Contents Gazette LawSociety · our gifted solicitor colleagues will be elevated to a seat on the...

Contents

Law Society GazetteJan/Feb 2000

1

Regulars

President’s message 3

News 4

Letters 6

Viewpoint 8

Book reviews 36

Briefing 40

Council reports 40

Committee reports 42

Practice notes 44

Legislation update 44

Personal injuryjudgments 46

FirstLaw update 49

Eurlegal 53

People and places 57

Law School news 59

Apprentices’ page 60

Professional information 61

Cross-examination 64

The write stuff!An increasing number of Irish solicitors are putting pen to paper toshare their expertise. So what does it take to become a legal author –and can you expect to retire on your royalties? Maria Behan gives youchapter and verse

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19

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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 4801.E-mail: [email protected] Law Society website: www.lawsociety.ie

Editor: Conal O’Boyle MA. Assistant Editor: Maria Behan. Designer: Nuala Redmond. Editorial Secretaries: Catherine Kearney,Louise Rose. Advertising: Seán Ó hOisín, 10 Arran Road, Dublin 9, tel/fax: 837 5018, mobile: 086 8117116, e-mail: [email protected]: Turners Printing Company Ltd, Longford. Editorial Board: Dr Eamonn Hall (Chairman), Conal O’Boyle (Secretary), Mary Keane,Pat Igoe, Ken Murphy, Michael V O’Mahony, Vincent Power

Volume 94, number 1Subscriptions: £45

Cover Story

32

GazetteLawSociety

Making a Spanish willMost Irish people understand theimportance of leaving a will, butthose who own property in otherjurisdictions must make specialarrangements. Rafael Berdagueroutlines the steps to take whendrawing up a Spanish will

Taxing timesSome solicitors seem to forget that they deserve to be paid for theirwork and leave the cost-gathering exercise to the end. Tony Halpinand Taxing Master James Flynn discuss the concepts behindrecovering legal costs and the importance of proper recording systems

Courting successCourts Service Chief Executive PJ Fitzpatricktalks to Conal O’Boyle about his plans to drag ourcreaking courts system into the 21st century

28 French connectionsThe French viager system allows youto sell your house but continue livingin it for the rest of your life. BrendanWalsh explains the system and asks:could it work here?

35 Curriculum development:criminal lawContinuing its series of articles on theprofessional practice course syllabusfor apprentices, the CurriculumDevelopment Unit explains what’sinvolved in its criminal law module

We have a legal obligation to ask all new account holders for acceptable identification eg Current full passport, full driving licence or student identity card, which bears your photograph and signature.

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the above, please speak to a member of staff. Servicecards, overdrafts, loans and credit cards are granted subject to status and conditions. Security may be required.

Applicants must be aged 18 years or over. This package is only applicable to Trainee Solicitors.

Telephone Banking: All calls are charged at single unit local rates. All calls made outside the Republic of Ireland and on mobile phones are charged at normal rates.

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President’s message


3

The winds of change are certainly blowing.A new century, a new millennium and anew Chief Justice. I’m sure all my colleagues in the solicitors’ profession will join me in welcoming Mr Justice

Ronan Keane as he takes over the highest judicialoffice in the land. Rarely can such an appointmenthave been so warmly greeted or been so widelyapproved. And why not?

The new Chief Justice is a lawyer of consummatelearning and erudition, but also – and just asimportantly – a man of fine judgement and integrity,as he has displayed time and again since hisappointment to the High Court in 1979. Hissensitive handling of the Stardust Inquiry in 1981was justly applauded, as was the time he spent asPresident of the Law Reform Commission. Theauthor of a number of important textbooks,including the seminal Company law in the Republic ofIreland, Mr Justice Keane is a man who can truly dojustice to the pivotal position he now holds in thethird branch of our system of government. We wishhim well for the future.

By the same token, we also extend our best wishesto outgoing Chief Justice Liam Hamilton andcongratulate him on a job outstandingly well done.

Tiocfaidh ár lá?The two other new appointments to the SupremeCourt bench – Ms Justice Catherine McGuinnessand Adrian Hardiman SC – will also be widelywelcomed by the profession. While not exactly asurprise (both were widely tipped in the press in thedays before the announcement), they prove that theGovernment can bring vision and imagination to themaking of judicial appointments.

This is good news for both branches of the legalprofession. Mr Hardiman’s elevation directly fromthe Inner Bar to the Supreme Court bench showsthat lack of experience on the bench is no obstacle tothose with a sharp legal mind. As you will be aware,the Law Society has fought long and hard (andeventually successfully) to win the right of audiencein the superior courts – and the right to sit on thebenches of those courts. The Report of the workinggroup on qualifications for appointment as judges of the

High and Supreme courts(published early last year)recommended thatappropriately-qualifiedsolicitors should beeligible for appointmentto the superior courtbenches.

We can look forwardto the day when one ofour gifted solicitorcolleagues will beelevated to a seat on theSupreme Court in asimilar fashion.

On a less weighty matter, readers of this month’sissue of the Gazette will notice that a number ofchanges have been made to the design of themagazine. As you know, the magazine was lastredesigned at the time of its relaunch three yearsago. In the intervening period, the Gazette has won anumber of awards and feedback from the professionhas been extremely positive. But, as always, nothingstays the same for too long, and we felt that afterthree years a make-over was probably in order. Afresh look for a new century, if you like. I’m verypleased with the new design, which aims to make the magazine easier on the eye and more fun to read,and I congratulate the Gazette team on all the hardwork they have put in to bring this to fruition.

We want to hear from you!But a magazine is more about its readers than theway it looks, so we want to hear from you. We wantyour letters, we want your funny stories for theDumb and dumber section – we can’t run them if youwon’t share them with us! – we want to hear aboutwho’s moved jobs, and where. If you have news andgossip from the profession, we’d like to hear it forthe People and places page.

Enjoy your reading anyway – and I hope thewinds of change blow you nothing but good for thecoming year.

Anthony Ensor,President

Hail to the Chief

‘We can look

forward to

the day when

one of our

gifted solicitor

colleagues

will be

elevated to

the Supreme

Court’

News


4

UNDERCOVER POSTINGS FOR GARDAÍThe Law Society’s Litigationand Family Law and Civil Legal Aid committees hasrecommended that solicitors,when writing to members of AnGarda Síochána at their privateaddresses, should refer to theaddressee as ‘Mr’ or ‘Ms’,rather than ‘Garda’. The GardaRepresentative Association hasbrought to their attention thatmail addressed with the ‘Garda’title poses a possible securityrisk when delivered toresidences.

LEGAL FIRMS SOUGHT FOR E-BIZ DATABASEEnterprise Ireland’s new e-business website, which aimsto give small and medium-sizedcompanies the know-how andcontacts they need to put theirbusiness on-line, is looking forlaw firms for its database of e-commerce experts. Thoseinterested in being includedshould fill in a form at theEnterprise Ireland website athttp://www.enterprise-ireland.com/ecommerce/form.

FINANCIAL SEMINARSTwo seminars on thecomplementary topics of Yourreal bottom line and How toimprove your banking will beheld at Blackhall Place on 31March. The cost is stg£185 perseminar or stg£333 for both.For a brochure and furtherinformation, phone Janine Smithon 0044 29 2039 8161 or e-mail her at [email protected].

MALE VICTIMS OF DOMESTICVIOLENCE CONFERENCEA conference on male victimsof domestic abuse will takeplace on 30 March at theCarrickdale Hotel, Dundalk, CoLouth. The keynote speaker willbe Dr Warren Farrell, author ofThe myth of male power. Forfurther details and bookinginformation, contact AMEN, 1Brews Hill, Navan, Co Meath,tel: 046 23718; e-mail:[email protected]; website:www.amen.ie.

Land Registry fees hike ‘couldfuel house price inflation’Backlogs at the Land

Registry, coupled withsubstantial increases in the costof registering deeds, could fur-ther fuel house price inflation,the Law Society has warned.The Land Registry is currentlyanswering its phones for onlyone hour a day in an effort toclear the backlog of work thathas built up, while theGovernment recently increasedthe fees payable for registeringtitle and deeds to property.

In some cases, these feeshave nearly doubled. Forexample, a property costingover £40,000 will now attract a Land Registry fee of £450, as opposed to £250 before.

In a letter to the Minster forJustice, Equality and Law

Reform John O’Donoghue, theLaw Society’s Director GeneralKen Murphy warned that thefee increases ‘will not bewelcomed by house purchasersat this time of grossly-inflated

house prices’. He added that thenew fee scale introduced by theGovernment ‘can only representa further inflationary factor inhouse prices, which will be anadditional burden onpurchasers’.

Murphy concluded by urgingthe Minster to simplify the feesystem and to moderate therecent increases.• Separately, the Law Societyhas described the huge backlog at the registry as ‘a nationaldisgrace’. Apart from the hugeinconvenience to purchasers, the backlog means that housesales may be delayed becauseproper title to the property inquestion has not yet beenregistered by the Land Registry, it says.

ALaw Society working grouphas been established under

the chairmanship of Councilmember and EducationCommittee Chairman, MichaelPeart, to consider whether ornot it would be desirable forevery practising member of theprofession to be obliged tospend a certain number of hoursa year attending continuing legaleducation. Such a requirementexists in many otherjurisdictions. Its objective is toensure that practitioners spend

Mandatory CLE soon?at least a minimum period oftime each year updating theirknowledge of the law and,perhaps, also improving theiroffice management systems andskills.

The Society’s working groupis currently engaged in a wideconsultation process on thissubject. If you have any viewson the issue, please conveythem in writing before Friday18 February to Michael Peart,24 Upper Ormond Quay,Dublin 7.

Lawyer, professor andwriter David Mellinkoff, a

lifelong opponent of the‘contagious verbosity’ heclaimed afflicted manylawyers, died in Los Angeleson 31 December at the age of85. Mae West was one of theclients of his lucrative BeverlyHills law practice, but hisprimary claim to fame was hiscampaign against what hecalled ‘the junk antiques’cluttering up the legalvocabulary, such as‘forthwith’, ‘heretofore’ and‘whereas’. His mostcelebrated book, the 1963volume Language of the law(Aspen Publishers), remains aclassic today.

Mellinkoff’s ultimate curefor legalese was simple, butperhaps too harsh to be putinto practice: ‘The mosteffective way of shorteninglaw language’, he wrote, ‘isfor judges and lawyers to stopwriting’.

‘Enemy oflegalese’ dies

Ken Murphy: ‘backlog a nationaldisgrace’

New Education Centretakes shapeThe architects andbuilders of the newEducation Centre haveconfirmed that the £5million project is bothon budget and on timefor the scheduledcompletion date of theend of June. After that,there will be period offitting out, with the firstprofessional course of300 apprentices due tobegin in October.

News


5

LUCK OF THE DRAWThe following members havebeen named as winners in theLaw Society’s 1999 prize bondsdraw: William Crowley,Killarglin, Co Kerry; MichaelDickson, Dublin; PA Dorrian,Buncrana, Co Donegal; WilliamHarnett, Dublin; KevinMcGilligan, Dublin; JustinSadleir, Gort, Co Galway.

COMPENSATION FUND PAYOUTThe following claim amount wasadmitted by the CompensationFund Committee and approvedfor payment by the Law SocietyCouncil at its meeting inDecember 1999: ConorMcGahon, 19 Jocelyn Street,Dundalk, Co Louth – £300.

CONSTRUCTION INDUSTRYREGULATIONSThe Construction IndustryMonitoring Agency monitorsfirms in the constructionindustry for compliance with theterms of the RegisteredEmployment Agreement(Construction Industry PensionsAssurance and Sick Pay)Regulations under the IndustrialRelations Acts, 1946-1969.These regulations requireemployers to provide pension,sick pay and death benefitassurance. CIMA asks LawSociety members to remindtheir construction industryclients of their legal obligationsin this matter. Contact CathyHarrison on 01 406 8026 orEleanor Cullen on 01 406 8014.

Children born with braindamage as a result of

medical negligence could loseout if the Government pushesahead with its reported no-fault compensation scheme, theLaw Society has said.

According to recent pressreports, the then Minister forHealth, Brian Cowen, was keento introduce such a scheme forchildren born with cerebralpalsy, in an effort to reduce

medical negligence costs inState hospitals. But DirectorGeneral Ken Murphyexpressed concern at proposalswhich ‘reportedly wouldremove the constitutionalrights of brain-damaged babies’and which were ‘motivatedprimarily by considerations ofcost’.

In a letter to the Minister,Murphy also pointed out thatthe handful of no-fault

No-fault compensation scheme ‘could hit most vulnerable’compensation schemes whichoperate in other parts of theworld had shown ‘significantshortcomings’ over time. Theseincluded:• Inadequate compensation

levels• Spiralling costs, and• The removal of deterrents

and accountability.

He added that the Society wasparticularly concerned that the

The appointment of MrJustice Ronan Keane as the

new Chief Justice was markedby warm approval from thelegal profession and beyond.Welcoming the appointmenton behalf of the Law Society,Director General Ken Murphysaid: ‘It would be impossible tothink of a more popularchoice’.

‘He is a judge of great learn-ing, integrity and humanity,with an outstanding intellect.

Warm welcome for new Chief JusticeHis very ordered mind and bal-anced judgement have beendisplayed in his long experienceon the bench. He is also aremarkably modest person’,Murphy added.

There was similar approvalfor the appointments of MsJustice Catherine McGuinnessand Adrian Hardiman SC tothe Supreme Court, with onenewspaper describing the threenominations as ‘radical in thetrue sense of the word’.

The Law Society has agreedto the Minister for

Defence’s request that it assisthim in seeking a resolution ofthe army deafness litigation.The Minister’s invitation camein a letter just beforeChristmas in which he askedthe Society to create a ‘channelof communication’ betweenhimself and the plaintiffs’solicitors in the army deafnesscases. The Minister’s proposedsolution, based on therecently-delivered SupremeCourt decision in the Hanleycase, centres on theestablishment of a scheme toenable the speedy payment ofcompensation in theoutstanding 10,000 claims.

Society in talks to resolvearmy deafness litigation

Early last month the Societymet representatives of the 20law firms handling most of thearmy deafness claims. Follow-ing the meeting, DirectorGeneral Ken Murphy wrote tothe Minister making a numberof points:• The plaintiffs’ solicitors,

subject only to their clients’best interests, had alwaysbeen anxious to settle armydeafness cases in the mostspeedy and cost-effectiveway possible. It was themanner in which the Statechose to defend these casesthat resulted in the costs onboth sides of this litigationbeing considerably higherthan they needed to be

• Recent media statementsattributed to the Minister hadconsiderably diminished thegoodwill which would be nec-essary for any agreement to bereached between the plaintiffs’solicitors and the State

• The plaintiffs’ solicitors hadagreed to a meeting with theMinister’s representatives todiscuss the proposedcompensation scheme

• A group of four plaintiffs’solicitors had beennominated to meet theMinister’s representatives and report back.

That meeting is scheduled totake place in Blackhall Placethis month.

proposal seemed to havereached a very advanced stage‘without consultation with thepeople who understand thecurrent compensation systembest, namely the lawyers onboth sides, who haveexperience of it’.

The Law Society hasformally requested a briefingon the contents of the formerMinister’s proposal as ‘a matterof urgency’.

Mr Justice Ronan Keane

Letters


6

From: Conor O’Toole, Co Kildare

Iwas recently advised by theattendant at Blackhall Place

that I was not allowed to park inthe Law Society car park unlessI was an employee of the LawSociety or attending a seminar.This took place at 9am in themorning and, having run thegauntlet of traffic fromNewbridge to the Law Society, Ithen had to drive back out intothe chaos of Blackhall Place andwith great difficulty find parkingelsewhere. The car park at thetime was less than half full.

As a practising solicitor andmember of the Law Society, Ithink it is grossly unfair that Ihave been refused this facility.On previous occasions I havebeen able to find parking onparchment ceremony days when

Letters

Passing the Y2K buck

Parking problems at Blackhall Place

car parking is at a premium andwhen cars were directed to thefootball pitch. Further, I am notat all convinced that a seminarwould require the use of all ofthe car park. As a frequentvisitor to the Law Library, theremoval of this facility without

prior notification from the LawSociety has caused me greatdifficulty in commuting fromNewbridge to Dublin. I wouldappreciate confirmation thatthis facility will be restored or atthe very least an explanation asto why it has been curtailed inthis unsatisfactory fashion.

The Law Society’s FacilitiesManager, Barry Carey,replies:There are at present only 110 carparking spaces at the Society’sBlackhall Place headquarters.Unfortunately, car parking cannotbe provided at all times for everymember who would wish it.Understandably, priority must begiven to those working orconducting business on thepremises. Blackhall Place is an

extremely busy location, hosting awide range of events and functionson a daily basis – everything fromCouncil and committee meetings,members’ functions, weddings,CLE seminars and so on. Withthe on-going renovations of thebuilding and construction of thenew Education Centre, a decisionwas taken late last year to prohibitstudent parking at BlackhallPlace. This was done to easecongestion and facilitate thesmooth operation of the premises.

It is very much regretted thatthe Society is not in a position tooffer car parking facilities to everyone of our 7,000 members.However, recognising the problem,the Society has been attempting tonegotiate a reduced rate formembers using a car park onnearby Benburb Street.

A bottle of the finest champagne willgo to the reader who sends in the fun-niest contribution to the Dumb anddumber section each month. Send your examples of the wacky,weird and wonderful to the Editor,

Law Society Gazette, BlackhallPlace, Dublin 7, or you

can fax us on 01 6724801, or e-mail us at

[email protected]

Your viewsYour letters make your magazine and may influenceyour Society. Send your lettersto the Editor, Law SocietyGazette, Blackhall Place,Dublin 7, or e-mail us [email protected] or youcan fax us on 01 672 4801

Dumb anddumber

From: Peter Shee, Cork

In the November issue of theGazette, the Law Society’s

Technology Committeehighlighted the difficulties whichcould arise from computerisedaccounts not being year 2000compliant. The committee urgedmembers to take all necessarysteps to ensure compliance, evenat that late stage.

There is, of course, still a veryreal danger of accounts beingdisrupted and massiveinconvenience caused. There isalso a consequent danger oflitigation against a firm should aclient suffer loss arising fromsuch a system failure. If theworst happens, what can bedone? Perhaps more than youmight think. All the availableevidence points to a long-standing aware-ness within the

computer industry of the natureand extent of the problem. Thereis a large amount of informationavailable which suggests that theproblem could, and should, havebeen avoided.

As early as 1979, any largefinancial institution involved inmortgages of 20 years’ durationwould have been aware of theproblem. There are even indica-tions that the problem came tolight as early as 1969, particularlyin insurance companies dealing

with life policies.Computer technical literature

starts to refer increasingly to thisproblem from about 1971onwards. Between 1979 and1984, there were articlesdescribing the problem in thecomputer trade press. In short,the computer industry – andindeed the larger financialinstitutions such as banks andinsurance companies – wouldhave been aware of the problemfor well over 15 years.

Letters


7

From: Maresa Wren, Galway

With reference to PatrickO’Connor’s last

President’s message (November,1999), I agree that thecompulsory teaching of Irishfailed miserably. However, Ibelieve that this is a separateissue from the one of whetheror not Irish solicitors shouldhave the capacity to practisethrough the medium of Irish.Mr O’Connor used hisimportant last message toinform us that he thinks thatit is simply wrong forsolicitors to be required tohave a competent knowledgeof the Irish language. Howcan it possibly be wrong forIrish solicitors to be requiredto be competent in the Irishlanguage? Mr O’Connor callson the Government to changeits policy, but what of theLaw Society’s policy? Forexample, the Law Societyprovides access to courses inlegal French and German butI am unaware of any coursesbeing provided by it in legalIrish. Are there any? If not,

why not? There is surely asmuch demand in Ireland forIrish-speaking solicitors asthere is for French orGerman speakers. In fact, as Iwrite, there are twoadvertisements in the papersseeking Irish-speakingsolicitors and, as far as I am aware, none seekingFrench or German speakers.

Gallic versus Gaelic?In the circumstances,therefore, there was really noexcuse for the supply ofdefective systems in recentyears. If loss arises from suchsystems, it is very possible that aperson affected will have astateable case leading to redress.

Even more invidious is thepractice of some systemssuppliers suggesting thatcompliant systems and upgradesbe installed – and charging forthese installations.

There is much on-goinglitigation on this topic in theUnited States.

In a class action in Texas, acourt has given preliminaryapproval to a settlement givingusers of a computerisedaccounts system a year 2000compliant upgrade at no cost.It is also intended that thosewho have already paid for anupgrade will get certificatesredeemable against thedefendant firm for otherproducts. Causes of actionincluded breach of impliedwarranty or merchantability,unfair or deceptive practices,and misrepresentation, fraudand deceit.

In another case, an Alabama

law firm was notified by asupplier that it had a non-compliant telephone accountingsystem and that the suppliercould install compliant softwarefor $2,000. The firm has askedthe court to declare that thesupplier had a duty to keep theequipment in working order andto provide year 2000 upgradesfree of charge. The firm is alsoasking the court to orderreimbursements for customerswho have purchased upgrades.This case is on-going.

An action has been broughtin Iowa by hospitals allegingthat a healthcare informationsystem purchased in 1995 is notyear 2000 compliant, that thedefendant concealed the factthat it was not so compliant andthat it lacked the financialresources to correct the year2000 deficiencies and defects.The plaintiffs are pleading fraudand concealment, negligentmisrepresentation, duty to warnand negligent design/marketing.They are seeking actual andexemplary damages.

The results of the numerousUS cases should prove to be ofconsiderable interest in thisjurisdiction.

CONTINUING LEGAL EDUCATIONSPRING SCHEDULE 2000

THE BUDGET FROM A LEGAL PERSPECTIVE Castletroy Hotel, Limerick 11 FebruaryHodson Bay Hotel, Athlone 22 February Great Southern, Galway 29 February

THE PRINCIPLES OF PRACTICAL DRAFTING OF DEEDSIN CONVEYANCING TRANSACTIONS Blackhall Place, Dublin 17 February

LAND REGISTRY Hodson Bay Hotel, Athlone 21 February Fitzpatricks Hotel, Cork 30 March

MEDICAL NEGLIGENCE Blackhall Place, Dublin 24 February

NEW HOUSES Great Southern, Galway 28 February

MONEY MATTERS Hodson Bay Hotel, Athlone 13 March

TRIBUNALS OF ENQUIRY Blackhall Place, Dublin 13 March

FRANCHISING Blackhall Place, Dublin 28 March

EMPLOYMENT EQUALITY ACT, 1998 Blackhall Place, Dublin 29 March

PLEASE NOTE: 18 FEBRUARY IS THE FINAL DATE FOR RECEIPT OF COMPLETED CLE QUESTIONNAIRES (SEE DECEMBERISSUE OF GAZETTE). QUESTIONNAIRES RECEIVED AFTER THAT DATE WILL NOT BE INCLUDED IN THE DRAW

FOR £500 WORTH OF CLE SEMINARS IN 2000

For further information, please see CLE brochure enclosed with this month’s Gazette or telephone the CLE department at 01672 4802 or fax 01 672 4803. Suggestions for CLE seminars are always welcome.

Viewpoint


8

W ith worldwide roots andno centralised authority,

many people consider theInternet the last free marketplaceof ideas. On-line activists andcivil libertarians constantly fightto keep the Net free of all con-straints in the belief that regula-tion threatens to curtail itsexpansion by imposing formida-ble civil and criminal liabilitiesfor negligent or allegedly illegalon-line activities.

The decision of the New YorkCourt of Appeals in Lunney vProdigy Services Company (2 No164, NY State Court of Appeals),delivered on 2 December last, iswelcome in that it may serve tocurtail the onslaught of litigationwhich ultimately has thepotential to plague the Internetindustry. In its first major rulingon privacy and defamation incyberspace, the Court of Appeals unanimously held that anInternet service provider (ISP) is merely a conduit forinformation, as opposed to apublisher, and consequently no more responsible than atelephone company for defama-tory material transmitted over its lines.

This ruling is viewed as one of the most significant New Yorkcourt decisions on Internet issuessince Stratton Oakmont, Inc vProdigy Services Co (1) (No 94-031063, 23 Media L Rep (BNA)1794, NY Sup Ct) in 1995. Inthis case, a Nassau County Courtof First Instance held on motionby the plaintiff that Prodigy hadsufficient editorial control overthe content of messages postedon an electronic forum and sowas liable for potentially libellousstatements made by one of itsusers. It emerged during the trialthat Prodigy employed personnelto monitor the contents of itsbulletin boards and to deleteunacceptable messages. It alsoused software to screen out

Internet service providers are not like newspapers and should not be held accountable for theinformation they publish, writes Niamh Herron

Cyberspace and defamation

obscenities and otherundesirable statements. Thus,the court decided, Prodigyexercised sufficient editorialcontrol to render it a publisherwith the same responsibility as anewspaper. Interestingly, inspite of Justice Ain’s decision inStratton, the plaintiff agreed todrop its lawsuit against Prodigyin return for an apology fromthe company.

In my opinion, the court’sdecision in Stratton was flawedinsofar as it likened an ISP to anewspaper. A newspaper ismore than a passive receptacleor conduit for news andcomment; a newspaper exercisesa high degree of control of itsfinal product with respect toeditorial judgements andultimate content and size. Withthis increased editorial controlcomes increased liability, andrightly so. But a significantdistinction between anewspaper and an ISP is theidentity of the contributors,which in the case of anewspaper are identifiable withtheir services (which are usuallycontracted for and paid for) butin the latter case could beinnumerable and anonymous.We have the ability to sendanonymous computer messages,just as we have the capacity to

make anonymous telephonecalls and send unsigned letters.

Following the Strattondecision, the CommunicationsDecency Act 1996 was enacted inthe United States to protectISPs such as Prodigy fromsimilar actions. Section 230 ofthe Act provides that: ‘noprovider or user of aninteractive computer serviceshall be treated as the publisheror speaker of any informationprovided by anotherinformation content provider’.

Federal immunityBy its plain language, section230 creates a federal immunityto any cause of action thatwould make ISPs liable forinformation originating with athird-party user of the service.Specifically, section 230precludes courts fromentertaining claims that wouldplace an ISP in a publisher’srole. So lawsuits seeking to holdan ISP liable for its exercise of apublisher’s traditional editorialfunctions – such as decidingwhether to publish, withdraw,postpone or alter content – arebarred. None of this means, ofcourse, that the original

culpable party who postsdefamatory messages wouldescape accountability. But itmay be impossible to identifythe original author of astatement which is published ona bulletin board on the Net, asanonymous re-mailers areavailable which removeanything which might identifythe author of a particularstatement. Indeed, the author ofthe offensive statements inStratton remained unidentified.In any event, on-line accessproviders are in essence the‘deep-pockets’ of cyberspaceand so the focal point in suchlitigation to date.

The decision in Lunney iseminently practical, otherwiseevery ISP would be placedunder an obligation to makeitself aware of the contents ofevery message posted on itscomputer network. It would bealtogether unreasonable todemand so near an approach toomniscience. The decision willfurther encourage growthwithin the Internet communityby reducing the threat ofliability to on-line accessproviders. Lunney allows suchcompanies to exist in a worry-free environment with respectto liability for informationappearing as a result of theirelectronic transmissions.

Significantly, the court inLunney evaluated the plaintiff’sclaim in the context of existingtort precedents and found that‘these settled doctrinesaccommodate the technologycomfortably’. Of course, thecourt’s reluctance to getinvolved in the CommunicationsDecency Act debate leavesunanswered the question ofwhether ISPs are free fromliability under US federal law.And there is still the question ofwhether an ISP has completeimmunity for anything that

‘America Online is like a private pool, and theInternet like the oceanacross the street ... At the pool, lifeguards can be stationed and controlestablished, but once thepublic crosses the street to the “vast sea ofinformation” on the otherside, there is no morecontrol’.

William W Burrington,Assistant General Counseland Director of GovernmentAffairs, America Online

Niamh Herron: On-line accessproviders are the ‘deep pockets’of cyberspace litigation

Viewpoint


9

In his memoirs, US PresidentRichard Nixon wrote that he

considered his four appoint-ments to the Supreme Court asamong the most constructive andfar-reaching of his presidency.Closer to home, and despite theobvious differences, Bertie Ahernhas a similar opportunity.

Nixon had a particular visionof what he wanted from hisSupreme Court nominees.People with personal qualities ofcompetence and someknowledge of the law, of course –but there was more. Thoseappointed would share hisconservative judicial and, indeed,political, philosophy.

In Ireland, as in the UnitedStates and most countries aroundthe world, the role of the highestcourt in the land is hugelysignificant for citizens. Judgestraditionally distance themselvesfrom politicians and politicaldebate and also from theirformer work colleagues.Impartiality, and the appearanceof impartiality, are important.The press release by formerChief Justice Hamilton last Aprilannouncing the appointment ofa judicial complaints committeewas in itself an unusual mediaevent.

But solicitors and barristers, inparticular, know that the lowprofile of the judiciary amongthe population at large, when

Isn’t it time we debated the secret selection process that lies behind Supreme Courtappointments?, asks Pat Igoe

Shaping the Supreme Court

happens on its system, but sofar no court decision has comedown on that issue.

Ireland has yet to make anylegislative efforts to tame theseemingly untameable on-lineuniverse. It is only a matter oftime before our courts will haveto decide whether cyberspacedefamation cases should betreated the same as defamationcases that occur in a non-cyberspace context – and where

responsibility should lie fordefamatory statements. It couldbe argued that our currentframework of laws is sufficient toaddress these questions becausethey do not present new legalissues: cyberspace defamationcases are indistinguishable fromcases arising in the traditionalprint and broadcast media andtherefore can be decided byusing the same analysis (provingthe elements of defamation).

It is to be hoped that Irishcourts will borrow Americanlegal precedent and treat on-line communication akin to acommon carrier such as atelephone company, in whichcase liability would rarely beimposed. Needless to say, thetask of defining the liability ofISPs must be approached in asensitive manner because theimposition of accountability onISPs could result in a chilling

effect on speech and the flow ofinformation, consequentlystunting the growth ofelectronic communication.

This would be a tremendousloss for society.

Niamh Herron is a solicitor inDublin solicitors Lennon Heather& Co. Last year she passed theNew York State Bar Examinationand is currently pending admissionto the New York State Bar.

G

compared with the other twowings of government, theExecutive and the Oireachtas,belies its influence on everydayevents. This applies particularlyto the Supreme Court’sinterpretation of theConstitution and of laws.

If commentators can agree onanything, it is probably that wehave tended to get a betterjudiciary in this country than wedeserve. There are no formalopen or closed hearings to selectcandidates for office. Thecriteria and requirements,beyond the statutoryrequirements, remain vague. Yetcharges of political favouritismby judges or of cronyism arevirtually non-existent. As we sawlast year, there can be no hint ofsuspicion. The quality of

judgments from the higherbenches would suggest that thesystem does work.

Selection criteriaBut what is the system?Appointments to the bench nowgo through the JudicialAppointments Advisory Board.The board draws up a list ofpeople for each appointmentbased on their meeting thestatutory requirements of thepositions and on their generalsuitability. But it is not thefunction of the board to adopt apolicy for the candidates in termsof their views on economic orsocial matters.

What does the Governmentwant from its Supreme Courtnominees? And what should theGovernment want? Personal

qualities of competence andhonesty, obviously. But howmuch thought is given towardsdeveloping a broad strategy orethos for the higher courts?

It is at least questionablewhether sufficient attention hasbeen paid by successivegovernments to the role of theSupreme Court and to thesignificance of its role ininterpreting legislation. It isquestionable because we do notknow. And we do not knowbecause of the secrecy indecision-making. The selectionprocess for a crucial tier ofgovernment in this democracyremains private.

A debate would at least seemhealthy on the moral, political,economic and social directionsthat the Government expects theSupreme Court to aspire to. TheSupreme Court does have acollective ethos, direction andattitude – even if by chance.

Once appointed, there can beno political interference withjudges. It is arguable that it isimportant that the Government,which nominates appointees,should have a sense of what isrequired individually andcollectively. This is particularlyapposite now when four of theeight seats on the Supreme Courtare at the Government’s biddingin the first few months of thisyear.

‘A clear message from the Four Courts: the arrogant use of power by theGovernment and civil service would no longer be tolerated’

Viewpoint


10

Apart from former ChiefJustice Hamilton and KevinLynch, who retired last year, MrJustice Barrington and MrJustice Barron are also due toretire in the immediate future.As if this was not enough, MrJustice Murphy is 69 years oldand may also retire before hereaches his 72nd birthday,giving the Ahern-ledGovernment (if it is still inoffice) a fifth nominee on theSupreme Court to influencepublic policy for long after itsterm of office has ended.

Like politicians, judges alsomight be said to lead from thefront or the back. Learnedstatements from the benchaffirm that the Constitution is aliving document. It is notexpected to be frozen in time –in this case, 1937. It may be,indeed it must be, interpreted inaccordance with the prevailingculture and norms of society.

On 16 December 1961, twodistinguished jurists took officein the Supreme Court. Theywould lead from the front for11 years, and the effects of theirstewardship in enhanced rightsand liberties for the individualcitizen remain into the thirdmillennium. CearbhaillO’Dalaigh’s tenure as ChiefJustice and Brian Walsh’sappointment as an ordinaryjudge of the Supreme Courtushered in a golden age ofliberalism in the court.

Both men set about curbingarrogant and arbitrary use ofpower by the State, includingGovernment Ministers and thegardai, against individualcitizens. They began an earnest

examination of what theConstitution meant. More than30 years on, their decisionscontinue to be cited in legalargument. Many politicians andcivil servants were not unhappywhen O’Dalaigh decided in1972 to go the European Courtin Luxembourg.

And the initiatives of theO’Dalaigh-led Supreme Courtdid not end with theappointment of TomO’Higgins as Chief Justice. Aclear message was emergingfrom the Four Courts: thearrogant use of power by theGovernment and civil servicewould no longer be tolerated,whether in the unfair dismissalof a Garda Commissioner or ofan ordinary soldier. ‘Naturaljustice’ had become a lot morethan a dusty legal term.

O’Dalaigh’s last judgmentThe last judgment ofO’Dalaigh’s court in 1972 ruledthat an individual could sue theState. Kathleen Byrne’saccident outside her home,when the path fell in as a resultof work done by a cable-laying

crew from the then Departmentof Posts and Telegraphs, gaveboth judges another importantopportunity to further the rightsof the citizen under theConstitution. Up to then, it hadbeen believed that the immunityfrom legal action enjoyed by theBritish Crown had transferredto the new Irish state. For thefirst time, less than 30 years ago,the State became liable fornegligent acts of its employees.

The decisions of theSupreme Court have kept pacewith changes in Irish societysince then, more or less. In theimmediate aftermath of hisretirement, even his detractorsagree that Hamilton’s period asChief Justice was a success. TheHamilton-led Supreme Courtwas highly respected.

Among its more memorabledecisions, of course, is McKennav An Taoiseach and Others, whichaffirmed equality before the lawas a fundamental tenet ofjustice. In curbing the excessesof the Government in spendingpublic money disproportionatelyin seeking a ‘yes’ vote in thedivorce referendum, Hamiltonsaid that this was ‘an inter-ference with the democraticprocess and the constitutionalprocess for the amendment ofthe Constitution and infringesthe concept of equality which isfundamental to the democraticnature of the State’.

The six reports of thecuriously-named WorkingGroup on a Courts Commis-sion, which was chaired by MsJustice Denham, have provideda welcome and highly-regardedboost to the administration of

justice. Many of the recom-mendations have alreadyreached the statute book. One of the most high-profilerecommendations relates tojudicial conduct and ethics.Former Chief Justice Hamiltonmoved without delay toannounce the establishment of acommittee to ‘contribute tohigh standards of judicialconduct’.

But a significant number ofstatutes and sections of statutesthat govern us today areprobably unconstitutional – if the success rate of legalchallenges is a benchmark. Wedo not know until they arechallenged by somebody who is sufficiently wealthy andsufficiently aggrieved – as weknow from the recent tribunals-inspired constitutionalchallenges. In furtherance oftheir declarations to ‘uphold theConstitution and the laws’, whatprevents judges from initiatingan examination of the cons-itutionality of a statute orsection?

Whether the Supreme Courtshould be conservative orliberal, favour the individual orthe State, or mirror Irish societyrather than pushing thefrontiers outwards, could bematters for debate rather thanchance. This country hasarguably enjoyed a betterjudiciary than it deserves. In lastmonth’s appointments, theGovernment appears to havemade a good start.

Pat Igoe is the Principal of Dublin-based solicitors’ firm Patrick Igoeand Company.

G

‘If commentators can

agree on anything, it

is probably that we

have tended to get a

better judiciary in

this country than we

deserve’

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Viewpoint


11

P rofessions emphasise thenotion of ethical behaviour.

This is reflected in the codes ofpractice drawn up byprofessional associations. Itimplies that the nature of theprofessional relationship is notlimited to the implied andexpress contractualresponsibilities mirrored in sucha relationship. Rather, theprofessional owes a public dutythat overrides his duty to theclient or patient and is theexpression of his commitment tothe ethics of responsibility.

So how do we explain theperceived boom in personalinjury cases in recent years? Itwould be easy to give out aboutthe medical and legalprofessions and their vestedinterests, blaming them for theabuse of personal injurylitigation. But to do so would beunjust and would fail torecognise the positivecontributions by, and theimportance of, theseprofessions.

On a wider social andphilosophical basis, perhaps weshould ask ourselves whether weare not all to blame, asparticipants in this ever-evolvingsociety? Do we not live in a‘risk’ society? We do, but not ina society where, as was believedin previous times, ‘man acted athis own peril’. Rather, we live ina risk society where all risks (orat least most of them) areinsured. This has led us tobelieve that, as victims ofpersonal injury, we can look forsomeone else to blame for life’smisfortunes, rather than takingresponsibility for our ownactions and taking the loss onthe chin.

Are we all to blame for thelitigation boom?

Our risk society is facilitatedby the extension of liability intocategories not previouslycovered, by growing consumerawareness, and by the vestedinterests of certain parties(insurers, doctors and, yes,lawyers). These are notnecessarily negative factors,though it does now appears thatthe system may be open toabuse. So in a way plaintiffs(either in good or bad faith) arehelped by the systems we haveput in place. It would be verydifficult in this environment forplaintiffs to show restraint andto make moral judgements onwhether to initiate a personalinjury claim.

The role of doctors andlawyers in medical negligenceA recent Supreme Courtdecision in a medical negligencecase illustrates how the systemcan be open to abuse – but alsohighlights the role of thedoctors and hospitalmanagement (the defendants)and their lawyers.

In Cooke v Cronin and Neary(Unreported, Supreme Court,14 July 1999), the plaintiff hadgiven birth to a healthy baby ina hospital in Drogheda. Theepisiotomy cut needed to bestitched, as is usual. A hospitaldoctor did this. Some of thenylon stitches inserted in theouter skin fell out on separateoccasions prior to the date theywere scheduled to be removed.It was in relation to these eventsthat the plaintiff initiatedproceedings. She claimed thatthe stitches were sewn tootightly. This caused them to fallout and caused tenderness anddiscomfort.

The defendants agreed that,had the stitches been sewn tootightly, this would amount tonegligence on their part.However, the doctors deniedthat they were. After the firststitches had fallen out, thesecond-named defendant, aconsultant doctor, had examinedthe patient but had not foundanything unusual. He stated thatstitches would fall outoccasionally without anyparticular reason. It wassomething that doctors were notreally worried about. An expertwitness of 35 years’ standingsupported this opinion.

The trial judge in the HighCourt dismissed the case, andthe plaintiff appealed.

Cause and effectThe increasing rate in personalinjury litigation, in particularwith respect to medicalnegligence, appears to suggestthat the mere suffering of injuryor loss is sufficient to warrant anaction in negligence against adoctor. But a mere causalconnection between conduct

and loss is not enough. Thedoctor must be found negligent.It also means that the decisionto initiate an action innegligence against a doctormust not be solely based on theexistence of injury and lossalone.

Lynch J, who gave theleading judgment in theSupreme Court, dismissed theappeal and questioned themanner in which the plaintiff’slawyers had presented the case.He pointed to the fact that theexpert witness for the plaintiffwas the plaintiff’s solicitor’s GP,who had seen the patient once,just prior to the hearing in theHigh Court. He also stated thatthere must be some credibleevidence to support theplaintiff’s case that thedefendants’ conduct was thecause of the injuries sufferedand that they might be guilty ofnegligence before such anaction could commence. Suchgrounds were absent in thepresent case.

Denham J added that in theabsence of any reasonablegrounds, it would beirresponsible on the part of theplaintiff’s lawyers to proceed. Itwould amount to an abuse ofthe process of the court andwould be ‘detrimental to [adoctor’s] professional reputationand practice’. It would instil in adoctor an unnecessary fear thathis conduct could be examinedin open court in the absence ofany reasonable grounds, eventhough the patient had sufferedinjury. Such a fear might have adetrimental effect on theprovision of healthcaregenerally.

On the other hand, though,

Dr Ubaldus de Vries argues that the perceived growth in personal injury litigation can’t simply bepinned on doctors or lawyers: society itself must take some of the blame

‘The professions have an over-riding public duty to combat bogusclaims’

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Viewpoint


13

Denham J also referred to theresponsibility of hospitals anddoctors in the event that apatient has suffered injury as aresult of medical treatment,regardless of whether thetreatment was caused bynegligence or not. It was quiteclear that the patient hadsuffered injury. In court, shegave evidence that her conditionwas painful, that the scar wasunpleasant and cosmeticallyunacceptable. She alsocomplained of urinary andbladder difficulties, andmenstrual problems. The HighCourt judge had stated that she‘might be better advised to seeka remedy with a medicalauthority and it might have beenhelpful if she had pursued thatoption from the outset’. In otherwords, she should have soughtmedical help elsewhere. DenhamJ added that the patient did notseem to be in a position to do sobecause of the lack ofcommunication and informationfrom the hospital. She regrettedthis, saying that relevant

information should be madeavailable and not excluded onunreasonable grounds foundedon commercial considerationsor for insurance purposes. Instrong terms, she referred tothe fact that information may

not always be easily obtained, sothe plaintiff’s action against thedefendants may have beencompounded by a lack ofcommunication on their partfor the very purpose of avoidingsuch action.

A double-edged swordSo the knife cuts both ways. Tocombat bogus claims and –perhaps more importantly –unnecessary claims, both thelegal and the medicalprofessions have an overridingpublic responsibility. Keane J inthe Cooke case reminded lawyersin particular of the ‘seriousresponsibility’ they have in the‘institution and conduct ofproceedings for negligenceagainst professional persons’.

Indeed, one may argue thatlawyers have generally a seriousresponsibility in the institutionand conduct of proceedings fornegligence against any person.A similar responsibility lies onthe shoulders of the medicalprofession and hospitalmanagement, in the role of

expert witnesses or asdefendants. In the capacity asdefendants, fear of litigationshould not deter them fromtaking action where a patient hassuffered injury as a result ofmedical treatment.

The cynic would react to thisby pointing to our changingsociety: the commercialisation ofhealthcare, the growing gapbetween public and privatehealth provision, and thelucrative business of personalinjury litigation for lawyers and,arguably, insurance companies.The latter appears to dictate theprocess of personal injury cases.The cynic might also argue thatthe legal and medical professions’public responsibility is eroded bythese factors. If he is right, itmay mean the end of the truenature of the professions.

Dr Ubaldus de Vries is a lawlecturer at Dublin City UniversityBusiness School. This article isbased on his paper to theConference of the Irish Associationof Law Teachers last November.

G

‘We live in a risk

society where all

risks are insured.

This has led us to

believe that, as

victims of personal

injury, we can look

for someone else to

blame for life’s mis-

fortunes, rather than

taking responsibility

for our own actions

and taking the loss

on the chin’

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Cover story


14

It’s often said

that everybody

has a book in

them – and

that’s probably

where it should

stay. But an

increasing

number of Irish

solicitors are

putting pen to

paper to share

their expertise

with their

colleagues. So

what does it

take to become

a legal author,

and can you

expect to

retire on your

royalties?

Maria Behan

breaks the bad

news

‘Abook is like a child’, observessolicitor and author RobertPierse. ‘There’s the undeniablesatisfaction of having it – butalso the struggle to raise it and

keep it going’. The senior partner at Pierse &Fitzgibbon in Listowel, who has penned twovolumes, including Quantum of damages for personalinjuries 1999 (Round Hall), also makes a less positiveanalogy: ‘A book is like a disease that afflicts you.You have to get it out of your system’.

Giving birth and battling disease are laudableendeavours – but not to be entered into lightly. So,too, is the process of writing a law book, accordingto authors and publishers alike. It isn’t just a matterof expertise in your chosen topic: successful authorsknow the publishing marketplace, carefully picktheir target audience and, of course, display a knackfor the written word.

Until the 1980s, there were only a handful ofpublications devoted to Irish law. ‘Practitioners andstudents alike had to content themselves withEnglish materials’, says Tom Courtney, a solicitor-author who heads the legal department at the ICSBuilding Society.

The first reason for this lies in our history: sinceIreland inherited its legal system from Britain,initially it wasn’t such a bad idea to rely on Britishsources. ‘As the state evolved, though, it becameincreasingly dangerous to rely on those texts’, saysCatherine Dolan, commissioning editor at RoundHall Ltd, which is affiliated to the London-basedpublishing giant Sweet & Maxwell.

The second reason for the dearth of home-grown law books was economic. ‘Multinationalpublishers believed there was no money in smalljurisdictions’, according to Bart Daly, whoheads FirstLaw Publishing. ‘And since Irelandwas a small jurisdiction, they treated it as anadd-on to the UK market’. Daly becamethe main instigator of Irish legalpublishing in 1981 when he foundedRound Hall, which wasthen an independentcompany. ‘Round Hallshowed there was a marketfor legal publications inIreland, and the industrymushroomed’, he says.

British publisherButterworthsbecame anothermajor player whenit set up an Irishdivision in 1988.Newer companieswith smaller piecesof the legal market

include Daly’s current venture, FirstLaw, which isdevoted to on-line and CD-ROM publishing, OakTree Press, a professional business book publisherwhich produces legal titles with a business slant, andBlackhall Publishing, which also has a businessemphasis, although it publishes books strictlytargeted at lawyers under the Inns Quay imprint.

Striking the dealAgents – and, unfortunately, advances –are basically non-existent in theIrish market for law texts. A first-time author will generally earn10% of net sales, thoughthat figure can be as lowas 7.5%, while anestablished writermight take in15% of netsales.

Lawpublishers

tend to beconservative

when it comes to print runs,

especially for anauthor’s first effort.

Initial runs can be aslow as 500 copies (though

reprints are common if atitle sells well), while books

with broader appeal may have firstprint runs of 1,000 to 1,500 copies.

‘In Ireland, you’re still looking at sales of 1,000 to 2,000 volumes for an average lawbook’, says David Givens, general manager ofOak Tree Press. But he points out that lawbooks are priced higher than most others, sothe royalties are higher as well. ‘You don’t needto sell quite as many as other types of books tosee a decent return’, he says, though he’s quickto add that money isn’t the primary reason thatmembers of the legal profession write books.

‘Financially, writing a book is a totaldisaster’, says Robert Pierse. ‘You don’t evenrecover your typing costs’. And Tom Courtneyobserves that ‘the direct financial rewards forwriting a law book will never recompense you

Cover story


15

MAI

N PO

INTS • Writing

a book involves enormoustime com-mitments

• Don’t expect tomake muchmoney

• Targeting the rightreadership is crucial

referred to by their titles, but by the author’s name.‘That fact is telling’, she says. ‘It shows that in thelegal field, the author’s expertise is considered themost important thing – and that the author hasearned considerable respect’.

How the publishing process worksLike other publishing professionals, Dolan makesthe initial contact with some of her authors, whileothers come to her. ‘If solicitors ring me up with agreat idea, I’ll send them a short form to fill in so Ican get a better sense of the idea they’re proposing,the market they’re aiming at, and what they plan toinclude in the book’, she explains.

David Givens outlines the elements of a thoroughproposal: ‘The more information, the better’, hesays. ‘You always want a one-page description of thebook and, if possible, a detailed table of contents,with chapter headings and descriptions of thematerial covered in each chapter’. Other items onhis wish-list are a description of the market and itssize, why that market will be driven to buy thebook, the author’s qualifications, and a target datefor completion of the manuscript.

Winning a book contract also depends on havinga way with words. ‘If we like someone’s book idea,we’ll ask them to prepare a draft chapter in order toensure that they can actually write’, says LouiseLeavy, managing editor (law) at Butterworths.‘Some people have a lot of knowledge but they’renot good at conveying it on paper’.

for the labour that goes into it’.So why have so many solicitors been bitten by

the writing bug (including Courtney, who edits andoccasionally writes for the journal Commercial lawpractitioner and has penned four books, includingMareva injunctions and related interlocutory orders(Butterworths, 1998)? ‘As a practitioner, it’sexceedingly difficult to stay on top of one’s subjectwithout being involved in on-going research’, heexplains. ‘For me, the most expeditious way ofstaying current is by researching and writing, so Idecided to get the most from what I was doing bypublishing my work’.

Dermot Cahill, solicitor and lecturer in law atUCD, says that he decided to write his bookCorporate finance law (Round Hall, 2000) becausethere was no text in the area. ‘This was a way tomake a contribution to scholarship and thedissemination of legal knowledge’, he says.

McCann FitzGerald solicitor Michael O’Reillyreports that the book he co-wrote on environmentallaw grew out of material prepared for seminars,which he feels is a fairly common beginning for alegal tome. And what made all the work that goesinto a book worthwhile? ‘Having contributed tosomething which is actually used on a daily basis issatisfying’, he says – then adds with a laugh: ‘thatand finishing the thing in the first place’.

In some cases, writing a legal textbook canfurther a solicitor’s career, increasing promotionprospects within an organisation as well as thelikelihood that he or she will be appointed toprofessional and governmental bodies. ‘If you’re anexpert in a certain area, writing a book helps cementyour reputation and make you a recognised expert’,comments Oak Tree’s David Givens. ‘It enhancesreputations – and I suppose it can bring in moreclients as well’.

Round Hall commissioning editor CatherineDolan points out that legal books are seldom

stuff!

The

writewrite

Cover story


16

If solicitors prove as adept at expressing ideas asthey are at formulating them, the chances are they’llbe offered a book contract. ‘Authors, especially ifthey’re solicitors, shouldn’t just accept the terms willy-nilly’, warns Dermot Cahill. ‘They should negotiatethem, just as they’d negotiate a transaction on behalfof clients. Your book is valuable intellectual property,so you should seek the most favourable terms possiblefrom your publisher’.

The hard part comes once the contract is signed.Finding the time to write the book is probably thetoughest aspect for solicitor-authors. Cahill spent fouryears on Corporate finance law and says that’s not verylong, considering his subject matter. It would havetaken him far longer, he adds, if he was a practisingsolicitor rather than an academic. Tom Courtneyadmits he finds it difficult to carve out writing timefrom a busy schedule. ‘One would almost think it’simpossible, in view of the demands of simply gettingthrough the working day’, he says. And Robert Pierse,who estimates that his first book took him more thantwo years to write, working about 15 hours a week atnights and weekends, sounds like a veritable speeddemon.

McCann FitzGerald’s Michael O’Reilly says thatcollaboration was the key to getting through themassive amounts of work behind Irish environmentallegislation (Round Hall, 1999). He worked with twoco-authors, fellow solicitors Barbara Maguire andMichael Roche, and says they received a good deal ofhelp from others at the firm as well. ‘We wrote it overmany years, and the sheer volume of work involvedwas staggering’, he recalls. ‘Given our topic, we had tocover or at least be familiar with practically everypiece of legislation that we could see having anyconnection with the environment. So there werehundreds of legislative enactments dating from thelast century until today.

‘We used to come in very early in the morningabout three times a week to work for a couple ofhours, and we now look back at those sessions fondly’,he continues. ‘We’d be going through obscure pieces

of legislation and happily each of us has a good senseof humour – because you either laugh or you cry.Sometimes we still think that the laughter wasbordering on hysteria’.

Cahill feels that a research assistant could prove aninvaluable asset to a legal writer. ‘I’d like to see morepublishers provide a budget to help with that, becauseit means that the author can concentrate on gettingthe substance of the book to the highest possible levelwhile somebody else is dealing with proofing,consistency, and that sort of thing’, he says.‘Otherwise, you divert so many months to justproofing, proofing, proofing’.

The author’s toil doesn’t end with the delivery ofthe first draft. Round Hall’s Catherine Dolanestimates that it takes an average of six months frommanuscript delivery to the bound-book stage. During

‘Financially

writing a book

is a total

disaster. You

don’t even

recover your

typing costs’

Blackhall Publishing and Inns Quay. Blackhallprints law titles with a business slant; the affiliatedInns Quay imprint handles other legal books.Contact: Gerard O’Connor, 26 Eustace Street,Dublin 2, tel: 01 677 3242, e-mail:[email protected]

Butterworths. Produces a wide range of legaltitles. Contact: Louise Leavy, 26 Upper OrmondQuay, Dublin 7, tel: 01 872 8514

FirstLaw Publishing. Focuses on electronicpublishing. Contact: Bart Daly, Richmond Campus,

North Brunswick Street, Dublin 7, tel: 01 807 2400, e-mail: [email protected],website: www.firstlaw.ie

Oak Tree Press. Prefers titles with a businessrather than strict legal emphasis. Contact: DavidGivens, Merrion Building, Lr Merrion Street, Dublin2, tel: 01 676 1600, e-mail: [email protected]

Round Hall Ltd. Publishes an extensive array oflegal books. Contact: Catherine Dolan, 43Fitzwilliam Place, Dublin 2, tel: 01 602 4815, e-mail: [email protected]

LEGAL PUBLISHING: THE MAIN PLAYERS

TRICKS OF THE TRADEThe road to completing a successful law book islong and fraught with peril. Here, some authors andeditors offer tips for the trip

‘Make your writing clear. Use shorter sentencesand if you have to use jargon, explain it.Footnotes are very important in legal texts, sincethey allow you to avoid clogging up the text withminutiae. Lawyers are used to writing letters fortheir clients in very obtuse language. The dangeris that they might carry that into their legalpublishing. When you’re writing a chapter in abook, you’re not giving a legal opinion, you’redescribing the law. That’s very different’.Dermot Cahill, UCD

‘Be practical: people want useful information. The lawobviously has its philosophical and moral aspects, butthe real demand is for information that helps solicitorsstay abreast and conduct their business’. Elanor McGarry, Round Hall

Cover story


17

this time, the author must be available to answerqueries that come in from the editor and, in somecases, outside experts in the areas covered. The finalhurdle usually comes when the writer reviews the finalproof just before the book goes to print, which is his orher last chance to fix any mistakes or add updates onrecent cases or regulatory changes.

And then there’s marketing. ‘Depending on thenature of the book, we may ask an author to help withmarketing’, says Blackhall Publishing’s managingdirector Gerard O’Connor. ‘For instance, we recentlydid a book on holiday law, and something like that,which appeals to travel agents and a broader audience,might attract the interest of a programme on RTÉ. Italso depends on the personality of the author: some arekeen to do it, others aren’t’.

Keys to successSo what makes one title more marketable thananother? One major factor is the target readership. ‘Itdepends on the nature of the book, whether it’s purelyfor practitioners or whether students might buy it aswell’, O’Connor explains. And more copies are likelyto be sold when a book has appeal outside the legalfield, for example, to human resource managers,banking officials or, in the example he cited, travelprofessionals.

Another pivotal area is theme. ‘While a particulartopic may be of great interest to an author, it maysimply not have a commercial attraction’, says TomCourtney. Louise Leavy says that books on companylaw always do well, citing Courtney’s Law of privatecompanies (Butterworths, 1994) as an example.Catherine Dolan also feels that company law can

be marketable, especially specialist areas such as take-overs and mergers. She singles out conveyancing andcriminal law as hot topics, and says the Irish marketcould use a criminal-law bible, such as Archbold in theUK.

According to Round Hall’s managing directorElanor McGarry, one can look to the changes in Irishsociety to gain an insight into the kinds of legal booksthat will be popular now and in the future. ‘Family lawis a key area’, she says. ‘And there have been manychanges in the legal profession driven by the economicboom’. In this regard, she cites the environment,planning and construction.

McGarry feels that the rise in demand for specialistlaw books reflects a change in solicitors’ careerpatterns. ‘Several years ago, the majority of solicitorsworked in sole or dual-practitioner firms’, sheobserves. ‘Now firms are growing, and there are morepractitioners in medium-sized firms than in smallones. Solicitors who work in big and medium-sizedfirms tend to be specialists, hence the increaseddemand for specialist publications’.

Besides target readership and topic, a third factor inthe equation is the writer. ‘If the author is well-regarded in the legal field, that can generateenthusiasm’, says Gerard O’Connor. ‘And if they’recontroversial, that can generate media interest – whichhelps to sell books’.

21st century publishingMost publishers now see the digital world, and theInternet in particular, as the way of the future.According to Elanor McGarry, Round Hall’s extensivemarket research has revealed a sea-change in thedemand for electronic publishing. ‘In 1997, 20% ofthose surveyed could use the Net, but in 1999 it was80%’, she says. ‘That’s a four-fold increase in demandover just two years, which is phenomenal’.

FirstLaw is already producing legal publications forthe Internet, and the other players in the field plan todo the same. ‘It’s not a question of should we do it,but with what products’, says McGarry. ‘It’s probablythe area that offers the greatest growth potential’.

Butterworths’ Louise Leavy agrees: ‘The futuredefinitely lies in electronic publishing. More and morepeople have computers and expect to use them to getthings quickly. It makes life easier if you can lookthings up on-line with search engines and downloadinformation. Because of that, I think the hardcopybook will die out a bit’.

Tom Courtney – along with many other writers –might be less than thrilled with that last predictionsince it may deprive authors of the thrill of holdingnewly-minted books in their hands. ‘The highpoint ofthe writing experience comes when you get the firstcopy of the book from the publisher’, he says. ‘That’scertainly way up there in any author’s life’.

So if you hope to experience that thrill, you’d bettergo warm up your word-processor. G

‘If you have a legal speciality you really care about,stick with that. Interest is what keeps you going’. Robert Pierse, Pierse & Fitzgibbon

‘I would listen carefully to my publisher and be guidedby them as to whether they believe a book will fill anexisting lacuna in published material. If there are 15books on a particular topic, it’s not necessarily thecase that the market needs a 16th. Still, the fact thata topic has been written on in the past ought to be noabsolute bar if you believe you can bring something tothe area that has not been addressed before’. Tom Courtney, ICS Building Society

‘The publisher’s contract tends to be all-embracing asto rights. I’d advise solicitors to look carefully at thecopyright. If they want to give away the entire copy-right, that’s fine. But if they foresee that the materialcould be channelled for another use by a differentpublisher, they should hold on to the electronic rights’. Bart Daly, FirstLaw Publishing

Tom Courtney: ‘The highpoint comes when you getthe first copy of the book’

Elenor McGarry: ‘Increas-ed demand for specialistpublications’

David Givens: ‘You don’tneed to sell as many tosee a decent return’

43 Fitzwilliam PlaceDublin 2IrelandTel: (01) 662 5301Fax: (01) 662 5302DX: 1 0 9 0 3 2FitzwilliamEmail:[email protected]

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Interview


19

■ Gazette: What will be the main changes thatlawyers can expect to see over the coming monthsand years?■ Fitzpatrick: The big issue identified by theWorking Group on a Courts Commission was the factthat the administrative and management arrangementsfor the courts had virtually not changed at all since thefoundation of the state. So the modernisation of thecourts will take place on two levels: first, by putting inplace professional management and administrativearrangements and, second, in the whole area ofinformation technology. The Government hasapproved an £11-million capital investmentprogramme for IT, and planning for that is at anadvanced stage.

Some 85% of all the court buildings in the statehave now had IT cabling installed, so the infra-structure is in place to link court buildings with eachother, with the Courts Service headquarters, and withother bodies such as the gardaí, the prisons and so on.

In phase two of that development, we hope toprovide facilities where users can their businesselectronically via the Internet. Indeed, in the not toodistant future we hope to move to a situation whereusers can pay fees and send documents electronically.Of course, that will mean changes in court rules. Inany event, the Government has just launched its e-commerce Bill, which will give people the right toconduct their business with the state electronically.

For us, that means we have to have facilities incourts where people can do that. Obviously it’s a bitaway yet, but that is the direction we are going in.Despite what the public impression might be, there’s alot of enthusiasm among judges and court staff forinformation technology.

■ Gazette: Another major issue to be addressed isthe very poor state of court buildings andaccommodation. When you took over, were yousurprised at how bad they were?■ Fitzpatrick: Yes, I was surprised that some of themwere as bad as they were. We estimate that it will takeabout £200 million over the next five to seven years tobring court accommodation up to a reasonablestandard and to provide the sort of privacy and dignitythat the public and practitioners can reasonably expectin this day and age.

■ Gazette: Has there been any pressure to close rural courthouses around the country?

■ Fitzpatrick: No, there hasn’t been any pressureabout any particular venues. Obviously, we areseeking very significant additional funding toprovide modern court facilities and to ensure thatthere are a reasonable number of venues, and thatpeople have reasonable access. But on the otherhand, it would be very difficult to justify having newcourt buildings five, six or seven miles apart, andmaybe used once a month. We have to be able tojustify which venues will be upgraded and where weare going to spend the money.

■ Gazette: Would you envisage a decrease inthe use of pubs and hotels as court venues?■ Fitzpatrick: Well, if we’re talking aboutproviding accommodation which is modern, whichprovides the type of consultation rooms, meetingrooms, privacy and dignity that ought to beprovided, then pubs, ballrooms and hotels are notsuitable and cannot continue long-term.

■ Gazette: So practitioners and the public can’texpect an overnight change in their experienceof how they are using the courts?■ Fitzpatrick: I think there is a lot to be done andit won’t all be done overnight. But the website isthere, practitioners can now access the on-line legaldiary free of charge, some of the building projectshave started and consultation with practitioners’representatives has begun, so hopefully people arebeginning to experience some change.

We will be asking people to be patient because weare looking here at a five to seven-year programmeto implement all of the recommendations in thereports. But hopefully, quite significant andsubstantial improvements will begin to appear on

As Chief

Executive of

the new Courts

Service, PJ

Fitzpatrick is

the man

charged with

dragging our

creaking courts

system into

the 21st

century. Here

he tells Conal

O’Boyle about

the work done

to date and his

plans for the

future

CourtingsuccessPJ Fitzpatrick:‘I think thereis a lot to bedone – and it won’t all be doneovernight’

Friday 24 March13.00 – 15.00 Registration at Law Society House, Victoria Street.Reception hosted by NI Law Soc President. Coach departs Dublin 11.00 hrs

16.00 hrs Reception at Belfast City Hall

20.30 hrs till late. SALSA NIGHT at THE EMPIRE

Saturday 25 March10.00 – 16.00 hrs SEMINAR SESSIONS at THE HILTON

Competition law: a European perspective. Damien Collins,BrusselsEuropean Commission and the regulation of e-commerce. Mads Bride Andersen, DenmarkRegulation of the Internet. Dr David Taylor, ParisThe implementation of the Good Friday legislation in NorthernIreland. Prof Brice Dickson, University of UlsterAssociation of Personal Injury Lawyers. Nigel TomkinsRecent developments in tort/negligence actions. Sean Doran,Queen’s UniversityCentre for Dispute Arbitration and Resolution (CEDAR).Anthony Montgomery.A land law system for the 21st century. Prof JCW Wylie,Cardiff University

19.30 – 02.00 hrs Gala Dinner & Cabaret/Disco, Hilton Hotel.

Sunday 26 March11.00 hrs Brunch and goodbyes. Coach departs Jurys 14.00 hrs

NOTES:1. Millennium Conference 2000 is being hosted and organised by

NIYSA. Delegates will attend from Northern Ireland, Ireland,Scotland, England & Wales and Member States of the European Union.SYS has been allocated a limited number of delegate spaces for solici-tors practising in Ireland. Irish solicitors wishing to attend this confer-ence MUST APPLY through the SYS. Demand will be high. The appli-cation procedure will be applied strictly.

2. Belfast Jurys Hotel has been allocated to SYS for accommodation ofIrish conference delegates (IR£130 pps). A small number of twinrooms may also be available in the Hilton and McCausland Hotels(IR£150pps). No single rooms.

3. Irish delegates may opt for a return ticket on a coach, arranged by theSYS committee (IR£15 extra). The coach will depart Custom HouseQuay at 11.00 hours SHARP on Friday 24 March. Irish delegatesBOOKED on the coach, MUST arrive at Custom House Quay not laterthan 10.30 hours, departing Jurys Hotel at 14.00 on Sunday 26 March.

4. Accommodation is limited and will be allocated on a strictly first-come, first-served basis and in accordance with the procedure set outbelow.

5. The conference fee is IR£130pps for Jurys/IR£150pps for Hilton orMcCausland and includes Friday and Saturday night accommodation,two breakfasts, two receptions, subsidised events, Salsa Night, lunchon Saturday, Gala Dinner and conference materials. No non-accommo-dation rate available.

6. One application form must be submitted per room per envelope togeth-er with cheque(s) for the appropriate conference fee and coach and aself-addressed envelope. All applications must be sent by ordinary pre-paid post and only applications exhibiting a post mark dated 14February or after will be processed. Rejected applications will bereturned in due course.

7. Applications cannot be accepted without appropriate payment. Chequespayable to SYS please. Names of Irish delegates to whom thecheque(s) apply MUST be written on the back of the cheque(s).

8. Cancellations must be notified to ‘[email protected]’ on or before 10March. Cancellations after that date will not qualify for a refund.

SOCIETY OF YOUNG SOLICITORS IRELAND(sponsored by Bank of Ireland Trust Services)

THREE-DAY MILLENNIUM CONFERENCE 2000

(hosted by Northern Ireland Young Solicitors’ Association)

24–26 MARCH at THE HILTON HOTEL, BELFASTwww.sys.ie for further details

APPLICATION FORMPlease use block capitals. One form per room per envelope.

Name 1 Name 2

Firm 1 Firm 2

e-mail e-mail

One contact address

Phone (H) (O)

ACCOMMODATION IN JURYS HOTEL IR£130pps (HILTON/McCAUSLAND IR£150pps):Please tick ■■ Double ■■ TwinRETURN COACH: Please tick ■■ 1 ■■ 2

I enclose cheque in the sum of IR£260/300 plus IR£15/30 and I enclose self-addressed envelope.Application to the treasurer, SYS, PO Box 7255, Dublin 4.

Interview


21

the building side, right across the country, veryquickly.

There is a lot of goodwill around. I’ve been to all ofthe court offices around the country, met all the judgesand many local solicitors and barristers. I thinkeverybody wants to see it work, everybody wants it tobe successful and, of course, there are also hugeexpectations, which is understandable. People arelooking for improvement.

■ Gazette: It must strike you as being a bit likeMao’s Great Leap Forward, trying to modernise a 70-year-old courts system within five to sevenyears?■ Fitzpatrick: Yes, it’s a great challenge – for theboard, for me as chief executive, and for the staff. Butgiven the commitment and enthusiasm for the changesthat I’ve encountered at all levels, I’ve no doubt that itwill be successful.

■ Gazette: You’ve spoken about ‘demystifying’ thecourt system and making it more ‘user-friendly’.What exactly do you mean by that?■ Fitzpatrick: There’s still a lot of misunderstandingabout the courts among the general public. What weare hoping to do through things like the website andinformation leaflets is to explain what the courts are,what they do, where they sit, the different jurisdictionlimits and so on. We are also hoping to provideinformation leaflets for the public and looking atproducing information videos on the courts forschools.

A lot of people never use the courts – and for thosewho do use them perhaps once in a lifetime, it can be adaunting experience. So we’re really trying to makepeople more aware of what to expect when they go tocourt. Court by its nature is adversarial and there’s verylittle we can do to change that, but we can try to createthe surroundings, the environment, and provide theinformation that will put them more at ease beforethey go in there.

■ Gazette: You’ve also suggested puttingjudgments on-line? ■ Fitzpatrick: At the moment we’re in discussionwith the judges about that, and the intention is to startwith Supreme Court judgments and then follow thatup with High Court judgments and so on. What iscritical there, of course, is that the judgments areavailable quickly, following delivery, because that’swhen people want to access them.

■ Gazette: Have you been consulting the legalprofession about the more far-reaching changes?■ Fitzpatrick: Yes. For example, we have done up aconsultation protocol for all new court buildings andfor the projects in Dublin. The Chief Justice and thepresidents of the three court jurisdictions havenominated a number of judges who are available to uson an on-going basis for consultation. Similarly, theLaw Society, the Bar Council, the gardaí and all theother user groups have named people who are available

for consultation, and we are consulting with them. Forprojects outside Dublin, we consult with the local barassociations. So in areas where major innovations areproposed, there will be on-going consultation with allof the user groups, particularly the user groupsrepresenting legal practitioners.

■ Gazette: So you won’t be springing any majorsurprises on anyone?■ Fitzpatrick: No, and hopefully we willaccommodate people’s views and wishes, but as youknow it is very difficult to do that all the time.However, we can certainly assure people that theirviews and suggestions will be very seriously taken intoaccount and, where at all possible, accommodated.

■ Gazette: You’re trying to create a unified staffingstructure in the Courts Service. What could thatmean for county registrars who at the minute arelargely recruited from the ranks of solicitors?■ Fitzpatrick: The county registrars are a key groupand by virtue of their particular training and knowledgeare in a position to very considerably contribute to thedevelopment of the new Courts Service. I am currentlyin discussion with them about the continueddevelopment of their role within the service.

The changes in the Courts Service are affectingeverybody, not just any one particular group. The veryfact that we were able to reach agreement with theunions representing the staff on such fundamentalissues as promotion and methods of filling posts isindicative of the amount of goodwill there is – andpeople’s wish to be part and parcel of the new service.I think county registrars are every bit as enthusiastic tocontribute to that as any other group, and I’ve no doubtthat our discussions with them will result in an equallybeneficial arrangement for everybody – the CourtsService, county registrars, the public and practitioners.

■ Gazette: Are you happy with your budgetallocation?■ Fitzpatrick: Yes, I think the increase in the budgetfor this year will certainly meet the programme of workthat we have planned. Some of the increases are verysignificant: for example, almost 100% for staff training,over 200% for the Judicial Studies Institute, 200% fortelecommunications and IT, and almost 60% for thebuilding programme. But that’s not to say that we won’tneed more next year. We will – particularly in the areaof IT and building. These projects are at adevelopmental stage, but we will need to spend a lotmore next year because they will be further advanced.The increase in the budget for the Courts Service overthe last two years has been nearly 50% – that’s anindication of the commitment of the Departments ofJustice and Finance.

■ Gazette: And you’re confident they’ll continue to give you the funds you need?■ Fitzpatrick: Yes. We have no reason to believe theywon’t. But it will be up to us to prepare the argumentsto convince them that it will be money well spent. G

‘Court by its

nature is

adversarial and

there’s very

little we can

do to change

that, but we

can try to

create the

surroundings

that will put

them more at

ease before

they go in’

Legal costs


22

Alaw firm is in business to provide legalservices and to generate an income.This must be sufficient to attract andretain professionals who will provide asuperior, quality service to the client.

While some services may not exactly be profitable,they may be seen as essential to the overall ethos ofthe firm. In this regard, loss leaders may be offeredbecause of the potential work that could begenerated in the future or because the firm wishes toprovide the full range of services that should beavailable to the legal marketplace. A classic exampleof this occurred during the early 1980s whenmargins in conveyancing transactions weresomewhat depressed and those transactions were aconstant drain on the labour resources of many firmsbecause of their acute time-consuming nature. Butfew – except for some highly-specialised firms –could contemplate not providing such a service.

According to Professor Milton Friedman of theChicago School, the purpose of a firm is to use itsresources and to conduct its activities in such a wayas to increase or maximise profit so long as it stayswithin the rules of the game. The ‘game’, as it were,is the contest of litigation and the rules are thoselaid down by the Rules of the superior courts. The costs

incurred in litigation are directly governed byspecified rules and adjudicated by a taxing master ona taxation of costs. We shall look briefly at the rulesof the game later, but first let’s consider theimportance of recording costs data and the part itplays in billing a client.

Recording costs dataA detailed costing of each individual file is importantbecause the collection of the costs of all filesultimately underpins the measurement of a firm’s

Most solicitors are justifiably proud of the work they do,

but some seem to forget that they deserve to be paid

for it and leave the cost-gathering exercise to the end.

Tony Halpin and Taxing Master James Flynn discuss the

fundamental concepts behind legal costs and the

importance of proper recording systems in a law firm

TaxingM

AIN

POIN

TS • Detailed costings of each case arevital to a firm’s profitability

• Time costs are only one part of theglobal information needed tomanage a firm

• The taxing master relies oninformation submitted to supportthe costs claimed

• The party claiming costs mustjustify why they should be allowed

• The party expected to pay the costswill certainly seek the supportingdocuments

• Party-and-party costs versussolicitor-and-client costs

Legal costs


23

profitability. Proper costing sheets will reflect thenumber of hours worked by each solicitor on a case,the number of expert witnesses, the number ofcounsel and the nature and extent of the work done,and the apportionment of fixed costs.

But while it is obviously important to record theamount of time spent on a case, this merely indicatesthe number of man-hours taken to perform a task.To translate this into a monetary rate chargeable tothe client, one must apply an hourly rate to theactual number of hours involved. The definitive rateper hour is directly related to the category ofpersonnel involved in doing the work. It is thereforenecessary to choose the right person to do the job –preferably someone who is sufficiently experiencedin that particular task.

Indeed, Laffoy J accepted that the category ofpersonnel and the amount of time expended wereessential criteria in the assessment of the amount ofremuneration rewarded to the solicitor, but addedthat these may not be sufficient to reflect the overalllevel of the instruction fee. In The Minister forFinance v Laurence Goodman & Ors (Unreported,High Court, 8 October 1999), she said:

‘The sum of £275,000, in my view, properlyreflects the preparatory work and properly rewards

overall for the other relevant factors [that is, inaddition to a time-based rate] – complexity, skill,responsibility and so forth. I reject the argumentadvanced by the Minister that the latter factors arealready rewarded through the daily rate. Unlike theapplication of an appropriate hourly rate to theappropriate number of allowed hours in respect ofthe appropriate cadre of personnel, the applicationof a flat daily rate without regard to actual timeworked or by whom worked does not reflect thosefactors’.

So recording time costs is simply one element inthe global information needed to manage any firm,whether big or small. Planning and control isnecessary to compare budgeted costs with actual

timesTHE PURPOSE OF RECORDING COSTS DATAThe system chosen by a firm to record costs data can perform severalfunctions within the business unit. For example, it may help to increasethe recovery of costs, while:• Improving the quality of decisions made by partners • Motivating staff to make decisions that will help the firm prosper, and• Aiding the partners in evaluating the performance of each department

and highlighting those areas that need attention.

Legal costs


24

costs, which in turn will influence managers inregard to the projected price of future services.Overheads must in some way be included in thepricing mechanism, and it is normal to use a timeunit in applying a fair apportionment of these costs.

Briefly, recording data, although timeconsuming, will enable partners to perform theirroles properly. It helps to identify areas that requireattention and will indicate performance levels,potential growth areas, profitability and showwhether or not the firm is on a sound financialfooting.

Taxation of costsThe taxation of costs is the settlement of theamounts payable by a party or parties in respect ofthe costs in an action, cause or matter which isassessed by a taxing master. In order to achieve afair and just amount, the taxing master relies on theinformation submitted to support the costs that areclaimed. Notwithstanding the fact that allowing anyparticular item in the bill of costs depends on thecourt order awarding costs, each item must besupported by evidence, and its allowance ordisallowance may in great measure depend on theinformation provided at taxation. If one is to be in aposition to furnish all necessary documentation, forobvious reasons one should begin compiling it atthe start of a case.

The taxing master in Superwood Holdings plc &Ors v Sun Alliance and London Assurance plc & Ors(17 December 1997) described how useful recordscould be during a taxation:

‘Had a time-record been kept, it would have beenhelpful in determining the physical input into thecase and the actual cost thereunder. Therefore, thebest and most accurate way to establish exactly andprecisely how much to charge a client for work is todetermine how much time it took to finish orcomplete that work, having regard to the calibre ofthe personnel, dictated by the nature of the work,coupled with the other elements of the instructionfee ... The instruction fee is dependent upon theactual work that is done and, as such, incorporatesall factors, both tangible and intangible. Timeshould be justifiably spent on a case and any timethat is abnormal, excessive or improper should bedisallowed on taxation, whether it be on a party-and-party or a solicitor-and-client basis. This casewas at the outset envisaged to take some time bothin preparation and in the course of the hearing.Therefore, given the amount of estimated damages,it was incumbent upon the solicitor to record thework in some sort of a concrete manner’.

When recording the amount of labour involvedin a case, it is not enough merely to record theamount of time, but also how that time was spent.The taxing master in the Superwood case quoted thedicta of Payne J in Re Kingsley ([1978] 122 SJ 457),where he stated:

‘I ought to add that this case illustrates thedangers which are present if reliance is placed on amodern system of recording, without at the sametime retaining the old and well-tried practice ofkeeping attendance notes showing briefly the timetaken and the purport of the work done by day. Itmay be that this case will invite attention to theimportance of appreciating the limits to which thecomputer system can be used in cases wheretaxation of costs must follow litigation and to thenecessity of preserving as well the use of thetraditional systems’.

The records should reflect all the work andexpense incurred in a case. Time costs are only oneelement; other costs that should be supported bysufficient evidence are counsel’s fees, witness’sexpenses, the cost of reports and so on.

The Courts and Court Officers Act, 1995 gives thetaxing master the power to examine the nature and

ACCURATE BILLING‘Unless time is recorded, there is no othermeans of monitoring it. It is becoming anincreasingly important factor in assessing whatis fair and reasonable remuneration. Aneffective time-recording system will invariablyresult in an increase in remuneration andefficiency’.Alfred E Anderson, CBE, Legal costs inNorthern Ireland (1990)

THE LOGIC BEHIND TAXING COSTSTaxing costs reassures the public that the costs allowed arefair and reasonable. The public can then have confidence insolicitors and in the fees charged. In the United States, thefees charged by lawyers came under fire from the public andan American lawyer, Miles McMillin, took umbrage at theapparent ease with which lawyers could charge what theyliked without proving that the work had been done. He wrote:‘The public must not only pay the rates the lawyers decreefrom their privileged closed shop, it must take the word of thelawyers on how much work they put in. If the lawyer says heput in an hour’s work on a case, there is nothing the clientcan do but pay the $25. How can he prove the work wasn’t

done? But the lawyer is urged by the bar to snoop into theclient’s status ... the lawyer is told that he should check whatkind of car the client is driving to help determine whether hecan pay the charges – in this case, literally what the trafficwill bear. The new fee schedule does not suggest that thelawyer also check the client’s liquor cabinet, deep freeze,refrigerator and wardrobe, but lawyers have a Latin expressionthat covers the situation: Expressio unius est non exclusioalterius. (The inclusion of one does not mean the exclusion ofothers). It’s a pity the public doesn’t have some rules in Latinor otherwise to protect its interests’. Madison Capitol Times, 12 November 1966

‘While it is

obviously

important to

record the

amount of

time spent

on a case,

this merely

indicates the

amount of

man-hours

taken to

perform a

task’

Legal costs


25

extent of the work undertaken in a case. In order todo this, he must be given detailed informationabout the nature and extent of the work done. It isbest if that information is collected from the outset,because if you leave it until taxation it will takeconsiderably longer to compile. A party mustprovide all the relevant material that will help in anexamination of the costs of an action and, as thecosts are those of the client, the solicitor has a dutyto satisfy this requirement. This has placed whatwas traditionally accepted as a practical method ofcollecting costs data on a more permanent andstatutory footing. All too often things are left to thelast minute and an item in the bill of costs mayeasily be missed and so be irrecoverable.

In Superwood, the taxing master said:‘Although the costs herein were incurred prior to

the enactment of the Courts and Court Officers Act,1995, there was a traditional custom to record theextent and import of the work done on this case. Ido not think it incumbent upon me to set out theexpansive authorities upon this area for it is welland truly accepted that, upon a taxation, theamount and extent of work performed must besupported by evidence so that justice is done toboth parties to a taxation’.

Accordingly, solicitors are ultimately responsiblefor the compilation, retention and gathering of allthe evidence in supporting the costs of the partythey represent. The taxing master emphasised that‘it is recognised by the courts that to determine amatter it must be determined upon evidence, nomatter how small, meagre or diminutive it is’.

Party-and-party costsIf a client is successful in an action and has beenawarded costs against the unsuccessful party by thecourt, the unsuccessful party will pay most if not allthe actual costs incurred. Simply, party-and-partycosts are those costs which are usually paid by theloser to the winner in an action, thereby coveringthe bulk of the legal costs incurred by the winner.The party-and-party basis does not mean that allthe costs incurred are recoverable from theunsuccessful party; there is no guarantee that theywill all be met. In fact, the costs allowed areconfined to those which are deemed necessary orproper for the attainment of justice or for enforcing

or defending the rights of the party whose costs arebeing taxed.

In McGarry and Others v Sligo County Council(Unreported, Supreme Court, 5 May 1989), WalshJ held that the whole basis of party-and-party costsis one of indemnity. Party-and-party costs do notnormally cover all the charges incurred in thecourse of the action and therefore rarely provide acomplete indemnity. Essentially, this means thatanything over the amount recovered from thepaying party must be met by the party having theircosts taxed, and this amount represents thesolicitor-and-client costs.

If a party is expected to pay costs, it is axiomaticthat they will certainly seek the supportingdocuments in order to satisfy themselves, first, thatthe costs were indeed incurred and, second, thatthose costs were necessary and proper for theadvancement of the litigation. There is an onus onthe party claiming costs to demonstrate to the taxingmaster’s satisfaction that the costs incurred wereproper and reasonable in all the circumstances. Butthe taxing master is guided by his experience as towhen this onus has been discharged and he is notcontrolled by the strict limits imposed, for example,by the onus of proof in criminal courts; rather, he isguided by the evidence presented. The fees claimedcannot be construed as being within a scale becausescales as such do not exist.

‘Necessary and proper’ costsSo the costs incurred must be necessary and properand determined on the basis that they were incurredin furthering the action of the party whose costs arebeing taxed. In the case of Stuman v Dixon (22 QBD529), the following distinction was made betweenparty-and-party and solicitor-and-client costs in anaction: ‘The costs of the plaintiff as against the partydo not mean all the costs he has incurred but all thecosts he has incurred by the act of the defendant.That is the difference between party-and-party andsolicitor-and-client costs. For example, it may bereasonable to have several consultations, but itdoesn’t follow he is to get them all against the party’.

The method of assessment is of criticalimportance in that the approach is not a concretescience and the justification of a cost is exclusivelydependent upon the part it has played in the

Section 68 of the Solicitors (Amendment) Act,1994 now obliges the solicitor, on takinginstructions from the client, to inform him inwriting as soon as is practicable of the likely costsin the action. In Purdy v Nordquist and Durham([1961] 95 NW 2d 91), Montague J of the USSupreme Court found that failing to fully informand advise the client of the level of fees was abreach of duty. He emphasised that ‘in conjunctionwith their [the lawyers’] methods and conduct, the

procurement of grossly excessive fees for theirservices ... constituted a fraud’. He went on toremonstrate that the ‘careless and unbusinesslikeadministration ... failure to make reports asrequired by law, failure to keep accurate andcorrect records of the financial transactions’ werealtogether unacceptable. Indeed, he ordered thatall the fees were to be repaid to the plaintiff andhinted to the professional bar that the matter wasworth their attention.

FEE SCALESOR PRICE-FIXING?‘A fee schedulepromulgated by abar association isnothing more thanprice-fixing, which isillegal in inter-statecommerce and isfrowned upongenerally in thebusiness world asan attempt to stiflecompetition. It hasno higher standingin the practice oflaw’.Chicago lawyerJackson L Boughnerin ‘Let’s throw outthe reasonable feeschedules’, Journalof the American BarAssociation, March1962

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litigation or matter under taxation. The assessmentis only as good as the information that is furnishedto support the costs claimed. The party must lay aproper foundation to his case in order to succeed;costs incurred above what is considered a reasonableminimum may suggest over-caution and so the partyauthorising them will be liable to pay the solicitorfor the excess costs incurred on his behalf.

In Ryan v Dolan (IR 7 Eq 92), the court held thatif an excessive and extravagant outlay had beendirected or insisted on by the client himself, itwould not be allowed as part of the costs in the suit,that is, as party-and-party costs. In The AttorneyGeneral (McGarry) v Sligo County Council ([1991] 1IR 99), it was held by the Supreme Court that theunderlying principle of party-and-party costs wasthat:• The party chargeable was only obliged to

indemnify the party awarded costs where anorder for costs had actually been made, and

• The items claimed had been properly incurred,and

• The claiming party was under a legal liability topay them.

Moreover, the court held that the claiming partycould recover no more than what he had actuallyexpended, or remained legally liable for, if suchexpenses were properly incurred. There may becosts in an action that are not allowable as party-and-party costs: it is necessary to isolate these and,in the interest of the paying party, show which costsare not covered on a party-and-party basis and thereasons for this. The party claiming costs mustjustify why they should be allowed.

In Dyott v Reade (10 ILTR 111), the followingprinciple was laid down by Sullivan, MR:

‘In costs between party and party, one does notget full indemnity for costs incurred against theother. The principle to be considered in relation toparty-and-party costs is that you are bound in the

conduct of your case to have regard to the fact thatyour adversary may in the end have to pay yourcosts (the adversary should also have regard to thisin the conduct of his case). You cannot indulge in a“luxury of payment”; a remarkable instance of thatoccurred in this case, but it was occasioned by wayof excessive caution, and the adversary is not to payfor that. When a case is laid before counsel to adviseproofs, and he requires the due consultation, thatmust fall as solicitor-and-client costs and not as coststaxable as between party and party’.

Moreover, order 99, rule 37(18) of the Rules of thesuperior courts 1986 states: ‘On every taxation, thetaxing master shall allow all such costs, charges andexpenses as shall appear to him to have beennecessary or proper for the attainment of justice orfor enforcing or defending the rights of any party,but, save as against the party who incurred same, nocosts shall be allowed which appear to the taxingmaster to have been incurred or increased throughover-caution, negligence or mistake, or by paymentof special fees to counsel or special charges orexpenses to witnesses or other persons or by otherunusual expenses’.

Solicitor-and-client costsParty-and-party taxation does not mean that thepaying party must completely indemnify the otherfor all the expenses that have been incurred. Thecosts that fall outside party-and-party costs aretermed solicitor-and-client costs. A solicitor inworking for a client may have to pursue certain linesof enquiry or undertake certain tasks in an actionthat are not recoverable under the party-and-partyaward of costs. Such costs are properly within thesolicitor-and-client category and must be dischargedby the client. The rule is that on the taxation of abill between a solicitor and own client, chargeswhich were not expressly or impliedly approved bythe client should be allowed if they are reasonable(see Lavin v Walsh [1967] IR 129, at page 135).

The bill of costs furnished to the client shouldinclude all costs of the action, that is, party-and-party costs and the solicitor-and-client costs. Again,records are of great importance here in computingand compiling this bill.

Keeping proper attendance notes will help you togauge the amount of time spent on a case andindicate exactly what business was transacted. Thenote should include the date, the parties attending,the amount of time spent and the substance of whatwas accomplished. If counsel was present, the noteshould include what directions were given. Similarly,telephone calls received or made on the client’sbehalf should also be logged and a brief note of thenature and duration of the call.

Always remember that even the worst ink is farsuperior to the greatest memory, so write it down!

Tony Halpin BL and Taxing Master James Flynn are theauthors of Taxation of costs (Blackhall Publishing,1999).

G

SOLICITOR-AND-CLIENT COSTS: SUPERIOR COURT RULESOrder 99, rule 11 of the Rules of the superior courts 1986 says that:‘• On a taxation as between solicitor and client, all costs shall be

allowed except in so far as they are of an unreasonable amount orhave been unreasonably incurred

• Any costs which in the circumstances of the case are of an unusualnature and such that they would not be allowed on a taxation of costsas between party and party shall, unless the solicitor shall haveexpressly informed his client in writing before they were incurred thatthey might not be so allowed, be presumed, until the contrary isshown, to have been unreasonably incurred

• On a taxation as between solicitor and own client, all costs incurredwith the express or implied approval of the client evidenced by writingshall be conclusively presumed to have been reasonably incurred, andwhere the amount thereof has been so expressly or impliedlyapproved by the client, to have been reasonable in amount’.

‘Party-and-party

taxation does

not mean that

the paying party

must completely

indemnify the

other for all

expenses

incurred’

Property


28

In France, viager is an established and respectedsystem by which people (referred to in viagerjargon as ‘heads’) can transfer the eventualownership of property – whether it be a holidayhome, family home or even a portion of a

residence – to another person while remaining inpossession, occupation and enjoyment of the propertyfor the rest of their lifetime. They usually (but notalways) receive a bouquet, which is a kind of downpayment, and after that a regular monthly payment(usually index linked).

Although the viager system operates in a similarformat in other European countries, this article isconfined to the French system. It was very popular asan investment years ago, but its use has declinedconsiderably, partly because of its unpredictability asan investment and partly because of France’s capital taxlegislation. These days its use is principally in family

situations or where there is a friendship between, say,the transferors and the parents of the buyer. (In familysituations, it is most often a childless person selling tohis niece or nephew.) However, because Irish capitaltax legislation is more favourably laid out, in certaincircumstances the system could operate beneficially inthis country.

As an investment, a viager arrangement might bebeneficial to a person seeking to broaden his range ofinvestments, but it is not without its hazards. The mostdramatic example in France was a case in which thetransferor was an 80-year-old lady and the buyer was anotaire (coincidentally) of approximately 45 years ofage. The notaire died a few years ago, aged over 80,while the transferor lived until last year, when she diedat the age 121. Jeanne Calmet, who was at the time theoldest resident in France, was still being paid by theestate of the deceased notaire until the day she died.

The French

like to do

things

differently.

Their viager

system allows

you to sell your

house in return

for a one-off

lump sum and

regular

payments –

the twist is that

you can still

live there for

the rest of your

life. Brendan

Walsh explains

the system and

asks: could it

work here?

Frenchco

Property


29

In France, the system has been used deliberately andeffectively to disinherit children. Under French law,there is a réserve that depends on the number ofchildren surviving the testator. If he has only one child,then only half the estate can be left other than to thatchild. If the testator is survived by two children, thenonly one-third is free for distribution other than tothose children; and if the testator has three or morechildren, then only one quarter is free, or what theFrench call quotité disponible. But under the viagersystem, they would have disposed of their principalasset during their lifetime, thereby effectively denyingtheir offspring the benefit of that asset upon theirdeath.

A typical example of how the system operateswould be as follows: a 70-year-old widower findshimself without adequate pension or assets otherthan a house worth, say, the equivalent of £200,000.He would obviously be in an unenviable positionfinancially. As it is at the moment in Ireland, hewould probably be advised to sell his house andmove into either a smaller house, investing thedifferential, or to move into a flat. His preferredchoice – remaining in the residence and locality inwhich he has spent all his adult life – might not beopen to him without extreme hardship. Whateversocial welfare payments or other income he receiveswould be subjected to the cost of necessary repairs,insurance and so on. In such circumstances, he mightdo well to take advantage of the viager system.

Picking the bouquetThe bouquet asked is usually about 50% of the value of the property and can vary depending on

further advantage of allowing the transferor thecomfort of knowing that he will have something toleave to his children, relations or friends – he’s not‘dispossessing’ them entirely. Having decided onthe type of package best suited to the needs of thetransferor, the notaire or agency would then place asmall advertisement in a national newspaper,somewhat along the lines of the examples below.

The notaire would then sift through the repliesreceived, concentrating on two or three offers andnegotiating according to the client’s wishes untilagreement is reached. Sometimes the buyernegotiates with the transferor’s notaire directly,

usually in family or friendship situations. In anyevent, the notaire would have a fairly accurate ideaof what could be expected for the property byreference to life-expectancy tables (Baremes Rapides)freely available from the Centre d’Etudes du Viager.(In fact, the schedule to the Capital Acquisitions TaxAct, 1976 could be used for people in this country.)

The agreement could take a number of differentforms, depending on whether the client wished tohave a bouquet and a regular cash paymentthereafter or no bouquet and a larger monthlypayment. These monthly payments are usuallyindex linked.

A typical example of the system based on aff1,600,000 (approximately £200,000) property for awidower of 70 years of age would be either:• A bouquet of ff320,000 (approximately £40,000)

plus payment of ff6,945 (approximately £868) a

MAI

N PO

INTS• Viager

agreementscan be asource ofincome forthe elderly

• They canalso makebuying propertyaffordablefor first-timebuyers

• But they’renot withoutrisk

the requirements of the transferor. If it is a secondor holiday home, then the bouquet could very well be whatever would be necessary to clear thetransferor’s capital gains tax liability, so as not toleave an outstanding problem in this regard. As ageneral rule, the system is rarely used with largerproperties, though there is no reason why that has to be the case.

Referring back to the theoretical 70-year-oldwidower described above: he would go through aspecialist agency or a notaire who would conduct aprofessional valuation of the property and help himdecide whether he needed a bouquet and, if so, howmuch it should be. If there were two transferors,they would have to expect a lesser monthly paymentbecause the life expectancy of two individuals wouldobviously be longer. The greater the bouquet, thesmaller the monthly payment. A bouquet has the

onnections

THE VIAGER SYSTEM IN ACTIONThe viager system is usually effected through newspaperadvertisements. Here are translations of two typical ads for properties in towns near Paris:

Angouleme, in the Victor Hugo district. A viager occupied by two headsof 70 years of age each. A detached house of 94 square meters.Upstairs: two bedrooms, living room, kitchen, bathroom. Ground floor:garage, bedroom, veranda. Oil-fired central heating. Tank capacity of1,800 litres. 445-square-meter garden. Bouquet: 50,000 francs plus3,800 francs a month.

St Maur des Fosses. An occupied viager on one head of 69 years ofage. A stone villa, two entrances, five principal rooms, 150 squaremeters. Full basement, attic capable of conversion, garage and storehouse. 1,000 square meter walled lot. Possibility of building secondstructure in future. Close to transport, shops, schools. Bouquet:850,000 francs plus 6,500 francs per month.

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Property


31

month, index linked, or• No bouquet, but monthly payments of ff8,680

(approximately £1,085), index linked.

The life-expectancy rate and the expected interestrate given by the Centre d’Etudes du Viager for a manof 70 years are .593 and 10.98% so the formula is asfollows:• Property – ff1,600,000• Less bouquet – ff320,000• Total: ff1,280,000• @ .593 = ff759,040• @ 10.98% = ff83,342• Per month = ff6,945.

Since the bouquet is paid up front and the buyer hasto await the transferor’s death before he sees anybenefit, if you look at it from the buyer’s point ofview, the smaller the bouquet, the better. Hence theneed for the transferor to have a notaire or otheragent negotiate on his behalf.

In France, there are set procedures anddocumentation to cover the actual conveyancingaspects, but in this country, from a conveyancingpoint of view, the transferor would have to convey orassign his property to the buyer, reserving a lifeinterest in it. There would be a separate but relatedagreement to the effect that the buyer would pay thetransferor so much a month (or over some otheragreed time-frame).

This agreement would also set out the buyer’s

obligations in relation to the property by way ofmaintenance, repair, insurance and so on. In France,the buyer insures the property and pays all taxes andoutgoings as well as all repairs, so the transferor isgetting his rent net and ‘into his hand’. The buyerwould then become registered as owner, payingstamp duty based on the value of the interestpassing. Again, this could be set by reference to thetables in the Capital Acquisitions Tax Act, 1976.

In France, there is statutory provision that inviager transactions the transferor has to live for 20days after the deal is concluded. If the transferordoes not live for that amount of time, the deal isvoid and all monies are handed back. The normalcontract allows the buyer to move into the propertytwo months after the death of the transferor (or, ifthere are two of them, after the death of the second).

Because of the use of tables such as those issuedby the Centre d’Etudes du Viager or those in theschedule to the CAT Act, 1976, the transaction canbe seen to be a genuine one, but it is imperative tokeep a strict and auditable record of all paymentsmade, otherwise the buyer would be open to theaccusation of having set up a fictitious deal to evadeCAT, which can be up to 55% in France.

Brendan Walsh is managing partner of the Dublin-basedsolicitors’ firm Brendan Walsh & Partners. The authorwould like to thank Elisabeth Marie of the Paris firm ofSCP Etasse, Rivoire et Associés for her help with histechnical queries.

G

‘It is

imperative to

keep a strict

and auditable

record of all

payments

made,

otherwise the

buyer would be

open to the

accusation of

having set up a

fictitious deal

to evade CAT’

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Spanishw

Probate


32

The growing number of Irish people whoown assets in Spain could save theirheirs the trouble of wading through anadministrative backlog by drawing up aSpanish will. On the testator’s death, the

Spanish part of the estate can be wound up at thesame time as the Irish estate.

Apart from the Spanish will, only two otherdocuments are required to transfer Spanish assets tothe heirs: the testator’s death certificate, which mustbe translated into Spanish by a sworn translator andlegalised at the Spanish embassy in Dublin, and a

certificate from the Central Last Will Registry inMadrid confirming that the testator has left a willexecuted before a notary public and that therecorded will is the last one left by the testator. The Central Last Will Registry is the officialregistry where all wills executed before Spanishnotaries are recorded.

Upon the execution of a Spanish will, the attestingnotary must send a note to the registry with thename of the testator, the date of execution and theprotocol number of the will. If a testator hasexecuted a second or further will, Spanish law

Most Irish people understand the importance of leaving a will, but those

who own property in other jurisdictions must make special arrangements.

Rafael Berdaguer explains what’s involved in drawing up a Spanish will to

cover Irish assets in that country

Making a

will

Probate


33

dictates that the latter will automatically revoke anyformer will unless otherwise specifically provided forby the testator. Wills executed in Ireland before anIrish notary public can also be registered in Spain,provided the will is drawn up in Spanish or has beenduly translated into Spanish and legalised by theSpanish embassy in Dublin.

With these two documents and a notarised copyof the Spanish will, the heirs (or someone grantedpower of attorney by them, usually a lawyer) can goto a notary public and proceed with the execution ofthe deed of declaration and acceptance of inheritance(escritura de declaración manifestación de herencia),whereby the assets of the testator are transferred tothe appointed heirs. The deed has to be submittedfor payment of death duty to the Spanish RevenueCommission within six months of the testator’sdeath. Once the tax has been paid, the deed is lodgedwith the land registry for final registration of theassets in the name of the heirs.

If the deceased Irish property owner has not left aSpanish will to govern the transfer of his assets, theheirs will face a more complicated situation. If thereis an Irish will that has provisions for the Spanishassets, a grant of probate will have to be obtainedthrough the Irish courts ratifying the legal heirs tothe part of the estate in Spain. If no will was left bythe deceased, the corresponding intestacyproceedings will have to be followed through thecourts in Ireland to obtain a resolution declaring thelegal heirs to the estate. That resolution or grant ofprobate will have to be translated by a sworntranslator into Spanish and legalised by the Spanishembassy in Dublin. By the time the heirs have gonethrough this lengthy and costly process, the six-month statutory period for paying Spanish deathduty on the Spanish assets will probably have passedso surcharges and penalties will have accrued to thetax bill.

Laws governing inheritanceThe international law provisions of the Spanish civilcode stipulate that the nationality of the deceasedperson governs all inheritance matters relating tohim. In the case of an Irish citizen, this means thatIrish law will be applicable to his inheritance and, inparticular, to his Spanish estate.

The Irish Succession Act, 1965 contains limitationson the testator’s freedom to dispose of his assets andprovides that specific shares of the estate must betransferred to specific heirs. In most cases, theselimitations will not apply to Irish people who ownproperty in Spain and who have made a Spanish willsince the Spanish legacy should not affect the legalright of the heirs in Ireland. The appointed heirsunder the Spanish will are usually the spouse orchildren of the testator, who are the people entitledto the legal right of the estate anyway.

The execution of a Spanish willThe most common type of will in Spain is the openwill (testamento abierto), signed by the testator before

a notary public. An Irish person executing a willbefore a Spanish notary will have to use aninterpreter who translates the terms of the will intoEnglish and who signs it as well. The will must beprepared in bilingual form. In most cases, theinterpreter is the lawyer assisting his client in thismatter.

The will is a personal and individual act whichmeans that it has to be signed personally by thetestator, and not by someone with power ofattorney from him. It also means that two peoplecannot execute the same will, so a joint will is notvalid under Spanish law.

The notary reads the last will as given by thetestator and then the testator, notary and interpretersign it. The notary notes the exact time and date ofthe will’s execution in the document and declares inthe will that he has identified the testator by hispassport and that the testator has the legal capacityto execute the will. In certain cases, the use ofwitnesses is required. All these formalities must becompleted at the same time, otherwise the willcould be declared null and void.

In the case of a will signed before an Irish notarypublic, the formalities of the place of execution(locus regit actum) are applicable – that is, the needfor witnesses and any other formalities required byIrish law have to be complied with. The willexecuted in Ireland has to be executed in bilingualform and legalised by the Spanish embassy andregistered in the Last Will Registry in Madrid.

Proposal for a Spanish willA Spanish will must be confined to Spanish assets,which means that specific mention must be madethat any other will executed by the testator for hisremaining assets elsewhere will not be revoked bythe Spanish will.

In the most common scenario, an Irish couplewith children and Spanish property that has beenregistered in the parents’ name will usuallybequeath all their assets, interests and rights inSpain to each other (in the case of one spouse dyingbefore the other). In case of unexpected incapacityor one spouse renouncing inheritance rights, theappointed heir would be substituted by the childrenin equal shares. It is very important to include thesubstitution clause in the will to avoid thepossibility of intestacy proceedings. Any otherprovisions are also valid as long as they respect Irishlaw and the applicable regulations as required bySpanish law.

So if Irish people want to enjoy their property insunny Spain with a trouble-free mind, they wouldbe well advised to execute a Spanish will. And afterthat, they can catch a flight without worrying aboutwhat will happen to their Spanish assets if the planecrashes – although I suppose that would be the leastof their problems.

Rafael Berdaguer is a lawyer with the firm RafaelBerdaguer, Abogados, based in Marbella, Spain.

G

MAI

N PO

INTS• Only two

documentsrequired totransferSpanish assetsto heirs

• Wills executedin Ireland canbe registeredin Spain

• Irish will mustbe in bilingualform andlegalised bySpanishembassy

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]

References from Irish Law Firms: Hayes & Sons (Andrew O’Rorke),Dillon Solicitors (Brendan Dillon), Sherrys Solicitors (Brian Sherry).

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The successful candidate will have a legal background and aninterest in education.

Terms of appointment will reflect the calibre, qualificationsand experience of the successful candidate.

Letters of application with full Curriculum Vitae to be receivednot later than Friday 18 February by:

Mr TP KennedyDirector of EducationLaw SchoolLaw Society of IrelandBlackhall PlaceDublin 7

Law Society of Ireland

Curriculum development


35

For quite a number of years, the subject ofcriminal law had the status of something ofa poor relation on the Law School’sprofessional course (now known as theprofessional practice course) – despite the

dedication and enthusiasm of those members of theprofession involved in organising and deliveringlectures and tutorials, and students’ obvious interest inthe module. One explanation for this state of affairswas undoubtedly the profession’s perception of thepractice of criminal law as a specialised area, ratherthan one with which every solicitor ought to have atleast some functional familiarity in order to providehis or her clients with the best service possible.Another lay in the perennial problem of insufficientteaching time on the course in its previous

incarnation, an issue which has largely been addressedby redesigning it, allowing plenty of absorption-timefor students.

As part of the overhaul of the professional practicecourse, criminal law has been expanded to cover moreteaching hours and to include tutorials and role-play(students, for instance, might be asked to present amodel plea in mitigation during a tutorial). As usual,those members of the practising profession who havecontributed all along, together with newercontributors, have rowed in with their customary andinvaluable expertise and enthusiasm.

In summary, the curriculum currently covers thefollowing topics and they are dealt withcomprehensively in both the teaching texts and inlectures and tutorials.

District Court procedure Short historicalbackground, importance ofDistrict Court asoriginating court in allcriminal matters, initiationof proceedings, mattersdealt with summarily/onindictment, venue onindictable charges,disclosure of pre-trialinformation (DPP v GaryDoyle).

Duties of a defencesolicitorPreliminary considerations(including possibleapproach to prosecutionto ascertain whether they do in fact intend to proceed – taking inmatters such asstaleness, triviality of theoffence, youth or old ageof offender, mental health of offender and so on),taking client’s

instructions, advisingclient, preparing the caseitself, legal aid.

BailDPP v O’ Callaghan,procedure on a bailapplication, includingsituations where client isin custody, refusal of bail,sick warrants, summary ofprovisions of Bail Act,1997.

Conducting a caseCharging procedure,admissibility of evidence,refreshing the memory,cross-examination, right ofelection, factors in favourof/against both venues,preparation of a CircuitCourt case, trial thereof,arraignment, searchwarrants, sentencing,scope of orders madeafter conviction, children’scourt.

AppealsGeneral summary ofappeals procedure.

Powers of detentionDetentions under sections30, 4 or 2 of therespective statutes,regulations while incustody, advising clients incustody (this constitutes avery detailed andcomprehensive section ofthe teaching notes), rightto silence, advisability orotherwise of making astatement (Heaney vMcGuinness), tacticalconsiderations at thegarda station, clientdecides to make astatement, considerationof article 6 of theEuropean convention onhuman rights, taking offorensic samples from aclient in custody (issues ofconsent and so on), Garda

Complaints Board, identityparades and theadvisability or otherwise ofparticipating in them.

Driving offencesImportance of checkingsummons or charge sheetvery carefully, conflict ofinterest where civil casepending and insurancecompany instructs, detail-ed notes on the mostcommon driving offences(statutory sources ofoffence, ingredients ofeach offence, proofsrequired and so on),detailed consideration offactors to be taken intoaccount when advising,including checklist of mostimportant points, taking ofspecimens, procedure atbureau regardingspecimens, summary ofcourt procedure, appeals,cases stated, inquests.

CDU: criminal law

Please send anycomments orsuggestions on thecurriculum andapplications to tutor toKatherine Finn, Co-ordinating Solicitor(Criminal Law), LawSociety of Ireland,Blackhall Place, Dublin7, DX: 79 Dublin, tel:01 672 4800, fax: 016724803, e-mail:[email protected].

Continuing

its series of

articles on the

professional

practice course

syllabus for

apprentices, the

Law Society’s

Curriculum

Development

Unit explains

what’s involved

in its criminal

law module and

invites members

to air their views

on how it could

be improved

In addition to all this, there are sections in theteaching texts covering recent changes in the law,which is kept up-to-date, an interpretation of theprovisions of the Criminal Justice (Drug Trafficking)Act, 1996, compensation and other considerations forcrime victims, money-laundering controls in the Irishcriminal law system, including the functions of theCriminal Assets Bureau, and criminal law in aEuropean context. Although these items are not,strictly speaking, part of the core curriculum, theymake absorbing and informative background readingfor students. Specimen files and summonses fortutorial work, all relevant legislation and case law, andfurther reading lists are also provided. Areas such asprison visits, children’s court, appeals procedures,advocacy skills pertaining to the practice of criminal

law in particular, and a more detailed overview of theworkings of the legal aid system (including its impacton cashflow within a practice with an eye to the now-considerable percentage of solicitors in practice forthemselves) will benefit from more comprehensivetreatment in the future.

The views of the profession on the content andscope of the curriculum are invited. Members with aninterest in becoming involved as tutors or lecturersshould forward details of their experience in the area,together with those of any prior teaching experiencethey may have had.

This opportunity is taken to extend sincere thanksto all members who have contributed to the teachingof the subject in the past and who continue to do so.It couldn’t be done without you! G

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The recent publication of theAnnotated Family Law

(Divorce Act), 1996 by StephanieCoggans and Nuala Jackson –the third in a series of RoundHall annotated legislation – is a welcome addition to thelibraries of all family lawyers.The general notes will be ofinterest not just to familylawyers but to psychologists andsociologists alike, setting thedivorce legislation in the socialas well as legal context. Thereferences to the Dáil debatesand the rationale behind theinclusion of certain terminologyand conditions in the legislationwill be of great interest to thoseof us who struggle with theconsequences arising from the(at times) somewhat illogicaland impractical conclusionsarrived at by our legislature.

The whole issue of the ‘livingapart’ principle is tested outextensively at pages 14-16 and,in the view of the authors, is anissue which ultimately willrequire Supreme Courtinterpretation. Similarly, therationale behind the four-yearperiod, while laudable in itsintention, is ‘entirely removedfrom the reality of marriagebreakdown’.

Of particular interest – and,indeed, compulsory reading forall practitioners – will be thenotes dealing with sections 5,13-15 and 20 of the Act. This isnot to say that the general notesrelating to the other sections arenot of equal importance, butthese particular sections dealwith the constitutionalimperatives, together with theinevitable financialconsequences of divorce.Section 20, in particular,discusses the criteria taken intoconsideration by the court in

determining ancillary ordersrelating to financial matters andwill greatly assist practitionerswho have difficulty in explainingto litigants the impossibility ofpredicting the outcome of anycourt proceedings and the lackof certainty with regard tofinancial consequences. Thereare interesting references to thewhole issue of a clean breaksituation, particularly the judicialpronouncements in F v F andthe assertion by McGuinness Jin JD v DD that the statutorypolicy is totally opposed to theconcept of a clean break. Theobligations of practitioners toadvise clients on this whole issueis well highlighted.

This is a book not just forfamily lawyers, but indeed for allconveyancers and companylawyers, who ignore theconsequences of the recentfamily law legislation at theirperil. Property adjustmentorders have brought family lawinto the public and general arenaas no other provisions of familylaw have done. The cross-references both to earlier familylaw legislation, the variousFinance Acts and other relatedlegislation is particularly helpful.

Coggans and Jackson are tobe commended on the extentand breadth of the informationsupplied, reflecting as it does thesocial and economic factorswhich plagued the legislatorsduring the passage of the Act. Inaddition, their explanations ofthe various definitions whichunderpin the legislation areuseful and informative, and thesubsequent interpretationsplaced by the courts on thesevarious definitions willeventually develop ajurisprudence which will be ofinvaluable assistance to all

practitioners. Our judiciary is tobe commended on the growingfrequency with which consid-ered judgments are beinghanded down in divorce andjudicial separation cases. It is tobe hoped that such judgmentswill grow into a body of lawwhich will develop a consistencyin the application of the variousprinciples contained in this and

the earlier Family Law Acts.My only complaint – strictly

of a personal nature – is the sizeof the print in the general notes.No account is taken by thepublishers of the effects of manyyears of practice on the eyes!

Joan O’Mahony is the Principal ofthe Dublin firm O’MahonysSolicitors.

G

The Family Law (Divorce) Act, 1996Nuala Jackson and Stephanie Coggans. Round Hall Sweet & Maxwell (1998), 43 Fitzwilliam Place, Dublin 2. ISBN: 1-85800-125-0. Price: £25.

Harlan F Stone, the onlyuniversity professor ever to

serve as Chief Justice of the USSupreme Court (AssociateJustice, 1925-1941, Chief Justice1941-1946), noted extra-judicially in 1921 that the UnitedStates had been trying somedangerous experiments inautocracy in passing numerouslaws under which administrativeofficers were given extraordinarypowers over the liberty andproperty of individuals withoutappropriate safeguards affordedby judicial review and bytraditional legal procedure. Theauthors, in their preface, remarkon the renaissance ofadministrative law in Ireland,refer to the re-kindling of thatrenaissance with the ‘seminaltrilogy’ of cases, East Donegal Co-operative Livestock Marts Ltd vAttorney General ([1970] IR 317),Re: Haughey ([1971] IR 217) andByrne v Ireland ([1972] IR 241),and conclude that the renaissancehas now ‘flowered almost to fullbloom’. So any move toautocracy with administrativeofficers exercising extraordinarypowers over the liberty andproperty of individuals has the

Administrative law in IrelaGerard Hogan and David Gwynn Morgan. Round Hall Sweet & Maxwell (1

potential of being firmly checkedby the judicial arm of governmentin this country.

The authors note that lawyershave hitherto been slow to admitadministrative law ‘to thecharmed circle of blocs of lawwhich are officially regarded asdiscrete legal subjects’. Let it besaid: any self-respecting lawyerignores administrative law at hisor her peril. Administrative lawhas come of age.

Here, I can only signal to thereader some of the contents ofthis monumental work. The earlychapters cover sources ofadministrative law, the Dáil,Ministers, departments and civilservants, State-sponsored bodiesand aspects of local governmentlaw. Tribunal and inquiries is theheading of a single chapter, whichis followed by an investigation ofthree causes célèbres: the non-statutory Hepatitis C Tribunal,the Dáil inquiry into the fall ofthe Fianna Fáil/Labourgovernment, and the DunnesStores Tribunal. The generalprinciples of licensing and theombudsman are also examined.

The authors then examine insome detail the fundamental

Book reviews

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37

The idea behind freedom ofinformation (FOI) is fairly

simple. There is a presumptionof a right of access toinformation from public bodiescovered by FOI law. Thisaccess can be limited ordefeated only by explicitrestrictions laid out in the Act.

The practice can besomewhat more problematic.

Freedom of information law in IrelandMaeve McDonagh. Round Hall Sweet & Maxwell (1998), 43 Fitzwilliam Place, Dublin 2. ISBN: 1-899738-79-7. Price: £89.

The Freedom of Information Act,1997 is a complex statute withmany provisions that aredifficult to interpret. Its lengthand detail result in difficultiesin navigating text. Forinstance, try to identifyprecisely which public bodiesare governed, what exactprocedures apply, and howexemptions might apply to a

given case. All this leaves open a great demand for areliable guide with which tobreak into this fascinatingsubject matter, a service whichis comprehensively rendered byMaeve McDonagh in herimpressive textbook.

Most users will be coming tothe book for quick and reliablereference to the provisions ofthe FOI Act. Accordingly, thebulk of the text is devoted tothe Act itself. Chapter 3 isdedicated to matters of internalorganisation in public bodies.The scope of access, themanner of applying fordisclosure and options forredress are dealt with in laterchapters.

The thorny question ofexemptions takes up well overhalf the book, and this shouldbe no cause for surprise. TheAct attempted to codify muchof the common law case law onFOI exemptions in its legalprovisions in order to avoidexcessive litigation consequent

on the ambiguity (or, somemight say, the clarity) in theshort and simple type ofexemption characterised by the equivalent legislation in the United States. Chapter 5provides a useful and logically-presented overview of somegeneral issues concerningexemptions and is recommendedbackground reading beforetaking on the detail of individualexemptions. For instance, do notpresume to know what is meantby the schizophrenic term‘public interest’ until you haveread the relevant passages here.

The author devotes a fullchapter to each exemption. The provisions themselves are analysed in some detail.However, much of the contextcomes from comparisons withexperience in other FOIregimes. In the absence of IrishFOI case law, there is liberalreference throughout to relevant internationalprecedents, especially fromAustralia, Canada and the

nd (third edition)1998), 43 Fitzwilliam Place, Dublin 2. ISBN: 1-899738-76-2. Price: £62.

principles of judicial review,constitutional justice, controlover discretionary powers, theapplication for judicial review,the scope of public law,damages, legitimate expectationsand estoppel and, finally, theState and litigation.

As administrative law issuesgrow more pronounced andcomplicated in Ireland, Hoganand Gwynn Morgan have

Irish family legislation handbookMuriel Walls and David BerginJordan Publishing, 21 St Thomas Street, Bristol BS1 6JS, England.ISBN: 0 85308 500 5. Price: £45.

Report on gazumpingLaw Reform Commission, IPCHouse, 35-39 Shelbourne Road,Ballsbridge, Dublin 4.ISSN: 1393-3132. Price: £5.

Insurance law in IrelandAttracta O’Regan CazabonRound Hall (1998), 43 Fitzwilliam Place, Dublin 2. ISBN: 1-899738-68-1. Price: £85.

The law of road transport and haulageJames K CannyRound Hall (1998), 43 Fitzwilliam Place, Dublin 2. ISBN: 1-899738-87-8. Price: £45.

The law of meetingsMichael Maloney and Jarlath SpellmanRound Hall (1998), 43 Fitzwilliam Place, Dublin 2. ISBN: 1-899738-62-2. Price: £39.

The Civil Liability ActsAnthony KerrRound Hall (1998), 43 Fitzwilliam Place, Dublin 2. ISBN: 1-899738-92-4. Price: £19.95.

Trade union membership and the lawCathy MaguireRound Hall (1998), 43 Fitzwilliam Place, Dublin 2. ISBN: 1-899738-74-X. Price: £35.

Dangerous driving casesGerard O’Keeffe and Niall HillRound Hall (1998), 43 Fitzwilliam Place, Dublin 2. ISBN: 1-899738-44-4. Price: £69.

Working within the law (second edition)Frances MeenanOak Tree Press, Merrion Building,Lower Merrion Street, Dublin 2.ISBN: 1 86076 073 2. Price: £26.95.

Probate law and practiceAlbert KeatingRound Hall (1998), 43 Fitzwilliam Place, Dublin 2. ISBN: 1-899738-90-8. Price: £89.

Contract law in Ireland (fourth edition)Robert ClarkRound Hall (1998), 43 Fitzwilliam Place, Dublin 2. ISBN: 1-899738-83-5. Price: £89.

The capital markets: Irish andinternational law and regulationsAgnes FoyRound Hall (1998), 43 Fitzwilliam Place, Dublin 2.ISBN: 1-899738-54-1. Price: £98.

become even moreindispensable. Based onmeticulous research, with graceand verve, Ireland’s foremostscholars in administrative lawhave produced an authoritative,brilliant and enlighteningmasterpiece, a majorcontribution to Irish law.

Dr Eamonn Hall is CompanySolicitor of Eircom plc.

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BOOK

S PU

BLIS

HED

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This annotation of therelevant legislation

concerning powers of attorneyreproduces in full the Powers ofAttorney Act, 1996, withexcellent commentaries on eachsection by Brian Gallagher,who also refers to relevant caselaw. The book includes thestatutory instruments madeunder the Act, which amongother things prescribe the formof an enduring power ofattorney, and reproduce thepractice direction relating tothe registration thereof.

The Act, while providing foran enduring power of attorney,also makes certain amendmentsand improvements to the lawrelating to powers of attorneygenerally and amends theConveyancing Act 1881. Gallag-her sets out how the law, ascontained in the ConveyancingActs 1881 and 1882, has beenamended by the Powers ofAttorney Act, 1996. He alsosuggests the best practice inrelation to the execution ofdeeds by the donee of a powerof attorney, which is as follows:• The deed is prepared in the

name of the donor• The attestation clause states

that the deed is executed onbehalf of the donor by theattorney

• The donee executes bywriting in his or her own

hand: ‘AB (the donor) by his orher attorney CD (the donee)’who then signs his or herown name.

In relation to the revocation ofpowers of attorney, he states:‘The donor can revoke it at anytime unless it is an irrevocablepower. It appears that the revo-cation can be oral, in writing orby deed, but it is ineffective untilit is received by the donee’.

He also warns practitionersthat anyone relying on anenduring power should checkthe register of RegisteredEnduring Powers of Attorney inthe Wards of Court Office toensure that the registration ofthe enduring power has notbeen revoked. And he remindsus that section 5 of the FamilyLaw Miscellaneous Provisions Act,1997 makes a couple ofamendments to the legislationregarding ordinary powers ofattorney.

In relation to enduringpowers of attorney, Gallagherconfirms that while the Actpermits the attorney to makepersonal care decisions, thesedecisions do not empower thedonee to make decisionsregarding the donor’s medicaltreatment. In relation to theregulations on the format ofenduring powers of attorney, hewarns practitioners that the

regulations are quite technicaland ought to be followedslavishly.

If the form of the power ofattorney does not follow thedirections set out in theregulations, then a courtapplication may be required toconfirm its validity. As he pointsout: ‘No practitioner will wantto run the risk of having tomake an application to the court(and presumably pay the coststhereof) because he or she wasnot careful enough in preparingthe enduring power’.

On the subject of gifts, heconfirms that in common law anattorney has no power to makegifts or to make a will for thedonor. However, section 6(5) ofthe Powers of Attorney Act, 1996gives the donee the power tomake certain gifts in certaincircumstances. If an attorney isto be given a power to makegifts as authorised by the Act,then this power should bespecifically inserted in theenduring power of attorneydocument as drafted.

Gallagher also clarifies that itis possible to make oneenduring power of attorneyconferring on a certain attorneythe power to make personal caredecisions, and a secondenduring power conferring on adifferent attorney the power tomake decisions relating to the

‘affairs’ of the donor.The book contains the

practice direction for theregistration of an enduringpower of attorney. However, indue course rules of court willprovide for a simpler appli-cation for registration to bemade to the Registrar of Wards of Court.

In the first schedule, part A, of the explanatorymemorandum to the EnduringPowers of Attorney Regulations1996 (SI No 196/1996), it isstated that where the attorneysare appointed jointly they mustall act together and cannot actseparately; but when they areappointed jointly and severally,they can all act together, butthey can also act separately ifthey wish. If the enduringpower does not specify how theattorneys are to act, they shallbe deemed to have beenappointed to act jointly.

There are many more veryhelpful comments and pointswhich clarify the legislation inthis extremely useful andpractical book. It is essentialreading for anyone withqueries relating to the Powers of Attorney Act, 1996 and theregulations made under it.

John Costello is an associatesolicitor with the Dublin solicitors’firm Eugene F Collins.

G

United States. It is likely that,for the foreseeable future,much reliance will be placed onsuch case law, particularly fromthe Australian and Canadiansystems, both of whichinfluenced the Irish Act.

As FOI directly challengesadministrative secrecy, the Acthas come into close contactwith an array of statutes whichfor various reasons imposeprohibitions on disclosure.These are grounded onconcerns of confidentiality and

privilege, and typically occurwhere State bodies are beingestablished. The author veryhelpfully devotes a chapter tothis problematic interface,which in no small mannerconstrains disclosure of officialinformation. The author alsodedicates substantial attentionto three specific instrumentsmore closely related to the FOIAct: the Data Protection Act, theNational Archives Act and theAccess to Information on theEnvironment Regulations.

For those with an academicinterest, the author outlines thebackground to the FOI Act andthe development of FOI inother common-law jurisdic-tions. The comparativecredentials of the book areevidenced by the detail in thetables on international casesand legislation. As concernsIreland, while there is verylittle case law in the pipeline, alarge volume of FOI disputeresolution is being conductedby the Information Commis-

sioner, all of whose decisionsare quickly published –although somewhat after thepublication of this work. It isprobably through the commis-sioner’s office that most FOIdevelopments will take place inthe coming years, and readersof this book will gladlywelcome their incorporationinto a future edition.

David Meehan is a Dublinsolicitor and environmentalconsultant.

G

Powers of Attorney Act, 1996Brian Gallagher. Round Hall Sweet & Maxwell (1998), 43 Fitzwilliam Place, Dublin 2. ISBN: 1-85800-112-9. Price: £19.95.

Briefing


40

Patrick A GlynnThe Council made a presenta-tion to Patrick A Glynn to markhis retirement from the Councilafter 21 years of distinguishedservice.

New Council membersThe Council welcomed itsnewly-elected members, StuartGilhooly and Thomas Murran,together with the new nomineesfrom the SLA, Patrick Caseyand Patricia Harney, and fromthe DSBA John O’Connor, andwished them well for their termof office.

Taking of office by Presidentand Vice-PresidentsThe outgoing President, PatrickO’Connor, thanked theCouncil, the Director Generaland staff of the Society, his wifeGillian and their four childrenfor their tremendous supportduring the past year. Heexpressed his best wishes to theincoming President, AnthonyEnsor, who was then formallyappointed to office by theCouncil. Mr Ensor said that he

was deeply honoured to havebeen appointed President. Onbehalf of the Council and theprofession, he paid tribute toPatrick O’Connor who had rep-resented the profession withenergy and enthusiasm duringhis year of office and who hadprojected a very high profile forthe profession during the previ-ous 12 months.

The Senior Vice-President,Ward McEllin, and the JuniorVice-President, Owen Binchy,both then took office andpledged their support to thePresident and the Council forthe coming year.

Motion: stage payments‘That this Council is opposed to thepractice by some builders/ develop-ers of including in building con-tracts for new houses that the pur-chase price be paid by way of stagepayments and requests theMinister for the Environment andLocal Government to make thenecessary regulations to prohibitthis.’Proposed: John B HarteSeconded: Sean Durcan

The Council considered exam-ples of circumstances in whichstage payments were used,together with a summary of thecontents of letters received frommembers of the profession inrelation to the motion. JohnHarte said that the principalreasons given by those in favourof stage payments focused onthe benefits to builder clients.Stage payments operated to thebenefit of builders, whoobtained full payment withoutany risk, and it was the strongly-held view of the ConveyancingCommittee that they wereunfair and biased in favour ofbuilders. Sean Durcan said thatstage payments increased workfor solicitors and profit forbuilders. While there mighthave been some justification forthe system when interest rateswere high, this justification nolonger pertained.

Simon Murphy said that,under the stage-payments sys-tem, builders received 90% ofthe cost of the house prior tocompletion, with the pur-chasers often having to wait 18-

24 months for full completion.The system operated to thedetriment of purchasers andhe fully supported the motion.The Council unanimouslyapproved the motion and itwas agreed that the DirectorGeneral would write both tothe Minister for the Environ-ment and Local Governmentand the Director of ConsumerAffairs.

Motion: apprentices’ salaries‘That this Council recommendsthat, with effect from 1 January2000, apprentices should be paidthe following salary:• £155 per week for the first six

months following completionof the professional practicecourse

• £235 for the remaining periodspent in the office of the mas-ter;

and that the recommended salaryfor apprentices’ pre-professionalpractice course should be raised to£135 per week.’Proposed: Owen BinchySeconded: Michael Peart

Report on Council meeting held on 1

Report on Council meeting held on 1Law Society of NorthernIrelandThe Council approved theappointment of CatherineDixon, Colin Haddick, JohnMeehan, Alistair Rankin andJohn Neill as nominees of theLaw Society of Northern Irelandto the Council for 1999/2000.

Proposed designation of solici-tors pursuant to section 32 ofthe Criminal Justice Act,1994John Fish reported on the meet-ing with the Minister for Justice,Equality and Law Reform to dis-cuss the proposed designation ofsolicitors. At the outset, thePresident had outlined thestrongly-held views of the

Council and the profession inopposition to any erosion of theprinciple of solicitor/client con-fidentiality. The DirectorGeneral had given a comprehen-sive account of the basis uponwhich the Council objected tothe proposal and had emphasisedthat, if solicitors were obliged toreport suspicions in relation totheir clients, this would repre-sent a fundamental breach of thesolicitor/client relationship. MrFish had outlined developmentsat a European level and hadqueried the wisdom of designa-tion at a time when a new EUdirective was being considered.

Deputy Director GeneralMary Keane had concentratedon the fact that section 31

already made it an offence foranyone, including a solicitor, toengage in or facilitate money-laundering and that the Ministerhad the power, under section32(10A), to exempt solicitorsfrom any of the obligationsimposed by the Act, particularlythe reporting obligation undersection 57. The meeting hadconcluded with an assurancefrom the Minister that he wouldbe in contact in due course.

Practising certificate fee for 2000The Council discussed the vari-ous elements of the practisingcertificate fee for 2000 andapproved a full-rate fee, inclusiveof membership, of £1,300, with

an equivalent fee of £1,082 forthose less than three years’ qual-ified.

Library and restaurant facilitiesThe Director General reportedthat, because of the develop-ments in education and theincreased numbers of studentson site after October 2000, therewas a requirement for increasedrestaurant facilities, study areasand computer terminals in thesouth wing of the Blackhall Placepremises. As a result, it had beenagreed by the Finance Commit-tee to relocate the library to theexisting lecture hall, with a mez-zanine floor, thereby doublingthe available space for both

Briefing


41

The Council unanimouslyapproved the motion.

Motion: Establishment directive‘That this Council agrees (a) toplace before the Minister forJustice, Equality and Law Reformthe papers marked ‘A’ and ‘B’ inthe documentation on Directive98/5/EC (the Establishmentdirective) enclosed herein and fora working committee of theSociety, in conjunction with theKing’s Inns, to commence discus-sions with officials of the saidMinistry with a view to bringingforward a statutory instrument onthis matter, and (b) in particular,to accept the principal recommen-dations of the EU andInternational Law Committee setout on the paper marked ‘C’attached herein.’Proposed: Michael IrvineSeconded: Michael Carroll

Michael Irvine outlined thebasis for each of the recommen-dations of the EU andInternational Law Committeeand each was approved, in turn,

by the Council. It was agreed thatMr Irvine should make contactwith the Bar Council and that theworking group should com-mence discussions with thedepartment.

Revenue audits of solicitors:access to client account infor-mationThe Council discussed the out-come of representations made bythe Taxation Committee to theRevenue Commissioners in rela-tion to information sought in thecourse of audits of solicitors’practices. A number of recom-mendations from the committee,which would provide the neces-sary verification of transactionswhile preserving the confiden-tiality of client information, wereapproved.

Proposed designation of solici-tors pursuant to section 32 ofthe Criminal Justice Act, 1994The Council noted that a meet-ing had been scheduled with theMinister for Justice, Equality andLaw Reform to discuss theSociety’s concerns regarding the

proposed designation of solici-tors under section 32 of theCriminal Justice Act, 1994. It wasagreed that the Society should berepresented at the meeting bythe President, the DirectorGeneral, John Fish and DeputyDirector General Mary Keane.

Professional indemnity insuranceWard McEllin sought, andobtained, the Council’s approvalfor amending Professional indem-nity insurance regulations (a)updating the definition of ‘legalservices’ to reflect the amend-ment made by the InvestorCompensation Act, 1998, and (b)reducing the mandatory periodof run-off cover where a solicitorwas ceasing practice from sixyears to two years. He explainedthat the purpose of the latteramendment was to equalise therequirements for solicitors withinand outside the assigned riskspool. However, the Societywould emphasise the prudence ofany solicitor retiring and discon-tinuing his practice to continuerun-off cover for at least six years.

Land RegistryJohn Harte reported that a newLand Registry fees order wasdue to come into effect inFebruary. One of the provisionsof concern to the ConveyancingCommittee was the introduc-tion of penalties where dealingswere withdrawn and re-submit-ted. He also reported that theLand Registry had established auser group to discuss variousissues, including difficultiesarising from the 75,000 dealingsin arrears. The Registrar ofTitles had indicated that, fromJanuary to April 2000, the reg-istry would not respond to let-ters from solicitors enquiring asto the state of their dealings andpriority would be given to theissuing of copy folios.

Approval of motions passed at the annual general meetingAs required under bye-law4(10)(a), the Council approvedthe motions which had beenpassed at the annual generalmeeting held on the previousevening. G

12 November 1999

10 December 1999members and students. Studyareas and computer terminalswould also be provided, and therestaurant facilities were to beexpanded into the existinglibrary area. As the EducationCentre was opening in October2000, the work on the southwing was likely to commence inFebruary 2000.

The Director General con-firmed that the majority of therequired expenditure was alreadyprovided for in the educationbudget. It was consequential onthe decision to construct the newEducation Centre envisaged inthe decision which was made bythe profession to accept theReport of the Education PolicyReview Group.

Company Law Reform GroupOn behalf of the Council, thePresident extended congratula-tions to Tom Courtney, solici-tor, on his appointment aschairman of the Company LawReform Group, which repre-sented a significant honour forthe profession.

ConveyancingThe Vice-Chairman of theConveyancing Committee,Philip Joyce, reported that anew fees order for the Registryof Deeds would come intoforce on 1 February 2000. Feesfor registrations were beingincreased to £35, with a £10 feefor re-submission of a deed. G

The Solicitors’ Helpline is available to assist everymember of the professionwith any problem, whetherpersonal or professional.

The service is completelyconfidential and totally independent of the LawSociety.

If you require advice for any reason, phone:01 284 8484

SOLICITORS’ HELPLINE

01 28

4 848

4

Briefing


42

PRACTICE MANAGEMENT

Turnover of support staffThe Practice ManagementCommittee is concerned at thehigh turnover of support staff insolicitors’ offices, particularly inthe Dublin area, and is interestedin hearing from members of theprofession with regard to theprovision of training for supportstaff in solicitors’ offices. If prac-titioners have engaged the serv-ices of training providers in thepast, the committee is keen tohear of their experiences, partic-ularly with regard to the qualityof training provided and mayalso be interested in the possibil-ity of compiling a database oftraining providers at a futuredate. If you would like to shareyour views on this subject, pleasecontact the secretary of thePractice Management Commit-tee at the Law Society.

Practice Management Committee

Safety statementsThe Practice ManagementCommittee has produced a draftsafety statement for solicitors’offices. As you are aware, thisdocument is a requirementunder the health and safety legis-lation. It sets out the health andsafety procedures that a solici-tor’s office might adopt andrecords who is responsible fortheir implementation.

The safety statement is a draftonly and should be adapted foruse by each office in accordancewith the legislation and theirown circumstances. The purposeof producing the draft is toremind practitioners of thenecessity and good sense of hav-ing one and to give them a start-ing point in the drafting of theirown safety statement.

The draft is available on the

Law Society website in the mem-bers’ area under What’s new.Claire O’Sullivan ([email protected]) can provide printedcopies and assist with queries.

Anthony Brady, PracticeManagement Committee

REGISTRAR’S

Section 68 lettersThe Registrar’s Committeewould like to remind solicitors oftheir obligations under section68(1) of the Solicitors(Amendment) Act, 1994. Failure tocomply with the statutory obliga-tion to confirm details of costs inwriting will be taken into accountby the committee if a complaint ismade by the client about fees.

Solicitors are also reminded ofthe recommendation made by theIndependent Adjudicator of theLaw Society that as a matter ofgood practice solicitors shouldconfirm their clients’ instructionsin writing as soon as is practical.This communication could becombined with the section 68 let-ter.

BUSINESS LAW

Guide to the Consumer Credit Act, 1995Practitioners should note that theBusiness Law Committee hasprepared a guide to the ConsumerCredit Act, 1995. The guide isavailable for consultation on themembers’ area of the Law Societywebsite under Professional infor-mation. To access the guide, sim-ply click on the members’ areaicon on the Law Society home-page. Enter your solicitor num-ber preceded by an ‘s’, togetherwith your surname on the log-inpage. The members’ area iconcan be found on the left naviga-tion bar. If you have any difficul-

ty, contact Claire O’Sullivan [email protected] or tel:01 672 4800.

Companies (Amendment) Bills,1999: update Nos 1, 2 and 3 are enacted: No 3as the Companies (Amendment)Act, 1999 and Nos 1 and 2 as theCompanies (Amendment) (No 2)Act, 1999. No 4 is not enactedyet.

Companies (Amendment) Act,1999. This deals with stabilisa-tion rules on public offerings ofshares and was brought in withthe Bord Telecom Éireann plcflotation in mind.

Companies (Amendment) (No2) Act, 1999. This Act waspassed in December 1999 and isin the process of being imple-mented on a gradual basis. PartsI, II and III will be in force by 21February. Part I is the introduc-tory part, part II is concernedwith examinerships, and part IIIremoves the requirement for theaudit – but not accounts – of verysmall companies. Part IV wasnot, as at 21 January, the subjectof any commencement order.

Part IV of the No 2 Act. Whenenacted, this will have the follow-ing consequences:• A requirement to specify

exactly what a new companywill do (thereby rendering itdifficult, if not impossible, toform shelf companies)

• A requirement for new com-panies to have an Irish directoror an Irish activity or a bondfor £20,000

• An ability, at last, for resigningdirectors to notify the fact oftheir resignations to theCompanies RegistrationOffice where the companydoes not

• The CRO being able to strike

companies off the registermore easily.

Irish Listing rulesThe Green pages, officially theNotes on the listing rules have beenupdated as of 3 December 1999.They are available in hard copyfrom the Irish Stock Exchange,28 Anglesea Street, Dublin 2 andat http://www.ise.ie/search/frgener-al.htm.

Stamp Duty Consolidation Act,1999This is now enacted. The law hasnot changed but is restated.

Business Law Committee

CONVEYANCING

Registry of Deeds (Fees) Order1999 (SI 346/1999) and LandRegistration (Fees) Order1999 (SI 343/1999)The Conveyancing Committeeregrets that the Minister forJustice did not consult the LawSociety prior to signing thesestatutory instruments whichcontain provisions that, webelieve, will cause hardship tohouse purchasers and difficultiesto solicitors. The statutoryinstruments provide for a sub-stantial increase in Registry ofDeeds fees (which came intoeffect on 1 February) and LandRegistry fees (coming into effecton 1 May) which will not be wel-comed by house purchasers atthis time of grossly inflatedhouse prices.

Land Registration (Fees) OrderThere is no longer a maximumfee per transaction (previously£250). In some cases, the feeshave more than doubled. Thisincrease in fees can only be a fur-ther inflationary factor in houseprices which will be a further

Committee reports

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burden on house purchasers. Forexample, a property costing£40,001 will attract a fee of £300,together with a further fee of £50if a new folio is to be opened, anda fee of £100 if there is a mort-gage – total: £450. Most peoplewould not even be able toacquire a site for a house for£40,000 or less, with the resultthat nearly all purchasers comingin even at the lower end of thefees scale will pay a minimum of£450 for a transaction currentlycosting £250. The fee for regis-tering a house costing over£200,000 with a mortgage hasgone from £250 to £550.

In relation to a voluntarytransfer, the present fee is £30and this has been more thandoubled to £70. If the voluntarytransfer concerns part of a folio(as would be quite common withthe transfer of sites in rural areasfrom parent to child), a furtherfee of £50 for opening the newfolio will be chargeable, bringingthe total sum to £120 – that is,four times the previous fee. If thetransferee then takes a loan tobuild a house, there will be anadditional fee of £100 – a total of£220.

The fee for registration of atransfer order under section 90of the Housing Act, 1966 has beenincreased by a multiple of 14from £5 to £70 – again, this is ameasure which the committeewould be concerned would causedifficulty to people on lowincomes who are likely to avail ofsuch transfers. The new folio feeof £50 and a mortgage fee of£100 would also be chargeablewhere a purchaser is getting aloan.

The fee for a certified copy ofa map showing rights of way hasbeen increased from £20 to £50.This is a significant fee when onethinks of how frequently clientsin rural areas require maps oftheir rights of way, and again thisis something the committee ismost concerned about.

Item 22 of the LandRegistration (Fees) Order is a newcharge of £250 for approving ascheme map for new buildingestates, which will be yet another

cost which builders will presum-ably pass on to purchasers of newhouses, together with the furtheradditional fee of either £500 or£1,000 should the scheme maphave to be revised at a later date.

The committee also takesexception to items 24 and 25.Item 24 imposes a penalty on theapplicant of either £50, or the feealready paid, whichever is thelesser, where an application forregistration is refused, aban-doned or withdrawn. Item 25imposes an extraordinary penaltywhen the only mistake made bythe applicant is to pay a fee whichexceeds the correct fee. It mustbe unprecedented for a statutoryservice provider to impose suchpenalties on its consumers. Thecommittee strenuously opposespenalties levied for administra-tive inconvenience.

Registry of Deeds (Fees) OrderThe provision in this fees orderto which the committee takesparticular exception is the newhead of charge relating to therecomparison of deeds. Thishead of charge never previouslyexisted, going right back to 1707.There was always one charge toregister a deed, being stamp dutyon the memorial. We can onlyassume that the reason for thisnew head of charge is to imposea penalty when the Registry ofDeeds raises a query on thememorial. While the committeeunderstands that some memori-als are queried for a valid reason,it is the experience of practition-ers that memorials are also some-times queried for reasons whichare not valid. While there may,perhaps, be some justification for

imposing a charge where a fullrecomparison is necessary, in theview of the committee there is nojustification for making an extracharge where there are minorqueries, and certainly no justifi-cation where the queries arethemselves incorrect. We haveno doubt but that this charge willcause a degree of friction.

In our view, the imposition ofthis penal charge, which is inci-dentally quite anti-consumer, isentirely unjustified and is thewrong way to go about improv-ing the efficiency of the Registryof Deeds. The big problem in theregistry, as all solicitors will nodoubt be aware, is the cumber-some format of the memorialprescribed by the 1707 and 1832Acts. The solution is to simplifythe form of memorial. The LawSociety has sought amending leg-islation frequently in its discus-sions with the Registrar of Titles.Legislation empowering theMinister for Justice to prescribe asimpler form of memorial wouldbe very straightforward, and islong overdue.

Co-operationThe committee is very anxiousthat conveyancing should be sim-plified rather than being mademore complicated and, indeed,confrontational. Over the last 40years or so, the burden of con-veyancing has been greatlyincreased. The committee verystrongly resists the further bur-dens which these fees ordersimpose. The Law Society and theRegistrar of Titles have alwaysenjoyed very good relations, andhave always worked in close co-operation. The imposition of thepenalties by the two fees orders

will, we have no doubt, lead toresentment by solicitors andtheir clients. We believe theimposition of the penalties is notthe way to secure co-operation –quite the contrary.

While the committee appreci-ates the improvements whichhave been made by the presentregistrar, these increased fees andnew heads of charge are imposedat a time when dissatisfactionamong the profession with theservices provided by the LandRegistry – and particularly thedelays in providing them – isrunning at a high level. The reg-istries have asked the professionto be patient with the currentrestrictions on telephone accessand in dealing with routineenquiries while they try to catchup on a backlog of dealingsawaiting registration. In addi-tion, the Land Registry hassought the co-operation of theprofession in using its experi-mental form 17. To date this hasresulted in a huge increase in thenumber of dealings rejected bythe registry, much to theincreased frustration of the pro-fession which sees no latitudewhatever being exercised by reg-istry staff in the use of the newform. The profession is asked onthe one hand to embrace newsystems while on the other it isalso asked to bear the brunt ofinadequate lead-in times for theimplementation of these systemswith little or no transitionalarrangements or allowancesmade for a familiarisation periodon the implementation of thesenew systems. The profession andthe public are, in the view of thecommittee, entitled to ask whatthey will get in return, not onlyfor their forbearance in the faceof long delays but also for thecurrent increase in fees, and theyare also entitled to know whenthey may expect to see the longoverdue improvements in theservices offered by the registriesand the elimination of delays inthe provision of those services.Unfortunately, the increases andnew heads of charge have beenimposed with no correspondingguarantees of increased staffing,

Practitioners are advised to obtain copies of the newfees orders and start advising clients as soon as possibleof the new rates. Solicitors should ensure that provisionis made now in section 68 letters or draft/estimates ofcosts and outlays for the new fees in transactions due tobe lodged for registration after 1 May 2000 so that theywill be able to comply with their undertakings incertificate of title cases. Note that the new fees applyeven if the transaction was closed prior to 1 May 2000if application for registration is made after that date.

NOTE

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improved service or indeed newservices, and the committee feelsthat this is indeed regrettable.

The Director General haswritten to the Minister forJustice urging him to reconsiderthe two fees orders, with a viewto simplifying the heads ofcharge, removing the penaltyprovisions and moderating theincreases. With regard to theRegistry of Deeds, the Ministerhas been advised that the intro-duction of a simple Bill to amend

the 1707 and the 1832 Acts toprovide for a simplified form ofmemorial would greatly alleviatethe difficulties in relation to thepresent form of memorials andthat the committee would bevery willing to assist in thepreparation of this legislation.

Pending receipt of a responsefrom the Department of Justice,the committee is of the view thatthe profession and its individualmembers at local level shouldmake it clear to clients and to

local public representatives thatthe profession was not madeaware of the level of registrationfee increases being sought or ofthe new heads of charge untilafter the fees orders were pub-lished, and that it stronglyopposes them.

It is to be hoped that theMinister will reconsider the feesorders as requested and theSociety will keep membersupdated on any progress on thisfront. In the meantime, practi-

tioners who experience difficul-ties with the Land Registry or theRegistry of Deeds, either in relation to delays in service or in relation to the new fees orders, should contact the LawSociety, c/o the ConveyancingCommittee, as the Society wouldlike to have an indication of thelevel of difficulties being experi-enced by the profession as awhole.

Brian Gallagher, Chairman,Conveyancing Committee

PRACTICE NOTESDublin Circuit Criminal Court call-overSolicitors who have cases listedfor the above court are remind-ed that it is essential that theyattend the Wednesday call-overof cases for hearing on datesstarting the following Mondayweek. Solicitors have a duty tothe court to advise as to thestatus of such cases. The call-over takes place in Court no26. The recent improvements inthe listing system have beenwidely welcomed by all those

involved in the process. The co-operation of all concerned isrequired if these improvementsare to be sustained.

Criminal Law Committee

Legal Aid Board: fees payableto private practitionersThe Law Society has beenadvised by the Legal Aid Boardthat the Department of Financehas sanctioned an increase infees payable to private practi-tioners for legal aid work in fam-ily law cases in the District

Court and in refugee cases. Thenew fees are £143.37, with afee of £35.85 for each subse-quent day. The unanimous rec-ommendation of the Family Lawand Civil Legal Aid Committeewas that the Society should notendorse the participation of pri-vate practitioners at this level offee. The Society believes thatthe fee does not reflect in anyway the amount of time involvedin the preparation of a familylaw matter in the District Courtor an appeal against a decision

of the Department of Justice,Equality and Law Reform torefuse recognition of refugeestatus.

The Society accepts that it isa matter for each individualsolicitor to decide whether ornot to participate in thescheme, but the Society isencouraging solicitors to with-hold their support pending theestablishment of a realistic feestructure.

Family and Civil Legal Aid Committee

ACTS PASSEDAppropriation Act, 1999Number: 34/1999Explan-memo: NoContents note: Appropriates to theproper supply services and purpos-es sums granted by the CentralFund (Permanent Provisions) Act,1965; makes certain provisions inrelation to financial resolutionspassed by Dáil Éireann on1/12/1999, and provides for thepayment to the Minister for Healthand Children of certain monies col-lected in respect of the duty ofexcise imposed by s2 of theFinance (Excise Duty on TobaccoProducts) Act, 1977Date enacted: 16/12/1999Commencement date:16/12/1999

Companies (Amendment) (No 2)Act, 1999

Number: 30/1999Explan-memo: Yes, with Comp-anies (Amendment) (No 2) Bill,1999Contents note: Amends theCompanies (Amendment) Act,1990, relating to examinership;amends the Companies Acts,1963 to 1990 in relation to theremoval of the statutory auditrequirement for certain private lim-ited companies and partnerships;prohibits the formation of a com-pany unless it appears to theRegistrar of Companies that thecompany will carry on an activity inthe state; requires one of the direc-tors of a company to be a personresident in the state; amendss240 of the Companies Act, 1990and s16 of the Investment LimitedPartnerships Act, 1994 and pro-vides for related mattersDate enacted: 15/12/1999

Commencement date: 21/12/1999 for part I of the Act (prelimi-nary and general) and certain pro-visions of part III (ss33(2), 33(3)and 33(7)) (request not to avail ofexemption from statutory auditrequirements being provided for inthis part) and certain provisions ofpart IV (ss40, 41, 52 and 53, ands54 in part) (miscellaneous provi-sions); 1/2/2000 for part II of theAct (amending the law in relation toexaminers) and the second sched-ule in so far as it relates to part II;21/2/2000 for the remaining pro-visions of part III (removal of statu-tory audit requirements); 24/12/2000 for s54(1)(a) insofar as it isnot already in operation (per SI406/1999)

Fisheries (Amendment) Act, 1999Number: 35/1999Explan-memo: Yes

Contents note: Amends theFisheries (Amendment) Act, 1980in relation to the composition andfunctions of the Central FisheriesBoard and Regional FisheriesBoards, and related matters;amends the Fisheries (Amend-ment) Act, 1991 to provide for theappointment of management com-mittees of Fisheries Co-operativeSocieties and for related purposes;makes consequential amendmentsto the Fisheries (Consolidation)Act, 1959; amends the MarineInstitute Act, 1991, and providesfor related mattersDate enacted: 17/12/1999Commencement date: 20/12/1999 for all sections of the Act,except s23 (per SI 419/1999)

ICC Bank Act, 1999Number: 29/1999Explan-memo: Yes

LEGISLATION UPDATE: 16 NOVEMBER – 31 DECEMBER 1999

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Contents note: Makes the neces-sary legislative provisions to facili-tate the sale of ICC Bank plc.Provides for the disposal by theMinister for Finance of shares inthe bank and the issue of shares init for the purposes of the employeeshare ownership trust. The Act alsomakes provision in relation to cer-tain guarantees of the borrowing ofICC Bank, provision for additionalborrowing by the bank and for therepeal of the ICC Bank Acts, 1933to 1997, as well as certain otherrelated matters. The Act also pro-vides for additional borrowing byACC Bank plcDate enacted: 15/12/1999Commencement date: Commence-ment order/s to be made pers10(3)

Intoxicating Liquor Act, 1999Number: 32/1999Explan-memo: YesContents note: Amends andextends the Licensing Acts, 1833to 1997, and the Registration ofClubs Acts, 1904 to 1995, tomake provision for licensed prem-ises to remain open until 1.30amon 1/1/2000 for the celebration ofthe MillenniumDate enacted: 15/12/1999Commencement date:15/12/1999

Stamp Duties Consolidation Act, 1999Number: 31/1999Explan-memo: YesContents note: Consolidates thelegislation relating to stamp dutiesand the management of thosedutiesDate enacted: 15/12/1999Commencement date:15/12/1999

Temporary Holding Fund forSuperannuation Liabilities Act,1999Number: 33/1999Contents note: Provides a tempo-rary holding fund for exchequermoneys set aside in 1999 – pend-ing the enactment of detailed leg-islation – providing for the estab-lishment and on-going manage-ment of two separate funds, one

for social welfare pensions andone for public service pensionsDate enacted: 16/12/1999Commencement date:16/12/1999

SELECTED STATUTORY INSTRUMENTSCircuit Court Rules (No 1)(Organisation of Working TimeAct, 1997) 1999Number: SI 373/1999Contents note: Insert a new order63B into the Circuit Court rules1950 which prescribes proceduresfor applications brought under s29of the Organisation of WorkingTime Act, 1997Commencement date:6/12/1999

Circuit Court Rules (No 2) (Data Protection Act, 1988)1999Number: SI 374/1999Contents note: Insert a new order63C into the Circuit Court rules1950 which prescribes proceduresfor appeals brought under s26 ofthe Data Protection Act, 1988Commencement date: 25/11/1999 (date of signing of rules byMinister for Justice)

Criminal Justice (Legal Aid)(Amendment) Regulations 1999Number: SI 385/1999Contents note: Provide for anincrease of 1.5% with effect from1/7/1999 and 1% with effect from1/4/2000 in the fees payableunder the criminal legal aidscheme to solicitors for atten-dance in the District Court and forappeals to the Circuit Court, and tosolicitors and barristers in respectof essential visits to prisons andother custodial centres (other thanGarda Stations) and for certain bailapplications

Health (In-Patient Charges)(Amendment) Regulations 1999Number: SI 401/1999Contents note: Amend the Health(In-Patient Charges) Regulations1987 (SI 116/1987) – as amend-ed by the Health (In-PatientCharges) (Amendment) Regulations1997 (SI 510/1997) – by raising

the daily charge for in-patient serv-ices and the maximum amountpayable in any period of 12 consec-utive months to £26. Exemption formedical card holders and hardshipCommencement date: 1/1/2000

Health (Out-Patient Charges)(Amendment) Regulations 1999Number: SI 402/1999Contents note: Amend the Health(Out-Patient Charges) Regulations1994 (SI 37/1994) – as amendedby the Health (Out-Patient Charges)(Amendment) Regulations 1997(SI 509/1997)) – by raising thecharge to £25 in respect of atten-dance at accident and emergencyor casualty departments where theperson concerned has not beenreferred by a medical practitioner.The charge will not apply wheresuch an attendance results in hos-pital admission. Exemption formedical card holders and hardshipCommencement date: 1/1/2000

Land Registration (Fees) Order 1999Number: SI 343/1999Contents note: Provides forincreases in Land Registry feesfrom 1/5/2000; revokes the previ-ous fees order (SI 363/1991)

Local Government (Planning andDevelopment) (No 2) Regulations1999Number: SI 431/1999Contents note: Provide for a num-ber of matters under the LocalGovernment (Planning andDevelopment) Act, 1999. Both theAct and the regulations came intoforce on 1/1/2000

Registry of Deeds (Fees) Order 1999Number: SI 346/1999Contents note: Prescribes feespayable in the Registry of DeedsCommencement date: 1/2/2000

Road Traffic Act, 1994 (Section17) Regulations 1999Number: SI 326/1999Contents note: Prescribe the formof the statements to be producedby an apparatus for determining theconcentration of alcohol in thebreath pursuant to s17 of the RoadTraffic Act, 1994, and prescribe themanner in which the statementsare to be completed by a memberof an Garda SíochánaCommencement date:22/10/1999

Road Traffic (National Car Test)Regulations 1999Number: SI 395/1999Contents note: Specify the vehiclesliable for tests, exemptions andoperative dates; require a test discto be displayed on a liable car anda test certificate to be providedwhen taxing a car; prescribe proce-dures in relation to car testingCommencement date: 4/1/2000

Solicitors Acts, 1954 to 1994(Professional IndemnityInsurance) (Amendment)Regulations 1999Number: SI 362/1999Contents note: Substitute a newdefinition of ‘legal services’ for thedefinition contained in regulation2(a) of the Solicitors Acts, 1954 to1994 (Professional IndemnityInsurance) Regulations 1995 (SI312/1995) to make it consistentwith the definition contained in s2of the Solicitors (Amendment) Act1994, as amended by theInvestment Compensation Act,1998; amend the definition of ‘run-off’ cover in regulation 2(a) to pro-vide that the mandatory period ofrun-off cover be reduced from sixyears to two yearsCommencement date: 1/1/2000

Prepared by the Law SocietyLibrary

Copies of the above Acts and statutory instruments are held in theLaw Society Library. They may be purchased from GovernmentPublications in person at the Sales Office, Sun Alliance House,Molesworth Street, Dublin 2, or by post or fax from GovernmentPublications Postal Trade Section, 4-5 Harcourt Road, Dublin 2, tel:(01) 6613111, fax: (01) 4752760.

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M ichael McNeela, 50 yearsof age, was standing on

the road alongside the pavementat St Mary’s Lane near the fruitand vegetable market in Dublin,at about 10.15am on 28 August1995, when a forklift came frombehind him and collided withhim. The forklift went over hisleft foot and knocked him to theground. Immediately followingthe accident, Mr McNeela wastaken to the Mater Hospitalwhere he was x-rayed and a soft-tissue injury was diagnosed. Thesame day, Mr McNeela wasbrought back to his home inCastlebar. The following week,he attended his general practi-tioner who had known him forapproximately 30 years. Thegeneral practitioner found himin great pain, particularly affect-ing his left foot, his ankle, hislower back and his left hip. Forthree or four days in a row, thegeneral practitioner adminis-tered a morphine injection toMr McNeela and subsequentlythe morphine was replaced by a

strong dosage of painkillers.The GP referred him to a

consultant orthopaedic surgeonin Galvia Hospital. Theorthopaedic surgeon’s clinicaldiagnosis was of acute twistingand a muscular injury to MrMcNeela’s lower back. X-raysrevealed some degenerativechange at the base of the lumbarspine which pre-dated the acci-dent and which had becomesymptomatic as a result of theinjury.

Prior to the accident, MrMcNeela had traded in fruit andvegetables. He travelled fromCastlebar to Dublin twice week-ly to buy produce at the market.He sold the produce as a casualtrader in the town of Castlebarfrom a pitch close to the square.He traded on six days of theweek during the summermonths and five days during thewinter. He had been doing sosince 1989. In addition, heowned a 32-acre farm which hehad inherited. He extended thefarm by purchasing 14 addition-

al acres of land in 1994. Subsequently, in January

1996, an MRI scan revealedextensive degenerative changesat the L5/SI disc area withearly degenerative changes atL4/L5 level but no direct signsof nerve root entrapment, nosignificant bulging or protru-sion of the disc, no signs ofnerve root impingement andno facet joint degeneration.The orthopaedic surgeon in areport in January 1996 report-ed that the overall diagnosiswas a soft-tissue injury to thelower lumbar spine aggravatinga degenerative disc at the baseof the lumbar spine, combinedwith left sacro-iliac strain.

Six weeks after the accident,Mr McNeela developed depres-sion. In June 1996, the GPreferred him to the chief psychi-atrist in St Mary’s Hospital,Castlebar. The chief psychiatristin his report dated 1 November1996 stated that since the acci-dent Mr McNeela had becomeextremely depressed. He had a

very gloomy view about hisfuture and his ability ever toreturn to work or lead any kindof normal life. At times he feltlife was not worth living.

In June 1996, the GPreferred Mr McNeela to a con-sultant urologist in connectionwith Mr McNeela’s complaintof erectile dysfunction whichmanifested itself in January1996. The consultant urologistconcluded that the cause of hisimpotence was psychogenic –mentally induced rather thanphysical. When viagra came onthe market, the GP prescribedit for Mr McNeela, apparentlywithout success.

Liability was initially denied,but during the course of thetrial the defendants acknowl-edged that the forklift shouldnot have collided with MrMcNeela. Issues remained ofcontributory negligence. Fur-ther, Mr McNeela’s credibilitywas challenged on the basis thatwhat was involved was a mereminor injury.

Personal injury judgments

CASE Michael McNeela v Sam Dennigan & Co Ltd and Laurence Mooney, High Court, before Ms Justice Laffoy, judgment of 4 May 1999.

THE FACTS

THE JUDGMENT

Public liability – forklift colliding with person – injury to back and depression – fruit and vegetable dealer andfarmer – credibility of plaintiff – issues of law relating to assessment of damages – income tax affairs – legalquestions in relation to loss of earnings

Having outlined the facts asset out above, Laffoy J stat-

ed that, in the light of the defen-dants’ attack on Mr McNeela’scredibility, she found it neces-sary to outline the evidence in

greater detail than would nor-mally be the case in an ex tem-pore judgment of this nature.

The judge referred to MrMcNeela’s examination by med-ical experts for the defendants.

One of those experts wasProfessor TJ Fahy, consultantpsychiatrist, University CollegeGalway, who examined MrMcNeela in March 1997. In hisreport, Professor Fahy stated

that, assuming the main ele-ments of Mr McNeela’s story tobe true, the extent of the psychi-atric consequences of the injuryseemed to be confined todepressive symptoms, reactive

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to the extent of painful motordisability. Professor Fahy notedthat it was not unusual forimpairment of sexual drive tobe associated with severechronic painful motor disabilitywhen there is no neurologicalor neurodiagnostic evidence ofdirect compression or otherinterference with the pudendalnerves.

The judge noted thatthroughout 1997 and 1998 MrMcNeela continued to have hisphysical symptoms investigat-ed. He was also investigated byMr O’Laoire, consultant neu-rosurgeon in the MaterHospital on a number of occa-sions, and a repeat MRI scan inAugust 1997 revealed nothingnew and a CT myleogramshowed no evidence or suspi-cion of nerve root compression.

Mr McNeela also attended aconsultant anaesthetist forinjections for pain, which hadgiven him short-term relief. Hisorthopaedic surgeon in a reportin September 1998 stated hewould not advise surgical treat-ment, particularly discectomy,as there was no major protru-sion into the spine and repeatinvestigations did not show anyevidence of nerve compression.The surgeon’s main advice wasto persist with a conservativeexercise programme.

Mr McNeela’s anti-depres-sant medication was changedon a number of occasionsbecause of lack of response. Hewas then put on tranquillisersand, on one occasion, a majortranquilliser, but he showed lit-tle progress. In a report inFebruary 1998, Professor Fahyfor the defendants noted thatMr McNeela’s condition wasunchanged. He appeareddepressed in relation to two fac-tors: one was his persistentpainful disability affecting hislower back and left side, thesecond his complaint of totalimpotence. He noted that thedepressive component of MrMcNeela’s complaints was notlikely to recover completely aslong as he continues to havedisabling pain. Similarly, if it

were a fact that he was com-pletely impotent, the consultantnoted that it was difficult to seehow he could be otherwise thanseverely depressed indefinitely.In oral testimony, ProfessorFahy expressed a view that thediagnosis of Mr McNeela’s sexu-al problem as being psychogenicwas ‘highly speculative’.

The judge noted that MrMcNeela had been driving amotor car since June 1996 buthe had not driven a truck orlorry, and the general practition-er’s evidence was that he wouldnot certify him as fit to drive atruck.

One of Mr McNeela’s sonswas running the farm reluctant-ly on the promise of being paidfor his labours. In December1998, due to financial pressure,Mr McNeela sold the 14 acreshe had previously purchased.

The judge referred to a num-ber specific matters which wereraised as being indicative of MrMcNeela’s alleged lack of credi-bility. It was alleged that he hada drink problem before the acci-dent. Mr McNeela admitted toone drinking binge and the gen-eral practitioner confirmed hehad been a ‘bad boy’ on occa-sion. The judge was satisfiedthat drink had not been a factorin Mr McNeela’s post-accidentpsychiatric condition.

It was also alleged that MrMcNeela had matrimonialproblems. The judge stated thatin 1984 Mr McNeela and hiswife had matrimonial problemsand he was away from the fami-ly home for a period. However,the couple addressed their prob-lems and these problems werebehind them for a decade whenthe accident happened.

Third, it was alleged that MrMcNeela had been jailed forcontempt of court in 1990 aris-ing out of a dispute with theLand Commission in relation toland. The judge stated that MrMcNeela had been jailed but, inher view, there was nothing tosuggest that this had any bearingon his post-accident condition.

Fourth, it was alleged that MrMcNeela had been prosecuted

and convicted for trading with-out a licence, contrary to sec-tion 3 of the Casual Trading Act,1980. The judge stated that thiswas so but had occurred fiveyears before the accident.

Fifth, it was alleged that MrMcNeela’s tax affairs were indisarray before the accident andthis accounted for or con-tributed to his anxiety anddepression post-accident. Thejudge noted that Mr McNeela’stax affairs were indeed in disar-ray. However, in her view, theevidence did not suggest a linkbetween this factor and his post-accident psychiatric condition.

Laffoy J noted that MrMcNeela’s physical and psychi-atric problems were clearlyinterlinked. The most tellingfeature of the case, according tothe judge, on the issue of hiscredibility was that three experi-enced medical practitionersregarded Mr McNeela’s com-plaints as genuine and had con-tinued to treat him on the basisthat they were genuine foralmost four years. ProfessorFahy’s testimony was noted tothe effect that he could notcommit himself on the side ofgenuineness or otherwise. Thejudge rejected the propositionadvanced by the defendants thatMr McNeela’s claim was‘bogus’. On the evidence, shewas satisfied that it was genuine,although she believed that, as inmost personal injury cases, theexistence of litigation was a fac-tor in his current condition.

The judge considered that itwas probable that MrMcNeela’s condition wouldimprove both mentally andphysically, but she did not thinkit probable he would ever returnto his pre-accident state. On theevidence, the judge noted it wasnot possible to conclude that hissexual dysfunction would prob-ably resolve.

Major legal issues arose inthe case in relation to loss ofearnings. On the issue of thefact that Mr McNeela was trad-ing without a casual tradinglicence contrary to the law, theissue arose whether this was a

bar to recovery. The judgefound that from 1992 to 1995Mr McNeela was openly trad-ing in a manner which consti-tuted a criminal offence.However, it seemed to her thatthe correct principle was thatstated in White on Irish law ofdamages as follows: ‘Recoveryought to be denied only wherethe defendants can demonstratepublic policy would otherwisebe subverted’. The judge notedthat that was clearly not the caseand the absence of a casual trad-ing licence was not a bar torecovery.

The second issue addressedby the judge was whether thefact that Mr McNeela was nottax-compliant before the acci-dent was a bar to recovery. Thejudge noted that although MrMcNeela had not made anyincome tax returns before theaccident, she was satisfied onthe evidence that more than ayear before the accident he hadbegun to rectify his tax positionand at the time of his accidentwas doing his best to regularisehis affairs. Since the accident,Mr McNeela’s tax affairs hadbeen regularised. In the judge’sview, neither the past nor thecurrent state of his liability totax was a bar to recovery.

The issue then arose of whatMr McNeela was earning fromthe fruit and vegetable businessbefore the accident. Financialstatements prepared by MrMcNeela’s accountant were‘hotly disputed’. Apparently nobooks such as sales journals,purchase journals or cash bookswere kept. While cheque stubsfilled in by Mr McNeela andbank statements were available,there was no corroborating doc-umentation of the cheque stubs,and in particular Mr McNeelawas unable to produce state-ments from suppliers. However,having regard for an overview ofthe totality of the evidence, thejudge came to the conclusionthat before the accident he wasprobably earning about £15,000a year, or £1,250 a month or£288 a week from the fruit andvegetable business after tax.

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The next issue was what MrMcNeela was capable of earningsince the accident and what hewould be capable of earning inthe future. On the evidence, thejudge was satisfied that he hadbeen unable to work at the fruitand vegetable business since theaccident. She considered that,apart from farming, the onlybusiness he knew was sellingfruit and vegetables and she didnot consider it probable that hewould ever be able to resumethat business. Therefore, sheconcluded that Mr McNeela hadbeen permanently deprived ofhis principal source of income asa result of the accident.

The issue then arose of thecapital value of Mr McNeela’sfuture loss of earnings from the

fruit and vegetable business. Anactuary had stated that theappropriate multiplier was 467on the basis that Mr McNeelawould probably have continuedin the fruit and vegetable busi-ness until age 65 had the acci-dent not occurred. However,the judge stated that, given thenature of Mr McNeela’s pre-accident business, she consid-ered that this was a case wherethere must be a substantial dis-count ‘for adverse contingen-cies’. The relevant factors werehis age, the nature of the workinvolved in running the busi-ness, the return journey fromCastlebar to Dublin twice aweek and selling fruit and veg-etables out of doors five or sixdays a week, with a probable

heavy toll on his health as hegot older. She considered thatin all the circumstances theappropriate discount was 25%.Therefore, the capital value ofMr McNeela’s future loss ofearnings in the fruit and veg-etable business was £100,872.

The next issue addressed bythe judge was the effect of theinjuries sustained by MrMcNeela on his income fromhis farming enterprise and howthat should be compensated.The judge noted that to datethe farm had been run by hisson and the only loss to MrMcNeela was the cost of hisson’s labour, which he had com-mitted himself to rewarding.Based on evidence, the judgeproposed allowing for loss oflabour at £8,000 to date. Thejudge considered that £20 aweek should cover the addition-al labour costs that he was like-ly to incur in the future in thecontext of labour requirementsof a 32-acre farm carrying 17sucklers and their calves,assuming that Mr McNeelawould improve sufficiently todo all but the heavy aspects ofwork on the farm. Capitalisedto age 65 on the basis of themultiplier of 467, this put a cap-ital value of £9,340 on this loss,which the judge proposed toround up to £10,000.

The issue of contributorynegligence then arose for consid-eration. The judge stated thatMr McNeela was standing in theroadway just off the pavementwhen he was struck by the fork-lift. The judge noted that MrMcNeela should not have beenstanding on the roadway in theposition he was and he shouldhave heeded the traffic, includingforklifts, on the roadway becauseof the frenetic activity of themarkets.

In all the circumstances, thejudge stated, Mr McNeela mustbear 20% responsibility for theaccident.

Counsel for the defendantsapplied for a stay. After legalargument, Laffoy J stated shewould give a stay on condition ofa payment out of £150,000.

Mr H Bourke SC, Mr P O’HigginsSC and T Dillon Leetch BL,instructed by T Dillon Leetch &Sons, Solicitors, Ballyhaunis, CoMayo, represented Mr McNeela.Mr R Robbins SC and Mr FDuggan BL, instructed by StephenMcKenzie & Co, Solicitors, Dublin2, represented the defendants.

This summary was compiled by DrEamonn Hall, solicitor, fromReports of personal injuries1999, published by Doyle CourtReporters, 2 Arran Quay, Dublin 7.

G

Laffoy J awarded damages as follows:• Special damages (other than loss of earnings and farm

labour costs), agreed at £6,500• Loss of earnings from the fruit and vegetable business

to the date of trial (£1,250 a month for 44 months),£55,000

• Future loss of earnings from the fruit and vegetablebusiness, £100,872

• Additional farm labour costs to the date of trial, £8,000• Additional farm labour costs in the future, £10,000• Pain and suffering to the date of trial, £50,000, and• Pain and suffering for the future, £50,000.

This brought the figure to a total of £280,372, of whichthe defendants were liable for 80%, which came to£224,297.60.TH

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AGRICULTURE

Consumer protectionAgricultural products – dietaryproducts – milk – cheese – labelling– descriptionThe European Court of Justicehas ruled that a company couldnot market as ‘cheese’ a productwhere milk fat had beenreplaced by other ingredients.Union Deutsche Lebensmittel-werke v Schutzverband gegenUnwesen in der Wirtschaft ECJ, Case C-101/98, 16/12/99

COMPANY

InsolvencyReceiver’s duty to account for dis-posal of assets – rights of directorsto acquire such information –application for directions underCompanies Act, 1963, section316 and Companies Act, 1990,section 171The applicant had been a direc-tor of a company of which therespondent was acting as receiv-er. The majority of the assets ofthe company had been disposedof by the receiver. The appli-cant brought an applicationseeking information regardingthe affairs of the company. TheHigh Court found that theapplicant had been afforded asmuch information as the receiv-er could reasonably furnish.Also, it was held that the appli-cant had not shown sufficientcause for the court to exerciseits discretion to grant the reliefsought and accordingly theapplication was refused.Kinsella v Somers, HighCourt, Mr Justice Budd,23/11/99

InjunctionShareholder dispute – interiminterlocutory injunction – specific

performance – oppression ofminorities – removal of a director –balance of convenience – whetherthe existence of a clause providingfor a pre-emptive offer to existingshareholders on a pro-rata basisrenders the contract inoperable –whether the right of a registeredowner of shares to vote the shares ashe saw fit could be affected by thecourt – Companies Act, 1963,section 205Unpaid vendors of shares areentitled to exercise their votingrights in respect of the shares. Acourt of equity will not entitlean unpaid vendor of shares tovote deliberately so as to dam-age the purchaser, or contrary tothe interests of the purchaser. Inthe case of specific performancefor purchase of shares, where apre-emptive clause exists, theproper form of relief is that thecontract ought not to be per-formed subject to the pre-emp-tion rights of the members ofthe company. The balance ofconvenience favors maintainingthe status quo on the board ofdirectors until the trial.O’Gorman (& Others) vKelleher (& Others), HighCourt, Ms Justice Carroll,19/07/99

TaxationExpenses – deductibility – case stat-ed – taxpayer company obtained aloan having spent commensuratesum in redemption of preferenceshares – company engaged in tradeof ‘retailing of food, clothing andother household goods’ – whetherinterest payments on loan were‘wholly and exclusively laid out orexpended for the purposes of [its]trade’ – findings of fact made byCircuit Court judge The redemption of preferenceshares by the respondent hadleft a gap in its finances and ithad to borrow funds in order to

continue trading, and the fundsso borrowed were used for trad-ing. In those circumstances, itwas reasonable for the CircuitCourt judge to hold that therespondent was entitled to adeduction in respect of the cal-culation of its profits underschedule d, case 1, in theamount expended in its interestpayments on the sum borrowed.So held by the High Court inupholding the findings of theCircuit Court.MacAonghusa v RingmahonLtd, High Court, Mr JusticeBudd, 26/11//99

COMPETITION

Vertical agreementsEuropean Commission – competi-tion – vertical agreements – verti-cal restraints – selective distribu-tion – exclusive distribution –exclusive purchasing – franchiseagreementsA few days before Christmas,the European Commissionadopted the much-awaited ver-tical agreements block exemp-tion regulation (OJ L336/21,29/12/99) which, from June2000, will replace the presentthree block exemption regula-tions applicable to exclusive dis-tribution agreements, exclusivepurchasing agreements andfranchise agreements.

CONSTITUTIONAL

Defamation Brussels convention – libel –motion to strike out proceedings bysecond defendant – booklet pub-lished in England containing refer-ences to plaintiffs – plaintiffsalleged references defamatory –booklet also published in Ireland –second defendant author of bookletand undesirous of publication in

Ireland – whether alleged harmoccurred in this jurisdiction –whether author of defamatorystatement responsible for republica-tion by another person – whetherpublication of booklet in this juris-diction a natural and probable con-sequence of publication in England– whether Irish courts have juris-diction to hear claim – whetherclaim against author should bestruck out – jurisdiction of Courtsand Enforcement of Judgments(European Communities) Act,1988The natural and probable con-sequence of publishing a bookin the United Kingdom aboutthe ‘Birmingham Six’ was that itwould also be published inIreland, particularly as theauthor had given the worldwideright of publication to his pub-lishers and did not insist on acontractual stipulation that thebook not be published inIreland. The High Court soheld in dismissing the seconddefendant’s application.Hunter v Duckworth, HighCourt, Mr Justice Kelly,12/10/99

Insolvency Bankrupt plaintiff summoned forexamination before the HighCourt – whether examination of abankrupt was an administrativefunction rather than part of theadministration of justice – whetherprovisions of the Bankruptcy Act,1988 directing the examination ofa bankrupt by the court wererepugnant to the constitutionThe examination of a bankruptby the court cannot be charac-terised as a judicial function.However, since the entire bank-ruptcy procedure is judicial andthe examination is incidental orancillary to it, it is then a func-tion properly conferred on thecourt. The mere inclusion

UpdateNews from Ireland’s on-line legal awareness serviceCompiled by John X Kelly of FirstLaw

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among the functions given tothe court by the legislature ofcertain powers which may notconstitute the administration ofjustice does not render thosepowers unconstitutional. TheHigh Court so held in dismiss-ing the application. O’Donoghue v OfficialAssignee (& Others), HighCourt, Mr Justice Kearns,24/11/99

CONSUMER

Estée Lauder Cosmetics vLancaster GroupFree movement of goods – cosmetics– labelling – ‘lifting’ – misleadingadvertising – consumer protection‘lifting’ cosmetics unlikely to bemistaken for surgery substitutesThe European Court of Justicehas ruled that the term ‘lifting’,applied to a cosmetic product,was unlikely to be misunder-stood as a substitute to a surgi-cal lifting operation, but it wasfor the national court to con-firm by reference to the expec-tations of an average consumer.ECJ, Case C-220/98,13/01/2000

CONTRACT

Practice and procedure Plaintiff brought action in relationto cash-control system installed bydefendant – first third party acompany domiciled in England –supplied defendant with equipment– claimed contract with defendantsubject to jurisdiction clause requir-ing claim to be brought in England– jurisdiction clause contained inconditions of sale – whether effec-tive agreement reached to oustjurisdiction of Irish courts –whether jurisdiction clause anagreement within meaning ofBrussels convention – whetherjurisdiction clause covered reliefs inaddition to those arising directlyfrom the contract – Rules of thesuperior courts 1986, o16, r8(3)– Jurisdiction of Courts andEnforcement of Judgments(European Communities) Act,1988

The jurisdiction clause in thepresent case is one which pro-vides for the exclusive jurisdic-tion of the English courts inrelation to disputes arising outof the contract between thedefendant and the first thirdparty. Having regard to thecourse of trading between themand the fact that the clause wasrepeatedly set out in invoicessent by the first third party, thecourt was satisfied that therewas consensus between the par-ties as to this clause. Further,the claims in relation to negli-gence, breach of duty and mis-representation were intimatelybound up with the contractualclaim and should be heardtogether. The High Court soheld in saying that the Irishcourts had no jurisdiction tohear and determine the defen-dant’s claim against the firstthird party. Clare Taverns v Gill, HighCourt, Mrs Justice McGuin-ness, 16/11/99

COSTS

Practice and procedure Plaintiff entered into an insurancecontract with the defendant –defendant refused to indemnify theplaintiff for a fire at the plaintiff’spremises for alleged material non-disclosure which would render theinsurance policy voidable – plaintiffsubsequently struck off and restoredto the Register of Companies –whether the plaintiff’s claim shouldbe struck out for want of prosecu-tion – whether the delay on thepart of the plaintiff was inordinateand inexcusable – whether thedefendant was prejudiced by thedelaySince the case would be basedlargely on documentary evi-dence, the defendant was notprejudiced by the plaintiff’sdelay and would be in a positionto defend the claim. However,in light of the delay it would beunjust of the plaintiff, if it suc-ceeded, to claim Courts Actinterest. If the plaintiff wereunsuccessful, the defendantmight not be able to recover

costs. The High Court so heldin refusing to dismiss the plain-tiff’s claim but in requiring it toundertake not to claim CourtsAct interest and in making anorder for security of costs.Truck & Machinery Sales Ltd vGeneral Accident, HighCourt, Mr Justice Geogh-egan, 12/11/99

Injunction Injunction sought in plenary sum-mons in relation to wrongful inter-ference with plaintiff’s business –ancillary claim for damagesincluded in statement of claim –interlocutory injunction granted –injunction unnecessary at plenaryhearing – damages within DistrictCourt jurisdiction awarded at ple-nary hearing – costs of the actionawarded to the plaintiff – lowestcourt having jurisdiction to grantrelief ordered – jurisdiction of theCircuit Court – whether costsawarded in respect of interlocutoryapplication should be Circuit Courtscale – whether costs awarded inrespect of plenary hearing should beDistrict Court scale – whetherCircuit Court has jurisdiction togrant equitable relief in an actionnot relating to propertyWhere an injunction is claimedat the commencement of anaction, and granted in an inter-locutory order, and is no longernecessary by the time the mat-ter comes for plenary hearing, ifthe plaintiff would have beenentitled to that injunction at thetime of commencement of pro-ceedings, then the injunctionwill be part of the relief grantedin the action for the purposes ofan order for costs. The CircuitCourt does not have jurisdic-tion to grant an injunction byway of primary relief in anaction not relating to property.Accordingly, the High Courtwas the lowest court havingjurisdiction to grant the reliefsto which the plaintiff was enti-tled at the commencement ofthis action. So held by the HighCourt in dismissing the defen-dant’s application.Rodgers v Mangan, HighCourt, Mr Justice Geogh-egan, 15/07/99

CRIMINAL

Proceeds of crime Nature of proceedings underProceeds of Crime Act, 1996 –jurisdiction of court in relation tocrime committed abroad – whetherproperty of third defendant repre-sents proceeds of crime – whetherproceeds of crime legislation appliesto crimes committed abroadThe Proceeds of Crime Act, 1996does apply to crimes committedabroad as the object of the Actis to prevent the enjoyment inthe state of assets generated byor in connection with crimeand there is no reason why thatobject should be limited tooffences committed in thisjurisdiction. The High Courtso held in making the ordersought in respect of the proper-ty of the third defendant.DPP v Hollmann (& Others),High Court, Mr JusticeO’Higgins, 29/07/99

Consultative case stated Power of arrest – jurisdiction ofDistrict Court – accused arrestedfor assault contrary to s2 of Non-Fatal Offences Against thePerson Act, 1997 – no power ofarrest under the Act – Whetherdistrict judge entitled to dismiss caseon ground of unlawful arrest –whether valid arrest essentialingredient of offence – whetherunlawful arrest deliberate and con-scious violation of rights of accused –Constitution of Ireland 1937,articles 38 and 40 – CriminalLaw Act, 1997, s4The jurisdiction of the DistrictCourt to embark on any crimi-nal proceeding is not affected bythe fact, if it is the fact, that anaccused person has beenbrought before the court by anillegal process but a districtjudge is entitled to decline toembark on the hearing of thecase if he determines that therehas been a deliberate and con-scious violation of the constitu-tional rights of the accused. TheHigh Court so held in answer-ing the case stated with a quali-fied affirmative. DPP v Bradley, High Court,Judge McGuinness, 09/12/99

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Extradition Extradition of applicant toScotland sought for alleged sexualoffence in September 1993 – dis-trict judge satisfied that allegedoffence corresponded with offence ofrape contrary to s2 of CriminalLaw (Rape) Act, 1981 – whetheroffence alleged in warrant corre-sponds with offence in this jurisdic-tion – whether warrant bad forduplicity – whether lapse of sixyears makes extradition unjust –whether departure from usualpractice by Scottish court renderscertification of warrant invalid –Constitution of Ireland 1937,article 40 – Extradition Act,1965, s50 – Criminal Law (Rape)(Amendment) Act, 1990, s4 The test to be applied in assess-ing whether the offence allegedin an extradition warrant corre-sponds with an offence in thisjurisdiction is to determinewhether the factual componentsof the offence, as specified inthe warrant, would constitutean offence of the required grav-ity if committed in this jurisdic-tion. The High Court so held insaying that the offence allegedcorresponded with the offenceof rape contrary to s4 of theCriminal Law (Rape) Act, 1990and further saying that thedelay in this case was caused bythe applicant and he was notentitled to be released becauseof that delay. Stanton v O’Toole (& Others),High Court, Mr JusticeO’Donovan, 07/12/99

Practice and procedure Conviction – alibi evidence –appeal – sentence – whether sen-

tence excessive – summation of evi-dence – jury had seen accused incustody during trial – allegationthat juror asleep – whether juryshould have been dischargedThe applicant had been con-victed of robbery and sentencedto ten years’ imprisonment.The applicant appealed againstthe conviction on a number ofgrounds and also appealedagainst the sentence. It wasalleged that the trial judge haddealt unfairly with the accused’salibi evidence and that in gener-al the trial judge’s summation ofthe evidence was unfair. TheCourt of Criminal Appeal heldthat the trial had been conduct-ed fairly, rejected the argumentsmade and dismissed the appeal.DPP v O’Regan, Court ofCriminal Appeal, 25/03/99

DAMAGES

Hepatitis C Personal injury – quantum –Hepatitis C CompensationTribunal – plaintiff appealedaward of general damages of£130,000 – plaintiff contractedhepatitis C in 1979 at age 21 –entire adult life ruined by infection– whether overall award should bereduced having regard to amountawarded for financial lossesThe court was satisfied that theentire adult life of the plaintiffwas devastated by contractionof hepatitis C and would con-tinue to be so affected and, inthe circumstances, an award of£250,000 for general damageswould be appropriate. TheHigh Court so held in further

saying that this was not anappropriate case for a reductionof general damages, havingregard to the amount alreadyawarded for financial losses. M O’N v Minister for Healthand Children, High Court,Mr Justice O’Neill, 19/10/99

Building and construction Specific performance – agreementsentered into between the parties –whether the obligations of eachparty had been carried out – therule in Pinnel’s Case – remuner-ation for professional services –quantum meruitIf a liquidated sum is owed by acreditor, a promise by a debtorto take a lesser sum in full satis-faction of a larger debt will notbind the debtor. Pinnel’s Case([1602] 5 Co Rep 116A) fol-lowed. The agreements werenot adhered to by the plaintiffsand a claim for specific per-formance must fail. The plain-tiffs are entitled to adequatecompensation for their effortsin furthering the developmentof the first-named defendant’sland. The court so held ingranting the relief claimed.Bergin (& Others) v Farrell (&Others), High Court, MsJustice Carroll, 17/12/99

EMPLOYMENT

Fair proceduresSexual harassment allegations –finding of gross misconduct –unfair dismissal – whether theemployer applied the rules of natu-ral and constitutional justice ininvestigating the alleged miscon-

duct – whether declaratory reliefavailable – Unfair DismissalsAct, 1977, section 15That declaratory relief is avail-able in employment situationsunless precluded by pursuingrights under the UnfairDismissals Act. That ‘fair hear-ing’ means to be treated fairlyaccording to the ordinary rea-sonable standards of fair play.That the employer is obliged toapply the rules of natural andconstitutional justice in investi-gating misconduct. That if anemployer does not provide theemployee with either a fullaccount of the allegations madeagainst him, or an opportunityto refute the allegations, a subse-quent dismissal is unlawful. Thecourt so held in granting therelief claimed.Cassidy v Shannon CastleBanquets and Heritage Ltd,High Court, Mr Justice Budd,30/07/99

Damages Applicant sought order quashing hisdismissal – liberty granted to deliverstatement of claim – applicantsought to amend points of claim toinclude conspiracy – whether libertyto deliver statement of claim changednature of proceedings from judicialreview – whether test to be appliedfor amendment of statement ofgrounds more stringent – whetherapplicant guilty of delay in bringingapplication – whether claim of con-spiracy relevant to reliefs sought –Rules of the superior courts1986, o28, r1The nature of the proceedingsbefore the court did not changeby virtue of the fact that liberty

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was granted to deliver a state-ment of claim and the courtshould only allow an amendmentof the original grounds, inrespect of which leave to seekjudicial review was granted, inexceptional circumstances.However, even if the applicationdid come within order 28, rule 1of the Rules of the superior courts, itwould still fail, as the claim ofconspiracy had no relevance tothe reliefs sought and thereforean amendment would not benecessary to determine the realquestion in controversy betweenthe parties. The High Court soheld in refusing the application. O’Leary v Minister forTransport, High Court, MrJustice Kelly, 26/11/99

Informal mediationInjunction – compromise of pro-ceedings – settlement agreementThe plaintiff is a professor ofeconomics and head of theDepartment of Economics atUniversity College, Cork. Hesought to restrain the university

from proceeding with an infor-mal mediation process concern-ing litigation in which theplaintiff and the university weredefendants. The plaintiffclaimed that the universityagreed not to settle the litiga-tion without his consent. Thelitigation was discontinuedagainst the plaintiff. An infor-mal exploratory exercise at dis-pute resolution such as themediation process does notimply a legalistic framework.The plaintiff was no longer aparty to the litigation once thenotice of discontinuance hadbeen served. There was no issueto be tried in such circum-stances. The High Court soheld in refusing the application.Fanning v UCC, High Court,Ms Justice Carroll, 07/07/99

ENVIRONMENT

Commission takes actionagainst IrelandEnvironment – nature preserva-

tion – Wild birds directive – spe-cial protection areasThe European Commission hasdecided to make an applicationto the European Court ofJustice against Ireland for non-respect of the Wild birds direc-tive. The decision concerns thefailure to curb sheep overgraz-ing, particularly in the west ofIreland, leading to serious dam-age to Ireland’s largest specialprotection area, the Owenduff-Nephin Beg Complex inCounty Mayo, as well as widerloss of habitat of the red grouse. ECJ, 06/01/2000

TELECOMMUNICATIONS

Electronic signaturesInformation technology – Internet– contractsOn 13 December 1999, theCouncil of Ministers opened anew era for electronic com-merce by unanimously adopt-ing the Directive on electronicsignatures. The directive will

facilitate the use of electronicsignatures and will encouragetheir legal recognition byestablishing a legal frameworkand minimum requirementsfor certification services. Thedirective has left a number of fields unploughed wherethe Member States will con-tinue to apply their nationallaws, such as the law on theformation and validity of con-tracts and the acceptability of electronically-signed databetween the parties to a con-tract. It will not apply eitherto closed networks such asintranets. The directive mustbe implemented by 19 July2001.

The information contained here istaken from FirstLaw’s LegalCurrent Awareness Service,published every day on theInternet at www.firstlaw.ie. Fulltexts are available on-line. Formore information, [email protected] or tel: (01)8090400, fax: (01) 8090409.

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Applications for registration in Counties Kildare and Wicklow

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Applications which do not enclose the new form 17 cor-rectly completed will be returned unregistered. Details ofthe new application form were published in the Decemberedition of the Gazette.

The form is available in electronic format on the LandRegistry Website at www.landregistry.ie in Microsoft Word95TM, Word 97TM, Amipro 3.1TM and various formats ofWordperfectTM. You may also obtain the form on disk inthese formats or printed copies of the form from JohnMurphy, Land Registry, Chancery St., Dublin 7, Tel:(01)8048066, Fax: (01)8048074, E-mail: [email protected]

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The most significant devel-opment in the field of

European private internationallaw is the imminent replace-ment of the Brussels conventionwith a Regulation on jurisdictionand enforcement of judgments incivil and commercial matters. Thecommission has also announceda new Regulation on jurisdictionand enforcement of judgments inmatrimonial matters (to replacethe current draft convention)and a Regulation on service of doc-uments within the EU.

The Brussels convention hasbeen reviewed over the last fewyears. In early 1998, theEuropean Commission pub-lished a proposal (OJ C 33, 31January 1998) which wouldhave made significant changesto the jurisdictional provisionsin the convention and wouldalso have simplified the recog-nition and enforcement of for-eign judgments. It was putbefore the European Parlia-ment but did not proceed anyfurther. This proposal gathereddust for almost two years.

The Amsterdam treaty tookeffect on 1 May. On 28 May, thecommission put forward a freshproposal for revision of theconvention (Proposal for a councilregulation (EC) on jurisdictionand enforcement of judgments incivil and commercial matters,COM (1999) 348 final). It pro-poses the replacement of theconvention with a regulation.This would bring the conven-tion within the framework ofEC law. The Luxembourg proto-col would become redundant, asthe regulation would be subjectto article 234 (formerly article177) of the treaty. It would alsomean that the regulation would

enter into force on its imple-mentation date rather thanrequiring a number of signato-ries to implement a treaty as atpresent. The accession conven-tion for Austria, Finland andSweden (which makes a numberof minor amendments) has notyet entered into force for thisreason.

The legal basis for this pro-posal is Title IV of the ECtreaty. Measures adopted underthis title are not applicable inDenmark, the UK and Ireland.However, at the council meet-ing on 12 March last, the UKand Ireland indicated that theywould ‘opt in’ for this and otherproposals on judicial co-opera-tion. If Denmark does not optin, the regulation will applybetween all other MemberStates, the convention betweenthose states and Denmark, andthe Lugano convention betweenthe EU and EFTA MemberStates.

The regulation very largelycorresponds to the existingconvention. The scale of theproposed changes is much lesssignificant than in the originalproposal. The major proposedchanges are as follows.

Domicile. The regulationretains the concept of the domi-cile of natural persons. This isin contrast to the original pro-posal, which proposed replac-ing domicile with habitual resi-dence. The regulation proposesan autonomous definition ofthe seat of a legal person. Theconvention currently providesthat this is to be determined bynational law. The regulationretains a reference to nationallaw as regards the validity, nul-lity and dissolution of legal per-

sons and decisions of their man-aging bodies.

Contract. The regulationretains much of the originalwording of article 5(1): jurisdic-tion is given to the ‘place of per-formance of the obligation inquestion’. This had been one ofthe most heavily-litigated provi-sions of the convention andgave rise to a great deal ofuncertainty. However, in thecase of the sale of goods and theprovision of services, the regu-lation defines the place of per-formance of the obligation inquestion. For the sale of goods,it will be the place where thegoods were or should have beendelivered. In the case of the pro-vision of services it will be theplace where under the contractthe services were or should havebeen provided.

This proposed article 5(1) isgreatly preferable to the origi-nal proposal. That would havenarrowed the scope of this pro-vision to contracts for the saleof goods. All other contractualcases would have fallen underarticle 2.

Tort. There is one smallchange to article 5(3). This cur-rently provides that in tortiouscases jurisdiction is given to thecourt of the place where theharmful event occurred. Theregulation provides that it willcover cases not only where theharmful event has occurred butalso those where it may occur.

The original commissionproposal had suggested chang-ing article 5(3) to allow a defen-dant to be sued in the courts forthe place where the event givingrise to the damage occurred orin the courts for the place wherethe damage or part thereof was

sustained. This amendmentwould have reflected the inter-pretation of the original provi-sion by the Court of Justice inCase 21/76 Bier v Mines dePotasse ([1976] ECR 1735). It isregrettable that this amend-ment does not appear in theregulation. However given theconsistent manner in which thecourt has followed Bier throughto the most recent decision ofCase C-51/97 Réunion Euro-péenne Sa & Ors v Spliethoff’sBevrachtingskantoor BV and theMaster of the vessel AlblasgrachtV002 (judgment of 27 October1998), article 5(3) will still haveto be looked at in the light ofBier.

Multiple defendants. Theregulation proposes a minorchange to article 6. This cur-rently allows a plaintiff to suemultiple defendants in thedomestic jurisdiction of any oneof them. The regulation repeatsthe wording of this article andthen goes on to say: ‘providedthat the claims are so closelyconnected that it is expedient tohear and determine themtogether to avoid the risk toirreconcilable judgments result-ing from separate proceedings’.This follows the consistentinterpretation of the originalarticle from Case 198/87Kalfelis v Schröder ([1988] ECR5565).

Insurance contracts. Thescope of article 9 has beenbroadened. This allows a poli-cyholder to sue an insurancecompany in the courts of thepolicyholder’s domicile. Therationale behind this is to pro-tect the weaker party. Thisright to sue an insurance com-pany in one’s own domicile is

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

Replacement of the Brusselsconvention

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

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now extended to the insuredperson and the beneficiarywhere they are the applicants.This extension is consistentwith the purpose of the article.

Consumer contracts. Thescope of the consumer contractprovision has been extended tooffer consumers better protec-tion. Article 13 has beenreplaced by article 15. The con-sumer can sue in his own domi-cile in respect of a contract forthe sale of goods on instalmentcredit terms or in respect of acredit agreement made tofinance the sale of goods. Thearticle then goes on to providethat the consumer provisionsapply if:

‘In all other cases, the contracthas been concluded with a personwho pursues commercial or profes-sional activities in the MemberState of the consumer’s domicile or,by any means, directs such activitiesto that Member State or to severalcountries including that MemberState, and the contract falls withinthe scope of such activities’.

This is a broader provisionthan in the original article.Article 13 requires an invitationto purchase addressed to theconsumer and requires the con-sumer to take the necessarysteps in his state to conclude thecontract. It also confined theprovision to contracts for thesupply of goods or services. Thenew provision is designed totake into account consumer

contracts concluded through aninteractive website accessible inthe state of the consumer’sdomicile. Knowledge of goodsor services acquired by a con-sumer through a passive websiteaccessible in his home state willnot be sufficient.

The removal of the require-ment that the consumer take thenecessary steps to conclude thecontract in his home state is alsomeant to take electronic com-merce into account. In the case ofcontracts concluded through aninteractive website, it may be dif-ficult or impossible to determinewhere the steps necessary to con-clude the contract were taken.

Some concern has beenexpressed over this proposedwording by those involved inelectronic commerce. Theyargue that parties engaged inelectronic commerce will beexposed to potential litigation ineach Member State or they willhave to specify that their prod-ucts or services are not intendedfor consumers domiciled in cer-tain Member States. The com-mission held a hearing of inter-ested parties on this recently.However, no further amendmenthas yet been proposed.

Article 13 excluded transportcontracts from its scope. Theregulation retains this exclusionbut makes it clear that packageholidays do come within thescope of the consumer protec-tion.

Employment contracts.These jurisdictional rulesremain the same. However,they are taken from articles 5and 17 and grouped together inarticles 18-21 of the regulation.

Jurisdiction agreements.As with article 17 of the con-vention, article 23 of the regu-lation allows the parties tochoose the jurisdiction of a cer-tain court and then gives thatcourt exclusive jurisdiction.However, the regulation allowsparties to agree that a choice offorum clause will not be exclu-sive. It also takes account ofelectronic commerce andallows a jurisdiction clauseagreed by means of electroniccommunication to be a durablerecord on the same basis as awritten jurisdiction clause.

Lis pendens. The conventionprovided that in case where twocourts were seised of the samecause of action, the court firstseised had jurisdiction. This ledto some uncertainty as the rulesconcerning courts being seisedof an action differed betweenthe common law and civil lawjurisdictions. The regulationattempts to resolve this by pro-viding a definition of the datewhen a court is seised of a mat-ter. Article 30 provides that acourt is seised either where thedocument instituting the pro-ceedings is lodged with thecourt or if the document has tobe first served before being

lodged, when the serverreceives the document forservice (that is, when a sum-mons is issued).

Recognition and enforce-ment of judgments. Theregulation attempts to makethe recognition and enforce-ment mechanisms for foreignjudgments faster. It providesfor a uniform certificate con-taining certain basic informa-tion to accompany judgments.The court asked to enforcethe judgment cannot entertainthe grounds for non-enforce-ment of its own motion. Thejudgment debtor must raisethese.

Defences to recognitionand enforcement. The scopeof the defences has beensomewhat narrowed. A for-eign judgment must now be‘manifestly’ contrary to publicpolicy rather than being con-trary to it. This defence hadbeen interpreted narrowly andis now likely to be even morenarrowly interpreted.

Renumbering. As a conse-quence of the deletion of cer-tain articles in the regulationand the addition of some newones, there is some renumber-ing in the regulation. This ismost significant in the recog-nition and enforcement provi-sions.

TP Kennedy is the Law Society’sDirector of Education.

G

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Recent developments in European lawCONSUMER PROTECTION

Package holidaysCase C-140/97 Rechberger andOrs v Republic of Austria, judg-ment of 15 June 1999. MrRechberger was a subscriber tothe Austrian daily newspaperNeu Kronenzeitung. InNovember 1994, he received aletter from the publisherinforming him of an offer fromthe travel organiser Arena-Club-Reisen of a ‘free’ four orseven-day trip to one of fourEuropean destinations. Theoffer was a loyalty reward forsubscribers. Persons travellingwith subscribers had to pay aprice specified in the brochureand subscribers travelling alonehad to pay a single room sup-plement of ATS 500. All sub-scribers accepting the offer hadto pay a deposit and settle thebalance before the departuredate. The offer was far moresuccessful than anticipated.The consequence of this wasthat the organiser applied inJuly 1995 for bankruptcy pro-ceedings to be initiated. Inaddition, this advertising cam-paign was held by the AustrianSupreme Court to be incom-patible with national competi-tion laws. Bookings had beenmade between 19 November1994 and 12 April 1995. Ineach case the travel costs hadbeen paid in advance. Thetrips, which should have takenplace between 10 April and 23July 1995, were cancelled.Under the 1990 Directive onpackage holidays, every travelorganiser must provide ‘suffi-cient evidence of security forthe refund of money paid overand for the repatriation of theconsumer in the event of insol-vency’ (article 7). Austriashould have implemented thedirective by 1 January 1995. In1994, it adopted a decree intro-ducing a requirement for travelorganisers to obtain insurance

cover or provide a bank guar-antee. The value of the guaran-tee required was to be at least5% of a reference turnover.The decree applied to all pack-age holidays booked after 1January 1995 with a departuredate of 1 May 1995 or later. Forthree of the subscribers whobooked their holidays in 1994,there was no guarantee sincethe decree only applied topackage holidays booked after1 January 1995. For anotherthree who booked after 1January 1995 and were to havetaken their holidays after 1 May1995, their payments were inprinciple covered by a guaran-tee issued in accordance withthe decree. However, the bankguarantee was insufficient toreimburse the travel costs paid,as the final level of cover wasonly 25.38% of the amountpaid. The six subscribersbrought an action againstAustria to recover the fullamount they had paid, arguingthat Austria was liable for itsfailure to implement the direc-tive in good time and in full.

The ECJ held that the direc-tive applied to the trips in ques-tion. The purpose of the direc-tive is to protect consumersagainst the risks arising fromthe insolvency or bankruptcy ofpackage travel organisers.These risks are inherent inpackage holiday contracts.They arise as the price of thepackage is paid in advance andfrom the spreading of responsi-bilities between the organiserand the various providers of theservices comprising the pack-age. The consumer enjoysrights guaranteeing him thereimbursement of money paidover and his repatriation in theevent of the insolvency orbankruptcy of the organiser.The subscribers were exposedto precisely those risks againstwhich the directive is designedto afford protection. The ECJthen moved on to examine the

issue of state liability. It heldthat an implementing provisionthat afforded protection to hol-idaymakers departing on 1 May1995 (rather than 1 January1995 as required) was incom-patible with the directive andwas a sufficiently seriousbreach of EC law. However, theprotection in the directive doesnot extend to travel agreementsentered into before the date forimplementation of the direc-tive. The court also pointed outthat the directive imposed anobligation to protect con-sumers against all risks men-tioned and found that theAustrian arrangements limitingthe amount of guarantee wereinadequate. The directive seeksto guarantee package holiday-makers reimbursement of theirmoney and repatriation in theevent of the travel organiser’sinsolvency. Thus, a MemberState cannot argue imprudentconduct on the part of the trav-el organiser or the occurrenceof exceptional or unforeseeableevents to avoid liability.

EMPLOYMENT

EqualityThe commission is proposingnew measures to fight discrimi-nation. These proposals are dueto be published next year. Theirobjective will be to outlaw dis-crimination in the workplace ongrounds of sex, racial or ethnicorigin, religion or belief, disabil-ity, age or sexual orientation.

ESTABLISHMENT

Case C-254/97 Société Baxterand Ors v Premier Ministre, judg-ment of 8 July 1999. SociétéBaxter and a number of otherFrench undertakings exploitproprietary medicinal products.They are subsidiaries of compa-nies whose seat is located inMember States other thanFrance. On 24 January 1996, anorder of the French

Government introduced ‘urgentmeasures for restoring financialstability in the social securitysystem’. The order providedthat pharmaceutical laboratoriesmust pay a special levy based onthe pre-tax turnover achieved inFrance between 1 January 1995and 31 December 1995 in reim-bursable proprietary medicinalproducts and medicinal prod-ucts approved for use by publicauthorities. Article 12 of theorder allowed the undertakingsconcerned to deduct from theamount of that levy the costscorresponding for the sameperiod to expenditure on scien-tific and technical expenditurecarried out in France. Baxterand the other undertakingschallenged that provision beforethe Conseil d’Etat. It referred aquestion to the ECJ on thecompatibility of such a provi-sion with Community law.

The ECJ observed that theprinciples of freedom of estab-lishment enables business to becarried on through branches,agencies or subsidiaries whoseseats are located in otherMember States. The court alsoreferred to its own case law,which prohibits, in the name ofequality of treatment, all formsof discrimination by reason ofnationality, or in the case of acompany, its seat. The particu-lar allowance only took accountof expenditure on research car-ried out in the Member State oftaxation. The French govern-ment justified this as necessaryto enable the tax authorities toascertain the nature and gen-uineness of the research expen-diture. The court held that inthis case effectiveness of fiscalsupervision was not capable ofjustifying a restriction on theexercise of fundamental free-doms. National legislationabsolutely preventing the sub-sidiaries from submitting evi-dence that their research carriedon in other Member States wasactually undertaken, when doc-

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umentary evidence could beproduced, cannot be justifiedon the basis of effective fiscalsupervision. Thus, the tax pro-vision in question was not com-patible with Community law.

FREE MOVEMENT OF GOODS

Case C-394/97 CriminalProceedings against SamiHeinonen, judgment of 15 June1999. Finland bans imports ofalcohol on the part of Finnishresidents who return from astate outside the EuropeanEconomic Area where the jour-ney has not lasted more than 20hours and was by a means oftransport other than air. Theserestrictions had been abolished.However, there was a sharp risein alcohol consumption and themeasures were re-introduced.Mr Heinonen, a Finnish resi-dent, travelled to Tallinn(Estonia). On his return, cus-toms authorities confiscated 19cans of beer and imposed a fine.The ECJ pointed out that thetreaty does allow prohibition orrestriction of certain imports ongrounds of public morality, pub-lic policy, public security or pro-tection of the health and life ofhumans. The Finnish campaignagainst the rise in alcohol con-sumption came within the scopeof these defences. The ECJ heldthat the Finnish measure wasproportionate to the objectivepursued.

Case C-412/97 ED Srl v ItaloFenocchio, judgment of 22 June1999. ED Srl is an Italian com-pany. It supplied goods to MrFenocchio, a resident of Berlin.He had paid a deposit but did

not pay the balance remainingfor the goods. ED applied to theItalian courts for a summarypayment order in respect of theoutstanding sum with interestand costs. Italian law preventsuse of this process where adefendant lives abroad. This isjustified to avoid default judg-ments of which a foreign defen-dant would be unaware. TheECJ held that such a measurewas compatible with article 29.The possibility that vendorswould be reluctant to sell goodsto purchasers in other states wastoo uncertain and indirect forthe measure to be regarded asliable to hinder trade betweenMember States.

INTELLECTUAL PROPERTY

CopyrightThe commission has put for-ward an amended proposal for adirective on copyright and relat-ed rights. The directive wouldapply to copyright protection, inparticular reproduction right,communication to the publicright, distribution right andlegal protection of anti-copyingand rights management systems.The amended proposal includesthe majority of the amendmentsproposed by the EuropeanParliament.

TrademarksCase C-342/97 Lloyd Schuhfab-rik Meyer & Co GmbH v KlijsenHandel BV, judgment of 22 June1999. Lloyd has manufacturedand distributed shoes since 1927using the trademark ‘Lloyd’. Itowns a number of word and pic-ture trademarks registered inGermany, incorporating the

word ‘Lloyd’. Klijsen also man-ufactures and distributes shoes,using the trademark ‘Loint’s’since 1970 in the Netherlandsand since 1991 in Germany.Lloyd sought an order restrain-ing Klijsen from using ‘Loint’s’for shoes and footwear inGermany as it could be con-fused with its trademark. Itargued that this contravenedarticle 5(1)(b) of Directive89/104/EEC. This prohibitsthe use of trademarks, whichcan lead to the likelihood ofconfusion with another trade-mark. The ECJ held that therewas a likelihood of confusion.The court held that it was diffi-cult to establish binding rulesfor setting out situations likelyto cause confusion. The likeli-hood of confusion has to beassessed taking into account allthe circumstances of a particu-lar case. A global assessmentinvolves interdependencebetween relevant factors. Theseinclude similarity betweengoods or services or betweentheir trademarks.

Marks with a highly distinc-tive character enjoy greater pro-tection than those that are lessdistinctive. Global appreciationof the likelihood of confusion inrelation to the visual, aural orconceptual similarity of themarks is based on the overallimpression created by themarks. The likelihood of confu-sion is based on the impressionon the average consumer of thecategory of products concerned.

TAXATION

VATCase C-158/98 StaatssecretarisVan Financiën v Coffeeship

Siberie vof, judgment of 29 June1999. The Dutch tax authori-ties had sent a demand for pay-ment of VAT to a proprietor ofa coffeshop in Amsterdam whorented a table to a dealer whosold soft drugs.

He argued that renting atable to a supplier involvedcomplicity in a criminal offenceand was thus not subject toVAT. The Dutch tax authoritiesargued that making available aplace of sale was a supply ofservices within the scope ofarticle 2 of the sixth directiveand was subject to turnover tax.The ECJ held that the princi-ple of fiscal neutrality preventsany general distinction in thelevying of VAT as between law-ful and unlawful transactions.The fact that conduct amount-ed to an offence was not suffi-cient to justify exemption fromVAT.

The exemption only applieswhere, owing to the specialcharacteristics of certain prod-ucts or certain services, anycompetition between a lawfuleconomic sector and an unlaw-ful sector is precluded.

The unlawful nature of theactivities does not alter the eco-nomic character of the rentingand does not prevent competi-tion between lawful and unlaw-ful activities. However, its ear-lier decision in Case 289/86Happy Family v Inspecteur DerOmzetbelasting ([1988] ECR3655) still stands. In that case,the court had held that VATcould not be collected on thesale of narcotic substances asbecause of their very naturethey are subject to a total pro-hibition on marketing in allMember States. G

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People and places


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New DeputyDPP namedBarry Donoghue, Chairman ofthe Law Society’s Criminal LawCommittee, has been appointedDeputy Director of PublicProsecutions. Donoghue hasbeen a senior officer in theDPP’s Office since 1992. Priorto that, he worked in the ChiefState Solicitor’s Office, wherehe was head of the DistrictCourt section for four years.He has served on the CriminalLaw Committee since itsestablishment in 1991 and isalso vice-president of theCorporate and Public ServicesSolicitors’ Association.

A SADSI kind of day: Pictured at the SADSI education day Bridging the gapevent held in Blackhall Place last November are (left to right) EthnaMcDonald, Judge John Blayney, Eugene McCague, Louise Gallagher, BarryLyons and Jane Farren

Council of the Law Society of Ireland 1999/2000 (Front row) Elma Lynch, Past President Francis D Daly, Immediate Past President Patrick O’Connor, Director General Ken Murphy, President AnthonyEnsor, Senior Vice-President Ward McEllin, Geraldine Clarke, Past President Laurence K Shields, Past President Moya Quinlan, and Gerard Griffin;(second row) Niall Farrell, Anne Colley, John P Shaw, Orla Coyne, Sean Durcan, Patrick Casey, Maeve O’Driscoll, Brian Sheridan, John Costello, and PeterAllen; (third row) Donald Binchy, Kevin O’Higgins, John Harte, Philip Joyce, John Fish, Hugh O’Neill, David Bergin, Walter Beatty, Simon Murphy, JamesMacGuill, Keenan Johnson, and John D Shaw; (back row) Michael Irvine, David Martin, Michael Peart, Tom Murran, James McCourt, Stuart Gilhooly, andJohn O’Connor

LadySolicitors’Golf SocietyOver 60 members of theLady Solicitors’ Golf Societyteed off at the society’sautumn outing, held at KilkeaCastle Golf Club lastSeptember. The results wereas follows: first, PaulineBurke, H/C 27, 39 points (onback 9); second, BredaO’Malley, H/C 37, 39 points;gross, Elaine Anthony, H/C12, 24 gross points; third,Mary Ronayne, H/C 20, 37points; visitor’s prize, BrendaGearty, H/C 14, 31 points;Sheila O’Gorman Trophy,Yvonne O’Gara, H/C 37, 34points (on back 9); first 9,Eimear Cowhey, H/C 24, 22points; second 9, MaryMolloy, H/C 13, 20 points.The incoming lady captainfor the year 2000 is GeraldineLynch Burke, who can becontacted at AC Forde & Coon 01 660 7522. Details ofthe society’s spring outingwill be circulated shortly.

Showing off their sheepskins: Graduates display the fruits of theirlabours after the recent parchment ceremony

People and places


58

On a bright and sunnyafternoon last May, over

500 runners and walkersgathered at Blackhall Place forthe inaugural Calcutta Runover a 10-kilometre course.Solicitors and staff from manyof Dublin’s best-known firmstook part in the run, togetherwith their friends, clients andanyone else who could bepersuaded to tackle the course.The proceeds raised went tohelp homeless children athome and abroad.

Thanks to the efforts of themany volunteers who helpedwith the preparation and onthe day – and, of course, thegreat work of all the partici-pants who took part and raisedthe sponsorship – more than£60,000 was raised, which wasa fantastic achievement. Themoney went to help fundGOAL’s project for streetchildren in Calcutta and FrPeter McVerry’s AruppeSociety, which providesaccommodation for homelessteenagers here in Ireland.

The day itself was a greatsuccess. The starting pistolwas fired by Mr JusticeFeargus Flood and the runnerswere cheered on by formerworld snooker champion KenDoherty. After startingstrongly and opening up alead, Pat O’Connor, then-

President of the Law Society,was reeled in by the chasingpack as he turned intoBenburb Street. The firstrunners arrived home in afantastic time of just over 32minutes, and over the next 45minutes or so a procession oftired limbs and smiling facescontinued through the finishline at Blackhall Place. Mostrunners proceeded to undotheir good work at a mostenjoyable post-run barbecue inthe Law Society grounds.

This year’s run will takeplace in the Law Society onSunday 21 May. We arehoping for an even bigger andbetter event, with lots morerunners and lots more moneyraised for charity. If you tookpart last year, run again – andthis year recruit a newparticipant. We are alsolooking for people who willorganise and recruit withintheir own firms or perhapsamong firms in their localarea. We would love to havesolicitors from all over thecountry take part and not justDublin. The run is notconfined to those from theDublin area and groups fromnon-law firms will also beheartily welcomed. For furtherinformation, contact AlanRoberts, tel: 01 649 2000, e-mail: [email protected].

Calcutta Run 2000

Honouring their own: Suzanne Johnston of Osborne Recruitment andKeith Walsh, chairman of the NUI Galway Law alumni, present pastgraduate Patrick O’Connor with an award marking his achievements asthe President of the Law Society 1999. The occasion was a receptioncommemorating the 150th anniversary of the enrolment of the first lawstudent in what was then Queen’s College Galway

Off to a good start: Tanya Sheridan accepts the 1999 Tormey & CoScholarship from Denis Naughten TD as Tormey principal Barra Flynnlooks on. Each year the prize goes to an outstanding post-primarystudent who plans to pursue a career in law

The measure of a man: Immediate Past President Pat O’Connorsizes up Hugh O’Neill and Gerry Doherty at his OutgoingPresident’s Dinner at the Law Society in December

Game for a laugh: Law Society President Anthony Ensor amusesAndrew F Smyth, Gerald Hickey and Don Binchy at the OutgoingPresident’s Dinner for Patrick O’Connor

Outgoing President’s Dinner


59

Law School news

There are a number of prizesavailable for the top

performers in subjects on theprofessional and advancedcourses. Some of these prizeshave a long history, while othersare of more recent vintage.Over the last year, there havebeen a number of prize awards.

AIB Conveyancing PrizeAIB Bank, which has beensponsoring Law Societyexaminations since the early1980s, makes an award to thestudent who achieves thehighest mark in applied landlaw on a professional practicecourse in any calendar year. Forcourses which took place during1998, the prize was awarded toNoreen O’Neill.

The Law Society makes twoawards to the students whoachieve the second and third-highest marks in applied landlaw on a professional practicecourse in a calendar year. Forcourses which took place during1998, awards were made toVictoria Cheung, who wasplaced second, and to MariaHurley, who came third.

Guinness & Mahon Tax PrizeGuinness & Mahon Bank,which has an association withthe Law Society going back tothe late 1970s, makes an awardto the student who achieves thehighest mark in capitalacquisitions tax on eachprofessional practice course.Recent prize winners have beenSarah Beckett, Jane Farren,Rowena Fitzsimons andCatherine Pierse.

John B Jermyn PrizeThe John B Jermyn Prize was setup in 1981 by the then-president Moya Quinlan andsolicitor John B Jermyn. TheJohn B Jermyn Prize is awardedon each professional practicecourse to the student whoachieves the highest result inthe wills, probate and

administration of estatesexamination. Recent winners ofthis prize have been:Sinead McNamara (44th course)Maria O’Brien (45th course)Kathryn Campbell (46th course) Elaine Gorman (47th course)Sarah Harte (48th course)Veronica Kelleher and DeirdreMcBennett (49th course).

Gallagher Shatter PrizeGallagher Shatter, Solicitors,sponsor an award for the studentwho achieves the highest mark infamily law on an advanced coursein a calendar year. This prize wasfirst awarded in 1998 toJosephine Deasy who attendedthe 41st course.

Ulster Bank Civil Litigation PrizeUlster Bank is the latest financialinstitution to become involved insponsoring Law Society prizes.

It will make an award to thestudent who achieves the highestmark in the civil litigationexamination on the professionalpractice course.

Findlater ScholarshipThis is one of the oldest prizesand was first awarded in 1888.The Findlater Scholarship isawarded for the best overallperformance on the professionalpractice and advanced courses.The following is a list of some ofthe Findlater Scholarshiprecipients:Sally De Foubert (19th course)John Bourke (20th course)Joseph Fahy (21st course)Declan O’Connell (22nd course)Liam Butler (23rd course)Bryan Bourke (24th course)Margaret McKeogh (25th course)Bridin O’Donoghue (26thcourse)

Law school prizes

Law Society President Anthony Ensor addresses the apprentices gathered in the Presidents’ Hall for theparchment ceremony last December

It’s a cracker: Second-place finalist Gerard Ryan with Helen Harnett,first-place winner of the Findlater Scholarship. The scholarship is givenfor the best overall performance on the professional practice andadvanced courses

AIB Bank Youth Market Co-ordinator Shane O’Neillcongratulates Maria Hurley, whowon a Law Society conveyancingprize for her outstanding gradesin applied land law

Sean Barton (27th course)Sinead Glasgow (28th course)Patrick Cronin & Frances Leahy(jointly) (29th course)Marie Barry (30th course)Bronagh Heverin (31st course)Kenneth Egan (32nd course)Grace O’Mahony (33rd course)Ann Marie Bohan (34th course)Chelita Healy (35th course)Laura Delaney (36th course)Michelle Doyle (37th course)Grainne Butler & Maeve Lynch(jointly) (38th course)Nicola (Helen) McGrath (38thPC & 39th AC)Tara Doyle (39th course)Karen Gibbons (40th course)Deirdre Ann McCarthy (41stcourse)Conor Keaveny (42nd course)Una Woods (43rd course)Michelle McLoughlin (44thcourse)Helen Harnett (45th course). G


60

Apprentices’ page

The Solicitors’ ApprenticesDebating Society of Ireland

( SADSI ) enters its 116thsession as we recover from our own entry into the newmillennium. Like mostsocieties, SADSI’s fortunes have ebbed and floweddepending on the times, itsmembers and its committee.

Despite its name, it is morethan a debating society; it is the apprentices’ society.Apprentices have successfullyused it as a vehicle for changein such areas as the LawSociety’s educational systemand apprentice wages. SADSIhas also organised many balls,career fairs and social events.

As the new auditor ofSADSI, I have been presentedwith the opportunity to reshapethe society into a more open,active and representative body.This can only be achieved withthe assistance of my committeeand the enthusiasm andparticipation of apprentices allover the country.

Apprentice feedback isessential. A major welfare

The SADSI committee with Director of Education TP Kennedy, followingtheir first meeting to discuss the year ahead. (Front row, l-r) RachelMinch, Ann Brennan; (middle row, l-r) Anthony Coomey, Gareth Bourke,Eva Lalor; (back row, l-r) Patrick Bardon, Keith Walsh, TP Kennedy, DavidRyan, David Higgins

SADSI in the year 2000as well as – but not at theexpense of – the regionalcentres.

A cornerstone of the SADSIplan for the coming year is tore-establish SADSI as the pre-eminent debating society in thisjurisdiction. A debating taskforce has been set up under theguidance of Clodagh Beresfordand will set down a strategy forthe coming and future years. Itis intended to revive the fierceKing’s Inns debates of yearsgone by and to challenge theNorthern apprentices. Moottrials and international debateswill also take place. Thedebating year begins with themaiden speakers’ debate on 24February. This event is open toall apprentices who have notpreviously debated in the LawSociety, not just those on theprofessional courses.

I would like to welcome eachand every apprentice to the116th session of SADSI andlook forward to meeting you atthe various events around thecity and country.

Keith Walsh

Interviewing competition SADSI Committee 2000Auditor: Keith Walsh, Anthony Harris & Co, DublinVice-auditor & welfare officer: Gareth Bourke,

Patrick J Durcan & Co, MayoHonorary secretary: Eva Lalor, Orpen Franks, DublinHonorary treasurer: Patrick Bardon, Black & Co, DublinPublic relations officer: Ann Brennan,

Crowley Millar & Co, Dublin Western representative: David Higgins,

Geoffrey Browne & Co, GalwaySouthern representative: Anthony Coomey,

PJ O’Driscoll & Sons, CorkLimerick & Midland representative: David Ryan,

Breen Geary McCarthy & Shee, LimerickDublin representatives: Rachel Minch,

McCann FitzGerald, DublinKeith Smith, Arthur Cox, Dublin

Ex-officio membersDebating task force co-ordinator:

Clodagh Beresford, Actons, DublinDrama co-ordinator:

Ronan O’Brien, Garrett Sheehan & Co, Dublin

survey has been prepared by thevice-auditor and welfare officer,Gareth Bourke, and question-naires will be circulated to allapprentices in February.Another forum for feedback isthe SADSI website, whichshould be on-line by mid-February.

SADSI is not just a societyfor apprentices in Dublin; it is a

society for apprentices all overthe country. SADSI regionalevents, sponsored by the UlsterBank, are planned for Galway,Cork, Limerick, the midlandsand north-east and west during the year. As 67% ofapprentices are indenturedhere, Dublin will not beneglected. There will be amplesocial provision for the capital

The final rounds of theinterviewing competition

were held just beforeChristmas. The interviewingteam were very impressed withthe quality of interviewingskills displayed by the students.Unfortunately, this madechoosing the top three anonerous task.

After much soul-searching,three winners suggestedthemselves: Clodagh Beresford,Gareth Bourke and EmerO’Sullivan. They’ll go forwardto represent the Law Society inthe International clientcounselling competition to be heldin Queen’s University Belfastbetween 5 and 8 April.

SADSI events: February 2000Monday 14 ‘Welcome to the professional course’ drinks

reception at Griffith College for the 53rd, 54th and 55th courses

Thursday 17 Reception and promotion for in-officeapprentices in Dublin; secret venue (not ChiefO’Neills), to be revealed early February

Thursday 24 Drinks reception and SADSI maiden speakers’debate, the Presidents’ Hall, Blackhall Place

Friday 25 Western apprentices social gathering inGalway City (venue to be announced)

Professionalinformation


61

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 someperson other than the registeredowner. Any such notification shouldstate the grounds on which the cer-tificate is being held.(Register of Titles), Central Office,Land Registry, Chancery Street,Dublin (Published 4 February 2000)

Regd owner: John Tobin (deceased);Folio: 7065F, 7063F and 7070F;Lands: Seskinnamadra andBarony of Idrone East; CoCarlow

Regd owner: Patrick Gibney,Springhall, Oldcastle, Co Meathand Bahernagh, Ryefield,Virginia, Co Cavan; Folio: 12872;Lands: Behernagh; Area: 15.118acres; Co Cavan

Regd owner: Thomas Tully,Castleterra, Ballyhaise, CoCavan; Folio: 25630; Lands:Castletiterra and Drumohan;Area: 26.919 acres; Co Cavan

Regd owner: John Masterson,Coragh Glebe, Killeshandra, CoCavan; Folio: 20971; Lands:Coragh Glebe; Area: 36.06 acres;Co Cavan

Regd owner: Patrick Gerard Hillery,Main Street, Miltown Malbay, CoClare; Folio: 12532; Co Clare

Regd owner: Joseph B Halpin,Ballinooskny; Folio: 8044; Lands:Townland of Ballinooskny andBarony of Bunratty Lower; Area:0.785 hectares; Co Clare

Regd owner: Kathleen O’Connell;Folio: 49947; Lands: Known as aplot of ground situate in theTownland of Ballycurreen and theBarony of Cork; Co Cork

Regd owner: William Twomey;Folio: 47612; Lands: Known as aplot of ground situate in theTownland of Ballinaspig Beg andthe Barony of Cork; Co Cork

Regd owner: Daniel Carroll andElizabeth Carroll; Folio: 34730F;Lands: Known as a plot of groundsituate in the Townland ofCarrigrohane and the Barony ofCork; Co Cork

Regd owner: Michael Malone;Folio: 44672; Lands: Known as aplot of ground situate in theTownland of Farran and theBarony of East Muskery in the

ADVERTISING RATES

All advertisements must be paid for prior to publication. Deadline for MarchGazette: 18 February 2000. For further information, contact CatherineKearney or Louise Rose on 01 672 4828

• Lost land certificates – £30 plus 21% VAT (£36.30)• Wills – £50 plus 21% VAT (£60.50)• Lost title deeds – £50 plus 21% VAT (£60.50)• Employment miscellaneous – £30 plus 21% VAT (£36.30)

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GazetteLawSociety

County of Cork; Co CorkRegd owner: Thomas Cavanagh;

Folio: 29726F; Lands: Known asa plot of ground situate in theTownland of Lissanisky and theBarony of Barrymore in thecounty of Cork; Co Cork

Regd owner: Thomas Doherty,Toulett, Speenogue, Burt, CoDonegal; Folio: 8135; Lands:Toulett; Area: 61.238 acres; CoDonegal

Regd owner: St Columba’s DiocesanTrust, Ard Adhamhnain,Letterkenny, Co Donegal; Folio:3646F; Lands: Ballybofey; Area:0.163 acres; Co Donegal

Regd owner: Margaret Murtagh(deceased), 57 Glencloy Road,Whitehall, Dublin 9; Folio:29535L; Lands: Glencloy Roadand situate in the county boroughof Dublin; Co Dublin

Regd owner: John and Anne Fallon;Folio: 41742L; Lands: Propertysituate in the Townland ofTempleogue and Barony ofUppercross; Co Dublin

Regd owner: Una Lawless; Folio:12926; Lands: Townland ofOldcourt and Barony ofUppercross; Co Dublin

Regd owner: Aidan McCaffrey andTeresa McCaffrey, c/oMacDermot and Allen, Solrs, 10St Francis St, Galway; Folio:1662L; Co Galway

Regd owner: Frances Noone,Devon Park, Salthill, Galway;Folio: 42434; Lands: Townland ofClogatisky and Barony ofGalway; Area: 0a 1r 0p; CoGalway

Regd owner: William O’Sullivan;Folio: 11974F; Lands: Townlandof Ranalough and Barony ofTrughanacmy; Co Kerry

Regd owner: Patrick and PatriciaLynch; Folio: 32126; Lands:Townland of Shanakill andBarony of Trughanacmy; CoKerry

Regd owner: T Horan and SonsLtd; Folio: 21415 and 31893;Lands: Townland of Castleviewand Barony of Trughanacmy;Area: 25 perches (21415); 2 acres1 rood 7 perches (21893); CoKerry

Regd owner: Michael Scanlon;Folio: 5322F; Lands: Townlandof Ballynabrennagh Lower andBarony of Trughanacmy; CoKerry

Regd owner: Bridget Dullard; Folio:1415; Lands: Ullid and Barony ofIverk; Co Kilkenny

Regd owner: Thomas Madigan;Folio: 9805F; Lands: JerpointAbbey and Barony of Gowran;Co Kilkenny

Regd owner: Nicholas Mulhall(deceased); Folio: 1858; Lands:Balllehane Lower and Barony of

Ballyadams; Co LaoisRegd owner: Margaret McGrath;

Folio: 2737; Lands: Closeland orCloneen and Barony ofPortnahinch; Co Laois

Regd owner: Michelle Hartigan;Folio: 3689L; Lands: Townlandof Sluggary and Barony ofPubblebrien; Co Limerick

Regd owner: Dermot and ThomasHoward; Folio: 22271; Lands:Townland of Ballinvreena andBarony of Coshlea; Co Limerick

Regd owner: Irish Shell Limited;Folio: 22393; Lands: Townland ofCourtbrack and Barony ofPubblebrien; Co Limerick

Regd owner: John Mulvihill,Cornadough, Newtowncashel,Co Longford; Folio: 12406;Lands: Carrow More, CarrowBeg; Area: 81.644 acres; CoLongford

Regd owner: Matthew C Mullen;Park Street, Dundalk, Co Louth;Folio: 11973; Lands:Haggardstown; Area: 0.425 acres;Co Louth

Regd owner: Patrick McCormack,98 Creeneen (Craobhin) Park,Balbriggan, County Dublin;Folio: 11759; Lands:Sarsfieldstown; Area: 23.056

acres; Co MeathRegd owner: Bernard and Eileen

Downes, Bogganstown,Drumree, Co Meath; Folio: 2747;Lands: Bogganstown; Area: 1.860acres; Co Meath

Regd owner: Patrick Togher, Drum,Binghanstown, Co Mayo, andBerrillstown, Tara, Co Meath;Folio: 20317; Lands:Berrillstown, Branstown; Area:36.469 acres; Co Meath

Regd owner: Joseph Clinton,Drakerath, Kells, Co Meath;Folio: 17467F; Lands: Drakerath;Area: 50.381 hectares; Co Meath

Regd owner: Patrick Creavin, 5O’Growney Terrace, Navan, CoMeath; Folio: 13032F; Lands:Abbeylands; Co Meath

Regd owner: Eamonn McGovern(deceased), Grangebeg, Skreen,Co Sligo; Folio: 17701; Co Sligo

Regd owner: Michael Deane; Folio:33253; Lands: Caherhoereighand Faddan More and Barony ofOrmond Lower; Co Tipperary

Regd owner: Martin Kearney(deceased) and Evelyn Kearny;Folio: 12501; Lands: Cloran Oldand Barony of Middlethird; CoTipperary

Regd owner: William and Breda

PROBATE &SUCCESSION

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Charter House, 2 Farringdon Road, London EC1M 3HN Fax: +44 020 7549 0949 DX: 53347 Clerkenwell Email: [email protected] www.title-research.com

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62

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) 8725622 Fax: (01) 8725404

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

Newry, County Down.Tel: (0801693) 65311Fax: (0801693) 62096E-mail: [email protected]

LOST A WILL?TRY THE

REGISTRY OF WILLSSERVICE

Tuckey’s House,8, Tuckey Street,

CORK.

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

Dx No: 2534 Cork Wst

Delahunty; Folio: 40415; Lands:Loughlohery and Barony of Iffaand Offa West; Co Tipperary

Regd owner: Rory Kirwan (other-wise Roger Kirwan); Folio:3104F; Lands: Townland ofKilnafrehan Middle and Baronyof Decies without Drum; CoWaterford

Regd owner: Edmund Power; Folio:1871; Lands: Townland ofLisselty and Barony of Gaultiere;Co Waterford

Regd owner: Michael Aherne;Folio: 12145F; Lands: Townlandof Kilmore West and Barony ofCoshmore and Coshbride; CoWaterford

Regd owner: James Moran,Bunavalley, Athlone, CoWestmeath; Folio: 19811; Lands:Magher-Anerla; Area: 0.219acres; Co Westmeath

Regd owner: Thomas Butler,Cornamaddy, Athlone, CoWestmeath; Folio: 5037; Lands:Cornamaddy; Area: 3.306 acres;Co Westmeath

Regd owner: William Corish(deceased); Folio: 19647; Lands:Ballymoney Lower and Barony ofBallaghkeen North; Co Wexford

Regd owner: Anastasia and ThomasO’Loughlin; Folio: 20053; Lands:Parknacross and Barony ofBallaghkeen North; Co Wexford

Regd owner: Mary Nolan; Folio:1523; Lands: Oulartard andBarony of Scarawalsh; CoWexford

Regd owner: Henry Thackaberry;Folio: 3479F; Lands: Scarawalshand Barony of Ballysimon; CoWexford

Regd owner: Angela Molloy; Folio:2176F, 12839, 12840; Lands:Grange and Barony of Shelburne;Co Wexford

Regd owner: William and IreneO’Connor; Folio: 568F; Lands:Ballyregan and Barony ofScarawalsh; Co Wexford

Regd owner: Patrick and RitaGavan; Folio: 18165F; Lands:Borleagh and Barony of Gorey;Co Wexford

WILLS

Bardsley, Kevin (deceased), late of3 Dargle Lodge, Knocklyon,Tempelogue, Dublin 16, and 4aAshfield, Templeogue Road, Dublin6W. Would any person havingknowledge of a will executed by theabove named deceased who died on11 February 1999, please contactCogan-Daly & Company,Solicitors, Brighton House, 50Terenure Road East, Rathgar,Dublin 6, tel: 01 4903394, fax: 01 4903190

Bolger, Edward James ofKnockgreaney, Coolgreaney, Gorey,Co Wexford, otherwise JamesEdward, otherwise Eamon and oth-erwise of Ferrybank, Arklow, CoWicklow and otherwise of 7Scotthall Row, Leeds, England.Would any person having knowl-edge of a will executed by the abovenamed deceased who died on 28September 1999, please contact CJLouth & Son, Solicitors, Ferrybank,Arklow, tel: 0402 32809, reference:Cathal Louth

Donnellan, Mary (deceased) (néeKeenan), late of 21 Sherlock Terrace,Skerries, Co Dublin. Would any per-son having knowledge of an originalwill of the above named deceasedwho died on 20 August 1999, pleasecontact MA Regan McEntee &Partners, Solicitors, High Street,Trim, Co Meath, tel: 046 31202, fax:046 31932

Dunne, Vincent (deceased), late of42 Santry Close, Santry, Dublin 9.Would any person having knowl-edge of an original will of the abovenamed deceased who died on 25November 1999, please contactVivien Haverty, Irishtown,Mountmellick, Co Laois

Kennelly, Niall (deceased), late of94 New Ireland Road, Rialto,Dublin 8, and formerly of HomeCottage, Redstone Hill, SurreyRH1 4AW, England. Would anyperson with any knowledge of awill executed by the above nameddeceased who died on 16 May1999, please contact Ferrys,Solicitors, of 443 South CircularRoad, Rialto, Dublin 8, tel: 014544275, fax: 01 4536911

Malone, Catherine (otherwiseKitty), late of 25 John Street,Kilkenny. Would any person withany knowledge of a will executed bythe above named deceased whodied on 23 May 1999 at StColumba’s Hospital, Thomastown,Co Kilkenny, please contactKearney Roche & McGuinn,Solicitors, 9 The Parade, Kilkenny,tel: 056 22270, fax: 056 63298

Murphy, Michael Jnr (deceased),late of Rearour, Aherla, Co Cork.Would any person having knowl-edge of a will executed by the abovenamed deceased who died on 16October 1999, please contact M/sCollins, Brooks & Associates,Solicitors, 7 Rossa Street, Clonakilty,Co Cork, tel: 023 33332 (REF: RC)

O’Flaherty, Thomas (deceased),late of Mansize Kennels Limited,Seatown Road, Swords, Co Dublin.Would any person having knowl-edge of a will of the above nameddeceased who died on 25November 1999, please contactNiall Corr & Company, Solicitors,32 Malahide Road, Artane, Dublin5, tel: 01 8312838, fax: 01 8316320

O’Sullivan, Peter (deceased), for-merly of 1 Johnstown,Walkinstown, and late of RosarioNursing Home, Ferrybank,Waterford. Would any person hav-ing knowledge of the whereaboutsof a will dated 7 January 1992 withcodicil dated 3 March 1992 execut-ed by the above named deceasedwho died on 27 October 1997,please contact M/s T Kiersey &Co, Solicitors, 17 Catherine Street,Waterford, tel: 051 874366

Vernon, John (deceased), late of 1Elm Court, Merrion Road, Dublin.Would any person having knowl-edge of the administration of theestate of the above named deceased

who died circa 1998, please contactMcEntee & O’Doherty, Solicitors,20 North Road, Monaghan, tel: 04782088, fax: 047 83486

EMPLOYMENT

Solicitor seeks flexible (possiblypart-time) hours preferred inDublin City. Two years’ PQE, widevariety of legal experience, comput-er literate. Will work flexible hoursdepending on work demand. Pleasecontact Box No 10 for a CV

PA secretary required for solepractitioner in Fitzwilliam area.Microsoft Word experience andsome legal experience essential.Excellent salary for suitable candi-date. Commencement date foremployment is flexible. Reply toBox No 11

Newly or recently-qualifiedsolicitor with ability to work onown initiative required for busygeneral practice. Applications toJohn V Glynn, Principal, M/sPatrick Hogan & Co, Ballinasloe,Co Galway

Recently-qualified solicitorrequired for practice in CountyLimerick. Reply to Box No 12

Assistant solicitor required forNorth County Dublin practice.Please send CV to Patrick WMcGonagle & Co, Solicitor, NorthStreet, Swords, Co Dublin

Assistant solicitor required forvibrant, technologically-efficientgeneral practice in Mullingar, CoWestmeath. Might suit newly orrecently-qualified solicitor who hasdealt with all aspects of generalpractice to include conveyancing,litigation, probate, family law etc.Immediate position available. Applyto Box No 13 with full details andCV

Solicitor required for busy Ennispractice. Two to four years’ PQE –must have experience in conveyanc-ing, probate, taxation. Modernoffice, attractive terms for suitablecandidate. Apply in confidence toM Cashin of M Cashin &Associates, 3 Francis Street, Ennis,Co Clare

Solicitor required for West Corkpractice – salary in accordance withexperience. Reply to Box No 14

Solicitor South County Dublinseeks merger or other arrangement.Might suit young solicitor or firmwishing to expand. Reply to BoxNo 15



63

James Hyland and Company

FORENSICACCOUNTANTS

26/28 South Terrace, CorkPhone (021) 319 200Fax: (021) 319 300

Dublin Office:Carmichael House

60 Lower Baggot StreetDublin 2

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

E-mail: [email protected]

Experienced solicitor seeks part-time position in north side ofDublin or city centre – conveyanc-ing/probate. Reply to Box No 16

Solicitor, recently qualified, seekswork, two to three days a week;North Dublin/South Meath. Replyto Box No 17

Litigation solicitor requiredimmediately for South Dublinoffice. Must have experience inplaintiff/defence work; excellentsalary and benefits. Apply in strictestconfidence with full CV to BrensonLawlor & Co, Argyle Square,Morehampton Road, Dublin 4.REF: PF

Solicitor required with experiencein conveyancing/probate; attractivesalary package and opportunities forsuccessful candidate. Reply instrictest confidence to DelahuntyO’Connor & Co, Solicitors, 179Crumlin Road, Dublin 12

For all the top legal jobs!www.osbornerecruitment.ie

Solicitor IT/Intellectual Prop, D7!Super young growing firm! Ph Gina@ OSBORNE 6628686/fx6628689/email [email protected] PA for Partner c£21-23K!Lots of scope to progress! D2! phGina @ OSBORNE 6628686/fx6628689/email [email protected]

MISCELLANEOUS

Northern Ireland solicitors pro-viding an efficient and comprehen-sive legal service in all con-tentious/non-contentious matters.Dublin-based consultations andelsewhere. Fee apportionment. MLWhite, Solicitors, 43-45 MonaghanStreet, Newry, County Down, tel:080 1693 68144, fax: 080 169360966

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

Personal injury claims, employ-ment, family, criminal and propertylaw specialists in England andWales. Offices in London (WoodGreen, Camden Town andStratford) and Birmingham. One ofour staff is in Ireland for one week inevery month. Legal aid available toclients that qualify. Contact DavidLevene & Co at Ashley House,

235-239 High Road, Wood Green,London N22 8HF, England, tel:0044 181 881 7777, or TheMcLaren Building, 35 Dale End,Birmingham B4 7LN, tel: 0044 121212 0000. Alternatively e-mail uson [email protected] or visitour website at www.davidlevene.co.uk

London solicitors will advise onUK matters and undertake agencywork. All areas. Corporate/privateclients. Ellis & Fairbairn, 26 OldBrompton Road, SouthKensington, London SW7 3DL,tel: 0044 171 589 0141, fax: 0044171 225 3935

Agents – England and Wales. Weare willing to act as agents for Irishsolicitors in civil and criminal liti-gation. Contact: Olliers, Solicitors,Alderman Downward House, 2/3The Birtles, Civic Centre,Wythenshawe, Manchester M225RF, tel: 0044 161 437 0527, fax:0044 161 437 3225

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 shar-ing envisaged. Donnelly Neary &Donnelly, 1 Downshire Road,Newry, Co Down, tel: 080 169364611, fax: 080 1693 67000.Contact KJ Neary

TITLE DEEDS

Notice seeking informationTo: person with information inrelation to the ownership of thelessor’s interests in the premiseshereinafter described.

Description of premises towhich this notice refers: all thatand those the premises known as 2Fitzwilliam Terrace and 3Fitzwilliam Terrace, situate in theParish of Bray, half Barony ofRathdown and County ofWicklow.

Particulars of leases: lease forlives dated 10 May 1851 and madebetween John Archer of the onepart and Stephen Raverty of theother part; lease dated 28November 1861 and made betweenAdam Seaton Findlater, AndrewArmstrong, George Farquhason,William Todd, Henry WalkerTodd, George Scott of the one partand Edward Breslin and of theother part.

Signed: Hugh J Campbell & Co,Solicitors, Shannon House, CustumePlace, Athlone, County Westmeath.25 November 1999

Landlord and Tenants Acts, 1967-1984 and the Landlord andTenant (Ground Rents) (No 2)Act, 1978: an application byMary O’Brien of BallymountRoad, Dublin 12Take notice that any person havingan interest in the freehold estate ofthe following property: all that andthose a portion of the leaseholdpremises comprising part of thelands of Walkinstown, Barony ofUpper Cross and County ofDublin, together with a right ofway, as more particularly set outand described in the indenturelease dated 17 August 1934between Thomas Doyle of the onepart Michael O’Brien of the otherpart, being for a term of 99 yearsfrom 17 August 1934 and subjectto an annual rent of £8, subject tothe exceptions and reservationsand the covenants and conditionstherein set out.

Take notice that Mary O’Brienintends to submit an application tothe county registrar for theCounty/City of Dublin for theacquisition of the freehold interestin the aforesaid properties and anyparty asserting that they hold asuperior interest in the aforesaidpremises (or any of them) arecalled upon to furnish evidence oftitle to the aforementioned premis-es to the below named within 21days from the date of this notice.

In default of any notice beingreceived, Mary O’Brien intends toproceed with the applicationbefore the county registrar at theend of 21 days from the date of thisnotice and will apply to the countyregistrar for the county/city ofDublin for directions as may beappropriate on the basis that theperson or persons beneficially enti-tled to the superior interest includ-ing the freehold reversion in eachof the aforesaid premises areunknown or unascertained.Signed: Thomas Byrne & Company,Solicitors, 5 Greenhills Road,Walkinstown, Dublin 12.21 January 2000

Landlord and Tenants Acts, 1967-1984 and the Landlord andTenant (Ground Rents) (No 2) Act, 1978: Guiney andCompany Limited (applicant)and persons unknown(respondents)Take notice that the applicantintends to submit an application tothe county registrar, Dublin met-ropolitan, for the acquisition of thefreehold interest in the premisesdescribed in the schedule hereto(‘the property’) and any personshaving any interest in the freeholdestate or any intermediate estatebetween the freehold and the

leasehold interests held by the appli-cant in the property are herebycalled upon to furnish evidence oftheir title to the solicitors for theapplicant within 21 days of the dateof this notice.

In default of any such noticebeing received, the applicantintends to proceed with the applica-tion before the said county registrarat the end of 21 days from the dateof this notice and will apply to thesaid county registrar for directionsas may be appropriate on the basisthat the person or persons benefi-cially entitled to the superior inter-ests, including the freehold rever-sions in the property are unknownor unascertained.

SchedulePart 1: premises known as 79 TalbotStreet, in the parish of St Thomasand City of Dublin held underindenture of lease made 14September 1908 made betweenSuzanne Harte, Henry HarknessStreeten, Suzanna Davis, ThomasAlma Brunker, Edward CarolinHarte, Elizabeth Grace Hayes,Edith Harte and Elizabeth Ennis ofthe one part and Henry Bryan of theother part.

Part 2: all that and those thepremises now known as 80 and for-merly known as 80 and 80a TalbotStreet in the parish of St Thomasand City of Dublin held underindenture of lease made 30 August1929 made between Rev Henry HStreeten, Edward Carolin Harte,Thomas Alma Brunker, SuzannaDavis, Martha Harte and ElizabethGrace of the one part and HenryBryan of the other part.Signed: O’Connor, solicitors for theapplicant, 8 Clare Street, Dublin 2.4 February 2000

Cross-examination


64

John Fish, a senior partner in the law firmArthur Cox and member of the Law SocietyCouncil, has been elected First Vice-Presidentof the Council of European Bars and Law

Societies (CCBE), the body that represents theinterests of the European legal professions beforethe EU institutions. He is due to serve as presidentfor the year 2001/02, only the second-ever Irishmanto hold that post.

Born in Dublin in 1938, he went to SandfordNational School in Ranelagh, and then the HighSchool in Dublin’s Harcourt Street. He studied theLaw Society’s legal professional courses in TrinityCollege, and was apprenticed to Rowan Blakeney ofA&L Goodbody. Following qualification in 1960, hespent two years working in the firm as assistant toGeorge Overend (who was at that time President ofthe Law Society). He joined Arthur Cox in 1968.

What attracted you to a career in the law?I rather liked the idea of becoming a lawyer from myearly days in school, partly due to an interest in theorganisation of and participation in meetings, andpartly to a belief (which I still continue to hold) thata lawyer with a reasonably sympathetic ear can helpothers in their difficulties.

Which living person do you most admire, and why?There are many people from all walks of life whom I greatly admire, but my short list would includeRobert Fisk for the courage of his convictions andhis journalistic integrity.

Another would be Gianni Manca, an Italianlawyer who spends most of his time in Scotland. I met him many years ago, and he epitomiseseverything I admire in a lawyer, combined with anextraordinary sense of humour. Gianni was also apast president of the CCBE.

What is the best piece of advice you ever got?From Archie Overend (past president of the LawSociety and contemporary of Arthur Cox) who toldme that, whilst a good memory is a very useful toolin the practice of law, no matter how well you mayremember a legal point, always check it by referenceto ‘the books’.

Which case do you wish you had been involved in?To have acted on behalf of The Beatles, and possiblyadvised them not to break up.

Best decision you ever made?To have had the good fortune of joining Arthur Coxin 1968 at a time when commercial lawyers were inrelatively short supply.

Worst decision you ever made?As a young solicitor, not to have spent a few yearsgaining experience in the City of London.

How do you cope with stress?To discuss the cause of the problem with friends andassociates and to listen to their advice.

If you could make one change to the legalsystem, what would it be?To have the power to release public funds in order todevelop the legal aid system, thus enabling greateraccess to justice than is available at present.

Time management tips?The only papers on your desk should be thoserelating to the case you are working on.

Pet hate?A cluttered desk. G

The man who could havesaved the Beatles‘A lawyer

with a

reasonably

sympathetic

ear can

help others

in their

difficulties’

John Fish: First Vice-President of the Council ofEuropean Bars and Law Societies (CCBE)

Contents Gazette LawSociety · our gifted solicitor colleagues will be elevated to a seat on the...

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Transcript of Contents Gazette LawSociety · our gifted solicitor colleagues will be elevated to a seat on the...