contents gazette lawsociety 4€¦ · j doherty, john p shaw, simon j murphy, orla coyne, michael...

Contents

Law Society GazetteDecember 2005

1

In sickness and in healthThe MRSA ‘superbug’ is big news, with media reports linking it toseven deaths in Ireland during a ten-day period in mid-November. Siún Leonowicz considers thelegal basis for making a claim and suggestspractical guidance on how to avoidclaims arising in the first place.

12Cover story

GazetteLawSociety

Playing safeThe new Safety, Health and Welfare at Work Act 2005 will have seriousimplications for employers and employees. Geoffrey Shannon detailssome of the key changes.

22

Broken recordsRecords management in Ireland has traditionally been a matter offiling everything, but with the advent of the Data Protection(Amendment) Act 2003, the long-established culture of hoarding hasreached a legal end. Martin Bradley opens the archive door.

Special Services Task Force reportThe report of the Special Services Task Force has been delivered to the Law Society’s Council. The main focus of the report was a survey of the profession designed to clearly identify the needs of the average solicitor.

4

Making a killingThe recent publication of a Law Reform Commission report oncorporate killing has focused new attention on the issue. MichaelO’Neill takes his life in his hands to assess the relevant issues.

28

Velvet revolutionThe Law Society’s new president isMichael Irvine. He’s a man with akeen sense of duty to his professionand to society in general – and abeliever in change by degrees. Hespeaks to Mark McDermott about hisplans for his year in office.

18

FREE WITH THIS ISSUE!

Your Gazette

legal planner 2006Regulars

News 2

Viewpoint 8

Letters 9

Briefing 43

Practice notes 43

SolicitorsDisciplinary Tribunal 47

Legislation update 48

Legislation focus 49

FirstLaw update 51

Eurlegal 54

People and places 57

Parchmentceremonies 2004 59

Apprentices’ page 67

Professional information 68

Recruitment advertising 73

34

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

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

Editor: Mark McDermott. Deputy editor: Garrett O’Boyle. Designer: Nuala Redmond. Editorial secretaries: Catherine Kearney, ValerieFarrell. For professional notice rates (lost land certificates, wills, lost land title deeds, employment, miscellaneous), see page 69.Commercial advertising: Seán Ó hOisín, 10 Arran Road, Dublin 9, tel: 837 5018, fax: 884 4626, mobile: 086 811 7116, email:[email protected]. Printing: Turners Printing Company Ltd, Longford. Editorial board: Stuart Gilhooly (chairman), Mark McDermott (secretary), Pamela Cassidy, Tom Courtney, Eamonn Hall, Philip Joyce, Michael Kealey, Mary Keane, Patrick J McGonagle, KenMurphy, Michael V O’Mahony, William Prentice

Volume 99, number 10Subscriptions: €57.15

News


2

� CARLOWThe deadline approachesThe Carlow Bar Association isarranging special seminars tofacilitate colleagues who stillhave ground to make up inreaching the required CPDpoints before the end of theyear. “We have had a very goodsuccess rate with our seminarsand they have been very helpfulto us in practice,” according toassociation president PeterCody. They have also provideda social and fun element topractice, he said.

They are able to organisegood seminars for €45 perattendee, with such speakers aslocal criminal law solicitorBreda Fleming, Peter Codyhimself on commercial andresidential conveyancing, andcounsel Elaine Morgan andEithne Hegarty. The focus ison areas of law that are helpfulto the practitioners.

Word to the wiseBut there is another seriousreason to complete the fullCPD requirements, accordingto Peter Cody. The annualapplication for practisingcertificates will contain aquestion on whether we havecompleted the requiredregimen. It is a self-certificationsystem. So far, so good.

But – and it’s quite a but – ifwe certify that we haveattended courses and we havenot, and cannot produce thecertificates, then if a claimarises in the future for workdone during the period ofcover, the insurer might arguethat all material facts had notbeen disclosed. “This is apotential danger that I think weshould all be alert to at thisearly stage,” he argued.

� LOUTHThe beautiful gameTo the north-east, the focusright now is on earthier

NATIONWIDE

News from around the country

matters, with Dundalk andDrogheda solicitors squaringoff for their now annual soccertussle. “An annual soccer matchbetween the solicitors of bothtowns had been held for someyears, but had lapsed. Werestored it last year and will beholding this year’s match in afew weeks,” said Dundalksolicitor Niall Lavery. Niall,who is secretary of the LouthBar Association, said thatDrogheda are threatening tofield Martin Mulligan and PaulMoore. But he will be takingthe field along with colleaguessuch as Frank McDonnell,which would redress thebalance.

“We also hope in futureyears to introduce a charitabledimension to the match andthat it will be a fund-raiser forlocal charities,” he added. Theevent has potential fordevelopment and they will beconsidering this in the newyear.

� DUBLINCPD onlineArrangements are fastprogressing in relation to thelaunch of CPD online. “Thiswill be a unique offering fromthe Dublin Solicitors’ BarAssociation, not provided byany other service provider,”

according to HonorarySecretary Kevin O’Higgins.

Essentially, solicitors will beable to buy a disk that willcarry a series of seminars thatwill enable them fulfill, eitherin whole or in part, their CPDrequirements at a time and avenue of their choosing. “Weknow from talking tocolleagues both in large officesand in smaller offices that thisnew service will fulfill aparticular need and, for some,avoid the trouble and hassle ofgetting to and from seminars,”he added.

However, insofar as ispossible, the DSBA wouldalways encourage colleagues tomeet and congregate togetherin a seminar environment, aswe very much value theinteraction between colleagues.

New line outThe new team assisting theDSBA’s new president seems tocontain a judicious mix ofexperience and energy. Freshfaces include Aaron McKenna,who will chair the DSBA’sLitigation Committee, AineBurke, who will head theProbate and TaxationCommittee, and John Hogan,who will chair the YoungerMembers Committee.

The other newly appointed

committee chairs announced byincoming president BrianGallagher are: conveyancing,Geraldine Kelly; family law,Keith Walsh; business andcommercial law, PaulineO’Donovan; seminars, JohnO’Malley; website andtechnology, John Glynn; andsocial, Helene Coffey. StuartGilhooly will continue hislively editorship of the veryprofessionally producedParchment.

Adios and many thanksA dinner recently marked theDSBA presidency of OrlaCoyne. The black-tie event wasattended by all her councilcolleagues and several formerpresidents of the association,and included High Courtjudges Mr Justice MichaelMoriarty, Mr Justice PeterKelly and Mr Justice MichaelPeart. Judge Groarke was alsoin attendance.

Brian Gallagher spokewarmly of Orla’s contributionto the association, which,among many things, includedspearheading the launch of theresidential tenancy agreementpublication, the emergence ofCPD online and the successfulconference in Buenos Aires.

� LAOISNew year, new jobWell-known Mountmellickpractitioner JohnFetherstonhaugh, who qualifiedin 1977, has been appointedcounty registrar for Laois andis expected to take up the postin January. He replaces JamesCahill, who was a well-respected holder of the post.The Laois Solicitors’Association will be marking thenew appointment in the newyear.

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

G

PIC: JO

HN

SH

EEHAN

PHO

TOG

RAPH

Y

‘SLAs’ get down to brass tacksAmong those attending the AGM of the Southern Law Association inNovember were (front row, l to r): Seán Durcan (Hon Treasurer SLA),

Sinéad Behan (Vice-President SLA), Jerome O'Sullivan (President SLA),outgoing Law Society President Owen Binchy, Director General Ken

Murphy and Joan Byrne (Hon Secretary SLA)

News


3

The Law Society has electeda new council and new

officer team. The newpresident is Michael G Irvine,who serves for the next year.Michael was deemed elected tothe post after serving as seniorvice-president last year. PhilipM Joyce was elected seniorvice-president for 2005/06,while Gerard J Dohertybecomes junior vice-president. The number of valid votingpapers was 2,816, with only onespoiled vote being recorded,though 47 papers failed tocomply with various sub-sections of bye-law 6(16). The following members wereelected to the Law SocietyCouncil following the recentballot (the number of votesappears after each name): 1) John D Shaw 1,5882) John O’Connor 1,5513) Kevin D O’Higgins 1,5454) Stuart Gilhooly 1,5085) Michele O’Boyle 1,3516) John Costello 1,2897) James O’Sullivan 1,2768) James Cahill 1,2549) Moya Quinlan 1,24010) Paul E Connellan 1,17711) Marie Quirke 1,16212) Thomas Murran 1,12613) Niall Farrell 1,07614) Jarlath McInerney 1,02215) Joseph B Mannix 905

In an article titled ‘The Cost of Saying No’, which appeared in theNovember 2005 issue of the Gazette (p28), it was incorrectly stat-ed that sections 15 and 16 of the Civil Liability & Courts Act 2004passed into English law on 31 March 2005. This should, of course,have stated that the Civil Liability & Courts Act 2004 is an Irish act,and came into effect on 31 March 2005.

New officer team takes helm

The following candidates werenot elected:16) Edward C Hughes 88217) Patrick Crowley 62418) TC Gerard O’Mahony 366

As there was only onecandidate nominated for eachof the two relevant provinces(Connaught and Munster),there was no election. Thecandidate nominated in eachinstance was returnedunopposed, as follows:Connaught – Rosemarie JLoftus; Munster – EamonO’Brien.

Council members areelected for a two-year term.The sitting council memberswho were elected last year are:Michael G Irvine, DonaldBinchy, James B McCourt,Gerard F Griffin, FionaTwomey, Anne Colley, GerardJ Doherty, John P Shaw, SimonJ Murphy, Orla Coyne,Michael Quinlan, JamesMacGuill, Michelle NíLongáin, Philip M Joyce,Daniel E O’Connor, ColinDaly, Andrew J Cody(Leinster) and Margaret MMulrine (Ulster).

SECTIONS 15 AND 16 OF THE CIVILLIABILITY & COURTS ACT 2004

PRIZE BOND WINNERS 2005

The winners of the Law Society’s

prize-bond draw were:

Michael G Cody & Patrick J Cody,

Co Carlow; Finbarr O’Reilly

(decd) Dublin 2; BV Hoey, Co

Louth; Niall Quirk, Co Tipperary;

Patrick J Kevans, Dublin 6;

Patricia Heffernan, Dublin 2;

Michael & Patrick Moran, Co

Mayo; Joseph T Deane, Dublin 2;

Sean T Kennedy, Co Monaghan;

H Nathniel Healy, Co Wicklow;

Leo J Loftus, Co Mayo.

NEW LAW SOCIETY LIBRARY

OPENING HOURS

The Law Society Library has

announced new opening hours:

8.30am-10pm (Monday to Friday)

during the months of December

2005 to May 2006 (inclusive).

Contact the library at: tel: 01

672 4843/4; fax: 01 672 4845;

email: [email protected].

The online catalogue can be

accessed at: www.lawsociety.ie

(members’ area).

EELA AWARD

The European Employment

Lawyers Association (EELA) is

an unincorporated association,

established under German law.

It has established an annual

prize of €5,000 as a means of

providing support for law

students or practising lawyers

who have been qualified for less

than five years, aspiring to a

career in labour and employ-

ment law.

More information can be

found at: www.eela.org

RETIREMENT TRUST SCHEME

Unit prices: 1 November 2005

Managed fund: €5.15494

All-Equity fund: €1.17927

Cash fund: €2.62082

Long bond fund: €1.35238

Significant gender pay gap for Scots New research by the Law

Society of Scotland and the Equal OpportunitiesCommission (EOC) shows asteadily increasing difference inpay according to gender. Itreaches its highest level atbetween 21 and 25 years afterqualifying – a 42% gap in favourof men.

But Linda Urquhart, chiefexecutive of Edinburgh-basedlaw firm, Morton Fraser, who isthe first female managingpartner of a law firm in Scotland,says she’s “disappointed” withthe study’s revelations. Shedisputes that the pay gap at the

top level is as high as 42%, butsays it’s disappointing that thereshould be any difference at all.“The profession needs to lookclosely at that.”

The Law Society of Scotlandand EOC claim their study is

the biggest survey of its kind.There was a response from one-quarter of Scotland’s 10,000solicitors. (The poll was restrictedto women practitioners.) Itexamines work-life balance, thenature of work and pay.

The new officer team at the Law Society (l to r): Gerard J Doherty, president Michael G Irvine and Philip M Joyce

GAZETTE CHRISTMASPUBLICATIONAs usual, the Gazette will betaking a break over the Christmasperiod, so there will be no issue inJanuary. Normal publication willresume with a joint January/February issue, due out in earlyFebruary.

ONE TO WATCH: NEW LEGISLATIONDisability Act 2005This act was signed into law on 8 July 2005 and much of it wascommenced by SI 474 of 2005.Readers will be familiar with thecontroversy over judicialenforcement of rights under theact, which shadowed itspublication by the government andpassage through the Oireachtas.The government prevailed, and if aperson does not agree with theassessment or service received,he or she is provided with a non-judicial course of remedies and anappeal to the High Court on a pointof law only. Another controversialaspect of the act is the restrictive

definition of disability.Much of the act came into

effect on 29 July 2005, andanother tranche is due to comeinto effect by 1 January 2006. Forthe sake of simplicity, thissummary makes no distinction.

Allocation of resourcesPart 1 contains section 5, whichguards against a minister, theexecutive or a service-providingbody being forced to allocate fundsto a service, which are in additionto an allocation already decided.Any initial allocation must haveregard to other obligations andrequirements for money. Section 6

provides for a review of the act’soperation after five years.

Assessment of needPart 2 concerns assessment ofneed, service statements andredress, and no date has yet beenset for its implementation. Therewill have to be considerableconsultation with the HealthService Executive beforeprocedures are put in place. Inrelation to individual cases andpotential clients, it is the core ofthe act. The limitation on accessto the courts to seek to enforcethe provision of services is not yetin place.

Much of part 3 is already inforce, or about to be. It concernsaccess to buildings and services,and sectoral plans. Public bodiesare required to ensure by degrees,and before 2015, that publicbuildings (including heritage siteswhere possible) and services areaccessible to people withdisabilities. They are required tointegrate disability services withmainstream services wherepossible and appropriate, and arerequired to have staff withexpertise and skills to ensure this.Public bodies are required, as faras practicable, to accommodatehearing-impaired, visually-impaired

News


4

Support Services Task Force dThe Support Services Task

Force has delivered its reportto the Law Society Council. Thetask force was originally estab-lished in December 2003 by thenPresident of the Law SocietyGerard Griffin in order to reviewsupport services for Law Societymembers. Olive Braiden wasappointed as the independentchairperson.

The main focus of the reportwas to carry out a survey ofsolicitors in order to clearlyidentify the needs of the averagesolicitor.

First stepIt was decided that an essentialfirst step before the Law Societycould undertake a review ofexisting services, or establish aprogramme of new services,would be to speak to solicitorsdirectly and ask them for theirviews. The decision was taken tosurvey the members. The mainaims of the survey were:• To identify the problems that

the average solicitor has inhis/her practice situation,

• To review the effectiveness ofthe existing support servicesprovided by the Law Societyand others,

• To identify any new servicesthat would assist solicitors.

A professional researcher,Hilary Clarke BSc MPhil, wascommissioned to devise a ques-tionnaire based on the taskforce’s recommendations and toanalyse the findings. This wasthe first time a survey of thisnature and on this scale was car-ried out by the Law Society.

There was a 19% responserate – considerably higher thanthe average 10% response forthis type of survey. In addition,a large number of solicitorstook the opportunity providedby the questionnaire to addtheir own comments in relationto each of the services. Theyalso made suggestions for newservices.

RecommendationsBased on the findings of thesurvey, the task force has madethe following three recommen-dations:1) A directory of all the services

provided by the Law Societyand other agencies should becompiled. Contact detailsshould be included. Anupdated version of the direc-tory should be issued to everysolicitor on an annual basis.

2) An information executiveshould be appointed withinthe Law Society. This personwill be available to memberswho contact the Law Societyseeking assistance – but whoare unaware of the appropri-ate service or person to con-tact. The executive shouldhave a designated phone lineand email.

However, the task forcerecognises that, prior to anysuch appointment beingmade, it will be necessary toundertake a study of commu-nication models in compara-ble organisations.

3) The Law Society shouldmake more CPD seminarsavailable on the topics ofmanagement and profession-al development. The needsof managing partners, solepractitioners and assistantsolicitors in relation to thesetopics should all be distin-guished and specific seminarsgeared to the differentgroups should be provided.

The task force membership com-prised: Olive Braiden, ThereseClarke, Geraldine Clarke, TomMurran, John O’Connor, MichaelIrvine, Moya Quinlan, MarieWatters, Ken Murphy and SeanSexton.

More Law Society support services for members

and intellectually disabled peopleto facilitate access to information.Compliance with an approved codewill be deemed to be compliancewith the requirements of the act.

Ministers of six key sectors(health and children; social andfamily affairs; transport;communications, marine andnatural resources; environment,heritage and local government;and enterprise, trade andemployment) are required toprepare plans on service provisionfor people with disabilities.Detailed requirements for theplans are set out, and includeinformation that solicitors may

wish to establish for clients, suchas the criteria governing theeligibility of disabled persons forservices under the Health Actsand the Social Welfare Acts.Public bodies are to have inquiryofficers to deal with complaints.Procedures for this are to be setdown, and the inquiry officers areto be independent. They arerequired to investigate complaintsand make reports that mayinclude remedial steps to betaken. The inquiry officers aresubject to review by theombudsman.

Part 4 limits the use of geneticdata in general and prohibits

genetic testing in relation toemployment (subject to priorchecking with the Data ProtectionCommissioner), insurance and lifeassurance policies, pensions andmortgages. Processing of geneticdata is subject to safeguards,including the subject’s informedconsent, and incurs criminal liabilityif the safeguards are breached.Forensic genetic testing for criminalinvestigations is exempted.

Public servicePart 5 provides for employment ofpersons with disabilities in thepublic service and provides fortargets of 3% unless otherwise

specified. The Defence Forces,gardaí and prison officers areexempt from this requirement.Compliance is to be secured byannual reports made by publicbodies to a government monitoringcommittee, which will report to theNDA and the government. Codesof practice may be prepared bythe NDA (after consultation) andapproved by the relevant ministerto assist in achieving theemployment of people withdisabilities.

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

G

News


5

elivers report

Following a review conducted by a special Task Force underthe Chairmanship of Ms Olive Braiden, the Law Society ofIreland has decided to appoint a solicitor dedicated to therole of the management, development and delivery of itssupport services to solicitors.

This is a new position and an exciting opportunity for asolicitor who wishes to enhance the Society’s support to theprofession.

The successful candidate will have experience of privatepractice, will have an understanding of the services alreadyprovided by the Society to its members and will have thecapacity to strengthen the communication links between themembers and the Society.

Responsibilities will include liaison with the local BarAssociations, providing a ‘point-of-contact’ for members,developing more structured information systems between theSociety and its members, managing a scheme for solicitorsunder stress, establishing a Practice Advisory Service, devel-oping a Directory of Services and managing a suite of exist-ing member services.

Necessary qualities include confidence, enthusiasm,empathy, communication skills and a good manner with peo-ple, as well as excellent organisational skills.

Letters of application with full curriculum vitae to bereceived not later than 5PM ON FRIDAY, 16 DECEMBER,2005, by:Maureen SeabrookHuman Resources ManagerLaw Society of IrelandBlackhall Place, Dublin 7

SUPPORT SERVICESEXECUTIVE

• To review the support serv-ices currently provided bythe Law Society and othersfor solicitors and traineesolicitors,

• To assess best practice inother relevant organisationsand to identify further sup-port services that might beprovided to solicitors andtrainee solicitors,

• To make recommendationsregarding the most effectivemeans of delivering supportservices to solicitors andtrainee solicitors.

TERMS OF REFERENCE

The survey demonstrated thatawareness of the services pro-vided by the Law Society var-ied widely. Solicitors were fullyaware of some services, butmost had never heard of others.Members had lots of new ideasfor projects and services. Thesewill be extremely useful forfuture planning of services.

Interestingly, many solici-tors made suggestions for serv-ices that are already in place.They were unaware of theservice either because no infor-mation, or insufficient infor-

mation, had been made avail-able by the Law Society aboutthe service. The task forcesaid: “It is clear that this infor-mation deficit must beaddressed as a matter of priority.”

In other instances, it wasdisappointing to note that,although particular serviceswere well publicised, somesolicitors were unaware ofthem.

Representational roleThere was no serious question-ing of the necessity for regula-tion, but many solicitorswished to see equal emphasisplaced on the society’s repre-sentational role, with everyeffort being made to ensurethat it is as effective as the reg-ulatory role.

Chairperson of the TaskForce, Olive Braiden, thankedall respondents for their input.“A particular feature of theresponse was the number ofsolicitors who illustrated theirresponses with additionalstatements,” she said. “I amvery grateful to each of thesesolicitors, because their viewshave brought the data to lifefor us and have given us invalu-able insights.”

News


6

Eleven firms of solicitorshave been referred by the

Law Society to the SolicitorsDisciplinary Tribunal forinquiry in relation to theirconduct in Redress Board cases.Investigations into the actionsof these firms relate to 20individual complaints made bymembers of the public to theLaw Society.

In an analysis published on18 November, 145 complaintshad been received on the LawSociety helpline. Helplinenumbers were established on 14 October in Ireland andBritain to assist applicants to theResidential Institutions RedressBoard (RIRB) who wished tocomplain about solicitorscharging legal fees above andbeyond the costs and expensespaid directly to the solicitor bythe Board.

As of 18 November, 66% ofall complaints received (that is,96 complaints) had already beendealt with before special sittingsof the Society’s ComplaintsCommittee. The remainder willbe dealt with by mid-December.The Complaints Committee hasreached decisions on 69complaints. The hearings of 27complaints have been adjournedfor various good reasons, usuallythe necessity to make furtherenquiries.

The helplines continue toremain open at 1800-242631(for calls from the Republic ofIreland), and 0800-0390079 (forcalls from Britain and NorthernIreland).

As soon as the Law Societyreceives a complaint, it writes tothe solicitor against whom thecomplaint has been made,requiring him or her to attend aspecific scheduled meeting ofthe Society’s Complaints andClient Relations Committee.The solicitor is then required tobring to the meeting their file,including all documentation

Law Society refers 11 solicitors firmsto Disciplinary Tribunal in RIRB cases

relevant to the case.The Complaints Committee

comprises both solicitors andnon-lawyer members. The non-lawyer members are nominatedby IBEC, by the Irish Congressof Trade Unions, and by theDirector of Consumer Affairs.All Committee decisions in thecases heard to date have beenunanimous.

The Complaints Committeehas the statutory power torequire solicitors to makerefunds of any excessive fees totheir clients. It also has thepower to refer cases to theSolicitors Disciplinary Tribunal,where an inquiry into theconduct of a solicitor can becarried out.

The Solicitors’ DisciplinaryTribunal is appointed by, andreports to, the President of theHigh Court. One-third of itsmembers are nominated by theMinister for Justice, Equalityand Law Reform.

It is not the Law Society butthe Solicitors Disciplinary

Tribunal (in less serious cases)and the President of the HighCourt (in the most serious cases)who have the power to apply arange of disciplinary sanctions,as appropriate on a case-by-casebasis, where misconduct hasbeen found by the SolicitorsDisciplinary Tribunal. Therange of disciplinary sanctionsincludes fines, suspension of theright to practise and striking offthe Roll of Solicitors.

It has been the Law Society’spolicy for many years that,wherever there is a finding ofmisconduct by the SolicitorsDisciplinary Tribunal, fulldetails of the finding arepublished, including the nameand address of the solicitor.Publication is made in the LawSociety Gazette, which is sent tothe media and available to thepublic in Easons.

In relation to 20 complaints,the committee’s decision hasbeen to uphold the complaintand refer the case to theSolicitors Disciplinary Tribunal.In each of these cases, thecommittee has required thesolicitor to make a refund of feesto their client with interest andwithout delay. In many of thecases, such refunds had alreadybeen made by the solicitorbetween the solicitor’s receipt ofthe initial letter from the LawSociety and the date of thehearing by the ComplaintsCommittee. The society ischecking with the client in eachcase to obtain confirmation ofreceipt and the amount of therepayment.

In relation to 49 complaints,the committee’s decision hasbeen that no referral to theSolicitors Disciplinary Tribunalhas been warranted. In relationto 24 complaints, the committeefound on the basis of its reviewof the evidence that, in fact, nodeduction or additional chargehad been made by the solicitor.The complaining client is beinginformed of this by the societyand is being asked forconfirmation that the mattermay now be considered closed.

In 15 cases, the committeefound that the complaint shouldnot be upheld because thededuction was justified. Usually,this related to the fees paid tomedical practitioners forpsychiatric or other medicalreports necessary for the case –the cost of which was notrecovered from the RedressBoard.

The Redress Board has apolicy of generally paying only€400 in respect of such reports,other than in exceptionalcircumstances, which it has notdefined. Many medicalpractitioners in Ireland andBritain require amounts greaterthan €400 to be paid in advancefor these reports. Anotherreason for which deductionsfrom a Redress Board awardwould be justified is because, atthe request of the client and fortheir benefit, the solicitor hadgiven a letter of undertaking toa financial institution to repayout of the award a loan whichthe client had previously takenout from the financialinstitution.

In a separate andcomplementary line ofinvestigation, the Law Society issending detailed questions inwriting to every firm ofsolicitors who has ever acted fora claimant in a Redress Boardcase in which the board hasmade an award to date.

JUDGE CARROLL RETIRESThe first woman to be appointed to the High Court has retired

after serving 25 years on the bench. The Hon. Miss Justice MellaCarroll was the longest-serving judge of the High Court. On her finalday, she joked that, “following a career of 48 years – 25 spent as aHigh Court Judge – at 71, I am taking early retirement”!

President of the High Court, Mr Justice Joseph Finnegan

News


7

HUMAN RIGHTS WATCH

Adverse possession and propertyrights: JA Pye (Oxford) Ltd v UK Alma Clissmann reports on developments in relation to the practical application of theEuropean Convention on Human Rights

An unusual application ofhuman rights law has arisen

in a case involving theacquisition of title to land byadverse possession. The Pyedecision means that we will haveto rethink the law of adversepossession in two respects: • The procedures involved in

someone acquiring such title,to enable the registered ownerto be notified of the risk oflosing his title in sufficienttime for him to protect it, and

• The question ofcompensation for landacquired through squatters’rights.

Prior to the 15 Novemberjudgment in the Pye case, theChancery Division of theEnglish High Court had cometo a similar conclusion inBeaulane v Palmer ([2005] 4 AllER 461) last March. In that case,which arose after the HumanRights Act 1998 (HRA) came intoeffect in October 2002, the judgeheld that the law had to beinterpreted to give effect to theECHR. He held that thearguments justifying theacquisition of title by adversepossession did not apply toregistered land, where title isbased on registration rather thanpossession. In thesecircumstances, it was necessaryto reinterpret the law. Heinterpreted s75 of the LandRegistration Act 1925 as beingonly applicable to cases in whichthe trespasser established‘possession’ in accordance withthe case law as it stood in 1925.This involved behaviour by thesquatter that was inconsistentwith the use of the land by theregistered owner. As Palmer’suse in this case was not

inconsistent with Beaulane’s use,his possession was not adverseand his claim to title failed.

In Pye, which was initiatedprior to the coming into effect ofthe HRA, the European Courtof Human Rights held by fourvotes to three that there hadbeen a violation of article 1 ofprotocol 1 of the ECHR (seepanel).

Pye was the registered ownerof 23 hectares of agriculturalland and had let the land to theGrahams for grazing until 1983.Pye wished to develop the landand refused to renew the grazingagreement, but the Grahamscontinued to use it. In 1997,Graham claimed adversepossession on the basis of theLimitation Act 1980, whichexcludes actions for recovery ofland after 12 years of adversepossession, and the LandRegistration Act 1925, whichprovided that the registeredowner held the land in trust forthe squatter after the 12-yearperiod.

In 2002, the Land RegistrationAct was passed, which nowenables the squatter to apply tobe registered as owner after tenyears’ adverse possession andrequires the owner to benotified. The owner then hastwo years in which to evict thesquatter or regularise thesituation, failing which thesquatter is entitled to beregistered. This implicitrecognition that the previous lawwas unjust was taken intoaccount by the Strasbourg court.

The ECtHR noted that it wasthe legislative provisions inBritain that deprived Pye of itsland, as, in their absence, itwould not have lost itsownership. It took the view that

the operation of the two statutesconstituted interference with theapplicant’s rights under protocol1, article 1.

Granting a squatter title toland on the basis of adversepossession could be justifiedwhere there was no system ofland registration, in order toavoid protracted uncertaintyabout ownership. This did notapply where there was a systemof land registration. The courtfound it difficult to see thejustification for this legal rulewhere the result was so unjust.The court noted that manycommon law jurisdictions hadeither abolished adversepossession or had substantiallyrestricted its effects. The factthat the law was continued bythe 2002 act, however, meantthat it could not be dismissed ashaving no public interest.

ProportionalityThe court considered whetherthe 12-year period, the knownstate of the law, the relativelysimple course open to Pye todefend its title, the lack of careshown by Pye and its advisersand the loss of title to the landcould be fairly balanced againstany legitimate public interest.The loss was exceptionallysevere, as Pye received nocompensation, and this could

only be justified in exceptionalcircumstances. The court notedthe lack of proceduralprotection, and that nonotification was required to begiven to Pye during the 12-yearperiod to alert it to the risk.

The British Governmentargued that it had no duty toprotect a person against his ownnegligence. The courtconsidered that such negligencewould not have mattered but forthe statutory provisions. Andfurther, parliament itself hadrecognised the unsatisfactoryprocedural protections byenacting the 2002 act. While achange in the law in itself didnot necessarily mean that theprevious system was inconsistentwith the ECHR, in judging theproportionality of the law inrelation to the applicant, it wassomething to which the courtwould attach particular weight.The court concluded that the1925 and 1980 acts imposed onPye an individual and excessiveburden and upset the fairbalance between the publicinterest on the one hand, andthe applicant’s right to thepeaceful enjoyment of itsproperty on the other.

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

G

ARTICLE 1 OF PROTOCOL 1 OF THE ECHR“Every natural or legal person is entitled to the peaceful enjoymentof his possessions. No one shall be deprived of his possessionsexcept in the public interest and subject to the conditions providedfor by law and by the general principles of international law.

“The preceding provisions shall not, however, in any way impairthe right of a state to enforce such laws as it deems necessary tocontrol the use of property in accordance with the general interestor to secure the payment of taxes or other contributions orpenalties.”

Viewpoint


8

The eagerly awaited reporton the auctioneering

industry has been presented tothe Minister for Justice,Equality and Law Reform,Michael McDowell. Any dustthat the report may havegenerated has now well andtruly settled again. Hopefully,just for now.

So will it make any realdifference to the way that theproperty market in Irelandoperates? There is a lot offrustration and unnecessarydisappointment among buyersand sellers out there. Enter MrMcDowell and the promiseddraft legislation. Buying andselling a house in Ireland canbe difficult and dangerous forclients. It is easy enough tomake an expensive mistakewithout the help offered bysome auctioneers and estateagents. But now all of this isabout to change. Or is it?

At least there will be anindependent regulatoryauthority to overseeauctioneers. But any seriousreform of the auctioneeringindustry and the buying andselling of property in Irelandwill turn, firstly, on the termsof reference of this new body.Will it be given real, asopposed to illusory, authority?Who will fund it and who willbe appointed to it?

Bricks and mortarThe report is honest. It is wellintentioned. It makes 42recommendations. And it hasbeen welcomed by the twomain bodies of auctioneers.The chief executives of the twomain auctioneering bodies weremembers of the working groupthat produced the report.

Buying or selling a house isessentially a matter of contract.It is at an intersection of law

Time to treat the dry rot in theThe justice minister will need to think beyond the new report on the auctioneering industry ifthe issues of ‘guide prices’, gazumping, and other problems in the Irish property market are tobe addressed, argues Pat Igoe

and economics, where themarket is not as open, free andtransparent as it ideally shouldbe. With new properties, it isnot an equal meeting betweenbuyer and seller. Buying andselling property is not a stress-free zone. But the law couldsurely make it less so. Clearly,it is because it is fraught withdifficulty, with high stakes formost people, that it’s all themore important that themarket be assisted by the law inoperating efficiently,

transparently and fairly. The recommendations of the

working group, which waschaired by long-standing publicservant Alan McCarthy, can bedivided into two categories –recommendations that seek atleast some degree of supervisionand control over auctioneers onthe one hand, and a complaintsand disciplinary procedure forwhen things go wrong. Theeffectiveness of therecommendations will criticallydepend on the drafting of thelegislation and whether itprovides for meaningfulsupervision and real sanctionsfor what are often perceived assharp practices against would-be buyers.

Just some of the complaintsinclude:

• Guide prices that are anonsense,

• People paying for surveysand arranging for mortgageswhen they get nowhere closeto buying the property,

• Gazumping, • Lack of clarity, and • Lack of accountability.

Not all of these can be blamedon greedy vendors.

Recommendations suggestthat the regulatory body wouldbe responsible for increasing

consumer awareness about thesector and that it shouldrequire all auctioneers to issue“an appropriate letter ofengagement to clients”.Statutory section-68-typeletters, perhaps?

Shaky foundationsThe weakness of the report isthreefold. Firstly, the initialterms of reference for theworking group were arguablytoo narrow and did notencourage a fundamentalexamination of contract law,which might make a differenceto how the buying and sellingof property is operated inIreland. Secondly, it is a reportfrom a working group to theminister for justice, equalityand law reform. Thirdly, it is

aspirational. It is not a lengthyreport and does not considerthe fundamentals of thecontractual nature of the Irishproperty market, as wouldprobably have been the case,for example, in a report on landcontract law from the LawReform Commission.

One major frustration in theIrish property market is thelarge number of title checks bysolicitors, and surveys byarchitects and surveyors – weekafter week – for buyers who areunsuccessful in buying theproperties. It is clearly wasteful,time-consuming and expensive.This is set to continue.

Significantly, the report doessuggest to Minister McDowellthat “the buyer is entitled toassume that particularsprovided to them are, by andlarge, accurate”. But the reportdoes not go on to recommendthat material in estate agents’literature should be legallybinding on the vendor. It canbe argued, however, that thereport is showing the way. It isup to the minister to giverecommendations on legaleffectiveness.

WoodwormUsually, both for existing andnew properties, an estateagent’s literature contains adisclaimer that claims about aproperty have no legal effect.Also, contracts drafted bysolicitors for builders usuallyprovide that the estate agent’sliterature – promises and soforth – have no legal effectwhatsoever. But if statementsby auctioneers cannot be stoodover, should they be said orwritten in the first place?

The report suggests a ‘wait-and-see’ approach to how whata so-called ‘home informationpack’ (which house-sellers in

A ‘home information pack’ could have saved the buyer of this house a lot of trouble

Viewpoint


9

Irish property marketEngland will be obliged tofurnish to prospective buyersfrom 2007) works out. It willprovide basic details of thehouse being sold. It may belegally binding. Such a pack,with basic information on title,the planning history of thehouse, and advising ofproblems such as perhaps dryrot or woodworm, can at leasthelp to redress what issometimes a very unevenmatch between vendor andauctioneer on the one hand,and buyer on the other. Thealternative at the moment is tohope that the buyer’s surveywill see the problems before itis too late.

The aspirational aspects ofthe report are clear. Replacinga ‘guide price’ with an ‘advisedminimum value’ can only beeffective if there is meaningfulsanction for a sale price beingsignificantly above the ‘advisedminimum value’. This is wherethe legislation will be relevantor irrelevant.

Raising the roofWill the legislation examine therelationship between the‘advised minimum price’ andthe ‘reserve price’? Perhaps the‘reserve price’ might be re-named the ‘real minimumprice’.

Significantly, the report doesacknowledge that “it is notalways so simple for manypeople to find accurate,objective, easily understandableinformation that will help themto educate themselves as fullyas they should”. Often, “theywill have to rely on incompleteadvice from interested parties”.The parliamentary draftsman’soffice could have a role in this,too. Consideration might evenbe given in private treaty salesto the continental civil lawprovision of including a seven-day ‘cooling off’ period.

One recommendation ismissing – a fundamental reviewof the law relating to the sellingof property in Ireland. Thecurrent legislation dates back tothe Auctioneers and House AgentsAct 1947. It was amended inminor matters in 1967 and1973, when the licence bondrequired for all auctioneers wasset at Stg£10,000 or some€12,700 – which it still standsat today.

The auctioneering businessis, and will remain, open toanyone who has not got acriminal record and is regarded

by the local District Court as “afit and proper person” to be anauctioneer.

Snag listThe property market in Irelandhas changed radically since1947. Massive sums are involvedand pass through the hands ofsolicitors and auctioneers. Butthe law has not kept pace.

The minister for justice andhis advisors will need to thinkbeyond this report if the issuesof guide prices, advisedminimum values, gazumping,unnecessary surveys,auctioneers’ fees, and thefrustrating lack of clarity andopenness in the Irish propertymarket are to be addressed.

The report, which wasproduced by a 14-personworking group including fourcivil servants andrepresentatives of the two mainauctioneering bodies,acknowledged that the law is“outdated, inappropriate andinadequate for the present-daymarket in Ireland”. The reportis on the minister’s desk. It is ahelpful first step. The rest is upto the minister and hisparliamentary draftsmen. Weawait developments.

Pat Igoe is principal of the Dublinlaw firm Patrick Igoe & Co.

G

The recommendations of the McCarthy Report include:• The establishment of a regulatory authority for auctioneers and

estate agents;• The regulatory authority, rather than the District Court, should

issue licences to auctioneers;• There should be a ‘fitness and probity’ test for applicants and

applicants should be required to disclose any criminal record;• All auctioneers should be obliged to contribute to a ‘fidelity

fund’ to compensate injured parties;• An auctioneers’ code of ethics should be drawn-up;• The regulatory authority should ‘review’ the case for ‘seller

packs’ for would-be buyers;• Auctioneers should issue ‘letters of engagement’ to their

clients;• The regulatory authority should require auctioneers to give an

indication of their absolute fee, and not just quote apercentage.

SURVEYORS’ REPORT

From: Sean O’Ceallaigh & Co,Dublin 7

We would all agree that thishas not been a very good

year for the profession. Yes,some of our own have let usdown – as happens in all walksof life – in the government, thechurch, other professions.

There are those in the media,

however, who are blowingmatters out of all proportionand who continue to hound andharry us with ghoulish glee.

It is rather strange that whenour ancient and honourableprofession is being bled beforeour eyes, only 1% of ustroubled to attend this year’sAGM.

Yes, we do need to get ourhouse in order – to disciplineour errant members. But wealso need to confront andchallenge those in the mediawho are fast becoming the new‘arrogant and oppressive force’of our land.

May I suggest to our Councilthat, when sending the licence-

renewal papers to us in January,they invite us to complete aseparate form with oursuggestions and a statementpledging our support for themin their efforts to stem the tideof unjust criticism and tocontinue to serve us and ourprofession well.

Ní neart go cur le céile.

Letters‘Arrogant and oppressive force’

Letters


11

Iread the article in the October2005 issue of the Law Society

Gazette from the Law Society’sGuidance and Ethics committeein relation to ‘Emergency Exits’.

As ever, I am in awe of theparochial vision taken by theLaw Society in relation to thecontribution of staff who are notsolicitors to the effective runningof practices up and down thelength and breadth of thiscountry. Nowhere in the articleis it mentioned about the stepsto be taken in protectingemployees in relation to‘emergency exits’, and thedifficulties faced by them whenthey lose not only a co-workerbut also their job.

While the stand of the LawSociety is that the practice isunder the control andsupervision of the holder of acurrent practising certificate, thestark reality is that many, manypractices are effectively run bystaff who are not solicitors,especially and more particularlywhere the practice is a ‘one-manband’.

The Law Society has never

publicly acknowledged, forobvious reasons, the immensecontribution of staff who are notsolicitors. This would becontrary to the belief that theknowledge only belongs to thosewho possess a practisingcertificate. Moreover, in recenttimes when members werepolled in relation to the paymentof maternity benefits forsolicitors while out on maternityleave, it excluded other staffwithout practising certificates.

In anyone’s language this isnot celebrating the contributionof other staff, whom I may add,often bring in many times theirannual income in fees and whoalso may be the breadwinners ofthe family unit. It would be quiteintolerable for me if I were tohave a child and obtain benefitsfrom social welfare, but asolicitor would be able to obtainher full pay. Would this be fairand equitable in your view?

If the Law Society is trulycommitted to theimplementation of best practice,it needs to embrace andacknowledge the enormous

contribution of supportstaff, includingsecretaries, apprentices,law clerks and legalexecutives etc.

The Law Society, asa nationalorganisation, needs toacknowledge the contribution ofall staff in legal practices and thatpractices are not only comprisedof ‘the certificate-bearingsolicitor’. There are a number ofprogressive practices that dotreat staff with respect and donot have any difficulty withparity of treatment andcontribution acknowledgement.Naturally, these are the practiceswith high rates of staffsatisfaction and retention andwho tend to have a uniquecohesion between public andstaff.

This letter may seem like atirade, and that really is not myintention, but it is a measure ofthe growing sense of isolationand frustration felt by keypersonnel in legal practices whogo unacknowledged by anational organisation charged

with best practice in thelegal profession.

Of necessity, I feel compelledto exclude my personal detailsfrom this communication, for Ihave no doubt that it would bedetrimental to me personally andto the practice in which I workfor being so bold as to highlighta deficiency in the system. Iwould, however, challenge youto include this in your nextGazette, as I have no doubtwhatsoever that you will get aresponse in relation to it and,indeed, it may cause solicitors tore-examine their methods ofpractise and to identify the needsof all staff who contribute to thepractice.(Challenge duly accepted! All viewson this letter are most welcome –The Editor)

From: Angela McCarthy, MichaelPowell & Co, Cork

It may be that not manysolicitors’ firms are concerned

with this problem, orsufficiently concerned to putpen to paper, but I have notseen or read of any real effort orpressure being brought to bearin relation to the staggeringcondition of the ‘non-jury list’.There must, however, be aconsiderable number whoshould be concerned with it.

There are, as I write, 286cases awaiting trial, which havebeen certified as ready for trial.(Call-over of non-jury certifiedlist, 8 November 2005. I amobviously not addressing any ofthose in which notice of trial hasbeen served, but not yetcertified.) This issue, therefore,

Voiceless on the periphery!

‘Staggering condition’ of non-jury listshould concern an average ofapproximately 400 firms ofsolicitors, allowing forduplication.

The position is that, on thecall-over of the non-jurycertified list on 27 July 2005 tofix dates, the master listscheduled 232 cases. On the 8November call-over, there were293 cases certified ready, anincrease of 61 cases. Only six ofthose certified cases weredisposed of in October.

One of the many reasons forthis is that the non-jury judge’stime is taken up mostly withmotions, which last for one ortwo days on average. There were108 motions listed in July and128 motions in November. Only20 of those motions listed in Julywere disposed of in October.

Not wishing to bore youwith figures, the pattern overthe last six months is that themotion list is clearing onlyabout 20 a month and the triallist only about six a month. Thetrial list, however, is increasingby about 50 a month and themotion list is increasing by 25to 30 a month.

What can be done about thisescalating delay? (Where a casewas certified for trial last July,the current projection on thisclearance rate would be that itwould not go for trial until theMichaelmas term of 2009.)There was a time, not so verylong ago, that when onecertified a non-jury case fortrial, one had a trial within afew weeks. It would now seemthat one can only be assured of

having a trial within a few years. I understand that, in the last

few weeks, a case listed forhearing, which was to take eightdays, was compromised. Theresult was that a judge sat idlein the midst of this chaos. Isthere anything that we as aprofession (apart from lobbyingfor extra judges) can, or areprepared to do, to ensure thatthis can be avoided orminimised in a situation ofescalating delays?

I understand from the HighCourt Office, whichacknowledges this to be a veryworrying trend, that it is in talkswith the Bar Council on thematter. Are we contributing tothese discussions, and whatproposals are being putforward? G

Cover story


12

With media reports linking theMRSA superbug to seven deathsin Ireland during a ten-day periodin mid November, it appears thatthe bug could be the next major

litigation bombshell to hit the state. Founder of the MRSA and Families support

group, Margaret Dawson, told the media that shehad been contacted by seven families informing herof the deaths of relatives. The victims, aged from 50to 75, included men and women from all parts of thecountry.

With the recent negative publicity about the MRSA ‘superbug’, Siún Leonowicz considers the

legal basis for making a claim and suggests practical guidance on how to avoid claims arising

in the first place. Additional reporting by Mark McDermott

In SICKNESS

breaches of the Health Act 1947 and the failure byhealth boards to implement the Department ofHealth’s own MRSA guidelines, which were issued inAugust of 1995,” he said.

If successful, the case could spark a raft of claimsand expose the government to a substantial claim forcompensation.

It is timely, then, to consider the law as it relatesto claims in respect of death or personal injuryarising out of MRSA. It should be noted, however,that the law in this area is somewhat uncertain.Claims at common law are complicated by

• Hospitalsuperbug

• Personalinjuries

• Breach ofstatutory dutyM

AIN

PO

INTS

Galway-based solicitor, Ian Simon, is representinga significant number of clients seeking to sue thestate on the grounds that either they or a familymember acquired MRSA in hospitals. He says thatthe number of people reporting deaths from theMRSA bacteria infection appears to be on theincrease.

“At this stage,” he told the Gazette, “people areseeking legal advice because they or their relativesare going into hospitals and coming out maimed.Patients who contract the MRSA blood streaminfection become maimed or sadly die as a result ofthe contributory factor of MRSA. I’ve yet to see adeath certificate with MRSA septicaemia being theprimary cause of death. Usually, there will be otherunderlying causes.”

As a result, he says that people who suffer fromserious medical conditions brought about by MRSAcannot return to work for lengthy periods of timeand are suffering a serious loss of income. “Recentmedia coverage concerning the MRSA bacteria hasencouraged more and more patients to contemplatenegligence claims against the state. It is inevitablethat people maimed by MRSA, or bereaved familieswill pursue redress against the state,” he says.

Mr Simon is hoping to have his first case – that ofa gravely-ill Kilkenny woman – before the courtsearly next year. “We will be basing these cases on

difficulties in proving causation and, in respect of apotential claim founded upon breach of statutoryduty, the scope and applicability of potentiallyrelevant statutory regimes are uncertain.

Common-law claimsA patient who contracts MRSA in hospital maybring personal injury proceedings founded innegligence for any breach of the healthcareprovider’s duty of care at common law to takereasonable steps not to injure patients in their care,or expose them to harm.

It is up to the plaintiff to show that the standardof care observed was at an inappropriate level.However, assessing whether a hospital has breachedits duty will involve weighing up the hospital’spolicies and practices against relevant regulations,guidelines and recommendations on health andsafety and infection (and, particularly, MRSA)control. These will have developed over the yearsand must be assessed in the light of the test set downby the Supreme Court in Dunne v National MaternityHospital ([1989] IR 91), where Finlay CJ enunciatedthe following principles:1) “The true test for establishing negligence in

diagnosis or treatment on the part of a medicalpractitioner is whether he has been proven to beguilty of such failure as no medical practitioner of

Cover story


13

and inHEALTHHEALTH

Cover story


15

equal specialist or general status and skill wouldbe guilty of, if acting with ordinary care.

2) If the allegation of negligence against a medicalpractitioner is based on proof that he deviatedfrom a general and approved practice, that willnot establish negligence unless it is also provedthat the course he did take was one which nomedical practitioner of like specialisation and skillwould have followed had he been taking theordinary care required from a person of hisqualifications.

3) If a medical practitioner charged with negligencedefends his conduct by establishing that hefollowed a practice which was general, and whichwas approved of by his colleagues of similarspecialisation and skill, he cannot escape liabilityif, in reply, the plaintiff establishes that suchpractice has inherent defects which ought to beobvious to any person giving the matter dueconsideration.

4) An honest difference of opinion between doctorsas to which is the better of two ways of treating apatient does not provide any ground for leaving aquestion to the jury as to whether a person whohas followed one course rather than the other hasbeen negligent.

5) It is not for a jury (or for a judge) to decide whichof the two alternative courses of treatment is intheir (or his) opinion preferable, but their (or his)function is merely to decide whether the course oftreatment followed, on the evidence, compliedwith the careful conduct of a medical practitionerof like specialisation and skill to that professed bythe defendant.

6) If there is an issue of fact, the determination ofwhich is necessary for the decision as to whether aparticular medical practice is or is not general andapproved within the meaning of these principles,that issue must, in a trial held with a jury, be leftto the determination of the jury.”

Finlay CJ went on to state three further legalprinciples that had not been expressly mentioned inearlier decisions, the third of which is particularlyimportant in the context of MRSA claims: 1) ‘General and approved practice’ need not be

universal, but must be approved of and adhered toby a substantial number of reputable practitionersholding the relevant specialist or generalqualifications;

2) Though treatment only is referred to in some ofthese statements of principle, they must apply inidentical fashion to questions of diagnosis;

3) In an action against a hospital where allegations aremade of negligence against the medical administratorson the basis of a claim that practices and procedureslaid down by them for the carrying out of treatment ordiagnosis by medical or nursing staff were defective,their conduct is to be tested in accordance with the legalprinciples which would apply if they had personallycarried out such treatment or diagnosis in accordancewith such practice or procedure (emphasis added).

There seems little doubt that the Irish courts wouldrecognise that a healthcare provider owes a duty ofcare to its patients so as not to negligently exposethem to risk of infection by MRSA. However,causation is likely to cause potential plaintiffsdifficulty in pursuing a negligence claim. Althougheach case will depend on its facts, it is recognisedthat MRSA infection can occur as a result ofexposure to a single bacterium. Consequently, sinceMRSA may be present in hospitals that may bedeemed to have taken all reasonable steps, thedifficulty a patient faces is in showing that theinfection arose from a ‘negligent’ as opposed to an‘innocent’ bacterium. Equally, since MRSA may alsobe present in other institutions or environmentswhere large numbers of people are gathered, it willbe for the plaintiff to show that the hospital MRSAwas the cause of the infection. In many cases, thataspect of causation will not be a significant issue, butin certain cases it may be.

Breach of statutory dutyAn alternative, albeit remote, basis for a cause ofaction in respect of MRSA may exist by virtue of theprovisions of the Safety, Health and Welfare at Work(Chemical Agents) Regulations 2001. Althoughostensibly designed to address and control the use ofchemicals (as distinct from bacteria) in theworkplace, regulation 2 defines a ‘chemical agent’ asfollows: “any chemical element or compound, on itsown or admixed, as it occurs in the natural state or asproduced, used or released, including release aswaste, by any work activity, whether or not producedintentionally and whether or not placed on themarket”.

Moreover, ‘hazardous chemical agent’ isdescribed, among other things, as an agent which“may, because of its physicochemical, chemical ortoxicological properties and the way it is used or ispresent in the workplace, present a risk to the safetyand health of employees”. Accordingly, even if it isnot entirely clear, it seems arguable that MRSA fallswithin the definition of ‘chemical agent’ and‘hazardous chemical agent’ under the regulations.

Although the regulations are essentially premisedupon the protection of employees (in the contextunder review, hospital staff), regulation 3(6) further

MRSA, or to give it its proper Latin name, Methicillin Resistant StaphylococcusAureus, is a bacterium that has developed a resistance to most antibioticscommonly used for staphylococcus infections. Interestingly, it is often found onthe skin and/or in the noses of healthy people, where it is usually harmless.However, it can get inside the body and cause infection. Although the bacteriummay be found in any high-density establishment, such as schools or prisons, itmost frequently causes problems in hospitals, where the combination of thelowered immune systems and the prevalence of wounds, cuts and surgicalincisions makes the risk of MRSA infection all the more likely. It is unsurprising,therefore, that doctors classify MRSA in two categories: hospital-acquiredinfections and community-acquired infections.

THE NATURE OF THE BEAST

Nasty little critters:MRSA bacteria

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

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

FRIARYLAW & ADR GROUP – MEDIATION AND DISPUTE RESOLUTION IN IRELAND

FORTHCOMING PROGRAMMESJanuary ’06 Programme: 18 – 21 January The Friary, Bow Street, Dublin 7

March ’06 Programme: 8 – 11 March The Friary, Bow Street, Dublin 7

• On April 1st 2005 Friarylaw was appointed by the

Minister and Department of Justice as a nominat-

ing body under section 15 of the Civil Liability and

Courts Act, 2004.

• ADR Group was the first mediation trainer and

service provider in the EU to receive ISO9002

accreditation

• The training course satisfies 35 hours of the Law

Society of Ireland’s CPD requirements.

• Areas of application include: General Civil and

Commercial, Personal Injury and Clinical Negligence,

Employment, Construction and Engineering, Banking

and Financial Services, Insurance, Professional

Accounting and Related Services Disputes,

Environmental Disputes, Family and Matrimonial.

ADR (Alternative Dispute Resolution) has brought about a remarkablechange in the solving of civil and commercial disputes worldwide. The lat-est statistics available from the US reveal the extraordinary impact ofADR, where civil and commercial litigation in the public fora of the courtsis at a forty year low; similar trends are emerging in the UK.

As a result of the lessons learned in other jurisdictions, Irish business isembracing new and innovative forms of dispute resolution as part of theirbusiness model. Recent legislative change at national (Civil Liability andCourts Act, 2004) and EU level (pending EU Mediation Directive) underpinthe emergence of Mediation as an essential tool in the fast and efficientresolution of civil and commercial disputes. Sophisticated clients areincreasingly aware of the benefits of mediation; namely, a speedier andmore cost efficient method of dispute resolution.

Friarylaw & ADR Group provide the most comprehensive Mediation train-ing and formal accreditation process available in this jurisdiction. Weadminister a structured pupilage programme for our accredited mediators.Friarylaw & ADR Group are committed to the development of the media-tion practices of their panel members both here and in the UK.

Training as a mediator with Friarylaw & ADR Group will:• Enhance your professional skill set• Obtain Mediator Accreditation• Develop a Mediation Practice

Friary Chambers, The Friary, Bow Street, Dublin 7.Tel: 01 872 8405. Fax: 01 872 8409Email: [email protected]. Web: www.friarylaw.ie

Cover story


17

The best way to prevent claims, whether at common law and/or in respect ofbreach of statutory duty, is obviously to prevent exposure to MRSA. There is ampleguidance on effective ways of avoiding exposure to MRSA, and the following gath-ers together guidance from a number of sources. As an overall observation, thefocus of any healthcare provider’s assessment of how to avoid exposing people toinfection should be on establishing a proper procedure and, once it is in place,educating staff about that procedure and ensuring that it is put into practice.

Practical suggestions include the following: • A suitable and sufficient risk assessment should be carried out, to include the

basic principle that cuts and wounds should be cleaned as soon as possibleand kept covered with a bandage and that contact with wounds or usedbandages is kept to a minimum and proper procedures and processes followed(for example, gloves should be changed after each patient, and hands washed).Protective clothing should be used, but where it is not reasonably practicable,exposure should be controlled by other means;

• Adequate and appropriate hand-washing is well recognised as the single mostimportant measure in infection control. All appropriate staff, to be identified aspart of the risk assessment, should wash their hands thoroughly with soap andwater or an alcohol-based hand sanitiser in order to reduce the risk of exposingothers to MRSA;

• An infection-control policy should be actively promoted and put into practice;• Every acute hospital should have an infection-control team, which should have a

key role in training and education, such as induction training for new hospitalstaff (both medical and domestic staff), as well as update or top-up trainingand education for existing staff;

• Policies need to be put in place to ensure that agency staff are trained ininfection control and local procedures;

• An isolation procedure should be used as necessary;• The levels of bacteria should be monitored in accordance with a suitable

procedure; and• More rigorous screening for MRSA for patients entering higher-risk units will

also reduce the risk of injury, although this is both difficult and expensive.

AVOIDING THE ISSUE

provides: “Where duties, however expressed, areplaced by these regulations on an employer inrespect of any of his or her employees at aworkplace, he or she shall be under a like duty inrespect of every other person at work at thatworkplace who is or may be exposed at that place toa chemical agent or hazardous chemical agent.”

As a consequence, it appears that, in the hospitalcontext, patients “may be exposed at that place to achemical agent or hazardous chemical agent”. Theduties imposed by the regulations, and which mayapply to patients under regulation 3(6), include thedetermination and assessment of the risk ofhazardous chemical agents (regulation 4), theprevention and control of exposure to hazardouschemical agents (regulation 5), as well as specificprotection and prevention measures (regulation 6).

The advantage to a plaintiff of a claim based uponthe regulations is that the duties are strict (althoughqualified by a defence of reasonable practicability),the burden of demonstrating compliance with therequirements of the regulations is upon thedefendant, and the causation test is a ‘materialincrease in risk’ test.

However, in pursuing a claim on this basis, aplaintiff is likely to face a number of difficulties, not

least that it is difficult to construe regulation 2 toinclude bacteria that exist in the workplace. It isarguable that a chemical that “occurs in the naturalstate or as produced, used or released, includingrelease as waste, by any work activity” could includea situation where there is a failure to take propersteps to reduce the risk that causes bacteria toproliferate. In this way, the proliferation of thebacteria could be seen as a result of bad workingpractice, and therefore arise as a consequence of awork activity.

However, the regulations focus primarily onsubstances that are used or produced by an employerin his work and, accordingly, the principle that theycould encompass bacteria that naturally occur seemsnovel, and it is unclear whether the courts willchoose to read the regulations to include MRSA. It isalso not clear that patients in a hospital can properlybe said to fall within the contemplation of theprotection afforded by the regulations.

Notwithstanding that, until there is a clear indica-tion that the regulations are not properly applicable toMRSA, it can still be used as an additional basis for aclaim and pleaded in the alternative, although thelikelihood of success, on this basis, is questionable.

Next to GodlinessAlthough claims have been instituted in thisjurisdiction in respect of cases relating to MRSAinfection, it seems they have not yet come before thecourts, so no clear guidance has yet been obtained onhow they are treated and what specific difficultiesactually arise. Although the Irish Government hasbeen silent on the issue, in Britain, Lord Warner in aHouse of Lords debate on 7 September 2004 stated:“We have no plans to award compensation topatients with MRSA in National Health ServiceTrusts.”

The Health Service Executive has commissioned ahygiene audit of hospitals by consultants, but,according to reports, it still remains the case thatsmaller Irish hospitals have no one specificallytrained in infection control. It has also been reportedthat, in bigger hospitals, there is only one trainedpart-time infection control nurse and no doctor, andonly one in five hospitals has a clinical microbiologiston their staff, some of them serving several hospitalsin a region.

Given that specially trained staff and effectiveinfection control are identified as steps to be used toavoid claims, it seems remiss that the basicinfrastructural elements do not appear to be in placeacross our hospitals as a whole. It remains to be seenprecisely how the cases develop and what theapproach of the Irish courts will be when faced withthem. It also remains to be seen whether theDepartment of Health will seek to pre-empt claimsby taking all preventative steps, or whether claimsarising from MRSA infection prove to be the catalystfor significant change.

Siún Leonowicz is a Dublin-based barrister.

G

“It is up tothe plaintiffto show thatthe standardof careobservedwas at aninappropriatelevel”

Interview


18

Had Michael Irvine’s mother, Jean, notbeen discouraged in becoming asolicitor, it’s quite possible that the newPresident of the Law Society might nothave considered the profession as his

career of choice. Michael’s legal pedigree stems from his mother’s

side of the family. Jean was the daughter of Wexfordsolicitor, John Brennan. “My grandfather, John, wasthe principal of the firm Huggard and Brennan inWexford,” says Michael. “He held the post of JuniorVice-President of the Law Society in 1942, buttragically he and my grandmother were killed in afire in their home in Wexford in that year.Consequently, I never met my maternalgrandparents.” Michael’s uncle, John Brennan, wholives in Wexford, took over the practice andremained as principal until his retirement.

“I believe I obtained my initial interest in law fromhearing my mother talk about her father’s recognisedcourtroom ability,” says Michael. However, he isadamant that when it came to his deciding on acareer, he was allowed make his own decision, in hisown time. “I am very pleased that I became a solicitor– it has been, for me, a very fulfilling career. I haveenjoyed what I have done and the people I have met.”

Land of the Rising SunAnd Michael has done a lot. He was articled toDavid Prentice, cousin of Peter Prentice, inMatheson Ormsby Prentice in 1971. After

The Law Society’s new president is Michael Irvine. He’s

a man with a keen sense of duty to his profession and to

society in general – and a believer in change by degrees.

He speaks to Mark McDermott about his plans for his

year in office

VELVET Rqualification, he worked extensively with Peter, apast president of the society. Michael believes thathe owes much to the Prentices, who had a majorinfluence on his thinking and attitude to life. It wasPeter who gave him his first interest in the LawSociety.

“There were approximately 15 solicitors in theoffice when I started as a commercial lawyer. At thattime, there was little commercial work and you

would often act for small family enterprises as well asbigger companies.”

In 1979, Michael was chosen to act for the interimpostal board, which was to become An Post. It was inthis role that Michael was able to obtain first-handexperience of government policy being enacted intolegislation – an experience that was to prove veryuseful later in his career.

“I then commenced to practise in direct foreign

Interview


19

EVOLUTIONinvestment work, which John Ross of the firm hadstarted.” This work took Michael to the Far East,particularly Japan, which at the time was a hugeinvestor country in Europe. “I really enjoyed theexperience, the different cultural aspect added anextra dimension and challenge to the work,” he says.

In the early 1990s, after the Berlin Wall camedown and the Soviet Union disintegrated, Michaelwas asked by his partners to see what could be

achieved in the newly emergent states of EasternEurope and beyond. “I then started undertakingconsultancy assignments overseas, mainly fororganisations like the World Bank, the EuropeanBank for Reconstruction and Development, and theEU.”

The lessons learned while enacting the legislationfor the telecommunications and postal sector from1977-1982 were put to great use when it came to

Interview


20

proposing legislation overseas. “I was lucky, in that Iteamed up with a great colleague, Joe McArdle, whowas multi-lingual and multi-talented,” he says. “Weevolved a great working relationship and were luckyenough to work in different countries, which threwup similar challenges in different situations.” Michaelsubsequently went on to work in many countries,from Eastern Europe and the CIS, to Africa andAsia.

“That was a very demanding but rewarding andinteresting part of my career. It was different fromprivate practice, because we were directly interfacingwith government officials who had very differentbackgrounds and priorities.”

Michael’s foreign duties demanded a certain sense

of adventure, a certain fear of the unknown, whichhave taught him the need to listen and assess anysituation prior to advising or suggesting a strategy.

ResponsiveHis new role as president will involve many of thetypes of challenges that he has dealt with in adifferent context overseas. The fall-out from therecent Redress Board controversy will have to befaced.

“I think what has happened is extremelyunfortunate,” says Michael. “I think it has been puton the record very effectively by the Law Societythat it condemns any overcharging. If solicitors haveovercharged, or if they have done something wrong,they will be dealt with by the Disciplinary Tribunal.The profession generally should realise that, ifthings like this do occur, they will be handledproperly. There is a remedy where wrong has beendone by a solicitor to a client, and the Law Societywill proceed to see that the remedy is effected.”

Despite the difficulties he’s facing as he takes overthe mantle of president, Michael says that he is veryproud to have been elected to the top position in theLaw Society. “I hope very much to represent theinterests of the profession and to further thoseinterests in every way that I possibly can. What hashappened recently has had a major impact on theprofession, but we must not forget that many peoplewould not have received any compensation at allwithout the assistance, the perseverance and thefaith of many solicitors who acted for them.”

Wider conscience“Many in our profession have given freely of theirtime to clients who cannot afford to pay,” he says.“Many have undertaken voluntary work in theircommunity. Many of our young solicitors have givenup their voluntary time to make enormous sums forcharities, both nationally and internationally. Theseare things that solicitors have done for their clients,and for other people, that have gone completelyunheralded.

“In addition, the Law Society has undertakenprojects over the past five years in Africa. I myselfhave been very involved in the education of lawyersfrom historically disadvantaged backgrounds inSouth Africa. I do believe that these kinds of effortsare actually important, not only in South Africa orAfrica, but generally. They do emphasise that theLaw Society is a caring body and that the professionis not merely focused upon its own promotion. Iwould like to think that all these kinds of initiativescan be broadened, widened and enhanced. While Ido not believe that those involved are seeking to getspecial attention or special thanks, the professionand the public at large should be proud of what theyhave done.”

The new president believes that the solicitors’profession has to be caring and transparent. It has tohave responsibilities wider than just the professionitself. Such responsibilities have to be manifest in

Sporting life: Michael played rugby at Trinity and played for Old Wesley inthe No 8 jersey. His favourite player is Willie John McBride. He enjoysplaying “bad golf” and jogging two or three times a week. Favourite scribbler: The journalist, John Simpson. “I have read most of hisbooks.” Hit parade: Irish traditional music. Swish diner: My wife’s kitchen! Hot dish: Beefsteak and kidney pie. Life philosophy: “Never give up — never say never.”

SLICE of LIFE

Interview


21

the community in which its members serve, hebelieves, and says that the Law Society must assistand lead the profession in discharging this role.

“It has to be seen to be a caring profession,” hesays. “No amount of public relations can change thecurrent image or perception within the generalpublic’s mind. This will depend on the actual workdone by the Law Society and the profession, andhow solicitors go about making themselves availableand relevant to people from the less advantagedareas of society.”

He believes that the profession is under greatchallenge. “Society is changing and, therefore, theprofession has to change to respond to the needs ofsociety. The Law Society also has to change. I don’tmean in a very big or very radical way, but I think ithas to be seen not only to serve the profession, notonly to be its representative body, not only to be itsregulator in the public interest, but it must also beseen to have a wider conscience – in other words, toensure that the profession is perceived as being acaring and a trustworthy one. I think how it doesthat will be very important to it.

“For a start, we have to look at how the LawSociety can help people with free legal aid, migrantworkers, the disadvantaged in society. We have tolook at them and see if there is anything we can do,particularly from the legal side, to help thembecome more integrated in society. During my termin office, I will be attempting to make the Law

Society a little bit more acceptable in the widercommunity in this country.”

Injustice to the professions“On the other hand, I do think that the professionmust not be shy about seeking to obtain things foritself. For example, I don’t believe it is fair that onlyfive professions (solicitors, barristers, doctors,dentists and accountants) in this country are notallowed to have limited liability. I think that is aninjustice, if you like, done to the affectedprofessions.”

“The Law Society will be seeking legislation toprovide for limited liability partnerships, which arecommon both in England and in Northern Ireland,structures that can then be utilised by solicitors inthis country. This would ensure that the professionremained competitive vis-à-vis our neighbours inBritain and Northern Ireland.

“In addition, I am hoping that the ProfessionalIndemnity Insurance Task Force, which has been setup under my predecessor, Owen Binchy, will reportshortly. I am hoping that this will enable a widerframework for professional indemnity insurance tobe undertaken, something that will facilitate bothconsumers of legal services and solicitors in thiscountry. The profession must play a full role in thecommunity. To do this, the Law Society must utilisethe profession’s unique and distinct talents for thebenefit of society as a whole.” G

TEL: 01 672 4800

Health and safety


22

The Safety, Health and Welfare at Work Act2005 repeals and replaces the Safety,Health and Welfare at Work Act 1989 as the statutory framework for securing thesafety, health and welfare of people at

work. It came into force on 1 September 2005.1 The2005 act re-enacts an expanded version of many ofthe provisions contained in the 1989 act, with somesignificant additions. It is organised in eight parts andseven schedules. In introducing the bill at secondstage in the Oireachtas, the Minister of State at theDepartment of Enterprise, Trade and Employment,Tony Killeen, stated that it represented: “a modern-isation of our occupational health and safety laws. It is significant social legislation which affirms thegovernment’s interest in ensuring that labour law iskept up to date and relevant”.

The 2005 act is a framework in nature and focuseson broad general duties and the organisationalarrangements necessary to achieve better safety andhealth. It sets out the duties of employers, employeesand other parties, such as the designers of workplacesand work equipment and the suppliers of goods foruse in the workplace. As with its predecessor, thegeneral ethos of the act is that of prevention ofaccidents and illnesses. There is increased emphasison deterrence by the strengthening of theenforcement provisions.

The 2005 act reflects and accommodates many ofthe radical changes that have occurred since the1989 act was introduced. In particular, thesechanges have taken place in the nature of the workoccurring in Ireland and how and where that work iscarried out. The 2005 act has also taken account ofthe increasing ethnic and cultural diversity of theIrish workforce.

• Safety, Healthand Welfare atWork Act 2005

• General dutiesof employersand employees

• New liabilitiesfor directorsM

AIN

PO

INTS

PLAYINGThe Safety, Health and Welfare at Work Act 2005 was

enacted in September 2005. It will have serious

implications for employers and employees. It includes a

provision for testing employees for intoxicants and new

liabilities for directors, employers and senior managers.

Geoffrey Shannon details some of the key changes

While the 2005 act could not be described as aradical departure from its predecessor, some of themore striking features in the act include: • A definition of ‘competent person’ and ‘reasonably

practicable’;• An increase in the explicit duties and

responsibilities of both employees and employers;

Health and safety


23

• Provision for testing employees for intoxicants;• Specific provision regarding the responsibilities of

designers, manufacturers and importers;• New duties for persons who commission, procure,

design or construct places of work;• A reduction in the onus on small business and the

farming sector regarding safety statements;

• Joint safety and health agreements;• A new dispute resolution mechanism for dealing

with disputes between employers and employeesconcerning health and safety matters;

• Expanded provisions concerning responsibilities ofdirectors and managers;

• Evidentiary changes for the prosecution of

safe

The act willrequireemployees tosubmit toappropriatedrug testing

Health and safety


24

Section 20 is probably the most important provision in the 2005 act in terms ofthe implementation and application of health and safety measures. Under section20, every employer must prepare or cause to be prepared a statement in writing,which is known as a safety statement. This statement is to be based on thehazards identified and the risk assessment carried out under section 19 of the2005 act. It must set out how the safety, health and welfare of employees are tobe secured and managed in the workplace.

Section 20(3) of the 2005 act provides that the employer must bring the termsof the safety statement to the attention of employees annually or following anyamendment of it. Employers must also bring the safety statement to the attentionof new employees when they start work, as well as other employees who may beexposed to any specific risk to which the safety statement refers. This must bedone in a form, manner and, as appropriate, language that is reasonably likely tobe understood by the employees. This requirement should prompt employers toexamine the profile of their workforce in order to decide whether the safetystatement should be made available in one or more languages. A similarrequirement applies in respect of a safety plan.

directors and people significantly influencing themanagement of a company; and

• A strengthening of the enforcement powers fornon-compliance (increased penalties and also on-the-spot fines).

Although the 2005 act largely retains the samestructure as the 1989 act, it clarifies certain matterswith an expanded list of definitions in part 1 of theact, which deals with preliminary and general matters.

Improper conductChapter 1 of part 2 of the 2005 act sets out a range ofgeneral duties of employers. Some of the new dutiesidentified in section 8(2) of the 2005 act include: a) Managing and conducting work activities in such a

way as to ensure, so far as is reasonably practicable,the safety, health and welfare at work of his or heremployees; and

b) Managing and conducting work activities in such away as to prevent, so far as is reasonablypracticable, any improper conduct or behaviourlikely to put the safety, health or welfare at work ofhis or her employees at risk.

The foregoing provisions require employers tomanage and conduct work activities:• In such a way as to ensure, so far as is reasonably

practicable, the safety, health and welfare at workof his or her employees; and

• In such a way as to prevent, so far as is reasonablypracticable, any improper conduct likely to put thesafety, health or welfare at work of his or heremployees at risk.

These new provisions underline the importance of anemployer having an integrated safety managementsystem and are particularly relevant when addressingthe identification of bullying, harassment and stress inthe workplace. The enforcement mechanisms availableunder the 2005 act could be invoked, for example,

where the Health and Safety Authority considered thatan employer was exposing his or her employees tounacceptable levels of stress. In such circumstances,the authority could issue directions for animprovement plan.

Milk and alcoholChapter 2 of part 2 imposes a number of generalduties on employees and persons in control of placesof work, such as landlords. One of the most significantadditions to the duties of employees is to submit toany appropriate testing for intoxicants. Regulationswill be introduced detailing the circumstances andsectors to which this provision will apply. An‘intoxicant’ is defined in section 2(1) of the 2005 act as“alcohol and drugs and any combination of drugs or ofdrugs and alcohol”. This definition does not discrim-inate between prescription and non-prescription drugsand provides no guidance on what is an acceptablequantity of drugs or alcohol. The testing must becarried out by a registered medical practitioner. Itwould appear that the requirement to submit to testsfor intoxicants in section 13(1)(c) of the 2005 act is notlimited to health and safety requirements, as it is notmade subject to section 13(1)(b).

The provision for testing employees for intoxicantsis short on detail, although it will not come into forcein the absence of regulations, which are expected tobe introduced in mid-2006. Section 13(1)(c) of the2005 act prescribes three preconditions that must besatisfied before such testing may be carried out. Thetest must be:• Appropriate,• Reasonable, and• Proportionate.

In light of the possible violation of an employee’sconstitutional right to liberty, the above preconditionsmust be strictly construed. Whether a test forintoxicants is reasonably required will depend on theindividual circumstances and the nature of the workactivity. Regard should be had, for example, as towhether the employee, if intoxicated, would be likelyto cause harm to himself, herself or others. The workactivities of an employee will be relevant: an officeworker might not pose the same risk to himself,herself or indeed others as a bus driver or a personoperating machinery.

It is likely that an employer must be satisfied thatthe employee is under the influence of intoxicantsbefore requiring that the employee submit to tests.To satisfy the test of proportionality, it is likely thatthe employer will have to show that the test wasnescessary to prevent the employee endangering hisor her own safety, or the safety of others, and was theleast restrictive means to achieving that objective.(For a more detailed exploration of the principle ofproportionality, see Heaney v Ireland ([1994] 3 IR593), R v The Intervention Board, ex parte ED & Man(Sugar) Ltd ([1985] ECR 2889) and Haur v LandRheinland-Pfalz.)

An issue likely to arise is the entitlement of an

SAFETY STATEMENT

“It is likelythat anemployer mustbe satisfiedthat theemployee isunder theinfluence ofintoxicantsbeforerequiring thatthe employeesubmit totests”

Health and safety


25

employer to dismiss an employee for refusing tosubmit to tests. Would such a dismissal be presumedunfair under the Unfair Dismissal Acts? As there is nospecific guidance on this issue in the 2005 act, it islikely that the presumption of unfairness will prevail.In any event, it would appear that a request to anemployee to submit to such a test will have to bedone in accordance with the three conditionsprescribed. It is clear from section 13(1)(c) that thesethree conditions will have to be strictly adhered to.

Dukes of HazardSection 19 of the 2005 act incorporates many of theprovisions in the 1993 regulations, including therequirement in article 10 that risk assessments mustbe in writing and periodically reviewed.

It provides that every employer and every personcontrolling a workplace must identify the hazards atthe place of work, assess the risks presented by thosehazards and have a written assessment of the risks asthey apply to his or her employees, including anysingle employee and group (or groups) of employeeswho may be exposed. The words ‘hazards’ and ‘risks’are not defined in the 2005 act. That said, theauthority has produced useful guidance on theseterms.

The 2005 act introduces a significant change tothe requirement that every employer have a safetystatement in companies with three or feweremployees. In particular, section 20(8) of the 2005 actadopts a more streamlined approach to complyingwith the requirement to prepare a safety statement. Itremoves the requirement on an employer with threeor fewer employees to have an up-to-date safetystatement. It provides that such an employer cansatisfy the safety statement requirement by observingthe terms of a special code of practice, if any, to bedeveloped by the authority for a number of industriesand sectors.

The farming sector and small businesses in themaintenance and service sectors are the likelybeneficiaries of the relief available under thisprovision. In fact, the authority is currently workingon the drafting of three codes of practice, one ofwhich is in relation to agriculture.

If there is no code of practice covering the type ofwork activity carried on by the employer, what dutyarises for such an employer in respect of thepreparation of a safety statement? The act is silent onthis point, though prudence would dictate that suchan employer should prepare a safety statement.Regulations on this issue are expected in the earlypart of 2006.

Under surveillanceSection 22 of the 2005 act mirrors article 15 of the1993 regulations. It imposes specific duties in respectof health surveillance on every employer. Healthsurveillance is defined in section 2(1) of the 2005 actas follows: “...the periodic review, for the purpose ofprotecting health and preventing occupationallyrelated disease, of the health of employees, so that

any adverse variations in their health that may berelated to working conditions are identified as earlyas possible”.

Section 22(1) provides that “every employer shallensure that health surveillance appropriate to therisks to safety, health and welfare that may beincurred at the place of work identified by the riskassessment … is made available to his or heremployees”. This duty could be construed asrequiring an employer to make available acounselling service or an employee assistanceprogramme. It should be noted that, in Hatton vSutherland, the Court of Appeal held that anemployer who offers a confidential advice service,“with referral to appropriate counselling or treatmentservices”, was unlikely to be found in breach of his orher duty to employees.

InnovativeSection 24 of the 2005 act includes an innovativenew provision that has its origins in a number of thenorthern member states of the European Union. Insummary, it enables the social partners (trade unionsand bodies representing employers) to enter intoagreements setting out practical guidance on safety,health and welfare, and the requirements of healthand safety laws. Such an agreement is known as a‘joint safety and health agreement’. The parties canapply to the authority for approval of a joint safetyand health agreement or to amend it.

Section 27 of the 2005 act includes an importantnew provision that employees should not bepenalised for acting in good faith in the interests ofhealth and safety. This section prohibits an employerfrom penalising an employee for:• Being a safety representative;• Complying with health and safety legislation;• Making a complaint or a representation about

health and safety to the safety representative, or tothe employer, or to an inspector;

• Giving evidence in enforcement proceedings; and• Leaving, or while the danger persisted, refusing to

return to his or her work in the face of serious orimminent danger.

The dismissal of an employee following suchpenalisation will be deemed to be unfair under theUnfair Dismissal Acts 1977 to 2001.

The 2005 act creates three categories of offences.They are:1) Summary offences for which only a fine (not

exceeding €3,000) can be imposed;2) Summary offences for which a fine (not exceeding

€3,000) and/or imprisonment (not exceeding sixmonths) can be imposed;

3) Indictable offences punishable by the impositionof a fine (not exceeding €3 million) and/orimprisonment (not exceeding two years).

In summary, the first category applies to less seriousmatters and the second and third categories cover themore serious offences. In addition, the person

37 Upper Mount Street, Dublin 2, IrelandPhone: 353 1 661 0707 Fax: 353 1 611 4975

[email protected]

In association with Tom McGrath Overseas Properties Ltd,

www.tmproperties.ie

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

Happy with the Interest you are Earning?Happy with the Interest you are Paying?

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

Talk to

Kieran FinnanAbout a

Banking Health CheckFinnan Financial Limited

21 O'Connell Street, Waterford. Phone 051 [email protected] www.finnanfinancial.com

General legal and conveyancing services for Spain, Portugal, France, Cape Verde

Islands and now TURKEY.

SOLICITORS PRACTICE FOR SALE

General Solicitors practice located in

North Leinster County town

within easy reach of Dublin,

for sale due to pending retirement

of sole owner.

The practice which has been

established for almost 60 years comprises

conveyance, probate, litigation, commercial

and general work.

Enquiries from principals only to

Mc Cann Kane & CoChartered Accountants

Orchard HouseBeaumount Avenue

ChurchtownDublin 14

Tel: 01 2967180Email: [email protected]

Health and safety


27

convicted can be ordered to pay the authority’s costsand expenses. The main changes under the 2005 actinclude a significant increase in the level of fines andalso the fact that certain summary offences can attracta prison sentence of up to six months.

Significantly, section 60(1)(a) of the 1989 act hasbeen omitted from the 2005 act in what is afundamental departure from the approach adoptedunder the 1989 act. This section provided that afailure to comply with the general duties of employersand self-employed persons did not give rise to a causeof action in civil proceedings. Contravention of thesegeneral duties merely attracted criminal sanctions.

The removal of the civil liability exemption inrespect of a failure by an employer to comply with hisor her general duties will necessitate increasedvigilance on the part of employers to ensurecompliance with the expanded list of general dutiesimposed on employers under the 2005 act.

Directors in the dock Section 80 of the 2005 act introduces new liabilitiesfor directors, employers and senior managers who, forthe first time, could be personally liable for breachesof health and safety legislation, and could face eithertwo years’ imprisonment or a maximum fine of up to€3 million, or both, on conviction on indictment. Insummary, section 80 of the 2005 act adopts anevidence-based approach.

Section 80(2) of the 2005 act is a significantprovision. It is likely to be very useful to the authorityand the DPP in initiating prosecutions under the act.It is presumed, until the contrary is proven, that atthe material time, the acts resulting in the offencewere authorised, consented to, or were attributable toconnivance or neglect on the part of a director or aperson significantly influencing the management of acompany.

This provision was imported from corporateenforcement law and introduces a presumption thata director consented or was neglectful in his or herduties under the 2005 act unless he or she candisprove this. The existence of such a rebuttablepresumption makes the task of prosecutionsomewhat easier. It also underlines the importanceof senior management taking ownership of healthand safety.

The presumption may, however, be rebutted.Where this is the case, the prosecutor must thenprove the matters beyond all reasonable doubt. Forthe presumption to be rebutted, it is not entirely clearwhat standard of evidence the defendant must adduce.

A question may be raised about theconstitutionality of section 80(2) of the 2005 act,which is in essence a ‘guilty until proven innocent’provision. It may be argued that it reverses thenormal burden on the prosecution to prove all theelements of the offence beyond all reasonable doubt.However, this argument is unlikely to be successful,especially in the light of the Supreme Courtjudgments in Hardy v Ireland and, in particular,O’Leary v Attorney General.

In O’Leary v Attorney General, where the statuteprovided that possession of an incriminatingdocument was “evidence until the contrary isproved”, the Supreme Court upheld theconstitutionality of the section and stated that theprovision merely shifted the evidential burden andnot the legal burden.2

Naming and shamingSection 85 of the 2005 act provides that the authoritycan compile a list of people who have been fined orpenalised, who have been served a prohibition notice,or who have an interim or interlocutory order madeagainst them by a court. The concept of naming andshaming is not new to the Irish legal system. Italready exists in company and revenue law.

There has been a powerful movement towardsgreater protection of the safety, health and welfareof employees at work. The general provisions of the2005 act – which include on-the-spot fines,increased sentences and fines, the naming andshaming by the authority, testing for intoxicants,employers’ duties, safety statements, safetyrepresentatives, codes of practice and joint safetyand health agreements – will improve the safety andhealth standards that employees enjoy in theworkplace. However, the success of the 2005 act willdepend not only on ensuring compliance with thenew statutory provisions, but also on changingexisting mindsets.

In the future, it is likely that individual members ofmanagement will face criminal charges arising out ofdeaths and injuries at work where it is possible toconnect the individual failures of senior executiveswith the corporate body. A safety managementsystem must be in place for directors to avoidconviction. There is now a strong case for expressstatutory provision for the offence of corporatemanslaughter.3 Where someone loses his or her lifethrough employer negligence, the offence ofcorporate manslaughter is likely to apply if such anoffence is introduced in this jurisdiction.

Footnotes1 See SI no 328 of 2005, which brought into force

many of the provisions of the 2005 act except, forexample, the provision that repeals the Safety,Health and Welfare at Work (General Application)Regulations, 1993 and 2003. The 1993 regulationstherefore remain in place, save for articles 5 to 15(see SI no 392 of 2005) which are nowincorporated into sections 8 to 12 of the 2005 act.

2 The presumption introduced by section 80(2) ofthe 2005 act also applies to members responsiblefor the management of an undertaking. See section80(3) of the 2005 act.

3 See Corporate Killing, Law Reform Commission,October 2005.

Geoffrey Shannon is the Law Society’s deputy director ofeducation and is the author of Health and Safety: Lawand Practice (Round Hall, 2002).

G

Law reform


28

• Corporatemanslaughter

• Law ReformCommissionreport

• Draft BritishbillM

AIN

PO

INTS

The Law Reform Commission’s Octoberreport provides a detailed and rigorousanalysis of the issues relevant to thedebate on corporate killing. It makes twoprincipal recommendations:

1) The introduction of a new statutory offence ofcorporate manslaughter, which would make anundertaking (including a company, partnership orpublic body) responsible for a death, where itsgross negligence has created a significant risk ofdeath or serious personal harm and has, in fact,caused death;

2) The enactment of a new offence for seniormanagers of ‘grossly negligent managementcausing death’. Where an undertaking wasconvicted of corporate manslaughter and it couldbe proven that a senior manager, director or anyother person who acts in a similar capacity (even ifhe is not employed by the undertaking) acted withgross negligence, thereby contributing to thecorporate offence, he could be prosecuted. Onconviction, he would be liable to a maximum of12 years’ imprisonment and/or an unlimited fineand possible disqualification from acting as amanager in any undertaking for up to 15 years.

Traditionally, corporate manslaughter has beenconsidered almost exclusively in the context ofworkplace accidents. However, as the LRC pointsout, this debate is equally relevant to any corporateactivity that results in an unlawful death. Examplesoutside the strict confines of health and safety lawcould include, for example:• The supply of unsafe products;• The administering of infected bio-materials – for

The debate on corporate killing is back in the news, with the recent

publication of a Law Reform Commission report. Michael O’Neill takes

his life in his hands

MAKING A

example, organ donation – where inadequatesafety checks were undertaken;

• The sale of unsafe drugs.

The current law As the law stands, a company can only be convictedof corporate manslaughter if:• A person can be identified as the guiding mind of

the company – in effect, a top manager orexecutive; and

• That person can personally be shown to be guiltyof manslaughter – to do this, the prosecution mustshow that this person caused the death by grossnegligence.

This is known as the ‘identification theory’ and isnotoriously difficult to prove. There are no recordedcorporate manslaughter convictions in Ireland and,under the existing law, the charge has beenunsuccessful in a number of high-profile cases in theUK, including:• The 1987 Herald of Free Enterprise disaster in

Zeebrugge, when 187 people drowned;• The 1997 Southall rail crash that claimed seven

lives;• The Hatfield rail disaster in 2000, when four

people died. Earlier this month, when handingdown a record Stg£10 million fine for health and safety offences against engineering firmBalfour Beatty, Mr Justice Mackay described thecompany as one of the worst examples ofsustained industrial negligence in a high-riskindustry that he had seen. Nevertheless, midwaythrough the trial, he had ordered all charges ofmanslaughter against Balfour Beatty and five

killing

Law reform


29

executives from two companies to be dropped;• Days after the Hatfield conviction, Britain’s

Crown Prosecution Service announced that itwould not be laying manslaughter charges in thecase relating to the Potter’s Bar rail crash, whichkilled seven people in 2002, saying that there wasnot a “realistic prospect of conviction” of anyindividual or company for an offence ofmanslaughter by gross negligence.

In fact, only six British organisations – all of themsmall – have been convicted of corporatemanslaughter since 1992. This is because, in the caseof larger companies, there are layers of middle

management with responsibility for many day-to-dayoperational issues and, therefore, it is impossible toidentify one senior executive with the necessaryintent to commit the action leading to the death.Britain’s Health and Safety Executive has pointedout that an analysis of major disasters reveals thatany death or serious injury is rarely due to theactions of a single individual, but rather is a failureof management systems.

Do we need a new offence?Corporate manslaughter is a contentious issue. Thequestion of whether the law needs to be changed toinclude a new offence of corporate manslaughter

Law reform


31

Among the arguments put forward by proponents of a new offence of corporatemanslaughter are:• The existing law on manslaughter is ineffectual when dealing with companies;• While criminal offences for breaches of regulatory codes are possible in cases

of a serious disregard for the lives of others, these offences cannot, by theirnature, reflect the level of culpability involved;

• There is little correlation between the seriousness with which workplace deathsand those outside the workplace (for example, homicide or drunk drivingcausing death) are dealt with;

• There should be a way of making senior managers of corporations liable in theevent that they tolerate an unsafe safety culture within their organisation.

On the other hand, opponents say that:• The existing health and safety laws, including the new 2005 Health and Safety

Act, can deal effectively with companies and individuals whose unsafe actionsor practices result in the death of others;

• Further laws in this area will result in more, unnecessary regulation;• Any new law on corporate killing will only provide for heavy fines if a company

is found guilty and, therefore, by its nature, the law must distinguish betweenindividuals and companies involved in actions that lead to people dying; and

• Such a law will have no real deterrent effect unless it focuses on the actionsof specific individuals – and any such development will be a disincentive tobusiness.

tends to provoke strong views (see panel, this page).The LRC argues strongly in favour of the need

for a new offence that would, of its nature, be moreserious than offences for breaches of regulatorycodes. It says that other means of liability, such astort and health and safety offences, are notsufficient to express society’s opprobrium forcorporate manslaughter. The commission arguesthat, while it should not be considered in isolationfrom criminal breaches of regulatory codes (likehealth and safety law), corporate manslaughter isintended to deal with scenarios of gross negligenceand, therefore, the penalties proposed are gradedin line with the existing criminal law ofmanslaughter.

Gross negligence manslaughter The report recommends that both offences wouldrequire proof of gross negligence. This would beshown where:• The undertaking owed a duty of care to the

deceased person;• It breached this duty by failing to meet the

required standard of care;• This failure constitutes ‘gross’ negligence because

it was of a very high degree and involved asignificant risk of death or personal harm.

The LRC proposes the abandonment of theidentification theory in favour of a much wider rangeof factors to be taken into account in deciding ifthere was gross negligence. These would include:• An examination of the management systems put in

place by senior managers;• Corporate decision-making rules, or the corporate

culture; • The adequacy of corporate communication

systems; • The regulatory environment (for example, the law

relating to occupational safety and health or thesafety of pharmaceutical products); and

• Whether the undertaking was operating under alicence.

The report also seeks to deal with what is known asthe ‘phoenix company syndrome’, wherebycompanies go into liquidation and re-form in orderto avoid paying a fine. The commission recommendsthat, in such a situation, statutory provision shouldbe made to allow the court to disregard the separatelegal personality.

As the law stands, in the event of the dissolutionof a corporation (for whatever reason) in advance ofits trial, the prosecution has the power to apply tothe court to have the company reinstated – thisprovision goes one step further and allows the courtto lift the corporate veil and identify the commonorigin of the two companies.

Sentencing optionsThe proposed suite of sentencing options availableto a court upon conviction has its advantages:

PROS AND CONS

• First, it would facilitate the court, having regard tothe pre-sanction report, in determining the mosteffective way of imposing a sanction with regardto the undertaking involved;

• The fact that fines are not the only penaltywould address one of the concerns of theopponents of corporate manslaughter, who arguethat, in the case of a high-profile conviction, acourt might feel that there was a certainimperative to impose a very high level of finethat could, in effect, sink the business, and thiswould punish the workforce as much as thesenior managers or shareholders;

• On the other side of the argument, it addressesone of the complaints of the supporters of thisoffence, who argue that fines are not a sufficientpenalty since wealthy companies can, in effect,buy their way out of a conviction;

• Furthermore, the alternatives to a fine allow foreffective penalties in relation to not-for-profit ornon-cash-rich undertakings;

• Adverse publicity orders would provide the courtwith the facility to highlight the wrongdoing atthe expense of the undertaking rather than thestate; and

• There is an element of restorative justice in theuse of remedial and community service orders.

In the meantimeWhile we wait to see how the corporatemanslaughter debate develops in the wake of thecommission’s report, it is important to mentionrecent developments in a related area – the newSafety, Health and Welfare at Work Act 2005, in forcesince 1 September.

“The LRCargues stronglyin favour of theneed for a newoffence thatwould, of itsnature, be moreserious thanoffences forbreaches ofregulatorycodes”

UKTypingSpecialising in the provision of outsourced

and off-shore typing and transcription support

to Lawyers and Courts. A service provided by

lawyers to lawyers.

We can reduce a law firms typing overhead by

up to 70%. We turnaround all typing within

24 hours with near perfect quality. Over 600

satisfied lawyers use us daily.

www.uktyping.comTel: +44 208 204 [email protected]

● Exclusive 18th Century venue catering for up to 200 people

● Centrally located and easily accessible

● Private grounds with extensive car-parking

● Full catering and bar services available

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

Law Society of Ireland, Blackhall Place

● Christmas parties

● Christmas lunches

● Annual dinners

● Retirement parties

● BBQs

● Family days

21 st Century business in

18 th Century elegance

CONTACT THE CATERING MANAGER

Tel: 01 672 4800, fax: 01 672 4801E-mail: [email protected], website: www.lawsociety.ie

Law reform


33

Earlier this year, the British Government publishedits draft bill on corporate manslaughter.

The bill shares some common ground with theLRC’s recommendations. It no longer requires theneed for a ‘directing mind’; rather, it looks morewidely at the failings of senior managers within acorporation.

Key elements of the existing law would remain inplace, in particular the need to owe a duty of care tothe victim and the requirement that the conductmust have been grossly negligent.

Only senior managers’ actions and inactionswould determine if the offence is to be consideredappropriate for prosecution. The definition of ‘seniormanagers’ identifies two strands to managementresponsibility:1) Only those who play a role in making management

decisions about, or actually managing, theactivities of an organisation as a whole, or asubstantial part of it, are senior managers; and

2) Even then it must be shown that these managersplay a ‘significant’ role in the relevantmanagement activity.

It is likely that the determination of who constitutesa senior manager will be a crucial factor in theconduct of any trial for corporate manslaughter.

Again, in common with the LRC report, the British

bill provides a framework for assessing anorganisation’s conduct. However, here there is amuch stronger focus on health and safety law, ratherthan the application of this offence to a widercontext, as recommended by the commission. Itwould appear from the Dáil debates during thepassage of the new Safety, Health and Welfare atWork Act 2005 that the government shares thecommission’s view that it is more appropriate toconsider this issue beyond the confines of healthand safety law alone.

Unlike the LRC’s position, the British Governmenthas decided that unincorporated bodies likepartnerships and registered friendly societies wouldnot be liable to prosecution, though individualmembers would remain liable under the existing lawof manslaughter.

Perhaps the greatest area of deviation betweenthe bill and the report is the British Government’sdecision that there will be no secondary liability forindividuals under the new offence, although theindividual managers could still be prosecuted forgross negligence, manslaughter or for health andsafety offences.

While the bill also provides for the imposition ofremedial orders in addition to an unlimited fine, itdoes not include the same range of sanctionsproposed in the LRC’s report.

THE BRITISH DRAFT BILL ON

Conviction for summary offences following abreach of health and safety legislation can nowresult in fines of up to €3,000 per charge and, forthe first time in the District Court, up to sixmonths’ imprisonment, or both a fine and a prisonsentence. On indictment, and there have been over50 such trials in the last five years, the penalties area fine of up to €3 million per charge and/or twoyears in jail.

This act also highlights the responsibility of anundertaking’s senior management to take ownershipof health and safety. It creates a rebuttablepresumption that, where an undertaking isprosecuted for health and safety offences, the doingof the acts that constituted the offence wasauthorised, consented to, or attributable toconnivance or neglect on the part of theundertaking’s director, manager or other similaroffice or, indeed, a person who purports to act insuch a capacity. This creates an imperative forsenior managers to make sure that the necessarysafety management systems are in place andoperational.

Beginning of the endThe LRC’s report is not an end in itself, but is likelyto herald the start of a new and important chapter inthis long-running debate.

Whatever the outcome of that debate, a numberof things are clear:• Any corporate manslaughter charge to be

introduced would, given the requirement of grossnegligence, be likely to be used very rarely andonly for the most serious and systemic breaches ofa duty of care by companies;

• This makes sense given the nature of the chargeand the fact that, in cases of lesser culpability,criminal charges can be laid under regulatorycodes (for example, pharmaceutical regulation,health and safety law);

• It is possible to introduce an offence of corporatemanslaughter without increasing the regulatoryburden. Both the LRC and the BritishGovernment propose the reliance on existingregulatory laws to inform a decision of whetherthere was gross negligence, rather than imposingextra regulatory standards. This should have theadvantage of reassuring those companies andsenior managers who act in compliance withexisting regulatory rules that they have nothing to fear from any eventual introduction of such alaw.

Michael O’Neill is legal adviser with the Health andSafety Authority. All views expressed are purely personaland do not represent the position of the HSA.

G

CORPORATE MANSLAUGHTER

Practice management


34

Records management in Ireland hastraditionally been a matter of filingeverything, regardless of currency, justin case it might be needed for somefuture, unspecified, purpose. However,

with the advent of the Data Protection (Amendment)Act 2003, this long-established culture of hoardinghas reached a legal end – not only are organisationsbreaking the law by keeping everything indefinitely,but individuals are personally liable for penalties up

• Recordsmanagement

• DataProtection(Amendment)Act 2003

• Implicationsfor law firmsM

AIN

PO

INTS

to €100,000 under section 25 of the act. Though applicable to all sectors of Irish business,

the legislation is particularly relevant to the legalprofession. For example, conjure up an image of anold-style solicitor’s office and you’ll surely think ofparchment and tomes gathering dust. Thankfully,those days are a thing of the past, but recordsmanagement is not an area the legal profession canafford to be lax about. The confidentiality of theinformation retained and the volume of files

Records

management is

not an area the

legal profession

can afford to be

lax about: it’s

now against the

law to hoard files

indefinitely.

Martin Bradley

opens the

archive door

BrokenR

Practice management


35

RECORDSgenerated are key issues, but now with thislegislation comes the additional pressure of beingthe last profession that should be found to be inbreach of Irish law.

As Tom Maguire, Deputy Data ProtectionCommissioner, recently said: “As long as you have arecords management policy, you won’t get intotrouble with us; if you don’t have one, then this is anissue of concern.”

Key aspects of the actThere were a number of key changes under the 2003extension to data protection legislation. Firstly, it wasextended to apply to manual records held in an organ-ised filing system (and before you ask, pleading thatyour files are disorganised can’t be used as a defence –if it’s on a file, then it’s part of a filing system).

Secondly, the extension states that appropriatesecurity measures must be taken against unauthorisedaccess, unauthorised alteration, disclosure ordestruction of data – again this relates to manuallykept records. Thirdly, and arguably most importantly,it states that data shall not be kept for longer than isnecessary for the original purpose it was collected.

In relation to the third point, the Office of theData Protection Commissioner’s website(www.dataprotection.ie) offers some practical advice:“You should pay particular attention to oldinformation about former customers or clients, whichmight have been necessary to hold in the past for aparticular purpose, but which you do not need to holdany longer. If you would like to retain informationabout customers to help you provide a better serviceto them in the future, you must obtain the customers’consent in advance. The same applies to paperrecords. Good housekeeping would also dictate thatyou regularly review the need to retain records.”

This clearly has serious implications for many lawfirms. The commissioner further asks three simplequestions: • Is there a defined policy on retention periods for

all items of personal data kept? • Are there clerical and computer procedures in

place to implement such a policy? • Is information about old clients routinely purged

from your systems?

In practical terms, what this means is that everyorganisation needs to have a records managementpolicy. It is no longer acceptable to have a

basement containing files on all your clients, pastand present, to have ad hoc arrangements forretrieving and tracking files, or to keep everythingindefinitely.

Where’s that paperless office?Fortunately, good records management brings with ita number of benefits beyond legislative compliance. Itcertainly shouldn’t be viewed as a burdensomeexercise that has to be implemented solely for thatpurpose. A recent study by the University ofCalifornia at Berkeley came up with some veryinteresting statistics:• Offices worldwide used 43% more paper in 2002

than they did in 1999;• The average organisation makes 19 copies of each

document, loses one out of every 20 documents,and office workers can each spend 400 hours a yearlooking for lost files;

• Between 1% and 5% of all documents are misfiled;• When email is introduced into an office, the

percentage of printed documents increases by 40%.

The 1980s promise of a paperless office has nevercome to fruition. In fact, and as these statistics show,paper-record generation increases hand-in-hand withtechnological advancement. This would not be such aproblem if record management skills were developingat a similar pace. The confident predictions of thetechnology industry that paper was a thing of thepast, combined with an array of software productssold on the understanding that they did the filing foryou, meant office administrators were lulled into afalse sense of security. That is, of course, until theproblems started.

High-profile instances of government departmentsbeing unable to lay their hands on files have led tocostly reactive measures, including hiring teams ofunfortunates to back-catalogue warehouses full of filesthat, with proper file maintenance, should have beeneasily accessible. Recently, the departments ofeducation and health have invested well incataloguing work, both current and historical, on footof enquiries, but also to enable that efficient processesare in place to enable the straightforward retrieval offiles in the future.

Of course, when we talk about today’s recordmanagement, we are discussing a vastly alteredlandscape. There are classes of records that arenowadays created and stored in exclusively electronic

FROM €950 ex VAT

THE LEADING ACCOUNTS PACKAGE FOR LEGAL FIRMS

HARVEST SOFTWARE, UNIT 37, JOHNSTOWN BUSINESS PARK, WATERFORD

TEL 051-872111 FAX 051-872880 E-MAIL [email protected]

� Complete management accounts

� Used by over 400 Irish legal firms

� Free conversions from other accounting systems where possible

� Contact us for a free demonstration CD

THE GOLDEN PATH TO PROFITTHE GOLDEN PATH TO PROFIT

EUROPEAN INTELLECTUAL PROPERTY EXPERTS

Core Services

Patent Application Preparation

International & Domestic Patent Protection

Brand Clearance & Searching

International & Domestic Trademark Protection

Design Registration & Protection

Licensing, Ownership & Technology Exchange

Enforcement of IP Rights

FULL DETAILS OF OUR SERVICES, TECHNICALEXPERTISE & CLIENTS ARE AVAILABLE ON OURWEBSITE WWW.TOMKINS.COM

5 Dartmouth RoadDublin 6

T 01 660 5033F 01 660 6920E [email protected] www.tomkins.com

Practice management


37

media. A major sticking point is that employees viewthese forms of communication, particularly email, aspersonal correspondance, when in fact they arebusiness transactions that can be easily traced to theissuing organisation. For this reason, law firms andtheir clients need to be very aware that emails, SMSand ‘Messenger’ have all been the subject of legaldiscovery.

Loose lipsTake, for example, the recent legal wrangle betweenMicrosoft and Netscape. Microsoft learnt the pain of

saving too much archived mail when discoveryuncovered a delicate internal mail from AOL,reportedly recounting a meeting with Microsoft bossBill Gates, which described him as saying, “Howmuch do we need to pay you to screw Netscape?”This led to ancient emails being uncovered andquoted in court. So what should you do? Thestandard legal suggestion, which Microsoft, Netscapeand others have adopted, is to delete all mail, otherthan those that they are legally bound to preserve.

There must also be a clear policy in place toensure that no libellous or sensitive businessinformation about your company or its clients isunwittingly passed on.

The most valuable way of increasing efficiency,saving storage space and ensuring legal complianceis to recognise the difference between a record and adocument. ISO 15489, the international recordsmanagement standard, defines a record as“information created, received and maintained asevidence and information by an organisation orperson, in pursuance of legal obligations or in thetransaction of business”.

The trick to successfully organising your records,both electronic and manual, is being able to identifythese key pieces of information and ensure they areproperly looked after, while extraneous material(normally around 40% of what is kept by an averagebusiness) is disposed of. Once this concept is clearlyunderstood, the next step is producing a recordsmanagement policy.

To recap on the deputy data commissioner’swords, you won’t get in trouble if you have a recordsmanagement policy, but there is an issue if youdon’t. When beginning this process, it is importantto remember that about three weeks’ work can bringyou very close to implementing an effective recordsmanagement policy. From cost and time savings toclearing up valuable office space, the benefits ofhaving a clear document retention and destructionpolicy clearly outweigh the initial work that needs tobe done. Every legal firm should make it a priorityto implement a solid records management policyand relegate images of dusty old solicitors’ officesstrictly to the past.

Martin Bradley is a professional archivist and theexecutive director of Archives Consulting Services Ltd.

G

1) Survey and list all your files, electronic and manual.Until you know what you have, it is impossible tomake any decisions about what to keep.

2) Create a file taxonomy. This is essentially a familytree of your records, normally broken down bydepartment or business function, to enable you togroup your records together.

3) Decide on retention periods. Once you have ataxonomy in place, it is possible to assign retentionperiods to the various series of files your businesscreates to ensure that they are only held for thecorrect length of time according to legal andadministrative requirements.

4) Index and reference records. It is essential that youare able to find your records when you need to, somany businesses take the opportunity ofretroactively assigning reference numbers to all theirfiles and linking these to a database in order to findfiles. This is also the time to put systems in placethat ensure when a new record is created, it isautomatically assigned a reference number to trackit throughout its life cycle.

5) Seek ISO 15489 certification, the internationalrecords management standard, and certification thatensures your records management meets thatstandard. This is useful, both from the point of viewof internal audit and in assuring your customers,and the regulatory authorities, that you take recordsmanagement seriously and have attained a highstandard.

PUTTING A POLICYIN PLACE

An effective policy:1) Assigns responsibility to staff to ensure that records are properly

kept;2) Applies to all paper records, electronic and manual;3) Follows a record’s life-cycle from creation to ultimate archiving or

destruction;4) Sets out retention periods dictating the length of time that a

record is kept in the office, how long it is maintained as a non-current record in offsite storage, and then whether it is destroyedor maintained permanently after a set period of time;

5) Ensures security and business continuity. Security is a keyelement of the Data Protection (Amendment) Act 2003 and it isimportant to ensure that information in both electronic andmanual filing systems is only seen by those who have a need tosee it, and, perhaps more importantly, that it cannot be modifiedwithout an audit trail;

6) Enables legal destruction of listed records. Quite simply, it is notsafe to shred anything unless you have a stated policy thatclassifies records and allows for their destruction after a certainamount of years in line with legal and administrative requirements.

SIX ELEMENTS OF A RECORDS MANAGEMENT POLICY

PROFESSIONAL INDEMNITY INSURANCE

NetWork Risk Health & Safety Ltd is regulated by the Irish Financial ServicesRegulatory Authority as an Authorised Advisor.

CONTACT:• Paul D. Jackson, Director.

E-mail: [email protected].• Louise Townsend, Senior Account Executive.

E-mail: [email protected]: 01 - 2960163. Fax: 01 - 2960216.Postal: 1st Floor, 16/17 Main Street, Dundrum,

Dublin 14.HAYS DX: Irish Document Exchange DX 76 001

DUNDRUM.

Whether you are a large practice or a sole practitioner, urban or rural, with a claims or potentialclaims history or not, NetWork can offer you alternative insurance terms.

We can obtain competitive Professional Indemnity Insurance quotes and terms in both the Irish andUK markets and provide excess cover limits where required.

1. Our application form completed and returned as soon as possible. (Available on page 44 of the October issue of theLaw Society Gazette.)

2. Additional information elaborating on questions in the form, asappropriate.

3. Details of any non-legal services which you require covered.

4. Where there is a claims history - whether claims are settled ornot – details of the claim(s) and a narrative outlining actiontaken as a result, that would prevent a similar occurrence inthe future.

OUR APPLICATION FORM IS AVAILABLE BY EMAIL,IN MS WORD FORMAT.

In order to provide you with the best quote/terms in as short a period of time as possible, the following will be required:

WHERE THERE’S A WILLTHIS IS THE WAY…

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

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

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

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

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

DFS Document StorageDocument Storage & Retrieval

Deed Storage

Tape Storage

Online Backup of PC data

Daily Deliveries

Secure Facility

Fireproof Vault

Destruction & Scanning

Boxing of files in your office

We meet the Brief!

Unit 12 Dunshaughlin Business Park

Dunshaughlin Co.Meath

Tel: 01 824 0600 Fax: 01 824 0601

www.documentstorage.ie

[email protected]

netWork risk health & safety ltd.

Briefing


43

Practice notes

The Land Act 2005 has nowbeen enacted and all sections

of the act have been commencedby statutory instrument, opera-tional from 4 November 2005 forall sections of the act, with theexception of section 5. The opera-tional date for section 5 was 2December 2005.

Repeal of sections 12 and 45 ofthe Land Act 1965Sections 12 and 45 of the LandAct 1965 and section 6 of theLand Act 1946 are fully repealedwith effect from 4 November2005. Section 12 of the Land Act2005 contains the specific repealprovisions.

In the circumstances, consentswill no longer be necessary fromthe Land Commission/ministerfor agriculture and food for: 1) The subdivision of holdings, or 2) The purchase of land by non-

qualified persons.

The administrative practise of

issuing retrospective consentsalso ceased from 4 November2005.

In this regard, the followingarrangements have been agreedby the Department of Agriculturewith the Land Registry office.Where a deed of transfer hasbeen executed prior to the date ofcommencement of the Land Act2005, without the necessary con-sents being sought and issued,contact should be made by the rel-evant solicitor with the depart-ment’s office at Farnham Street,Cavan, to request a letter of con-firmation (for lodgement with theLand Registry dealing) that if theconsents had been applied for atthe appropriate time (prior to theoperation of the act), the relevantconsents would have been issuedat that time.

Land purchase annuitiesThe act provides that any land pur-chase annuity with an outstandingbalance of under €200 is written

off as and from 4 November2005. This leaves approximately2,300 remaining land purchaseannuities that may be bought outat a 25% discount during a periodof six months from 1 January2006; alternatively, people maywish to continue to discharge theannuity in the usual way until thefull loan is paid off.

Practitioners should note thatthe letter of confirmation referredto in relation to sections 12 and45 above does not remove therequirement to obtain a specificcertificate from the Departmentof Agriculture in respect of theclearance of any current land pur-chase annuity arrears, as set outin section 5 of the act. This wouldarise where an annuitant decided,for whatever reason, not to availof the proposed discounted buy-out and continued with their annu-ity repayments until the full loanwas paid off.

Section 5 of the Land Act 2005provides for a certificate of clear-

ance being furnished to the LandRegistry in respect of annuityarrears where a transfer of landsubject to an annuity is presentedfor registration in the registry. It ispossible that there may be trans-fers in existence that, while exe-cuted prior to the commencementof the Land Act 2005, will only bepresented to the Land Registryafter the Land Act 2005 com-menced. In order to provide forthis eventuality, the departmentindicated that section 5 would becommenced on 2 December2005, approximately one monthafter the date for commencementof the other provisions of the LandAct 2005.

Any dealing involving land, thesubject of a trust scheme set upunder sections 4 and 20 of theLand Act 1903, as extended, con-tinues to require the appropriatespecific consent from the ministerfor agriculture and food under sec-tion 30 of the Land Act 1950.

Conveyancing Committee

LAND ACT 2005 – REPEAL OF SECTIONS 12 AND 45 OF THE LAND ACT 1965

ACTING FOR BOTH VENDOR AND PURCHASER IN SALE AND PURCHASE OF NEWHOUSES AND APARTMENTS: NOTICE TO ALL PRACTISING SOLICITORS

The attention of practisingsolicitors is drawn to the

Solicitors (Professional Practice,Conduct and Discipline)Regulations 1997 (SI 85/1997).

Under these regulations, asolicitor is prohibited from actingfor both vendor and purchaser inthe sale and purchase for value ofa newly constructed residentialunit or a residential unit in courseof construction, where the vendoris the builder of that residentialunit or is associated with thebuilder of that residential unit.

This prohibition does not applyin the following situations, unlessthere is a conflict of interestbetween the vendor and the pur-chaser:1) Where the vendor and the pur-

chaser are associated compa-nies or the purchaser is a mem-

ber, director or employee of thevendor or an associated com-pany of the vendor;

2) Where the vendor or, where thevendor is a corporate entity, anymember or director of the ven-dor, is related to the purchaserby blood, adoption or marriage.

In the regulations, ‘residentialunit’ means a house or apartmentintended for use as a residence.

Any breach of the regulationsmay, on due enquiry by theSolicitors Disciplinary Tribunal, befound to be misconduct.

Practitioners from all areas ofthe country have brought to theattention of the Law Society thefact that some solicitors actingfor builders/vendors in the saleof new estate houses or apart-ments are also routinely acting

for purchasers of those new resi-dential units, in apparent breachof the provisions of the abovestatutory instrument. This activityhas been reported both in caseswhere the solicitor acting for thebuilder/vendor acts for the occa-sional purchaser in the develop-ment and in cases where thesolicitor acting for thebuilder/vendor systematicallyacts for all purchasers in thedevelopment. It is a source ofgreat concern to the society thatsome practitioners continue toact in breach of the provisions ofSI 85/1997 in this manner,notwithstanding the fact that thesociety has previously success-fully prosecuted such a breach ofthe law before the DisciplinaryTribunal, as repor ted in theNovember 2004 issue of the Law

Society Gazette.Breaches of SI 85/1997 will be

referred to the Complaints andClient Relations Committee andmay result in referral to theDisciplinary Tribunal.

Any solicitor who may alreadybe in the course of acting for bothparties in the sale and purchaseof a new residential unit or a resi-dential unit in the course of con-struction, in breach of SI85/1997, should immediatelymake arrangements to cease toso act in cases where the salehas not yet taken place and wherea lending institution or other thirdparty has not already acted inreliance upon an undertakinggiven by the solicitor acting in thetransaction.

Registrar of Solicitors,Conveyancing Committee

Briefing


44

PRACTISING CERTIFICATES 2006: NOTICE TO ALL PRACTISING SOLICITORS

It is misconduct and a criminaloffence for a solicitor (other than

a solicitor in the full-time service ofthe state) to practise without a prac-tising certificate. Any solicitor foundto be practising without a practisingcertificate is liable to be referred tothe Solicitors Disciplinary Tribunal.

When you must applyA practising certificate must beapplied for on or before 1 Februaryin each year in order to be dated 1January of that year and therebyoperate as a qualification to prac-tise from the commencement of theyear. It is a legal requirement for apractising solicitor to deliver orcause to be delivered to the regis-trar of solicitors at the society’spremises at Blackhall Place, Dublin7, on or before 1 February 2006, anapplication in the prescribed formduly completed and signed by theapplicant solicitor personally. Theonus is on each solicitor to ensurethat his or her application form isdelivered by Wednesday 1 February2006, with the appropriate fee.

What happens if you apply lateAny applications for practising cer-tificates that are received after 1February 2006 will result in thepractising certificates being datedthe date of actual receipt by the reg-istrar of solicitors, rather than 1January 2006. There is no legalpower to allow any period of graceunder any circumstances whatsoev-er. Please note that, again during2005, a number of solicitors went

to the trouble and expense of mak-ing an application to the High Courtfor their practising certificate to bebackdated to 1 January becausetheir practising certificate applica-tion was received after 1 February.

The Regulation of PracticeCommittee (formerly the Comp-ensation Fund Committee) is thecommittee of the Law Society thathas responsibility for supervisingcompliance with practising certifi-cate requirements. There will be aspecial meeting of this committeeon 9 February 2006 to consider anylate or unresolved applications forpractising certificates. At this meet-ing, any practising solicitors whohave not applied by then for a prac-tising certificate will be consideredfor referral forthwith to theSolicitors Disciplinary Tribunal andwill be informed that the societyreserves the right to take proceed-ings for an order under section 18of the Solicitors (Amendment) Act2002 to prohibit them from practis-ing illegally.

What you need to do about professional indemnity insuranceIf confirmation of mandatory profes-sional indemnity insurance cover isnot received, the registrar of solici-tors is precluded by law from issu-ing a practising certificate. All solic-itors who are required to have pro-fessional indemnity insurance coverare asked to ensure that either theyor their broker furnishes the societywith confirmation of cover as soonas cover is renewed.

If mandatory professional indem-nity insurance is not in place on 1January 2006 and cover com-mences from a date after 1January, the practising certificatewill issue with effect from the dateof the commencement of cover. It isnot possible in such circumstances,even by application to the HighCourt, to have a practising certifi-cate made effective from 1 January.

Compliance partnerThis year, for the first time, theapplication form (section B, part I)includes a requirement for partnersto state the name of their firm’scompliance partner. The Solicitors’Accounts (Amendment) Regulations2005 require a solicitor who is apartner in a solicitors’ practice, onmaking application to the society fora practising certificate in respect ofthe practice year 2006 and subse-quent years, to furnish the name ofthe partner who has been nominat-ed as the compliance partner.

Continuing professional development (CPD)This year, for the first time, theapplication form includes a sectionregarding completion of, or exemp-tion from, the 20-hour CPD require-ment (section E). You must com-plete this section, but please do notsend in your CPD record card withthe application form.

If you are an employed solicitorSolicitors who are employed shouldnote that it is the statutory obliga-

tion of every solicitor who requires apractising certificate to ensure thathe or she has a practising certifi-cate in force from the commence-ment of the year. Employed solici-tors cannot absolve themselvesfrom this responsibility by relying ontheir employers to procure theirpractising certificates. However, itis the society’s recommendationthat all employers should pay forthe practising certificates of solici-tors employed by them.

Some of your details are alreadyon the application formThe practising certificate applica-tion form will be issued with certaininformation relating to each solici-tor’s practice already completed.

What you can access on the website (www.lawsociety.ie)The application form for a practisingcertificate will be available on thesociety’s website. You can print outa blank form or, alternatively, com-plete the form on-screen and printout the form for signing and return-ing. The form can be accessed inthe members’ area of the websiteusing the solicitor’s surname andreference number (which will bestated on page 1 of the applicationform).

If you are ceasing practiceIf you are intending to cease prac-tice in the coming year, please noti-fy the society accordingly.John Elliot, Registrar of Solicitors

and Director of Regulation

Recent reports from practition-ers that they have been

requested by the stamp duty officeto insert certificates in deeds thatthe aggregate amount or value ofthe consideration exceeds €___(the top threshold amount) havebeen raised by the committee withthe Revenue. It has now been con-firmed by the Revenue that wherethe consideration exceeds the topstamp duty threshold, currently

€635,000 for residential propertyand €150,000 for non-residentialproperty, it is not necessary toinsert a certificate in the instru-ment certifying that the aggregateamount or value of the considera-tion exceeds the top thresholdamount. In such cases, stamp dutyis chargeable at the top rate of 9%on the consideration.

It has also been confirmed bythe Revenue that where the instru-

ment relates to both residentialand non-residential property andthe consideration for either the res-idential property or the non-resi-dential property is less than theappropriate top stamp duty thresh-old, it is only necessary to includea certificate relating to the consid-eration for the property for which alower stamp duty rate is beingsought.

The Revenue has advised that if

Law Society members are encoun-tering any difficulties in relation tothe above certification require-ments, they should in the firstinstance raise the matter with themanagement in the relevant stampduty office and, if necessary, revertto the committee who will take thematter up on their behalf withRevenue if there continues to be adifficulty.


STAMP DUTY CERTIFICATES WHERE CONSIDERATION EXCEEDS THE TOP STAMP DUTY THRESHOLD

Briefing


45

SOLICITORS’ ACCOUNTS (AMENDMENT) REGULATIONS 2005: NEW REQUIREMENTS

The attention of solicitors isdrawn to the new requirements

imposed on solicitors by theSolicitors’ Accounts (Amendment)Regulations 2005 (SI no 719 of2005). These regulations cameinto force on 1 December 2005.

These requirements have beenintroduced to bring into focus thefact that it is the responsibility of asolicitors’ firm to secure and con-firm compliance with the accountsregulations and that this responsi-bility cannot be passed on to thefirm’s accountants.

In addition to a firm’s reportingaccountant’s report being submit-ted to the Law Society, a Form ofAcknowledgement must also besubmitted. This is a statement byan authorised person in the solicitors’ firm itself that confirmscompliance with the accounts regulations. The Form of

Acknowledgement will form part ofthe annual reporting accountant’sreport submitted to the societypursuant to the Solicitors’Accounts Regulations 2001 to2005.

This form is required in respectof accounting periods ending on orafter 1 January 2006.

Contents of the Form ofAcknowledgementIn the Form of Acknowledgment,the authorised solicitor confirms: a) That he/she recognises the

solicitor’s/partnership’s obliga-tions under the Solicitors’Accounts Regulations 2001 to2005 to secure compliancewith the regulations; and

b) That he/she is aware of the for-mat and contents of the report-ing accountant’s report, whichhe/she has discussed with the

reporting accountant to theextent necessary to understandits effect upon the solicitor’s/partnership’s discharge of obli-gations under the Solicitors’Accounts Regulations 2001 to2005.

Sole practitioner/compliancepartnerIn the case of a sole practitioner,or sole principal, the principal ofthe practice must sign the Form ofAcknowledgment. In the case of apartnership, the members of thepartnership are required to nomi-nate a ‘compliance partner’ forcompleting and signing the Form ofAcknowledgment on behalf of allthe partners of the partnership.

The identity of the compliancepartner must be notified to thesociety in writing by each partnerof the practice when making their

application to the society for apractising certificate. Any changein the identity of the compliancepartner should be notified to thesociety within 14 days.

In the event of a new partner-ship being formed during a prac-tice year, a solicitor who becomesa partner in the partnership mustensure the society is notified ofthe name of the partner who hasbeen nominated as the compli-ance partner within 14 days.

In the event of a change in thecompliance partner in the courseof the practice year, the Form ofAcknowledgment must be signedby both the outgoing compliancepartner and the incoming compli-ance partner, specifying the periodduring the practice year that eachwas the compliance partner.John Elliot, Registrar of Solicitors

and Director of Regulation

You have either recentlyrenewed your professional

indemnity insurance cover witheffect from 1 November 2005 or,alternatively, are arranging torenew your cover with effect from1 January 2006. You should notethat if you are changing from aninsurer who provided cover to 31October to an insurer who pro-vides cover for the calendar year,you should ensure that you havecover for a 14-month period – thatis, 1 November 2005 through to31 December 2006 – in order tohave no break in your cover. Thisis a matter of the utmost impor-tance.

As professional indemnityinsurance operates on a claims-

made basis rather than an occur-rence basis, the relevant cover isthe cover in place when you firstbecome aware of a potential claimand notify your insurer accordinglyand not the cover in place whenyou provided the legal services.

The society must receive con-firmation of cover on behalf ofeach solicitor/practice in order toissue a practising cer tificate.Therefore, it is essential that thesociety is in receipt of confirma-tion that you have professionalindemnity insurance in place priorto issuing you with a practisingcertificate in January 2006. Inthat regard, you should ensurethat either you, your insurer oryour broker has furnished the

society with confirmation that youhave professional indemnitycover in place with effect fromeither 1 November 2005 or 1January 2006 (precedent formsof confirmation of cover are avail-able from the society).

If your professional indemnityinsurance is not in place on 1January 2006 and cover com-mences from a date after 1January, your practising certificatewill issue with effect from thedate of the commencement ofyour professional indemnity insur-ance cover. For example, if yourprofessional indemnity insurancecover commences on 7 January2006, your practising certificatewill issue with effect from 7

January 2006 (not 1 January2006). The consequent gap in theperiod for which you have held apractising certificate may give riseto problems. In this regard, youshould note that it is not possiblein such circumstances, even byapplication to the president of theHigh Court, to have your practis-ing cer tificate made effectivefrom 1 January, as such an orderis not provided for within theProfessional Indemnity InsuranceRegulations (SI no 312 of 1995).

You should contact the societyif you wish to seek clarification onany issues raised.

Jerome O’Sullivan, chairman,Professional Indemnity Insurance Committee

PROFESSIONAL INDEMNITY INSURANCE MATTERS

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

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

Briefing


46

The Conveyancing Committeewas recently asked by practi-

tioners to ascertain the RevenueCommissioners’ requirements inrelation to the stamping of deedswhere the consideration for a saleor lease includes VAT. Some prac-titioners had reported to the com-mittee their experience of beingasked by Revenue to produce VATinvoices or VAT receipts in circum-stances where they had lodgedtransfers, conveyances or leasesfor assessment for stamp dutypurposes accompanied by PDform and contract for sale and/orbuilding agreement.

The committee has receivedconfirmation from the Revenue asfollows:

“Sections 48 and 56 of theStamp Duties Consolidation Act1999 provide that the chargeableconsideration for stamp duty pur-poses is to exclude any VATchargeable under section 2 of theVAT Act 1972 on the sale or lease.

“While it is not normal practiceto seek VAT invoices or receiptswhere the above provisions apply,evidence, in the form of invoicesor receipts, has been soughtwhere the VAT position has notbeen clear from the documenta-tion furnished. Where the VATposition is clearly set out in the

contract for sale and/or buildingcontract, there should be nonecessity for production of anyfurther evidence in support of theexclusion of VAT from the charge-able consideration. If the VATposition is not reflected in thecontracts and the exclusion ofVAT is being claimed, the solicitorshould clearly outline the VATposition in a covering letter, show-ing how the net of VAT considera-tion has been calculated. The pro-duction of VAT invoices or receiptsshould only arise where there issome element of doubt regardingthe VAT treatment of the transac-tion.”

It is very important that the cor-rect VAT position is outlined at thedate of stamping to ensure thatyour client does not pay stampduty on the VAT element of theprice. If members are encounter-ing any difficulties in relation tothe VAT treatment of a particulartransaction, the matter in the firstinstance should be raised with themanagement of the relevantstamp duty office and, if neces-sary, they can revert to the com-mittee, which may be able to takethe matter up with Revenue ontheir behalf if there continues tobe a difficulty in this area.


CRO FEE CHANGES

With effect from 1 December, the Companies Registration Officefees changed for a range of activities such as filing annual

returns, change of company name and change in company/secretarydetails. Full details are contained in SI no 517 of 2005 and are alsoavailable on the CRO website.

Business Law Committee

STAMP DUTY WHERE CONSIDERATIONFOR A SALE OR LEASE INCLUDES VAT Most solicitors will already be

aware that companies canfile documents electronically inthe Companies RegistrationOffice (CRO). An important newchange is introduced by sections57 and 58 of the InvestmentFunds, Companies andMiscellaneous Provisions Act2005 that allow for the appoint-ment of an electronic filing agent.A company may authorise a per-son (known as an electronic filingagent) to sign and deliver elec-tronically documents that arerequired to be filed in the CRO.Electronic signature and deliveryof documents by an electronic fil-ing agent is as valid in law as if ithad been done by the companyitself.

In order to become an elec-tronic filing agent, the agent mustapply to the CRO to act as suchon the new form J1(a). This formalso acts as an application to theCRO for a digital certificate andnominates a named individualwithin the agent’s firm who willverify the signing of documentswith a single ID and PIN. The sig-natory must then apply to theCRO for an ID and PIN on form J2,both of which will then bereturned to the agent’s residen-tial address.

A company wishing to autho-rise an electronic filing agent toact on its behalf must file a formB77, which notifies the CRO ofthis authorisation.

It is imperative that solicitorsacting as electronic filing agentstake special care to ensure thatthe contents of forms and returnssigned and delivered by them are

accurate in all material respects.Section 242 of the CompaniesAct 1990 makes it an offence forany person to file a return in theCRO that is false in a materialparticular and that the personknows to be false. An electronicfiling agent clearly comes withinthe ambit of section 242.However, section 71 of theInvestment Funds, Companiesand Miscellaneous Provisions Act2005 amends section 242 of the1990 act by inserting the follow-ing new subsection: “(1A) A per-son who knowingly or recklesslyfurnishes false information to anelectronic filing agent that is sub-sequently transmitted in a returnmade, on the person’s behalf, tothe registrar of companies shallbe guilty of an offence.”

In summary, therefore, anelectronic filing agency is guilty ofan offence if he or she knowinglycompletes, signs or delivers adocument that is false in a mate-rial particular. If a director or offi-cer of a company upon whom theelectronic filing agent relies forthe accuracy of the informationknowingly or recklessly furnishesfalse information to the electronicfiling agent, that director or officeris guilty of an offence.

It is recommended that a solic-itor acting as an electronic filingagent sends out a return in draftform – and where practicable in aprotected format – to the compa-ny, prior to signing and deliveringit to the CRO, and requests thecompany to confirm that the infor-mation in the return is completeand accurate.


ELECTRONIC FILING AGENTS

INSTALLATION AID SCHEME FOR YOUNG FARMERS

It was previously a requirementfor eligibility for the above

scheme that applicants wouldhave to show evidence that someof the set-up costs of the schemewere outstanding for payment atthe time of making the applica-tion. This had resulted in manysolicitors for applicants beingasked for a letter saying that

their legal fees were still out-standing at the date of applica-tion.

Having considered representa-tions by the ConveyancingCommittee, the minister for agri-culture and food indicated in arecent letter that she agrees thatthe conditions of the currentscheme may be excessive, in

that they require some or all ofthe set-up costs to be outstand-ing at the time of applications.The minister has thereforeagreed to amend the terms ofthe scheme so that applicantswill be required merely to provideproof that set-up costs havebeen incurred and to produce evi-dence of such costs by way of an

original or certified copy of anappropriate invoice or receipt.The minister has indicated thatthis amendment will be includedin the scheme as soon as possi-ble, but administrative arrange-ments will be made to have theamendment applied to pendingapplications.


Briefing


47

SOLICITORS DISCIPLINARY TRIBUNALThese reports of the outcome of Solicitors Disciplinary Tribunal inquiries are published by the Law Society of Ireland as providedfor in section 23 (as amended by section 17 of the Solicitors (Amendment) Act, 2002) of the Solicitors (Amendment) Act, 1994

THE HIGH COURT 2005 No 49 SAIn the matter of Keith Finnan,a solicitor practising underthe style and title of KeithFinnan & Co, Humbert Mall,Main Street, Castlebar, CoMayo, and in the matter of theSolicitors Acts 1954-2002The Law Society of Ireland(applicant)Keith Finnan(respondent solicitor)

On 10 October 2005, the presi-dent of the High Court heard anappeal against the finding of theDisciplinary Tribunal followinghearings on 16 September 2004,9 November 2004, 2 February2005 and 3 May 2005 that therehas been no misconduct on thepart of the respondent solicitor inrespect of the complaints set outin the society’s affidavit sworn on2 April 2004 in relation to the

solicitor’s failure to file hisaccountant’s report for the yearended 31 January 2003, in breachof regulation 21(1) of theSolicitors’ Accounts Regulations2001 (regulation 21, statutoryinstrument no 421 of 2001) in atimely manner or at all. The pres-ident: 1) Set aside the finding of the

Disciplinary Tribunal in rela-tion to the finding that thesolicitor was not guilty of mis-conduct,

2) Did not impose a penalty orsanction, and

3) Ordered that there be noorder as to the costs of theproceedings.

In the matter of Ian QuentinCrivon, practising under thestyle and title of O’Hagan,Ward & Company Solicitors,31/33 The Triangle, Rane-lagh, Dublin 6, and in the

matter of the Solicitors Acts1954 to 2002 [2196/DT15/05]Law Society of Ireland(applicant)Ian Quentin Crivon(respondent solicitor)

On 22 September 2005, theSolicitors Disciplinary Tribunalfound the respondent solicitorguilty of misconduct in his prac-tice as a solicitor, in that he failedto file his accountant’s report forthe year ended 31 October 2003in breach of regulation 21(1) ofthe Solicitors’ Accounts Regulations2001 (SI no 421 of 2001) in atimely manner, having only filedsame with the society on 7 Feb-ruary 2005. The tribunal orderedthat the respondent solicitor:a) Do stand advised and admon-

ished,b) Pay a contribution of €500 to

the Law Society of Ireland aspart of the society’s costs.

THE HIGH COURT 2005 No 58 SAIn the matter of Michael TPetty, a solicitor practisingunder the style and title ofMichael Petty & Company ofParliament Street, Ennis-tymon, Co Clare, and in thematter of the Solicitors Acts1954-2002

On 24 October 2005, MrJustice Finnegan, the Presidentof the High Court, ordered thatthe said Michael T Petty, solici-tor, do attend before this court(the president) on Friday 28October 2005 at 10.30am anddo produce in court on thatoccasion any or all files in hisand his office’s possession inrelation to the estate of adeceased named person for thepurposes of handing same overto the Law Society representa-tive in court. G

In the draft Land andConveyancing Bill 2005, pub-

lished in the Law ReformCommission’s latest Report onthe Reform and Modernisation ofLand Law and Conveyancing Law,it is proposed at section 129 thatapplicants for registration basedon adverse possession will, infuture, have to make such anapplication in court instead of byway of section 49 application tothe Registrar of Titles, as is cur-rently the case.

It is also proposed that legaltitle will not vest in the applicantwho obtains a court order until itis registered in the Land Registryand, until so registered, it willvest only an equitable interest inthe applicant. This applies inrespect of both registered andunregistered title.

Section 130 of the draft billprovides that the vesting ordershall be made only if the court issatisfied that certain criteria aremet and subject, if the court

thinks fit, to payment by the appli-cant of a sum of money to theowner by way of compensation forloss, defrayment of costs andexpenses or otherwise.

Practitioners with any pendingS49 applications (or any adversepossession claims in relation tounregistered land) may wish totake steps to expedite same inadvance of the introduction of anynew law or procedures in thisarea.

The proposed new requirement

for a court application and the pos-sibility of being required to paycompensation will radically changethe nature of adverse possessionclaims, and the ConveyancingCommittee would be greatly inter-ested in hearing from practitionerswith their views on these new pro-posals. Practitioners may alsowish to make submissions to theminister for justice, equality andlaw reform and/or to the LawReform Commission.


PROPOSED CHANGES TO LAW ON ADVERSE POSSESSION

BREACH OF UNFAIR TERMS ORDER MAY BE DEEMED TO BE MISCONDUCTHIGH COURT ORDEROn 20 December 2001, the HighCourt found that certain terms thathad been used in building agree-ments were unfair within the mean-ing of the European Communities(Unfair Terms in ConsumerContracts) Regulations 1995 (theUnfair Terms Regulations). Thisorder was based on an application

by the Director of Consumer Affairspursuant to the Unfair TermsRegulations, which application wasprompted by numerous complaintsby purchasers’ solicitors to theConveyancing Committee. Theorder directed that no personshould use such terms or termshaving a like effect in a buildingcontract.

Despite the making of the saidorder, a number of solicitors forbuilders are still using the prohibit-ed terms and terms having the likeeffect as those found to be unfair.The Complaints and Client Rela-tions Committee (formerly knownas the Registrar’s Committee), fol-lowing discussions with theConveyancing Committee, has indi-

cated that it will consider com-plaints against solicitors allegingbreaches of the High Court order.Any complaints arising from anysuch alleged breach that areupheld may be deemed to be mis-conduct and, if so found, will bedealt with accordingly.

Registrar of SolicitorsConveyancing Committee

Briefing


48

LEGISLATION UPDATE: 22 OCTOBER – 14 NOVEMBER 2005Details of all bills, acts and statu-tory instruments since 1997 areon the library catalogue,www.lawsociety.ie.

ACTS PASSEDAdoptive Leave Act 2005Number: 25/2005Contents note: Amends theAdoptive Leave Act 1995 and pro-vides for the revocation of theAdoptive Leave Act 1995(Extension of Periods of Leave)Order 2001 (SI 30/2001).Date enacted: 17/10/2005Commencement date: Com-mencement order(s) to be made(per s22(3) of the act)

Interpretation Act 2005Number: 23/2005Contents note: Provides for theinterpretation and application ofacts and of statutory instrumentsmade under acts; repeals andreplaces all of the former Interpre-tation Acts (1889, 1923, 1937,1993) except the Interpretation(Amendment) Act 1997.Date enacted: 17/10/2005Commencement date: 1/1/2006(per s1(2) of the act)

Land Act 2005Number: 24/2005Contents: Amends and extends theLand Purchase Acts. Repeals, witheffect from 4/11/2005, sections12 and 45 of the Land Act 1965,the result of which is that neithercertificates nor specific consentsare required for the subdivision ofholdings or the purchase of land bynon-qualified persons. Providesthat all land purchase annuities ofless than €200 shall stand dis-charged from 4/11/2005. Section5 of the act (which came into oper-ation on 2/12/2005) provides thatwhere land is subject to a land pur-chase annuity, that is, an annuityover €200, a certificate of clear-ance must be furnished to the LandRegistry in respect of annuityarrears where a transfer of land ispresented for registration in theLand Registry.Date enacted: 26/10/2005Commencement date: 4/11/2005 for all sections except sec-tion 5, which came into operationon 2/12/2005 (per SI 689/2005)

SELECTED STATUTORY INSTRUMENTSCompanies Act 1990(Uncertificated Securities)(Amendment) Regulations 2005Number: SI 693/2005Contents note: Amend theCompanies Act 1990 (UncertifiedSecurities) Regulations 1996 (SI68/1996) in order to facilitate theintroduction of a central counter-party (CCP) system for the Irishsecurities market.Commencement date: 10/11/2005

Companies (Auditing andAccounting) Act 2003(Commencement) Order 2005Number: SI 686/2005 Contents note: Appoints 1/12/2005 as the commencement datefor section 47 of the Companies(Auditing and Accounting) Act 2003insofar as that section is notalready in operation (see article 5of SI 132/2004).

Companies (Forms) (No 2) Order 2004Number: SI 694/2005

Contents note: Prescribes a newform B77 to be used for the notifi-cation by a company to theRegistrar of Companies of theauthorisation of an electronic filingagent, under section 57(4)(a) of theInvestment Funds, Companies andMiscellaneous Provisions Act2005, and for the notification by acompany to the registrar of the rev-ocation of authorisation of its elec-tronic filing agent, under section58(2) of the 2005 act. Commencement date: 1/12/2005

Investment Funds, Companiesand Miscellaneous Provisions Act2005 (Commencement) (No 2)Order 2005Number: SI 695/2005Contents note: Appoints 1/12/2005 as the commencement datefor sections 57, 58, 61 and 71 ofthe act.

Private Security Services Act2004 (Commencement) Order2005Number: SI 637/2005Contents note: Appoints 3/10/2005 as the commencement datefor sections 13 to 16, 21 to 28,34, 36 and 38, part 4 (s39), part 5(ss40 and 41), part 7 (ss48 to 52)and schedule 2 of the PrivateSecurity Services Act 2004.

Protection of Employees(Employers’ Insolvency) (Formsand Procedure) Regulations 2005 Number: SI 682/2005 Contents note: Prescribe revisedforms and certificates to be used inrelation to claims under section 6and section 7 of the Protection ofEmployees (Employers’ Insolvency)Act 1984.Commencement date: 2/11/2005

Road Transport Act 1999(Repeals) (Commencement)Order 2005Number: SI 683/2005Contents note: Appoints 31/10/2005 as the commencement datefor the repeal of sections of theRoad Transport Acts set out in theschedule to the SI, being provisionsrepealed by section 23 of the RoadTransport Act 1999.

Prepared by the Law Society Library

G

District Court (Estreatment ofRecognisances) Rules 2005Number: SI 704/2005Contents note: Amend scheduleB of the District Court Rules1997 (SI 93/1997) by the sub-stitution for the existing form of anew form 27.7, ‘Notice ofApplication for Warrant ofExecution’ (to enforce by commit-tal an order to estreat), underorder 27, rule 6(2).Commencement date: 7/12/2005

District Court (Refugee Act1996) Rules 2005Number: SI 687/2005Contents note: Amend theDistrict Court Rules 1997 (SI93/1997) by the addition of new

rules 10-15, ‘Procedure underRefugee Act 1996’, to order 38.Commencement date: 1/12/2005

District Court (TaxesConsolidation Act 1997)(Amendment) Rules 2005Number: SI 703/2005Contents note: Amend theDistrict Court Rules 1997 (SI93/1997) by the substitution insub-rule 7 of rule 2 of order 38of the words “has been or isabout to be committed” for thewords “has been or is or wasabout to be committed”, andsubstitutes new forms 38.12and 38.13.Commencement date: 7/12/2005

Rules of the Superior Courts(Commission to Inquire intoChild Abuse Act 2000) 2005Number: SI 674/2005Contents note: Correct a number-ing error in the Rules of theSuperior Courts (Commission toInquire into Child Abuse Act 2000)Rules 2004 (SI 884/2004). Sub-stitute ‘order 134’ for ‘order 133’in each place where that referenceappears. The amended numberingmeans that SI 884/2004 insertsa new order 134, ‘Commission toInquire into Child Abuse’, into theRules of the Superior Courts 1986(SI 15/1986).Commencement date: 26/11/2005

Rules of the Superior Courts(Takeover Schemes) 2005

Number: SI 688/2005Contents note: Amend order 75 of the Rules of the SuperiorCourts 1986 (SI 15/1986) andinsert a new rule 24 in order 75 providing for the proc-edure on applications under the Companies Acts in relationto takeover scheme proceed-ings.Commencement date: 5/12/2005

Sheriffs' Fees and ExpensesOrder 2005Number: SI 644/2005Contents note: Increases thefees charged by sheriffs andcounty registrars in the executionof court orders.Commencement date: 1/11/2005

Briefing


49

The Investment Funds,Companies and Miscellaneous

Provisions Act 2005 became law on30 June 2005. The dates on whichspecified provisions of the acthave come into operation are setout in commencement orders SIno 323 of 2005 and SI no 695 of2005.

The act was primarily enactedto facilitate a number of changesto investment funds law, whichwere required by that industry.However, the opportunity wastaken to make a number of otherchanges to company law thatwere either timely or long out-standing. This article highlightsthe main changes brought aboutby the act but does not constitutean in-depth analysis. For exam-ple, the act in parts 4 and 5 facil-itates the implementation of theMarket Abuse Directive andProspectus Directive and the pass-ing of the relevant regulationsrespectively. A review of thoseregulations will be important tounderstand the changes to com-pany and securities law broughtabout by those directives.

CCF fundPart 1 of the act contains proce-dural provisions. Part 2 of the actintroduces new legislation for theestablishment of a non-UCITScommon contractual fund (CCF).A CCF is a fund created toachieve a look-through and taxtransparency for investors, initial-ly for pension funds. A CCF wasfirst created as a UCITS (‘under-takings for collective investmentin transferable securities’ – a formof retail investment fund createdpursuant to EU directives). Theintention is that the CCF will beextended to non-pension assets.By way of background, at the endof 2003, legislation was passed inIreland as part of the then new

UCITS Regulations, which enablethe establishment in Ireland of aninternationally recognised pool-ing pension structure as a UCITS.This pension pooling structure isnow commonly called a commoncontractual fund or CCF.

A CCF is regulated by the IrishFinancial Services RegulatoryAuthority (Financial Regulator).The act introduces new legisla-tion for the establishment of anon-UCITS CCF, whereby insti-tutional investors would be ableto invest in alternative asset classes that will be subject tomuch less restrictive investmentand borrowing restrictions. TheFinancial Regulator will exerciseregulatory control over the fundindustry for the new non-UCITSCCF and will have the power toimpose such conditions as it con-siders appropriate and prudent forthe orderly and proper regulationof the business of a non-UCITSCCF. One of the primary motiva-tions for the creation of such avehicle was to give certainty to thetax treatment of investments in,and investments by, an investmentfund. Historically, there was aquestion mark as to whethermany jurisdictions would accept atraditional Irish unit trust as a taxtransparent vehicle rendering thetax treaty between the jurisdictionof the investor and the jurisdic-tion into which the fund is invest-ing as the relevant tax treaty, asopposed to the Irish Double TaxTreaty. The creation of the CCFand approval of that structure bythe revenue authorities in the pri-mary jurisdictions has removedthat uncertainty.

Investment fundsPart 3 provides for amendmentsto part XIII of the 1990Companies Act (the ‘1990 act’) andagain is relevant to the invest-

ment funds industry. The pur-pose of part 3 is to provide for theintroduction of cross-investmentand segregated liability for invest-ment funds. Many investmentfunds are established as so-calledumbrella funds, which have thecapacity to facilitate a number ofdifferent investment funds withinthe one corporate structure. Twosignificant issues with such struc-tures were the inability of onesub-fund within the umbrella toinvest in another sub-fund of thesame umbrella and the potentialcross-liability between sub-fundswithin the one umbrella. Part 3 ofthe act has corrected these twoproblems. Section 25 amends the1990 act by the insertion of fivesections into part XIII of that actto provide for segregated liabilityfor investment funds. To providethe mechanism by which anyexisting umbrella fund wishes toavail of the benefits of segregatedliability, it must obtain approvalby way of special resolution of themembers. Where segregated lia-bility applies, any liabilities of asub-fund will be discharged sole-ly from the assets of that sub-fund. Segregated liability will notapply to umbrella funds that hadcommenced trading before thecommencement of the act, unlessthe members of the umbrellaresolve that it should (by specialresolution). The provisions forsegregated liability clarify theposition under Irish law but donot with certainty confirm theposition as might apply under thelaw of other jurisdictions towhich the investment fund maybe subject.

Competent authorityThe provisions of part 4 and theMarket Abuse Regulations 2005transpose into Irish law theMarket Abuse Directive (2003/

6/EC) and supplementary direc-tives 2003/124/EC, 2003/125/EC and 2004/72/EC.

The regulations apply to anyfinancial instrument admitted totrading on a regulated market (orwhere a request for admission totrading has been made) irrespec-tive of whether the transactiontakes place on that market.

As regards part 4 itself, itenabled the introduction of theregulations. It also repeals part Vof the 1990 act and the entire ofthe Companies (Amendment) Act1999, and it also deals with con-viction on indictment of offencesunder Irish market abuse law. Itprovides for a maximum fine of€10 million and/or ten years inprison on conviction. It also pro-vides for civil liability for certainbreaches of Irish market abuselaw.

Finally, part 4 creates the con-cept of ‘competent authority’,which will have the authority tomake rules and impose require-ments on persons on whom anobligation or obligations areimposed by Irish market abuselaw. Under the regulations, theFinancial Regulator will be thecompetent authority.

Securities lawDirective 2003/71/EC (theProspectus Directive) was imple-mented through the enactmentof part 5 of the act and theProspectus (Directive 203/71/EC)Regulations 2005, which cameinto force on 1 July 2005.

Part 5 also amends securitieslaw to correct a number of anom-alies that have plagued Irish com-pany and securities law for anumber of years.

One important effect of theprovisions of the act is that, incircumstances where an offer ofsecurities to the public is outside

Legislation focusInvestment Funds, Companies and MiscellaneousProvisions Act 2005

Briefing


50

the scope of the directive orwhere an offer is made in such away as to avail of an exemptionunder article 3.2 of the directive,there will be no requirementunder national law to prepare aprospectus, as had been the caseup to now.

One consequence of the actand the Prospectus Regulations isthat the definition of public offeris extremely wide and couldpotentially catch offers that werepossibly not anticipated.Arguably every offer, no matterhow informal or limited in scopeor number of offerees, falls intothe definition. While theProspectus Regulations provide forexemptions from some of therigours of the directive, the direc-tive would in fact apply to suchoffers. This consequence wasprobably not intended either byEurope or the authorities inIreland. It is likely that someremedial action will be necessaryin regard to this, but that is foranother day.

The Prospectus Regulationsrequire that no offer of securitiesto the public shall be made in thestate without the publication of aprospectus in respect of the offerthat has been approved by theFinancial Regulator or the com-petent authority of the homemember state (EU or EEA) of theissuer of the securities.

The regulations contain anumber of exemptions from therequirement to issue a prospectus,which include offers to the publicthat are:1) Addressed solely to ‘qualified

investors’;2) Addressed to fewer than 100

persons other than ‘qualifiedinvestors’;

3) Offers where the minimumconsideration payable is at least€50,000 per investor;

4) Offers whose denomination ofsecurities per unit is at least€50,000; and

5) Offers that expressly limit thetotal consideration for the offerto less than €50,000.

Part 5 provides for criminal andcivil sanctions in the event that aprospectus is issued and includes

any untrue statement, or does notcontain any information requiredby EU prospectus law. In the caseof civil liability, certain personsinvolved in the preparation andissue of the prospectus shall beliable to pay compensation to allpersons who acquire securities onthe faith of the prospectus thatcontained such untrue statementsor failed to provide such informa-tion as prescribed under EUprospectus law.

AmendmentsPart 6 of the act contains a num-ber of miscellaneous amendmentsto the Companies Acts 1963 to2003. Some of the amendmentsare clarificatory in nature andcorrect errors and omissions in the Companies Acts. Otheramendments have been made onthe recommendation of theCompany Law Review Group(CLRG).

From a practitioner’s perspec-tive, the following provisions ofpart 6 should be noted: 1) Section 56 amends section 60

of the Companies Act 1963 byreplacing the existing subsec-tions 12 and 13 of section 60with two new subsections 12and 13. The new subsection 12now lists a total of 14 excep-tions to the general prohibitionon the giving by a company offinancial assistance, as defined.A number of these amend-ments implement recommen-dation of the CLRG. Many ofthese exceptions will have theeffect of now permitting trans-actions over which, in the past,there was a doubt as towhether or not they constitut-ed financial assistance. While itis not proposed to list all of theexceptions here, the followingexceptions should be noted:a) The ‘payment’ by a compa-

ny of a dividend or the mak-ing by it of any ‘distribution’out of profits, available fordistribution, no longer con-stitutes financial assistance.The ‘properly declared’requirement no longerapplies.

b) The provision of finance ordelivery of security to refi-

nance an existing loan orother liability (which hadbeen previously given orprovided on foot of a specialresolution, passed in accor-dance with section 60), nolonger constitutes financialassistance. It should benoted that no specific refer-ence is made in the amend-ing provision to ‘guarantee’.It is an open question as towhether this was intentionalor was just loose drafting.

c) The making or giving by acompany of representations,warranties or indemnities toa party in connection with apurchase or subscription forshares in the company or inits holding company nolonger constitutes financialassistance.

d) The payment by a companyof fees and expenses of theadvisors of any subscriberfor shares in the company orin its holding company andwhich are incurred in con-nection with that subscrip-tion no longer constitutesfinancial assistance.

2) Section 57 allows a company toappoint electronic filing agentsto sign (electronically) and file,in electronic form, documentswith the Companies Registra-tion Office. This was recom-mended by the CLRG.

3) Section 67 amends 19(2) of theCompanies Act 1990. Section 19gives power to the Office of the Director of CorporateEnforcement (ODCE) torequire production of docu-ments. The amendment to sec-tion 19(2) allows the ODCE toissue directions to a bodyrequiring the production ofdocuments in circumstancessuggesting that the affairs ofthe body in question are beingor have been conducted in amanner that is unfairly prejudi-cial to some or all of its credi-tors.

4) Section 68 repeals section20(3) of the 1990 act.Subsection 3 provided that anymaterial information or docu-mentation seized by theODCE on foot of search war-

rants could only be retained forsix months or such longer peri-od as permitted by a judge ofthe District Court or until theconclusion of proceedings ifcommenced within the said sixmonths. Now the ODCE canretain information seized untilthe conclusion of any relevantproceedings.

5) Section 70 amends section 166of the 1990 act by substitutinga new subsection 1 for theexisting subsection 1.Effectively this means that acourt now has discretionregarding whether or notdirectors should file certainnotices (relating to director-ships and disqualifications) incivil and criminal proceedings.At present, such filings aremandatory. The amendmentwas made as it was felt that theold subsection 1 underminedan accused person’s privilegeagainst self-incrimination.

6) Section 71 amends section 242of the 1990 act. Section 242makes it an offence to “pro-duce, lodge or deliver” a docu-ment containing fake informa-tion to the CRO. The amend-ment extends the offence to aperson who “completes orsigns” such a document. Thisamendment was recommendedby the CLRG. In addition, itcreates a new offence where aperson knowingly or recklesslyfurnishes false information toan electronic filing agent that issubsequently transmitted in areturn made, on that person'sbehalf, to the CRO.

AnomalyPart 7 deals with a number ofmiscellaneous amendments totake-over, competition, con-sumer, industrial and providentsocieties legislation. For example,section 76 rectifies an anomaly inrelation to the authority of theCompetition Authority to retainbooks and records in respect ofproceedings. Consumer legisla-tion is amended to increase maxi-mum penalties on convictionunder those provisions.


Briefing


51

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

ARBITRATION

DamagesWhether arbitrators are immunefrom suit at common law –Arbitration Act 1954.The plaintiff was the successfulapplicant for the position ofassistant principal. The unsuc-cessful candidates for that posi-tion appealed the decision toappoint the plaintiff. Thoseappeals were adjudicated uponand allowed by the 13th-nameddefendant, who had beenappointed to act as arbitratorpursuant to an agreement con-tained in a circular letter gener-ated by the first-named defen-dant. Consequently, the plain-tiff’s provisional appointmentwas terminated and he institutedproceedings seeking, as againstthe 13th-named defendant, cer-tain declarations, an orderremitting the appeal to arbitra-tion, and damages for negligenceand/or breach of duty.Thereafter, the 13th-nameddefendant sought an order dis-charging him from those pro-ceedings.

Gilligan J discharged the 13th-named defendant from the pro-ceedings, holding that:1) Having regard to the provi-

sions of order 56, rule 4 of theRules of the Superior Courts, itwas not necessary for the 13th-named defendant to be a partyto these proceedings for thepurposes of obtaining thedeclaratory relief and orderremitting the appeals to arbi-tration as sought by the plain-tiff;

2) The arbitration agreementcontained in the circular letterfell within the terms of sec-tion 2 of the Arbitration Act1980 and was governed by theprovisions of the ArbitrationAct 1954, as amended.

Accordingly, the 13th-nameddefendant was acting as anarbitrator in an arbitrationgoverned by the 1954 act, asamended, and consequentlyhe was acting in a quasi-judi-cial capacity sufficient toattract immunity from suit atcommon law in the absence ofhaving acted in bad faith,which was conceded not tohave been the case.

Redahan v The Minister forEducation and Science, HighCourt, Mr Justice Gilligan,29/7/2005 [FL11359]

CRIMINAL

AssaultSerious harm – whether the evi-dence adduced established that theinjured party had suffered seriousharm – whether the term ‘seriousharm’ required proof of a perma-nent injury – Non-FatalOffences Against the PersonAct 1997.The applicant sought to appealhis conviction of assault causingserious harm on the basis thatthe evidence tendered by theprosecution did not complywith the detailed requirementsfor establishing that the injuredparty suffered ‘serious harm’ asdefined by section 1 of the 1997act and, further, that the trialjudge failed to properly or ade-quately direct the jury as to themeaning of ‘serious harm’under section 1 of the act. Theinjured party had given evi-dence of the injuries he had sus-tained and a consultant oph-thalmologist provided details ofthe injured party’s ‘seriousinjury’.

The Court of CriminalAppeal (Kearns, Lavan,O’Sullivan JJ) dismissed theappeal, holding that there was

ample evidence from which thejury could have formed the viewthat the injured party suffered asubstantial impairment of thefunction of his left eye, amount-ing to serious harm as definedby section 1 of the 1997 act.The term ‘serious harm’ did notper se require proof of an injurywith protracted consequences,and the consequences of thetreatment administered torepair/improve the injury oughtnot to be excluded as part of theharm suffered by the injuredparty. The trial judge adequate-ly and appropriately directedthe jury in the circumstances ofthe case.People (DPP) v Keith Kirwan,Court of Criminal Appeal,28/10/2005 [FL11413]

European lawEvidence – European Conven-tion on Mutual Assistance inCriminal Matters – Police(Property) Act 1897 – CriminalJustice Act 1994 – whether theappellant was entitled to receivenotice of an evidence-gatheringprocedure conducted by the first-named respondent.The appellant challenged thelawfulness of a decision of thefirst-named respondent to fur-nish certain items of evidence tothe third-named respondent(the minister) for the purposesof transmitting those to theBritish Crown ProsecutionService (CPS), pursuant to sec-tion 51 of the 1994 act, in con-nection with a criminal investi-gation into an unlawful killingin England. The appellant wasgranted, by way of an applica-tion for judicial review, an orderof certiorari quashing the afore-mentioned order of the first-named respondent. However,his application for a declarationthat section 51 was repugnant

to the constitution and an orderrestraining the transmission tothe minister of the items of evi-dence was refused. The appel-lant submitted that his naturaland constitutional rights werebreached by the failure to pro-vide him with notice of the pro-cedure before the first-namedrespondent and, further, thatthe procedure adopted unders51 operated to frustrate hisapplication under the 1897 actfor the return of his propertyand, in the circumstances,amounted to an abuse ofprocess.

The Supreme Court (MurrayCJ, Denham, McGuinness,Hardiman, Geoghegan JJ)allowed the appeal only insofaras to grant a declaration that theminister was not entitled totransmit to the English authori-ties the mobile phone, andquashed the order of the first-named respondent only insofaras it purported to be an order ofthe District Court, holdingthat: 1) So far as the mobile phone

was concerned, the requestwas confined to informationconcerning the usage of anymobile phone of the appel-lant. Consequently, it was notwithin the powers beingexercised by the first-namedrespondent to receive themobile phone as evidence orfurnish it to the minister.

2) The first-named respondentwas not exercising a judicialfunction in the administra-tion of justice; his task unders51 was purely administra-tive.

3) The items of evidence weretransmitted for the purposesof an investigation only and,consequently, the appellantwas not entitled as a right tobe present or represented at

Briefing


52

the procedure or to receivenotice of the procedurebefore the first-namedrespondent (McGuinness andHardiman JJ dissenting onthis point only).

4) There was no evidence fromwhich one could concludethat the s51 procedure wasinitiated so as to interferewith the procedure under the1897 act. Accordingly, therewas no abuse of process orunconstitutional interferencewith the appellant’s propertyrights.

Brady v District Court JudgeGerard Haughton, SupremeCourt, 29/7/2005 [FL11378]

DAMAGES

Practice and procedure Settlement – proceedings adjournedgenerally with liberty to re-enter –whether respondents breached termsof settlement – whether plaintiffhad compromised his claim for dam-ages – whether any purpose could beserved in re-entering proceedings.The plaintiff was diagnosed assuffering from autism.Proceedings were institutedagainst the respondents forbreach of his constitutionalrights. In July 1999,McGuinness J made an orderapproving a settlement andadjourning the proceedings gen-erally with liberty to re-enter.The applicant contended thatthe respondents breached theterms of the settlement andsought to re-enter the proceed-ings. The respondents contend-ed that the matters advanced bythe applicant as terms of con-tract were not that. They furthercontended that, under the settle-ment, they had paid a sum of£20,000 to the applicant and thatthis sum was a compromise ofthe compensation claimed in theproceedings.

O’Neill J refused to re-enterthe proceedings, holding that hewas satisfied as a matter of prob-ability that the respondents didnot enter into the kind of con-tractual obligations claimed bythe applicant. Their commit-

ments were merely statements ofintent. The payment of £20,000could not be understood other-wise than as a payment that com-promised the claim for damagesand no purpose could be servedin re-entering the proceedingsto enable the applicant to pursuehis claim for damages.O’Mahony v Minister forEducation and Science, HighCourt, Mr Justice O’Neill,6/4/2005 [FL11398]

FAMILY LAW

Judicial separation Financial provision – lump sum –periodic payments – ‘ampleresources’ cases – proper provision –statutory test and considerations –property adjustment order – conductof parties – whether so obvious andgross as to preclude court from disre-garding it – Judicial Separationand Family Law Reform Act1989, section 20(2)(i).Section 20 of the JudicialSeparation and Family LawReform Act 1989 provides,among other things, that, indeciding what is proper provi-sion for the parties consequentupon a decree of judicial separa-tion, regard should be had to,among other things, the contri-butions that each of the spousesmade to the welfare of the fami-ly, the conduct of the parties, if itwould be unjust to disregard it,and the standard of livingenjoyed by the family. Theapplicant entered into a relation-ship with another woman andapplied for a decree of judicialseparation, and the respondentcounter-claimed for ancillaryfinancial relief. She alleged thatthe conduct of the applicant in,effectively, abandoning the fami-ly should be taken into accountby the court when making finan-cial orders. The parties had sig-nificant assets and income.

O’Higgins J ordered that theapplicant provide to the respon-dent the sum of €3.3 million forthe purchase of a home in keep-ing with the standard of livingto which she had been accus-tomed in her married life,

€240,000 net per year mainte-nance for herself and €20,000for each of the dependant chil-dren, and that the respondenttransfer her shareholding in thecompany to the applicant. Thecourt held that, in arriving at adecision in relation to properprovision, it was required totake into account a number ofspecific factors as set out in the1989 act, these factors enjoyingno hierarchy vis-à-vis eachother, and that the importanceof each factor could vary sub-stantially from case to case. Inthe present case, the nature ofthe applicant’s business enabledhim to be around the homemore than in similar cases andwas a factor to be taken intoaccount in assessing the extentto which the presence of therespondent as the principalhomemaker enabled the appli-cant to generate the income. Inthose circumstances, the appli-cant’s presence in the home wasnot a factor to which any greatsignificance could be attached,the applicant’s ability to earn anincome not being dependant inany significant way on therespondent assuming the roleshe did. O’Higgins J also heldthat section 20(2)(i) of the 1989act obliged the court, whendeciding what financial ordersto make as would lead to properprovision for both parties, totake account of the conduct ofthe parties where it would beunjust not to do so, which was adifferent concept than that ofreparation of damage done bysuch conduct. The court shouldnot increase the financial provi-sion that it would otherwisemake to one of the parties,except in cases where miscon-duct on the part of the otherhad been obvious and gross.C v C, High Court, Mr Justice O’Higgins, 25/7/2005[FL11353]

JUDICIAL REVIEW

DiscriminationEducation – whether the plaintiff’sspecial educational needs, as a suf-

ferer of ADHD, were fulfilled bythe defendants.The plaintiff, who suffered fromAttention Deficit HyperactivityDisorder (ADHD) sought a dec-laration that the defendants dis-criminated against him inrespect of appropriate educationfacilities, compared to otherchildren, in failing to provideeducation for him appropriate tohis needs as a person sufferingfrom ADHD and deprived himof his constitutional rights pur-suant to articles 40 and 42. Theplaintiff also claimed damagesfor negligence, breach of dutyand breach of his constitutionalrights. The plaintiff completedprimary-level education and wasnot diagnosed as suffering fromADHD until he was due to com-mence his second year in sec-ondary school. The plaintiffreceived a number of detentionsand was eventually expelled fromsecondary school. However, hereceived private tuition, whichwas provided and paid for by hissecondary school. Thereafter,the plaintiff attended a vocation-al school and his conditionimproved.

Smyth J dismissed the plain-tiff’s case, holding that: 1) The staff at the plaintiff’s pri-

mary school were not negli-gent in failing to diagnose orto have diagnosed on refer-ence ADHD. Furthermore,the officers of the defendantsdid all they reasonably couldat the time to try to ensurethat the plaintiff received education appropriate to hisneeds.

2) The provision of privatetuition and a place in a voca-tional school amounted topositive discrimination by thedefendants and, as such,ought not to be considered asdiscrimination. Furthermore,the secondary school did notdiscriminate unfairly, unrea-sonably or at all in expellingthe plaintiff.

3) The plaintiff’s human, consti-tutional, statutory and com-mon law rights were fairly andproperly observed by both thedefendants and the schools

Briefing


53

the plaintiff attended. Clare v The Minister forEducation and Science, HighCourt, Mr Justice Smyth,30/7/2005 [FL11437]

PLANNING AND DEVELOPMENT

Judicial reviewLegitimate expectation – Planningand Development Act 2000 –Planning and Development(Amendment) Act 2002 –whether the applicant establishedsubstantial grounds for contendingthat the respondent’s decision toamend a scheme for the develop-ment of the Monaghan Town bypasswas invalid.The applicants sought leave toapply by way of judicial reviewfor orders of certiorari and man-damus in relation to the respon-dent’s decision regarding certainamendments to the MonaghanTown bypass scheme. The appli-cant also sought damages. Thesecond-named applicant (theapplicant) was the owner oflands located in the vicinity of aproposed roundabout includedas part of the scheme. The appli-cant alleged that, as a result ofrepresentations made by therespondent at a meetingbetween it and the applicant tothe effect that it would construct

a fifth spur off the roundaboutallowing access to the plaintiff’slands, he withdrew his objec-tions to the making of a compul-sory purchase order affectingpart of his lands. The applicantclaimed that he subsequentlyreceived notice that no fifth spurwas to be constructed as part ofthe scheme. The applicantalleged that the respondenterred in law by deciding toamend the scheme and by failingto honour the specific represen-tation given at the aforemen-tioned meeting. It was furthersubmitted that the respondentbreached the principles of natu-ral justice by failing to afford theapplicants the opportunity tocontest the proposed alteration.

Macken J granted leave toapply for judicial review, holdingthat it was not necessary todecide whether the alleged rep-resentations were made at themeeting between the parties.However, the plaintiff’s claim forlegitimate expectation fell withinthe established criteria. Further-more, the issues and legal argu-ments adduced by both sideswere of a serious nature andamounted to substantial grounds. Aughey Enterprise Ltd & BarryAughey v The County Councilof the County of Monaghan,High Court, Ms JusticeMacken, 15/6/2005 [FL11447]

TORT

Personal injuriesAssessment of damages – whetherthe injuries sustained by the plain-tiff in a road traffic accidentadversely affected his capacity tocontinue working.The plaintiff sustained injuriesto his back and knees as a resultof a road traffic accident inNovember 2000. The defen-dants conceded liability and thecase proceeded as an assessmentof damages only. However, thedefendants took issue with theeffects the injuries had on theplaintiff’s ability to work and,accordingly, his claim for loss ofincome. The defendants con-tended that a football injury sus-tained by the plaintiff in August2001 caused the long-term prob-lems in his lower back.Furthermore, the defendantsobjected to the manner of thepresentation of the plaintiff’sclaim for loss of earnings fromNovember 2000 to date and alsothe failure of the plaintiff to pro-vide documents supportive of hisclaim as to his previous earnings.

Budd J awarded total com-pensation amounting to€252,000 and costs to the plain-tiff, holding that:1) The impact in the road traffic

accident was the cause of theplaintiff’s back injury and his

disc rupture and the injuriesto his knees.

2) The plaintiff failed to estab-lish any loss of earnings inrespect of the period cover-ing 2004. However, he wasentitled to the agreed sum of€23,000 compensation forloss of earnings betweenNovember 2000 andDecember 2003.

3) The very fact that the plain-tiff had an operation on hislumbar spine and anarthroscopy of his left kneewould have a dire effect onhis employability, and it waslikely he would have to giveup strenuous heavy work inthe not-too-distant future.Accordingly, the plaintiff wasentitled to compensation inthe amount of €125,400, rep-resenting general damages inthe future, including loss ofemployability.

Smyth v Gilbert and Davies,High Court, Mr Justice Budd,22/7/2005 [FL11365]

The information contained here is taken from FirstLaw’s LegalCurrent Awareness Service, published every day on the internetat www.firstlaw.ie. For more infor-mation, contact bartdaly@ firstlaw.ieor FirstLaw, Merchant’s Court,Merchant’s Quay, Dublin 8, tel: 01679 0370, fax: 01 679 0057.

G

Briefing


54

Commercial agents: landmark decision of the High Court in Kenny v Ireland Roc Limited

Clarke J has delivered judg-ment in Michael Kenny v

Ireland ROC Limited on the pre-liminary issue of whether or notthe plaintiff constituted a com-mercial agent of the defendant forthe purposes of article 1(2) of thecouncil directive of 18 December1986 on the co-ordination of thelaws of the member states relatingto self-employed commercialagents (OJ 1986 L382/17) andthe European Communities(Commercial Agents) Regulations1994 and 1997. The plaintiff ranthe Martello Service Station ofthe defendant, which was a whol-ly owned subsidiary of EssoIreland Limited, which in turnwas a wholly owned subsidiary ofExxon Mobil Corporation ofNew York, USA. The plaintiffsold products on behalf of thedefendant that were broadly cate-gorised into two groups, namelypetrol products and non-petrol.

The preliminary issue waswhether the plaintiff constitutedthe commercial agent of thedefendant for the purposes of thedirective and regulations. Article1(2) of the directive stipulatesthat the commercial agent “shallmean a self-employed interme-diary who has continuingauthority to negotiate the sale orthe purchase of goods on behalfof another person, hereinaftercalled ‘the principal’, or to nego-tiate and conclude such transac-tions on behalf of and in thename of that principal”.

Three tests to establish commercial agencyThe High Court held that threetests must be satisfied in order toqualify as a commercial agent forthe purpose of the directive.Firstly, the agent must be self-

employed. Secondly, the agentmust have continuing authorityon behalf of the principal.Thirdly, the person must “nego-tiate the sale or the purchase” ofgoods. The High Court pointedout that the contentious issue inthis case was whether or not the

plaintiff negotiated the sale andpurchase of goods on behalf ofthe defendant.

The High Court confirmedthe following in relation tonegotiation:1) Haggling not required. ‘Active

bargaining’ or ‘haggling’ isnot required to qualify asnegotiation. The High Courtheld that the definition doesnot require a process of bar-gaining in the sense of invita-tion to treat, offer, counter-offer and acceptance.

2) The test. The High Court stat-ed that the proper approach tothe question of negotiationwas to consider whether theperson who may be said to benegotiating has to “deal with,manage or conduct” the saleor purchase concerned as perthe Oxford Dictionary defini-tion and, in doing so, the per-

son must use “some skill orconsideration”. The HighCourt ruled that the skill orconsideration must, in somemanner, be brought to bear onthe sale or purchase.

3) Different ways of doing businessand satisfying the test. The

High Court pointed out thatthe business of purchase orsale of goods is conducted invery many different ways,emphasising that in sometypes of business it would becommonplace for there to besignificant bargaining priorto any sale being concluded,and in other cases the pricewill be relatively fixed and themanner in which persons maysecure additional sales will beby virtue of other aspects ofthe way in which the goodsare presented to the public,such as through marketingand promotion or by theattractiveness of the presenta-tion of the product. TheHigh Court stated that theprecise way in which a partic-ular type of good is typicallysold should not necessarily bea significant factor in deter-

mining whether a personengaged in the sale of thatgood on behalf of a principalis to be regarded as a com-mercial agent. The test iswhether, having regard to themanner in which the sale ofthe good or goods concernedis carried out (or, where rele-vant, the purchase of suchgoods), it is necessary for theagent to bring a material levelof skill to the activity, that is,dealing with, managing orconducting the sale or pur-chase concerned. The skillthat may be brought to theactivity may vary dependingon the way in which thegoods concerned are typicallysold. The court held that insome cases it may involve theskill in bargaining and inother cases it may be the skillin marketing and promotion.The High Court pointed outthat, in other cases, it may bea skill in the presentation ofthe product in such a way asto make it attractive to mem-bers of the public so that theywill purchase more of it,thereby encouraging sales.The High Court held that, insubstance, there was no mate-rial difference between anagent who uses a skill injudgement to individuallypromote a product to one ormore identified individualpotential purchasers and anagent who (having regard tothe nature of the product ofthe principal that he isinvolved in seeking to sell)uses more general methods,but applying equal skill, tomaking the products attrac-tive to the public generallyand thus increase sales.

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

Put a tiger in your tank: landmark decision

Briefing


55

The High Court found, as a pre-liminary issue on the facts, thatthe plaintiff did bring about amaterial level of skill or consid-eration to conducting, managingor otherwise dealing with thesale or purchase of products onbehalf of the defendant and heldthat he was acting as a commer-cial agent of the defendant forthe purposes of the regulationsat all material times.

Other authoritiesClarke J referred to the onlyother decision of the Irish courtsin which the meaning of theterm ‘commercial agent’ wasconsidered, namely Cooney &Company and another v MurphyBrewery Sales Limited (unreport-ed, High Court, Costello P, 30July 1997). Clarke J cited withapproval the passage whereCostello P makes it absolutelyclear that negotiation does not insome way require bargain orhaggle so as to endeavour toreach some sort of arrangementbetween the agent and the pro-posed customer. In Cooney,Costello P decided, on an inter-locutory application, that the

plaintiff constituted the com-mercial agent of the defendantfor the purposes of the directive.The plaintiffs were appointedexclusive sales agents ofMurphy’s draft Heineken lagerand Murphy’s stout in a specifiedarea.

Clarke J also referred to thedecision of the English Court ofAppeal in Parks v Esso PetroleumCompany Limited ([2000] Eu LR25). Parks was similar to Kenny inthat the plaintiff occupied a serv-ice station owned by Esso pur-suant to an agency agreementthat appeared in some respectsto be similar to that of MrKenny. Clarke J pointed out thatone significant differencebetween Parks and the casebefore him was that the agree-ment between Parks and Essorelated solely to the sale by theplaintiff of motor fuels and MrParks, like Mr Kenny, also oper-ated a shop and a car wash, butin the case of Mr Parks (unlikeMr Kenny) these were operatedfor his own account and not asagent for Esso.

The High Court in Kennyreviewed the decision of the

Court of Appeal in Parks andnoted a distinction between theimplementation of the directivein Ireland and England. TheHigh Court referred to the pro-visions of article 2(2) of thedirective, which stipulates that“each of the member states shallhave the right to provide that thedirective shall not apply to thosepersons whose activities as com-mercial agents are consideredsecondary by the law of thatmember state”.

The High Court noted thatEngland had chosen to exerciseits discretion to exclude personswhose activities as commercialagents are considered secondaryand referred to the relevantEnglish regulations. The HighCourt held that Ireland did notexercise this discretion and thattherefore no similar exclusionapplied under Irish law. TheHigh Court held that there couldbe no doubt that the Court ofAppeal placed at least somereliance on the fact that the regu-lations in England made it clearthat cases where goods wereselected by customers who mere-ly ordered through the agent give

rise to the activity of the agentconcerned being regarded as sec-ondary and thus permissiblyexcluded from the operation ofthe directive as implemented intoEnglish law. The High Courtthen referred to the decision ofCostello P in Cooney and pointedout that it is difficult to see howthe role of the distributors inCooney was in practice any greaterthan that of Mr Parks. The courtreferred to Costello P’s decisionin Cooney that the distributorsconstituted commercial agents ofthe defendant for the purposes ofthe directive. Clarke J in Kennyheld that, if the decision of theCourt of Appeal in Parks is to betaken as implying that it is notpossible for a person to be a com-mercial agent while that personexercises skill in attracting cus-tomers but where the ultimatetransaction is by self-service andpayment, he pointed out: “I donot regard the judgment as per-suasive and I would not proposeto follow it.”

Marco Hickey heads the EU andcompetition law unit of LK ShieldsSolicitors.

G

CRIMINAL PROCEDURE

Case C-105/03, Maria Pupino, 16June 2005. Criminal procedure inItaly is comprised of two distinctstages. The first of these is thecarrying out of preliminaryenquiries for gathering evidenceas to whether or not the mattershould proceed to trial. The trialitself, at which the evidence is for-mally established, is the secondstage. Evidence may be estab-lished early, at the preliminaryenquiries stage, in respect of sex-ual offences where the victims areaged less than 16 years. In suchcases, the testimony given at thatstage does not need to be repeat-ed at the trial in order to acquirefull evidential value. These dero-gations are aimed at protectingvictims who are minors.

A nursery school teacher wascharged with abusing disciplinaryprocedures against a number ofher students, who were aged lessthan five years. She was accusedof hitting them regularly, threaten-ing to give them tranquillisers,putting sticking plasters over theirmouths and preventing them fromgoing to the toilet. These criminalproceedings had reached the pre-liminary enquiries stage. ThePublic Prosecutor’s Office askedthe judge in charge of the prelim-inary enquiries to take the testi-mony of eight children before thetrial, in accordance with a specialprocedure. The prosecutionargued that the testimony couldnot be delayed until the trial byreason of the extreme youth ofthe victims, inevitable changes intheir psychological state, and the

possibility of psychologicalrepression. The defendant arguedthat the application does not fallunder any of the scenarios envis-aged by the Code of CriminalProcedure. The Italian cour treferred the matter to the ECJ. Itasked whether, in view of thecouncil framework decision on thestanding of victims in criminalproceedings, a national cour tmust have the ability to authoriseyoung children claiming to be thevictims of maltreatment to givetheir testimony under appropriateprotective arrangements, outsidethe trial and before it is held.

The ECJ noted that this deci-sion had been adopted on thebasis of the EU Treaty provisionson police and judicial cooperationin criminal matters. The court’sjurisdiction to give a preliminary

ruling on those provisions is sub-ject to a declaration by eachmember state that it accepts thatjurisdiction. Italy has made sucha declaration. In applying nationallaw, the Italian court is requiredto interpret it as far as possible ina way that conforms to the word-ing and purpose of the frameworkdecision, in order to attain theresult which that decision envis-ages. In accordance with the deci-sion, member states are requiredto guarantee to victims the oppor-tunity to be heard during criminalprocedure and to take appropri-ate measures to ensure that theirauthorities do not question vic-tims more than the procedurerequires. Victims are to be guar-anteed respectful treatment fortheir personal dignity during theprocedure, and particularly vul-

Recent developments in European law

Briefing


56

nerable victims are to benefitfrom specific treatment best suit-ed to their circumstances.Member states must alsoensure, when it is necessary toprotect victims against the con-sequences of their testimony at apublic trial, that they are able tobenefit from conditions for givingtestimony that allow that objec-tive to be attained. The decisiondoes not define the concept ofvulnerability, but young childrenclaiming to have been maltreatedmay be regarded as vulnerableso as to give them the benefit ofspecific protection. The condi-tions for giving testimony mustbe compatible with the funda-mental principles of the law ofthe member state concerned.The EU also respects fundamen-tal rights as guaranteed by theEuropean Convention on HumanRights, and arising from the con-stitutional traditions common tothe member states, as generalprinciples of law. The frameworkdecision must therefore be inter-preted in such a way that thosefundamental rights, including theright to a fair trial, are respected.The national court must be ableto authorise young children whoclaim to have suffered maltreat-ment to give their testimony inaccordance with arrangementsallowing them to be guaranteedan appropriate level of protec-tions – such as outside the trialand before it is held.

EMPLOYMENT

Case C-543/03, Christine Dodl,Petra Oberhollenzer v TirolerGebietskrankenkasse, 7 June2005. Regulation 1408/71applies to social security bene-fits. The general rule is that thestate in which the worker isemployed is responsible for pay-ing family benefits to the worker,even if that worker is residentwith his family in another mem-ber state. The applicants areAustrian nationals who work inAustria, but live in Germany withtheir husband and partner, bothof whom have German nationality

and work full time in Germany.Following the births of their chil-dren, they took unpaid parentalleave during which their employ-ment was suspended. Theyreceived the German childallowance that corresponds tothe Austrian family allowance butdid not receive the Germannational child-raising allowanceas they were in full-time employ-ment. They were refused the cor-responding allowance in bothstates on the ground that theother state was responsible forpayment. They brought proceed-ings before the Austrian courtsand questions of interpretationwere referred to the ECJ. TheAustrian court asked whether theapplicants had lost the status of‘employed persons’ within themeaning of regulation 1408/71as a result of the suspension oftheir employment relationship,during which they were notrequired to pay social securitycontributions, and which memberstate is primarily responsible forpaying the family benefit in issue.

The ECJ held that a personhas the status of an employedperson within the meaning of theregulation where he is covered ona compulsory or an optionalbasis by a general or specialsocial security scheme, irrespec-tive on the existence of anemployment relationship. It is forthe national court to determinethe facts. In Austria, the motheris entitled to childcare allowancein her capacity as an employedperson in that state. If the appli-cants are ‘employed persons’,they acquire entitlement underEC law to family allowances inthe state of employment, Austria.The applicants are also entitledto family benefits in Germany,where they are resident. In a sit-uation of overlapping rights tofamily benefits in respect of thesame member of that person’sfamily and for the same period,the member state of employment(Austria) is, in principle, primarilyresponsible for payment. Wherea person having the care of chil-dren, in particular the spouse or

partner of the employed personconcerned, carries out a profes-sional or trade activity in themember state in which the familyresides, the family benefits mustbe paid by that state. It is not arequirement that the professionalor trade activity be carried out bythe person who is personally enti-tled to those benefits. In that sit-uation, the payment of familybenefits by the state of employ-ment is to be suspended up tothe sum of family benefits provid-ed for by the legislation of thestate of residence.

LITIGATION

Case C-53/03, SynetairismosFarmkapoion Aitolias &Akarnanias (Syfait) and Others vGlaxoSmithKline plc and Others,31 May 2005. GlaxoSmithKline(GSK) is a pharmaceutical compa-ny that distributes its products viaa Greek subsidiary to the com-plainants. The complainants areGreek associations of pharma-cists and wholesalers of pharma-ceuticals. Until November 2000,GSK met in full orders from thecomplainants. A large proportionof the products ordered wereexported to other member stateswhere prices were much higher.GSK stopped supplying the com-plainants and stated that, fromthen on, it would directly supplyhospitals and pharmacies, as theexports of the products in ques-tion were resulting in significantshortages on the Greek market.GSK later resumed supplies tothe complainants but only insmall quantities. The com-plainants brought proceedingsbefore the Greek CompetitionCommission. It ordered interimmeasures. GSK’s Greek sub-sidiary met the complainants’orders to the extent that it wassupplied by its parent company.That supply exceeded the con-sumption needs of the nationalmarket but was insufficient tomeet the complainants’ orders.The Greek CompetitionCommission asked the ECJwhether and in what circum-

stances a dominant pharmaceuti-cal company can, in order torestrict parallel trade in its prod-ucts, refuse to meet in full ordersplaced with it by wholesalers.

The ECJ held that it had nojurisdiction to answer the ques-tions referred. The GreekCompetition Commission is not acourt or tribunal within the mean-ing of article 234. It does nothave certain of the characteris-tics necessary for it be classifiedas such – namely, independenceand the fact of being called uponto give judgment in proceedingsintended to lead to a decision ofa judicial nature. The commissionis subject to the supervision ofthe minister for development.This implies that the minister isempowered, within certain limits,to review the lawfulness of thedecisions adopted by the com-mission. Although the membersof the commission are independ-ent in the exercise of their duties,their dismissal or the terminationof their appointment are not sub-ject to any particular safeguards.There is no separation of func-tions between the commission, adecision-making body, and its sec-retariat, a fact-finding body on thebasis of whose proposals itadopts decisions. This is becausethe president of the commissionis responsible for the co-ordina-tion and general policy of the sec-retariat and is the immediatesuperior of the personnel of thesecretariat. Finally, national com-petition authorities are requiredto work in close co-operation withthe European Commission.

As a matter of EC competitionlaw, the national authority can berelieved of its competence by adecision of the commission initi-ating its own proceedings. It istherefore possible that the pro-ceedings initiated before theGreek commission will not lead toa decision of a judicial nature. Abody may refer a question of theECJ only if there is a case pendingbefore it and it is called upon togive judgment in proceedingsintended to lead to a decision ofa judicial nature. G

People and places


57

Fionnbar launches A Sporting EyeCasting a critical eye at photographer Fionnbar Callanan’s new book, ASporting Eye, are (l to r): Irish Olympic gold medallist Ronnie Delany,Fionnbar Callanan, RTÉ’s Jimmy Magee and Irish Sports Council CEOJohn Treacy. McCann FitzGerald sponsored the book. The Gazette hastwo free copies to give away to the two people who come up with the

best title for Fionnbar’s next book!

Advocate that!This year’s tutors and successful participants in the Annual Advanced Advocacy for Solicitors course were: Michael Condon, Augustus Cullen,Hugh Cunniam, Eithne Deane, Peter Dempsey, Olive Doyle, Brendan Flanagan, Charles Flanagan, Alan Gannon, Stuart Gilhooly, Veronica Kelly,

Pauline Kennedy, Liam Lysaght, Grainne Malone, Peter Mullen, Deirdre Mulligan, Avril Mullins, Cian O’Carroll, Eugene O’Kelly, Breda O’Malley-Collins, John Savage, Laura Swift and Barry Walsh

Ars gratia artisTommy Morrow has retired as president of the Donegal Bar

Association. On behalf of the association, secretary Margaret Mulrinepresented Tommy with a painting by local artist, Johnny Boyle. (L toR): Margaret Mulrine, Tommy Morrow and his wife Peggy. Tommy isprincipal of David Wilson and Co in Raphoe and has been practising

as a solicitor for 60 years

PIC: D

ERM

OT D

ON

OH

UE AIPPA

NITA-ppearanceTutors from the US-based National Institute for Trial Advocacy (NITA) were joined by a number of local tutors for the week-long advocacy component ofthe Annual Advanced Advocacy for Solicitors course. The expert witnesses for this year’s case file featured firefighters from around the country. (Froml to r): E John Wherry (NITA), Conal Boyce, Niall Dolan, Brid Mimnagh, Judge Nancy Vaidik (NITA), Adrian Greville (Dublin Fire Brigade), Steven Clayton

(PSNI), Fiona Donnelly, Patsy Casserly (Galway Fire Brigade), Paul Carolan (Dublin Fire Brigade HQ), Patti Bobb (NITA), Gerry Stanley (Dublin FireBrigade), Kevin Masterson (Cork County Fire and Rescue), Lindsay Bond O’Neill (Law Society), Tony Caher, and Bob Stein (NITA)

People and places


58

Colin Sainsbury and Marie Quirkeattended the Law Society

Committees’ end-of-year dinnerEnjoying the convivial atmosphere at the Law Society Committees’ end-

of-year dinner were John Glynn, Kevin O’Higgins and Joe Mannix

Pictured at the Law Society Committees’ end-of-year dinner wereCatherine Pierse, Moya Quinlan, Bernadette Greene and Marie Keane

At the Law Society Committees’ end-of-year dinner were Michael Moran,Patricia Rickard-Clarke, Michael Irvine and Michael O’Connor

Are those Galway or Westmeath shirts?Trainee solicitors from the autumn 2005 PPC1 made a little bit of GAA footballing history by becoming the first ever Law Society team

to take part in both intervarsity league and championship competitions. Thanks are due to Conor O'Sullivan from the 2004 PPC1 course for establishing the team. This year, it will participate in league games (before Christmas) and the championship competition in early spring.

(Back, l to r) Daniel Kiely, Ross Phillips (PRO), Conor Minogue, Kevin McElhinney, John Crean, Stiofáin Fitzpatrick, John Lunney, Eamon Ó Cuiv,Raymond Lambe, Eoin McManus, John Williams, Brendan McDonald, Aaron Flynn, Thomas P McNamara and David Fitzgerald. (Front, l to r) Barry Murphy, Deaglan O’Siothchain, Conrad Murphy, John Flynn, Patrick Delaney, Marcus O Buachalla (captain),

Pádraig Mawe (manager), Karol Corcoran and Robert Ryan

Celebrating at the Law SocietyCommittees’ end-of-year dinnerwere Jarlath McInerney, GillianKeating and Jerome O’Sullivan

Law Society Committees’ end-of-year dinner

People and places


59

Three is a magic numberLaw Society immediate past-president Owen M Binchy, President of

the High Court Joseph Finnegan and Chief Justice John Murray pictured at the 28 July parchment ceremony

Return of the Planet of the BabesMr Justice Michael Peart and then Law Society President Owen M Binchy were on hand to congratulate prize-winners at the 20 October parchment ceremony at Blackhall Place. The prize-winners were Emma Byrnes, Antonia Cosgrove, Alice Cowman, Rebecca Dunne, Bridin Farren, Deirdre Finn,

Colm McGovern, Caoilfhionn Ní Chuanachain, Caren Shanley and Rea Walshe

Practice what you preachAttending the recent CPD seminar on Circuit Court practice and

procedure were (l to r): Susan Ryan (County Registrar, Dublin Circuit),Judge Raymond Groarke, the Law Society’s Barbara Joyce and John

Campbell of JA Campbell & Co

Pipe bombAt the launch of a new report bythe Centre for Public Inquiry on

the Corrib gas onshore pipeline inCo Mayo were President of

Accufacts, Richard Kuprewicz, andChairman of the CPI, Justice

Feargus Flood

Conveying the messageThe newly-established Diploma in Commercial Conveyancing was launched on 5 November in the Law Society’sVanilla Café. Present were (l to r): Chair of the Education Committee Stuart Gilhooly, diplomas executive NiamhWalsh, Michelle Nolan (member of the diploma team), Senior Vice-President Philip Joyce, course participants,

and Kevin O’Higgins, member of the conveyancing committee

Parchment ceremonies


60

Mr

Just

ice

Jose

ph F

inne

gan,

Pre

side

nt o

f th

e H

igh

Cou

rt,

then

Pre

side

nt o

f th

e La

w S

ocie

ty O

wen

M B

inch

y, a

nd D

irect

or G

ener

al K

en M

urph

y w

ere

gues

ts o

f ho

nour

at

the

Parc

hmen

t C

erem

ony

on 1

0 F

ebru

ary

for

new

ly-q

ualif

ied

solic

itors

: S

teph

en B

arry

, Ed

war

d B

radb

ury,

Jul

ie B

reen

, G

eral

dine

Bro

deric

k, L

orna

Bro

oks,

Mar

ie C

arey

, W

endy

Cla

rke,

Mar

tin C

oen,

Noe

l Con

way

, B

arba

ra D

aly,

Laur

a D

owne

y, B

rend

a D

unne

, D

eird

re F

lynn

, O

live

Foga

rty,

Bre

da F

orde

, R

icha

rd H

amm

ond,

Em

ma

Her

on,

Jose

ph K

ane,

Eam

onn

Kea

ne,

Adria

n K

elly,

John

Kie

ran,

Ani

ta K

ilgal

lon,

Dom

inic

Lyo

ns,

Cia

n M

acG

inle

y, M

arga

ret

Mal

one,

Eliz

abet

h M

cGra

th,

Jose

ph M

cVei

gh,

Sha

ron

Mon

agha

n, L

orna

Mor

gan,

Aoi

fe M

oyni

han,

Kie

ran

Mul

cahy

, C

onor

Mur

ray,

Gra

inne

Ni G

huid

hir,

Ror

y O

’Boy

le,

Trac

ey O

’Brie

n, M

artin

O’D

onog

hue,

Dei

rdre

O’H

allo

ran,

Ger

aldi

ne O

’Reg

an,

Cat

hy P

ower

, S

arah

Pow

er,

Bar

ry R

affe

rty,

Sad

hb R

eddy

, M

aire

ad E

She

ehan

, Tr

acy

Stu

art,

Ver

ena

Tarp

ey,

Mar

ia T

oal,

Alan

Wal

lace

and

Cat

hal B

You

ng

New

ly-q

ualif

ied

solic

itor

s at

the

pre

sent

atio

n of

the

ir p

arch

men

ts o

n 10 F

ebru

ary

2005



61

Mr

Just

ice

Jose

ph F

inne

gan,

Pre

side

nt o

f th

e H

igh

Cou

rt,

Pres

iden

t of

the

Law

Soc

iety

of

Engl

and

and

Wal

es E

dwar

d N

ally,

then

Pre

side

nt o

f th

e La

w S

ocie

ty O

wen

M B

inch

y, a

nd D

irect

or G

ener

alK

en M

urph

y w

ere

gues

ts o

f ho

nour

at

the

Parc

hmen

t C

erem

ony

on 1

1 M

arch

for

new

ly-q

ualif

ied

solic

itors

: Iv

an B

enne

tt,

Mar

ie B

rody

, D

onal

Bro

snan

, S

eán

Bro

wn,

Car

ol B

row

ne,

Cla

ir C

assi

dy,

Patr

icia

Cro

nin,

Jac

inta

Cus

ack,

Mic

hael

Cus

sen,

Ire

ne M

Dal

y, C

iara

Doy

le,

Bill

Fle

ury,

Die

go G

alla

gher

, C

arol

Gat

ely,

Jes

sica

Gol

dric

k, A

ndre

w G

reen

lee,

Bre

da H

ayes

, Le

sley

-Ann

eH

ogan

, M

ary

V K

ing,

Sha

ne K

ing,

Ead

aoin

Law

lor,

Adria

n Le

nnon

, B

ebhi

nn L

ucey

, Ju

liet

Lync

h, C

ian

Mac

Mah

on,

Joe

Mal

lon,

Mar

y M

cCar

thy,

Ror

y M

cDon

ald,

Car

olin

e M

cDon

nell,

Tre

a M

cGui

nnes

s,Jo

anne

McI

nern

ey,

Sio

bhán

McM

ahon

, O

onag

h M

oyla

n, D

ervl

a M

ulca

hy,

Edw

ard

Nal

ly,

Cla

ire N

eale

, Al

exan

der

Nic

hol,

Cai

trío

na O

’Con

nor,

Kat

e O

’Mah

ony,

Ger

aldi

ne O

’Mal

ley,

Rob

ert

O’R

eilly

, Lu

is P

eña,

Cia

ra Q

uinl

an,

Brid

get

Rei

dy,

Jane

Rob

erts

, R

egin

a S

avag

e, C

arol

Sin

nott

, Am

elia

Stu

bbs,

Ver

ena

Tarp

ey,

Eile

en W

alsh

, Pa

tric

k W

hele

han,

Mai

read

Whi

te a

nd S

arah

Will

iam

s

New

ly-q

ualif

ied

solic

itor

s at

the

pre

sent

atio

n of

the

ir p

arch

men

ts o

n 11 M

arch

2005



62

Mr

Just

ice

Jose

ph F

inne

gan,

Pre

side

nt o

f th

e H

igh

Cou

rt,

then

Pre

side

nt o

f th

e La

w S

ocie

ty O

wen

M B

inch

y, a

nd D

irect

or G

ener

al K

en M

urph

y w

ere

gues

ts o

f ho

nour

at

the

Parc

hmen

t C

erem

ony

on28 A

pril

for

new

ly-q

ualif

ied

solic

itors

: Ei

leen

Ahe

arne

, Je

nny

Aher

n, N

arita

Ahe

rn,

Andr

ea B

oyd,

Jen

nife

r B

oyla

n, L

ouis

e C

arpe

ndal

e, B

arba

ra C

lanc

y, S

hary

n C

oghl

an,

Alan

Col

lins,

Ber

nade

tte

Con

nolly

,Pa

ula

Cul

linan

e, K

iera

n C

umm

ins,

Dea

rbhl

a D

e B

arra

, Jo

anne

Fin

n, A

lan

Finn

erty

, N

iall

Gaf

fney

, R

ober

ta G

real

ish,

Aid

een

Hen

ness

y, D

avid

Hic

key,

Ais

ling

Hou

rigan

, C

laire

Irw

in,

Eam

onn

Kea

ne,

Jacq

uelin

e K

elly,

Paul

Kel

ly,

Sin

ead

Kel

ly,

Bar

ry K

enny

, Ph

ilip

Love

grov

e, S

arah

Lyo

ns,

Ben

Mac

kenz

ie,

Dei

rdre

Man

ning

er,

Der

val M

arke

y, R

ober

t M

cDon

agh,

Mic

helle

McG

rath

, G

abrie

lle M

cGra

ttan

,C

ora

McG

uinn

ess,

Ant

oine

tte

McM

ahon

, M

arily

n M

cNic

hola

s, E

anna

Mel

lett

, D

r M

aria

Mol

oney

, M

aire

ad M

oria

rty,

Doi

rin M

ullig

an,

Aoife

O’B

rien,

Sus

an O

’Far

rell,

Mai

read

O’M

eara

, Tr

acey

O’R

eilly

,D

arag

h O

’She

a, W

illia

m P

eake

, C

liona

Pie

rse,

Nor

ris P

ower

, O

rla R

oone

y, A

ngel

a R

uttle

dge,

Am

y S

hine

, Ao

ife S

mith

wic

k, L

inds

ay S

teve

ns,

Aman

da W

alsh

e, J

anic

e W

alsh

e an

d R

osal

een

Wal

she

New

ly-q

ualif

ied

solic

itor

s at

the

pre

sent

atio

n of

the

ir p

arch

men

ts o

n 28 A

pril

2005



63

Mr

Just

ice

Jose

ph F

inne

gan,

Pre

side

nt o

f th

e H

igh

Cou

rt,

then

Pre

side

nt o

f th

e La

w S

ocie

ty O

wen

M B

inch

y an

d D

irect

or G

ener

al K

en M

urph

y w

ere

gues

ts o

f ho

nour

at

the

Parc

hmen

t C

erem

ony

on14 J

uly

for

new

ly-q

ualif

ied

solic

itors

: C

onor

Bra

dy,

Aisl

ing

Bur

ke,

Paul

Cos

grav

e, A

rthu

r C

unni

ngha

m,

Zeld

a D

easy

, S

iobh

an D

urka

n, S

inea

d Ed

war

ds,

Fran

k Eg

an,

Mic

hael

Fitz

sim

ons,

Mar

y Fo

rde,

Cor

inne

Gal

lagh

er,

Gra

ce G

uy,

Cha

rlott

e H

enry

, K

arl H

enso

n, M

egan

Hoo

per,

Ailb

he K

eega

n, M

aura

Kie

ly,

Kar

en K

illor

an,

Andr

ew L

awle

ss,

Den

ise

Lync

h, M

arcu

s Ly

nch,

Mar

y Ly

ons,

Son

ya M

allo

n,Lo

uise

McA

ulif

fe,

Cat

herin

e M

cGui

gan,

Dei

rdre

McK

nigh

t, O

rla M

cKni

ght,

Bar

ry M

cLou

ghlin

, M

iche

lle M

cPhi

llips

, K

eavy

Mor

an,

Arth

ur M

ulla

n, G

aret

h M

urph

y, T

eren

ce O

’Con

nor,

Cai

rbre

O’D

omhn

aill,

Kat

hy O

’Don

nell,

Eim

ear

O’M

ahon

y, P

aul O

’Mah

ony,

Tho

ma

Que

ally,

Mae

ve R

egan

, R

ache

l Rod

gers

, C

olin

Roo

ney,

Kat

e R

osei

ngra

ve,

Lesl

ie R

oycr

oft,

Gra

inne

Rya

n, D

ougl

as S

adle

ir, J

ohn

Sal

ley,

Eam

onn

Sha

nnon

, B

rend

a S

lack

, D

avid

Sul

livan

, Eu

gene

Tan

gney

, G

raha

me

Toom

ey,

Dar

ragh

Tuo

hy,

Dav

id W

ebb,

Kar

en W

ilson

and

Ann

Wrig

ht

New

ly-q

ualif

ied

solic

itor

s at

the

pre

sent

atio

n of

the

ir p

arch

men

ts o

n 14 J

uly

2005



64

Then

Pre

side

nt o

f Th

e La

w S

ocie

ty O

wen

M B

inch

y, P

resi

dent

of

the

Hig

h C

ourt

Mr

Just

ice

Jose

ph F

inne

gan,

and

Chi

ef J

ustic

e Jo

hn M

urra

y w

ere

gues

ts o

f ho

nour

at

the

Parc

hmen

t C

erem

ony

on

28 J

uly

for

new

ly-q

ualif

ied

solic

itors

: R

uth

Adam

s, C

illia

n B

alfe

, G

eorg

ina

Bar

rett

, Ja

mes

Cah

illan

e, L

orra

ine

Can

non,

Joh

n C

arlin

, El

aine

Cas

ey,

Emer

Cas

ey,

Vict

oria

Con

way

, C

iara

Cul

len,

Mad

elei

neD

elan

ey,

Mar

y D

inee

n, G

illia

n D

uffy

, Th

omas

Fin

n, J

enny

Fis

her,

Dam

ien

Flah

erty

, C

athe

rine

Ger

aght

y, J

oann

e G

lees

on,

Trev

or G

orm

ley,

Orr

azio

Gro

sso,

Roi

sain

e H

amill

, K

enne

th H

arve

y, A

islin

gH

ayde

n, P

aulin

e H

orka

n, E

lain

e K

eane

, D

eird

re K

enne

dy,

Dav

id K

itter

ick,

Oliv

ia L

ong,

Car

mel

Lyo

ns,

Sio

bhan

McC

abe,

Bria

n M

cDer

mot

t, D

arra

gh M

cElli

gott

, R

oman

McG

oldr

ick,

Lor

rain

e M

urph

y,

Mar

ie O

’Brie

n, H

ilary

O’C

onno

r, M

iche

lle O

’Don

nell,

Lau

ra O

’Don

ovan

, Jo

hn O

’Dris

coll,

Mar

ian

O’R

iord

an,

Gill

ian

O’R

ourk

e, J

enni

fer

Rin

g, Ian

Row

ell,

Andr

ew R

owla

nd,

Kea

vy R

yan,

Je

an S

canl

an,

Mar

gare

t S

culli

n, J

ohn

She

ehan

, Ja

ck S

heeh

y, O

onag

h To

ner

and

Andr

ew W

alsh

New

ly-q

ualif

ied

solic

itor

s at

the

pre

sent

atio

n of

the

ir p

arch

men

ts o

n 28 J

uly

2005



65

Ms

Just

ice

Eliz

abet

h D

unne

, th

en P

resi

dent

of

the

Law

Soc

iety

Ow

en M

Bin

chy

and

Dire

ctor

Gen

eral

Ken

Mur

phy

wer

e gu

ests

of

hono

ur a

t th

e Pa

rchm

ent

Cer

emon

y on

2 S

epte

mbe

r fo

r ne

wly

-qua

lifie

dso

licito

rs:

Patr

icia

Bes

ton,

Ann

e B

renn

an,

Pete

r B

urbr

idge

, S

hane

Bur

ke,

Cla

re C

ampb

ell,

Alan

Cas

ey,

Jean

ette

Cod

d, L

isa

Col

lins,

Ser

ena

Con

nolly

, Jo

hn C

roni

n, A

dam

Don

oghu

e, P

aulin

e D

ooha

n,

Jenn

ifer

Doy

le,

Jam

es E

nsor

, Ai

slin

g Fi

tzge

rald

, S

imon

Han

niga

n, C

orrin

a H

arlo

w,

Mar

y H

arve

y, E

lain

e H

icke

y, J

oshu

a H

ogan

, M

ark

Hom

an,

Kar

en J

acks

on,

Cla

ire K

elly,

Clio

na K

iely,

Kat

herin

e K

iely,

Dav

id L

ane,

Sin

ead

Lave

lle,

Cia

ra L

enno

n, D

eird

re L

ynch

, D

eird

re M

acC

arth

y, J

acqu

elin

e M

acC

urtin

, Ai

mee

Mad

den,

Dar

ren

Mah

er,

Ste

phan

ie M

cCon

nell,

Cat

riona

McC

roha

n, A

oibh

e M

cHug

h,

Rua

iri M

cMul

lin,

Sio

bhán

McN

amee

, D

ara

McN

ulty

, C

arol

Mon

ahan

, N

essa

Mor

an,

Jam

es M

orris

, M

iriam

Nag

le,

Cat

herin

e N

oone

, Jo

hn O

’Con

nell,

Lor

na O

’Dw

yer,

Edel

O’H

erlih

y, T

onya

O’M

ahon

y,

Ror

y O

’Mal

ley,

Sea

n O

rmon

de,

Cia

ra P

rend

erga

st,

Don

al Q

uigl

ey,

Col

eman

Rya

n, D

eird

re R

yan,

Eve

lyn

Sav

age,

Avr

il S

hort

en,

Lisa

Sm

yth,

Sha

ne S

wee

ney,

Edw

ard

Tray

nor

and

Hel

en W

hitt

aker

New

ly-q

ualif

ied

solic

itor

s at

the

pre

sent

atio

n of

the

ir p

arch

men

ts o

n 2 S

epte

mbe

r 2005



66

Mr

Just

ice

Mic

hael

Pea

rt,

and

then

Pre

side

nt o

f th

e La

w S

ocie

ty O

wen

M B

inch

y w

ere

gues

ts o

f ho

nour

at

the

20 O

ctob

er P

arch

men

t C

erem

ony

for

new

ly-q

ualif

ied

solic

itors

: D

anie

l Bol

and,

Nia

mh

Bol

ger,

Col

in C

arro

ll, G

aret

h D

avid

son,

Nat

asha

Dun

ne,

Thom

as G

riffin

, M

artin

Hay

es,

Nia

mh

Kim

ber,

Chr

isto

pher

Kits

on,

Noe

leen

McH

enry

, Pe

ter

McK

enna

, Ai

lbhe

Mur

phy,

Bav

ani N

aidu

, M

ary

O’C

onno

r, C

iara

O’S

ulliv

an,

John

Pow

ell,

Ste

phen

Ran

alow

, M

ary

Sm

ith,

Patr

ick

Sm

yth,

Ric

hard

Ste

en,

Andr

ea W

alla

ce a

nd N

icho

las

Wal

sh

New

ly-q

ualif

ied

solic

itor

s at

the

pre

sent

atio

n of

the

ir p

arch

men

ts o

n 20 O

ctob

er 2

005

Apprentices’ page


67

SADSISolicitors Apprentices Debating

Society of Ireland Niagara Falls, but SADSI risesThis year has been great in

terms of the revival ofSADSI. We’ve had entertainingin-house debates at the LawSchool, a debate against King’sInns, a well-supportedintervarsity in Queen’sUniversity Belfast, and we haveteams in both The Irish Timesand the World’s Universitiesdebating competitions.However, perhaps the pinnacleto date, in terms of promotingSADSI and in terms of purelogistics, was our recent trip toCanada to partake in the HartHouse BP Invitational at theUniversity of Toronto. SADSIauditor Liam Fitzgerald and Icompeted in the actualcompetition and Paul Ryanparticipated as a well-seasonedadjudicator.

More than 50 teams fromuniversities all over Canada andthe US took part in what wasultimately a highly competitiveevent. The first roundconsisted of five separatedebates over two days in the‘British parliamentary’ format,with teams debating motionsranging in scope from theabolition of palliative care tothe link between internationaldiplomacy and emergencydisaster relief. After the firstrounds had taken place, the topeight teams progressed to thesemi-finals.

Unfortunately, despiteacquitting ourselves well, we

failed to make it to the finalstages and a team from theUniversity of MontrealDebating Society eventuallywon the competition.

Many of those whoparticipated will be travellingto Dublin early next year for

the World’s UniversitiesDebating Competition, whichis being held in UCD, and wehope to meet as many aspossible with a view tosocialising and fostering linksfor future trips across theAtlantic.

Aside from the debate, wealso had the opportunity tomeet some trainee (or‘articling’, as they are known inCanada) solicitors to comparenotes on our respective trainingprocesses (some of which tookplace within the inspiringconfines of the Fiddler’s ElbowIrish bar). Some of the articlingCanadians will also betravelling to Dublin in April,and we hope to havearrangements in place toreciprocate the very generoushospitality we received.

During our stay, we alsomanaged to have a veryinteresting tour of OsgoodeHall, which houses the Courtof Appeal for Ontario, theSuperior Court of Justice andthe Law Society of UpperCanada.

Further, we met with JusticeDavid G Stinson in hischambers and discussed his joband what, in his view, makes agood courtroom litigator. Hewas most interested to hearabout PIAB and, in particular,the book of quantum.

Although our time waslimited and our schedulepacked, we also managed tofind time to partake in a wine-tasting tour in Niagara-on-the-Lake, just a short distancefrom Niagara Falls, but that, asthey say, is a story for anotherday.

Jamie Fitzmaurice

Jamie Fitzmaurice, Liam Fitzgerald, Joanna Narin, Sarah Ingimundson and Paul Ryan

Jamie Fitzmaurice, Paul Ryan, Justice David G Stinson and Liam Fitzgerald

CourtMeet at the Four Courts

FOR BOOKINGS CONTACT MARY BISSETT OR PADDY CAULFIELD

TEL: 668 1806

LAW SOCIETY ROOMSat the Four Courts

Professional information


68

Confidential Digital Printing - Colour & B&W

Legal Documents - Scanned & Indexed

Litigation document management

Database design & administration

Tallaght Business Centre, Dublin 24

tel: 01-506 0767

email: [email protected]

LOST LAND CERTIFICATES

Registration of Title Act 1964An application has been received fromthe registered owners mentioned inthe schedule hereto for the issue of aland certificate as stated to have beenlost or inadvertently destroyed. A newcertificate will be issued unless notifi-cation is received in the registry with-in 28 days from the date of publicationof this notice that the original certifi-cate is in existence and in the custodyof some person other than the regis-tered owner. Any such notificationshould state the grounds on which thecertificate is being held.(Register of Titles), Central Office, LandRegistry, Chancery Street, Dublin(Published 9 December 2005)

Regd owner: Sean Walsh, c/o EABrennan, Solicitors, Oldcastle, CoMeath; folio: 19433; lands:Raheever; area: 0.4047 hectares; CoCavan

Regd owner: Ronald Gordon, Killann,Shercock, Co Cavan; folio: 2396;lands: Gartnaneane; area: 5.8780hectares; Co Cavan

Regd owner: Austin Adams, MarketStreet, Cootehill, Co Cavan; folio:6735; lands: Drumbarkey andDung; area: 14.0628 hectares and0.1012 hectares; Co Cavan

Regd owner: Patrick Boland; folio:24052; lands: townland of (1)Finnor Beg, (2) Lissy Neillan, (3)Kilclehaun and barony of Ibricken;area: (1) 5.5189 hectares, (2) 0.2023hectares, (3) 2.8960 hectares; CoClare

Regd owner: Anne Jones; folio:22825F; lands: townland ofCarrownamaddra and barony ofInchiquin; area: 1.051 hectares; CoClare

Regd owner: Ann Rochford; folio:Tooreen, Spancill Hill, Co Clare;lands: townland of Knockanean andbarony of Bunratty Upper; area: 1rood, 29 perches; Co Clare

Regd owner: John O’Dwyer; folio:

5608F; lands: townland of LeagardNorth and barony of Ibrickan; area:0.2300 hectares; Co Clare

Regd owner: Joseph PatrickFitzgibbon; folio: 2910; lands: plotsof ground being part of the town-land of Castletown in the barony ofImokilly and county of Cork; CoCork

Regd owner: Richard Foley; folio:18166F; lands: plots of groundbeing part of the townland ofTrantstown in the barony ofBarrymore and county of Cork; CoCork

Regd owner: John O’Neill; folio:24863F; lands: plots of groundbeing part of the townland ofCarrigane in the barony ofMuskerry East and county of Cork;Co Cork

Regd owner: Peter and JosephineO’Riordan; folio: 8035F; lands:plots of ground being part of thetownland of Baurnahulla in thebarony of Carbery West (east divi-sion) and county of Cork; Co Cork

Regd owner: William O’Shea; folio:43880; lands: plots of ground beingpart of the townland of CorballySouth in the barony of Barrymoreand county of Cork; Co Cork

Regd owner: Patrick Sheehy; folio:18057F; lands: plots of groundbeing part of the townland ofBallylinchy in the barony ofCarbery West (east division) andcounty of Cork; Co Cork

Regd owner: William Noel Treacyand Kathleen Treacy; folio: 54110;lands: plots of ground being part ofthe townland of Ballintoesig in thebarony of Imokilly and county ofCork; Co Cork

Regd owner: Elizabeth ChristinaLove; folio: 42525; lands: plots ofground being part of the townlandof Enaghoughter East in the baronyof Carbery West (west division) andcounty of Cork; Co Cork

Regd owner: Eileen Doherty, c/oColquhoun and Dickson, Solicitors,Buncrana, Co Donegal; folio:23237; lands: Lisfannan; area:

0.0328 hectares; Co DonegalRegd owner: Patrick Kevin Campbell,

Drumacrin, Bundoran, CoDonegal; folio: 5070; lands:Drumacrin; area: 8.0937 hectares;Co Donegal

Regd owner: Joseph Bernard Byrneand Bernadette Theresa Byrne;folio: DN12432; lands: propertysituate in the townland ofKilnamanagh and barony ofUppercross; Co Dublin

Regd owner: Jeanette Chaney; folio:DN68688L; lands: propertyknown as no 69 Rathvilly Drive,situate in the parish of Finglas anddistrict of Finglas North; CoDublin

Regd owner: William Cox; folio:DN10642F; lands: property situatein the townland of Robinhood andbarony of Uppercross; Co Dublin

Regd owner: Oliver Duggan; folio:DN18378L; lands: property situatein the townland of Clonmel andbarony of Coolock (now known as77 Pinewood Crescent, Glasnevin,Dublin); Co Dublin

Regd owner: Thomas Fealy; folio:DN1373F; lands: property situatein the townland of Grange andbarony of Coolock; Co Dublin

Regd owner: John Flynn and PatriciaBurke; folio: DN55492L; lands:property known as 6 CarrigallenDrive, situate in the parish ofFinglas and district of Finglas; CoDublin

Regd owner: Brendan Glennon andOlive Glennon; folio: DN100538F; lands: property known assite no 3 Ardeen, situate in theparish and town of Lucan; CoDublin

Regd owner: Hugh Hayes; folio: DN99705F; lands: property situate inthe townland of Grallagh andbarony of Balrothery West; CoDublin

Regd owner: Sean Kelly (1/2 share);folio: DN149787F; lands: a plot ofground situate on the north side ofold Haystown, in the parish ofLusk and in the town of Rush; CoDublin

Regd owner: Patrick Kelly (1/2 share);folio: DN149787F; lands: a plot ofground situate on the north side ofOld Haystown, in the parish ofLusk and in the town of Rush; CoDublin

Regd owner: Marie Kennedy andElizabeth Kennedy; folio:DN60754F; lands: property situatein the townland of Santry andbarony of Coolock; Co Dublin

Regd owner: Marie McKeon; folio:DN147642F; lands: a plot ofground known as no 8 WillsbrookGrove, Lucan, and situate in thetownland of Ballydowd and baronyof Newcastle; Co Dublin

Regd owner: John Moorehouse andEllen Moorehouse; folio: DN

72876L; lands: property known asflat no 61 on the second floor ofCrescent House, situate on thenorth of Marino Crescent in theparish and district of Clontarf; CoDublin

Regd owner: Brian O’Loughlin andElizabeth O’Loughlin; folio:DN16695; lands: a plot of groundsituate in the townland ofBallinascorney Lower and baronyof Uppercross; Co Dublin

Regd owner: John Lynch and AnneLynch; folio: DN84230F; lands:property situate in the townland ofCorballis and barony ofNethercross; Co Dublin

Regd owner: Stephen Treston andGeraldine Treston; folio:DN6040F; lands: property situatein the townland of Grange andbarony of Coolock; Co Dublin

Regd owner: Denis Murphy andPhilip Hannigan; folio:DN60843L; lands: propertyknown as 67 Captain Road in theparish of Crumlin and district ofTerenure; Co Dublin

Regd owner: Margaret McGuirk (1/2

share); folio: DN586L; lands:property known as 4 Rathlin Roadsituate on the east side of the saidroad in the parish of Glasnevin anddistrict of Drumcondra; CoDublin

Regd owner: Michael Costello(deceased); folio: 29240; lands:townland of Gortroe and barony ofAthenry; area: 21 acres, 1 rood, 28perches; Co Galway

Regd owner: John Dolphin; folio:17515; lands: townland of (1)Graigueagowan, (2) Lickmolassyand barony of (1) and (2) Longford;area: (1) 19 acres, 5 perches, (2) 11acres, 3 roods, 14 perches; CoGalway

Regd owner: Martin Finnerty; folio:28868F; lands: townland ofTurlough and barony ofMoycullen; area: 8.504 acres; CoGalway

Regd owner: Mary Nestor; folio:35235; lands: townland ofDunmore and barony of Dunmore;area: 0.0771 hectares; Co Galway

Regd owner: May Burke; folio:1110F; lands: townland ofKilcloghans and barony ofDummore; area: 0.1719 hectares;Co Galway

Regd owner: Liam Dennehy; folio:109F; lands: townland of Duaghand barony of Clanmaurice in thecounty of Kerry; Co Kerry

Regd owner: Daniel P O’Shea; folio:762; lands: townland of Greenaneand barony of Dunkerron South,Co Kerry

Regd owner: Patrick Dunlea; folio:17327; lands: townland ofKilcullenbridge and barony ofKilcullen in the county of Kildare;Co Kildare



69

PROFESSIONAL NOTICE RATES

• Lost land certificates – €121 (incl VAT at 21%)• Wills – €121 (incl VAT at 21%)• Lost title deeds – €121 per deed (incl VAT at 21%)• Employment/miscellaneous – €121 (incl VAT at 21%)

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

Notice rates in the Professional information section are as follows:

GazetteLawSociety

All notices must be paid for prior to publication. Cheques should be made payableto the Law Society of Ireland. Deadline for Jan/Feb Gazette: 20 January 2006. Forfurther information, contact Catherine Kearney or Valerie Farrell on tel: 01 6724828 (fax: 01 672 4877)

5 Union Quay, Cork Tel:021 431 9200 Fax:021 431 9300 60 Lower Baggot Street, Dublin 2 Tel:01 475 4640 Fax:01 475 4643 e-mail: [email protected] Web: www.jhyland.com

Be Sure. Trust our experience.

forensic accountants

Regd owner: Kathleen Dwyer(deceased); folio: 15929; lands:Moneenroe and barony ofFassadinin; Co Kilkenny

Regd owner: Kathleen Dwyer(deceased); folio: 1448F; lands:Moneenroe and barony ofFassadinin; Co Kilkenny

Regd owner: John Gallagher; folio:21836; lands: townland of Coolscartand barony of Smallcounty; CoLimerick

Regd owner: Michael Hughes; folio:7827F; lands: townland of Elm ParkDemesne and barony ofPubblebrien; Co Limerick

Regd owner: John Hogan; folio: 2116;lands: townland of Gannavane andbarony of Coonagh; Co Limerick

Regd owner: Michael O’Donoghueand Ann O’Donoghue; folio:14009F; lands: parish of StMichael’s and county borough ofLimerick; Co Limerick

Regd owner: Patrick Dolan,Gallstown, Dunleer, Co Louth;folio: 9307; lands: Gallstown; area:0.2200 hectares; Co Louth

Regd owner: Bridget Keaskin, StrandRoad, Annagasson, Co Louth; folio:2359; lands: Ballynagassan; area:2.4559 hectares; Co Louth

Regd owner: Patrick Rooney,Derrycammagh, Castlebellingham,Co Louth; folio: 7021; lands:Farrandreg; area: 3.0930 hectares;Co Louth

Regd owner: Vera McGrath, 36Blackrush Avenue, Bryanstown,Drogheda, Co Louth; folio:16833F; lands: Bryanstown; CoLouth

Regd owner: Kevin Maloney; folio:47699; lands: townland of Foxfordand barony of Gallen; Co Mayo

Regd owner: Belmont Hotels Limited;folio: 8507F; lands: townland ofChurchfield and barony ofCostello; area: 1.785 acres; CoMayo

Regd owner: Michael Kiernan andAgnes Kiernan, Castle Street,Ashbourne, Co Meath; folio:2779L; lands: Cookstown; CoMeath

Regd owner: Catherine Moroney, 3Castle Close, Ashbourne, CoMeath; folio: 739L; lands:Killegland; area: 0.0252 hectares;Co Meath

Regd owner: Mary Rafferty, Legg,Carrickmacross, Co Monaghan;folio: 10895F; lands: Drumgeeny;area: 0.594 hectares; CoMonaghan

Regd owner: James O’Grady andMary O’Grady; folio: 9260F; lands:Edenderry and barony ofCoolestown, Co Offaly

Regd owner: Very Reverend PeterCaslin (deceased); folio: 1019F;lands: townland of Farnbeg andbarony of Roscommon; area: 2roods, 9 perches; Co Roscommon

Regd owner: Bridget Waldron; folio:18908; lands: townland ofBallinlough and barony ofCastlereagh; area: 3 acres, 3 roods, 5perches; Co Roscommon

Regd owner: John Burns; folio: 1003F;lands: townland of Aghamore Nearand barony of Carbury; area: 0.1770hectares; Co Sligo

Regd owner: Ellen Delaney; folio:25751; lands: townland ofGlengoole South and barony ofSlievardagh; Co Tipperary

Regd owner: Sean O’Meara; folio:10113; lands: townland ofStonepark and barony of LowerOrmond; Co Tipperary

Regd owner: Brother MichaelColumba Normoyle and others;folio: 39546; lands: townland ofThurles and barony of Eliogarty;Co Tipperary

Regd owner: James O’Mahony; folio:22568; lands: townland of Peakeand barony of Middlethird; CoTipperary

Regd owner: Thomas Carroll andEileen Carroll; folio: 10105; lands:plots of ground being part of thetownland of Affane in the barony ofDecies without Drum and county ofWaterford; Co Waterford

Regd owner: Patricia Foley; folio:2564L; lands: plots of groundknown as no 8 Griffith Place in theparish of Trinity Without and in thecounty borough of Waterford; CoWaterford

Regd owner: Bridie McHugh andThomas McHugh; folio: 9091;lands: plots of ground being part ofthe townland of Skehanard in thebarony of Decies without Drumand county of Waterford; CoWaterford

Regd owner: James (orse James J)

McCormack, 2 Northgate Street,Athlone; folio: 4636; lands:Hillquarter; area: 10.2688 hectares;Co Westmeath

Regd owner: Thomas J Dolan,Ardnagrath, Walderstown, Athlone,Co Westmeath; folio: 4109; lands:Cauran and Ardnagragh; area:0.3364 hectares and 74.7754hectares; Co Westmeath

Regd owner: Bridget Whitty(deceased); folio: 6265; lands:Curralane and barony ofScarawalsh; Co Wexford

Regd owner: John Doyle; folio: 3398;lands: Shelbaggan and barony ofShelburne; Co Wexford

Regd owner: Gavin Corbett andJennifer Taaffe; folio: 21127F;lands: townland of Bray Commonsand barony of Rathdown; CoWicklow

Regd owner: Coin Keenaghan; folio:19472F; lands: townland of Lugduffand barony of Ballinacor South; CoWicklow

Regd owner: Kathleen Moynihan;folio: 9769; lands: townland ofBallinahinch and barony ofNewcastle; Co Wicklow

WILLS

Blackall, Eileen (deceased), late of 6Idrone Terrace, Blackrock, CoDublin. Would any person havingknowledge of the whereabouts of awill executed by the above-nameddeceased, who died on 3 August 2005,please contact O’Connor & Bergin,Solicitors, Ocean House, 26/31 ArranQuay, Dublin 7; tel: 01 873 2411, fax:01 873 2517, email: [email protected]

Coffey, Marie (deceased), late of 24Terenure Road West, Terenure,Dublin 6W. Would any person havingknowledge of a will executed by theabove-named deceased, who died on 1October 2005, please contact Egan

O’Reilly, Solicitors, 19 Upper MountStreet, Dublin 2; tel: 01 613 0100, fax:613 0101, email: [email protected]

Donovan, John C (deceased), late ofBallylahive, Abbeydorney, Co Kerry,and formerly of Carrigeen,Kilbehenny, Mitchelstown, Co Cork,who died on 6 May 2005 in NewJersey, USA. Any solicitorholding/having knowledge of a willmade by the above-named deceasedplease contact: William Fitzgibbon,solicitor, Messrs Shinnick Fitzgibbon& Co, Solicitors, Baldwin Street,Mitchelstown, Co Cork; tel: 02584081, email: [email protected]

Farrell, Desmond Michael(deceased), late of 32 Aylesbury Park,Newbridge, in the county of Kildare.Would any person with any knowl-edge of a will executed by the above-named deceased, who died on 19September 2005 at Naas GeneralHospital, please contact SonyaMallon of Coughlan White &Partners, Main Street, Newbridge, inthe county of Kildare; tel: 045 4334332, fax: 045 433 096, email:[email protected]

Guerin, Kathleen (deceased), lateof Irish Cottage, Muckross Road,Killarney, Co Kerry. Would any per-son having knowledge of a will madeby the above-named deceased, whodied on 21 October 2005, please con-tact Liam F Coughlan & Co,Solicitors, ‘Woodhaven’, BallycasheenUpper, Killarney, Co Kerry; tel: 06435913, fax: 064 37343

Horgan, Mary (deceased), late of 25St Anne’s Road, Gurranabraher,Cork. Would any person havingknowledge of the original will dated 8December 1975 made by the above-named deceased, who died on 6December 1994, please contact Colm



70

S O’Riain & Co, Solicitors, 4Washington Street West, Cork; tel:021 427 2032

Keegan, Paddy (otherwise knownas Patrick) (deceased), late ofFairview, Dowra, Co Cavan. Wouldany person having any knowledge ofthe whereabouts of any will made bythe above-named deceased, who diedon 25 October 2005, please contactMcGovern and Associates, Solicitors,Equity House, Dublin Road, Carrick-on-Shannon, Co Leitrim; tel: 071 9621988/962 1881, fax: 071 962 1989,email: [email protected]

Moynes, Mary (deceased), late of106 St Attracta Road, Cabra, Dublin7. Would any person having knowl-edge of a will made by the above-named deceased, who died on 15March 2001, please contact CorneliusSheehan & Co, Solicitors, 2 AlmaPlace, Monkstown, Co Dublin

Murphy, Attracta (deceased), late ofCloonlaheen, Gurteen, Co Sligo.Would any person with any knowl-edge of a will executed by the above-named deceased, who died on 13 May2005, please contact Donal Taaffe &Co, Solicitors, Malthouse Square,Smithfield Village, Dublin 7

O’Neill, James Kevin (deceased),late of 26 Assumpta Park, Shankill, inthe county of Dublin. Would any per-son with any knowledge of the where-abouts of the original will executed by

the above-named deceased on 16September 2000, who died on 6February 2005, please contact Cullen& O’Beirne Solicitors, 1 Castle Street,Christchurch Place; tel: 01 478 9031,email: [email protected]

Prout, Edward (otherwise Ned)(deceased), late of 66 Lacey Avenue,Templemore, Co Tipperary, and ofChurch Avenue, Templemore, CoTipperary. Would any person havingknowledge of a will executed by theabove-named deceased, who died on 2 February 2005, please contact Paul A Cunningham, CunninghamSolicitors, 8 Emily Square, Athy; tel:059 863 4444

Sweeney, Thomas (deceased) (oth-erwise known as ThomasMcSweeney), late of 37 White Oaks,Wilton, Cork, and the AbbevilleVeterinary Clinic, Tougher Road,Cork, who died on 15 September2005. Would any person havingknowledge of a will made by theabove-named deceased please contactMary Dorgan, Solicitor, 15 SouthTerrace, Cork; tel 021 497 5651, fax:021 497 5669; email: [email protected]

Synott, Breda (deceased), late of 81Wainsfort Road, Terenure, Dublin6W, who died on 14 November 2005.Would any person having knowledgeof a will made by the above-nameddeceased please contact BowlerGeraghty & Co, Solicitors, 2 LowerOrmond Quay, Dublin 1; tel: 01 8728233 or fax: 01 872 8115

MISCELLANEOUS

Westmoreland Street, D2 – 1st , 2nd,3rd and 4th floors, 611 sqm of refur-bished offices in this much sought-after central location close to theFour Courts, city centre and all trans-port routes. New lease terms avail-able. Contact David Bennett at DTZSherry FitzGerald; tel: 01 639 9310

Northern Ireland agents for all con-tentious and non-contentious matters.Consultation in Dublin if required.Fee sharing envisaged. ContactNorville Connolly, D&E Fisher,Solicitors, 8 Trevor Hill, Newry; tel:048 3026 1616, fax: 048 3026 7712,email: [email protected]

London solicitors will be pleased toadvise on UK matters and undertakeagency work. We handle probate, liti-gation, property and company/com-mercial. Parfitt Cresswell, 567/569 Fulham Road, London SW61EU; DX 83800 Fulham Broadway;tel: 0044 2073 818311, fax: 0044 2073 816723, email: [email protected]

Seven-day publican’s on-licence forsale. Contact: Woulfe Murphy, solici-tor, Abbeyfeale, Co Limerick; tel: 06831106, fax: 068 31394

William Fleming, solicitor,and Aisling O’Hanlon, solici-tor, formerly of AB Jordan &Co, College Street, Carlow, arepleased to announce that, as andfrom December 2005, they maybe contacted at William Fleming& Partners, Solicitors, KilkennyRoad, Carlow; tel: 086 6091741/086 251 2108

TITLE DEEDS

In the matter of the Landlord andTenant (Ground Rents) Acts 1967-1994 and in the matter of theLandlord and Tenant (GroundRents) (No 2) Act 1978: an applica-tion by Peter Molloy LtdTake notice that any person havingany interest in the freehold estate orany superior interest in the propertyknown as: all that and those number47 Main Street, Donnybrook, con-taining in front along the main streeton the north-east side of the saidpremises 34 feet; on the south-eastside, 52 feet, 6 inches; and on thesouth side, 18 feet from the west side,an aggregate measurement; whichsaid premises are situate inDonnybrook in the parish of St Mary,Donnybrook, and city of Dublin, andwhich said premises are held under an

indenture of lease dated 8 May 1933and made between the RightHonourable Lord Mayor, Aldermenand Burgesses of Dublin of the onepart and Michael Cullen of the otherpart for the term of 150 years begin-ning on 25 March 1933 at the yearlyrent of £12, 10 shillings and thecovenants therein contained.

Take notice that the applicant,Peter Molloy Ltd, intends to submitan application to the county registrarfor the county of the city of Dublinfor the acquisition of the freeholdinterest in the aforesaid property,and any party asserting that theyhold a superior interest in the abovesaid property is called upon to fur-nish evidence on title to the afore-mentioned property to the belownamed within 21 days from the dateof this notice.

In default of any such notice beingreceived, the applicant, Peter MolloyLtd, intends to proceed with theapplication before the county regis-trar at the end of 21 days from thedate of this notice date of this noticeand will apply to the county registrarfor the county of the city of Dublinfor directions as maybe appropriateon the basis that the person or personsbeneficially entitled to the superiorinterest including the freehold rever-sion to the property are unknown orascertained.Date: 9 December 2005Signed: Anderson Gallagher (solicitors forthe applicant), 29 Westmoreland Street,Dublin 2

In the matter of the Landlord andTenant (Ground Rents) Acts 1967-1994 and in the matter of theLandlord and Tenant (GroundRents) (No 2) Act 1978: an applica-tion by Maurice Flinter and BrigidFlinter of premises at WilliamStreet, Athy, in the county ofKildareTake notice that any person having aninterest in the freehold estate of thepremises described in the schedulehereto and which are held underindenture of lease dated 10 May 1937made between Owen MeredithTweedy of the one part and JacobPurcell of the other part for a term of100 years from 29 September 1936and head fee farm grant dated 30October 1857 made between the dukeof Leinster of the one part andWilloughby Bond and Alicia Bond ofthe other part, should give notice oftheir interest to the undersignedsolicitors.

Take notice that Maurice Flinterand Brigid Flinter intend to submit anapplication to the county registrar forthe county of Kildare for the acquisi-tion of the freehold interest and allintermediate interest in the propertydescribed in the schedule hereto, andany party asserting that they hold a

Wanted:seven-day pub licence

Contact Duggan & Barry, solicitors, Riverside House,Newport Road, Castlebar,

Co. Mayo.

Tel: 094 9044765, Fax: 094 9044767, E-mail:[email protected]

Merchant’s Quay, D8

modern office suite to let,

185 sq. m. ground floor, own

entrance, 4 car spaces, avail

immediately. Near Luas.

01 2079690

MORE GRAVITAS18 volumes of ButterworthsEncyclopedia and Precedencefrom 1905. Reasonable condition.Current technical relevance - Zero.Background decoration - Super.Cheque to be payable to SolicitorsBenevolent association. Inspection- Blackhall Place by appointment.Best offers pre Christmas. Contact"Retired" @ 086 6039922.



71

NORTHERNIRELAND

SOLICITORSWe will engage in,

and advise on,all Northern Ireland-

related matters,particularly personal injury

litigation.

Consultations whereconvenient.

OLIVER M LOUGHRAN & COMPANY

9 HOLMVIEW TERRACE,OMAGH,

CO TYRONE

Phone (004428) 8224 1530Fax: (004428) 8224 9865

e-mail:[email protected]

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

SPANISH LAWYERS

RAFAEL BERDAGUER ABOGADOS

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

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

Web site: www.berdaguerabogados.com

PROFILE:

Spanish Lawyers Firm focusedon serving the need of the for-

eign investors, whether in compa-ny or property transactions and allattendant legalities such as ques-tions of inheritance, taxation,accounting and bookkeeping,planning, land use and litigation inall Courts.

FIELD OF PRACTICES:

General Practice, Administra-tive Law, Civil and Commercial

Law, Company Law, Banking andForeign Investments in Spain,Arbitration, Taxation, Family Law,International Law, Litigation in allCourts.

TWENTY YEARS ADVISING CLIENTS IN REAL ESTATE TRANSACTIONS IN SPAIN

superior interest in the said premisesis called upon to furnish evidence oftitle to the said premises to the under-signed within 21 days of the date ofpublication of this notice.

In default of any such notice beingreceived, the said Maurice Flinter andthe said Brigid Flinter intend to pro-ceed with the application before thecounty registrar at the earliest oppor-tunity and will apply to the countyregistrar for the county of Kildare fordirections as may be appropriate onthe basis that the person or personsbeneficially entitled to the superiorinterest including the freehold rever-sion to the said property are unknownand or unascertained.

Schedule: all that and those thepremises demised by an indenture oflease dated 10 May 1937 and thereindescribed as all that the house andpremises situate at William Street inthe town of Athy and county ofKildare, containing in breadth to thefront to William Street aforesaid 58feet and in breadth to the rear 15 feet,6 inches, and in depth from front torear 75 feet.Date: 9 December 2005Signed: HG Donnelly & Son (solicitorsfor the applicants), Athy, Co Kildare

In the matter of the Landlord andTenant (Ground Rents) Acts 1967-1994 and in the matter of theLandlord and Tenant (GroundRents) (No 2) Act 1978: an applica-tion by Eircom Limited of 114 StStephen’s Green, Dublin 2Take notice that any person having aninterest in the freehold or intermedi-ate interest of the following property:part of the lands of MonkstownCastle, parish of Monkstown, baronyof Rathdown and county of Dublin,and held under lease dated 7November 1953 and made betweenthe Right Honourable Edward ArthurHenry, Earl of Longford, of the firstpart, and the countess of Longfordand others of the second part, and thePakenham Estate Company of thethird part, and John Eustace Vesey ofthe fourth part, William Peter RoperEsquire and John Eustace Vessey ofthe fifth part, and the RepresentativeChurch Body of the sixth part, andChristopher G Cooney Limited of theseventh part, for a term of 150 yearssubject to an annual rent of £350.

Take notice that Eircom Limitedintends to submit an application to thecounty registrar for the city of Dublinfor acquisition of the freehold interestand any intermediate interest in theaforesaid property, and any party orparties asserting that they hold a supe-rior interest in the aforesaid propertyare called upon to furnish evidence oftitle in the aforementioned propertyto the below named within 21 days

from the date of this notice.In default of any such notice being

received, Eircom Limited intends toproceed with the application beforethe county registrar for the city ofDublin for directions as may beappropriate on the basis that the per-son or persons beneficially entitled tothe superior interest are unknown orunascertained.Date: 9 December 2005Signed: EG Hall (solicitor for the appli-cant), Eircom Limited, Solicitors Office,Leitrim House, Upper Stephen’s Street,Dublin 8

In the matter of the Landlord andTenant (Ground Rents) Acts 1967-1994 and in the matter of theLandlord and Tenant (Ground Rents)(No 2) Act 1978: an application byDublin City CouncilTake notice that any person having aninterest in the freehold estate or anysuperior interest in the propertyknown as: all that and those the landscomprising the Dublin City Councildepot situate at GrangegormanLower/Fountain Place/Stanley Street,Dublin 7, which are held under:1) Lease for lives, dated 26 December

1795, John Gibson of the first part,William Hendy and JohnDonnellan of the second part, andRichard Stuart of the third part,



72

subject to the yearly rent of£26.12s.0d;

2) Fee farm grant dated 7 February1877, John George Henry WilliamDunbar of the one part andThomas Picton Reede of the otherpart, subject to the perpetual yearlyrent of £73.16s.11d;

3) Fee farm grant dated 27 March1888, Thomas Picton Reede of theone part and the Right HonourableLord Mayor, aldermen andburgesses of Dublin of the otherpart, subject to the perpetual yearlyrent of £28.15s.2d;

4) Fee farm grant dated 14 May 1885and made between Thomas PictonReede of the one part andElizabeth Kennedy of the otherpart, subject to the perpetual rentof £24.4s.8d

should give notice of their interest tothe undersigned solicitors.

And take notice that the applicant,Dublin City Council (as statutory suc-cessor to the Right Honourable LordMayor, Aldermen and Burgesses ofDublin), intends to submit an applica-tion to the county registrar for thecounty of the city of Dublin for theacquisition of the freehold interest inthe aforesaid property, and any partyasserting that they hold a superiorinterest in the aforesaid property iscalled upon to furnish evidence of titleto the aforementioned property to thebelow named within 21 days from thedate of this notice.

In default of any such notice beingreceived, the applicant, Dublin CityCouncil, intends to proceed with theapplication before the county registrarat the end of 21 days from date of thisnotice and will apply to the countyregistrar for the county of Dublin fordirections as may be appropriate onthe basis that the person or personsbeneficially entitled to the superiorinterest including the freehold rever-sion are unknown or unascertained.Date: 9 December 2005Signed: Terence O’Keeffe (solicitor for theapplicant), Civic Offices, Wood Quay,Dublin 8

In the matter of the Landlord andTenant Acts 1967-1994 and in thematter of the Landlord and Tenant(Ground Rents) (No 2) Act 1978 andin the matter of Bank of Irelandpremises at Laurence Street,Drogheda, Co Louth: an applica-tion by the Governor and Companyof the Bank of IrelandTake notice any person having anyinterest in the freehold estate of orsuperior interest in the followingpremises: all that and those that pieceor parcel of ground with the buildingstanding thereon known as Bank ofIreland, Laurence Street, Drogheda,Co Louth, held under an indenture oflease dated 1 January 1852 madebetween John Browne of the one partand John Rowland of the other partfor a term of 500 years from 1November 1851, subject to the yearlyrent of £25 sterling.

Take notice that the applicants, theGovernor and Company of the Bankof Ireland, being the persons entitledunder sections 9 and 10 of theLandlord and Tenant (Ground Rents)(No 2) Act 1978, intend to submit anapplication to the county registrar forthe county of Louth for the acquisi-tion of the freehold interest and anyintermediate interests in the aforesaidproperty, and any party asserting thatthey hold a superior interest in theaforesaid premises or any of them arecalled upon to furnish evidence of titleto the aforementioned premises to thebelow within 21 days from the date ofthis notice.

In default of any such notice beingreceived, the Governor and Companyof the Bank of Ireland intend to pro-ceed with the application before thecounty registrar at the end of 21 daysfrom the date of this notice and willapply to the county registrar for thecounty of Louth for such directions asmay be appropriate on the basis thatthe person or persons beneficiallyentitled to the superior interestincluding the freehold reversion in theaforesaid premises are unknown orunascertained.

Date: 9 December 2005Signed: Loraine Hayes (solicitor for theapplicant), Group Property Department,Head Office, Bank of Ireland, LowerBaggot Street, Dublin 2

In the matter of the Landlord andTenant (Ground Rents) Acts 1967-2005 and in the matter of theLandlord and Tenant (GroundRents) (No 2) Act 1978: an applica-tion by Dublin City CouncilTake notice that any person havingan interest in the freehold estate orany superior interest in the propertyknown as: all that and those thelands comprising St Michael’sEstate, Goldenbridge, in the city ofDublin, which are held under leasefor lives dated 24 September 1812,William Smith Esq of the first partand Major General Quin JohnFreeman of the second part, subjectto a peppercorn yearly rent and finefor renewal, should give notice oftheir interest to the undersignedsolicitors.

And take notice that the appli-cant, Dublin City Council (as statu-tory successor to the RightHonourable Lord Mayor, Aldermenand Burgesses of Dublin), intends tosubmit an application to the countyregistrar for the county of the cityof Dublin for the acquisition of thefreehold interest in the aforesaidproperty, and any party assertingthat they hold a superior interest inthe aforesaid property is called uponto furnish evidence of title to theaforementioned property to thebelow named within 21 days fromthe date of this notice.

In default of any such noticebeing received, the applicant,Dublin City Council, intends toproceed with the application beforethe county registrar at the end of 21days from date of this notice and willapply to the county registrar for thecounty of Dublin for directions asmay be appropriate on the basis thatthe person or persons beneficiallyentitled to the superior interestincluding the freehold reversion areunknown or unascertained.Date: 9 December 2005Signed: Terence O’Keeffe (solicitor forthe applicant), Civic Offices, WoodQuay, Dublin 8

RECRUITMENT

Assistant solicitor required for abusy Cork suburban practice.Candidate will be required to work inthe area of residential conveyancingand litigation, with a view to expand-ing the family law practice. A goodsalary and excellent prospects for theright person. May suit newly qualifiedsolicitor. Please reply to box no100/05

Experienced solicitor available forpart-time position, with eightyears’ PQE in general practice (toinclude five years self-employed as asole practitioner). Areas considered:north Kildare, Co Meath and Dublin15. Available from January 2006.Contact 087 231 4145

Legal bookkeeper available: Italax,BCL, BOL, AIB, Land Registry,Expd8 and Sage Quickpay.Accountancy background, very expe-rienced. Please reply to box no101/05

Locum solicitor required to covermaternity leave from January 2006 toMay 2006, mainly conveyancing,family law and litigation. ContactJohn Sherlock & Co, 9/10 MainStreet, Clondalkin, Dublin 22, tel: 01457 0846

Mullingar, Co Westmeath – solici-tor with post-qualification experi-ence required for litigation and con-veyancing work. Permanent position.Opportunity to work in busy generallegal practice. Good conditions andsalary. Apply sending CV to box no102/05

Solicitor required, Westmeath/Roscommon/Longford area. Full orpart-time, flexible hours. Excellentpackage, one year’s PQE minimum.Conveyancing. Contact Julie,Anthony Barry & Co; mobile: 087812 7230, email: [email protected]

Solicitor required for suburbangeneral practice. Minimum twoyears’ PQE. Apply in writing to DCShaw & Co, Solicitors, 200Kimmage Road West, Dublin 12; tel:01 456 1344

Solicitor with six years’ PQE seekspart-time position either privatepractice or in-house. Extensive expe-rience in commercial law (telecomsand entertainment), conveyancinglitigation and probate. Long andshort-term contract considered.Proficient in all computer packages,70 wpm typewriting speed and ownpractising certificate. Dublin area.Please reply to box no 103/05

Solicitor seeks locum position inCork city or county. Three years’PQE in conveyancing and probate.Will consider full-time or part-timeposition; tel: 087 222 1289

Apprenticeship required to enterPPC1 course in 2006; MA, MA(Lib), MCLIP. All eight FE1 examsand first Irish exam passed, studyingfor AITI. Willing to pay own fees.Contact Margaret at 085 713 1897 oremail [email protected]

M.M. Halley & Son, SolicitorsWATERFORD

Require a senior solicitor and a junior solicitorto join their existing team in Waterford.

Candidates should be well motivated and team players, with strong previous experience, preferably in Conveyancing and /

or Commercial sector.

Roles offer balance between quality of life and excellent careeropportunities as well as a competitive remuneration package.

Replies to:Ref: MMH, Outsource, 43 Fitzwilliam Square, Dublin 2

Email: [email protected]: 01 6788 490

Recruitment


73

Recruitment


74

BANKING LAWYER - 2-5 YEARS' PQE TO €90KOne of Dublin's leading commercial law firms requires a Banking Solicitor to join its growing team. The success-ful candidate will have a number of years' experience working in the banking and financial services sector, eitherin-house or in practice.

COMMERCIAL CONVEYANCING - 5+ YEARS' PQE €90K+A leading Commercial Law firm in Dublin are now seeking a Commercial Conveyancing Solicitor with 5+ yearsexperience in commercial conveyancing. The successful candidate will have experience in large deal commercialtransactions advising investors, developers and financial institutions. Excellent opportunity to progress to part-nership in the short term.

RESIDENTIAL CONVEYANCING - 2-3 YEARS' PQE TO €60KOur client a respected Dublin law firm are now looking for a Residential Conveyancing solicitor with at least 2years experience. You will have experience in all aspects of conveyancing and be comfortable with the respon-sibility of running files from start up to closing. You will have good client facing skills and be able to work undertight deadlines.

CORPORATE LAWYER - 2-5 YEARS' PQE €60-90KTop 5 law firm requires a corporate lawyer for its Dublin office. You will have experience in some of the followingareas: Mergers and Acquisitions both public and private, securities, private equity, PLC and capital markets expe-rience. This firm offers great opportunities for career development.

FUNDS LAWYER - 1+ YEARS' PQE TO €65KOpportunity exists to join this Dublin firm's Investment Funds team. Applications from candidates from both in-house and private practice are invited. You will be experienced in advising institutional clients and in IrishInvestment Fund law as well as ideally having multi-jurisdictional experience. You will get unrivalled opportunitiesto progress your career and attractive remuneration package.

LEGAL EXECUTIVE - CONVEYANCING 2+ YEARS' PQE TO €60KOur client, a leading Dublin law firm recognised as a strong conveyancing practice have a vacancy for an expe-rienced legal executive. You will have experience in organising residential and commercial developments, Deedsof Assurance, Contract/Building Agreements, replying to pre-contract enquiries, preparing completion documen-tation and distributing closing monies for sales.

For information on these vacanciesor to discuss other career opportunities,please contact John CroninSolicitor.

PRC RecruitmentLimited, 11 HumeStreet, Dublin 2.Tel: 01-6381020 or e-mail [email protected]

Recruitment

Recruitment


76

Recruitment

Recruitment


78

SMITH FOY & PARTNERS SOLICITORS

of 59 Fitzwilliam Square, Dublin 2

Are seeking Solicitors with at least five years post qualification experience in Residential /

Commercial Property Practice, and

A Solicitor with five years post qualification experience in General Litigation.

Attractive salaries and terms will be offered to successful candidates.

Please contact Dónal Smith, Theola Doran or James Foy at 6760531

or else by post at the above address.

ALL APPLICATIONS TO BE TREATED IN THESTRICTEST CONFIDENCE

TRAINEE SOLICITOR REQUIREDFOR SECONDMENT TO THE

PENSIONS BOARD

The Pensions Board is the statutory body responsible for regulating

occupational pension schemes and Personal Retirement Savings

Accounts (PRSAs) in Ireland, and for advising the Minister for

Social and Family Affairs on pension matters in general.

Applications are invited from trainee solicitors wishing to be con-

sidered for a secondment to The Pensions Board for a period of six

months. Applicants should possess a very good knowledge of pub-

lic law and a good general knowledge of Irish Law. Knowledge of

pension's law and regulatory law is desirable but not essential.

Applicants must have good IT skills.

REMUNERATIONThe pay rate applicable to traineeship is that of the Executive

Officer grade, which is currently €26,618 per annum.

APPLICATIONSApplications should be marked 'Legal Traineeship' and addressed to:

Human Resources Department,

The Pensions Board,

Verschoyle House,

28-30 Lower Mount Street,

Dublin 2

or emailed to [email protected]

no later than 10 January 2005.

They should include an up to date curriculum vitae, the grade or markobtained in each university subject and the names of two referees, one ofwhich should be an academic referee.

Private Practice ■ Commercial Conveyancing Solicitor

Dublin City Centre, Top 5 firm. €55,000 -€60,000

■ Conveyancing SolicitorDublin City Centre, 1-3 yrs PQE. Neg.

■ Litigation SolicitorDublin City, 2-4 yrs PQE. €45,000 - €60,000.

■ Commercial Conveyancing SolicitorDublin Southside, 3 yrs PQE. €57,000

■ General Practice SolicitorDublin City Centre, min 2 yrs PQE. €47,000.

■ Employment Law SolicitorDublin City Centre, 2-4 yrs PQE. €45,000 -€63,000

■ Senior Legal SecretaryDublin 2, Conveyancing and Litigation expessential. €35,000+

AT STELFOX LEGAL WE PRIDE

OURSELVES IN THE FACT THAT

WE ARE A LEGAL RECRUITMENT

AGENCY RUN BY LEGAL PEOPLE

FOR LEGAL PEOPLE. A DIVISION

RUN BY SOMEONE WITH FIVE

YEARS LEGAL EXPERIENCE WE

KNOW THE DEMANDS OF BOTH

THE INDUSTRY AND THE PEOPLE

WHO WORK IN IT. WE CANNOT

STRESS ENOUGH HOW

SERIOUSLY WE RESPECT BOTH

CANDIDATES AND CLIENTS

CONFIDENTIALITY. WITH

STELFOX LEGAL, YOU’RE IN THE

DRIVING SEAT.

WE HAVE A NUMBER OF

POSITIONS FOR ALL LEVELS OF

SOLICITORS AS WELL AS

EXPERIENCED SUPPORT STAFF.

If you are interested in finding the right position in the right firm with an agency who genuinely respects your need for confidentiality do not hesitate to call Stephen Kelly B.A., LL.B. at Stelfox Legal on (01) 679 3182 or email your CV to

[email protected] or log on to our website for more opportunities www.stelfox.ie

In House■ In House Legal Counsel

International Fund Services provideris seeking a lawyer with a minimumof four yrs PQE to begin as IrishCounsel. Funds experience orknowledge of financial operationsnecessary. Salary commensurate withexperience and ability.

■ In House Tax SolicitorA well known international companyare seeking a solicitor with aroundthree years PQE and a background intaxation to begin as an in housesolicitor. The role will involve dealingwith CGT and CAT. Salary €65,000+depending on experience andqualifications.

CURRENT OPPORTUNITIES INCLUDE:

Recruitment


79

Recruitment


80