, Gorey, Co Wexford

5 Union Quay, Cork Tel:021 431 9200 Fax:021431 9300

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Contents Gazette LawSociety · 3. Patrick O’Connor 1,484 4. Michael Quinlan 1,468 5. Donald...

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Transcript of Contents Gazette LawSociety · 3. Patrick O’Connor 1,484 4. Michael Quinlan 1,468 5. Donald...