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Contents

Law Society GazetteJuly 2001

1

Regulars

News 2

Viewpoint 6

Book review 27

Tech trends 28

Stockwatch 30

Briefing 33

Legislation update 33

Personal injuryjudgments 35

FirstLaw update 39

Eurlegal 42

People and places 46

Obituaries 49

Apprentices’ page 53

Professional information 55

Why do we still have a Special Criminal Court?One of the most fundamental concepts in Irish law is theright to trial by jury, but this is increasingly being curtailedthrough the use of the Special Criminal Court for ordinarycrime. Julie-Anne Sweeney argues that the continuing misuseof the court could eventually corrupt our whole justice system

10

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

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

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

Volume 95, number 6Subscriptions: £45

Cover Story

GazetteLawSociety

18 High tech, high riskInformation technology, e-mail and theInternet have become the lifeblood ofmost workplaces. But, as TerrenceMcCrann points out, employers mustensure that these technologies don’t endup doing more harm than good

22 Six simple steps to keep your staff happyPeople are your ‘most valuable resource’, so how come

attracting and retaining the right staff is a majorheadache for every business in the country,

including law firms? Deiric McCann explainswhy people leave their jobs and offers soundadvice on what you can do to keep them fromquitting on you

COVER PHOTO: [email protected]

14 Examining theexaminersIntroduced in a hurry tosave a beef baron’sbacon, examinership wasdesigned to keeptroubled companies witha potential future fromwinding up. But flaws soon emerged in the legislation,forcing reforms last year. The courts have recently beguntesting the new regime, as Barry O’Halloran reports

News


2

The Council of the Bars andLaw Societies of the

European Union (CCBE) hasissued new guidelines onelectronic communication andthe Internet for Europeanlawyers. The CCBE adoptedthe guidelines at its plenarysession last November and

Consultation shows broadsupport for new regulations There has been wide

consultation with barassociations around the countryin relation to the proposed newSolicitors’ accounts regulations fromthe Law Society, writes GerryDoherty, chairman of the society’sCompensation Fund Committee.

The regulations were lastupdated 17 years ago and theLaw Society Council felt it wastime to bring the regulationsinto line with developments inlaw and practice. In 1994, theSolicitors (Amendment) Act madeextensive changes to the sectiongoverning the regulations. Thenew regulations are at lastgiving effect to those provisionsand are also reflectingdevelopments in legislativedrafting over the past twodecades. They also provide anopportunity to take account oftechnological and operationalchanges in the world of legalpractice over recent years.

Of course, the primarypurpose of the regulations is toset out the rules governing thetreatment of clients’ monies by

solicitors and to provide forverification of compliance.Solicitors are in a uniqueposition of trust in society, inthat they are entitled by law tohandle, hold and transferclients’ funds. This right isessential to ensure the smoothconduct of transactions andserves the commercial needs ofthe business and financialworlds. However, rights attractresponsibilities and these arereflected in the accounting andprocedural safeguards contained

in the regulations. As a self-regulating profession, solicitorshave effectively entered into acontract with the public thatthey will be honest and fair intheir dealings with clients andwill respect the trust invested inthem in their treatment ofclients’ monies. Both solicitorsand their clients look to theLaw Society to ensure that thiscontract is upheld, and theregulations are the means ofdoing so.

Conscious of the practicaleffects of the regulations on theday-to-day workings of asolicitor’s practice, the Councilof the Law Society agreed thatthe Compensation FundCommittee should engage in aconsultation process with themembers and with the principalaccountancy bodies. This hasproved to be a valuable exerciseand a number of usefulsuggestions have been madethat will undoubtedly improvethe effectiveness of theregulations. It has been verygratifying for the society that,while there have been severalsuggestions for improvements inthe detail of the regulations,there has been widespreadsupport for their overall contentand a keen appreciation of thebenefits of responsibleregulation to the profession as awhole.

As with the 1984 regulations,the new regulations will requirea lead-in time, coupled with aneducation process, in order thatboth solicitors and theiraccountants can be fullycomfortable with the new rules.It is intended that a series ofexplanatory seminars will beheld around the country inAutumn/Winter 2001 andSpring 2002 and that practicalguidelines will be developed toaddress any operational issuesand to ensure consistency ofapplication and interpretation.

WHAT THE NEW REGULATIONS PROPOSEIn practical terms, there are few significant changes to the mannerin which solicitors will be required to deal with clients’ funds. Theregulations introduce a prohibition on the intermingling of asolicitor’s own money with clients’ money (a change designed toprevent the masking of deficits on the client account), a requirementto balance the client items reflected in the office account and aregular reconciliation of both client and office accounts. Most otherchanges in the regulations reflect the law contained in the 1994act, including changes to definitions.

GazetteLawSociety

summerpublicationAs usual, the Gazette will betaking a well-earned breakover the summer so therewill be no issue in August.Normal publication willresume with a jointAugust/September issue,due out on 7 September.

SIS UNDER NEW MANAGEMENTThe management of the SolicitorsInvestment Services scheme hasbeen taken over by Bank of IrelandPrivate Banking Limited, followinga review of the scheme by the LawSociety. The bank’s relationshipmanager Monica Walsh will be theliaison officer between Bank ofIreland Private Banking and theSIS/Law Society. If your practiceis interested in subscribing to theservice, and hasn’t already doneso, contact Monica Walsh on 01631 1400 for details.

LAW SOCIETY OF IRELANDRETIREMENT TRUST SCHEMEUnit prices: 1 June 2001Managed fund: 386.8pAll-equity fund: 112.978pCash fund: 185.856pPension protector fund –

CLASP SUMMER PARTYCLASP (Concerned Lawyers for theAlleviation of Social Problems) willbe holding a ‘summer soirée’ inthe Law Society’s Blackhall Placeheadquarters on Friday 20 Julyfrom 6.30pm to 10pm. For furtherinformation, contact CLASPchairperson Josepha Madigan on01 492 1111.

New CCBE guidelines on e-mail, EU lawhopes that they will helpnational law societies, bars andfirms to produce their ownpolicies. The guidelines can beviewed on the CCBE’s websiteat http://www.ccbe.org, whilesummary guidance is containedin the umbrella organisation’snew bulletin, the CCBE gazette.

The CCBE has alsopublished a practical guideexplaining the implementationof Community law. It is free ofcharge and can be obtainedfrom the CCBE secretariat, butit is currently only available inFrench (translations areapparently under consideration).

Doherty: solicitors have enteredinto a contract with the public

News


3

Irish solicitors have been urgedto lend their voices to

international campaigns to stopterror and torture in Mexico byone of that country’s leadinghuman rights lawyers.

Speaking at a meeting inBlackhall Place organised byAmnesty International, ArturoRequesens Galnares said: ‘Thereis still a big problem withparamilitary groups. In the stateof Chiapas alone, there are morethan 12 such groups and there is

evidence that the stategovernment used to support themwith money and also with training,

while the armyprotected them.There were neverany prosecutions’.Things hadimproved somewhatsince the recentchange ofgovernment inMexico, he added,

but there was still thevery real risk that gross humanrights violations could happenagain.

Irish lawyers, he said, shouldstudy some of the specific caseshighlighted in a recent AmnestyInternational report on Mexicoand write to the Mexicanauthorities, asking how theinvestigations into those casesare proceeding. • Amnesty International’sLawyers’ Group meets at 7.30pmon the first Tuesday of everymonth at the organisation’sheadquarters in Dublin’s Fleet Stand all are welcome to attend.

Solicitors urged to help Mexican human rights drive

Law Society slams ‘shoddy andunbalanced’ magazine articleLaw Society President Ward

McEllin has branded a recentarticle in the Phoenix magazine as‘unbalanced, shoddy and just plainwrong’. He said the story wasbased on ‘one-sided leaks anddisinformation’ from people whofor some reason are opposed tomore effective Solicitors’ accountsregulations.

He also condemned thePhoenix’s failure to make contactwith the society so that thenumerous factual errors anddistortions in the article couldhave been corrected. The Phoenixapproached the society only torequest a photograph of thepresident. It did not seek toensure accuracy in its article orinvite balancing comment.‘Obviously the Phoenix saw this asa story too good to check’,quipped McEllin.

In an extraordinarilypersonalised attack on thepresident of the Law Society, the‘satirical’ magazine tried to link therecent Supreme Court judgment inthe Kennedy case (see Gazette, Mayissue, page 3) with the imminentintroduction of updated Solicitors’accounts regulations for theprofession. According to thePhoenix, the new regulations ‘canonly be seen as giving two fingers

LINK TO SUPREME COURT CASE‘JUST PLAIN WRONG’Commenting on the allegation that the proposed Solicitors’ accountsregulations were a deliberate insult to the Supreme Court, LawSociety President Ward McEllin said: ‘The new regulations havenothing to do with the Kennedy judgment in the Supreme Court. TheLaw Society began working on them many years ago and to try tolink the two things is just plain wrong. That kind of remark isdegrading to both the Law Society and the Supreme Court. It shouldnot have been published, particularly as the balance of the SupremeCourt case has yet to be heard. It is now scheduled to resume on23 October’.

to the Supreme Courtjudgment’. The magazine saidthat the Kennedy case ‘was thefirst time the society’s powers

had been tested and the resultleft plenty of egg on the face ofMcEllin et al’. It added that thejudgment ‘opened the way for a

massive damages claim fromKennedy (apart from the £1.5million costs) as a result of loss offee income’.

Responding to the article, anangry McEllin said: ‘This “story”is based on one-sided leaks anddisinformation. The magazinedidn’t even bother to contact theLaw Society to see if there wasany substance to the stories thatthey were being fed.

‘The main thrust of thistotally unbalanced story is thatthe Law Society shouldn’t try toupdate its Solicitors’ accountsregulations. Well, why not? Theyhaven’t been updated since 1984.We have 17 years’ experience oftheir operation, together withthe requirements of the Solicitors(Amendment) Act, 1994. Timeshave changed, and, as theregulatory authority for thesolicitors’ profession, we have tochange with them. No solicitorwho runs his or her practice in aprofessional and business-likeway has anything to fear fromthis. The society is not going towalk away from its duty toregulate the profession. Theinterests of both the professionand the public will be betterprotected by the newregulations’.

Arturo Requesens Galnares

Ward McEllin: the Phoenix felt it had ‘a story too good to check’

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Letters


5

Letters

Seeing as how we received noDumb and dumber entries from

the profession this month, wedecided to reproduce some of theoddities that can be found on theweb. We realise that they havenothing to do with the law, butthat’s your own fault. We willaward ourselves a bottle ofchampagne and drink your health.As always, we welcome yourexamples of the wacky, weird andwonderful in the legal world. Sendyour best stories to the Editor,Law Society Gazette, BlackhallPlace, Dublin 7 or you can fax uson 01 672 4877 or e-mail us [email protected].

Good luck America – quotes from George W Bush Jnr• ‘The vast majority of our imports

come from outside the country’• ‘If we don’t succeed, we run the

risk of failure’• ‘Republicans understand the

importance of bondage betweena mother and child’

• ‘Welcome to Mrs Bush, and myfellow astronauts’

• ‘The Holocaust was an obsceneperiod in our nation’s history. Imean in this century’s history.But we all lived in this century. Ididn’t live in this century’

• ‘I believe we are on anirreversible trend towards more

freedom and democracy – butthat could change’

• ‘One word sums up probably theresponsibility of any governor,and that one word is “to beprepared”’

• ‘Verbosity leads to unclear,inarticulate things’

• ‘I have made good judgementsin the past. I have made goodjudgements in the future’

• ‘The future will be bettertomorrow’

• ‘We’re going to have the besteducated American people in theworld’

• ‘People that are really very weirdcan get into sensitive positionsand have a tremendous impacton history’

• ‘I stand by all themisstatements that I’ve made’

• ‘A low voter turnout is anindication of fewer people goingto the polls’

•‘When I have been asked whocaused the riots and the killingin LA, my answer has beendirect and simple: Who is toblame for the riots? The riotersare to blame. Who is to blamefor the killings? The killers are toblame’

• ‘Illegitimacy is something weshould talk about in terms of nothaving it’

• ‘We are ready for any

unforeseen event that may ormay not occur’

• ‘For NASA, space is still a highpriority’

• ‘Quite frankly, teachers are theonly profession that teach ourchildren’

• ‘We’re all capable of mistakes,but I do not care to enlightenyou on the mistakes we may ormay not have made’

• ‘It isn’t pollution that’s harmingthe environment. It’s theimpurities in our air and waterthat are doing it’

• ‘[It’s] time for the human race toenter the solar system’

That sporting life• ‘I’ve never had major knee

surgery on any other part of mybody’ – Winston Bennett (rugby)

• ‘The lead car is absolutelyunique, except for the onebehind it which is identical’ –Murray Walker (Formula One)

• ‘I owe a lot to my parents,especially my mother and father’– Greg Norman (golf)

• ‘Sure there have been injuriesand deaths in boxing, but noneof them serious’ – Alan Minter(boxing)

• ‘The racecourse is as level as abilliard ball’ – John Francombe

• ‘If history repeats itself, I shouldthink we can expect the same

thing again’ – Terry Venables(football)

• ‘I would not say he (DavidGinola) is the best left winger inthe Premiership, but there arenone better’ – Ron Atkinson(football)

• ‘He dribbles a lot and theopposition don’t like it, you cansee it all over their faces’ – RonAtkinson (again)

• ‘Ah, isn’t that nice, the wife ofthe Cambridge president iskissing the cox of the Oxfordcrew’ – Harry Carpenter, BBC TVboat race 1977

• ‘Julian Dicks is everywhere. It’slike they’ve got eleven Dicks onthe field’ – Metro Radio (football)

• ‘Well, either side could win it, orit could be a draw’ – RonAtkinson

• ‘Strangely, in slow-motion replay,the ball seems to hang in the airfor even longer’ – David Acfield

• ‘There goes Juantorena downthe back straight, opening hislegs and showing his class’ –David Coleman at the MontrealOlympics

• ‘One of the reasons Arnie(Arnold Palmer) is playing so wellis that, before each tee-shot, hiswife takes out his balls andkisses them … Oh my God,what have I just said’ – US TVcommentator

From: Patrick Fitzgibbon, Pierse& Fitzgibbon, Listowel, Co Kerry

On 2 June last, I receivednotification of completion

of an application from theLand Registry. The paperswere lodged in the LandRegistry on 8 March 1910. Is this a record?

I suspect not.

From: Owen Binchy, JamesBinchy & Son, Charleville, CoCork

Irefer to the practice notewhich appeared in the Gazette

of May 2001. The practice note, and in

particular the heading, gives theimpression that it is reasonableto give undertakings in probatematters. This is not the case.

Once the grant of probateissues to a named executor, it isthat executor who is in controland not the solicitor. Without

Setting thestandardfor snails?

Pondering probate problems reference to the solicitor, theexecutor is entitled to obtain anofficial copy of the grant andnote it himself and collect inthe assets. If an executor dies,someone else can obtain a grantwithout reference to theoriginal solicitor who has acted.

Therefore, a solicitor doesnot have sufficient control in aprobate matter to give anundertaking in relation to estatefunds which he has not got intohis client account. It is notappropriate for a solicitor to

give a conditional undertakingin circumstances where he doesnot have control. Unless theproblems are clearly identifiedin the letter of undertaking, thesolicitor giving the undertakingmay well find himself bound tothe recipient.

The practice note hascorrectly identified some of theproblems which can arise whena solicitor is getting the assetsof an estate, but does not, Ifeel, identify the dangers whichmay arise.

DUMB AND DUMBER

Viewpoint


6

A case of ‘Déjà vu all over aga

‘It’s déjà vu all over again’, anAmerican baseball coach

once famously remarked. Irishsolicitors know the feeling.

March 1990 saw thepublication of the Fair TradeCommission report ‘intorestrictive practices in the legalprofession’. Comprising 334pages of very detailed research,analysis and recommendations,it was by any standards a majorwork which in all took no lessthan six years to complete. Its18 chapters examined dozens oftopics relevant to competitionand the regulation of solicitorsand barristers in Ireland.

As has frequently beenacknowledged by one of thetwo members of the Fair TradeCommission who produced thereport, Dr Patrick Lyons(subsequently the first chairmanof the Competition Authority),most of the key recommenda-tions of the report in relation to

Yet again, the solicitors’ profession is being put under the microscope in an attempt to find‘anti-competitive’ practices. The profession has nothing to fear from an objective study, butwhy is this being repeated now? asks Ken Murphy

the solicitors’ profession weresubsequently implemented,some through the enactment ofthe Solicitors (Amendment) Act,1994.

However, it is nowannounced that the Competi-tion Authority is about toembark on a major ‘study’ – thestatutory term – on certainprofessions which, according to

its draft terms of reference, will:• Identify any restrictions on,

and impediments to,competition and the supplyof professional medical, legaland construction services thatare imposed, provided for orfacilitated by the state, eitherdirectly by law or indirectlyvia a statutory authority,council or other intermediateregulatory body or otherwise.

This study by the CompetitionAuthority was announced bythe taoiseach on 24 April at theofficial launch of the OECDreport on Regulatory reform inIreland. In the May issue of theGazette (page 4), I wrote aboutthis report and criticised theunargued and completelyunjustified recommendation ofthe OECD that the LawSociety’s should cede control ofthe education and entry to thesolicitors’ profession. Although

it is worth adding that theauthors of the recent UK Officeof Fair Trading reportspecifically declined to makesuch a recommendation inrelation to the similar controlsof the Law Society of England& Wales, I will not repeat myearlier arguments here.

Others, however, are not sosensitive to the tedium ofrepetition. Who are these‘others’? It cannot be believedthat the Competition Authorityentirely of its own initiativewould have identified a study ofthese professions, representingas they do a tiny portion of thenational economy, as the mostimportant project in which toexpend the authority’s all-too-limited resources. No, it is clearthat the primary decision-makerin relation to this was thegovernment or, perhaps moreaccurately, some members ofthe government. It is not

Nice treaty is no threat to IrishWhat lies ahead for the Nice treaty in the wake of the recent No campaign triumph? ConorQuigley argues that the sovereignty issues are just red herrings and that Ireland must vote Yesin a second referendum if it wants to stay in the European mainstream

Three weeks before thereferendum on the Nice

treaty, an opinion poll showedthat of those expressing anopinion a clear majority was infavour of ratification. 52% wereinclined to vote Yes, 28%registered as Don’t Knows,while 21% were against. On theday of the referendum, the Yesvote failed to materialise, whilea mere 18% voted No, therebysecuring a majority of the 33%of those who turned up at the

polling stations. On these figures, the No

campaign cannot be justified inarguing that it representsmainstream opinion in Irelandand that the Nice treaty shouldbe abandoned. While there islittle excuse for the utterincompetence of thegovernment in wasting millionsof pounds of state money inorganising a referendumwithout ensuring that the publicunderstood the fundamental

importance of the issues (andeven less excuse for the fact thatnobody seems to be prepared toaccept political responsibilityand resign), it is surely rightthat a second referendum takesplace after a period of deep andconsidered reflection.

We can be sure that most ofthose who were againstratification will largely remainso and may even gain furthersupport, but a second rejectionof the Nice treaty would be the

most important decision that thepeople of Ireland could take andwould, in my view, consignIreland to international andEuropean political andeconomic sidelines for decadesto come. The concern of thoseseeking a Yes vote must,accordingly, be to muster thesupport which was previouslythere and to ensure that it isproperly harnessed.

Sovereignty has been raisedby John Rogers SC as a central

Ken Murphy: the basis for thisstudy is questionable

Viewpoint


7

ain’

‘FURTHER REFORMS’ OF LEGAL PROFESSION RECOMMENDED INTHE OECD REPORT• Opening up the service of conveyancing to, for example, banks

and financial institutions• Continued freedom of advertising for solicitors• Making solicitors responsible for paying barristers their fees and

enabling clients to instruct barristers directly• Allowing solicitors and barristers to practise in other business

forms (such as partnerships with other professions)• Any publication of such things as surveys of costs should be

suppressed• The control of education and entry of legal professionals should

be moved from the self-governing bodies, but close ties asregards quality of entrants and content of education should bemaintained.

difficult to see the appeal forpoliticians of giving theimpression that they are ‘takingon vested interests in the legalprofession’, however spuriousthis may be in reality, with aview to engaging in some formof ‘deregulation’ with which toimpress voters at election time.Best to avoid examining thestate’s role in the far moreeconomically significantelectricity and gas sectors, alsocriticised by the OECD. No.On reflection, I am sure I ambeing far too cynical. No Irishpolitician would ever think insuch terms.

Strangely, it is not onlylawyers who are raising somequestions about the value of theexercise to which theCompetition Authority has nowbeen committed. At anexcellent conference organisedby Competition Press in Dublinon 26 June, the UCDeconomist Moore McDowellquestioned why, a decade afterpro-competition changes wereintroduced in the legalprofession, it should once again

be the case that ‘politicalpressure has led to theCompetition Authority beinginduced or at least encouragedinto undertaking furtherinvestigation into theprofession’.

McDowell was speaking withthe benefit of the insights whichhe and another economist, DrPeter Bacon, acquired through areport which they made forForfás last year on, among otherthings, legal services for Irishbusiness. At the conference they

announced their broadconclusions that ‘the regulatoryframework for the legalprofession did not cause aproblem’, there was ‘little or noevidence of anti-competitivepractices’ and there was, as theyput it, ‘no crock of gold’ to befound whereby significantsavings to consumers of legalservices could be produced.The true problem, McDowellargued, lay not in the legalprofession but in the law and, ata much deeper level, in the

general public policyenvironment, for example, inthe state’s failure to provideadequate courts services.

Speaking at the sameconference, competition lawyerVincent Power challenged theCompetition Authority to ‘bebrave’ and to take an originaland more economically-efficient approach by studyingprofessions or occupationswhich had not been examinedbefore. It seems that theauthority feels compelled to re-examine the legal profession,although arguably it is not theproper role of the authority toevaluate the wide public policyissues involved in governmentregulation, as distinct fromdealing with anti-competitivepractices between undertakings.

The solicitors’ profession hasnothing to fear from anobjective study. We have seen itbefore, and it looks as if,unnecessarily, we are about tosee it again.

Ken Murphy is director general ofthe Law Society of Ireland.

G

sovereignty

Conor Quigley: A second rejectionof Nice would condemn Ireland to

the political sidelines

issue, it being argued that Nicerepresents a further decline inIrish sovereignty which shouldbe resisted. This is, apparently,reflected in the fact that ‘morethan 30 significant areas’ wereto become subject to qualified-majority voting in place ofunanimity, that the number ofEuropean commissioners willeventually be less than one eachper member state, and thatweighting in the council is to bealtered in favour of largemember states. I do not acceptthat these concerns stand up toexamination. Nothing in theNice treaty impinges onsovereignty, whatever that may

be in a modern, open economicstate such as Ireland.

Many of the proposedamendments to the EC treatywhich involve a switch toqualified-majority voting arerelatively unimportant, and fewcan be regarded as ‘significant’.For example, article 110 EC isto be amended to allow for thecouncil to agree by majorityvote to grant financialassistance to a member statewhich finds itself in severeeconomic difficulties. Otheramendments relate to suchdiverse issues as the operationof the euro, the conditionsgoverning members of the

the secretary-general of thecouncil. Surely none of thesecould be regarded as impingingon national sovereignty.

A switch to majority voting isnecessary, however, in thecontext of an enlargedEuropean Union, in order toprevent member states frombeing tempted to blockagreement for spurious politicaladvantage. Thus, the Spanishhave refused to agree to certainEC legislation governing airtransport because that mightrecognise the status of Gibraltarairport. Whatever the merits ofsuch territorial disputes, theyshould not be allowed to block

European parliament and ofpolitical parties at a Europeanlevel, and the appointment of

Viewpoint


8

progress elsewhere. The fear isthat, in an enlarged council,opportunities for stallingnecessary and desirabledevelopments for ulteriormotives would be a temptationthat many member states wouldfind hard to resist.

Admittedly, some importantareas, such as measuresconcerning discrimination ongrounds of race, religion ordisability, will cease to bedecided by unanimous vote.However, by far the mostimportant areas of communitylaw are already governed bymajority vote. I am not awarethat there have been manyinstances where Ireland hasfound itself in a situation where

legislation which it opposes hasbeen foisted on it against itswill. Rather, where a memberstate has any problems with aparticular measure concerning,for example, the internalmarket, environmental policy,consumer protection orinternational trade (which aregenerally adopted by majorityvote), it seems to be quitecommon for a derogation to beincluded in the legislation.

The result is that therelevant rules are harmonisedthroughout the community tothe most desirable extent, butnot at the expense of justifiedexceptions. Of course, there areoccasions when member statesoppose legislation. In those

How solicitors can get the bes

It is well recognised thatexperts can make a valuable

contribution to the solicitor’scase team, and for this reason itis not uncommon in commercialcases to involve experts on thesides of both the plaintiff andthe defendant. Those instanceswhere a plaintiff or defendantobtains an advantage simplybecause the solicitor hasinstructed an expert where theother side has none arebecoming less common.

Furthermore, the courts havebeen putting the basis ofexperts’ testimony under greaterscrutiny in recent years. Forthese reasons (and others), it isnow even more critical thatexperts are managed andsupported properly by theirinstructing solicitors and thatexperts are given opportunitiesto offer advice at theappropriate stages.

In my view, there are twomain areas that solicitors shouldconsider:• Obtaining the advice of their

experts at a much earlierstage in the litigation process,

or even prior to thecommencement ofproceedings

• Adopting a more hands-onmanagement style during thecourse of the assignment,with a clear focus onidentifying the responsibilitiesof each professional.

As a chartered accountantpractising in the provision ofexpert accounting services, Ihave often found myselfconsidering whether we could

have made a greatercontribution to the developmentand, ultimately, the result of acase. From my observations, theactions of the instructingsolicitor and/or counsel canhave quite a significant impacton an expert’s effectiveness in acase.

Obviously, the timing ofinstructing experts is crucial andinvolves a trade-off between thecosts and perceived benefits ofinvolving the expert at thatstage. However, the expert oftenfeels that he or she was notinstructed early enough, leavinginsufficient time for a fullinvestigation of the issues andforcing them to prepare theirreport under unnecessary timeconstraints. Restricting expertsin this way has a potentiallynegative impact on their abilityto handle rigorous cross-examination. In one extremecase, I know of an expert whodeclined an instruction becausehe believed that there wasinsufficient time for him toconduct the investigation andprepare his evidence to the

required standard. Although an expert

accountant’s testimony istypically heard in the latterstages of a case, an importantrole is to identify issues thatshould be addressed by otherexperts and/or factual witnesses.A particularly late instruction tothe expert accountant can oftenmean that insufficient time isavailable for the instruction ofother experts (such ashandwriting or computeranalysts) or obtaining necessaryfactual evidence by way ofaffidavit.

A missed opportunity tosettle arose in one case that Iwas involved in, when adefendant company turneddown a plaintiff’s offer to settlefor an amount less than £1million, and found that thecourt eventually awardeddamages of many millions. Iwonder if the defendant wouldhave accepted the offer if he hadhad the benefit of accountingadvice as to likely quantum ofloss at the time the plaintiffmade his offer.

Experts can make or break a case, but Paul Jacobs maintains that making the most of themrequires solicitors to display a bit of expertise themselves

circumstances, skilleddiplomacy is called for, which,in most cases, should result inthe problems being identifiedand resolved.

Most observers agree thatthe European Commissioncannot operate as an effectiveexecutive if it has more then 20or so members. While allmember states are currentlyentitled to propose acommissioner of their choice,in a European Union of 27member states this will not bepossible. Accordingly, it wasagreed at Nice that when thenumber of member statesreaches 27 (which is not likelyto be for at least seven or eightyears) the size of the

commission would be reduced,although it has not yet beendecided by how much.

We are told by all andsundry that this will be adisaster for Ireland. Frankly, Icannot understand why.Commissioners are meant toperform their tasks whollyindependently and are not totake instructions from anygovernments. Of course,considerable lobbying is carriedout at present by memberstates to ensure that ‘their’commissioner understandsnational concerns and thatthese concerns are, in turn,conveyed to the commission asa whole. In a reducedcommission, such lobbying

Paul Jacobs: teamwork betweenexperts and solicitors helps

achieve success

Viewpoint


9

st from their expertsAnother reason that lawyers

may want to involve expertssooner rather than later relatesto the identification ofdocuments and computerrecords that the expert will needto rely on in his report. In toomany cases, I have had topainstakingly reconstruct (at thesolicitor’s client’s expense)accounting records because theclient had discarded the primaryevidence, or let important faxesfade with the passage of time, orhad not backed-up computerrecords from disks onto moredurable storage media.

Insufficient hands-onmanagementI have also found that the casesthat run particularly smoothlyare those where the solicitor hasa hands-on management style,with a clear focus on identifyingthe responsibilities of eachprofessional involved. Too often,experts are left to their owndevices without appropriatesupervision by the instructingsolicitor, including deciding thescope of their investigation andidentifying the evidence (factualand other expert) that it will benecessary to rely on. Where

more than one expert isappointed for the plaintiff orthe defendant, this raises itsown issues, particularly whenone expert is going to rely onthe opinion of another. Forexample, where the samesolicitor appoints more thanone expert, it is often left to theexperts of different disciplinesto identify how the evidencewill fit together. A good expertwill identify for the solicitor thefactual or other expert evidencethat is required for him toexpress a convincing opinion.Without hands-onmanagement, solicitors run therisk of not getting the best fromtheir expert.

A key question for theinstructing solicitor is whetherto involve the expert as part ofthe case team or to consult onlywhen a particular issue requires.The answer to this questionobviously depends on a balancebetween the issues of the case,the extent to which experts arerequired and costs. In somecases, I have been brought intothe core case team to giveaccounting-related advice whichimpacted on strategic issues, forexample, whether the client’s

each expert will need to rely onare identified at an early stagein the litigation process and arein fact obtained.

Failure by the instructingsolicitor to adequately considerthese two main factors can leadto a less-than-optimumperformance by the expert inthe witness box, a prolongedlitigation process, increasedcosts, an unfavourable award ofdamages and, ultimately, a veryunhappy client.

Paul Jacobs is a senior managerin the litigation and forensicaccountancy services group atErnst & Young.

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would no doubt continue, butchecks and balances would needto be put in place to ensure thatit would be more broadly basedand transparent and that it didnot operate on nationality lines.

But the danger (or theadvantage) of lobbying shouldnot in any event be exaggerated.It is already the case that acommissioner who insists onputting a partisan nationalargument which is not properlyand objectively justified incursthe contempt of his colleagues.

Small country tyrannyRe-weighting of the council isalso a matter on which I havedifficulty understanding theobjections based on sovereignty,

given that the whole point ofqualified-majority voting is thateach member state has only asmall proportion of the overallvotes. The necessity for re-weighting is obvious in that often applicant countries all butone are classified as smallcountries. Thus, the EuropeanUnion will have a total of 21small countries and six largeones. It would have been quiteimpossible (and whollyundemocratic) for the largecountries to have foundthemselves in a position ofbeing dictated to by the smallcountries. The proposed re-weighting formula seeks tobalance in a fair anddemocratic manner the

interests of all the memberstates. The smaller memberstates, including Ireland, stillhave many more votes thantheir population would warranton a strictly proportionate basis.

We should be under noillusion as to the consequencesof rejecting the Nice treaty asecond time. Sure, it wouldmean the abandonment of thatparticular treaty, sinceratification by all member statesis a necessity. Enlargementwould go ahead in some guise,since technically the onlychanges needed are to thenumbers and votes in the EUinstitutions, which can besecured in each respectiveaccession treaty. But, just as

many in Ireland say they votedagainst the Nice treaty forreasons which relate to thegeneral direction of theEuropean Union rather than toany particular detail of thetreaty itself, so across Europethe feeling is that the Irishrejection was based on selfish,parochial and immatureconsiderations.

No amount of harping on about sovereignty, neutralityand the democratic deficit(which in any case is self-inflicted) will alter that view.

Conor Quigley is a barristerspecialising in EU law, practisingin Brussels, London and Dublin.

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solicitor should make an offerto settle the action. But in othercases, I have not had this closeinvolvement. I recommend thatan expert be called in onlywhen absolutely justified.

The role of the expert needsto be managed skilfully by theinstructing solicitor. First,experts are not always involvedsufficiently early in thelitigation process, which couldmean that clients miss out onadvice on key evidential andquantum issues. Second,solicitors should consideradopting a more activemanagement style to ensurethat all evidential matters that

The Solicitors’ Helpline is available to assist everymember of the profession with any problem, whetherpersonal or professional. The service is completelyconfidential and totally independent of the LawSociety. If you require advice for any reason,phone:01 284 8484

SOLICITORS’ HELPLINE

01 2

84 8

484

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Article 38 (3) of the Irish constitutionprovides for the establishment ofSpecial Criminal Courts for the trial ofoffences in cases ‘where it may bedetermined in accordance with such

laws that the ordinary courts are inadequate tosecure the effective administration of justice andpreservation of public peace and order’.

One of the most fundamental concepts in Irish law is the right of the individual to trial by jury.

But this right is increasingly being curtailed through the use of the Special Criminal Court for

ordinary crime. Julie-Anne Sweeney argues that the continuing misuse of the court could

eventually corrupt our justice system

certificates in relation to any particular offence,deeming the ordinary courts as inadequate to securejustice. Upon certification by the DPP, these casesmust be sent for trial in the Special Criminal Court.There is no limit on the type of offence that may becertified by the DPP and his decisions are not subjectto judicial review (see Kavanagh v The Government ofIreland, the DPP and The Special Criminal Court, [1996]

MAI

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OIN

TS • Historicalbackground toOffencesAgainst theState Act,1939

• The role of theDPP

• Extension ofthe SCC intoordinary crime

Why do we still have a

Special Criminal Court

Part V of the Offences Against the State Act, 1939reiterates this constitutional provision word for wordand so provides the legislative basis for the SpecialCriminal Court.

In order for part V of the act to come into effect,the government must issue a proclamation statingthat the ordinary courts are inadequate to secure theeffective administration of justice and preservation ofpublic peace and order. Such a proclamation wasissued in 1939 and the court remained in operationuntil 1946. The present Special Criminal Court wasestablished by a 1972 proclamation and has been inoperation without serious governmental review to thepresent day. The problem of Northern Ireland andthe ensuing paramilitary activities has been theprimary reason given by the government onnumerous occasions for the establishment of theSpecial Criminal Court.

Sections 46 and 47 of the act give the director ofpublic prosecutions (DPP) the authority to issue

IR 321). There now exists a commonly-held and notunsubstantiated fear among human rightsorganisations that jury trial is slowly being abolishedby ‘the backdoor’.

Today, Ireland is not experiencing any emergencystatus, as the government acknowledged in 1995 –yet the Special Criminal Court continues to operateand is now increasingly being used to try non-subversive offences. In the past two years,approximately one-third of the cases dealt with bythe court have related to offences with noparamilitary connections.

The continued operation of the Special CriminalCourt is dependent on the government’s belief thatthe ordinary courts are ‘inadequate to secure theeffective administration of justice and preservationof public peace and order’ (section 35(2) of the 1939act). The reasons why the courts are inadequate tosecure effective justice in relation to ordinary crimehave never been outlined.

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As mentioned earlier, the DPP may transfer non-scheduled offences to the court if he believes that ina certain case the ordinary courts are inadequate tosecure the effective administration of justice and thepreservation of public peace and order. No otherreason need be given. The certificate is not subjectto judicial review unless there is evidence of malafides. This creates a catch-22 situation for theaccused, as it is virtually impossible to provideevidence of mala fides when the reason for thetransfer does not have to be disclosed.

The subject of judicial review of the DPP’scertificate was primarily addressed in Savage v theDPP ([1982]) ILRM 385). Relying on In reMcCurtain ([1941] IR 83), the judge held that theonly function of the judiciary in this area was to

ascertain whether the certificate wasvalid in that it was issued by the DPPand that he had reached an opinion asexpressed in that certificate. Nevertheless,the basis on which the opinion was formedis not subject to review: ‘the opinion of theAG is not reviewable by the courts’, he said.

In submitting the reasoning as to why thecertificate of the DPP should not be subjectto judicial review, Laffoy J, relying onSavage v the DPP in the High Courtdecision of Kavanagh v Ireland ([1996] IR321), stated that: ‘the revealing of suchinformation in open court ... would be a securityimpossibility’. But, as commentators have argued,this concern could be met by following the ruling inMurphy v Dublin Corporation ([1972] IR 215) underwhich court proceedings which include sensitivematerial from a security point of view may be held incamera. However, in the case of O’Reilly & Judge v

DPP ([1984] ILRM 229), it was held that ‘based onthe terms of article 38(3)(1) of the constitution andthe authorities to date, the opinion of the DPP is notreviewable by the courts, whether in open court oras private investigation’.

Moreover, the certificate is not reviewable even incases that have no subversive elements or securityhazards. In Byrne v Dempsey (unreported, SupremeCourt, March 1999), the plaintiffs argued that theDPP’s decision should be subject to review by thecourts as ‘the upholders and protectors of theconstitutional rights of the citizens’. Once again, itwas held that the power of the DPP to transfer casesderived from the legislature, which vested this powersolely in the executive. The court held that in theabsence of mala fides the DPP cannot be called upon

to explain his decision or give reasons forit nor the sources of

information onwhich it was

based.So the law in

this area hasremained stagnant,

with littleleeway givento thejudiciary to

interfere inthe DPP’s decisions.

The defendant is given nochance to defend his right tojury trial, as he cannot avail

of any opportunity todispute the allegation that

the ordinary courts areinadequate to secure

justice in his case. It isby this route thatmany of theordinary criminalcases aretransferred to theSpecial CriminalCourt.

The SCC andordinary crimeThe Irish Council

for Civil Liberties hasdocumented the wide range of ordinary crime thathas been charged before the court via the DPP’scertificate. Charges such as arson, the unlawfultaking of a motor car, receiving a stolen caravan andits contents, and the theft of cigarettes and £150from a small shop have all been heard before theSpecial Criminal Court. The contention that the act

t?

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The Oireachtas debates of 1939 illustrate not only the circumstances and eventssurrounding the introduction of the Offences Against the State Act, 1939 but alsoprovide an insight into the initial intention of the Oireachtas in passing the act.

The Offences Against the State Bill, 1939 was introduced when the Irish statewas in its infancy, the country had recently emerged from a bitter civil war anddissident political views regarding partition were rife. In trying to combat threatsmade by the IRA, the government decided to introduce an act conferring on itselfspecial powers.

Introducing the bill, the Minister for Justice, Mr Rutteledge, outlined its soleobjective as being ‘to prevent the display, the use or the advocacy of force as amethod to achieve political or social aims’. By including the phrase ‘social aims’,the parameters of the bill were rendered sufficiently broad so as to encompasscrimes not related to subversive activity.

However, the Dáil debates indicate that the initial intention was to use thesemeasures to combat politically-motivated violence. The bill – and, in particular, partV relating to Special Criminal Courts – was defined as an ‘emergency provision’.The emergency to which the minister referred was the proclamation made by theIRA purporting to be the true government of the state with the right to declare war.Thus, the primary grounds given for the bill was that the security of the state wasunder threat.

The speeches made by Dáil deputies during the debates emphasise theintentions of the legislature regarding the bill. For example, Professor O’Sullivan(deputy for North Kerry) said: ‘It is a bill which is clear from its context is designedto deal with what I might call dangerous political disorder’. But even in the initialstages of the bill’s passage, some deputies voiced their fears about its potentialfor abuse by the government. Professor O’Sullivan highlighted the dangers ofcertain sections of the bill ‘to the ordinary citizen who may be guilty of an offencebut not guilty of anything that could be interpreted as upsetting the state orleading to the upsetting of the state’.

This danger has already been realised through the use of the Special CriminalCourt for trying non-subversive crimes, such as manslaughter and drug trafficking.

BACKGROUND TO THE ESTABLISHMENT OF THE

SPECIAL CRIMINAL COURT

could be extended into ordinary crime was dealt withextensively in The People v Quilligan & O’Reilly([1986] IR 495).

This case concerned an appeal made by the DPPagainst the ruling of the trial judge pertaining to thearrest of Mr Quilligan under the Offences Against theState Act. Quilligan was charged with murder. Barr Jin the Central Criminal Court divided criminals intotwo broad categories for the purposes of determiningthe intention of the act, and subsequently coined thephrases ‘ordinary crimes’ and ‘subversive crimes’. Heheld that as the offence with which the defendanthad been charged contained no subversive element,an arrest under the Offence Against the State Act wasunlawful and so any statements made while in policecustody were inadmissible. In coming to thisconclusion, the judge held that ‘[the act’s] generalpurpose is to deal with political or quasi-politicalcrimes against the state, its organs or personnel’.Furthermore, he held that ‘the adequacy orotherwise of the ordinary courts to conduct anddispose of criminal business arises only in connectionwith subversive crime’. On appeal to the SupremeCourt, it was held that Barr J had erred in his

interpretation of the act by limiting its application tosubversive offences.

In the Supreme Court, Walsh J outlined thejurisdiction of the Special Criminal Court as being‘restricted to the offences in relation to which thegovernment is satisfied that the ordinary courts areinadequate to secure the effective administration ofjustice and preservation of public peace and orderwhich have been “scheduled” by the government inthe prescribed manner and to any offences in respectof which there is a certificate by the attorney generalor now also the DPP that the ordinary courts are inhis opinion inadequate to secure the effectiveadministration of justice and the preservation ofpublic peace and order in respect of the trial of theoffence in question’ (The People (at the suit of theDPP) v Christopher Quilligan & Patrick O’Reilly[1986] IR495 at p 506). Considering that thecertificate of the DPP is in reality unreviewable bythe courts and neither his nor the government’sreasoning as to the adequacy of the courts isdisclosed, it effectively means that there is little orno restriction on the jurisdiction of the court.

The justification of jury intimidationIn holding that the act could be extended to dealwith ordinary crime, Walsh J referred to actionswhich contained no paramilitary element yet couldbe economically injurious to the state, and used theblack-market cases which were heard by the SpecialCriminal Court to illustrate this. However, thesecases were heard during the late war years whenIreland was in a state of emergency. As the 1939Dáil debates show, the act was set up to deal withissues affecting the functioning of the state duringthe Emergency.

Walsh J then continued his analysis for allowingthe act to encapsulate ordinary crime by citing thereasoning of the legislature in 1939 for the SpecialCriminal Court, which envisaged the possibility ofjury intimidation. He argued that ‘ordinarygangsterism or well-organised drug dealing’ couldjust as equally pose as great a threat to juries assubversives. This argument carries weight, butignores the fact that the act was intended in thedebates to deal with crime affecting the security ofthe state in a time of emergency. Unfortunately,large-scale drug trafficking is quite common inmany countries and would not constitute ‘anextraordinary circumstance’ in modern society.Furthermore, the abolition of the requirement ofunanimous verdicts for juries was introduced in1984, arguably making jury intimidation moredifficult to achieve.

The Criminal Justice Act, 1999 also underwent anumber of amendments with a view to generallystrengthening the law in relation to the intimidationof witnesses and jurors. It has been argued that if ajury is at risk of tampering, there are more effectiveways of dealing with the problem than simplydispensing with them completely (see, for example,the submission from the Law Society’s Criminal

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Law Committee to the Hedermann Committee toReview the Offences Against the State Acts, 1939 to1998 and Related Matters). Other jurisdictions (suchas the United States) deal quite effectively withhigh-profile drug- and gang-related cases wherejuries may be at risk without doing away with themaltogether.

Moreover, the case of Littlejohn v Governor ofMountjoy Prison (unreported, Supreme Court, 18March 1976) highlights a weakness in thejustification of jury intimidation for the use of theSpecial Criminal Court in ordinary crime. Here, theaccused had already pleaded guilty in the DistrictCourt, so a jury trial was not required. Henchy Jstated obiter that he was unable to accept that thethreat of jury intimidation ‘is the sole basis on whichthe attorney general might validly certify that theordinary courts are in his opinion inadequate tosecure the effective administration of justice andpreservation of public peace and order’.

Jury intimidation is not the only reason for theSpecial Criminal Court. Yet due to the drasticnature of this measure (in that it curtails the basicright to jury trial), the government should outlinethe other valid reasons for the use of the SpecialCriminal Court in ordinary criminal cases.

Instances where the courts will interfereThe courts concede that the maintenance of theSpecial Criminal Court is primarily a politicalquestion. As was stated in the1996 case JosephKavanagh (Applicant) v The Government of Ireland, theDPP, the Attorney General and The Special CriminalCourt: ‘It is natural that such a political decisionshould be primarily subject to political control’(IR321 at p355). However, in Kavanagh v Ireland,Keane J acknowledged that the government’sdecision on the adequacy of the ordinary courts‘cannot be regarded as forever beyond judicialcontrol’.

He also recognised that, as per Crotty v AnTaoiseach ([1987] IR 713), judicial review of thedecision by the government is dependent on theactual infringement or threatened infringement ofthe rights of individual citizens. Such aninfringement may be indicated by ‘a clear disregardby the government of the powers and dutiesconferred upon them by the constitution’.

In Byrne v Ireland (unreported, Supreme Court,11 March 1999), the appellants relied on unfairdiscrimination in violation of article 40.1 of theconstitution in contending the validity of the DPP’scertificate transferring them to the Special CriminalCourt while nine of their co-accused were sent fortrial in the ordinary courts.

The appellants relied upon this statement madeby Henchy J in The Stardust Victims Tribunal: ‘Iwould accept that article 40.1 of the constitutionrequires that people who appear before the courts inessentially the same circumstances should be dealtwith in essentially the same manner’. The appellantsand their nine co-accused were charged with the

same offences arising out of the same set ofcircumstances. Hamilton CJ justified the situation inwhich the appellants found themselves by statingthat ‘what distinguishes the appellants from their co-accused is that, in respect of them only, the DPP hascertified that the ordinary courts are inadequate tosecure the effective administration of justice andpreservation of public peace and order’. And hecontended that the DPP is directly authorised bystatute ‘to issue a certificate and thereby make thedistinction between citizens’. In other words, anindividual’s right to jury trial is up to the opinion ofthe DPP, without question.

By contrast, Keane J in Kavanagh v Ireland statedthat ‘save in exceptional circumstances of war andnational emergency envisaged by article 28, section3, the courts at all times retain their jurisdiction tointerfere so as to ensure that the exercise of thesedrastic powers to abridge citizens’ rights is notabused by the arm of the government to which theyhave been entrusted’ (IR 321 at p366).

Was this distinction by the DPP between 11people charged with identical crimes arising out ofan identical set of circumstances not exactly the sortof infringement of citizens’ rights that the courtsclaim authority to protect, as outlined by Crotty v AnTaoiseach?

The evolution of the Special Criminal Court hasbeen something of a snowball effect: it began as ameans to combat political crime and is now beingapplied to any sort of offence, regardless ofclassification, which the DPP feels the ordinarycourts cannot adequately supervise. The adequacy orotherwise of the courts is determined by twosubjective sources: the government, which has aninterest in ensuring that crimes are prosecuted, andthe DPP, who will be prosecuting the case.

This fact, coupled with the continued evasion bythe judiciary of a supervisory role in relation to theDPP’s certificate, highlights the need for well-defined conditions under which the Special CriminalCourt should be used.

The most obvious and persistent criticism of theSpecial Criminal Court is that it was not intendedthat ordinary criminal cases should fall within theambit of the act. These cases are being tried underan emergency procedure which is contravening theinitial intention of the Oireachtas. To use part V ofthe act in ordinary crime without adequatejustification or supervision is not only incorrect butalso disconcerting.

If emergency measures are used and normalisedwithin this jurisdiction, we may witness thedegeneration of the criminal justice system into oneof double standards where, for unexplained reasons,certain individuals are granted their right to jurytrial while others are denied it.

Julie-Anne Sweeney is a law student at the University ofLimerick. This article is an edited version of her winningentry in the Law Society’s Law Reform Student EssayPrize competition.

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‘If emergency

measures are

used and

normalised

within this

jurisdiction,

we may

witness the

degeneration

of the criminal

justice system

into one of

double

standards’

Company law


14

Software developer and Internetpublisher Nua Ltd is one of the better-known casualties of this year’s high-tech fallout. When the door to a last-ditch rescue bid was finally closed in

March, its directors looked at one more option:examinership. This would involve petitioning theHigh Court to have the company placed in itsprotection for a period of up to 100 days while acourt-appointed examiner puts together a rescueplan or ‘scheme of arrangement’ designed to ensureits survival.

On the face of it, Nua might have been a goodcandidate. According to its chief executive, GerryMcGovern, it was close to winning a number ofcontracts for its recently-developed webmanagement software, Nua Publish. That, and anumber of other developments, might have ensuredviability. Instead, at the request of its directors,Nua’s biggest creditor, Eircom, placed it in thehands of receiver David Hughes of Ernst & Young.

McGovern says examinership had been ruled out

Examining the

Introduced in a hurry to save a beef baron’s bacon, examinership was

designed to keep troubled companies with a potential future from winding up.

But flaws soon emerged in the legislation, forcing reforms last year. The

courts have recently begun testing the overhauled regime, as Barry

O’Halloran reports

almost as soon as the company looked at thepossibility. ‘Our advice was that while it was oncerelatively easy, the law has been changed and wewould have needed an independent accountant’sreport to show that we could have remained viable.We just did not have time to do that’, he says.

That is a far cry from the days when the courts firststarted to apply the Companies (Amendment) Act, 1990.It became clear through a number of controversialjudgments that almost any company unable to pay itsdebts, but with a remote chance of survival, could getcourt protection, often to the detriment of itscreditors.

The act is partly the legacy of Saddam Hussein,because the Iraqi dictator’s September 1990 invasion ofKuwait threatened, among other things, the Irish beefindustry. This depended heavily on export earningsfrom the Middle East. Its biggest player was theGoodman group, controlled by Larry Goodman.

With the threat of war hanging over what was thenone of our largest industries, an emergency sitting ofthe Oireachtas passed the legislation. One way or theM

AIN

PO

INTS• Original

examinershipregimeimpingedseriously oncreditors’rights

• Tougherapproachtaken in 1999legislation

• Courts arenow applyingthese reforms

exami

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other, it would have ended up on the statute books bythe end of that year. The government had proposedintroducing examinership as part of a package ofcompany law reforms. The rest were passed inDecember 1990 as the Companies (Amendment) (No 2)Act, 1990.

The 1990 act states that the court ‘may, inparticular’ appoint an examiner if this facilitates thecompany’s survival. Originally, it was thought thatthis implied that judges had discretion, but a differentstory emerged when the courts began applying theact.

In Re Atlantic Magnetics Ltd ([1993] 2 IR 561), theSupreme Court decided that the level of judicialdiscretion was not that wide. Justice Finlay ruledthat the act’s wording imposed a ‘stronglypersuasive’ obligation on the court to appoint anexaminer where it would facilitate a company’ssurvival.

And, while the High Court declared that where acase was unclear, an examiner should be appointed ifthere was ‘some reasonable prospect of survival’,

Finlay changed this to ‘some prospect of survival’.Dropping the word ‘reasonable’ effectively meant thateven troubled companies with only the slimmestprospects of making it would get court protection.

Atlantic Magnetics laid down the criteria forappointing examiners that would apply until theCompanies (Amendment) (No 2) Act, 1999 came intoforce last year. According to solicitor Catherine Duffy,an insolvency practitioner with law firm A&LGoodbody, the ease with which companies could getthis kind of protection had long-term consequences.‘Banks, and particularly foreign banks, became verywary of lending money to Irish companies’, she says.

That was serious from the point of view ofindividual businesses. In the early nineties, the Irisheconomy was still struggling and venture capitalistswilling to invest in a company in return for a stakewere few and far between. In general, Irish companieswere under-capitalised and borrowing was the quickest– and in most cases, the only – route to capital.

But the banks did not tighten up only because it waseasy to get protection; there were also the

ners

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consequences. Under section 5 of the 1990 act, oncean examiner is appointed, a company cannot bewound up. Creditors cannot take action against it torecover their debts; secured creditors cannot realisetheir security; nor can the suppliers of goods subjectto hire purchase or retention of title agreementsrecover their property. In fact, no proceedings of anykind can be taken against the company without thecourt’s consent and, even then, the examiner canchallenge it.

The full consequences were realised in 1994,when the Supreme Court handed down judgment inRe Holdair Ltd ([1993] 1 IR 416). Holdair Ltd wasone of the Kentz group of companies. When thisran into trouble, one of the creditor banks, whichheld a debenture over some of the company’s assets,appointed a receiver. Under section 6 of the 1990act, a receiver can be ordered to stand down if anexaminer is appointed within two days. There was aquestion in the case over whether the bank’s securitywas a fixed or floating charge. The Supreme Courtruled it was a floating charge. However, once areceiver is appointed, a floating charge crystallisesinto a fixed charge. If the charge is fixed, thecompany cannot use the assets without the securityholder’s permission.

It was argued that this would have prevented theexaminer from getting access to the assets which heneeded. In the Supreme Court, Justice Blayney ruledthat maintaining this as a fixed charge would breachsection 5, which prohibits any action being taken torealise a secured debt.

In a judgment that must have frozen the averagebanker’s blood, Blayney J stated that once thereceiver stood down, the fixed charge de-crystallisedand became once again a floating charge. At thetime, critics of this ruling pointed out that there wasno basis in Irish law for this theory and, in fact, thejudge did not cite any.

But his colleague Justice Finlay concurred, anddeclared that section 5 prevented security holdersenforcing their rights in the first place. What theywere doing was simply enforcing the act’s provisions,which baldly stated that where any claim against acompany is secured by a charge ‘no action may betaken to realise the whole or any part of suchsecurity’ unless the examiner consents.

This was bad news for creditors. Before the lawwas reformed, examiners could be appointed quickly.And even though creditors had the right to

challenge this, no examiner was ever removed afterbeing appointed. For creditors, the consequences ofseeing a debtor go into protection meant that thecompany continued trading, and that whatever wasleft in the kitty dwindled away while the examinerworked out a rescue scheme.

But it’s worth remembering that judgments suchas Atlantic Magnetics and Holdair were made in verydifferent days. Creating and saving jobs were themain political issues in the early nineties. By 1995,unemployment hit a record 300,000-plus.Examinership was the only system of corporaterescue we had, and its main aim was protectingjobs. In a 1991 case, Re Selukwe Ltd (unreported, 20December 1991), Justice Costello allowed the factthat there were 30 jobs at stake to outweigh allother issues.

Nonetheless, as the courts applied the legislation,the cracks began to show, and by 1994 agovernment-appointed company-law review grouprecommended reform. Its proposals were enacted inthe Companies (Amendment) (No 2) Act, 1999, andbecame law last year.

Catherine Duffy says that the changes are largelyprocedural, but do represent a major improvement.‘One of the most significant points is that you haveto produce an independent report in order to get anexaminer appointed’, she explains. ‘This has to setout what is required if the company is to survive asa going concern. And you have to satisfy the courtthat the company has a reasonable prospect ofsurvival. Under the previous legislation, that wasnot the case’.

Independent accountants prepare the reports,which have to include the following:• A statement of the company’s assets, debts and

liabilities• A statement by the accountant that the company

has a reasonable prospect of survival• Details of the funding needed to keep trading

during the examinership period, and the sourcesof that money, and

• A recommendation detailing what debts incurredbefore the court hearing should be paid duringthe examinership period.

Both the petitioner and the independent accountanthave to disclose all relevant information andexercise the utmost good faith. If they do not fulfileither of these obligations, protection will not begiven. This was introduced because critics felt theease with which an examiner could be appointedunder the 1990 legislation left the system open toabuse.

In a further tightening of the regime, creditorshave the right to be heard before the court decidesto appoint an examiner. As the legislation allows forthe payment of pre-petition debts, it is likely thatkey suppliers of goods and services will be paid.

Duffy believes that the new system is fairerbecause it gives creditors a role in the rescueprocess. ‘What is happening is that you are talking

Examinership is basically a statutory corporate-rescue mechanism. The law coversany company incorporated or registered in this country. To qualify, it must beunable to pay its debts. An examiner cannot be appointed if a resolution or orderhas been made for its winding up, or if a receiver is in place for more than threedays.

The following may petition the High Court to have an examiner appointed: thecompany itself, directors, creditors (including employees) or shareholders holdingone-tenth or more of the paid-up capital.

EXAMINERSHIP?WHAT IS

Company law


17

to your creditors’, she says. ‘The accountant wouldnot be able to come to any conclusion without goingto them first. Obviously, if there is a chance that thecompany will survive, they will co-operate, becauseit means that they are likely to recover far more ofwhat they are owed than if the company goes intoliquidation or receivership. It means that you cancome to an arrangement that is in the best interestsof everybody’.

The scheme of arrangement – basically, theexaminer’s proposals for saving the company – hasalso thrown up some controversy. The schemes areput to the court when the examiner makes hissecond report at the end of the protection period.(He is required to make a first report after 35 days.)Section 18 of the 1990 act obliges him to formulatea scheme if he believes that this will facilitate thesurvival of all or part of the company.

Originally, shareholders were required to approvethe schemes by a simple majority. The 1999 actjettisoned this provision, but gives shareholders theright to be heard if they believe the scheme unfairlyprejudices their interests. The changes also allowthe court to approve the scheme if just one class ofcreditors, whose interests or claims would beaffected by the proposals, votes to accept them.

In Coombe Importers Ltd (unreported, Hamilton P,5 December 1990), 36 unsecured creditors whowere owed a total of £470,000 accepted an offer of

15p/£1. The Revenue Commissioners rejected anoffer of 80p/£1 and two secured creditors rejectedan offer of 22p/£1. The court approved because oneclass – the unsecured creditors – accepted the deal.The court can throw out a scheme if it’s unfairlyprejudicial to any interested party’s interests.

While the law in this area has not been changedradically, Duffy points out that there have beenother very welcome reforms. A key one relates tothe repudiation of contracts. The 1990 act allowedan examiner to reject contracts or agreementsentered into before his appointment if he believedthey were detrimental to the company’s interests.He is no longer entitled to do this.

Similarly, the reforms safeguard the rights ofparties who have leased land or any other propertyto the company.

Effectively, the 1999 amendment prevents theexaminer from including any provisions in thescheme of arrangement that allow for reducing oreliminating the payment of rent, or if they in anyway prevent lessors from exercising their rights torecover property.

These and other reforms took effect in early 1999and the courts have begun enforcing them. In May,the High Court appointed an examiner toCastleholding Investment Ltd, the holding companyfor the Tipperary-based medical devices groupAntigen Ltd.

The company was unable to pay its debts after itwent into shutdown in order to upgrade itsmanufacturing technology in preparation for a tradesale. Unfortunately, the downtime lasted for fivemonths longer than the company was originally toldwould be necessary.

Underlying this was the fact that Antigen is ahealthy business. Employing 350 people, it is amajor supplier to the British National HealthService. Antigen Ltd’s 1999 annual returns showthat it had net assets of £19.5 million. Sales for theyear to 31 March 1999 were £21.78 million, whileprofits after tax were £3.35 million. One Dublin-based stockbroking analyst – who did not want to benamed – valued Antigen at £20m on the basis ofthese figures. The petition, from directors GeorgeFasenfeld and Padraig Marrinan, showed that thecompany had been profitable since its foundation in1946. Surpluses for the four years between 1996 and2000 totalled over £12 million. There were stronggrounds for believing that the company could returnrapidly to profitability once it attracted investmentfor further remedial works and was allowed thechance to restructure its debts. Antigen was more avictim of bad luck than anything else.

These days, fewer companies are coming beforethe courts seeking protection. One reason for this isthe fact that the regime is a good deal tougher, butpractitioners such as Catherine Duffy also believeit’s fairer.

Barry O’Halloran is a staff reporter with Business &Finance magazine.

G

• Criteria for appointment was changed to a ‘reasonable’ prospect of survival, notjust ‘some’ prospect

• The petition must include an independent report prepared by an accountant thatincludes a statement of the company’s affairs and an assessment of its survivalprospects

• Creditors have a right to be heard by the court before an examiner is appointed• Court protection has been reduced from three months to 70 days, which can be

extended by up to 30 days• The examiner must make his first report in 35 days or within a longer period if

the court allows• If the accountant’s report recommends that certain pre-petition debts be paid

during the protection period, the examiner is entitled to do this• The court can call for a special hearing to consider any evidence of irregularities

found by either the accountant or examiner. Creditors are entitled to attend andbe heard at this

• Shareholders/members are no longer required to approve a scheme ofarrangement, but if its provisions unfairly prejudice their rights, they may raisethis with the court

• No compromise or scheme of arrangement can contain provisions reducing oreliminating the payment of rent in respect of leased land or preventing thelessor from enforcing his rights

• No compromise or scheme of arrangement can contain provisions reducing oreliminating the payment of rent due under leasing or hiring agreements relatingto any other property

• Costs and liabilities certified by the examiner during the period of hisexamination no longer have priority over claims secured by a fixed charge.

EXAMINERSHIP REFORMS SUMMARY OF COMPANIES (AMENDMENT) (NO 2) ACT, 1999

Technology


18

The e-workplace has revolutionised theway we all do business and has greatlyfacilitated organisations in their ability tocommunicate and sell their services. Italso brings with it challenges in terms of

control, abuse and potential liability which need tobe addressed by all organisations. The main issuesarising from the electronic workplace are discussedin the panel opposite.

Communications policy for the workplaceMost organisations now have a comprehensivecommunications policy for the electronic workplace.The government has issued a code of practice for e-working in Ireland, which is the combined work ofthe government and social partners. It sets out theprinciples which apply to e-working, taking intoaccount professional considerations. The codecovers people working at home full time or parttime, telecommuters working part time at home andpart time in the office, and mobile workers (definedas people on the move) and sets out the very specialconsiderations which would apply to an e-mail orInternet policy for such a mobile workforce.

Sending messages by e-mail has been comparedto sending a post card: you do not have anyexpectation of privacy. Yet many people seem tomake the illogical assumption that they can send themost personal messages to an individual by e-mailon the basis that it could not be seen by anyone else.The spectacularly-publicised suspensions andsacking of people for making that fundamental errorare well known, with lawyers being no exception!

In order to ensure observation of an organisation’scommunications policy, a range of monitoringtechniques have been adopted by employers. Themonitoring rights of employers may conflict withindividual rights of privacy and this topic is thesubject of much current debate. In his 11th annualreport, the data protection commissioner referred tothe ‘surreptitious monitoring of personal e-mails byemployers’, which he considered difficult to justify.His role under the Data Protection Act, 1988 is toensure that organisations maintaining electronicrecords do not abuse the data they obtain.

Monitoring techniques used by organisationsinclude:• Closed circuit TV, private investigators, audio-

bugging and taping of phone calls• Location tracking, which involves checking

geographic movements through electronicmechanisms on trucks and ‘active badges’, which HIGH

HIGH

Information technology, e-mail and the Internet have become the lifeblood of

most workplaces. But, as Terence McCrann explains, employers must be vigilant

to ensure that these technologies don’t wind up doing more harm than good

MAI

N P

OIN

TS• Need for acommunicationspolicy in theelectronicworkplace

• Balancing the rights ofemployee andemployer

• ‘Cyber-smearing’ andthe risk ofdefamation

Technology


19

H RISKH TECH

■ IT investment. The massive investment in ITproducts by organisations is designed to improvethe delivery of the services and products theyprovide. Organisations must maximise theirinvestment to ensure that it is used to its fullpotential and is in no way damaged or wasted.Spending hours on the Internet for personal use maybe entertaining, but it is hardly a productive use ofcompany time

■ Systems damage. A virus is a piece of softwaredesigned to deliberately cause malicious damage.Corruption of the system through unauthorised use,such as opening potentially virus-infected messages,may result in losses and costs for the system

■ Confidentiality and ‘know-how’ protection. Acompany will want to ensure that its confidentialinformation processes, inventions, copyrights, tradesecrets and research and development are properlyprotected and that no employee in any way breachesany form of that confidentiality by copying it in anunauthorised fashion or sending it elsewhere inbreach of confidentiality principles

■ Quality standards. An organisation will have aninterest in ensuring that the service provided byemployees through electronic correspondence is ofsufficient quality to comply with company standardsand applicable regulations

■ Legal and contractual commitments. Employeescan enter into binding contractual commitments byordering materials or requesting servicespurportedly on behalf of the employer. This canoccur very easily and, sometimes, unintentionally

■ Defamation. An employer has an interest in ensuringthat it is not found liable as a result of publicationof a statement, either internal or external,purporting to be on its behalf which may bedefamatory and therefore damaging to a third party

■ Harassment. Employers should ensure a safe andharassment-free environment for employees andensure that they do not e-mail offensive orharassing material to fellow employees

■ Pornographic and other offensive material.Breaches of child pornography and obscenity lawsshould be prevented by prohibiting such use on thecompany system. There have been many cases ofsuspensions and terminations of employment overthis issue.

THE MAIN ISSUES IN THEELECTRONIC

WORKPLACE

Technology


21

monitor the movement of an individual around aparticular building

• Information and communications monitoring,including keyboard monitoring and e-mail andInternet monitoring. This type of monitoringincludes searching for keywords in e-mails for thepurposes of monitoring private use or malicioustraffic and searching in context as to whethermessages appear to be legitimate companybusiness.

Telephone monitoring has become common in theservices sector in order to comply with regulatoryrequirements such as prohibitions on insider dealing,and in call centres to monitor productivity andquality of service. Again, clear guidelines must bepublished in relation to the monitoring of telephonecalls, with clear rules in relation to personaltelephone use, the nature of it, the timing of it, thepaying for it and the sanctions for breaches of thepolicy.

Given the very powerful and intrusive nature ofmany monitoring activities, it is understandable thatindividuals regard the wholesale use of thesemeasures as being disproportionate, intrusive and abreach of privacy rights. The law therefore has toachieve a balance between, on the one hand, thelegitimate privacy rights of individuals and, on theother hand, the legitimate rights of employers tomonitor and survey the activities of its employees inthe electronic workplace for the reasons outlinedabove. However, people would be forgiven forthinking that Big Brother has arrived.

Defamation by employers and employees Great care has to be taken by employers in the waythey write about personnel matters and keeppersonnel files. They also have a duty to take careabout the way they record the details of disciplinaryhearings and any performance reviews or decisionsmade as a consequence of such disciplinary hearingswhich might in any way be defamatory.

‘Cyber-smearing’ has led to employers seeking tosue anonymous posters of libellous statements.There have been actions by employers againstInternet service providers, seeking court orders toidentify anonymous posters who defame theirorganisations and other third parties. Very oftenthese activities are carried out by disgruntled existingor former employees.

It is important that employers who couldultimately be sued over material put on the Internetor their own e-mail systems by their employees areaware of this risk and alert their employees to thedanger that their messages could give rise to legalaction.

And because there is a huge degree of informalityin the nature of e-mail communication and awidespread use of bulletin boards and chat rooms,employers must ensure that employees do not sendmessages during the course of their employmentwhich would in any way be deemed to be within theostensible authority of the employer and, therefore, apotential liability.

Problems also arise for an employer where itscopyright in certain works may be infringed eitherdeliberately or negligently by an employee, or whenthe employee infringes someone else’s copyright forwhich the employer may be held vicariously liable.Employers clearly need to educate employees whowill be using the Internet as to the works in whichcopyright, database rights or moral rights subsist.They should be clearly informed of the potentiallosses that an organisation may suffer due to aninfringement of any of these rights.

The coming of the railways and motorways causedthe law to take account of the legal consequences ofsuch revolutionary changes. The informationsuperhighway is the current revolution, and newlegal ground has been broken. Interesting times lieahead.

Terence McCrann is a member of the Law Society’sEmployment and Equality Committee.

G

Certificate in legal German Zertifikat Deutsch für Juristen

The Law Society wishes to announce that its course in legal

German/Deutsch für Juristen in co-operation with the

Goethe-Institut Dublin will re-commence in October

2001. Those wishing to be in a position to conduct busi-

ness ably and proficiently with German-speaking lawyers

and businesspeople may register in September 2001 for this valuable

course. The course has been running since 1999, during which time

solicitors, barristers, apprentices and a variety of others involved

with the legal profession have taken the opportunity to simultane-

ously broaden their knowledge of the German legal system and

improve their spoken skills in German. Previous participants can

confirm the value of the course, both in terms of linguistic skills

within the work environment and getting an insight into the work-

ings of the German legal system.

FURTHER INFORMATION MAY BE OBTAINED FROM THE LAW SOCIETY OF IRELAND OR THE GOETHE-INSTITUT,

62 FITZWILLIAM SQUARE, DUBLIN 2, TEL: 01 661 8506.

6Management


22

People are your ‘most valuable resource’, right? So how come attracting and retaining the right

staff is a major headache for every business in the country? And law firms are no exception.

Deiric McCann explains why people leave their jobs and offers sound advice on what you can do

to keep them from straying to pastures new

simple steps

Even as we complain about the difficulty ofattracting and retaining the sort of peopleessential to our organisation’s success,there are some employers who seem ableto do it easily. What’s the secret of these

‘employers of choice’? It’s not really a secret as such;they simply know what’s important to prospectiveand current employees and they work hard toensure that they provide it.

Before you can look at the whole area ofattracting and retaining people in a realisticmanner, you must first look at the dark side –at what drives people away. One Irish companyrecently completed a survey on why people changejobs. The results were fascinating. The followingwere the six main reasons cited by respondents:• Bored with the job• Inadequate salary and benefits• Limited opportunities for advancement• No recognition • Unhappy with management • Other reasons.

Before we reveal the relative importance of eachreason, give yourself a test. Consider which onesyou’d expect would get the highest percentage ofresponses. In other words, if you wanted to retainyour people, which factors would you address first?When you’ve thought about it, turn to the panel onpage 25 and see how you fared before you carry onreading the rest of this article. M

AIN

POIN

TS• The mainreasons thatpeople changeemployment

• Money versuscareerdevelopment

• How to becomean ‘employer of choice’

to keep your

staff happyWelcome back. Were you surprised? Most

employers are. The message is simple: if you want toattract and retain staff, these are the key items forconsideration.

If you follow these six steps, you could become anemployer of choice, too.

Look at your managersThe numbers don’t lie. People leave people,not jobs. Look at the results: 30% of peopledidn’t leave their jobs, they left theirmanagers. Poor managers can completely

cancel out the positive effects of your heavyinvestment in recruitment advertising, PR, killer

remuneration packages, outstanding share optionschemes and all of the other good things you do toattract and retain the right people. Your humanresource people sweat blood to bring in a sufficientnumber of these right people and, in 30% of cases,poor managers shred them and send them back outof the company before you’ve even recovered thecost of hiring them. Crazy.

So what do you do? First, start measuring yourstaff turnover by manager. Find out where the realproblems are. It will frighten but enlighten you.Unless you know which managers arehaemorrhaging people, you can’t do anything aboutit. To help these managers improve their game, youfirst have to identify them.

Second, review all of your managers in terms oftheir leadership and management skills – that way

Step 1

Management


23

you’ll find out what exactly is driving your peopleaway. Use 360-degree feedback to give eachmanager, his boss, those who report to him, and hisfellow managers an opportunity to provide feedbackon what they are doing well – and what they coulddo better. Then act upon what you discover. Providetraining, coaching and support to those managerswho struggle to manage their people in a way thatencourages productivity and retention. Goodmanagement is the key to good retention.

Create arecognition culture25% of all people leavingtheir jobs do so because theydon’t get sufficientrecognition for the

contribution they make. Fix this or learn to live withthe attrition. Give your managers responsibility forseeking out the many ways in which their peopleperform above and beyond the call of duty. Havethem consciously seek out opportunities for positiverecognition. Institute award schemes for exemplaryperformance and give everyone an opportunity tobask in the glow of positive recognition for a jobwell done. But be aware that a recognition culturecannot be created from nothing. It requires ahealthy working environment to thrive.

Create a healthy working environmentTo encourage development of a genuine recognition culture, you’ll need tocreate a healthy working environment. Not healthyin the sense of lots of fresh air and few toxicchemicals knocking around (although that’s always agood start), but a healthy psychological workingenvironment: one where providing recognition forexemplary performance seems normal.

There are a number of key elements in achievingthis. First, open up communications. There are toomany old-economy attitudes abroad in ourbusinesses. In the old economy, scarcity was thedriving force: information was power, and those thathad information hoarded it, and kept it scarce. Thatway, they amassed great power, privilege and wealth.Look around: the world has changed dramatically.Our modern economy is based on abundance: thosewho prosper are thosewho share informationwith everyone andanyone who can makeuse of it effectively.This is the informationage, and any

Step 3

Step 2

environment where the workforce is not tapped into all that’s going on in their organisations is toxic.Suspicion, mistrust and resentment grow … and keypeople go.

Let all of your people know where theorganisation is going, how it plans to get there, howtheir jobs play a part in the grand scheme of things,and why they are key to your success. Theircontribution is just as valuable as the chiefexecutive’s – and they know it. Let them know thatyou know it too. Spread information liberallythroughout your organisation; give your people an‘I’m-on-the-inside’ feeling. It’s hard to leave a placethat has you on the inside.

Next, develop an attitude of co-operation. Giveand take is the order of the day. Be prepared toconsider anything that makes it easier and morepractical to work for you than anyone else. Look atflexible hours, compassionate leave, sabbaticals,teleworking, crèche facilities: anything you canafford to do that shows that you are prepared tomeet your people half-way (or more) in balancingtheir work and personal-life commitments.

Finally, develop an atmosphere of trust. If youwant people to trust you (with their jobs, theircareers, their development), then you have to trustthem. Create an atmosphere where managersautomatically expect the best of their teams. They’llrespond. If you give people a good reputation to liveup to, they won’t let you down. This is one of thekey sources of recognition. No-one is more flattered than whenthey are trusted implicitly.

Create an atmosphereof continual self-improvement20% of people leave their jobsbecause they feel that they’re notgetting sufficient advancement. Not surprising,really. Our new flat-structured organisations don’thave the dizzying promotional heights that previousgenerations of workers could aspire to. So there’sreally nothing we can do about this point unless westill have an old-fashioned multi-layer hierarchicalorganisation, right?

No! That thinking is about as wrong as you canget. Modern job-seekers want the opportunity todevelop themselves to be all that they possibly canbe: to continually polish their skills, abilities andexperience so that their potential market valuecontinually rises. If they can do this without theuncertainty of job-hopping, then so much the better.You don’t necessarily have to have multiplepromotional opportunities to meet this demand.What you need is a clear on-going development

Step 4

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Management


25

path, a way that each and every one of your peoplecan advance their skills and value so that they becomeall that they can be. This means heavy investment intraining and development.

Create an atmosphere of continual self-development by giving everyone access to anytraining that will enhance their skills, their value andtheir self-esteem. Don’t be boxed in to limiting thetraining available to those skills specific to anindividual’s current job. Remember that you are notsimply training for job effectiveness, but also offeringyour people the development opportunities thatmake them feel good enough about the pace of theirpersonal advancement that they don’t feel the need toseek out greener grass elsewhere. Invest heavily intraining and development and then activelyencourage your people to take advantage of yourprogrammes. Provide them with the means forsuccess: train them on company time, give themstudy leave, have senior managers coach and supportthem. Engage them in their own on-going, longer-term development. Show them how they can get allof this development from within your organisation;focus their minds on genuine development goals thatextend far beyond the availability of the nextrecruitment supplement. This creates trulycompelling and self-serving reasons to stay.

If you implement these first four steps, well done!You’ve already eliminated 75% of the reasons thatpeople leave their jobs, and we haven’t evenmentioned money yet!

Put your bestfoot forwardWhat about the 15% wholeave for more money?Will more recognition,better management and opportunities for continualself-development retain them? In many cases, yes (atleast for a time). Sadly, however, you still have to paythe market rate or better to stay in the game. Butwhen and how you pay this level is key.

If you’re reading this article, chances are thatyou’re sitting down. Good. Because the next

Step 5

suggestion can topple some old-style thinkers. When itcomes to remuneration, put your best foot forwardimmediately. Pay your people as much salary, givethem as many benefits as you can afford – and do itfrom day one.

Abandon the ‘what can I get her for?’ thinking infavour of ‘how much is this position worth to me, andwhat can I afford to pay?’ Then pay it.

Think about it sensibly. If you pare back thepackage at offer time by the 10% or 15% you can getaway with, will this 10% or 15% be enough to retainthese people in the face of an offer from anotheremployer? Probably not, and it will be too little, toolate. So put your best foot forward, and let your peopleknow. Let everyone know that you are payingabsolutely as much as you can and that, to continue todo so, everyone will have to pull together as a team togenerate the productivity necessary for theorganisation’s success. We all respond to fairtreatment.

Now, don’t misunderstand the advice: pay as muchas you can, not more than you can. Pay more than youcan afford and you’ll just becomeemployer road-kill. Know what eachjob is worth, and pay it early.

Match people to jobsFollowing 360,000 people throughtheir careers over a 20-year period, amajor study by the Harvard BusinessReview demonstrated that a key ingredient in retainingpeople is ensuring that they are matched to their jobsin terms of their abilities, interests and personalities.The study found that staff turnover fell dramaticallyand productivity soared when you put people in jobswhere the demands matched their own abilities, wherethe stimulation offered by the job matched theirparticular interests, and where the demands of theposition matched their personalities.

Use psychometric tools to determine therequirements of each of your positions in terms ofabilities, interests and personality, and then use thisinformation to match your jobs to people who willexcel in them. Gut feeling cannot do this assessmentfor you. It needs to be undertaken using properly-validated tools designed for this purpose. Once youknow what each job requires, then you can moreeffectively match people to their jobs, providing anytraining, support or coaching necessary for them to besuccessful. Put the right person in the right job andyou eliminate a large amount of the 5% that leavesimply because they ‘are bored with the job’.

Sadly, there is no quick, easy and inexpensive ‘silverbullet’ that will help you to win the war for qualitypeople. But apply these six sensible steps and youeliminate over 95% of the reasons people defect. Thatwill put you well on track to be one of that enviedclass: the employer of choice.

Deiric McCann is managing director of Profiles Ireland,which provides businesses with self-assessment tools to helpthem recruit and retain star performers.

G

Step 6

The study found that of the job-leavers surveyed:• 30% were unhappy with management • 25% felt that they got no recognition for good work • 20% complained of limited opportunities for advancement• 15% cited inadequate salary and benefits (low, isn’t it?)• 5% were bored with the job, and• 5% cited other reasons (retirement, career change, sabbatical, travel).

So, if you want to attract and retain the people essential to your success, theseare the key factors you have to consider. The priorities are abundantly clear.Money, for example, is important, but not nearly as important as most employersseem to believe.

Return to where you were in the article to see what you can do to makepractical use of this insight.

HOW DID YOU DO?

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Books


27

Book reviewThe old Munster circuit: a book ofmemoirs and traditionsMaurice Healy. Wildy & Sons Ltd (2001), Lincoln’s Inn Archway, Carey Street, London WC2A 2JD,England. ISBN: 0-85490-098-5. Price: stg£19.95.

Death will most certainlyenvelop us all in her

clasping grasp; it may be a smallconsolation for some of us thatthere may be some memorialafterwards in print, albeit ahumble piece, ever so brieflyrecording our passage in this lifeand our passing to the next one.It would indeed be fortunatewere we to have an obituarist ofthe calibre of Charles Lysaght,who has written a biographicalintroduction for the latestedition of Maurice Healy’scelebrated tome. Lysaght won agold medal for oratory as amember of the Literary andHistorical Society at UniversityCollege Dublin, where he readhistory and economics and thenstudied law at Cambridge

University, where he waspresident of the union. Thenorth Tipperary man went onto become Winston Churchill’sclose friend and wartimeminister of information, andthe author of the celebratedbiography of Brendan Bracken.His addition to The old Munstercircuit does not disappoint.

The book’s author, MauriceHealy, was the son of asolicitor and a member ofparliament. He was also anephew of Tim Healy, king’scounsel of England and Irelandand the first governor-generalof the Irish Free State. MauriceHealy studied history andeconomics at UniversityCollege Dublin and was calledto the bar in 1910. Having

served with the army duringthe First World War, he wasawarded the military cross andretired in 1919 with the rank ofcaptain. He became a king’scounsel in 1931, recorder ofCoventry in 1941 and died in1943.

The old Munster circuit wasfirst published in 1939. Thebook is composed of storiesmainly about the old days inCork when Healy used totravel the Munster circuit. TheSpectator noted on itspublication that the book was‘entirely delightful to read’. Infact, The Spectator enthused:‘No book dealing with anyphase of Irish life that has beenpublished in recent yearscontains so many entertaining

anecdotes and sketches’.The old Munster circuit is

recognised as one of the crownjewels in Irish legal literature,appreciated by lawyers andnon-lawyers alike – in fact, byanyone interested in a goodstory. Healy’s accounts areriveting and fulfilling andsplendidly readable. In aninimitable style, he looks at lifeand the law with a critical yettotally affectionate eye and, inthe process, the reader benefitsfrom fascinating insights intolawyers – solicitors, barristers,judges – and, most importantof all, the nature of the humanpsyche.

Dr Eamonn Hall is company solicitor of Eircom plc.

G

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Gadgets


28

Tech trendsBy Maria Behan

The ‘XP’ in Microsoft’s newsuite of office programs,

Office XP, is meant tostand for experience –pretty cheeky, sinceusers’ experience withthe company’s softwareoften involvesobscurely ominouserror messages,cruelly-timed crashes andcheerily impenetrable ‘help’menus. But judging by its latestoffering, the company that builtits empire through markethegemony has finally opened itseyes to the experience of themillions using its products.Indeed, the word-processing,spreadsheet, calendar and otherprograms that make up theOffice XP package boast severalnifty capabilities. A featurecalled Smart Tags offers usefuloptions at crucial intervals: forinstance, when you’re using theword-processor and type in aname, a Smart Tag pops upasking if you want to add it toyour contact list. And if it’salready in your contact list, youcan add the name and addresswith just a mouse click. Otherfeatures make it easy to takeadvantage of the web and toaccess several e-mail accountsfrom Microsoft’s Outlook e-mail portal. And Office XP’snew document-recovery facility

The venerable Murdoch’sdictionary of Irish law has

moved into the computer age.Renamed Murdoch’s Irish legalcompanion, all the material fromthe book you know and love,plus the full text of statutoryinstruments, acts and bills, arenow available either on CD-ROM or via the Internet. Onebig advantage over the boundbook is that once you’ve foundthe definition you’re lookingfor, you can link to relatedterms, websites or pertinentstatutory material. You can also

The latest Palm is an arcticmist (that’s silver to you

and me) beauty that manages tocombine increased processingpower and a high-contrastcolour LCD screen withimproved battery life (thecompany claims that it can runfor four straight weeks of 40-

The Hewlett PackardLaserJet 4100 contributes

to the paper glut in style. It usesa 250 MHz RISC processor(many PCs would be jealous) to

Dusty tome goes digital

Cross your Palm with silver?minute-a-day use). It includes aUSB port for easy connectionto digital cameras, MP3 playersand the other gadgets in yourarsenal. And if you hook into amodem or data-enabled mobilephone, you can access the weband check e-mail. Otherenhancements include

increased security features, theability to set silent and vibratingalarms, and software that letsyou edit Excel spreadsheets andWord documents, read e-books,view photos and video clips andbrowse web content off-line.Available for about £500 fromelectronics outlets.

means that you won’t lose yourwork if the power cuts out or

your PC crashes.Microsoft may still bedoing its utmost to lureusers into its clutchesand keep them there, butat least it’s using morecarrot and less stick.Available at computer

outlets; pricing varies based on thepackage selected and whether it’s anew or upgraded installation. Forexample, Office XP Standard costsabout £250 for an upgrade or £535for new users, while the ProfessionalSpecial Edition, which offersadditional collaboration tools andwebsite creation, costs roughly £400.

Fit to printAn evil empire no more?

cut-and-paste informationdirectly into your word-processor or personalise andannotate sections for later use,which might come in handyfor research or training. Prices

start at £80 for a student editionto £450 for a large enterpriseedition, available from LendacData Systems, 01 677 6133.Visit http://milc.lendac.ie for apreview.

Gadgets


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Sites to see

Want to turn the mounds ofpaper littering your office

into a storehouse of knowledge?According to the folks atZyLAB, their ZyIMAGEimaging system will do just that.You can scan paper documentsinto the system, or, if they’realready stored in electronicformat via programs such as

Juniper (www.iccjuniper.ie). An on-line company report servicefrom Intercompany Comparisons, this fee-based site is themotherlode of information and analysis on all limitedcompanies registered in the Republic, Northern Ireland andthe UK. Boasting ISO 9002 quality accreditation for both itsanalysis and data capture, the site offers much that might be

ExZYting news?Word, WordPerfect, Excel orPowerPoint, you can just dragand drop the files onto thesoftware’s indexbuilder to digitallystore yourdocuments in a way that’ssearchable (by name or textkeywords) and easy to organise– and re-organise. It also

features snazzy capabilities thatlet you make informationaccessible on the Internet for

clients ortravelling staffmembers and

something called ZyALERT,which allows you to definesearch criteria and have hitsfrom paper and electronic data

automatically routed your way.Pricing varies based onconfiguration, but a systemincluding scanner, software,installation, training andmaintenance starts at £6,000.Available by contacting the soleIrish distributor, Digiscan, on 01834 1220 or [email protected].

of interest to solicitors and their clients, including the low-down on company directors and shareholders, cash flow,profitability and risk assessment. A tracking feature can evenalert you to news on companies that you specify as being ofparticular interest.

Dublin Corporation Traffic (www.dublincorp.ie/traffic).Wondering if it’s safe to start out for home? Check out this site,which lets you click on city maps to access footage fromstrategically-placed traffic cameras, so you’ll know if the coast isclear or whether you should plan on working late.

VHI Health-e (http://www.vhihealthe.com). The focus of thishealth insurers’ site is on education, from a Health A-Zcovering common concerns to sections laden with tips onfitness, nutrition and travel health. It also features an ‘Ask theexperts’ section.

Ally McBeal (www.allymcbeal.com). The site for real lawyershooked on the doings of their hopelessly slim and neuroticcounterparts across the pond. It offers discussion groups on theTV show, star interviews and episode previews complete withvideo clips and cartoons. There’s even an ‘e-mail a voodoo doll’service, complete with a cunning figure that screams when youstick pins in it.

Stockwatch


30

Short-term resulIn this month’s Stockwatch, Jack O’Keeffe describes some alternativeinvestment strategies which experienced investors may find of interest

Jack O’Keeffe: Alternative investment strategies are not for the faint-hearted

In my previous articles, Iexplained how an ordinary

investor with limitedknowledge of the stock marketis generally best served byselecting companies carefullyon the basis of theirfundamentals and holdingthem for the long term.However, if you count yourselfamong the more experiencedinvestors, you may want toconsider other financialinstruments which canmaximise the returns on yourportfolio.

Some of these are outlinedbelow. But first, a word ofwarning. The strategiesoutlined this month are onlyappropriate for knowledgeableinvestors who are willing toaccept a high degree of risk –including the possibility oflosing some or all of theirinvestment – in return for thepossibility of substantial gains.

Trading stocksUnlike the traditional approachto building a portfolio, whichinvolves careful selection ofcompanies and holding theshares for the long term,aggressive trading strategiesinvolve taking a short-term viewon equities in response tospecific events or generalmarket trends. Essentially, youaccept that share prices aregoing to fluctuate and youbuild a position to reflect thisview.

For example: Company A isdue to announce its interim or

annual results which youbelieve (because you’veresearched the stock orbecause of economic or markettrends) will disappointanalysts’ expectations. Youdecide to ‘short’ the stock (thatis, sell more than you actuallyown) in the hope of buying itback at a cheaper price andmaking a profit on thedifference. Alternatively, youmay think Company A’s resultswill surpass analysts’expectations and you go ‘long’on the stock (that is, purchasemore than you can pay for) inthe hope of selling it at aprofit if the price subsequentlyrises.

Trading indicesInvesting in the mainstreamindices such as Standard &Poor’s (S&P) 500, the FTSE100 or the Dow JonesIndustrial Average is generallyregarded as a fairly safeinvestment strategy. The samedoes not hold true, however,for some of the specialistindices, such as the technologyindices. These are far riskierinvestment choices, althoughthey do hold the prospect ofsubstantial returns. Let’ssuppose the US FederalReserve’s Open MarketCommittee (FOMC) is due tomeet and you believe the Fedwill cut interest rates. Youmight decide to take a longposition in one of thetechnology indices such as theXLK Technology Select

SPDR Fund or the Nasdaq100 Index Tracking Stock inthe hope of a market rally.

Delayed settlementIf you have an establishedrelationship with a stockbroker,you may be able to incorporatea delayed settlement facilityinto your trading strategy. Thiswould allow you to settletrades on a delayed paymentbasis that could be anything up

Stockwatch


31

lts – long-term gains?to 30 days after the trade wasexecuted. You may have to paya small premium on top of theshare price for this facility,depending on the volumes andthe equity in question. Ineffect, you receive an interest-free loan for the period.Usually, you can close out theposition before settling thetrade if the trade is showing aprofit.

Margin tradingSome foreign brokers allowclients to trade on funds whichthe clients effectively borrow

from the broker. The brokercharges interest on the fundswhile the client uses leverageto try to increase his return.Before the broker will extendfunds for margin trading, hewill require collateral, usuallyin the form of share holdings,which must be maintained atan agreed ratio to theborrowings. If the marketfalls and the value of theequities held as collateraldrops below the minimumratio required, the brokermay liquidate the positionand cut the losses.

Alternatively, the client mayprovide additional collateral orfunds to hold his position inthe hope of a recovery.

Options and futuresExperienced financial investorsoften use options and futuresto protect their investments ina volatile market. Say you holdan equity position with ahigher level of risk than youwould normally accept. Youmight try and reduce this risk– or hedge your position –with the use of options andfutures. Futures contracts tryto ‘bet’ on what the value of astock, index or commodity willbe at some future date.Options and futures arecomplex financial contractsthat involve the sale orpurchase of financialinstruments for futuredelivery. Essentially, the selleroffers the buyer the right tobuy (also known as ‘call’) orsell (known as ‘put’) a securityat an agreed price during acertain period of time or on aspecific date. Where you makemoney is in correctly guessingwhen to call or put.

Contracts for differencesThis is another complex, high-risk strategy that allows you totrade on margin. Contracts fordifferences are similar tonormal share dealing but adeposit is used as collateral topurchase the share rather thanpaying the full value. Thisdeposit is normally 10% to25% of the contract value,depending on the share inquestion and the time-zonedifference. Without getting

into technicalities, contractsfor differences offer apotential reward far greaterthan would be possible bymeans of margin tradingalone, but the risk is alsosignificantly increased.

WarrantsWarrants are similar to calloptions, but are consideredlong-term instruments withexpiry dates typically years inthe future – unlike calloptions, where the life span isgenerally measured in months.A warrant gives the holder theright to purchase securitiesfrom the issuer of the warrantat a specific price. A recentexample where warrants wereoffered was the Eircom plcsale.

Spread bettingSpread betting is a highrisk/high reward method ofbetting on the future price ofa share. It is possible to placea limit on your losses, but it’simportant to bear in mind thata volatile market can result inunpredictable and fast-changing returns.

Well, those are some of thepossibilities for maximisingyour returns. As I mentionedat the outset, these are highlycomplex strategies that requiredetailed professional advice asto the risks involved. They arenot for the novice investor.That said, they do offer thepossibility for substantialreward.

Jack O’Keeffe is a director ofinvestment services at DavyStockbrokers in Dublin.

G

9.30–10.15am Acquiring a new business or company –Donall Gannon, KPMGPre-acquisition tax planning• Why acquisitions fail: before and

after the event• The expectation gap between buyer

and seller• Common problems and mistakes• The adviser’s role: help or hindrance?

10.15–10.45am Financing an acquisition – Tim Scanlon,Matheson Ormsby Prentice• Method of finance: cash, debt, equity,

deferred consideration• Tax implications of method of finance• Tax reliefs available

10.45–11.15am Tea/coffee break

11.15–11.45am Tax due diligence – John Gilmore-Gavin,BDO Simpson Xavier• Tax checklist and pre-investigation

planning• Completion of tax due diligence report• Tax warranties• Deed of indemnities and share purchase

agreement: taxation issues• Revenue clearance procedures

11.45–12.15pm Legal due diligence – Sean Nolan, KennyStephenson Chapman• Project management and the role of legal

and other advisers• Information request list and data room• Completion of legal due diligence report• Interaction of due diligence with

warranties• Vendors’ perspective

12.15pm Question time12.30–2pm Lunch in Davenport Hotel

2–2.50pm Company/group reorganisations andreconstructions, including partition of afamily company – Terry O’Driscoll,PricewaterhouseCoopers• Taxes arising and reliefs available • Partitions versus reconstructions • Distribution concerns under section 130,• TCA 1997• Advance rulings from Revenue• Company law and legal issues to be

considered

2.50–3.40pm Tax and legal issues when preparing a pri-vate company for sale or investment –Greg Hollingsworth, William Fry TaxAdvisersPre-sale tax planning for shareholders• Tax warranty, indemnity and disclosure

issues for vendors • Equity investments into a company:

tax considerations• Company law issues• Legal form of investment

3.40– 4.10pm Tea/coffee break

4.10– 5pm Employee considerations when acquiring,selling or reorganising a company – MauraRoe, William Fry, Solicitors • Employees’ rights under transfer of

undertaking regulations• Termination of employment• Employee share schemes

The Institute of Taxation in Ireland in association with the Law Society of Ireland

CHANGE OF BUSINESS OWNERSHIP:TAX PLANNING AND LEGAL IMPLICATIONS

BOOKING FORM

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One-day conference – Alexander Hotel, Dublin, Tuesday 25 September 2001

PROGRAMME OUTLINE

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LEGISLATION UPDATE: 12 MAY – 15 JUNE 2001ACTS PASSEDACC Bank Act, 2001Number: 12/2001Contents note: Increases the autho-rised share capital of ACC Bank plc;makes the necessary legislative provi-sions to facilitate the future sale of ACCBank plc by providing for the disposalby the minister for finance of shares inthe bank and the establishment of anemployee share ownership trust.Repeals the ACC Bank Acts, 1978 to1999 and other acts and SIs to theextent provided as per the schedule tothe actDate enacted: 29/5/2001Commencement date: Commence-ment order/s to be made (per s13(2) ofthe act)

Health (Miscellaneous Provisions)Act, 2001Number: 14/2001Contents note: Amends the Health Act,1970 to make further provision in rela-tion to the supply of and payment fordrugs and medicines and medical andsurgical appliances in accordance witharrangements made by health boards;amends the Tobacco (Health Promotionand Protection) Act, 1988 in relation toraising the age limit of those to whomtobacco products may be sold from 16to 18 years, and raising the maximumfines from £500 to £1,500; amendsthe Health (Nursing Homes) Act, 1990in relation to subvention payments andconvalescent homesDate enacted: 5/6/2001Commencement date: Commence-ment order/s to be made (per s5(4) ofthe act)

Industrial Relations (Amendment)Act, 2001Number: 11/2001Contents note: Gives new dispute-settling powers to the Labour Court incases where an employer has failed tofollow agreed voluntary procedures,where negotiating procedures are not inplace and collective bargaining is nottaking place, and where there has beenno recourse to industrial action by thetrade union or employees. Amends andextends the Industrial Relations Acts,1946 to 1990, and provides for relatedmattersDate enacted: 29/5/200Commencement date: 31/5/2001(per SI 232/2001)

Irish Nationality and Citizenship Act,2001Number: 15/2001Contents note: Amends the IrishNationality and Citizenship Acts, 1956to 1994 consequent on the coming intoeffect on 2/12/1999 of the new arti-cles 2 and 3 of the constitution pur-suant to the British-Irish agreementdone at Belfast on 10/4/1998Date enacted: 5/6/2001

Commencement date: Section 2(a)(iii)and (d) and section 3 shall be deemedto have come into operation on2/12/1999, being the day of the mak-ing of the declaration by the govern-ment under article 29.7.3 of the con-stitution (per s9(3) of the act).Commencement order/s to be madefor all other sections of the act (pers9(4) of the act)

Valuation Act, 2001Number: 13/2001Contents note: Revises the law relatingto the valuation of properties for thepurposes of the making of rates in rela-tion to them; makes provision in rela-tion to the categories of properties inrespect of which rates may not bemade, and provides for related mattersDate enacted: 4/6/2001Commencement date: Commence-ment order to be made (per s2 of theact)

SELECTED STATUTORY INSTRUMENTSAliens (Visa) (No 2) Order 2000Number: SI 248/2001Contents note: Specifies the classes ofpersons who are required to have atransit visa and the classes of personsexempt from Irish visa requirements.Revokes the Aliens (Visas) Order 2001(SI 36/2001)Commencement date: 8/6/2001

European Communities (Protection ofConsumers in respect of Contractsmade by means of DistanceCommunication) Regulations 2001Number: SI 207/2001Contents note: Implement directive97/7/EC on the protection of con-sumers in respect of distance con-tracts. Apply to contracts for goods orservices (other than financial services)to be supplied to a consumer where thecontract is made exclusively by meansof distance communication, that is,without the simultaneous physical pres-ence of the supplier and the consumer.Deal with the information which a con-sumer must be given before enteringinto a contract, subsequent written con-firmation of that information, and acooling-off period within which the con-sumer may cancel the contractCommencement date: 15/5/2001

Finance Act, 2001 (Commencementof Section 169) Order 2001 Number: SI 212/2001Contents note: Appoints 1/7/2001 asthe commencement date for section169 of the Finance Act, 2001 (meas-urement criteria for classifying vehiclecategories to determine the rate of vehi-cle registration tax)

Industrial Relations (Amendment)Act, 2001 (Commencement) Order2001

Number: SI 232/2001 Contents note: Appoints 31/5/2001as the commencement date for theIndustrial Relations (Amendment) Act,2001

Safety, Health and Welfare at Work (Confined Spaces) Regulations2001 Number: SI 218/2001Contents note: Impose requirementsand prohibitions with respect to thesafety and health of persons carryingout work in confined spaces as definedin regulation 2(1). Apply to all workactivities involving confined spaces,with the exception of activities belowground at a mine and diving operationsCommencement date: 31/8/2001

Safety, Health and Welfare at Work(General Application) (Amendment)Regulations 2001 Number: SI 188/2001Contents note: Amend the Safety,Health and Welfare at Work (GeneralApplication) Regulations 1993 (SI 44/1993) to give effect to directive 95/63/EC amending directive 89/655/EEC concerning the minimum safetyand health requirement for the use ofwork equipment by workers at workCommencement date: 2/5/2001

Safety, Health and Welfare at WorkAct, 1989 (Repeal of Section 38 ofthe Factories Act, 1955)(Commencement) Order 2001 Number: SI 219/2001 Contents note: Appoints 31/8/2001as the commencement date for section4(3) of the Safety, Health and Welfareat Work Act, 1989 in so far as it appliesto the repeal of section 38 of theFactories Act, 1955, as amended bysection 21 of the Safety in Industry Act,1980. These provisions are replaced bythe Safety, Health and Welfare at Work(Confined Spaces) Regulations 2001

FOOT AND MOUTH DISEASE REGULATIONSThe following regulations are in addi-tion to the lists published inLegislation update in the May andJune issues of the Gazette:

Diseases of Animals Act, 1966 (Footand Mouth Disease) (Export andImport of Horses) (Amendment) Order2001 Number: SI 197/2001

Diseases of Animals Act, 1966 (Footand Mouth Disease) (ImportRestrictions) (No 3) (Amendment)Order 2001 Number: SI 179/2001

Diseases of Animals Act, 1966 (Footand Mouth Disease) (Regulation ofSheep Shearing) Order 2001Number: SI 228/2001

Diseases of Animals Act, 1966 (Footand Mouth Disease) (Removal ofCertain Import Restrictions) Order2001 Number: SI 239/2001

Diseases of Animals Act, 1966 (Footand Mouth Disease) (Restriction onImports from the Netherlands)(Amendment) Order 2001 Number: SI 233/2001

Diseases of Animals Act, 1966 (Footand Mouth Disease) (Restriction onImports from the United Kingdom)Order 2001 Number: SI 178/2001

Diseases of Animals Act, 1966 (Footand Mouth Disease) (Restriction onImports from the United Kingdom)(No 2) Order 2001 Number: SI 201/2001

Diseases of Animals Act, 1966(Foot and Mouth Disease)(Restriction on Movement of Horses)Order 2001 Number: SI 199/2001

Diseases of Animals Act, 1966 (Footand Mouth Disease) (Restriction onMovement of Horses) (Amendment)Order 2001 Number: SI 216/2001

Diseases of Animals Act, 1966 (Footand Mouth Disease) (Restriction onMovement of Persons) (Amendment)Order 2001 Number: SI 237/2001

Diseases of Animals Act, 1966 (Footand Mouth Disease) (TemporaryRestriction on Sheep Shearing) Order2001 Number: SI 196/2001

Diseases of Animals Act, 1966 (Footand Mouth Disease) (TemporaryRestriction on Sheep Shearing)(Amendment) Order 2001 Number: SI 217/2001

Diseases of Animals (Protection ofAnimals during Transport)(Amendment) Order 2001 Number: SI 215/2001

Foot and Mouth Disease (Prohibitionon the use of Swill) (Amendment)Order 2001 Number: SI 227/2001

Foot and Mouth (Restriction onMovement) (No 5) Order 2001 Number: SI 198/2001

Foot and Mouth (Restriction onMovement) (No 6) Order 2001 Number: SI 195/2001

Prepared by the Law Society Library

THE ADELAIDE HOSPITAL SOCIETYHas used Bequests since 1839 to provide• the highest quality of patient care• nursing development• medical research• new and enhanced hospital services

Continues to do this in our new Hospital at Tallaght since 1998

We invite you to consider the Society for Charitable Bequests and legacies as the future quality of patient care is at stake

WE’VE MADE HISTORY IN HEALTHCARE NOW, HELP US BUILD THE FUTURE

THE ADELAIDE HOSPITAL SOCIETY is a voluntary charitable organisation and is incorporatedas a Limited Liability Company No: 224404 and Chy No: 11153 with registered offices at

The Adelaide Hospital SocietyThe Adelaide and Meath Hospital,Tallaght, Dublin 24Tel: (01) 414 2071/414 2072

We invite you to request our Annual Report, Form of Bequest or other details.

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Briefing


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Personal injury judgments

CASE Desmond Ryan v Michael Connolly and Anne Marie Connolly, Supreme Court (Keane CJ, Murphy and McGuinness JJ), judgment ofMr Justice Ronan Keane delivered on 31 January 2001.

Statute of Limitations – negligence – personal injuries arising from a motorcycle accident – letters from insurancecompany headed ‘without prejudice’ – delay in issuing proceedings – whether claim was statute-barred – whetherissue of possible settlement negotiations in ‘without prejudice’ correspondence induced the plaintiff to refrainfrom issuing a plenary summons – status of ‘without prejudice’ letters – whether it would be inequitable to allowthe insurance company to raise the Statute of Limitations in the circumstances

THE FACTS

THE HIGH COURT

Desmond Ryan was ridingon his motorcycle and was

involved in a collision with a caron 26 April 1995. The car wasthe property of MichaelConnolly; the accident hap-pened at Furbo Bridge in CoGalway. Mr Ryan sustainedinjuries in the collision and hismotorcycle was damaged.

On 23 May 1995, Mr Ryan’ssolicitors wrote to theConnollys claiming that theaccident was as a result of thecar being driven from a sideroad and that he was seekingdamages. Mr Ryan’s solicitorsasked that the letter be passedto the relevant insurance com-pany.

Hibernian Insurance, whichinsured the car, wrote on 11 July1995 to Mr Ryan’s solicitors in aletter headed ‘without preju-dice’. The remaining lettersfrom the insurance company toMr Ryan’s solicitors were, withone exception, all headed ‘with-out prejudice’. In the letter of 11July 1995, the insurance comp-any raised a number of querieswith the solicitor. The letterended: ‘On receipt of your replyand when our own investigationhas been concluded, we shalladvise you immediately as to ourdecision on liability. The above

requests are made without preju-dice to liability on our insured’spart’.

Mr Ryan’s solicitors repliedon 1 September 1995, giving theinformation requested. Arrange-ments were also made for a med-ical examination of Mr Ryan byHibernian Insurance’s doctor.

On 9 July 1996, the insurancecompany for the Connollyswrote to Mr Ryan’s solicitors:‘With regard to the above mat-ter, we refer to previous corre-spondence and confirm that wehave obtained a medical reporton your client. We have con-cluded the damage claim directwith your client’s insurers,Norwich Union. Please advise ifyou are in a position to discusssettlement at this time. We awaithearing from you’.

Mr Ryan’s solicitors repliedon 24 July 1996 stating that theywere awaiting an appointmentfor an up-to-date medical reportand, as soon as the report cameto hand, they would com-municate with the insurancecompany.

On 13 March 1997, the insur-ance company wrote to MrRyan’s solicitors: ‘With regard tothe above matter, we refer toprevious correspondence. Pleaseadvise if you are interested in

discussing the case with us atthis time. We look forward tohearing from you’.

No reply was apparentlyreceived to that letter and theinsurance company wrote againon 30 October 1997 askingwhether Mr Ryan’s solicitorswould be in a position to meetfor settlement discussions at theOctober Galway High Court or,alternatively, the February 1998Galway High Court sittings.There was further correspon-dence between the parties,including a letter of 27 January1998 when the insurance com-pany asked: ‘Could you pleaseadvise if you are in a position tomeet for discussions at theforthcoming Galway HighCourt?’

It appears that that letter wasnot replied to and the insurancecompany wrote again on 2 July1998: ‘Could you please advise ifyou are in a position to meet forwithout prejudice talks at theforthcoming Galway HighCourt sessions. We have tried tophone your office on a numberof times in relation to this mat-ter but have been unable to getthrough’.

In fact, the three-year periodof limitation within which pro-ceedings had to be issued under

the Statute of Limitations Act,1957 had expired on 25 April1998.

Subsequently, Mr Ryan’ssolicitors wrote to the insurancecompany and asked them tonominate a solicitor to acceptservice of proceedings.Proceedings were then institut-ed by way of a plenary summonsoutside the limitation period. Astatement of claim was deliveredon 11 June 1999 and a defencewas delivered on 14 July 1999.The insurance company pleadedthat the action was statute-barred by virtue of the provi-sions of section 11(2)(b) of theStatute of Limitations Act, 1957.Mr Ryan’s legal team arguedthat, from the time of notifica-tion of the motor accident of 26April 1995 up to the commence-ment of proceedings, the insur-ance company caused andinduced Mr Ryan to refrainfrom issuing proceedings withinthe period prescribed by statute.Mr Ryan’s lawyers argued thatby virtue of its conduct, theinsurance company was estop-ped from relying on the provi-sions of the Statute of LimitationsAct, 1957. Accordingly, a pre-liminary issue arose as towhether or not Mr Ryan’s claimwas statute-barred.

The issue came before Kelly Jin the High Court. He con-

sidered that the essential matter

which had to be determinedwas not whether the action wasstatute-barred (because it clear-

ly was) but whether the insur-ance company was precludedfrom insisting on their legal

rights by virtue of the circum-stances which arose in the case.

In an affidavit before the

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36

High Court, the solicitor for MrRyan stated that the correspon-dence from the insurance com-pany indicated to him that MrRyan’s material damage claimhad been concluded with hisinsurers directly and that theinsurance company for theConnollys was anxious toengage in settlement discus-sions. He said that he had at alltimes considered this case to beone that would be settled withthe insurance company once hewas in a position to meet them

and that, in those circum-stances, he refrained from issu-ing proceedings within the timeprescribed by the Statute ofLimitations.

The solicitor submitted thata climate had been created bythe insurance company for theConnollys in which settlementof the case was anticipatedwhen all the parties were readyto meet.

In the High Court, the issuearose that, given all of the let-ters which came from the insur-

ance company were headed‘without prejudice’, this corre-spondence was privileged andcould not be taken into accountby the court. The second mat-ter was whether circumstanceswere such as to preclude theConnollys and the insurancecompany from maintaining theplea under the statute.

Kelly J stated that it seemedclear that Mr Ryan’s legal advis-ers did in fact infer as a result ofthe correspondence that theStatute of Limitations would not

be raised against his client. Thenet issue which he consideredhe had to decide was whether itwas reasonable to draw thatinference. If it was, then itwould follow that the attempton the part of the insurancecompany to raise the Statute of Limitations would beinequitable.

The High court held infavour of Mr Ryan; theConnollys and the insurancecompany appealed to theSupreme Court.

The issues were argued beforethe Supreme Court and the

court (Keane CJ, Murphy andMcGuinness JJ) delivered judg-ment on 31 January 2001. KeaneCJ stated that the case raisedagain an issue which had con-cerned the courts on a numberof occasions, that is, the circum-stances in which a defendantshould not be permitted to relyon a defence under the Statute of

THE SUPREME COURTLimitations which would other-wise be available to him.

He outlined the facts andreferred to the issue of the ‘with-out prejudice’ letters. He referredto the law as stated in Halsbury’sLaws of England (fourth edition,volume 17, para 2.12): ‘Letterswritten and oral communicationsmade during a dispute betweenthe parties, which are written ormade for the purpose of settling

the dispute and which areexpressed or otherwise proved tohave been made “without preju-dice”, cannot generally beadmitted in evidence’.

Keane CJ stated that it wasclear that this rule had evolvedbecause it was in the publicinterest that parties should beencouraged, so far as possible, tosettle their disputes withoutresort to litigation. If parties

were in the position that any-thing they said or wrote in thecourse of negotiations, evenwhen expressly stated to be‘without prejudice’, could subse-quently be used against them,they would undoubtedly be seri-ously inhibited in pursuing suchnegotiations. However, the chiefjustice stated that it was clearfrom the authorities that thepresence of the heading ‘without

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37

prejudice’ did not automaticallyrender the document privileged.In any case, where the privilegewas claimed but challenged, thecourt was entitled to look at thedocument in order to determinewhether it was of such a nature asto attract privilege.

The chief justice noted, how-ever, that although firmly rootedon considerations of public policy, the rule relating to ‘with-out prejudice’ communicationsshould not be applied in so inflex-ible a manner as to produce injus-tice. Thus, where a party invitedthe court to look at ‘without prej-udice’ correspondence, not forthe purpose of holding one’sopponent to admissions made inthe course of negotiations butsimply in order to demonstratewhy a particular course had beentaken, the public policy consider-ations may not be relevant. Itwould be unthinkable, accordingto the chief justice, that theattachment of the ‘without preju-dice’ label to a letter whichexpressly and unequivocally stat-ed that no point under the Statuteof Limitations would be taken ifthe initiation of proceedings wasdeferred pending negotiationswould oblige a court to decide, ifthe issue arose, that no action ofthe defendant had induced aplaintiff to refrain from issuingproceedings. He said that it fol-lowed that in such a case as thepresent case, the court was enti-tled to look at the ‘without preju-dice’ correspondence for the pur-pose of determining whether thecircumstances were such that thedefendants should not be allowedto maintain their plea under theStatute of Limitations.

The chief justice then consid-ered the second issue: were thecircumstances such as to pre-clude the Connollys and theinsurance company from main-taining the plea under theStatute of Limitations. Referringto the decision of the SupremeCourt in Doran v Thompson Ltd([1978] IR 223), he quotedGriffin J’s dicta to the effect thatin the appropriate circumstancesthe representation, promise orassurance must be clear andunambiguous so as to found anestoppel. Applying that generalprinciple to the category of casesin which a defendant may beheld to be precluded from rely-ing on a defence, the chief jus-tice referred further to Griffin J’swords: ‘If the defendants’ insur-ers had made a clear and unam-biguous representation … thatliability was not to be an issue,and the plaintiff’s solicitors hadwithheld the issuing of proceed-ings as a result, I would haveheld that the defendants wereestopped from pleading theStatute of Limitations’.

The chief justice added thatthe fact that a defendant hadexpressly and unambiguouslyconceded the issue of liability ina case would not necessarily ofitself make it reasonable for theplaintiff to assume that he coulddefer the institution of proceed-ings beyond the limitation peri-od. Where an insurance compa-ny within days of the accidentaccepted that no issue on liabili-ty arose (for example, in the caseof a passenger wearing a safetybelt), but for some reason thesubsequent negotiations becamedormant, the plaintiff may well

find himself unable to rely on theprinciple under consideration ifhe permitted the limitation peri-od to expire without institutingproceedings. In the absence of astatement by the insurance com-pany from which it was reason-able to infer in the event of pro-ceedings not being institutedwithin the limitation period, theaffected party would refrain fromrelying on a defence under thestatute, there seemed no reasonin principle why the insurancecompany should not be subse-quently precluded from relyingon such a defence.

The insurance company,according to the chief justice, wasundoubtedly interested in havingnegotiations for a settlement withMr Ryan’s solicitors, but thejudge could find nothing in thecorrespondence to indicate thatthe insurance company was effec-tively treating the case as one inwhich any defence on liabilitywas being abandoned, still less asone in which they would regardthe institution of proceedings assuperfluous and would not raisethe Statute of Limitations as adefence if, for any reason, pro-ceedings were instituted outsidethe limitation period.

Counsel on behalf of Mr Ryanin the Supreme Court reliedstrongly on the letter of 9 July1996 in which the insurancecompany informed Mr Ryan’ssolicitors that they had concludedthe material damage claim directwith Mr Ryan’s insurers. Thechief justice noted that it was wellknown that insurance companiesin cases where the owners of twovehicles involved in a collisionwere comprehensively insured

would dispose of the claims aris-ing from the damage to the vehi-cle on what was sometimes called‘a knock for knock’ basis. It maybe that this was what the insur-ance company was conveying toMr Ryan’s solicitors in the letterof 9 July 1996.

What was certain was that themere fact that the damage to MrRyan’s motorcycle had been dealtwith by agreement with his insur-ance company and the implica-tion that it could, as a result, beexcluded from any settlementnegotiations or any claim in pro-ceedings could not, on any view,have been reasonably construedas an unambiguous indication bythe insurance company that lia-bility in respect of Mr Ryan’s per-sonal injuries claim was beingconceded. The chief justice said itcould not be read as a representa-tion, in the event of proceedingsbeing instituted by Mr Ryan at alater stage outside the statutoryperiod, that no defence under theStatute of Limitations would beraised. He noted that in casessuch as this, the expense that aplaintiff’s solicitor incurs on hisclient’s behalf on issuing a plena-ry summons in order to preventthe statute running was compara-tively small; the consequence, bycontrast, of refraining from issu-ing proceedings could beextremely serious.

The chief justice allowed theappeal of the insurance companyand substituted for the order ofthe High Court an order deter-mining that the Connollys andinsurance company were not pre-cluded from relying on a defenceunder the Statute of Limitations,1957.

CASE Anthony Shiels v Minister for Finance, High Court, judgment of Mr Justice Roderick Murphy of 25 March 2001.

Tort – personal injuries – prisoner attacking garda with syringe containing blood-like fluid – anxiety – post-traumatic stressdisorder – delayed stress exacerbated by subsequent awareness of where needle was hidden in body of prisoner

THE FACTSGarda Anthony Shiels sus-

tained injury while on duty;he was stabbed with a needle in

the back of his right hand whileescorting prisoners fromMonaghan courthouse to

Mountjoy jail. The incidenthappened at about 5pm on 9January 1996.

One of the prisoners, havingsomehow removed the hand-cuffs which restrained him,

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attacked another member of theGarda with a syringe which con-tained a blood-like fluid.Apparently the prisoner beganto spit and scream. He waved thesyringe and threatened the gar-dai. While Garda Shiels and hiscolleague were trying to restrainthe prisoner, he stabbed GardaShiels’s hand with the syringe.There appeared to be bloodsquirting from the syringe, andthe prisoner was aggressive,kicking and shouting.

On return to Dublin, GardaShiels was treated for his injuryin the Mater Hospital. In fact,Garda Shiels stated that he wasnot aware that he had been

stabbed until he was medicallyexamined. He was then given adose of hepatitis vaccination. Inhis evidence before the HighCourt, Garda Shiels stated heascertained within a week thathis assailant was not HIV posi-tive.

Subsequently, Garda Shielsand his wife consulted with DrFiona Mulcahy. In her firstreport, Dr Mulcahy was of theopinion that Garda Shiels suf-fered a significant injury follow-ing the assault and put thetransmission risk following sucha needle stick injury with HIVpositive blood to be one in 300in respect of fresh blood. The

risk in relation to the acquisitionof hepatitis B and hepatitis Cwas, respectively, one in threeand one in 33 in relation to freshblood. The main concern of thegarda at the time was the acqui-sition of either hepatitis B or C.

In the second report of DrMulcahy, the testing for HIVand both hepatitis types hadbeen confirmed as negative. DrMulcahy’s opinion was thatGarda Shiels suffered significantanxiety as a result of the assaultand could not be adequatelyreassured for six months.However, at the time of thatreport, Garda Shiels could becategorically reassured that he

had not acquired any of theabove-mentioned viruses as aresult of the incident. DrMulcahy did state that this didnot detract from the significantanxiety that Garda Shiels expe-rienced.

Garda Shiels issued a specialsummons in the High Courtpursuant to the Garda Síochána(Compensation) Acts, 1941 and1945.

In his evidence to the HighCourt, Garda Shiels said he wasnow getting over the trauma.He had been transferred toother duties, but was not deal-ing with the public. He was dueto retire in August 2002.

Delivering judgment, MurphyJ referred to the various

medical reports and, in particu-lar, to that of Dr McHale, whohad concluded that the overallpattern of symptoms and behav-iour of Garda Shiels indicatedpost-traumatic stress disorder.Dr McHale had classified this asa severe reaction to the accumu-lated effects of past stressfulexperiences culminating in thesyringe attack. This incidentwas described as life threateningand damaging to the physicaland sexual self-esteem of GardaShiels.

The judge referred to DrMcHale’s second report whichconcluded that the overall pat-tern of symptoms and behavioursuggested that Garda Shielscontinued to experience conse-quences of the assault which

might not be immediatelyapparent but which had a perva-sive impact upon his life. Theseincluded a low-grade depres-sion, reflected in a loss of pur-pose and an inability to engageactively and meaningfully inrelationships, and a loss of

worth regarding his work con-tribution and his general senseof self, in marked contrast to hisearlier personality.

The garda surgeon in areport classified the incident asserious for reasons of the sixmonths reactive anxiety on the

part of the garda and his wife. Inthe garda surgeon’s opinion,Garda Shiels was perfectlyhealthy at the time of the con-sultation and he believed therewould be no sequelae or conse-quential disability.

Counsel for the gardaemphasised to the court the sig-nificant risk of injury when thesource of blood was unknown.Even when the garda knewshortly after the incident thatthe prisoner tested negative, thesource of blood in the syringewas unknown. There wasaccordingly considerable anxi-ety which had been exacerbatedby the knowledge that the nee-dle had been hidden in the pris-oner’s rectum.

These judgments were summarisedby solicitor Dr Eamonn Hall.

G

THE

AWAR

D Murphy J stated that there were three aspects of the damagessuffered by Garda Shiels.• A needle-stick injury with blood of unknown origin• Post-traumatic stress due to the accumulated effects of past

stressful experiences which culminated in the needle-stickinjury, and

• The exacerbation of stress resulting from the garda’s aware-ness that the needle had been hidden in the prisoner’s rectum.

Stating that Garda Shiels exhibited bravery in coming to the aidof a colleague in the confines of the garda van, Murphy J award-ed compensation in the sum of £25,000 together with agreedspecial damages of £380. Accordingly, he awarded a decree inthe sum of £25,380.

THE JUDGMENT

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ADMINISTRATIVE

Bias Telecommunications – bias – licens-ing – judicial review – whetherrespondent’s decision in breach offair procedures – whether licensingprocess flawed – whether member ofrespondent displayed pre-judgementin awarding licenceThe applicant had applied for aradio licence in the Dublin area.The licence was eventuallyawarded to someone else. Theapplicant sought an order of cer-tiorari on the basis that therespondent had displayed biastowards the license winner andthe decision in question was inbreach of fair procedures. In theHigh Court, Ó Caoimh J dis-missed the case. On appeal, theSupreme Court (Murray J deliv-ering judgment) held that therewas no pre-judgement orgrounds for bias and the appealwould be dismissed.Spin v IRTC, Supreme Court,02/02/2001 [FL3737]

Practice and procedure Medicine – judicial review – prac-tice and procedure – split trial – caseadjourned to plenary hearing –product authorisations – delay –whether appropriate to try issues ofliability and damages separatelyThe applicant had initiated judi-cial review proceedings regard-ing the approval by the respon-dent of medicinal products. Theapplicant claimed that therespondent had been guilty ofexcessive delay in issuing prod-uct authorisations. In the HighCourt, Mr Justice Kelly directedthat the matter proceed by wayof plenary hearing and declinedto order a ‘split trial’. The appli-cant appealed. Murphy J, deliv-ering judgment, held that theSupreme Court should not light-ly review such a matter. The

High Court order would beaffirmed and the appeal dis-missed.PCO Manufacturing v IrishMedicines Board, SupremeCourt, 22/05/2001 [FL3768]

ARBITRATION

Practice and procedure Commercial law – arbitration –delay – costs – failure to furnish sub-missions within time-frame agreedThe applicant sought to have amatter reconsidered by an arbi-trator. The arbitrator had madehis award after the time for thereceipt of submissions hadexpired. The applicant had failedto forward submissions withinthe agreed time-frame. Herbert Jheld that, in light of the injusticethat could result, the mattershould be remitted to the arbi-trator.McCarrick v Gaiety (Sligo)Limited, High Court, MrJustice Herbert, 02/04/2001[FL3731]

CHILDREN AND YOUNGPERSONS

Prisons Criminal law – children and youngpersons – detention and prisons –whether detention of youth in accor-dance with statutory requirementsProceedings were brought inrespect of the detention of theapplicant which, it was claimed,was not in accordance with therelevant statutory provisions.The Supreme Court held thatthe applicant had been properlycommitted on remand toMountjoy prison and refused therelief sought.O’Connell v Governor ofMountjoy Prison, SupremeCourt, 25/04/2001 [FL3721]

COMMERCIAL

Contract law, Statute ofLimitationsPractice and procedure – Statuteof Limitations – whether mattershould be tried as preliminary issueThe proceedings concerned anapplication by the receiver ofthe defendant regarding thestatus of a document relatingto the payment of a debt. Thereceiver sought to have theissue of whether the plaintiff’sclaim was statute-barred triedas a preliminary issue. MsJustice Carroll was satisfiedthat the entire action could bedisposed of if the status of thedocument was decided andaccordingly the issue relatingto the Statute of Limitationswould be heard.Bula Holdings v BulaLimited, High Court, MsJustice Carroll, 15/12/2001[FL3714]

COMPANY

Telecommunications, winding-up Winding-up petition – mobiletelephony services – equity –application for injunctionThe proceedings concernedthe termination of an agree-ment whereby the defendantsupplied the plaintiff withmobile telephone lines. Thedefendant was intent onbringing a winding-up peti-tion in order to recovermonies allegedly owed. Theplaintiff sought an interlocu-tory injunction to protect itsposition pending a sale ofbusiness assets. The applica-tion was refused in the HighCourt. On appeal, theSupreme Court held that thebalance of convenience would

be served by granting theinjunction sought, accompa-nied by a number of condi-tions. The appeal would beallowed.Meridian v Eircell, SupremeCourt, 10/05/2001 [FL3771]

CONTEMPT

Planning and environmental law Waste management – contempt ofcourt – costsThe applicants brought theproceedings pursuant to previ-ous court proceedings regard-ing the operation of a dump byGalway Corporation. Kelly Jheld that the respondent was inbreach of a previous courtorder, made a further courtorder relating to the use of thedump and imposed a fine of£50,000.Curley v Galway Corporation,High Court, Mr Justice Kelly,30/03/2001 [FL3718]

CONTRACT

EmploymentOffer of appointment – offer with-drawn – civil service – damagesThe applicant issued proceed-ings over the issue of a letteroffering him the position of ahigher executive officer in thecivil service. The applicantnever in fact received the letteras it was returned to the respon-dents at their request. O’Neill Jheld that the appointment hadbeen offered by the respondentsbut was withdrawn by thembefore acceptance. The appli-cant’s claim would be dismissed.O’Donovan v Minister forJustice, High Court, MrJustice O’Neill, 09/10/2000[FL3741]

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

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COSTS

Film and televisionCompany law – practice and pro-cedure – security for costs – insur-ance – issuance of completion cer-tificates – film production –inability to pay costsThe proceedings concerned theproduction and completion of afilm. The plaintiff issued pro-ceedings in this jurisdiction tothe effect that the issuance ofcompletion certificates inrespect of the production of afilm was void and thus no obli-gation to pay monies arose. Thepresent motion concerned anapplication for security for costsbrought by the defendantsagainst the plaintiff. McCrackenJ held that the plaintiff hadfailed to demonstrate why theorder in question should not bemade. An order would issue forthe plaintiff to provide securityfor costs.Johnstown Limited v ThiennezLimited, High Court, MrJustice McCracken, 21/03/2001 [FL3766]

CRIMINAL

Autrefois acquit Sentencing – fair procedures – dou-ble jeopardy – autrefois convict –estoppel – plea bargaining –administration of justiceThe case was an appeal to theSupreme Court in relation to theprocedure by which the appel-lant had been sentenced and, inparticular, in relation to a meet-ing which had taken place inchambers between the trial judgeand counsel. Keane CJ, deliver-ing judgment, was satisfied thatthe Court of Criminal Appealwas not correct in declining toregard the discussions which hadtaken place in chambers at theoriginal trial. The requirementsof justice would dictate that theoriginal sentences as imposedshould stand and the subsequentorder of the Court of CriminalAppeal would be discharged.DPP v Heeney, SupremeCourt, 05/04/2001 [FL3762]

Bail Application for bail – murder

charges – interference with witnesses The applicant faced two murdercharges and sought bail pendinghis trial. Mr Justice Kelly wassatisfied that if bail was grantedthe applicant would not turn upfor trial and bail was thereforerefused.DPP v Desmond, High Court,Mr Justice Kelly, 25/04/2001[FL3725]

Appeal against conviction Role of accused in kidnapping –whether court of trial took adequateregard of accused’s explanationThe applicant sought leave toappeal against his conviction forhis involvement in the kidnap of abank manager. The applicantclaimed that he had been actingunder duress throughout the kid-nap and that this factor had notbeen given adequate weight. TheCourt of Criminal Appeal wassatisfied that the full regard washad to the totality of evidence andleave to appeal would be refused.DPP v Kavanagh, Court ofCriminal Appeal, 18/05/99[FL3716]

Discovery Sexual offences – discovery – prac-tice and procedure – inspection ofdocuments – privilegeThe applicant sought furtherinspection of documents relatingto his impending prosecution oncharges of sexual assault. A pre-vious court order having beenmade, the applicant now soughtfurther inspection of documents.O’Neill J held that furtherinspection was not necessary andrefused the application.Barry v DPP, High Court, MrJustice O’Neill, 02/04/2001[FL3727]

Fair procedures Judicial review – sexual offences –whether applicant properlyreturned for trialThe applicant sought to chal-lenge a decision to return him fortrial on the basis that the chargein question was not one known tolaw. Mr Justice McKechnie heldthat the return for trial wasinvalid and the accused personwas not legally before the CircuitCriminal Court. In these circum-

The Continuing Legal Educationsection of the Law Society andthe Family Law and Civil Legal

Aid Committee will shortly present afamily law conference in the EducationCentre in Blackhall Place. The confer-ence will provide practitioners withinvaluable updates on recent develop-ments in family law. The panel ofspeakers will include:• David Bergin, chairman, Family Law

and Civil Legal Aid Committee (part-ner, O’Connor Bergin, Solicitors,Dublin)

• Rosemary Horgan, member, FamilyLaw and Civil Legal Aid Committee(partner, Ronan Daly Jermyn,Solicitors, Cork)

• Eleanor Kiely (PricewaterhouseCoopers)

• Geoffrey Shannon, solicitor, deputydirector of education, Law Society ofIreland

• Muriel Walls, vice-chairman, FamilyLaw and Civil Legal Aid Committee(partner, McCann FitzGerald,Solicitors, Dublin)

Nullity following the introduction of divorce• Taking instructions• Void marriages• Voidable marriages• Retrenchment of nullity post-

November 2000 and the decisionin PF v GDM (unreported, 28November 2000)

• Advising a client• Practice and procedure.

Discovery• Rules of the Superior Courts (No 2)

(Discovery) 1999• Circuit Court Rules (No 1) 1997• Copying of documents• The ‘millionaire’s defence’• Orders for wasted costs• Recent developments.

European Convention On HumanRights Bill, 2001 and family law• The family• The right to a fair hearing• Access to information• Domestic violence• The child – public and private law.

Brussels II• Scope and jurisdiction• Jurisdictional conflicts

• Lis pendens• Recognition and enforcement• Defences• Procedure and legal aid• Divorce planning or forum shop-

ping?

Co-habitation• Home ownership and occupation• Maintenance and welfare benefits• Children• Violence• Death• Contracts.

Taxation implications of marital break-down post-Finance Act, 2001• Income and assets• Maintenance• Transfer of assets.

FOR FURTHER INFORMATION, PLEASE CONTACT THE CONTINUING LEGAL EDUCATION SECTION IN THE LAW SCHOOL ON 01 672 4802.

FAMILY LAW CONFERENCE 2001

Recent developments in family law

BOOKING FORMName:

Practice name & address:

Phone: Fax: Year qualified:

Please reserve place(s) for this seminar. I enclose £ (£165 per person)

Please return to: CLE Applications Secretary, The Law School, Law Society, Blackhall Place, Dublin 7, tel: 01 672 4802, fax: 01 672 4803

WHERE: The Education Centre, Blackhall Place. WHEN: Saturday, 29 September 2001, 10am to 4pm. FEE: £165

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stances, there was no jurisdic-tion to embark upon or proceedwith the prosecution.Hatchell v DPP, High Court,Mr Justice McKechnie,06/04/2001 [FL3742]

Fair proceduresRoad traffic offences – fair proce-dures – use of alcolyser – drivingwith excess alcohol – whether lack ofscientific formulation – whethersafe to proceed to conviction on footof certificateThe case was referred to theHigh Court on the use of analcolyser to found a convictionfor driving with excess alcohol.O’Higgins J held that theabsence of scientific formulationdid not preclude the certificateon which the amount of alcoholwas stated from being prima facieevidence. The case stated wasanswered in the affirmative.DPP v Syron, High Court, MrJustice O’Higgins, 07/03/2001 [FL3740]

Fair proceduresRoad traffic offences – judicialreview – orders of prohibition andcertiorari – community serviceThe applicant had sought tochallenge the manner in whichthe District Court judge hearinghis trial had imposed convictionsand sentences. Conflicting evi-dence emerged as to what tookplace at the trial. Judicial reviewwas refused in the High Court.On appeal, Geoghegan J heldthat the High Court judgmentwas correct and dismissed theappeal.Scully v DPP, Supreme Court,03/05/2001 [FL3751]

Fair proceduresRoad traffic offences – drunk driv-ing – failure to provide sampleThe proceedings were a casestated pursuant to the provisionsof section 16 of the Courts OfJustice Act, 1947. The questionarose as to whether the accusedcould in the circumstances ofthe case be convicted for thefailure to provide a specimen ofblood. The Supreme Courtanswered the case stated in theaffirmative.

DPP v Mangan, SupremeCourt, 06/04/2001 [FL3761]

Powers of arrest Judicial review – road traffic offence– powers of arrest – fair procedures– whether applicant properlydetained by An Garda SíochánaThe applicant, while driving,had been detained by a memberof An Garda Síochána. Theapplicant was subsequentlyarrested and found to have beendriving in excess of the alcohollimit. The applicant was convict-ed in the District Court andbrought proceedings claimingthat the manner of his arrest hadbeen unlawful and that his con-viction was unsafe. Ó Caoimh Jheld that the District Courtjudge had acted within his juris-diction and the relief sought bythe applicant would be refused.O’Mahony v Judge Ballagh &DPP, High Court, Mr JusticeÓ Caoimh, 23/03/2001[FL3713]

Prisons Judicial review – prisons – detention– refusal of early release – allega-tions of discriminationThe applicant sought to chal-lenge the refusal of the respon-dents to approve his early releaserequest. Herbert J, deliveringjudgment, held that the grantingor withholding of temporaryrelease was a matter exclusivelywithin the discretion of the min-ister and that the court had nojurisdiction to intervene in theprocess. In these circumstances,the application would be refused.Lynch v Minister for Justice,High Court, Mr JusticeHerbert, 26/03/2001 [FL3733]

DAMAGES

Personal injuries Tort – personal injuries – road traf-fic accident – medical evidence –post-traumatic stress syndromeThe plaintiff had sufferedinjuries in a road traffic accident.These injuries included a stressdisorder. Mr Justice Barr wassatisfied that the plaintiff’s psy-chiatric profile had suffered per-

manent damage. The plaintiffwas awarded a total of £221,375.McDonnell v Walsh, HighCourt, Mr Justice Barr,01/03/2001 [FL3734]

Hepatitis C, personal injuries Tort – personal injuries – assessmentof damages – hepatitis C compensa-tion – claim for future loss of earn-ings – causation – concurrentwrongdoers – Civil Liability Act,1961The applicant had been infectedwith the hepatitis C virus.Subsequently, the applicant hadsustained serious injuries in aroad traffic accident. A questionarose as the correct amount ofcompensation payable. O’Neill Jheld that the appropriate amountof compensation payable was£442,500.RL v Minister for Health, HighCourt, Mr Justice O’Neill,06/04/2001 [FL3746]

DISCOVERY

Practice and procedurePlanning tribunal – discovery –legal professional privilege – solici-tors – whether claim of privilegecould be asserted over documentsThe proceedings related to doc-uments which were sought to bedisclosed at the PlanningTribunal. The Supreme Court,Denham J delivering judgment,held that the documents in ques-tion should be listed in an affi-davit of discovery. Parties werefree to litigate issues regardingprivilege by way of judicialreview.Miley v Flood Tribunal,Supreme Court, 08/03/2001[FL3720]

FAMILY

Nullity petition Decree of nullity – domicile of choice– domicile of origin – capacity –whether marriage of parties validand subsistingThe petitioner sought a decree ofnullity in respect of a marriageentered into with the respondent.The main issues centred on the

parties’ domiciles of origin andof choice. Mr Justice Lavan wassatisfied that the respondent hadacquired an Irish domicile ofchoice. In the circumstances, itwas not inequitable to grant therelief sought by the petitioner.RB v AS, High Court, MrJustice Lavan, 28/02/2001[FL3715]

INTELLECTUALPROPERTY

Trademarks/patents Trademarks – practice and proce-dure – whether time limits werecomplied withThe proceedings concerned adecision by the plaintiff to appealagainst a decision of the con-troller of patents, designs andtrade marks. An issue arose on apreliminary basis as to whetheror not the appeal was withintime. Finnegan J held that theappropriate course was toadjourn the matter to enable theplaintiff to bring an applicationfor an enlargement of time.Proctor & Gamble v Cont-roller, High Court, Mr Justice Finnegan, 30/03/2001[FL3726]

LITIGATION

Statute of Limitations Practice and procedure – Statute ofLimitations – pleadings – whetherto permit new issues raised to proceedThe judgment dealt with theamendment of certain claims bythe plaintiffs. Barr J held thatsome of the issues now raisedshould proceed and made theappropriate order.Bula v Crowley, High Court,Mr Justice Barr, 20/02/2001[FL3748]

The information contained here istaken from FirstLaw’s Legal Cur-rent Awareness Service, publishedevery day on the Internet at www.firstlaw.ie. For more information,contact [email protected] orFirstLaw, Merchants Court,Merchants Quay, Dublin 8, tel: 01679 0370, fax: 01 679 0057.

G

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On 1 January 1998, telecom-munications markets were

fully liberalised in almost allmember states of the EuropeanCommunity. This means thatthe traditional incumbents wereforced to surrender theirmonopoly positions and allownew market entrants. Thisderegulation of the telecommu-nications industry stimulatedsignificant market entry, whichin turn has meant lower pricesand a broader range of servicesfor consumers.

The Sixth EU implementationreport on telecommunications liber-alisation and implementation of thetelecommunications regulatorypackage (COM (2000) 814, 7December 2000) illustrates sta-tistically the growth in the mar-ket since the beginning of thederegulation process. Thereport provides, for example,that in the fixed, or land line,market there are currently some461 operators throughoutEurope offering public voicetelephony for long-distancecalls. This figure has increasedby 89% since 1999. There areapproximately 468 operatorsacross the EU providing inter-national calls (an increase of67% on 1999) and 388 provid-ing local calls (an increase of74% since 1999).

The increase in the numberof operators in the market hashad a favourable impact on tar-iffs. The Sixth report providesthat tariffs have been consis-tently decreasing since 1999,with the EU average monthlyexpenditure for national callsoffered by incumbent operatorsdecreasing by 10.5% on 1999for business users and 4.6% for

Eurlegal

New EU proposal for liberalising telecoms

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

residential users. The averageprices for international calls inrelation to the same perioddecreased by 15.1% for businessusers and 13.5% for residentialusers. The Sixth report also pro-vides that the average monthlybill for residential users of theincumbents’ services is nowbelow that of the incumbent inJapan and of Verizon in theUSA. The EU average is abovethe bill paid by customers ofPacific Bell in the USA, whichin turn is above the cheapest EUincumbent operator.

The regulation of thetelecommunications market has,therefore, yielded benefits forconsumers and for entrants tothe market. In order to ensurethat a level playing field is main-tained for new entrants to themarket, the European Commis-sion has proposed the adoptionof a new regulatory frameworkfor electronic communicationsnetworks and services.

New regulatory frameworkIt is expected that the new regu-latory package will be adoptedby the European Community inthe first half of next year, exceptfor the regulation on unbundledaccess to the local loop, whichhas already been adopted. It willsignificantly simplify and clarifythe existing regulatory frame-work and will bring the numberof legislative measures currentlyin force from 28 to eight. Thenew regulatory package consistsof the following:• Proposed directive on a com-

mon regulatory frameworkfor electronic communica-tions networks and services(the Framework directive)

• Proposed directive on theauthorisation of electroniccommunications networksand services (the Authorisa-tion directive)

• Proposed directive on accessto, and interconnection of,electronic communicationsnetworks and associatedfacilities (the Interconnectiondirective)

• Proposed directive on uni-versal users’ rights relating toelectronic communicationsnetworks and services (theUniversal service directive)

• Proposed directive concern-ing the processing of person-al data and the protection ofprivacy in the electroniccommunications sector (theData protection directive)

• Proposed directive on com-petition in the markets forelectronic communicationsservices

• Regulation on unbundledaccess to the local loop

• Proposed decision on a regu-latory framework for radiospectrum policy in theEuropean Community.

Each of these legislative meas-ures is available on the DG-Information Society website ofthe EU Commission.Highlighted below are some ofthe more innovative aspects ofthe regulatory package.

The proposed regulatorypackage aims to establish a har-monised regulatory frameworkfor electronic communicationsnetworks and services through-out the EU. This means thatnot only traditional telecom-munications networks will becaught under the new regulato-

ry framework but also othertypes of networks, includingsatellite, cable TV and mobilenetworks and networks usingthe Internet protocol. TheEuropean Commission expectsthat this will enable the regula-tory environment to keep pacewith the rapidly-developingtechnology environment. TheEuropean Commission hasstated that the motivationbehind the introduction of‘technology neutral regulation’is the fact that ‘the traditionalsimple value chain based on alimited number of products isevolving into a complex andhighly intertwined set of com-mercial relationships betweencompanies – operators, serviceproviders, content providers,advertisers and broadcasters –delivering an ever-growingvariety of services to endusers’.

However, criticism has beenlevelled at this principle of‘technology neutral’ regulationin that it is feared that it maylead to a situation where thecompetitive stage of the differ-ent markets is not taken intoaccount. It is thought that mar-kets which have demonstratedan adequate level of competi-tion should not be burdenedwith regulation designed forother markets as this mighthamper appropriate invest-ment and innovation. As analternative, it has been suggest-ed that there should be sector-specific regulations as long ascompetition in the market inquestion is not effective andsustainable. Sector-specificrules could be abandoned oncecertain requirements are met:

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for example, when the relevantmarket is competitive, sector-specific rules could be removedand regulators could rely on theapplication of the principles ofcompetition law.

One of the more significantamendments proposed in theregulatory package is theamendment to the definition ofwhat is meant by ‘significantmarket power’ (SMP). The cur-rent rules provide that an oper-ator with a share of 25% of aparticular market is to be desig-nated as having SMP. Where anoperator’s market share is closeto 25% (either above or below),there are a range of criteria to be used by the national regulatory authority (in Ireland,the Office of the Director of Telecommunications Regula-tion) in order to determinewhether the organisation hasmarket power. Certain obliga-tions are placed upon an opera-tor which is designated as hav-ing SMP, such as having to meetall reasonable requests foraccess to its network and so on.

Currently, Eircom is designat-ed as having SMP in the publicfixed telephone network andservices market, in the marketfor leased lines and in the nation-al market for interconnection.Eircell and Esat Digifone aredesignated as having SMP in thepublic mobile telephony marketand Eircell in the national mar-ket for interconnection. TheOffice of the Director ofTelecommunications Regulation(ODTR) is currently involvedin another review in relation todesignation of SMP, the resultsof which should be available atthe end of the year. The obliga-tions imposed on SMP opera-tors are more fully described inthe licences of Esat Digifone,Eircom and Eircell and can befound on the ODTR website.

Under the new regulatorypackage, the method of decid-ing whether an operator hasSMP will be more closelyaligned with the analysis cur-rently undertaken in competi-tion law under article 82 of theTreaty of Amsterdam. In particu-

lar, article 13(2) of the proposedFramework directive providesthat an undertaking ‘shall bedeemed to have significant mar-ket power if, either individuallyor jointly with others, it enjoys aposition of economic strengthaffording it the power to behaveto an appreciable extent inde-pendently of competitors, cus-tomers and ultimately con-sumers’. It will be up to thenational regulatory authoritiesin each of the member states ofthe EU to decide which opera-tors have SMP.

The ODTR has criticised theuse of the competition-law-based dominance test for anumber of reasons. In particu-lar, it has stated that the domi-nance test is specificallydesigned to meet the objectives

of competition law – in otherwords, to decide when anundertaking has abused its posi-tion of dominance in the partic-ular market and to take actionagainst that undertaking.Therefore, the result of anapplication of the test outlinedin article 82 of the Treaty ofAmsterdam is a determinationthat a firm held a dominantposition in a particular marketfor particular products/servicesat a particular point in timerelated to a particular allegedabuse. The ODTR has suggest-ed that a designation of SMPfor a communications operatorinvolves a very different analy-sis, which focuses not on whathas happened but on what islikely to happen over a continu-ous period in the future. TheODTR considers that the appli-cation of the dominance test isnot suitable in these circum-stances.

The ODTR has also statedthat it would be difficult toapply the normal rules of mar-ket analysis used in competitionlaw because of the ‘complexvertical structure of many largetelecoms firms and the profu-sion of related products, pricesand pricing structures withinthe sector’. In addition, it hassuggested that as the main tele-coms operators tend to possessmarket power in any number ofclosely-linked markets, thesepositions of power may confereven more market power thanthe sum of their parts (this iscalled the ‘portfolio effect’). Ithas suggested, therefore, thatthe application of the test out-lined in article 82 of the Treatyof Amsterdam may sometimesnot adequately reflect the

degree of market power pos-sessed by a firm in such mar-kets.

It also considers the domi-nance test inappropriate forapplication to the communica-tions market for the followingreasons:• The extraordinarily fast

growth and change in thetelecoms market means thatmarkets can easily be misde-fined when the dominancetest is used

• Use of the dominance testwill lead to widespreaduncertainty in the marketand this may ultimately dis-courage smaller operatorsfrom entering the market.

These arguments are outlinedby the ODTR in a submissionit made (ODTR 00/34) on theRegulatory framework for elec-tronic communications infrastruc-ture and associated services.

The Authorisation directive,referred to above, is intended toreplace directive 97/13/EC on acommon framework for generalauthorisations and individuallicences in the field of telecom-munications services (OJL 117,7 May 1997). The commission’sFifth report on the implementationof the telecommunications regula-tory package (COM (1999) 537,10 November 1999) noted seri-ous concerns in relation to theimplementation of directive97/13/EC. In particular, itnoted that ‘in the Communitytoday there is no harmonisedapproach to authorising marketentry for communications serv-ice providers but a patchworkof 15 national regimes whichare widely divergent in theirbasic approach and specificdetail … Licence categoriescreated by member states varyfrom only two to no less than18, each with its own condi-tions, procedures, charges andfees attached. To sustain thesegmentation created, memberstates require many differentkinds of information from serv-ice providers ranging fromnothing at all under the lightestregime, to 49 items under oneof the heaviest licensingschemes’. The effect of this isthat any investors from outsidethe EU which wish to roll out apan-European network arefaced essentially with a multi-tude of different licensingregimes which disincentifiesentry to the EU market.

In order to remedy thisdefect in the market, article3(2) of the proposedAuthorisation directive providesthat the provision of electroniccommunications services ornetworks can only be subject toa general authorisation. Thismeans that an undertakingwhich wishes to provide elec-tronic communication servicesor networks may be required tosubmit a notification that itintends to provide an electroniccommunications service/net-work, but may not be requiredto obtain an explicit decision orany other administrative act by

‘The fees paid for licences in some

member states are so enormous that the

licence purchasers cannot afford to make

significant investment in rolling out their

networks’

Briefing


44

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the national regulatoryauthority (in Ireland, theODTR) before exercising therights stemming from theauthorisation. There are dif-ferent rules where the under-taking which wishes to providethe service/network needs anallocation of radio spectrum ornumbers from the nationalnumbering plan as theseresources are obviously scarceand could not, therefore, bethe subject of a general autho-risation.

Unbundled access to thelocal loopLocal loop unbundling (LLU)is the process whereby theincumbent operator (in ourcase, Eircom) makes its localnetwork (the copper cablesthat run from the customerspremises to the telephoneexchange) available to otheroperators. Other operatorswill then be able to upgradethese cables using digital sub-scriber line (DSL) technologyto offer services, such as high-speed Internet access, direct tothe customer. In other words,LLU will allow customers tohave a high-speed data con-nection for Internet or videoon demand delivered throughtheir telephone line. In orderto avail of these services, thecustomer will need to have amodem installed in his homeor premises. If the customertakes all services, includingvoice telephony, from a newoperator, he will be billeddirectly by the new operator.If he continues to avail of

voice telephony services fromEircom then, presumably,both Eircom and the newoperator will bill him.

Regulation 2000/0185(COD) on unbundled accessto the local loop (5 December2000) required incumbentoperators throughout the EUto meet reasonable requestsfrom operators for unbundledaccess to their local copperloops on reasonable and non-discriminatory terms from 31December 2000. Currently,the local access networkremains one of the least com-petitive segments of the liber-alised telecommunicationsmarket. The enforcement ofthe LLU regulation will meanthat new entrants will be ableto compete with incumbentoperators in offering datatransmission services for con-tinuous Internet access and formultimedia applications basedon DSL technology as well asvoice telephony services.

It is noted in the recitals ofthe regulation that newentrants to telecoms marketsdo not have the widespreadnetwork infrastructures andare unable with traditionaltechnologies to match theeconomies of scale and scopeof the incumbent operators.This results from the fact thatthe incumbents rolled outtheir old metallic pair circuitsover significant periods oftime when they were protect-ed by exclusive rights and wereable to fund investment coststhrough monopoly rents. Inparticular, recital 5 of the reg-

ulation provides as follows: ‘Itwould not be economicallyviable for new entrants toduplicate the incumbent’smetallic local access infra-structure in its entirety andwithin a reasonable time.Alternative infrastructuressuch as cable television, satel-lite, wireless local loops do notgenerally offer the same func-tionality or ubiquity for thetime being’.

The regulation further pro-vides that the incumbent oper-ators provide access to theirinfrastructure to other serviceproviders at prices which arecost oriented. Incumbentoperators will also be forced topublish a standard offer, whichwill include standard pricesand terms and conditions.Commercial negotiationbetween the incumbent andthe new entrant will be thepreferred method for reachingagreement on technical andpricing issues in relation toaccess. However, the nationalregulatory authorities, such asthe ODTR, will be empow-ered to intervene ‘at [their]own initiative in order toensure fair competition, eco-nomic efficiency and maxi-mum benefit for end-users’.

The restructuring of thetelecommunications marketpost-liberalisation was partic-ularly helped by the interest intelecoms stocks up to spring2000. For the next phase oftelecommunications regula-tion, this particular marketsector may not enjoy a similarlevel of interest in its stocks.

The current trend is thatinvestors appear less willing tofinance market restructuringand start-ups. However, at themoment massive investment isneeded, particularly for aneffective unbundling of thelocal loop. Investment by com-munications network and serv-ice providers themselves hasalso been discouraged by cer-tain member state govern-ments, which have auctionedtheir telecoms licences. Thefees paid for licences in somemember states are so enormousthat the licence purchasers can-not afford to make significantinvestment in rolling out theirnetworks.

The EU Commission hasattempted through its new regu-latory package to assist the futuredevelopment of the communica-tions industry by attempting tomake regulation of the sector lessrigorous and more effective. Itssimplification of the proceduresis an acknowledgement that legaland regulatory barriers can oftenact as a disincentive to investors.In a sector such as the communi-cations sector, the aim of thecommission appears to be toencourage investment so that theEuropean communicationsindustry can keep pace with theother large world economies. Itwill be interesting to see whetherthe new regulatory package willhave the desired effect, when theEU Commission adopts it nextyear.

Lynn Sheehan is a solicitor withthe Cork law firm Ronan DalyJermyn.

G

Briefing


45

Recent developments in European lawCOMPETITION

Micro Leader Business vEuropean Commission ([2000]All ER (EC) 361). The applicantis a wholesaler of office andcomputer equipment. Up to1995, Micro had obtained sup-plies of Microsoft software fromCanadian distributors for resalein France. These products wereidentical to Microsoft productssold in France. Micro sold itssoftware at prices lower thanFrench Microsoft software. In1995, Microsoft endeavoured tostop these parallel imports. Itissued a bulletin to French dis-tributors informing them thatsteps would be taken to preventthis undercutting, which washarming their trade. The resultof the Microsoft initiative wasthat the expor t of French-language software from Canadato France all but halted. In 1996,Micro complained to theEuropean Commission, arguingthat Microsoft and MicrosoftFrance had entered into agree-ments containing export bans inviolation of article 81 of thetreaty. It also complained thatMicrosoft had abused its domi-nant position. The commissionrejected the complaint. It heldthat the two companies were asingle economic unit and couldnot be separate parties to anagreement and found no evi-dence of a breach of article 82.The Cour t of First Instanceupheld the finding on article 81.It held that there was no evi-dence of any agreement inbreach of this ar ticle.Furthermore, the two companiesconstituted a single economicentity. The CFI held that even ifthere had been an agreementpreventing the export of Frenchlanguage software from Canadato France, it would have beenlawful. The Computer softwaredirective only provides forexhaustion of rights within the

EU. Thus, the marketing of thesoftware by Microsoft in Canadadid not exhaust its copyright.The CFI held in favour of Microon its ar ticle 82 arguments.Evidence had been producedshowing price dif ferencesbetween France and Canada forwhat was the same software.The prices charged by Microsoftin France were excessive. Thecourt held that enforcement ofdomestic copyright did not ingeneral involve abuse of domi-nance but in exceptional circum-stance mere enforcement couldbe abusive. The court annulledthe commission’s decision dis-missing the ar ticle 82 com-plaint.

EMPLOYMENT

Gender discriminationCase C-258/98 Tanja Kreil vBundesrepublik Deutschland, 11January 2000. In 1996, MsKreil, who had been trained inelectronics, applied for voluntaryservices in the German army,requesting duties in weapon-electronics maintenance. Herapplication was rejected, asGerman law bars women frommilitary service involving the useof arms. She claimed that herrejection based on her sex wascontrary to EU law. The ECJ heldthat it is for member states totake appropriate decisions onthe organisation of their armedforces to ensure their internaland external security. Such deci-sions do not, however, fallentirely outside the scope of EUlaw. The principle of equal treat-ment is of general applicationand thus directive 76/207/EECon equal treatment of men andwomen as regards access toemployment can be of relevancein this situation. Article 2(2) ofthe directive allows states toexclude from its scope occupa-tions for which gender is a deter-mining factor – either by vir tue of

their nature or the context inwhich the occupation is carriedon. However, the court notedthat as this is a derogation fromrights contained in the directive,it must be interpreted strictly. Inprevious cases, the court hadallowed this derogation for postssuch as those of prison warders,policing situations where thereare serious disturbances and forservice in certain combat units.Such a derogation must be pro-portionate. The court pointedout that the German lawimposed a blanket ban onwomen serving in the military. Itheld that the fact that womenmight be called on to use armscould not justify the ban. Thederogation allowed for by thedirective only applies where it isjustified by the specific activityconcerned. That was not thecase here, and so the Germanban contravened the directive.

INTELLECTUALPROPERTY

Joined Cases C-414/99, C-415/99 and C-416/99 ZinoDavidoff SA v A&G Imports Ltd,Levi-Strauss & Co and Levi-Strauss (UK) Ltd v Tesco Stores,Tesco plc and Costco WholesaleUK Ltd, Opinion of AdvocateGeneral Sticx-Hackl, 5 April2001. Davidoff SA is the propri-etor of two trademarks, CoolWater and Davidoff Cool Water,which are registered in the UKfor toiletries and cosmetic prod-ucts. These products bear batchcode numbers and are sold byDavidoff or on its behalf withinand outside the EuropeanEconomic Area (EEA). A&Gacquired stocks of these prod-ucts, which had been placed onthe market in Singapore byDavidoff or with its consent.A&G imported these stocks intothe EU, specifically into England,and started to sell them there.The only dif ference between

these products and Davidof fproducts sold in England wasthat the batch code numbershad been removed or obliterat-ed. Levi-Strauss own the trade-marks Levi’s and 501 which areregistered in the UK for jeans.Tesco and Costco obtained gen-uine Levi 501 jeans from a sup-plier who imported them into theEU from third countries and soldthem to Tesco and Costco.Davidof f and Levi-Straussbrought proceedings in Englandclaiming that the importation ofthese goods into the EU andtheir sale was an infringement oftheir registered trademarks. Thedefendants pleaded exhaustionof the rights deriving from thetrademarks. The Trademarksdirective provides that a trade-mark proprietor cannot invokehis exclusive rights under thetrademark where the goodsbearing the mark have been puton the market in the EU by himor with his consent. This doesnot apply where legitimate rea-sons justify the trademark pro-prietor in opposing further com-mercialisation of the goods. Theadvocate general said that theexhaustion principle is designedto prevent trade between mem-ber states being restrictedthrough the invocation of trade-mark rights. In the case of paral-lel imports from non-memberstates, the free movement ofgoods is not affected. The advo-cate general said that wheresuch importation occurs, thenational cour t must examinewhether the conduct of thetrademark proprietor can be con-strued as a waiver of his right tocontrol distribution within theEU. The advocate general saidthat in relation to the absence orobliteration of batch code num-bers, it is for the national courtto examine whether the damageto the reputation of the trade-mark is sufficiently serious inthat respect. G

People and places


46

Mutual respectThe Irish Solicitors’ Bar Association, London, recently held a reception

at the Law Society, London, to mark the tenth anniversary of the admis-sion of Irish solicitors in England and Wales without having to undergoany further examinations. Pictured at the event are (from left to right):

Ken Murphy, director general of the Law Society of Ireland; Ward McEllin,president of the Law Society of Ireland; Irish Ambassador Ted

Barrington; ISBA London President Cliona O’Tuama; Niall MacCabe, senior manager at AIB GB, which sponsored the reception; Goldman

Sachs International Chairman Peter Sutherland; Michael Napier, president of the Law Society of England and Wales; and Janet

Paraskeva, chief executive of the Law Society of England and Wales

Joining forces(From left to right) Deborah Hegarty, solicitor, Cork Corporation,

Edward Hughes, law agent of Dun Laoghaire-Rathdown County Counciland member of the Law Society Council, and Norman Grieve, chairman of the Scottish Local Authorities’ Solicitors Association traded expertisefollowing a recent Blackhall Place meeting of in-house local authorities’

solicitors from the British Isles and the Republic of Ireland

Retired but not retiringPictured at a presentation to three solicitors retiring from their Tipperary

government posts are (from left to right): Judge Michael Reilly; PatTreacy, retiring state solicitor for North Tipperary; President of the

Tipperary Bar Association Kieran Cleary; Don Binchy, retiring countycouncil solicitor; Bryan Maguire, retiring state solicitor for South

Tipperary; and Judge David O’Riordan

People and places


47

Squaring off in the SouthMembers of the Waterford Solicitors’ Golf Society gathered with the team from the Southern Law Association Golf Society on 11 May,

the day of their match at Fota Island Golf Club

The third annual CalcuttaRun was bigger and better

than ever before. This yearnearly 1,300 runners andwalkers took part in the 10krun on Sunday 27 May toraise money for GOAL andthe Aruppe Society, which arehelping homeless children inDublin and Calcutta.

The runners and walkersfollowed the now-familiarroute, leaving from the gatesof Blackhall Place through thePhoenix Park and returningback to the Law Society. Thisyear the first past the post forthe men was Cillian Lonerganand for the women it wasLaura McGinley. The finishline saw many happy facesbefore the last person made ithome. Students from theInstitute of Physical Therapywere on hand at the end ofthe race to provide much-needed leg massages to manyof the participants.

The traditional post-racebarbecue was once again agreat success. The partycontinued long after the lastrunner made it home, witheveryone enjoying thesunshine and the music in thegrounds of the Law Society. Agreat day was had by all.

Of course the day is notjust about fun, it’s aboutraising money to give much-

needed help to homelesschildren. We are hoping tobeat last year’s total and raise£120,000. We will beannouncing our grand total inthe coming weeks, but if youstill have sponsorship moneyto submit, please send it toThe Calcutta Run, 25-28North Wall Quay, Dublin 1.

Thank you to everyonewho took part on the day orwho contributed to our grandtotal. We hope to see you allagain next year.

Eoin MacNeill

Working out the kinksMassage services for tired legswere provided by students fromthe Institute of Physical Therapy

Limbering upParticipants gather and stretch outside Blackhall Place

And they’re offKen Doherty looks on as JudgeRobert Barr signals the runners

to hit the streets

Calcutta Run

People and places


48

A capitol performance(From left to right) Paul Madden,Aisling Kelly, Nora Staunton andMadeleina Loughrey-Grant madeup the Law Society team repre-

senting Ireland at the internationalfinals of the Philip C Jessup Moot

Court Competition held inWashington DC. The Irish team

was placed 16th out of 70 teams

Linking up in LimerickPictured at a recent meeting between the Limerick Bar Association and the Law Society’s president and

director general are (front row, left to right) Lorraine Power, Robert Kennedy, Ken Murphy, Gearoid McGann,Ward McEllin, Karen Kearney, Paddy Glynn and David Punch; (back row) John Battles, Pat Wallace, Kieran

O’Brien, Richard O’Hanrahan, Gerry O’Neill, Cora Hagney, Gwen Bowen, Sonya Morrissey-Murphy, Jane O’Connor and Eamon O’Brien

Annual Dinner of the Law Society 2001

Promoting competition(From left to right) Director General Ken Murphy, Dr John Fingleton, chairman of the

Competition Authority and Rory Brady SC, chairman of the Bar Council

Serious stuffA pre-dinner discussion between (from left to right) Independent Adjudicator

Eamon Condon, Pat Rabbitte TD, Justice Michael Moriarity, and Gordon Holmes, a member of the Superior Courts Rules Committee

Enjoying the eveningJudge Mary Devins (left) met with Ann McEllin,

solicitor

All smilesJudge Bryan McMahon chats with Law Society Senior

Vice-President Elma Lynch

People and places


49

Hilary passed away peacefully in theCork University Hospital at the end

of January 2001. She returned unwellfrom a family holiday the previous Januaryand was diagnosed as having cancer. Shewas given the bleak diagnosis of havingbetween six weeks and six months left tolive. Notwithstanding this devastatingnews, she lived a full and complete life,preserving her sense of humour and senseof proportion throughout. Alwayspractical, Hilary organised her affairs withcareful planning for her beloved spouse,Aidan, her daughters Angela and Sheila,Uncle Tom and sister Clodagh.

Hilary loved her work and her job in PriceWaterhouseCoopersin Cork. She had a feel for tax since her university days andthrived in the heady environment of the tax department of thatfirm. She had an uncanny knack of helping her numerically-challenged solicitor colleagues to understand tax – a rareachievement. Being both a solicitor and a tax consultant, sheunderstood the interface between the professions and exercisedher talents in each profession to a high standard. She taught,published and lived law and tax. She exuded competence andtalent in her work, and still managed to be an outstanding wifeand loving mother. Her sense of loyalty was legendary and,notwithstanding her illness, she maintained her outstandingcontribution to the Law School and the Family law manual(Blackstone) and the Family law practitioner (Roundhall Sweet &Maxwell). She also won a prize for article of the year at theInstitute of Taxation last year.

Hilary contributed greatly to the business life of the city ofCork, not least through her dedicated work and commitment inthe Cork Chamber of Commerce, where she served as

Hilary E Walpole: an appreciation from her colleagues

chairperson of the Local and EconomicDevelopment Committee and the BudgetSubmission Task Force and, in the lastyear of her life, as vice-president. Hadshe lived, Hilary would have been thefirst woman to be appointed as presidentof the Cork Chamber of Commerce.The fact that she achieved so muchwithin such a short time is trulyremarkable.

From a sporting perspective, sailingwas Hilary’s ‘thing’ and she was a keensailor and competitor. She also took uphorse riding before her illness in order to

keep up with her sporty daughters. Her almost annual NewYear’s Eve parties were thronged with friends and colleaguesfrom work and sport, their parents and children along with herown extended family. Everyone was made to feel welcome andspecial. Hilary was a hurricane of fresh air, but also gentle,compassionate and funny and possessed of a great sense ofpersonal style.

The sense of loss to her family and friends is enormous, butso too is the sense of joy at having known such a rare andtalented person. Her removal and funeral mass were throngedwith a multitude of people from all walks of life, all of whomwere there to celebrate a life well lived. Practical to the end,she left instructions that there should no flowers but shewelcomed contributions to be given to fight cancer. To thevery end, Hilary thought of others rather than herself. She wasa true professional.

Hilary was deeply loved and we, her friends and colleagues,will miss her terribly.

Deborah Hegarty, Cork Corporation

OBITUARY

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There are over 5,000 subject entries in the Digest as well asover 8,500 cross-references to the Constitution, statutes, statuto-ry instruments, European Union legislation and internationalconventions.

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Summer Barbecues

Entertain in the Law Society at Blackhall Place

Summer Barbecues

An ideal opportunity for you to entertain your staff during the summer season.

The Law Society is the venue for your staff’s summer day out.

Facilities available are on-site catering with a full bar service, tennis courts, soccer pitch and a beautifulrose garden to hold your BBQ and games day out.

CHRISTMAS PARTIESIt’s never too early to think about

Treating your staff or clients to Christmas lunch at the Law Society!

For details on either of the above please contact Áine Ryan, catering manager,

at 01 672 4922

People and places


51

James P GilvarryOBITUARY

The recent death of James P Gilvarry,retired judge of the District Court,

marked the end of an era for manysolicitors practising in the counties ofCavan, Monaghan, Roscommon, Mayo,Sligo and Leitrim. At the time of hisretirement in 1994, Judge Gilvarry hadbeen one of the longest-serving judges inthe history of the state. Jimmy, as he wasaffectionately known to his legalcolleagues, qualified as a solicitor in1947. He worked for a brief period inClonmel before establishing a practice inBallina. He was appointed a temporaryjudge of the District Court on 16September 1960 and served until 31December 1960. He then returned toprivate practice until his appointment as a permanent judge inFebruary 1963. He was appointed judge for theCavan/Monaghan area (court area no 5) in 1964 and servedthere until 1969. He was then appointed to RoscommonDistrict Court area (no 4), where he served until 1982. Hisfinal posting as a judge was in the court area of Sligo/Leitrim(no 2), where he presided from 1982 until his retirement in1994.

As a judge, Jimmy combined the characteristics of humility,kindness and generosity, backed up by a steely determinationto do ‘the right thing’. His exercise of judicial authority wasalways tempered with mercy. He always displayed greatcourtesy and kindness to legal practitioners, the gardaí andlitigants. In particular, he extended great patience to younglegal practitioners who were learning their trade. His sense ofhumour and quick wit was legendary. Even when you were onthe wrong side of a decision, he always let you down gently,and your clients always left the court knowing they hadreceived a full and fair hearing.

His ability to put a nervous witness at ease did much tofacilitate the cause of justice in his court. He always maintainedan avid interest in the law, and, in particular, all developmentsaffecting District Court practice and procedure. His largebrown well-worn leather briefcase, which went with him to all

courts and became his trademark, was averitable treasure trove of legalprecedents and textbooks pertaining tothe District Court. Following lengthylegal argument in any case, a practitionercould be assured that Jimmy would pullfrom his briefcase some relevantprecedent. Jimmy’s briefcase alwayscarried the most up-to-date case andstatute law, and was an impressiveforerunner to the mandatory laptopcomputers used by the judges of today.His courts were a pleasure to work in,with the bench showing respect andfairness to everyone.

Following his retirement, Jimmy actedas tutor in the Law Society’s Law

School, where his breadth of experience and depth of legalknowledge proved to be an invaluable asset to teachers andstudents alike. His encouragement and kindness to nervousstudents did much to give them confidence.

Off the bench, Jimmy’s ability and passion for golf wererenowned. His captaincy of the Enniscrone Golf Club saw itestablished as one of the premier clubs in the country. Jimmyalso hosted many legal golf outings, and the memorialcompetition founded in his honour will continue to be playedon an annual basis at Enniscrone. His ability for repartee andtelling a good story, particularly against himself, made him awelcome addition to any company. He loved life and life lovedhim.

In his final months, Jimmy bore his illness with dignity andbravery. He never complained and he never lost his sense ofhumour. This reflected the fact that he went to God with aclear conscience, having lived a full and good life. Our deepestsympathies are with his wife, Phyllis, whom he often describedas the ‘light of his life’, and his daughter, Helen, and his sonsMichael, Terry, Declan and David. He hasn’t gone far, he isgone to God and God is always very near.

May he rest in peace.

Keenan Johnson

Law Society of Ireland

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Top Dublin firm is seeking high quality E-Commercecandidates to join this developing practice group.Working on high profile cases and dealing with cuttingedge IT work, the ideal candidate should have prior ITor E-Commerce experience, preferably from a largefirm background or relevant pre-law experience. (Ref.IG100178)

Property 1-7 To £80,000

Dynamic, highly successful London firm has a marketleading commercial property practice and seeksassistants at all levels to help cope with the increas-ing level of new instructions. Candidates will handlea mix of mainstream property. (Ref. IG81700)

Insolvency 3-5 To £78,000

Expanding corporate recovery and insolvency groupin well-regarded London firm has a vacancy for ahigh quality non-contentious corporate recovery/insolvency lawyer. Great opportunity to develop yourreputation and standing. (Ref. IG100145)

Banking 0-4 To £50,000

Leading firm in Manchester offering an opportuni-ty to become a banking specialist. You will experi-ence corporate transactions, acquisitions and prop-erty finance. Outstanding opportunity. (Ref.IG5746)

Summer Moves

As an established market leader in legal recruitment, Hays ZMB offers qualified lawyers strategic recruitment advice on the many opportu-nities in private practice and in-house both in Dublin and overseas - in London, the rest of Europe, the US and Australia.

Dublin London/Manchester

DipT

he Diploma in legal French, which hasbeen running since 1996, will beoffered in a new format this year. Runjointly by the Alliance Française andthe Law Society, the diploma will now

take place over the academic year – October toMay – with the optional examination followingin early June.

For those who want to improve their knowl-edge of the French legal system, who want toenhance their career prospects, who are fran-cophiles at heart, or who want to improve theirknowledge of French and have an interest inlegal matters, this course is the answer.

Taught by native French lawyers and lectur-ers, the course will contain both French law andlanguage modules, the latter focusing on legaltexts and vocabulary. Those who complete thecourse will be in a position to deal with French-speaking lawyers and business people and/orwith French legal matters in an English-speak-ing environment.

■ For further information, please contact LouiseStirling at the Alliance Française on tel: 016761732 or e-mail: [email protected].

Diploma in

NEW FORMAT

legal French■ Short Waiting Lists / Patient

access and ample car parkingfacilities

■ Excellent images due to highpower gradient 1.5 Tesla MRIScanner

■ Experienced staff in MRI■ Reporting by dedicated

Musculo-skeletal Radiologists■ Speciality Orthopaedics / other

specialities welcome.

01 814 0362

Cappagh NationalOrthopaedic Hospital

MEDICAL LEGAL MRI REPORTS

Cappagh NationalOrthopaedic HospitalFinglas, Dublin 11

DETAILS:Fax Number for Booking: 8140364Head Radiographer: Ms. Christine GillanSecretary, Ms. Elizabeth Byrne

FOR FURTHER DETAILS, PLEASE CONTACT

01 814 0362Cost of MRI Reports: £500Payable by Solicitor/Patient at time of MRIReports will not be released until payment is received

Apprentices’ page


53

The SADSI CareerDevelopment Day will be

held in the Presidents’ Hall inBlackhall Place on Friday 27July from 2–6pm. The eventwill be followed by a winereception and summerbarbecue. Each apprentice willreceive a copy of the itineraryin the coming weeks.

The diversity ofopportunities available tonewly-qualified solicitors isreflected in the variety anddepth of speakers present at theevent. Broadcaster Gerry Ryanwill launch the event and willspeak about ‘opportunitiesbeyond the law’. Otherspeakers include practitionersand non-practitioners from theprivate and public sectors. Thecareers day aims to highlight

SADSISolicitors Apprentices Debating

Society of Ireland

SADSI CareerDevelopment Day

the scope and flexibility of thelegal profession, and will coversuch issues as the reciprocity ofIrish qualifications in otherjurisdictions, setting up a solepractice and working in a largefirm. Recruitment consultantsBenson & Associates willdiscuss opportunities in Irelandand abroad, including Britainand Australia.

Special thanks are due toBenson & Associates, who aresponsoring the event, and TP

Kennedy, who is alwaysavailable to help. Many thanksalso to Lillian O’Sullivan fororganising the wine receptionand barbecue.

While the precious stars ofthe FA Premiership are

relaxing on their summerholidays, 16 teams from Dublinlaw firms have commencedbattle against each other in thefourth annual inter-law firmssoccer tournament in BlackhallPlace. Eugene F Collins & Coand Beauchamps kicked off thisyear’s competition for the GeorgeOverend Memorial Trophy, withEugene F Collins emergingvictorious in a five-goal thriller.

From an initial pool of eightteams back in 1998, thecompetition has grown inpopularity over the last threeyears. Last year’s winners, JohnBlack & Co, will start asfavourites to retain the trophy.However, with talk of someteams having engaged inpunishing pre-season trainingand a last minute flurry ofactivity in the transfer market, anumber of others fancy theirchances.

There will be over 50 gamesplayed in the tournament thisyear under the watchful eye ofreferee Fran McLaughlin,providing plenty of opportunityfor people to come and cheertheir teams on. The competitionruns from mid-June to mid-August, with the winners andrunner-up from the two eight-team groups going on to contestthe semi-finals. The final will beplayed on 9 August.

The competition organiserswould like to thank thesponsors, A&L Goodbody andthe Law Society, for theircontinued support.

Last March SADSI made anapplication to the Education

Committee of the Law Societyin relation to the MinimumWage Act. The purpose of ourapplication was to securepayment for apprentices on thePPC1 and PPC2, as paymentduring courses of study ortraining is provided for undersection 16 of the act. TheEducation Committee has nowaccepted the application of theact to apprentices, as outlined inlast month’s Gazette (page 2).

We are awaiting a guidancenote from the committee on thespecific implications of the actfor masters and apprentices. Inthe interim, copies of thelegislation are available in theLaw School and any queries canbe addressed to [email protected] (please note that thisis a change of address.)

Claire O’Regan

Friday 8 June saw SADSI gowest, with a barbecue in NUI

Galway’s college bar, followed bya boogie in the Warwick and CPs.SADSI western representativeDaragh Feeney and pre-professional course representative

■ Any firm that wishes todistribute literature aboutopportunities in their firmson careers day shouldcontact Deirdre Crowley [email protected].

EXAM RESULTSFor those of you who attendedthe PPC1 in October 2000,the exam results will beavailable on or before Friday24 August

Deirdre Crowley, vice-auditor and welfare officer

SADSI e-mailaddress

SADSI’s new e-mailaddress is

[email protected] not

[email protected] you are interested in

submitting articles to theApprentices’ page, pleasecontact Conor Delaney [email protected].

Who ate allthe pies?

MinimumWage Act

Western people

Galway apprentices John Forde, Olivia Lynch, Dermot Murphy and LornaCahill at the recent SADSI barbecue in Galway

Dawn Carney played hosts withstyle. Many thanks to both ofthem and to all the gang whotravelled from Dublin. Thankstoo to Ulster Bank for itscontinued generous sponsorship.

Claire O’Regan

Hill-walkingextravaganzaWell, lets hope everybody

has begun their trainingprogram for August 18th. That’sright, only the fittest pint-holding arms will survive the tripto Killorglin. The hill walk is thewarm up, but the main event willbe the craic that evening. Anyone interested can send an e-mail to [email protected] further details.

SPANISH LAWYERS

RAFAEL BERDAGUER ABOGADOS

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

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

PROFILE:

Spanish Lawyers Firm focussedon serving the need of the for-

eign investors, whether in compa-ny or property transactions and allattendant legalities such as ques-tions of immigration-naturalisa-tion, 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, Immigrationand Naturalisation, Litigation in allCourts.

Director: Sheila Kavanagh

Experts in Overnight Transcripts

Specialists in

Court Reporting

Medical Cases / Arbitrations

Conferences / Board Meetings

Contact:Hillcrest House,

Dargle Valley, Bray, Co. Wicklow.

Telephone/Fax: (01) 286 2184or

4b Arran Square, Dublin 7

Telephone: (01) 873 2378

IrishStenographers

Ltd

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

S O L I C I T O R SEstablished 1825

• Fearon & Co specialise in acting for Irish residents in the fields of probate, property and litigation

• Each solicitor is available by direct line, fax or e-mail. Conferences can be easily arranged

• Fearon & Co is committed to the use of information technology to help improve both the quality and speed of service for the benefits of all clients both at home and abroad

• The firm’s offices are within half an hour of London Waterloo station and within a short travel from both Gatwick and Heathrow airports, with easy access fromthe London orbital M25 motorway

• No win, no fee arrangements and Legal Aid areavailable in appropriate cases

PHONE NOW FOR A BROCHUREWestminster House

12 The Broadway, Woking, Surrey GU21 5AU EnglandFax: +44 (0)1483 725807

Email: [email protected] www.fearonlaw.demon.co.ukPROPERTY

John PhillipsTel: +44 (0)1483 747250

LITIGATIONSarah Butler

Tel: +44 (0)1483 776539

PROBATEFrancesca Nash

Tel: +44 (0)1483 765634

WHERE THERE’S A WILLTHIS IS THE WAY…

5 Northumberland Road, Dublin 4. Tel: (01) 668 185515 Bridge Street, Cork. Tel: (021) 4509 918

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 pounds 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 for some fund-raising purposes.The “Cancer ResearchAdvancement Board”allocates all ResearchGrants on behalf of theSociety.

AM

EMBER

OF

INTERNATIONAL PRACTIC

EG

ROU

P

Professionalinformation


55

PROBATE &SUCCESSION

GENEALOGY –WORLDWIDE

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

+44 020 7549 0900

• Free professional assessments• Range of cost structures• Excellent success rate worldwide• A complete service to the professionFor more information or our detailed brochure please call

TITLE RESEARCHYOUR PARTNER IN TRACINGMISSING BENEFICIARIES

ADVERTISING RATES

All advertisements must be paid for prior to publication. Deadline forAugust/September Gazette: 24 August 2001. For further information, contactCatherine Kearney or Louise Rose on 01 672 4828 (fax: 01 672 4877)

• Lost land certificates – £30 plus 20% VAT (£36)• Wills – £50 plus 20% VAT (£60)• Lost title deeds – £50 plus 20% VAT (£60)• Employment miscellaneous – £30 plus 20% VAT (£36)

Advertising rates in the Professional information section are as follows:

HIGHLIGHT YOUR ADVERTISEMENT BY PUTTING A BOX AROUND IT – £25 EXTRA

GazetteLawSociety

LOST LANDCERTIFICATES

Registration of Title Act, 1964An application has been received fromthe registered owners mentioned in theschedule hereto for the issue of a landcertificate as stated to have been lost orinadvertently destroyed. A new certifi-cate will be issued unless notification isreceived in the registry within 28 daysfrom the date of publication of thisnotice that the original certificate is inexistence and in the custody of some per-son other than the registered owner. Anysuch notification should state thegrounds on which the certificate is beingheld.(Register of Titles), Central Office, LandRegistry, Chancery Street, Dublin (Published 6 July 2001)

Regd owner: Rosetta Cullen, 63 BoltonStreet, Cavan; Folio: 10912; Lands:Kiltrasna; Area: 4.4812 acres; CoCavan

Regd owner: Anne Kearney and JohnKearney; Folio: 1881F; Lands:Known as a plot of ground situate inthe Townland of Maulicarrane, theBarony of Carberry West, and theCounty of Cork; Co Cork

Regd owner: FMC International AG;Folio: 12003L; Lands: Known as aplot of ground situate in theTownland of Wallingstown, theBarony of Barrymore and the Countyof Cork; Co Cork

Regd owner: Cork Polio and GeneralAftercare Association; Folio: 24274F;Lands: Known as a plot of ground sit-uate in the Townland of Gortnaclohy,the Barony of Carbery West (EastDivision), and the County of Cork;Co Cork

Regd owner: Michael O’Donovan;Folio: 33516; Lands: Known as a plotof ground situate in the Townland ofGarranes, the Barony of CarberryEast (East Division), and the Countyof Cork; Co Cork

Regd owner: Daniel Gallagher, LowerMeenagran, Gurteen, Frosses Inver,Co Donegal; Folio: 10630; Lands:Meenagran (Parts); Area: 9.50 acres;Co Donegal

Regd owner: William James Scott,Lismonaghan, Letterkenny, CoDonegal; Folio: (1) 22974, (2) 23052;Lands: (1) Woodpark and Lismona-ghan, (2) Calhane and Woodpark;Area: (1) 4.625 Woodpark, 2.626Lismonaghan, (2) 2.062 Calhane,39.75 Woodpark; Co Donegal

Regd owner: John and Susan Horan, 24Seacrest, Balbriggan Road, CoDublin; Folio: DN101049F; Lands:Dublin; Co Dublin

Regd owner: Martin Mates and PaulineMates, 164 Clonard Road, Crumlin;Folio: 54417L; Lands: Dublin; CoDublin

Regd owner: Ann Gittens, 294 LaurelLodge, Castleknock, Co Dublin;Folio: 19506F; Lands: Townland ofBlanchardstown and Barony ofCastleknock; Co Dublin

Regd owner: Janet Molloy, 7 Fairways,Rathfarnham, Dublin 14; Folio:

36843L; Lands: Dublin; Co DublinRegd owner: Damien McKenny,

Mairead McKenny, 130 Carrigwood,Ballycullen Road, Dublin 16; Folio:60492F; Lands: Dublin; Co Dublin

Regd owner: Dorothy O’Riordan, 152Forest Hills, Rathcoole, Co Dublin;Folio: 15856L; Lands: Townland ofRathcoole and Barony of Newcastle;Co Dublin

Regd owner: Telardin Agencies SA,28/32 Lower Pembroke Street,Dublin; Folio: 44862; Lands:Townland of Roundstone and Baronyof Ballynahinch; Area: 0a 0r 2p; CoGalway

Regd owner: Richard O’Neill; Folio:3699F; Lands: Townland of Timolinin the Barony of Narragh and RebanEast; Co Kildare

Regd owner: Emily O’Hara; Folio:6573F; Lands: Part of the Townlandof Clane in the Barony of Clane; CoKildare

Regd owner: Gisela Holstein; Folio:5053F; Lands: Property no 1:Townland of Collinstown, propertyno 2: Townland of Collinstown, in theBarony of Carbury; Co Kildare

Regd owner: Andrew Coyle and AnnieCoyle; Folio: 70L; Lands: Part of theTownland of Naas West in theBarony of Naas North; Co Kildare

Regd owner: Michael Byrne (deceased)(one-third share); Folio: 940; Lands:Part of the lands of Foxhill in theBarony of Narragh and Reban Eastand part of the lands of Ballycullanein the Barony of Narragh and RebanEast; Co Kildare

Regd owner: Francis Kelly; Folio:15961; Lands: Clogrenan and Baronyof Slievemargy; Co Laois

Regd owner: Brian Matthews; Folio:4929F; Lands: Maryborough andBarony of Maryborough East; CoLaois

Regd owner: John Christopher Doherty,Liscarbon, Aghacashel, Co Leitrim;Folio: 11395; Lands: Liscarban (Part);Area: 19.875 acres; Co Leitrim

Regd owner: The Minister forEducation; Folio: 6545F; Lands:Townland of Sreelane and Barony ofClanwilliam; Co Limerick

Regd owner: John and ElizabethMullen, 64 O’Hanlon Park, Dundalk,Co Louth; Folio: 7062F; Lands: 64O’Hanlon Park; Co Louth

Regd owner: John Bruton, Cornelstown,Dunboyne, Co Meath; Folio: 1861and 1862; Lands: Ballymacoll andCornelstown; Area: 60.475 acres and15.362 acres; Co Meath

Regd owner: John James Curley, appli-cant: Michael Curley, Tiramoan,Emyvale, Co Monaghan; Folio:12447; Lands: (1) Tiramoan, (2)Derrylea; Area: (1) 12.568 acres, (2)2.093 acres; Co Monaghan

Regd owner: LM Ericsson Limited,Cornamaddy, Athlone, CountyWestmeath; Folio: 7231F, 7230F;Lands: Blyry Lower; Area: 8.300acres and 3.310 acres; CoWestmeath

Regd owner: Paul McAuley Dixon andIrene Dixon; Folio: 5239; Lands:Townland of Drummin East in the

Barony of Newcastle; Co WicklowRegd owner: Thomas McCallion and

Susan McCallion; Folio: 14859F;Lands: Part of the Townland ofBallinahinch and Barony ofNewcastle; Co Wicklow

WILLS

Burke, Patrick, late of Cloonkeary,Ballinrobe in the county of Mayo.Would any person having knowledge ofa will made by the above nameddeceased who died on 12 May 2000,please contact McGuire Desmond,Solicitors, The Arch, 7 Fr MatthewQuay, Cork, tel: 021 427 3630

Flewitt, Edith Edna (deceased), late of55 St Albans Park, Ballsbridge, Dublin4. Would any person having knowledgeof the whereabouts of a will for theabove named deceased who died on 6June 1997, please contact TanhamHawthorne, Solicitors, 25 UpperMount Street, Dublin 2, tel: 676 5989,fax: 662 2828

Kelly, Ellen Teresa (deceased), late of‘Alcantara’, Iona Park, Mayfield, Cork.Would any person having knowledge ofthe whereabouts of an original willmade on 1 July 1997 of the above

named deceased who died on 3 June1999, please contact Timothy J Hegarty& Son, Solicitors, 58 South Mall, Cork,tel: 021 427 0351, fax: 021 427 6580, ref:5/NA/18230

Kissane, Maurice (deceased), late of 32St David’s Court, Castle Avenue,Clontarf, Dublin 3. Would any personhaving knowledge of a will executed bythe above named deceased who died on2 March 2001, please contact Eugene PKearns, Solicitor, 10 Lower AbbeyStreet, Dublin 1, tel: 01 874 2023, fax:01 874 2029

McGarry, Owen (deceased), late of 6Eglinton Road, Bray, Co Wicklow.Would any person having knowledge ofa will executed by the above nameddeceased who died on 16 January 1998,please contact Bohan Solicitors, 4 ArranSquare, Arran Quay, Dublin 7, tel: 8722330, fax: 872 2355

McDonald, Benjamin Gerard(deceased), late of 9 Ferndale Road,Dublin 11. Would any person havingknowledge of a will made by the abovenamed deceased who died on or about23 May 2001, please contact Early &Baldwin, Solicitors, 27/28 Marino Mart,Fairview, Dublin 3, tel: 01 833 3097, fax:01 833 2515, ref: MOD/4860

Professionalinformation


56

NORTHERNIRELAND

SOLICITORSWe will engage in,

and advise on, all Northern Ireland-

related matters,particularly personal

injury litigation.Consultations where

convenient.Fee sharing envisaged.

OLIVER M LOUGHRAN & COMPANY

9 HOLMVIEW TERRACE,OMAGH, CO TYRONE

Phone (004428) 8224 1530Fax: (004428) 8224 9865

e-mail:[email protected]

DUBLIN SOLICITORS’PRACTICE OFFERS

AGENCY WORK IN NORTHERN

IRELAND* All legal work undertaken

on an agency basis* All communications to clients

through instructing solicitors* Consultations in Dublin if required

Contact: Séamus ConnollyMoran & Ryan, Solicitors,

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

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

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

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

J. DAVID O’BRIENATTORNEY AT LAW20 Vesey St, Suite 700 New York, NY, 10007

Tel: 001212-571-6111Fax: 001212-571-6166

Email: [email protected]

PERSONAL INJURY ACCIDENT

CASES

CONSTRUCTION

RAILROAD

MARITIME

AVIATION

CAR/BUS/TRUCK

MEMBER AMERICAN AND NEW

YORK STATE TRIAL LAWYERS

ASSOCIATIONS

Enrolled as Solicitor in Rep of Ireland, England

& Wales

Merchant, Vincent (deceased), late ofHightown, Coralstown, Mullingar,County Westmeath. Would any personhaving knowledge of a will made by theabove named deceased who died on 16February 2001, please contact NJ Downes& Co, Solicitors, Mullingar, CountyWestmeath, tel: 044 48646, fax: 044 43447

Murphy, Norman, late of 65 DodderPark Road, Dublin 16. Would any personhaving knowledge of the whereabouts of awill made by the above named deceasedwho died on 17 November 1999, pleasecontact B&P Byrne, Solicitors, 7 EustaceStreet, Dublin 2, tel: 679 7937, fax: 6793812

Turner, Patrick (deceased), late of 4Chamber Street, Dublin 8. Would anyperson with any knowledge of a will exe-cuted by the above named deceased whodied on 21 March 2001, please contactFerrys Solicitors, 443 South CircularRoad, Rialto, Dublin 8, tel: 454 4275, fax:453 6911

EMPLOYMENT

County Clare: solicitor with PQErequired. Two to three years for Ennisoffice. Experience in conveyancing essen-tial. Reply to Box no 61

Solicitor required for general practicein the North County Dublin area. Pleasephone 8438766 for further details

Experienced solicitor capable of workingon his/her own initiative required, special-

ising primarily in conveyancing and pro-bate work. Reply with CV to MessrsPatrick V Boland & Son, Solicitors, MainStreet, Newbridge, Co Kildare. Salarycommensurate with experience

Cork city: solicitor required with expe-rience in conveyancing, litigation, familylaw. Minimum of one to two years’ expe-rience. Colm S O Riain & Co, Solicitors,4 Washington Street West, Cork, e-mail:[email protected]

Midlands: experienced solicitor seekspart-time position (conveyancing and lit-igation). Might suit holiday/locum cover.Reply in confidence to Box no 62

Consultant locum available Dublin,commencing early September 2001.Experienced in all areas of general prac-tice. Replies to Box no 63

MISCELLANEOUS

Northern Ireland solicitors providingan efficient and comprehensive legalservice in all contentious/non-con-tentious matters. Dublin-based consulta-tions and elsewhere. Fee apportionment.ML White, Solicitors, 43-45 MonaghanStreet, Newry, County Down, tel: 0801693 68144, fax: 080 1693 60966

Northern Ireland agents for all con-tentious and non-contentious matters.Consultation in Dublin if required. Feesharing envisaged. Offices in Belfast,Newry and Carrickfergus. ContactNorville Connolly, D&E Fisher,Solicitors, 8 Trevor Hill, Newry, tel: 0801693 61616, fax: 080 1693 67712

London solicitors will advise on UKmatters and undertake agency work. All

areas. Corporate/private clients. Ellis& Fairbairn, 26 Old Brompton Road,South Kensington, London SW73DL, tel: 0044 171 589 0141, fax:0044 171 225 3935

Northern Ireland solicitors. Willadvise and undertake NI-related mat-ters. All areas corporate/private.Agency or full referral of cases as pre-ferred. Consultations in Dublin orelsewhere if required. Fee sharingenvisaged. Donnelly Neary &Donnelly, 1 Downshire Road, Newry,Co Down, tel: 080 1693 64611, fax:080 1693 67000. Contact KJ Neary

Personal injury claims, employment,family, criminal and property law spe-cialists in England and Wales. Officesin London (Wood Green, CamdenTown and Stratford), Birmingham andCardiff. ‘No win, no fee’ available foraccident and employment claims, legalaid for family and criminal cases.Contact Levenes Solicitors at AshleyHouse, 235-239 High Road, WoodGreen, London N22 8HF, tel: 0044 208881 7777. Alternatively, e-mail us [email protected] or visit our web-site at www.levenes.co.uk

TO LET: Office suite,

613 square feet

Unit 10Inns Court

Winetavern StreetDublin 8

Ideal for solicitor or barristerTel: 01 496 6011

EYE INJURIES ANDOPHTHALMOLOGIAL

NEGLIGENCE

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

Consultant Ophthalmic Surgeon

Experienced expert witness inophthalmological personal

injury, medical negligence and civil litigation

Renuntiabo, 8 Rose Mount, Oxton, Wirral, Merseyside,

L43 5SW

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

e-mail: [email protected]

For sale: ordinary seven-day publican’slicence. Offers to Corrigan Coyle KennedyMacCormack, Solicitors, Castleblayney, tel:042 974 0010, fax: 042 974 0329

For sale: ordinary seven-day publican’slicence. Contact James Binchy and Son,Solicitors, Charleville, Co Cork, tel: 06381214, fax: 063 81153

Irish silver: Interesting 18th and 19th centu-ry items for sale. Reply to Box no 64

TITLE DEEDS

Hugh Joseph Nolan (deceased). Wouldany solicitors holding any deeds to anyproperty in Ireland in the name of theabove named deceased, please contactMessrs Park Nelson of 1 Bell Yard,London WC2A 2JP, tel: 020 7539 2000,fax: 020 7405 4266

www.benasso.com

The Irish Legal Recruitment Specialists

Carmichael House, 60 Lower Baggot Street, Dublin 2, IrelandT +353 (0) 1 670 3997 F +353 (0) 1 670 3998 E [email protected]

For information on theservices we provide as wellas current vacancies, pleasevisit our website or contactMichael Benson (BCL) orAnnaleen Sharkey (LLB) instrictest confidence, at:

Benson & Associatesis a niche consultancy,specialising in therecruitment of high calibre lawyers for private practice, commerce and industry.

contents gazette lawsociety€¦ · unit prices: 1 june 2001 managed fund: 386.8p all-equity fund:...

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