contents gazette lawsociety...update 43 practice notes 44 annual report of the disciplinary tribunal...

Contents

Law Society GazetteDecember 2001

1

Regulars

News 2

Letters 7

Tech trends 26

Stockwatch 28

Book reviews 35

Briefing 39

Council reports 39

Committee report 42

Legislation update 43

Practice notes 44

Annual report of the Disciplinary Tribunal 46

Personal injuryjudgments 49

Eurlegal 52

People and places 57

Apprentices’ page 60

Professional information 61

Papists, porter, and burning bricksThank God for the English and their funny little ways. Manyof their more archaic and unusual laws were finally repealedhere in 1962, but some are still in force. Henry Murdochtakes a light-hearted look at this ludicrous legal legacy

10

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

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

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

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18 Nothing venturedOver the last ten years, venturecapitalists have poured hun-dreds of millions of pounds intoIrish companies. The cake maybe getting smaller but, for theright companies, there are stillplenty of chances to get a slice.Barry O’Halloran reports

22 Neighbourhood watchWe used to be taught that the answer to the well-knownquestion ‘who is thy neighbour?’ was that ‘thy neighbour is allmankind’. But not if you’re a lawyer. Michael Peart exploresthe issues surrounding duty of care in the light of a recentSupreme Court decision

14 Hats off to ElmaShe doesn’t fly, she’s never played rugby, butnew Law Society President Elma Lynchdoes have the dubious distinction of nearlybeing thrown out of court for not wearingthe appropriate headgear. Here, she talks toConal O’Boyle about her career and herplans for the year

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ONE TO WATCH: NEW LEGISLATION

News


2

RTÉ television reporter JoeLittle has been named

Overall Winner of the LawSociety’s Justice Media Awardscompetition. This competitionaims to reward outstandingjournalism in the printed orelectronic media whichcontributes to the public’sunderstanding of the law, thelegal system or any specificlegal issue.

Little won the top prize forhis special Primetimedocumentary on the Stardustdisaster 20 years on. At aceremony in the Law Society’sBlackhall Place headquarterslast month, Immediate Past-President of the Law Society,Ward McEllin, presented theprize to Little, whose reportalso won the broadcast categoryin the Justice Media Awards. AsOverall Winner, he received aDublin Crystal vase and acheque for £1,000.

The winners in each of thefour other categories in thecompetition won a JusticeAward, comprising a DublinCrystal Joyce plate (and a £500cheque), with the runners-upreceiving a Certificate of Merit(and a cheque for £100).

The winner of the Justice

Little wins Law Society media award

Award in the DailyNewspapers category wasCarol Coulter of the Irish Timesfor her article Want a divorce?First choose your judge, publishedin February.

A Certificate of Merit wentto Justine McCarthy of theIrish Independent for her articleentitled State of disgrace, dealingwith the state’s approach to theKathryn Sinnott litigation.

The winner of the JusticeAward in the Non-DailyNewspapers category wasJerome Reilly of the SundayIndependent for an articleentitled Comment is free, butfacts cost dear, on the costs ofthe Beverly Cooper-Flynn libel

action against RTÉ.Certificates of Merit went

to Margaret Rossiter of theNationalist newspaper inTipperary for a very movingaccount of a lonely rapevictim’s experience during theweek-long trial of her allegedattackers, and Tony Galvin ofthe Tuam Herald for his articleentitled Whistle-blowing ondrunken drivers is not as easy asit sounds, which appeared inAugust of this year.

In the Magazine category,the judges awarded twoCertificates of Merit, one toCarol-Anne O’Reilly ofConsumer Choice for an articleon bullying in work and the

other to TP O’Mahony for hisarticle in America magazineheadlined Abortion and the courtsin Ireland.

In the Radio category, theJustice Award went to RoisinBoyd and Ryan Tubridy ofRTÉ’s Five-Seven Live for aweek-long series entitledChildren in trouble, prompted bythe growing number of courtcases involving children. BarryCummins of Today FM won aCertificate of Merit for hisinterview with Kathryn Sinnott,the mother of Jamie Sinnott.

The Justice Award forTelevision was presented toRTÉ’s Joe Little for his specialPrimetime documentary on theStardust disaster 20 years on.

Company Law Enforcement Act, 2001This act became law in July, and somesections have been brought into forceby SI 391/2001 and SI 438/2001. On27 November, SI 523/2001 and SI524/2001 commence those sectionsrelating to the office of the new Directorof Corporate Enforcement, Paul Appleby.

The director of corporate enforce-ment (DCE) will be an independent per-son appointed for periods of five years, with an office and staff. He will takeover the functions of the minister inrelation to investigation and enforce-ment of the Companies Acts. The actgives the director considerablyenhanced powers. It tightens up the fil-ing of information in the CompaniesOffice and establishes a Company LawReview Group on a statutory footing tomonitor, review and advise the ministeron company law matters.

The increased powers of the DCE

and the new filing regime (to come intoeffect next March) are expected to havea major impact on compliance with therules and corporate governance in gen-eral. Any practitioner who advises thoseinvolved in running companies will needto be aware of the provisions of this act.

Part III of the act deals with theinvestigation of suspected offences bythe DCE under the Companies Acts andcompany investigations under part II ofthe Companies Act, 1990. The followingare important features:• Section 14 refers to a table which

lists the powers and functions of theminister under the Companies Actswhich are to be transferred to theDCE without amendment

• Section 19 requires minute books tobe made available to the DCE onrequest to facilitate investigation of acompany’s affairs

• Section 21 provides that the DCEmay apply to the High Court for

appointment of an inspector to inves-tigate the affairs of a company, andsuch an inspector may be a memberof the DCE’s staff. This makessense as such a person may alreadyhave acquired knowledge of a com-pany’s affairs through preliminaryinvestigations

• Section 22 expands the related com-panies to which an investigation maybe extended with the permission ofthe court, to include companies withwhich the company under investiga-tion has a commercial relationship

• Section 23 amends section 10 ofthe 1990 Companies Act, whichrequires a company under investiga-tion and its officers and agents toproduce all books and documentsand give all other assistance toinspectors. It preserves a lien heldby anyone over such books and doc-uments, and, in the event of non-compliance, the inspector may certify

this to court, which may act as itthinks fit, for example by directingcompliance, and, failing that, holdingthe person in contempt. The sectionis also broadened to includeaccountants, book keepers or taxa-tion advisors along with auditors

• Section 29 replaces section 19 ofthe Companies Act, 1990 (the sec-tion used by the minister to under-take examinations in some high-pro-file cases). It extends the power toexamine books and documents of acompany under investigation tobooks and documents which maycontain information about that com-pany, but which do not belong to thatcompany. It also makes it an offenceto answer questions with false andmisleading information, or to destroy,mutilate, falsify or conceal any bookor document if under notice of anorder requiring inspection by theDCE. Costs may be imposed at the

GazetteLawSociety

ChristmaspublicationAs usual, the Gazette will betaking a well-earned breakover the Christmas period,so there will be no issue inJanuary. Normal publicationwill resume with a jointJanuary/February issue, due out in early February.

Overall winner: RTÉ’s Joe Little

News


3

discretion of the court. A new section19A creates an offence where a per-son who knows or suspects that theDCE is investigating or may investi-gate an offence under theCompanies Acts destroys or concealsany documentary evidence that mayrelate to the offence. The sectionalso creates a presumption that theperson destroying or concealing wasaware of the existing or incipientinvestigation or the relevance of theevidence

• Section 30 substitutes a new section20 of the 1990 Companies Act. Asearch warrant may now be obtainedon reasonably based suspicion thatbooks and documents are held onnamed premises. Such documentsmay now be held for six months, andon further application, for a longerperiod. The officer named in thesearch warrant may operate any com-puter found on the premises and may

require any person there to facilitateaccess, to give the password and tohelp extract information in a visibleand legible form. Anyone obstructinga search or seizure of information orfailing to assist is guilty of an offence

• Section 31 relates to publication ofinformation obtained in the course ofinvestigations. In future, it will thedecision of the DCE, not the minister,to disclose information under the cri-teria of section 21 of the 1990Companies Act

• Section 32 gives power to the DCE torequire banks to give information inrelation to an investigation under sec-tion 19 of the 1990 act, whether ornot the company under investigationis (or was) a customer of the bank.This will expose the accounts ofother companies or persons to theDCE in the course of section 19investigations

• Section 33 permits the DCE to exer-

cise his powers in response to arequest from abroad, but the DCEmay decline to assist if there is noappropriate contribution to costs

• Section 36 extends the duty of astock exchange to report apparentbreaches of section 91 of theCompanies Act, 1990 (exchange ofinterests in shares) to the DPP andto the DCE, and once the DCE or theDPP institutes proceedings, theexchange, every officer of the compa-ny concerned and anyone else withrelevant information is required togive all reasonable assistance in con-nection with the proceedings

• Section 37 extends the duty of astock exchange to report suspectedinsider dealing to the DPP and to theDCE, and to give all reasonableassistance in connection with anyproceedings

• Section 38 lifts the duty of profes-sional secrecy imposed by section

118 of the 1990 act on relevantauthorities, members or employeesof a stock exchange in relation to theDCE and imposes a duty to reportany suspected breach of companylaw.

Other sections of the act relate torestrictions and disqualifications ofdirectors, and winding up and insolvency(expected to come into force early nextyear). The sections relating to improvingcompliance with new filing obligationsare scheduled to come into effect on 1March next. General supervisory powersover auditors come into effect on 28November. Provisions relating to trans-actions involving directors are already inforce, as are a considerable number ofamendments to tighten up and facilitatethe supervision of companies.

Alma Clissmann is the Law Society’sparliamentary and law reform executive.

G

The Law Society has a newCouncil and officer team,

with Dublin solicitor ElmaLynch taking up the reins ofoffice for the next year. Lynchwas deemed elected to the postafter serving as senior vice-president last year, whileGeraldine Clarke was electedsenior vice-president, with PhilipJoyce as junior vice-president.

The following members wereelected to the Law SocietyCouncil in the recent ballot,with the number of votesreceived appearing after theirnames:Name Votes1. Geraldine Clarke 1,4822. Owen Binchy 1,3603. Brian Sheridan 1,3604. John D Shaw 1,2865. John O’Connor 1,2846. Kevin O’Higgins 1,1977. Moya Quinlan 1,1838. John Costello 1,1779. Gerard Doherty 1,17710. Michael Boylan 1,17311. Stuart Gilhooly 1,10512. Angela Condon 1,03613. Hugh O’Neill 99814. Andrew Dillon 99515. Thomas Murran 955

The following candidates werenot elected and the number of

STRESS MANAGEMENT FORLAWYERSA seminar on Time and stressmanagement for lawyers willbe held on 1 February 2002in Blackhall Place. Theseminar covers stress,beating burnout, organisingyour work environment andplaying to your strengths. Thecourse tutor, Rob Parsons, isa best-selling business authorand international speaker onmanagement issues. Forfurther information, see theinsert in this month’s issue orcall Ruth Browne on tel:(0)29 20442035.

LAW SOCIETY OF IRELANDRETIREMENT TRUST SCHEMEUnit prices: 1 November2001Managed fund: 342.316pAll-equity fund: 93.485pCash fund: 188.766pPension protector fund: –

PRIZE BOND WINNERS 2001The winners of the LawSociety’s prize bond drawwere: Thomas J Kelly, CoWexford; Mary Twomey, CoKerry; Kevin McGilligan,Dublin; BV Hoey, Drogheda;Peadar O Maolain, Co Offaly;Denis McDowell, Dublin;Patrick Cody, Co Carlow; andMichael Cody, Co Carlow.

New officer team in place

Connaught: Rosemarie Loftus;Munster: Eamon O’Brien.

Council members areelected for two-year terms: thesitting Council members whowere deemed elected last yearare: John P Shaw, AnneColley, Keenan Johnson,Michael Peart, Gerard Griffin,Donald Binchy, Elma Lynch,Patrick O’Connor, SimonMurphy, Philip Joyce, JamesMacGuill, Orla Coyne, JohnFish, James McCourt, MichaelIrvine, Edward Hughes, James Sweeney and John BHarte.

votes received by them appearafter their names:Name Votes16. Peter Allen 91917. John Dillon-Leetch 91818. Sean Durcan 89519. Dominic Dowling 88620. Bill Stokes 72921. TC Gerard O’Mahony 289

As there was only one candidatenominated for each of the tworelevant provinces (Connaughtand Munster), there was noelection and the candidatenominated in each instance wasreturned unopposed, as follows:

New officer team: Law Society President Elma Lynch (far left) with SeniorVice-President Geraldine Clarke and Junior Vice-President Philip Joyce

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News


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COMPENSATION FUNDPAYOUTThe following claim amountwas admitted by theCompensation FundCommittee and approved forpayment by the Law SocietyCouncil at its meeting inNovember: Michael PMcMahon, 5/6 UpperO’Connell Street, Dublin 1 –£43,363.

PAYBACK TIME FOR USSUPPORT The Ireland Funds havelaunched an appeal to theIrish business community toraise money for the familiesof the victims of the 11September terrorist attacksin the United States. Thefunds were created 25 yearsago and during that timehave distributed grantstotalling $150 million tohundreds of communitygroups and charities northand south of the border. TheIreland Funds around theworld hope to raise $1million to provide relief forthose affected by theattacks. Anyone wishing tocontribute can send acheque to: the Ireland FundsUSA Appeal, 5 Foster Place,Dublin 2. For furtherinformation, contact thefunds’ director, KieranMcLoughlin, on tel: 01 6627878 (website:www.irlfunds.org).

SOLICITORS TRANSFERRINGTO THE BARThe Bar Council hasannounced that solicitorsplanning to transfer to thebar must submit theirapplications to the LawLibrary Committee betweenthe first Monday in Marchand the first Monday in May.Applications must beaccompanied by theappropriate fee. For moreinformation, or to obtain acopy of the Membershiprules for the Law Library,contact the Bar Council ontel: 01 817 5027.

Irish takecontrol of CCBELaw Society Council memberJohn Fish has been electedpresident of the Council ofEuropean Bars and LawSocieties, the umbrella bodythat represents the interestsof Europe’s legal professionsbefore the EU institutions.Fish, a senior partner in theDublin law firm Arthur Cox, isonly the second-ever Irishmanto hold this prestigiousposition. His term of office asCCBE president 2001/02lasts one year.

Mr Justice Joseph Finneganhas been appointed

president of the High Court onthe retirement at the end ofNovember of Mr JusticeFrederick Morris.

Mr Justice Finnegan, whohas worked both as a solicitorand a barrister, was appointed ajudge of the High Court in1999. He was educated atSynge Street CBS, Dublin, St Mary’s College, Dundalk,UCD, the Law Society andKing’s Inns. He qualified as asolicitor in 1966, practising inDublin for over a year beforebecoming assistant secretary ofthe Law Society from 1968 to1972. He practised again as asolicitor until 1978, when hewas called to the bar. He was

Former solicitor Finnegan isnew High Court president

called to the Inner Bar in 1990. Law Society President Elma

Lynch congratulated the newHigh Court president on hisappointment. ‘Like hispredecessors, he will play avery special role under theSolicitors Acts in the

maintenance of the higheststandards of conduct within thesolicitors’ profession,’ she said.‘On a personal level, we aredelighted to see the secondmost senior judicial position inthe state being held by aformer solicitor. We wish himevery success and happiness inhis challenging new role’.

• Kathryn Delahunt hasbeen appointed a judge of theCircuit Court and sat as ajudge for the first time on 3December. A partner for manyyears in the Dublin law firm ofVincent & Beatty, she qualifiedas a solicitor in 1979. She is thefirst female solicitor to beappointed a Circuit Courtjudge and has been assigned tosit in Dublin.

An Taoiseach, Bertie Ahern,was guest of honour at a

dinner in Blackhall Placerecently, hosted by then presi-dent of the Law Society, WardMcEllin, writes Ken Murphy.The taoiseach was accompaniedby the Minister for Social,Community and Family Affairs,Dermot Ahern.

The occasion represented anopportunity, which was taken,for the society to brief thetaoiseach and the minister on arange of issues of concern tothe solicitors’ profession. Thetaoiseach is well aware that thesociety’s headquarters at

Bertie comes to Blackhall

Blackhall Place lies within hisconstituency of DublinCentral, although it is ‘perhapsnot a typical house in this con-stituency’, he quipped.

Although an exchange ofviews on a range of importantissues was very much part ofthe evening, it was primarily asocial occasion with opportuni-ties for levity. For example,Ward McEllin to Bertie Ahern:‘I think I have been in Phoenixmagazine more often than youhave this year, taoiseach’.Interjection by Dermot Ahern:‘But Ward, you don’t have yourown diary in Phoenix!’.

The new President of theHigh Court Joseph Finnegan

An Taoiseach Bertie Ahern (centre) is greeted on his arrival atBlackhall Place by the then president Ward McEllin (left) and director

general Ken Murphy

Under the provisions of the National Treasury Management Agency

(Amendment) Act, 2000, the management of certain personal injury

and property damage claims against the State has been delegated

to the ntma. When carrying out its new claims management and

associated risk management functions, the ntma is to be known

as the State Claims Agency.

The Agency’s mandate is to manage claims with theaim of minimising the State’s liability. The intentionis to apply best commercial practices with the aimof ensuring that State claims are investigatedthoroughly and are resolved fairly and cost-effectively.

The Agency will manage certain claims against theState, individual Ministers, the Attorney General, the Commissioner of the Garda Síochána, prisongovernors, community and comprehensive schoolsand certain other bodies. Excluded from its remit are cases under the Garda Compensation Acts,cases alleging abuse of children in residentialinstitutions and cases alleging noise-inducedhearing loss. In relation to such claims, existingarrangements will continue to apply.

Please note that legal proceedingsand other correspondence whichwould previously have beenaddressed to the Chief StateSolicitor’s Office should in future be directed to this address:

Claims Litigation UnitState Claims AgencyTreasury BuildingGrand Canal StreetDublin 2

Phone (01) 664 0900Fax (01) 664 0890Email [email protected] www.stateclaims.ie

Letters


7

LettersFrom: Andrew Dillon, Kinsale,Co Cork

Ibelieve that it is important tobring to your notice certain

matters about which you mightnot otherwise know.

The Solicitors’ MutualDefence Fund Ltd was formedon or about 11 March 1987.This, as you know, is aninsurance company formed forthe purposes of providingprofessional indemnityinsurance to practisingsolicitors and members of theLaw Society.

In the articles of associationof the SMDF Ltd, it is stated atarticle 14 that the number ofdirectors shall not be less thanseven and not more than 11, ofwhom not less than six shall atthe time of their appointmentbe members of the Council ofthe Law Society.

At article 16 it states that theCouncil for the time being ofthe Law Society shall beentitled by notice in writingunder the hand of a dulyauthorised member of theCouncil or officer of theIncorporated Law Society ofIreland lodged at the registrar’soffice of the company at anytime to appoint any person tobe a director either to fill avacancy or as an additionaldirector or to remove anydirector from office, howeverappointed.

There is then a sidebaragreement, dated 1987, madebetween the Solicitors’ MutualDefence Fund Ltd and theIncorporated Law Society ofIreland. In this agreement, itstates at paragraph 5 that theSMDF agrees so far as lieswithin its power not to amendits memorandum and articleswithout prior notice to and inconsultation with the society.

It goes on at paragraph 6 tostate that ‘the company agreesso far as lies within its power soto do to ensure that at all timesa majority of its directors shall

Asking questions of the SMDFbe members of the council ofthe society in accordance withthe articles of association of thecompany in force as at the datehereof’. The agreementcontains other matters whichneed not concern us here.

The worrying aspect of thisfor members of the SMDF isthat the board of directors ofthe company is in effectcontrolled by certain membersof the Council of the LawSociety. In my three yearssitting on the council during1995, 1996 and 1997 I neverheard reference made to theappointment or discharge ofdirectors of the SMDF, nor didI ever note that the matter waslisted on the agenda fordiscussion at all. I am thereforenot certain quite who or howdirectors become elected orchosen by the council of thesociety to sit on the board ofthe SMDF. I am aware that thefollowing directors appear as of12 October 2001. They areMaurice Curran (formersociety president), Elma Lynch(current society president),Laurence Shields (formersociety president), MichaelHoulihan (former societypresident), Patrick Groarke(solicitor), Thomas D Shaw(former society president) andGeraldine Clarke (currentCouncil member). Now, theonly current members of theCouncil are Elma Lynch, LarryShields and Geraldine Clarke. Iassume that Maurice Curran,Michael Houlihan and TommyShaw would be regarded as safepairs of hands.

It must be evident that theboard of directors of theSMDF gets to nominate whichfirms’ solicitors will be on thepanel of defence solicitors inthe unhappy event that one ofthe members of the company issued for negligence or mustcall on their professionalindemnity insurance forwhatever reason. A quick look

at the list of 17 firms ofsolicitors who are on this panelof defence solicitors is of someinterest. Maurice Curran is adirector, and the firm of MasonHayes & Curran is on thedefence panel. LaurenceShields is a director, and thefirm of Laurence Shields &Company is on the defencepanel. So is the firm of MichaelHoulihan & Partners in Ennis;Patrick Groarke & Companyof Longford; Tommy Shaw’sfirm, JA Shaw in Mullingar;and Geraldine Clarke’s firm,Gleeson McGrath Baldwin.Other lucky people are theoffice of Bruce St John Blake(former president). Otheroffices which include formerpresidents are Augustus Cullen& Company, MathesonOrmsby Prentice, Vincent &Beatty, and now PatrickMcEllin & Company ofCounty Mayo.

There is a pattern to all ofthis. There are some excellentfirms of solicitors on thedefence panel, all of whomhave had some intimate contactwith the Council of the LawSociety but who have not beeneither past presidents nor arethey current SMDF boardmembers.

It is not, in my opinion,appropriate that members ofthe board of directors of theSMDF should nominatethemselves to benefit frombeing on the panel of defencesolicitors. Those people maythink it wholly appropriate, butit unfortunately leaves aquestion mark over the reasonswhy such a firm may have been

so appointed. I believe thatdirectors of the SMDF shouldnot benefit in any personal wayor be seen to benefit in anypersonal way other than byreceipt of ordinary directors’emoluments.

It is unfortunate that, havinghad the wisdom to oversee thesetting up of the SolicitorsMutual Defence Fund, thatcertain members of thecouncil, certain formermembers of the Council andformer presidents have seen fitto maintain total control of theSMDF unto themselves.

I believe, and it is only anopinion, that the directors ofthe SMDF should beindependent of, and outsidethe control of, the Council ofthe Law Society.

The SMDF, like any othercompany, has to have anannual general meeting. Iattended this meeting on oneoccasion in 1995. I was theonly member in attendancewho was not either a directoror a solicitor on the defencepanel. It is a pity that none ofyou who are members go tothe AGM to make inquiry howyour defence fund is actuallyoperated.

Both on principle and as amatter of economic choice Iam not a member of theSMDF and therefore have nocurrent right to attend AGMsor, for that matter, to makelawful inquiry about thecompany from its officers.Those of you who aremembers should begin to takean interest and start askingquestions.

From: Fergal Foley BL

Please allow me to congratu-late director general Ken

Murphy on his performance onthe Marian Finucane showrecently, setting the record straight

High praise indeedabout the legal profession afterthe wholly inaccurate attack theprevious day. It is hearteningfor a barrister to know thatthere is somebody able to takeup the cudgels in our defence.

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Letters


9

From: Grainne Murphy,Enniscorthy

On perusing the euro LandRegistry and stamp duty

tables, I am sure I will find themmost useful as and from 1January 2002. However, I notethat in the non-residentialproperty section of the stamp-duty table that there is provision

Conveyancing in euromade for a rate of 3% twice. Inote the usual disclaimer islisted at the top of the table,but obviously this is a misprint.

The Editor replies:Indeed it is. Apologies for anyconfusion arising out of ourmisprinting the table. A correctedversion appears on page 44.

From: Andrew Whittaker, editor,Competition journal

Your Eurlegal article aboutthe heads of the proposed

Competition Bill as published bythe government in July says thatthe bill ‘does not address theissue of whether or not theprohibition on restrictiveagreements, decisions orconcerted practices is applicableto an agreement, decision orconcerted practice that benefitsfrom an EU block exemption’(November issue, p45, item no 12).

Fortunately, the draft bill doesactually cover this, which thepresent Competition Act does not.Head six, section 1(d)(ii) of thedraft says that if you can showthat your agreement, decision orconcerted practice benefits froman individual or block exemptionby the European Commission,or if, though it is caught byarticle 81(1) of the treaty, it issaved by article 81(3), then thiswill be ‘a good defence’.

The Department of

Enterprise, Trade andEmployment’s ‘note’ about thesame head six says that thesection containing the defenceof showing that your agreementis saved by article 81(3) will notbe commenced until the currentnegotiations to reform theadministration of EUcompetition law have beencompleted. It is anticipated thatthat reform will take placethrough the issuing of a new EUregulation, which would givenational courts and competitionauthorities the duty and theright to evaluate the fulleconomic effect of businessagreements, that is, under article81(3) as well as 81(1).

It is in head six, sections 1(a)and 2(a), that the bill proposesto make it an offence in Irishlaw to act in a way that isprohibited by articles 81 and 82of the EU treaty, thus bringingsuch breaches under theresponsibility of theCompetition Authority toinvestigate and prosecute.

Competitive streak

DUMB AND DUMBERFrom: Eugene O’Sullivan,KilkennyThe following is an excerpt fromthe dental report of one of myclients, who fainted and fell in ahospital ward, injuring her jawand teeth: ‘Not having seen Ms X sinceAugust 2000, she attended mypractice on 23/2/2001 withpain in the lower right quadrant.She explained that LR4 wassore with hot/cold stimulicausing the symptoms whichwere lasting up to one hour.

She further explained that herbaby had headbutted her in thisregion a few days previously’.

Eugene O’Sullivan wins thebottle of champagne thismonth. But he would, wouldn’the? He was the only entrant,after all. Send your examples ofthe wacky, weird and wonderfulin the legal world to the Editor,Law Society Gazette, BlackhallPlace, Dublin 7, or you can faxus on 01 672 4877 or e-mailus at [email protected].

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Cover story


10

It is just as well for the many ‘popish’ solicitorsand barristers in Ireland today that in 1962 theStatute Law Revision (Pre-Union Irish Statutes)Act finally repealed (in case there was anydoubt) the 1733 act (7 Geo II: cV) which stated

that no person could be admitted as an attorney orlicensed to be a solicitor in the Four Courts in

Many archaic and bizarre laws were finally repealed in 1962, but some are

still in force. Henry Murdoch takes a light-hearted look at some old legislation

and comes up with some unusual and oddly enlightening examples

of popery have been and daily are greatly eluded andevaded ...’.

The 1733 act also went on to prevent any personfrom being admitted as a barrister or solicitor if theymarried any woman of the ‘popish religion’, orpermitted their children to be educated as Catholics.Such a person ‘shall henceforth be deemed a papist

Dublin ‘who hath not been a Protestant from his ageof 14 years’.

The purpose of the 1733 act is clear from itspreamble: ‘Whereas the laws now in force againstpopish solicitors have been found ineffectual byreason of the difficulty of convicting suchsolicitors … to the great prejudiceof the Protestant interest ofthis kingdom … and whereasby the means of such popishsolicitors, the actsagainst thegrowth

Papists, porter a

Cover story


11

series of other pre-1922 acts that(to quote the preamble to the

statute) ‘may be regarded asspent or which have ceased to

be in force … or which have, bylapse of time or otherwise, become

unnecessary’. However, a quick trawlwould suggest that there are other

laws and practices that were notcaptured by the 1962 act orsubsequent legislation andwhich are curious,enlightening or (in somecases) of questionablerelevance.

Examples relate to grantingcredit on the sale of alcohol,burning bricks, marrying arelation, and the facts that ‘guilty’does not always mean guilty of the

crime charged, that a board ofdirectors can be a court, that a ‘seat’ can

be a place where you cannot sit, that Dublincan have its own specific powers of arrest, and that

we still have the trappings of a monarchy eventhough Ireland has been a republic for more than 50years.

A little of what you fancyWhat does the word ‘tippling’ conjure up? Well,‘tipple’ is defined in a non-legal dictionary as ‘tomake a habit of taking alcoholic drink, especially insmall quantities’. However, the Tippling Act 1735,

perpetual measure by a subsequent statute and iscurrently in force.

The preamble to the act gives a graphicdescription of its objectives: ‘Whereas many greatinconveniences have arisen, and do daily arise, fromthe credit usually given by retailers of strong beer,ale, brandy, rum … and other spirituous liquors, toservants, day-labourers and other persons, by meansof which … [they] are induced and tempted to resorttoo frequently to the houses or shops of the retailersof such liquors, where they often drink to excess, andthereby frequently run into debt, and lay themselvesunder the temptation of purloining their masters’goods to discharge such debts, and do further by thatmeans destroy their health … and are often throwninto gaol, where they lie in a miserable and starvingcondition, to the ruin of themselves and theirfamilies’.

While effectively dealing with a social problem,the 1735 act does raise the question as to whetherbuying a bottle of wine in your local off-licence witha credit card this Christmas gives rise to an offence.

Another brick in the wallOne old law still in force is the prohibition on theburning of bricks in the city of Dublin as provided bythe Burning of Bricks (Dublin) Act 1770. This act,originally named An Act to prevent the PerniciousPractice of burning Bricks within the City of Dublin, orthe neighbourhood thereof, was renamed the Burning ofBricks (Dublin) Act 1770 by the Short Titles Act, 1962,which confirmed that sections 1, 2 and 3 wereunrepealed sections.

and disabled from being a barrister ... or solicitor’.But there was some hope for the repentant, since thedisability could be removed where the person withinone year of such marriage ‘procure such wife to beconverted to the Protestant religion’.

There was no equivocation in the 1733 act.Solicitors and barristers were not only Protestant –they were also male. What a comparison with themodern provisions on equality and discrimination inthe Employment Equality Act, 1998 and the EqualStatus Act, 2000.

The 1962 legislation repealed or amended a whole

which places restrictions on the sale of intoxicatingliquor on credit, was not concerned with the drinkingof alcohol in small quantities. It was, and remains, anenlightening piece of legislation.

The Tippling Act 1735 was originally known as AnAct to Prevent the Evil arising by the Retailers of Beer,Ale, Brandy, Rum, Geneva, Aquavitae, and otherSpirituous Liquors, giving Credit to Servants, Day-Labourers, and other Persons, who usually work or ply forHire or Wages. It was renamed the Tippling Act 1735in 1962. The act was originally intended to be atemporary measure (section 2), but was made a

and burning bricks

Cover story


12

The act states: ‘Whereas large quantities of bricksare frequently burned within the city of Dublin, andin the neighbourhood thereof, by means whereof theinhabitants of the said city are grievously annoyed,and the lives of many weakly persons has been lost… for remedy whereof be it enacted … no personshall make, or cause to be made, burn, or cause to beburned, any bricks within the distance of twomeasured miles from the public lamps of the city ofDublin’.

It is not clear what was in bricks in 1770 thatmade the burning of them so objectionable. Maybeanimal dung had something to do with it!

Keeping it in the familyThe Marriage Act 1537, introduced during HenryVIII’s reign, sets out the degrees of consanguinity(by blood) and affinity (by marriage) relationshipswithin which parties cannot marry. Any marriage inbreach of the prohibited degrees is a void marriage.

For example, a man could not marry hisgrandmother, grandfather’s wife, wife’s grandmother,father’s sister, mother’s sister, father’s brother’s wife,mother’s brother’s wife, wife’s father’s sister, wife’smother’s sister, mother, stepmother, wife’s mother,daughter, wife’s daughter, son’s wife, sister, son’sdaughter, daughter’s daughter, son’s son’s wife,daughter’s son’s wife, wife’s son’s daughter, wife’sdaughter’s daughter, brother’s daughter, sister’sdaughter, brother’s son’s wife, sister’s son’s wife,wife’s brother’s daughter, and wife’s sister’s daughter.Analogous prohibitions applied to women.

The only statutory amendments to theseprohibited degrees were made by the Deceased Wife’sSister’s Act 1907 and the Deceased Brother’s Widow’sAct 1921, under which a man was permitted tomarry his deceased wife’s sister and a woman couldmarry her deceased husband’s brother. Thesechanges were largely motivated by social conditionsarising from wars in which Britain was a participant.

While the remaining prohibited degrees are stillin force, they are now open to challenge followingthe ruling by Mr Justice Smyth in the High Court inJune 2001, in which he granted a declaration thatthe marriage of Mrs Winnie Kavanagh to her lateaunt’s husband was a valid marriage. In this case,counsel for Mrs Kavanagh had argued that the 1535act owed itself to the ‘dynastic difficulties’ of the six-times-married monarch.

Guilty but not guilty?And then we have the ‘special verdict’ introducedduring the reign of Queen Victoria by the Trial ofLunatics Act 1883, which is still in force and whichprovides for a verdict of ‘guilty but insane’.However, this provision has been interpreted by ourcourts as a verdict of acquittal – that is, of ‘not guiltyby reason of insanity’.

The only order which the court may make in thecase of such a verdict is an order that the accused bekept in custody until such time as the executive issatisfied that it is safe to release the accused. This

raises all kinds of difficulties when the accusedregains, or claims to have regained, sanity. Goodexamples of these difficulties can be found in DPP vGallagher ([1991 SC] 1 IR 31), Application ofGallagher (No 2) ([1996 HC] 3 IR 10), andO’Halloran v Minister for Justice ([2000 HC] 1 ILRM234).

When a board of directors is a courtThe board of directors of the publicly-quotedcompany Bank of Ireland is legally called a ‘court’ asa result of its establishment by the Bank of IrelandAct 1781, as amended in 1791 and 1797, and itscharter under these acts.

Under the bank’s first charter, the members of itscourt of directors were required to subscribe to thedeclaration contained in An Act to Prevent theFurther Growth of Popery – so that Catholics werebarred from being appointed to the court. This wasa source of constant embarrassment to the bank inits early years, until the charter was subsequentlyamended.

The bank got itself caught up in the politics ofthe day in other ways. When our Dáil and Seanadwere established, a natural home for them and ahistorical link to the past would have been thebeautiful building known as Parliament House, nearTrinity College. This had been the seat of theprevious Irish parliament some 120 years earlier,until it was prorogued on 1 August 1800 pursuantto the Act for Union of Great Britain and Ireland1800. The British government was taking nochances of another Irish parliament being created,so in selling Parliament House to the Bank ofIreland in 1803 for £40,000, they insisted that thedeed of conveyance contain a provision requiringthe bank to sub-divide and alter the chambers (inwhich the Irish House of Lords and the Irish Houseof Commons had met), so as to preclude their beingused again as public debating rooms. The currentBanking Hall in Parliament House stands partly inthe space previously occupied by the House ofCommons.

When is a seat not a seat?Section 20 of the Intoxicating Liquor Act, 1927provides that a person must not be admitted to atheatre after 9.30pm unless he had previouslyengaged and paid for a ‘seat’ in that theatre. This isto prevent a theatre bar being used as a normal bar.The courts have recently interpreted ‘seat’ asincluding a place of standing (DPP v Tivoli CinemaLtd, [1999 SC] 2 ILRM 153).

In the rare old timesThere are special ‘arrest without warrant’ provisionsin the Dublin Police Act 1842 which do not applyoutside Dublin, ostensibly because Dublin thieves inthe 1840s were more difficult to apprehend in thecity’s narrow alleyways. The act was the subject of areview in 1997 by the High Court, which held thatit was not contrary to our constitution to have

Cover story


13

different arrest provisions in Dublin from the rest ofthe country (Molyneux v Ireland, [1997 HC] 2 ILRM241).

King for a dayDespite the fact that we won our independencefrom Britain in 1922 and have been a republic since1949, judges of the Irish superior courts continue tobe addressed in the language of the Britishmonarchy, for example, ‘My Lord’ or ‘YourLordship’. Judges in these courts continue to wear awig, except when dealing with family law matters.These wigs may have historical importance, but theyare relics of a bygone age associated with royalcourts. District Court judges do not wear wigs andneither the quality of justice in their courts nor therespect shown to their office suffers.

Since the Courts and Court Officers Act, 1995, abarrister or solicitor cannot be required to wear awig in any court. However, most barristers continueto wear a wig out of preference. There are manyreasons advanced for this, including the ‘gravitas’ itmay lend to a younger member of the bar. Acriminal barrister once jokingly remarked that, incriminal matters, the wig was necessary so that thejury could clearly distinguish between the accusedand the lawyers.

While many old statutes and practices are still inforce, there has also been considerable updating ofthe law. For example, the Criminal Law Act, 1997

abolished the distinction between a felony and amisdemeanour, as the distinction over the years hadbecome blurred. The act also repealed a furtherseries of pre-1922 statutes, which had been replacedby more modern provisions or which were nowredundant or outdated – for example, the SundayObservance Act 1695, the Riot Act 1787 (from whencecame the phrase ‘reading the riot act’), the WhippingActs 1820 and 1862, the Hard Labour Act 1822, theTrial of Felonies Act 1836, the South Australia Act1842, the Penal Servitude Acts 1857 and 1864, andthe Garrotters Act 1863.

There are also many old statutes still in force thathave stood the test of time by providing a goodfoundation for their particular area, in some casesbeing subsequently amended to take account ofmodern and EU requirements. Examples are thePerjury Act 1586, the Statute of Frauds 1695, theConveyancing Act 1634, the Registration of Deeds Acts1707 and 1709, the Landlord and Tenant (Ireland) Act1860 – called Deasy’s act – the Partnership Act 1890,and the Sale of Goods Act 1893. These statutes are allalive and well today.

So ‘old’ in law may mean curious, enlightening,and perhaps even dated, but – like wine – notnecessarily bad.

Henry Murdoch is a barrister and author of Murdoch’sdictionary of Irish law and the CD-ROM Murdoch’sIrish legal companion.

G

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News analysis


14

She doesn’t fly, she’s never played rugby,but new Law Society President ElmaLynch does have the dubious distinctionof nearly being thrown out of court fornot wearing the appropriate headgear.

Back in 1970, if you were a female solicitor, hatswere de rigeur for appearances in court. As a newly-qualified solicitor, Lynch kept one in her office.Although the head-covering rule was abolishedshortly afterwards, no-one seems to have told thefashion-police in Cork. Lynch reckoned that thejudge she was appearing before (who was originally

HATS OFFTO ELMA

New president Elma Lynch talks to

Conal O’Boyle about her career

and her plans for her year in office

father was an army officer from west Cork and hermother was a civil servant. But she always had aninterest in the law and was not averse to poppingdown to the Four Courts with her friends during thesummer to see what was going on. Those were thedays when you had to make your entertainment,before the world switched from black-and-white tocolour for most Irish people.

But the Lemass years of the mid-1960s meant thata booming Ireland needed more solicitors, so Lynchopted for law in UCD. Some 31 years later she’snever regretted a minute of it. ‘It’s been a veryfulfilling life for me’, she says. ‘The friends I’vemade have been as been important as the work I’vedone. And I don’t mind taking on something new,some new area of law. I actually find that interesting.I like it when new areas of work open up’.

from Dublin) would have little problem with abareheaded female solicitor, but first she had to getpast the Rebel County’s version of the Taliban.

‘There was a young garda who was on duty’, sherecalls, ‘and he tapped me on the shoulder and said:“You’re not going in without a hat”. Now, the casewas almost settled, and it didn’t actually matter thatmuch, but my junior counsel had to come out to tryto reason with the garda. He pointed out that I was asolicitor and that I was no longer obliged to wear ahat in court because the rules had been changed. Butthe young garda was having none of it. As I recall, hesaid something like: “I don’t care what she wears,she’s not going into that courtroom with nothing onher head”. That was probably about 1972’.

Elma Lynch had no particular family links to thelaw – nor to millinery, for that matter – since her

HATS OFFTO ELMA

News analysis


15

FA

As a young female solicitor in the 1970s, she wasunaware of any ‘glass ceiling’ or sex discrimination inthe traditionally male legal profession. ‘I neverthought there was’, she says. ‘In fact, our malecolleagues were probably nicer to us; they seemeddelighted to have us around. I don’t think anybodyever refused to deal with me because I was awoman’.

Of course, one reason for that might have beenthe development of family law during the 1970s,which, although it was a still a crude instrument,became a real growth area for the legal profession.‘Anywhere I worked’, she recalls, ‘none of the menin the practice ever wanted to do family law. I don’tthink they really liked it, nor had that great anaptitude for it. Now, of course, there are manyrunning very successful family law practices’.

The gender profile of the profession has changedutterly too. When Lynch qualified, she was one ofperhaps 20 women in a class of 120 apprentices. Inrecent years, there have been more femaleapprentices going through Blackhall Place than maleapprentices.

One other change she has noted over the years hasbeen the decline in deference in court. ‘There wascertainly more respect for judges back then’, she says,‘but that’s not necessarily the case any more. Andmaybe that’s not such a bad thing, because there wasa time when the judges were right even when theywere wrong. And no matter how badly they treatedyou, you didn’t speak up. But that’s gone, and it’sright that it’s gone’.

Lynch admits that her own career owes much moreto luck than planning. ‘I’ve always tended to let things

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News analysis


17

Occupation: Solicitor (admitted to Roll of Solicitors in 1970). Partner in theDublin law firm Daly Lynch Crowe & MorrisEducation: Secondary: Loreto Abbey, Rathfarnham, Dublin; third level: BCL(Hons) from University College, DublinLaw Society career: First elected to Law Society Council in 1987. Junior Vice-President 1996, Senior Vice-President 2000, President of the Law Society foryear 2001/2002. Has served on most of the society’s committees during her15-year tenure on Council, including finance, registrar’s, conveyancing andcriminal law

FACT FILEELMA LYNCH

happen rather than worry too much about the future.I’m a very lucky person, but conversely I believe thatthere is nothing you can do to change your luck’. Sofar, the lucky streak has stood her in good stead.

After qualification in 1970, she worked for twoyears with her former master, Benedict Daly, in theDublin firm Wilkinson & Daly, before joiningArthur O’Hagan & Sons as an assistant solicitor.Then, in 1978, she rejoined her former master inthe newly-formed firm of Daly and Lynch. WhenDaly was appointed to the District Court bench in1981, Lynch practised on her own for a while beforeher former assistant solicitor Michael Crowe joinedas a partner in the firm. Four years ago, the firmamalgamated with Kenneth Morris, and the newfirm of Daly Lynch Crowe & Morris was formed.That firm now practices out of the Corn Exchangeon Dublin’s Burgh Quay. Lynch, not surprisingly,tends to look after some family law cases, butprimarily she deals with licensing law, conveyancingand commercial law matters.

As far as she recalls, the only hard career decisionshe had to make was whether to rejoin BenedictDaly. ‘I agonised over that for a while’, she admits.‘It was a very big step because at the same time I wasoffered a partnership in the firm that I was leaving. Imean, who knows if I made the right decision ornot, but my attitude is that it doesn’t matter. I madethe decision so I had to go with it. There was nopoint in sitting around thinking about whether Imight have had an easier life if I had stayed in abigger firm’.

It is this same relaxed manner that now sees ElmaLynch as president of the Law Society for 2001/02.She had been a Dublin Solicitors’ Bar Associationnominee on the Law Society Council for three orfour years, before standing for election to Council inher own right in 1987. She was somewhat surprisedwhen she found herself elected. ‘I mean, I didn’tactually work that hard, you know. It just fell intoplace. I didn’t make a thousand phone calls, askingpeople to vote for me. It just happened’.

During her time on Council, she has sat on theregistrar’s, parliamentary, law reform, conveyancing,criminal, premises and public relations committees,and the Gazette editorial board, as well as chairingthe Finance Committee two years ago. She alsospent some years as a member of the DisciplinaryTribunal. Given this track record, it’s no surprisethat she believes the Law Soceity is doing a good jobin representing its members’ interests, but she doesfeel that there’s always room for improvement. Forexample, she’s worried that the huge growth in thenumber of solicitors in recent years may lead to acorresponding decline in the collegiality that hastraditionally been a hallmark of the profession.

‘At our recent AGM’, she says, ‘a young femalesolicitor from Kerry stood up to ask whether we hadany plans to introduce a mentoring programme fornewly-qualified solicitors. She was quite right, andwe do need such a programme. I know when I firstqualified, if I didn’t know how to do something, I’d

find out who did and I’d phone them. But maybe Ijust had a bit of a hard neck! I suppose it’s regrettablethat we’ve come to the point where we need astructured mentoring programme, but it may benecessary to counteract the feeling of isolationexperienced by some young practitioners’.

As president of the Law Society, Lynch will have atough battle on her hands if the government pushesahead with its plans to introduce a new PersonalInjuries Assessment Board. But she’s in no mood tocompromise on such a crunch issue.

‘I don’t think it is in the public interest’, she says.‘You have to ask yourself why is the governmentdoing this. Is it just to cut solicitors’ fees, is it tobring insurance premiums down or is it to reduce theamount of damages paid out to victims ofnegligence? I suspect that in large measure it’s just apolitical football – but ordinary people are going tobe very badly affected. And I intend to fight it everystep of the way’.

During her term of office, Lynch will be presidingover celebrations to mark the 150th anniversary of thegranting of the Law Society’s charter. She believesthat this should be an opportunity to reflect on theprofession’s heritage and to reaffirm its commitmentto the most rigorous professional ethics and conduct.

‘Solicitors have made a great contribution to Irishsociety over the years, and we have been able tochange with the times’, she argues. ‘But the onething that should not change is our fundamentalbelief that the interests of the client always comefirst. Now, that doesn’t mean we can use this as anexcuse for treating our solicitor colleagues in anunprofessional way. It means that we are here toserve the needs of the public as a whole. We’ve doneit marvellously for 150 years, and we have everyreason to be proud. As president, I will beencouraging my colleagues to reflect on ourtraditional values and never to lose sight of the codeof ethics and conduct that make us a uniqueprofession.

‘We’re still here after 150 years, so we must bedoing something right’.

Elma Lynch. Living proof that you don’t need ahat to get ahead. G

Business


18

Once upon a time, for most Irishcompanies raising capital meant a tripto the bank to ask for a loan. But sincethe mid-nineties, investors have beenplaying an increasing role in funding

small businesses in this country. In fact, venturecapital became one of the buzzwords of the boom –in some quarters you were nobody if you weren’t inthe process of raising it.

Venture capital is precisely what it sounds like.Typically, an investor provides finance for a companyin return for a shareholding in it. Instead of joiningthe list of creditors that have to be paid off at somepoint, they share the risk of the business failing. But inreturn, they expect, well, a return. This means that theinvestment’s value should be considerably enhancedwithin a defined period of time, and possibly that thestake can be sold at a decent profit if the company

Over the last ten years, venture capitalists have poured hundreds of millions

of pounds into Irish companies, and many of the beneficiaries were small

businesses. The cake may be getting smaller but, for the right companies,

there are still plenty of chances to get a slice. Barry O’Halloran reports

NothingM

AIN

PO

INTS • Venture

capitalinvestmentsin smallbusinesseshave grownrapidly sincethe mid-nineties

• Investors are morecautious, but goodopportunitiesstill available

• Need forcrediblebusinessplans andgoodmanagement

Business


19

itself is sold or even floated on the stock market.The money generally comes from three sources:

Irish institutions and funds, foreign investors, andprivate individuals. According to the last survey fromthe Irish Venture Capital Association (IVCA), the bodythat represents Irish investors, its members placed £376million with 400 companies in the four years to 31December 2000.

The report, compiled by law firm MathesonOrmsby Prentice for the association, shows that Irishfunds and institutions invested £164 million in 144companies last year. This was a considerable increaseon the previous year, when £140 million was placedwith 128 businesses.

The survey was based on a 100% response fromIVCA members, and the association calculates that thefigures represent over half of all venture capitalinvestment activity. A global private equity reportproduced jointly by PriceWaterhouseCoopers andmultinational investor 3i helps to complete the picture.It shows that a total of $250 million (or around £217million*) was invested in Irish companies last year.

It also gives an idea of just how fast the market grewover the last five years. In 1997, venture capitalinvestment totalled just $43 million (£37 million*),meaning that in the three years to 2000, the annualrate of growth was 55% – well ahead of the globalaverage increase for the same period of 35%.

The main beneficiaries of this investment activitywere small businesses, many of them at the beginningof what their backers hoped would be long andprosperous careers. Jim Meates, senior associate in lawfirm A&L Goodbody’s commercial department, saysthat while a few of the investments were of the order of£10 million to £15 million, most were in the £1 millionto £3 million bracket. The modest amounts themselvesindicate that the businesses involved were small.

Forever blowing bubbles?Technology drove much of the growth. The IVCAestimates that the hi-tech sector mopped up over 70%of the funds invested here. More than 71% ofcompanies benefiting from a series of funds operatedjointly by Enterprise Ireland and a range of private

g venturedsector partners were software developers, while 9%were in communications technology.PriceWaterhouseCoopers/3i puts it at 80%.

There were two reasons for this. First,technology companies (particularly Internetcompanies) became the Holy Grail for investorsbetween 1998 and 2000. Because many of themhad flotation plans, getting in on the ground floormeant there was a possibility of lucrative returns ifand when they went to the stock market.

Second, technology companies have to spendlarge amounts of money on research anddevelopment before they can start generatingdecent levels of revenue. This – and the level ofrisk involved – means that they are not attractiveto lenders, but the opportunity of getting a goodreturn at the end of the day makes them moresuitable for venture capital.

However, there are fears that since thetechnology bubble has burst (or, depending onyour point of view, sanity returned to themarketplace), the money is beginning to dry up.Some of the more pessimistic commentatorspredicted earlier this year that it could be halved.Luckily, they were wrong.

According to Goodbody’s Jim Meates, a recentreport shows that private equity investment in thiscountry totalled $215 million (£186 million*) so farthis year. ‘That means that it’s at almost the samelevel as last year’, he says.

At this stage, nobody is willing to predict whatthe figures for the full year will look like. MOP’scorporate finance partner, Andrew Doyle, whoworked on compiling the IVCA survey, believesthat there has been a slow down, but says it’simpossible to put a figure on it at this stage. GavinBourke of Trinity Capital, a fund that specialises insupporting technology companies at the earlystages of their development, says that privateindividuals and some foreign investors are lessactive than last year. This was foreseen as far backas a year ago, but before the World Trade Centerattack. That event could have a more medium-term impact on the market here, as US investors

Business


20

may be less willing to invest their money outsideAmerica.

For the moment, the good news is that there iscash available for investment in potentiallyprofitable businesses. Shay Garvey of DeltaPartners, which this year closed off its euro 90million (£71 million) equity II fund, recently saidthat there are about 500 ‘backable’ companies inIreland. He added that the quality of businessesapproaching his firm is higher than last year.

Investors are not just looking for largecompanies or only at the technology sector. Aglance at the current Enterprise Ireland seed andventure capital fund report shows that between1994 and 1999 the state agency and its privatesector partners backed everything from amushroom grower and distributor to a companythat makes machines for removing chewing gumfrom footpaths. That was in addition to a raft oftechnology and communications businesses.

As a result of the recent shake-up in that sector,investors now avoid the consumer-orienteddotcom businesses, and instead focus on thosedeveloping their own products. For instance,Bourke says Trinity’s focus is primarily on softwarecompanies that own the intellectual property intheir products and that sell mainly to thecorporate sector. He adds that ‘given the risksinvolved in investing in early-stage technologycompanies, it would be important that thecompany have the potential to realise significantreturns for investors’.

The man with the planSo just how do investors judge a company’spotential, and how does the company demonstrateit? Anyone seeking venture capital has to puttogether a business plan. According to GavinBourke, this should include realistic financialprojections and details of the actual fundingrequirements. He also stresses that in the currentclimate companies should be able to show thatthey can fund themselves for a period of over twoyears.

The business plan should also have clear details

about the company’s products, its target marketand the potential to develop both. ‘It’s importantto know the compelling reasons for the corporatepurchaser to buy what the company is offering’,says Bourke. ‘Also, how close the company is tothat marketplace, how well it knows andunderstands potential customers, and if it has soldproducts or services to this marketplacepreviously’.

MOP’s Andrew Doyle says that the people bestplaced to draw up the business plan and providethis information are those running the company –the management team who will implement theplan. Investors regard management as crucial tothe business, and its perceived ability to run thecompany and deliver on its targets will be centralto its success in getting funding.

As well as a credible business plan, themanagement will need to show that it is on top ofthings by getting regulatory details right. JimMeates emphasises that before a company seekscapital, it should ensure that it has a full register ofmembers and directors, and that its annual returns,accounts and any other documents that should befiled with the Companies Registration Office areactually filed and available. If it’s appropriate, thereshould be complete records of any intellectualproperty owned by the company.

‘When it comes to corporate governance, youreally should have your house in order’, Meatessays. ‘You’d be surprised by the number ofcompanies that do not, and it is one thing that wesay to people who come to us looking for advice inthis area’. After the investment is secured,investors will want to see that the company has aproperly constituted board that carries out itsbusiness in accordance with the Companies Acts.

In some cases, they will appoint a representativeto the board to safeguard their interests. In asimilar vein, some venture capital companies willprovide on-going support and advice to businessesin which they have invested, particularly if they areat the early stages of their development or growth.

Taking the first stepsAssuming that your business clients have drawn upa business plan and have their houses in order, thenext question is: where do they go? A variety ofinstitutions and companies are active in the Irishmarket. These include companies like Trinity,which is currently cash-rich (having just raisedfunds itself), and Delta, which works largely withearly-stage funding for technology companies. Anumber of others, such as ACT Venture Capitaland Hibernia Capital Partners work with a broaderrange of businesses. ICC, the former state bank,also has an active venture capital arm.

A number of high-profile Irish companies notnormally associated with financial services havealso been active in this market, such as Smurfit(through Smurfit Venture Investments) and, moresurprisingly, Guinness Ireland, which operates a

SOURCES OF VENTURE CAPITAL• ACT Venture Capital Ltd, Jefferson House, Eglinton Road, Donnybrook, Dublin

4, tel: 01 2600966• Campus Companies Venture Capital Limited Partnership, Arancoast Ltd,

Molesworth House, 8/9 Molesworth Street, Dublin 2, tel: 01 6790818• Delta Partners Ltd, ICL Building, South County Business Park, Leopardstown,

Dublin 18, tel: 01 294 0870• Enterprise Ireland, Merrion Hall, Strand Road, Dublin 4, tel: 01 857000• Hibernian Group plc, Haddington House, Haddington Road, Dublin 4, tel: 01

607 8707 • ICC Venture Capital, 72-74 Harcourt Street, Dublin 2, tel: 01 415 5555• Trinity Venture Capital Ltd, Dunleary House, Dun Laoghaire, Co Dublin, tel: 01

2846135

Business


21

fund in partnership with Ulster Bank.Julie Sinnamon, manager of investment services

with Enterprise Ireland, says that those seekinginvestors either approach venture capital housesdirectly or they go to the corporate finance sectionsof the various Irish stockbroking houses (which atthis stage are all based in Dublin).

‘Corporate financiers act as intermediaries’, sheexplains. ‘They will first of all talk to the peoplelooking for money and then go out and approachthe people providing the funds with a view togetting one or a number of them on board – often anumber of funds will invest in one company’.

Enterprise Ireland itself is playing a role in theventure capital market. Working in partnership withprivate sector investors, the state agency hasestablished and managed 15 funds with a total valueof euro 90 million (£71 million) since 1995.Enterprise Ireland provided euro 44 million (£35m),while its partners provided the balance.

The latest figures available for these funds showmany of them were not fully subscribed by the endof last year. For example, only £2.95 million of the£7.5 million available from the Alliance investmentcapital fund was taken up. The campus companies’venture capital fund had committed just over £2

million of the £6 million at its disposal. This fundplaces between £30,000 and £500,000 in businessesoperated by staff, students and graduates of Irishcolleges.

The 15 funds are aimed primarily at small andmedium-sized businesses in the early stages of theirdevelopment. Some of them will provide a secondround of funding to companies that they havebacked and whose success indicates that they areworth taking to the next stage of growth.

If you or one of your clients is preparing to dip atoe into the country’s still large pool of venturecapital, there is one final thing worth remembering.Valuations have fallen dramatically from the headydays of 1999 and early 2000. This means thatventure capitalists are looking for proportionatelylarger shareholdings for their money than last year.

But it is this that is keeping them interested.According to Gavin Bourke of Trinity, the morerealistic valuations mean investment opportunitiesare more attractive. ‘For cash-rich venture funds,this is a very good time to be investing’, he says. * $/£ exchange rate calculated at $1.15 to £1.

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

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Tort


22

In a legal context, the ‘neighbour principle’relates to the category of people to whom weowe a duty of care, and, if such a duty of careexists, whether the loss claimed is one to whichresponsibility attaches.

The Supreme Court judgment in GlencarExploration plc v Mayo County Council (unreported, 31July 2001) affects both of these questions, but mainlythe former. The result of the decision clarifies thelaw in this jurisdiction by interpreting the SupremeCourt’s earlier decision in Ward v McMaster ([1985]IR 29 HC; [1988] IR 337 SC) in a way that bringsour law back into line with recent English decisionssuch as Murphy v Brentwood DC ([1991] 1AC 398),which effectively closed the floodgates that it wasfeared had opened following previous decisions, inparticular Junior Books Limited v Veitchi CompanyLimited ([1983] 1AC 520).

The facts of the caseBefore dealing with the Glencar judgment itself, it isuseful to outline briefly the facts of the case. As farback as 1968, the plaintiffs had been granted tenprospecting licences for exploring for gold depositsin an area south of Westport, Co Mayo. Between1968 and 1992, Glencar spent close to £2 million inprospecting for gold under the terms of theirlicences. In 1991, they entered into a joint venturewith another company, Newcrest Mining Limited, amajor Australian gold producer, as furtherinvestment would be required to enable theencouraging results to be turned into commercialmining production. However, shortly after this jointventure was set up, Newcrest withdrew from theproject after, it was alleged, the inclusion by MayoCo Council in its February 1992 county developmentplan of a complete mining ban in Mayo.

In subsequent judicial review proceedings, BlayneyJ found that the inclusion of the mining ban was ultravires but adjourned the plaintiff’s damages claim withliberty to apply. In due course, the damages claimcame before Kelly J in the High Court, whodelivered judgment on 20 August 1998 in which hedismissed the claim for damages. While Kelly J

NeighbourhoWe used to be taught in religion class that the answer to the well-known

question ‘who is thy neighbour?’ was ‘thy neighbour is all mankind’. But for

lawyers, the answer must be more circumspect. Michael Peart explores the

issues surrounding duty of care in the light of a recent Supreme Court

decision

found that Mayo Co Council was negligent inadopting ultra vires the mining ban, he neverthelessdecided that the negligence in question did not giverise to any right to damages. In effect, he found thatwhile the council had been negligent, it was not inbreach of any duty of care owed to the plaintiffs as aresult of which they suffered loss and would beentitled to damages. The plaintiffs appealed thisfinding to the Supreme Court.

The Supreme Court decisionThe relevant part of the judgment of the chiefjustice for the purpose of this article is that dealingwith the ‘neighbour principle’. In other words, thequestion was whether the plaintiff was a body towhich the duty of care was owed and, if so, whetherthe loss suffered as a result was one which couldsound in damages. The chief justice dismissed theappeal, but in doing so set out the history anddevelopment of the law, both in this jurisdiction andin England.

In order to appreciate the significance of KeaneCJ’s judgment, one must compare the developmentof the neighbour principle both in this jurisdictionand in England. Until the late 1980s, there wasmuch convergence between the two jurisdictions.However, with the 1991 overruling of previousdecisions, the law in England was revised. We,however, did not follow suit. We now appear to havereconverged following the Glencar judgment, not somuch by an overruling of Ward v McMaster, but by areinterpretation of it.

The starting point is the notorious ‘snail in theginger beer’ case of Donoghue v Stephenson ([1932]AC 562), so beloved by all students of the law ofnegligence. Prior to this case, some contractualrelationship with the tortfeasor was necessary beforea claim for damages could succeed. Mrs Donoghue,however, had consumed at least a portion of a bottleof ginger beer that she had been given by a friend,who had bought it in a café. Lord Atkin famouslyfound that in spite of the absence of any contractualrelationship between the manufacturer of the gingerbeer in question and Mrs Donoghue, she was

MAI

N P

OIN

TS• GlencarExploration plcv Mayo CountyCouncil

• Case lawdealing withscope of dutyof care

• ContrastbetweenEnglish andIrish positions

Tort


23

ood watch

entitled to recover damages for negligence. Following this decision, recovery continued to be

restricted to claims arising from injury to the personor injury to property. The position was that, providedthat the necessary ‘proximity’ was establishedbetween a plaintiff and a defendant, and that the‘foreseeability’ of injury was established, recovery ofdamages was possible. ‘Pure economic loss’ – asopposed to damages for injury to the person orproperty – remained irrecoverable, in general, untilthe decision in Hedley Byrne Limited v Heller &Partners ([1964] AC 465), when pure economic loss

caused by negligent misstatement was for the firsttime found to be recoverable in damages. For almostthe next 20 years, the situation remained that,negligent misstatement apart, pure economic loss wasirrecoverable both here and in England.

Criteria of careAfter Donoghue v Stephenson, the principlesdetermining the range of the duty of care were atleast unclear, no precise definition being decided inEngland. Much judicial ingenuity was used from timeto time to bring otherwise irrecoverable losses withinthe scope of Donoghue v Stephenson. The concepts of‘proximity of the parties’ and ‘foreseeability’ were tothe forefront, but the question (which arose if thefloodgates were not to be opened) was: what limitson recovery still existed, especially following HedleyByrne v Heller & Partners? Ultimately, in Anns vMerton Borough Council ([1978] AC 728), LordWilberforce’s ‘two-stage test’ emerged.

The test meant that, provided the necessaryproximity exists, only some considerations (such aspublic policy) ought to deprive a plaintiff of hisrecovery of loss. This clearly had the potential toextend the scope of the duty of care to a wider rangeof claimants, particularly in the area of pureeconomic loss, since there is no mention in LordWilberforce’s statement of excluding pure economicloss. It was not surprising that there was no universalacceptance of this formula.

Perhaps the high-water mark in this regard camein Junior Books Limited v Veitchi Company Limited,when pure economic loss was found to berecoverable by a plaintiff company against a flooringfirm that was sub-contracted by contractorsemployed by the plaintiff company to carry out workto its factory premises. This was a significantextension beyond what had been previously decided,since the plaintiffs were once-removed from directcontractual relations with the defendants. It shouldbe noted at this stage that it was Junior Books that wasfollowed in this country in Ward v McMaster, butmore will be said about this later.

Following the decision in Anns v Merton BoroughCouncil, there was much judicial disquiet in England,the feeling being that Lord Wilberforce’s ‘two-stagetest’ had been thought to do more than in fact wasintended by the decision. For example, in Governorsof Peabody Donation Fund v Sir Lindsay Parkinson &Company Limited ([1985] AC 210), Lord Keith ofKinkel expressed the view that ‘in determiningwhether or not a duty of care of a particular scopewas incumbent on a defendant, it is material to take

Tort


24

into consideration whether it is just and reasonablethat it should do so’ (emphasis added).

This view, as we shall see, appeals to Keane CJ inhis Glencar judgment, in restricting his view of thescope of the duty of care. This concept was expressedby Lord Bridge in Caparo Industries plc v Dickman([1989] 1 AER 798; [1990] 2AC 605) as follows: ‘thesituation should be one in which the court considersit fair, just and reasonable that the law should impose aduty of given scope on the party for the benefit ofthe other’ (emphasis added).

Ultimately, in Murphy v Brentwood DC, the Houseof Lords overruled the Anns decision and all casesflowing from it. In that case, Lord Keith of Kinkelstated that, in his opinion, ‘it is clear that Anns didnot proceed upon any basis of established principle,but introduced a new species of liability governed bya principle indeterminate in character but having thepotentiality of covering a wide range of situations,involving chattels as well as real property, in which ithad never hitherto been thought that the law ofnegligence had any proper place’.

He went on to state that he would ‘hold that Annswas wrong decided as regards the scope of anyprivate law, duty of care resting on local authoritiesin relation to their function of taking steps to securecompliance with building bye-laws or regulations andshould be departed from. It follows that Dutton vBognor Regis UDC ([1972] 1QB 373) should beoverruled, as should all cases subsequent to Annswhich were decided in reliance on it’.

The Irish positionHaving seen the development of the law in Englandup to the overruling of the Anns ‘two-stage test’, wemust now look at the situation in Ireland in order toappreciate the significance of the Glencar judgmentin relation to the scope of the duty of care.

As Keane CJ states in Glencar: ‘The decisions inDonoghue v Stephenson and Hedley Byrne v Heller &

Partners have been considered and adopted in ourcourts in a number of cases and unquestionablyrepresents the law in this jurisdiction’.

He also points out that the ‘two-stage test’adopted by Lord Wilberforce in the Anns case hasbeen thought to be the appropriate test in thiscountry, having regard to the decision of theSupreme Court in Ward v McMaster. In this regard,he refers to the third edition of McMahon andBinchy’s Law of torts.

That work contains four pages of extremelydetailed commentary and footnotes dealing with thevirtues of the Ward v McMaster decision, and inparticular with the judgment of McCarthy. It goesto some lengths to point out that the ‘three-stepapproach’ of McCarthy J is the correct one here.That approach was that if the proximity andforeseeability requirements were satisfied, then(provided there was no compelling exemption basedon public policy) the plaintiff could succeed. Theauthors comment that as recently as July 1998 inForshall and Fine Arts Collections Ltd v Walsh,Barrington J (Lynch and Barron JJ concurring)stated that he had ‘no doubt’ that the plaintiff ‘fellwithin the proximity or neighbourhood principle asdescribed in the cases of Ward v McMaster andCaparo Industries plc v Dickman’. The authors expresspuzzlement at the inclusion of Caparo in thissentence, given the fact that it differs from Ward vMcMaster.

But in Glencar, the chief justice carries out anextensive examination of the judgment in Ward vMcMaster in the High Court (Costello P) and thenexamines the Supreme Court judgments in the samecase, which were delivered by Henchy J andMcCarthy J. In effect, he downgrades the ‘three-stage test’ of McCarthy J to mere dicta. He states inthis regard:

‘Since Finlay CJ and Griffin J expressed theiragreement with the judgment of Henchy J andMcCarthy J, it is not clear that the observations ofthe latter in relation to the two-stage test in Annsnecessarily formed part of the ratio of the decision.Given the far-reaching implications of adopting inthis jurisdiction a principle of liability in negligencefrom which there has been such powerful dissent inother common-law jurisdictions, I would not beprepared to hold that further consideration of theunderlying principles is foreclosed by the dicta ofMcCarthy J in Ward v McMaster’.

He then concludes that ‘there is in my view noreason why courts determining whether a duty ofcare arises should consider themselves obliged tohold that it does in every case where injury ordamage to property was reasonably foreseeable, and

LORD WILBERFORCE’S ‘TWO-STAGE TEST’Dealing with the scope of the duty of care in Anns v Merton Borough Council([1978] AC 728), Lord Wilberforce stated the ‘two-stage test’ in the followingterms:

‘First, one has to ask whether, as between the alleged wrongdoer and theperson who has suffered damage, there is a sufficient relationship of proximity orneighbourhood, such that, in the reasonable contemplation of the former,carelessness on his part may be likely to cause damage to the latter, in whichcase a prima facie duty of caring exists.

‘Secondly, if the first question is answered affirmatively, it is necessary toconsider whether there are any considerations which ought to negative, or toreduce or limit the scope of the duty, or the class of person to whom it is owed, orthe damages to which the breach of it may give rise’.

Tort


25

the notoriously difficult and elusive test of“proximity” or “neighbourhood” can be said to havebeen met unless very powerful public policyconsiderations dictate otherwise. It seems to me thatno injustice will be done if they are required to takethe further step of considering whether, in all thecircumstances, it is just and reasonable that the lawshould impose a duty of a given scope on thedefendant for the benefit of the plaintiff, as held byCostello J at first instance in Ward v McMaster’.

Established principlesThis re-examination by the chief justice of the caselaw dealing with the scope of the duty of care, andthe test which ought to be applied, is clearly resonantof the speech of Lord Keith of Kinkel in Murphy vBrentwood. Clearly, the chief justice is of the view thatWard v McMaster went too far and departed from‘established principles’. However, there is certainly acontrary view, namely that confining the resolutionof cases to ‘established principles’ prevents recoveryin otherwise deserving cases by refusing to extendthe range of cases in which recovery ought to bepossible. Some plaintiffs will now be effectivelywithout a remedy for actual losses suffered throughno fault on their part.

Admittedly, the chief justice’s decision has left thejudiciary some discretion in the matter by statingthat a judge ought to ask whether ‘it is just andreasonable that the law should impose a duty of agiven scope on the defendant’, but against this itmust be said that greater uncertainty will now existas to whether recovery will be possible. After all,judges vary in the exercise of that discretion.

It should be remembered that in the overruling ofthe Anns decision in Murphy v Brentwood, Lord Keithstated that in doing so ‘it follows that Dutton vBognor Regis Urban District Council ([1972] 1 QB 373)should be overruled, as should all cases subsequent toAnns which were decided in reliance on it’. TheDutton case involved a defective house. The builderhad built the house, having obtained planningpermission. The defendant’s inspector had inspectedthe foundations during the course of construction,and had passed them. On completion of the house,the builder sold it to a purchaser who, some monthslater, sold it to the plaintiff. Shortly after Mrs Duttonmoved in, the house began to subside because ofdefective foundations. The claim was for the cost ofrepairs – that is, pure economic loss. Lord Denningfound for the plaintiff, even though she was asubsequent purchaser. He found that the defendantcouncil owed a duty of care on the Donoghue vStevenson principles, namely a duty owed to theultimate consumer.

Lord Denning had this to say in Dutton: ‘Thedamage here was not solely economic loss. It wasphysical damage to the house. If Mr Tapp’ssubmissions were right, it would mean that if theinspector negligently passes the house as properlybuilt and it collapses and injures a person, thecouncil are liable; but if the owner discovers thedefect in time to repair it – and he does repair it –the council are not liable. That is an impossibledistinction. They are liable in either case’.

Many would feel that such a plaintiff ought torecover her losses, yet this is the very case that wasoverruled in Murphy v Brentwood, since Anns hadfollowed it. If a similar case occurred in Ireland,recovery would have been possible under the Wardv McMaster principles, but, following Glencar, onecould not be certain of success.

The so-called floodgates argument is that, by anexpansion of the scope of the duty of care, claims ofan indeterminate class will be extended to anindeterminate range of people and that an unfairburden will be cast upon local authorities and othersimilar bodies, which presumably these daysincludes insurance companies. That is the publicpolicy consideration underlying the restriction ofthe scope of the duty of care. The contraryargument is, of course, that these are the verybodies who have shoulders broad enough to carrythat burden, and in the case of insurance companiesthey are paid premiums calculated to meet theclaims. On the other hand, the deprived plaintiff isin no position to bear the loss. Time will tellwhether the judges will use their discretion in away which displays some sympathy for theunfortunate plaintiff who suffers a loss or whetherthey will yield to these so-called public policyconsiderations.

Finally, dealing with the question of recovery foreconomic loss, there are ominous signs in the chiefjustice’s judgment when he states: ‘we were notinvited in the present case to overrule our earlierdecisions in Siney [referring to Siney v DublinCorporation] and Ward v McMaster. I wouldexpressly reserve for another occasion the questionas to whether economic loss is recoverable inactions for negligence other than actions fornegligent misstatement and those falling within thecategories identified in Siney and Ward v McMasterand whether the decision of the House of Lords inJunior Books Ltd v Veitchi Company Ltd should befollowed in this jurisdiction’.

We will watch that space with interest!

Michael Peart is a partner in the Dublin law firmPearts.

G

The chief

justice’s

decision has

left the

judiciary some

discretion in

the matter by

stating that a

judge ought to

ask whether

‘it is just and

reasonable

that the law

should impose

a duty of a

given scope

on the

defendant’

Gadgets


26

Tech trends

Don’t ask, don’t tell.Downloading music files

from the Internet may be insome sort of legal limbo, but ifyou happen to have filled yourMac’s hard-drive with yourfavourite tunes, then the newiPod from Apple will be rightup your street. Weighing in atonly six and a half ounces, thisnew digital music player has a5GB hard disk that holdaround 1,000 songs,which isequivalentto 100CDs. Its

Sing while you’re swinging

Taxing times

ten-hour battery and state-ofthe art skip protectionmeans that you should beable to listen even whilebungee jumping and itwon’t miss abeat. Thedownside is theiPod onlyconnects toMacintoshcomputers,

through Apple’s proprietaryFireWire connection, andyour Mac must have Apple’sdigital music software iTunes2. But it is a lot faster than

any other MP3 player onthe market: Apple claims

If your firm is serious about its‘clean desk’ policy, then

maybe it should take a look atthe new slimline

NetVista X41from IBM.

The

Fat boy slimmed

Well, it’s about timesomeone invented one

of these. You know the wayyour mobile phone waits untilyou’ve mislaid your chargerbefore it runs out of juice?And it always when you need

it most?The newScribblekeyringphonechargercan

change all that. Designed toclip on a keyring and poweredby an ordinary 9-volt battery,the keyring charger is availablefor most models of mobilephone, including Nokia,Ericsson, Motorola,Panasonic, Sony, Siemens andSagem. Available on-line fromScribblePDA.com for aroundstg£6.95 (€9.50).

Working on a computercan be taxing, but

sometimes that’s no bad thing.Indeed, it’s what you’d hope forwhen searching the new digitalresources from the goodpeople at Tax World, who aimto impart a wealth ofknowledge, including thecomplete text of the Irish taxcode, legislative and case-lawprecedents in both Ireland inthe UK, and concisecommentary. Previouslyavailable only as the threebound volumes that collectivelymake up the TaxBook, you cannow opt for a disk-basedversion, TaxDisc, which is fullysearchable, or an on-lineversion, TaxLive 2001, which iscontinually updated by theauthors. TaxDisc or a years’ access toTaxLive will cost about £400 fora single user, more for a multi-user network licence, depending onthe number of users and optionsselected. For further information,contact Tax World at 01 8728881 or visit their website,www.taxworld.ie.

company claims that the PC’s‘integrated flat panel design’screen takes up to 75% lessdesk space than standarddesktop computers. Despite itsslim appearance, the NetVistastill manages to pack a punch.It comes with a Pentium 4processor, and – depending onyour specifications – a harddrive of up to 40GB, memoryof up to 2GB, powerful 3Dgraphics and 16MB of videomemory. And, if you can get

away with it on work time, the16x DVD with integrated

audio and stereo speakersshould maximise your

viewing pleasure.Available from computer

outlets for between£1,379 (€1,750) and

£2,157 (€2,740)excluding VAT,depending onspecifications.

A littlebelter

that the iPod can download anentire CD’s worth of music injust ten seconds.Available for around £361.59(€450) excluding VAT from theApple Store (www.store.apple.com)and computer outlets.

Gadgets


27

Sites to see

Urban legends (www.snopes.com). You remember thatprediction from Nostradamus that did the rounds followingthe events of 11 September? Utterly bogus – and this site willtell you why. This weird and wacky site is dedicated toverifying or debunking urban legends or stories that sound toogood to be true. The perfect place to visit if you want to tellyour best friend he’s a bare-faced liar and get away with it.

Tired of ringing ‘back to base’to catch up on your calls

after a morning in court? So wasnorth Dublin solicitor JamesKennedy of Michael J Kennedyand Co in Baldoyle – except thathe decided to do somethingabout it. The end result isSmartNote, a new service that

links your mobile phone toyour office PCs and convertsyour e-mails to text messagesthat can be sent directly to yourmobile. The service alsoincludes a calendar function toremind you of scheduledappointments. According toKennedy, the service was

originally tailoredfor the legalprofession but isnow taking off amongother disciplines, such asengineering and consultancy.The service costs €100 a yearfor single user or €500 a yearfor multiple users.

For further information, contactJames Kennedy at SmartNote on01 832 1057, [email protected] or log on towww.smartnote.ie for ademonstration.

Nowhere to hide from your e-mails now

Cross-border business (www.borderbizlaw.com). This site ishosted by Monaghan solicitors Morgan McManus andprovides business law advice to both start-up and maturebusinesses on both sides of the border, including advice oninsurance, taxation systems, employment law, and planning andenvironmental law in both jurisdictions. It also provides linksto useful government and state-agency websites.

Partnership law (www.partnershiplaw.ie). Practicalinformation for anyone interested in partnership law, from DrMichael Twomey, author of Partnership law. The site includessections on recent developments in this area of law and asummary of cases from common-law jurisdictions.

Dublin Solicitors’ Bar Association (www.dsba.ie). Everythingyou need to know about the largest bar association in thecountry but were afraid to ask. Includes details of forthcomingevents and seminars, information on the association’s helpline,and an on-line version of the DSBA newsletter The Parchment.

Stockwatch


28

Desperately Uncertain economic times and market volatility may discourage direct

investment in shares. But there are products available that may help

cushion your investment from risk, writes Michelle O’Keefe

Michelle O’Keefe: There isa variety of investmentvehicles available to privateinvestors that, in abalanced portfolio, can helpto diversify your capital andreduce your exposure torisk

Worsening globaleconomic conditions and

on-going uncertainty about thepossibility of further terroristattacks have made security anoverriding concern for manypeople, both in relation to theirinvestments and to theirpersonal lives. With thedownward slide in share pricesover the past year, manyinvestors – particularly olderinvestors – are reluctant to putall their money into the stockmarket.

But you can still findproducts that provide bothcapital guarantees and capitalgrowth over a specified timeperiod, although with a lowerpotential for growth thanmight apply to directinvestment in shares. Theseinclude:• Unitised with-profit bonds• Unit-linked funds• Tracker bonds

• Index funds• Unit trusts/investment trusts.

Before investing in any of theseproducts, however, you shouldseek independent expert advice,as product offerings varyconsiderably from institution toinstitution.

Unitised with-profit bonds With the on-going volatility inthe stock market, there is now ahuge appetite among Irishinvestors for products withcapital guarantees. With-profitbonds allow you to invest in arange of assets, such as shares,property, cash and governmentgilts, and provide guarantees forthe repayment of capital at theend of the investment term.These products declare annualbonuses that are alsoguaranteed, provided the bondis held to maturity.

Recent rates of return onwith-profit bonds have been inthe region of 6% gross a year.However, one particular productis currently providing a 9.5%gross guaranteed rate of returnon the first anniversary forinvestment amounts of £50,000plus – a far cry from currentdeposit rates. It should benoted, however, that thisguarantee only applies if youhold the bond for the full term.If these types of products areencashed early, specifiedpenalties apply.

Another point to bear inmind is that in a rising market

this type of investment will notproduce the same returns asdirect share investments.

With-profit bonds can also beused to provide an annual incomeand can be written in trust.Under current legislation, whenyou exit a with-profit bond youmust pay tax at the standard rateof 20% plus a 3% exit levy onany gains made. However, youhave no further tax liability.

Unit-linked funds Unit-linked funds provide asimple way for people to makeinvestments. These are ‘pooled’funds where your money iscombined with that of otherinvestors under the managementof a life-assurance or investmentmanagement company. Thesefunds allow for diversification ofholdings across a broad spread ofinvestment vehicles, includingshares, cash, gilts and property.You can also choose from fundsthat provide exposure to specificmarkets or sectors.

Unit-linked managed fundsare most suited to investors whohave neither the time nor theexpertise to manage theirinvestments and to investors whohave small amounts of funds butwho want maximum exposure tothe markets.

Take, for example, guaranteedmanaged unit-linked funds.These provide a capital guaranteeat the end of a specified period(typically five years), letting youparticipate in the market withoutany risk to your capital. But in

AVERAGE GUARANTEED MANAGED FUNDSPERFORMANCE*

0% 20% 40% 60% 80% 100%

83%

33%

12%

2%

10 yr

5 yr

3 yr

1 yr

*Performance to 16 November 2001. Past performance may notbe a reliable guide to future performance. (Source: Moneymate)

Stockwatch


29

seeking stability

AVERAGE PERFORMANCE OF IRISH UNIT LINKED FUNDS*

reducing your capital risk, youalso reduce your exposure to thestock market and thus yourpotential for growth.

Underlying investments inguaranteed managed funds tendto be in international sharestogether with a large proportionin secure investments such ascash, gilts and corporate bonds.The taxation of these funds isthe same as described for with-profit bonds.

Unit trustsThese are pooled investmentvehicles offering investors theopportunity to diversify theirholdings though collectiveinvestments. Professionalmanagers, generally based in thelarge investment houses in theUK and elsewhere, invest thepooled funds in a variety of assetclasses, usually concentrating onspecific markets or sectors.

Examples of unit trustsinclude specific equity funds,securities funds, money marketfunds, and futures and optionsfunds. Strict regulations govern

unit trusts, aimed at restrictingexcessive exposure and ensuringreasonable diversification andliquidity.

The main difference betweenan offshore unit trust and aunit-linked fund is that unit-linked funds are structured aslife-assurance policies.

Tracker bondsTracker bonds are offered by anumber of investmentmanagement companies. Theyallow you to invest in shareswith little or no risk to yourcapital. Some of these productsprovide 100% capital

guarantees at the end of theproduct term, while others onlygive an 85-90% capitalguarantee but allow for higherequity participation with thepotential for higher growth.

Tracker bonds are known as‘passive’ investments becausethe rate of return achieved istied directly to the performanceof one or more stock markets. Ifthe market index has risen bythe end of the investment term(typically three to six years),then you would receive thecapital guarantee plus a profitlinked to a percentage of themarket’s index. If the marketfalls, you will still get yourcapital back at the end of theterm.

These products are becomingincreasingly popular in view ofthe current market volatility, butyou should be wary of productsquoting a large potential rate ofreturn. Ideally, this type ofinvestment should only be usedfor a portion of your funds, astracker bonds are quite inflexibleand do not allow for withdrawalof capital during the investmentperiod.

Index fundsThese funds also track theperformance of well-known

indices as closely as possible. Inthe US, index funds are one ofthe largest investment vehiclesfor private investors and theyare becomingly increasinglypopular in Ireland. These fundsare ‘passively’ managed, whichmeans that the investment houseproviding the product does notuse its own expertise orjudgement to identify shares –instead, it simply aims to trackthe performance of the chosenindex as closely as possible.

The difference between anindex fund and a tracker bond isthat an index fund is open-ended, meaning you can leaveyour money in the fund for aslong as you wish. There are nocapital guarantees with an indexfund, but you benefit from thefull growth in the market (ratherthan a set percentage of thegrowth as is the case withtracker bonds). Index funds areregarded as medium-riskproducts while tracker bonds areconsidered low risk.

These descriptions shouldgive an insight into the varietyof investment vehicles availableto private investors in additionto direct investments in shares.In a balanced portfolio, thesetypes of investments can help to diversify your capital andreduce exposure to risk.

Michelle O’Keefe is a director ofDavy Stockbrokers’ private clientsunit. Please note that investmentsmay fall as well as rise in value.The information provided here isintended as a guide only and not asa substitute for professional taxadvice. You should consult your taxadvisor for detailed advice aboutthe rules that apply in yourindividual circumstances.

G

Type of fund 1 year 3 years 5 years 10 years Managed growth fund -7.39% 16.74% 59.23% 141.88% International equity fund -17.66% 21.81% 57.21% 134.55% General equity fund -14.39% 16.82% 63.71% 162.13% Guaranteed managed fund 2.21% 11.63% 33.47% 83.38%

*Performance to 16 November 2001. Past performance may not be areliable guide to future performance. (Source: Moneymate)

AVERAGE MANAGED FUNDS PERFORMANCE*

Managed International Generalgrowth equity equity

200%

150%

100%

50%

0%

*Performance to 16 November 2001. Past performance may notbe a reliable guide to future performance. (Source: Moneymate)

3 yrs 5 yrs 10 yrs

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SORRENTO 2002Law Soc ie ty o f I r e land Annua l

Confe rence

4-7 April, 2002

Solicitors’ Mutual Defence Fund Limited

Jardine Lloyd Thompson IrelandLimited

SPONSORS:

He has many interests, business and social, outside the law.These include membership of the Advisory Board of the IrelandFund and his interest in Shannon Development, of which he isa former Chairman.

His hobbies include opera, films and swimming; with his wifeJoan, he likes to spend his holidays at opera seasons inEurope and the U.S.A.

Cyril Forbes

Cyril Forbes is Deputy Chairman of Jardine Lloyd ThompsonIreland Limited, the Irish arm of Europe’s largest owned insur-ance brokers Jardine Lloyd Thompson Group plc. Until 1998 hewas Managing Director of Kennedy Forbes Ltd, the niche cor-porate brokers he set up in 1974, which merged with Jardines.

Cyril has over 35 years insurance experience as both an under-writer and a broker at Lloyd’s and in Ireland. He is an acknowl-edged expert in solicitors’ professional indemnity insurance.In 1987 he spearheaded, with the large solicitor firms, theintroduction of competitive insurance premiums in Ireland forthe profession, at the same time as the SMDF started offeringcover.

In 1997 he was part of the team advising the influentialNovember Group in London who wanted, and ultimatelyobtained, an open market insurance situation for solicitors inEngland and Wales.

In 1999 Jardines were appointed brokers to the SMDF, andnow are the largest handlers of solicitors’ professional indem-nity insurance in Ireland – based on their reputation for provid-ing competitive premiums, pragmatic problem resolution andhands-on risk management.

Amongst his directorships, including being a past-Chairman ofthe Crafts Council of Ireland, he is currently a director of DublinDocklands Development Authority.

David Byrne

David Byrne was appointed European Commissioner for Healthand Consumer Protection in September 1999. His responsi-bilities include European policy and legislation on food safety,the establishment of the European Food Authority, the regula-tion of genetically-modified organisms in Europe, the responseto the BSE crises, the implementation of the new EuropeanPublic Health Strategy, developing consumer confidence ininternet transactions, as well as representing the interests ofEuropean consumers in new policy developments.

Before becoming European Commissioner, David Byrne wasAttorney General. In that role, he was one of the negotiatorsof the Good Friday Agreement in April 1998 and oversaw themajor constitutional amendments required by that Agreement.

After obtaining a Bachelor of Arts at University College Dublin,he was called to the Irish Bar in 1970, on qualifying as aBarrister at Law at the King’s Inns. He was called to the InnerBar in 1985. He is a Fellow of the Chartered Institute ofArbitrators and also an Honorary Member of the American BarAssociation. He was recently conferred with an HonoraryFellowship of the Faculty of Public Health Medicine.

MESSAGE FROM THE PRESIDENTDear Colleague,

I have pleasure in inviting you to join me atthe Society’s Annual Conference inSorrento on 4th to 7th April, 2002.

The charming city of Sorrento is quaintlypositioned along the majestic Amalficoastline. I look forward to meeting youthere, for what I hope will be a stimulatingConference in a truly enchanting location.

This year the theme of the Conference will be "ProfessionalIndemnity: When Saying Sorry Isn’t Enough" and you cannot failto be impressed by the panel of distinguished speakers who willaddress a wide range of topics.

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

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

Elma LynchPresident

BUSINESS SESSION

Professional Indemnity Insurance: When Saying Sorry isn’t Enough

SPEAKERS WILL INCLUDE:

Michael Houlihan

Michael Houlihan is senior partner in Michael Houlihan &Partners, Solicitors, in Ennis, Co. Clare. He has been for manyyears a panel solicitor to the Solicitors’ Mutual Defence Fund anda board member of the Fund.

He qualified in 1963 and joined his father, the late Ignatius M.Houlihan, in the family firm in Ennis and built up an extensivepractice in subsequent years. He specialised in personal injurylitigation, company law and local government law, but there isscarcely a branch of the law in which he has not been profes-sionally involved.

He has been closely associated with the Council of the LawSociety for the past 30 years; he was first elected to the Councilin 1970 and was elected President in 1982/83.

Michael Houlihan is very well known abroad; he has for manyyears attended the sessions of the American Bar Association andthe International Bar Association.

PACKAGE A – based on Charter Flight - Cost: £685.00/ 870.00 per person sharing

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

n Charter Flight4 April 2002 depart Dublin at 9.00 am arrive Naples 1.00 pm7 April 2002 depart Naples 6.00 pm arrive Dublin 8.00 pm(All times are local and subject to Air Traffic Control restrictions. However, we are endeavouring to secure later departure and earlier return flight times so that we may facilitate those wishing to travel from Cork, Shannon, etc. Exact times will be detailed in your booking confirmations. The charter flight will be allocated strictly in order of bookings received.)

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

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

PACKAGE B – based on Scheduled Flight

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

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

n Delegates intending to travel on scheduled flights should return a completed reservations form as soon as possible with details of their preferred travel arrangements.

REGISTRATION FEE

n Payable by delegates only and not accompanying persons £74.81/ 95.00

BOOKING ARRANGEMENTS

n The closing date for receipt of bookings is 18th February 2002.

n Please complete the reservations form and return with deposit of £300.00/ 380.00 per person travelling.

n Contact DetailsIf you would like any further information please contact any member of the Organising Team:Sarah Ellins (Law Society) Tel: (01) 672 4823 Email: [email protected] Gerry Griffin (Chairman) Tel: (01) 490 1185James McCourt Tel: (01) 660 6377Gerry Doherty Tel: (01) 834 4255Mary Keane Tel: (01) 672 4800

n For information on extending your stay please contact the conference travel agent:Alan Benson/Angela O'Brien, Sadlier Travel, 8-9 Westmoreland Street, Dublin 2.Tel: (01) 670 4880 Fax: (01) 670 4883 Email: [email protected]

CANCELLATIONS

n Delegates are advised that cancellations made after 18th February 2002 will be subject to a 100% cancellation charge (full invoiced amount).

n Travel insurance will be automatically invoiced at approximately £20.47/ 26.00 (actual cost to be confirmed) per person unless delegates indicate on the reservations form that they have their own insurance and provide the name ofthe company with whom they are insured.

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

All delegates will be accommodated in the Sorrento Palace****. The hotel offers a choice of restaurants, bars and tealounges, room service, TV, air-conditioning, outdoor swimmingpool, tennis courts, boutiques and hair and beauty salon.

SOCIAL PROGRAMME

n The conference will open on Thursday evening with a Welcome Reception for all participants.

n On Friday an optional all-day tour is available to Positano via hydro-foil boat tour along the Amalfi Coast past Capri and dock in Positano for a 31/2 hourstopover for lunch (not included) and time at leisure.

n On Saturday afternoon a half-day tour to Pompeii (tour price includes entrance to Roman ruins) is also available.

n The Conference Banquet will be held on Saturday night. Dress – smart informal.

PROGRAMME

THURSDAY, 04 APRIL 2002

Afternoon Arrival at Naples Airport. Transfer to hotel for check-in and conference registration

Evening Welcome Reception for all participants - sponsored by Osborne Recruitment

Venue: Sorrento Palace

FRIDAY, 05 APRIL 2002

All day Day tour to Positano departing at 10.00 am Hydro-foil boat trip along the Amalfi coastline. 31/2 hour stop-over in Positano for shopping and lunch (not included). A list of recommended restaurants will be supplied.

Evening At leisure

SATURDAY, 06 APRIL 2002

Morning Conference Business Session – Professional Indemnity: When Saying Sorry Isn’t Enough - sponsored by Jardine Lloyd Thompson Ireland Limited and Solicitors’ Mutual Defence Fund Limited

Venue: Conference Centre, Sorrento Palace

Afternoon Half-day tour to Pompeii (2.00 pm – 5.30 pm)

Evening Reception – sponsored by Bank of Ireland Asset ManagementConference Banquet and Dancing – sponsored by Bank of Ireland

Venue: Sorrento Palace (Dress: smart informal)

SUNDAY, 07 APRIL 2002

Morning Departure

Books


35

Book reviewsLiber memorialis:Professor James C BradyOonagh Breen, James Casey and Anthony Kerr (editors). Round Hall Sweet & Maxwell (2001), 43 Fitzwilliam Place, Dublin 2. ISBN: 1-85800-215-X. Price: £98.

Professor James C Brady wasabove all a gentleman and a

scholar – an attribution at timescasually made when someone haspassed on, but not so in thisinstance. The deep well ofaffection for Jim that wasmanifested at his obsequies atUniversity Church, Dublin, inJune 1998 is now reflected in amore concrete way. This book,published in his memory,contains some 20 essays and isedited by three of his formercolleagues from the UCD lawfaculty.

The essays address a widerange of legal topics, most ofwhich are in theequity/property/succession areaswith which Jim himself wasparticularly associated. Theessays are all of a high quality, aswould be expected from thepantheon of essayists whocontributed. The contributorsare mainly members of the UCDlaw faculty but include other

luminaries, such as Chief JusticeRonan Keane and formerCircuit Court judge JohnBuckley (both of whom wouldhave known Jim professionallyduring their respective periodsas members of the Law ReformCommission), Professor JohnWylie (of property andconveyancing textbooks fame),Professor Desmond Greer ofQueen’s University, Belfast (oneof Jim’s third-level alma maters)and Dr Albert Power (thedirector of education andtraining at the Institute ofChartered Accountants inIreland and formerly holding asimilar position in the LawSociety).

It would be inappropriate fora reviewer of such a volume tomention some essays as beingbetter than others. This book isboth for those who wereprivileged to know Jim – as aperpetuation of his memory – aswell as for every lawyer, legal

practitioner and academic alike,who may browse the bookconfident in the knowledge thatany essay selected may be readand appreciated for its ownintellectual worth in less than anhour. However, common tosuch compilations, some essayshave titles clearly designed toattract the casual reader, such asGrating expectations? Theprotection of legitimate expectationsin European Community law andin autochthonous Irish law (GavinBarrett), “A false, mawkish andmongrel humanity”? The earlyhistory of employers’ liability inIreland (DS Greer), or Prayersunanswered: how contract lawviews religion (Paul AMcDermott), to mention a few.

This Liber memorialis beginsin the most appropriate waywith the text of the addressdelivered at Jim’s funeral massby his lifelong friend, SeanBallance, who accompanied Jimthrough his Newry Christian

Brothers schooling and thenQueen’s. Sean, with utmostrealism, referred to the Jim somany knew and admired in thefinal phase of his life in this way:‘Jim suffered from multiplesclerosis for over 20 years and ...he fought it in every way for allthat time. He worked right upto the end at the very limit ofhis physical strength. Jim neversuccumbed to self-pity, JimBrady was a valiant man’.

Sean concludes by quotingfrom Emerson: ‘a friend maywell be recognised as themasterpiece of nature’. Many,like Sean, will have lost amasterpiece with Jim’s passing,but at least now there is theconsolation of having thismemorial volume of essays –each of which Jim would havebeen delighted to grade A+.

Michael O’Mahony is a partner inthe Dublin law firm McCannFitzgerald.

G

This book is a portrayal ofmembers of the Findlater

family, Dublin merchants, atwork and at play, in politics,religion and business over thelast 175 years. Sir William(Billy) Findlater, solicitor, twicepresident of the Law Society,brewery proprietor, member ofparliament for Monaghan andthe man who endowed thecoveted Findlater scholarship forsolicitors, is among theFindlaters portrayed in thisfascinating book.

The author, the fifth Irish

Findlaters: the story of a Dublin merchant family1774-2001Alex Findlater. A&A Farmer, Beech House, 78 Ranelagh Village, Dublin 6. ISBN: 1-899047-69-7. Price: £35 hardback.

generation of Findlaters,modestly states that theFindlaters were neitherascendancy nor peasantry, butwere part of the new merchantand professional class of the time,first Presbyterian and thenChurch of Ireland. An ancestor ofthe author, also called Alexander,was in the 1860s the benefactorof the Abbey PresbyterianChurch, Parnell Square, knownas Findlater’s Church.

The book chronicles manysocial issues. The author isconscious of past religious

differences in Ireland over thethree centuries of the familyhistory and notes there was a lotof insecurity as the Protestantsmoved from being part of aBritish Isles religious majorityto an island minority in Ireland.This is illustrated by the storyof the delegation dispatched bythe General Synod of theChurch of Ireland on 12 May1922 to enquire of MichaelCollins ‘if they were permittedto live in Ireland or if it wasdesired that they should leavethe country’. The author states

that this sensitivity caused thevast majority of Protestants tokeep their heads well below theparapet and refrain from statingany views on church and state,even in the privacy of the family.The author states that the familykept ‘mum’ about the greatpower of the Catholic Church inthe middle of the 20th centuryand did not have any strongpolitical allegiances.

The portrayal of Billy, laterSir William, Findlater (born in1824), and a member of theFindlater family who is well-

Contract LawPart of the Butterworths

Irish Law Library

JB/JF/10-01

Orders are subject to a charge of £3.50 p&p in the UK and £4.50 p&p for overseascustomers. Prices are subject to change without notice.

We like to keep our customers informed of other relevant books, journals and information services produced by Butterworths Tolley or by companies approved by Butterworths Tolley. If you do not wish to receive such information, please tick the box.

ISBN: 1 85475 360 6 Product Code: CLGuide Price: £95.00 Format: HardbackPublication date: November 2001

✂

To reserve your copy on 21 days approval simply call 00 44 (0) 20 7400 2713 orfax your order to James Farmer on: 00 44 (0) 20 7400 2570.

www.butterworths.com

Name:......................................................................................................

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By Paul Anthony McDermott

Contract Law will appeal to both practitioners and studentsalike. For students, it sets out the law clearly and explains it instraightforward language. It will appeal to practitioners becauseit considers every major Irish contract law case and explores indetail practical matters such as construction of contracts,breach of contract and contractual remedies.

A comprehensive text onContract Law■ Completely up-to-date: Covers recent legislative develop-

ments such as the Electronic Commerce Act 2000 and theDistance Selling Regulations 2001

■ Comprehensive (over 1,000 pages) and indepth treatment ofthe subject

■ Written in a clear, straightforward style

The AuthorPaul Anthony McDermott is a well established author having already written two books for Butterworths Res Judicata and Double Jeopardy and Criminal Law (co-author), both ofwhich have been very well received.He is a practicing barrister and lecturesin UCD on this topic and in theHonourable Society of King’s Inns.

PRIORITY ORDER FORM : Contract Law

Books


37

known to lawyers, is an interest-ing aspect of the book. Billy wasadmitted as a solicitor in 1846,starting his professional career atthe beginning of the famine of1845-9. He subsequentlypractised on his own account asWilliam Findlater & Co,ultimately taking his nephews,Edward Neptune Blood andAdam Lloyd Blood into partner-ship. The practice continueduntil 1956, finally closing on thedeath of Ken Lloyd Blood, sonof Adam Lloyd Blood.

The author states that Billystarted his public career – asmany do – in the organisation oftheir profession, by becoming amember of the Council of theLaw Society in the late 1850s.

Billy was elected president ofthe Law Society in 1877/8. Inthe same year, he endowed thesociety with the FindlaterScholarship at a cost ofapproximately £62,000 inpresent day terms (then £1,000)and in 1900 added to its valueby transferring £865, estimatedat today’s value as £52,000, ofrailway debenture stock to beheld on the same trust as hisoriginal gifts. The scholarship iscurrently awarded for the bestoverall performance in theprofessional and advancedcourses and is regarded in manysenses as the ‘blue ribbon’ of thesociety’s educational awards.

Billy Findlater becameinterested in politics and was

elected to the House ofCommons in 1880 and activelyparticipated in the debates onGladstone’s Land Act of 1881and other legislation. Although astaunch liberal, Billy supportedGladstone, but like mostPresbyterians he was notprepared to go down the homerule path. He was out ofparliament by the timeGladstone brought in his firstHome Rule Bill. In 1896, he waselected president of the LawSociety for the second time,apparently despite a resolutionpassed some 20 years before thatno-one would be eligible for re-election to that office. In 1896,Billy Findlater received a letterfrom the lord lieutenant offering

him a knighthood during hisyear as president of the LawSociety. Sir William wasprominently involved in theDublin Artisan DwellingCompany, was deputylieutenant of County Dublinand served for 44 years as amember of the Council of theLaw Society. He died in April1906 at the age of 82.

This book is easy to read andgorgeously produced. AlexFindlater has written ahandsome and accessible bookwhich will be enjoyed byanyone who loves Dublin and isinterested in business.

Dr Eamonn Hall is company solic-itor of Eircom plc.

G

What first attracted me tothis paperback volume

was its title. As one who is stilluninformed about the impactof e-commerce on such areas aselectronic signatures, distanceselling, offer and acceptance onthe web, the Unfair contractterms directive and so on, thisbook is obviously a valuableeducational resource at anintroductory level.

It is a short book (342 pagesof text) compared to existingmajor works on the law ofcontract, and that itself has acertain appeal, particularly forstudents and others who do notnecessarily want an in-depthand comprehensive treatmentof this area. Having said that,however, the book is repletewith case references and dealsextensively with all aspects ofcontract law in a very readable

and clear way. In his preface,the author states that ‘this textis not meant to be, or to betreated as, a direct alternativeto any of the weightier tomeson the subject. Rather it isperhaps to be viewed as anabridged introduction to thesubject, which is handled in afar more detailed way in thoseworks. I have set out theguiding principles only’.

Each chapter contains all thebasic principles, and refers tothe leading relevant cases. Atthe end of each section, whereappropriate, the authorincludes a section dealing withthe effect of various pieces of e-commerce legislation, such asEU directives, the statutoryinstruments implementingthem, the Electronic CommerceAct, 2000, and so on. There isalso an entire section dealing

generally with e-commerceregulations.

The author qualified as asolicitor in England and Walesin 1995, having worked for alarge London firm as acommercial lawyer since 1993.He enrolled as an Irish solicitorin 1999 and now practises withthe Dublin firm McCannFitzGerald. The experience ofworking in both jurisdictionsputs him in an excellentposition to write a work such asthis.

His treatment of the subjectmatter displays an expertise andknowledge which enables himto write with authority. Anyreader of this book will find itan excellent guide through thelaw of contract, and bothlawyer and non-lawyer will findthe additional material on thearea of e-commerce an

invaluable introduction to adeveloping area of law.

Most of us have begun toconduct business on theInternet, even if it is only topurchase a book or a planeticket. However, only when weread this book do we realisewhat an uncertain world wehave entered. Judicialinterpretation of e-commercelegislation is in its infancy andwill no doubt contribute to agreater understanding of thelegislation in due course. In themeantime, this work is anexcellent and useful source ofknowledge to those as yetunburdened by any legalknowledge in the area of e-commerce. I wholeheartedlyrecommend it.

Michael Peart is a partner in theDublin law firm Pearts Solicitors.

G

Contract law in an e-commerce ageSimon P Haigh. Round Hall Sweet & Maxwell (2001), 43 Fitzwilliam Place, Dublin 2. ISBN: 1-85800-224-9. Price: £38.

This is a basic book on thelaw for companies. It has a

mere 148 pages of basicinformation followed by a shortsix-page index. The list of casescited and of legislation runs to

Company lawCatherine McConville. Round Hall Sweet & Maxwell (2001), 43 Fitzwilliam Place, Dublin 2. ISBN: 1-85800-172-2. £11.95 paperback.

less than 15 pages. And that’s it.So it is not an attempt to

push Keane, Courtney or Fordeoff the bookshelves. But, takenon its stated terms, it is aworthy publication. Part of the

publisher’s Nutshells series, itaims to provide ‘a concise andstraightforward synopsis’ ofcompany law. This it does well.

It is aimed primarily at thelaw student. Practitioners are,

or we should be, students. Inour careers, we dare not stoplearning. We must remain opento updating and revision. Formany of us who practicecompany law, not solely, but as

Books


38

part of general practice, thisbook can only be useful.

If you want to check on whata ‘Bell Houses clause’ is, orclarify the distinction between acompany’s objects and itspowers, simple explanations arein chapter four. Kept awake atnight by the rule in Foss vHarbottle? Go to chapter 10. It’sbrief, but it’s there.

Chapter 12 on the duties ofthe directors is useful. Itreminds us of the basiccommon-law duties of directorsto act bona fide for the benefit of

the company; to exercise duecare, skill and diligence (the testis partly objective, mainlysubjective); and to account tothe company for all personalbenefits received as a result ofbeing a director.

Importantly, the chapter ondirectors’ duties does refer tocase law and statutorydevelopments, whereby thedirectors also owe a duty tocreditors of the company incases of doubtful solvency andinsolvency, when the directors’minds should turn towards the

creditors. The statutory dutysince 1990 to have regard to theinterests of the employees is alsonoted.

Finally, the 1998 CrindleInvestments v Wymes case, whichwent to the Supreme Court, isreferred to, suggesting a dutyalso to certain shareholders incircumstances of mutualconfidence and trust. The oldsimple formula that the directorsonly owe a duty to the companyhas, in the best legal traditions,its own train of exceptions.

Surprisingly, there is no

mention of the most significantcompany legislation since 1990,the Company Law EnforcementAct, a hugely significant piece oflegislation, enacted earlier thisyear.

Yet, on its stated terms, this isa good book. It is a useful primerand can only help students of allages towards an understanding ofthe sometimes byzantinecomplexities of company law.

Pat Igoe is principal of the Dublinlaw firm Patrick Igoe andCompany.

G

Iliked the Irish legal companion.I found it easy to navigate

and (although I only viewedsome of the entries) thecontent appeared to be up-to-date and useful. The Folio-Views format, which will befamiliar to users of the AG’soffice’s Irish statute book CD-ROM, allows quick and

Murdoch’s Irish legal companion Henry Murdoch. Available from Lendac Data Systems (tel: 01 677 6133). Price: £100 for a personal edition, £210 for a small firm license.

Companion would be of particularuse to busy practitioners, allow-ing them to orient themselvesquickly in any area of Irish law.

John Mee was dean of the faculty oflaw at UCC until October 2000. Heis a trustee director of the British andIrish Legal Information Institute(BAILII).

G

The hyperlinks throughoutthe text add significant value tothe product as compared to aprinted book. Another nicefeature is the inclusion of the fulltext of Irish acts and statutoryinstruments which are mentionedin the text (and which aretherefore likely to be the mostimportant). I thought that the

effective searching of thedictionary.

SPANISH LAWYERS

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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.

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4b Arran Square, Dublin 7

Telephone: (01) 873 2378

IrishStenographers

Ltd

AM

EMBER

OF

INTERNATIONAL PRACTIC

EG

ROU

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Report of Law Society Council meeting held on 6 September 2001Motion: Solicitors’ accountsregulations‘That this Council approves theSolicitors’ accounts regulations2001’.Proposed: Gerard DohertySeconded: Owen Binchy

Gerard Doherty reported thatcorrespondence had beenreceived from two bar associa-tions, two solicitors, theInstitute of CharteredAccountants and the Chairmanof the ConveyancingCommittee in relation to theamended draft regulations cir-culated in July. As a result, asmall number of further amend-ments were being proposed.These provided:• For an exemption from the

requirement to lodge toclient account forcheques/drafts made out to apurchaser’s solicitor orendorsed by the client, wherethe cheque/draft was requiredto be paid without delay to avendor in respect of the bal-ance of the purchase price ofthe property. The fact thatthis had occurred must bereflected on the client’s file

• That a solicitor was requiredto transfer interest fromclient to office account eitherwithin three months of thedate on which it had beencredited by the bank orbefore the end of theaccounting period, whicheverwas the later

• That, when calculating thetotal of credit balances due toall clients, a solicitor couldnot offset debit balances aris-ing in relation to one clientagainst credit balances relat-ing to another client

• For an extension in the timeperiod for preparing the six-monthly and annual reconcil-iation statements from onemonth to two months.

Patrick O’Connor expressedreservations about adopting theregulations without circulatingthem again to the profession.

Mr Doherty said that thesociety had gone to a great dealof trouble to acquaint every barassociation with the contents ofthe regulations and had alsogone a great deal of the way toaccommodate their concerns.As president of the DSBA,David Martin confirmed thatthe association believed thatthe regulations should beadopted. The regulations hadbeen circulated to all members,meetings had been held andcorrespondence was enteredinto with the society, a specialgeneral meeting had been heldand only one voice had beenraised in opposition to the reg-ulations.

Hugh O’Neill said that thesociety had consulted with itsmembers for almost six monthsand had taken on board all rea-sonable suggestions. At somestage, the consultation had tostop and the society had toexercise its regulatory functionin order to protect clients’monies and the compensationfund. Simon Murphy con-firmed that the Southern LawAssociation had unanimouslyapproved the regulations at itsmost recent meeting.

John Dillon-Leetch said thathe did not believe that furtherconsultation would yield anyadditional meaningful points.Philip Joyce said that the pur-pose of the regulations was toidentify, maintain and protectclients’ monies in the hands ofsolicitors and they should beapproved. James McCourt saidthat any solicitor who wishedhad been afforded an opportu-nity to comment on the regula-tions. The DSBA sub-commit-tee was satisfied with the finaldraft regulations and he urged

that the Council would approvethem.

On a show of hands, theCouncil overwhelminglyapproved the draft regulations,as amended, with two votesbeing recorded in opposition totheir adoption.

Continuing professionaldevelopment (CPD)Michael Peart outlined thecontents of a discussion docu-ment on CPD. He said that,because of increased demandsand pressures, the number ofpractitioners attending CLEcourses was not as high as itmight be and the CPD propos-al represented a mechanism toencourage solicitors to attend.The proposed scheme wouldrequire 12 hours of CPD over atwo-year period, four of whichcould be by means of privatestudy.

The president and the secre-tary of the Law Society ofScotland outlined the Scottishexperience of the introductionof CPD and noted that theScottish scheme required 20hours of CPD a year, five ofwhich must be in management.It operated as an honour-basedsystem, with practitioners com-pleting a CDP card. They con-firmed that a direct benefitfrom the introduction of CPDhad been a rejuvenation ofmany of the local bar associa-tions.

While the principal catalystfor change in Scotland hadbeen the master policy for pro-fessional indemnity insurance,there was now a culture of on-going training within the pro-fession and an acceptance ofthe benefits of the scheme. Atthe outset, the society hadintroduced CPD only for itsyounger members. However, itwould strongly recommend itsintroduction for all members of

the profession from the begin-ning.

In relation to enforcement, itconfirmed that a solicitor wouldnot be referred to theDisciplinary Tribunal for fail-ure to attend the required num-ber of hours. However, a solici-tor would be referred to the tri-bunal for falsification of hisCPD records.

James MacGuill said that hedid not believe the Irish legalprofession would favour theintroduction of compulsoryCPD. He believed the systemwould be open to abuse andwould be pointless unless therewas a system of testing andsanctions for non-compliance.

Kevin O’Higgins said hewould favour some form ofincentives for attendance, per-haps by means of reduced pro-fessional indemnity insurancepremiums. Michael Irvine saidit was the very basis of thescheme that there was a desirewithin the profession for life-long learning and he felt amajority of the professionwould support the proposal.

Patrick Casey supported theproposal, provided there wereadequate resources and thedecentralisation of information,including links between the barassociations and the LawSociety library. Orla Coyne saidthe DSBA saw CPD as the wayforward, provided there wereincentives and clarification inrelation to the nature of anysanctions that would apply.

John Harte said that the ben-efits of CPD should first bepromoted to the profession,together with a commitmentand assurances in relation to theprovision of support and ade-quate resources by the society.Stuart Gilhooly expressed sur-prise that there should be anyopposition to the proposal. Hesaid that, even if there were a

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small number who didn’t partic-ipate wholeheartedly, the vastmajority would benefit from thescheme. He believed that com-pliance should be monitored byway of random audit.

Edward Hughes noted thatassociations other than local barassociations would also like to beinvolved in the provision ofCPD. John Costello queriedwhether a requirement of 12hours was sufficient. He believedthat topics such as ethics, clientcare and practice managementshould be covered. Anne Colleysuggested that the society mightconsider sanctioning a minimum

of 12 hours in each two-yearperiod, while incentivising anyextra hours undertaken.

Moya Quinlan queriedwhether the question of legiti-mate expectation had been con-sidered, particularly in relationto older members of the profes-sion. The Council agreed, by 32votes to 1, that the task forceshould proceed to develop itsproposal with the Council’s sup-port in principle for the conceptof CPD.

Report of the PracticeManagement Task ForceThe Council approved the

report of the task force, whichhad been chaired by WardMcEllin, and agreed that prac-tice management advice andinformation should be provid-ed by the Law Society to itsmembers, that this adviceshould be delivered at a macrolevel and should be targeted atthe small to medium-sizedpractice and that the societyshould not engage in the provi-sion of consultancy-type adviceand should not attempt todeliver assistance on a one-to-one basis.

Given the limited resourcesavailable, it was agreed that the

society should concentrate on:• Publishing a practice man-

agement newsletter or sup-plement to the Gazette on abiannual basis

• Conducting an annualbenchmarking survey amongthe profession

• Publishing a suite of manage-ment publications such as theMarketing handbook

• Developing a practice man-agement section on the soci-ety’s website

• Expanding the CLE pro-gramme to include seminarson practice management topics.

SympathyThe Council observed aminute’s silence in memory ofpast president, Gerald Hickey,who had died recently.

Motion: Euro changeover regulationsOn the proposal of GerardDoherty, seconded by SimonMurphy, the Council unani-

Report of Law Society Council meeting held on 5 October 2001

mously approved the SolicitorsActs, 1954 to 1994 (EuroChangeover) Regulations 2001.

Motion: Pro bono reportOn the proposal of JohnCostello, seconded by MichaelPeart, the Council noted therecommendations contained inthe report of the Pro Bono TaskForce, which envisaged the

establishment of a charity inde-pendent of the society to pro-mote pro bono work within thelegal profession. Mr Costellorecorded his appreciation to thesociety for its financial contri-bution to the charity. The pres-ident noted a letter receivedfrom FLAC recording itsappreciation for the £52,240contribution to FLAC received

from the society’s members todate in the current year.

EU directive on money launderingJohn Fish reported that,because of the recent tragicevents in America, there wasincreasing pressure within theEU to enact measures of thenature contained in the direc-

Following the successful completion of thefirst Diploma in commercial law, theLaw Society is pleased to announce thatanother Diploma in commercial lawwill commence on 9 February 2002 and rununtil 7 December 2002.

The long-running Diploma in applied EuropeanUnion law will be offered again from 27 April 2002until 2 November 2002.

Further details and application forms are available nowfrom Michelle Nolan, Information & AdministrationExecutive, at [email protected].

Make an early

New Year’s

resolution … Sign

up now for one of

the Law Society’s

diploma courses!

Diploma courses at the Law Society

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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 are available 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.comPROPERTY

John PhillipsTel: +44 (0)1483 747250

LITIGATIONMartin Williams

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.

tive. The fate of the directivewould probably be determinedduring the following week and,with the current level of politi-cal will in support of such meas-ures, it was likely to be passed.

Revenue audits: access toclient account informationThe director general reportedon a meeting that had been heldwith the Revenue Commis-sioners on the previous Fridayto discuss the legal position per-taining to the confidentiality ofclient account information sincethe judgment in the Miley case.As it was the stated intention ofthe Revenue to resume audits ofsolicitors’ practices in the nearfuture, the meeting hadfocussed on the desirability ofan agreed memorandum ofunderstanding between thesociety and the Revenue in rela-tion to the confidentiality anddisclosure issues arising in thecourse of an audit.

A working group had been

established, comprising repre-sentatives from both theSociety and the Revenue, toseek to agree such a memoran-dum of understanding beforethe resumption of audits. Thesociety’s representatives on theworking group were JohnO’Connor, Brian Bohan andMiriam Delaney. However, nofinal agreement would beentered into without theapproval of the Council.

CCBEGeraldine Clarke reported thatthe CCBE had appointedJonathan Goldsmith, currenthead of the InternationalDepartment of the Law Societyof England and Wales, as itsnew secretary general.

She also reported that theEU Commission was conduct-ing a review of all directivesrelating to the recognition ofdiplomas and the right to prac-tice in other member states. Aworking paper and question-

naire had been received by theDepartment of Justice, Equalityand Law Reform, who weredealing with TP Kennedy onthe matter.

Increased jurisdictions of the courtsPatrick Casey said that theimpact of the proposedincreased jurisdictions was amatter of concern to the mem-bers of the Southern LawAssociation and there was aview that a more pro-activeapproach should be taken onthe issue of increased fees andincreased resources. DavidMartin confirmed that a paperhad been prepared for submis-sion to two separate costs draw-ers seeking advice on the issueof costs. In relation to back-upservices and additionalresources, the LitigationCommittee had liaised with theCourts Service in the prepara-tion of their submission.

Patrick O’Connor said that

the District Court bench hadindicated that they wouldrequire an additional fivejudges at a minimum, while theCircuit Court bench had indi-cated a requirement for anadditional ten judges. It wasclear that the judiciary couldnot assume the additionalworkload without increasedresources. There were similardifficulties in relation to thecounty registrars and othercourt staff.

Gerard Griffin said that, asthe new jurisdictions were dueto come into operation on 1January 2002, he believed thatthe society should increase itscalls for urgent revision of theDistrict Court fees and a posi-tive commitment to the assign-ment of sufficient resources.The director general confirmedthat the matter had been raisedwith the minister, but agreedthat the society would reinforceits efforts to have the matterdealt with urgently. G

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Committee report

Practitioners should note that from Monday the 3rd of December 2001 the

newly appointed Chief Prosecution Solicitor will act as Solicitor to the Director

of Public Prosecutions. Ms. Claire Loftus will take over all functions currently carried

out by the Chief State Solicitor on behalf of the Director.

Pending re-location to new premises in January 2002 the Office of the Chief

Prosecution Solicitor will be located in:

Osmond House,

Little Ship Street,

Dublin 8.

Telephone: 4176100

Fax: 4757160

The relevant rules of court have been amended to reflect this development . All ref-

erences in the rules to the Chief State Solicitor in relation to criminal matters involv-

ing the Director should be read as referring to the Chief Prosecution Solicitor.

OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS

CHIEF PROSECUTION SOLICITOR

CONVEYANCING

As announced in last month’sGazette, the revised conveyanc-ing documentation is nowavailable for distribution to the

profession, and practitioners canexpect to receive a mail-shotbefore Christmas containing asample of each of the society’srevised documents, being thebuilding agreement, conditions

of sale and the requisitions. If thesociety’s precedent transfer forbuilding estates is not availablebefore Christmas, it will bedistributed separately in the NewYear. Practitioners should note

that the revised documents maybe purchased from the societyand an order form has beenincluded for this purpose below.

If sending payment after 1January 2002, please ensure itis for the euro amount. TheConveyancing Committeerecommends that practitionersuse the revised documents from2 January 2002 onward. It is alsorecommended that practitionerstake time to read the explanatorymemoranda accompanying therevised documents so as to fullyfamiliarise themselves with thechanges made and with the newprovisions introduced.

The society, in conjunctionwith the Dublin Solicitors’ BarAssociation, has published pre-contract checklists for vendorsand purchasers. These can beordered through the society andhave been included on the orderform. G

ORDER FORMRevised Law Society conveyancing documents: new pre-contract checklists (jointly with DSBA)

I enclose my cheque for£ / €

Please charge myAccess Visa Mastercard Eurocard

Credit card number

Expiry date:Signature:

Month/year

Name: Firm:Address:

Telephone:Please return to Maureen O’Grady, Law Society of Ireland, Blackhall Place, Dublin 7.

Packet Price P&P No of Amountsize (incl packets due

VAT) £/€Requisitions on title 50 £48 £5.50(2001 edition) €61 €7Conditions of sale 50 £24 £5.50(2001 edition) €31 €7Building agreement 50 £18 £3(2001 edition) €23 €3.60Pre-contract 25 £25 £5.50check lists Purchase €32 €7

25 Sale

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LEGISLATION UPDATE: 16 OCTOBER – 19 NOVEMBER 2001ACT PASSEDElectoral (Amendment) Act,2001Number: 38/2001Contents note: Amends andextends the Electoral Acts, 1992to 1999, the European ParliamentElections Acts, 1992 to 1999, thePresidential Elections Acts, 1992to 1997, the Local Elections Acts,1974 to 1999, the ReferendumActs, 1992 to 1998, the SeanadElectoral (University Members)Acts, 1937 to 1973, the SeanadElectoral (Panel Members) Acts,1947 to 1972, and provides forrelated mattersDate enacted: 24/10/2001Commencement date: Commence-ment order/s to be made (pers1(9) of the act): 1/11/2001 forsections 1 to 4, 9, 10, 14, 15, 24,26, 28 to 48, 50, 51, 52, 54(other than paragraph (k)) and 55;1/1/2002 for sections 11, 16, 18to 21, 23, 49, 56 to 58;15/2/2002 for sections 5 to 8,12, 13, 25 and 27 (per SI497/2001)

SELECTED STATUTORY INSTRUMENTSCircuit Court (Fees) (No 2) Order2001Number: SI 486/2001Contents note: Sets out in euroamounts the fees to be charged inCircuit Court offices with effectfrom 1/1/2002; provides for theexemption from fees of certain pro-ceedings, including family law pro-ceedings. Revokes Circuit Court(Fees) Order 2001 (SI 252/2001)

Companies (Fees) Order 2001Number: SI 477/2001Contents note: Provides for: 1) aprogressively increasing late filingfee where an annual return is notreceived by the registrar on time;2) no charge in respect of the reg-istration of certain documents withthe Companies Registration Officewhere, in addition to submitting ahard copy, the material is also sup-plied electronically to the CRO; and3) sets out in euro amounts thefees payable to the registrar ofcompanies with effect from1/1/2002. Amends theCompanies (Fees) Order 1997 (SI358/1997) as amendedCommencement date: 26/10/

2001 for articles 3 and 4;1/1/2002 for articles 5, 6 and 7of the order

Companies (Forms) Order 2001Number: SI 466/2001Contents note: Amends theCompanies (Forms) Order 1964 (SI45/1964) by replacing form 47with form C1 (particulars of acharge created by a company incor-porated in the state/certificatethat the charge was presented forregistration in the country wherethe property is located)Commencement date: 23/10/2001

Diseases of Animals Act, 1966(Foot and Mouth Disease)(Restriction on Imports from theUnited Kingdom) (No 3) Order2001Number: SI 490/2001Commencement date: 22/10/2001

District Court (Fees) (No 2) Order2001Number: SI 487/2001Contents note: Sets out in euroamounts the fees to be charged inDistrict Court offices with effectfrom 1/1/2002; provides for theexemption from fees of certain pro-ceedings, including family law pro-ceedings. Revokes District Court(Fees) Order 2001 (SI 253/2001)

European Communities(Judgments in MatrimonialMatters and Matters of ParentalResponsibility) Regulations 2001Number: SI 472/2001Contents note: Make provision inrelation to the effect on domesticlegislation of council regulation(EC) no 1347/2000 on jurisdictionand the recognition and enforce-ment of judgments in matrimonialmatters and in matters of parentalresponsibility for children of bothspouses (Brussels II regulation)Commencement date: 23/10/2001

Finance Act, 2001(Commencement of section 50)Order 2001Number: SI 471/2001Contents note: Appoints22/10/2001 as the commence-ment date for section 50 of the

Finance Act, 2001 (amendment tosection 310 of the TaxesConsolidation Act, 1997 so as toprovide capital allowances inrespect of capital contributionsmade by non-domestic water usersto local authorities for the purposeof funding new water supply infra-structure)

Foot and Mouth (Restriction onMovement) (No 6) (Revocation)Order 2001Number: SI 470/2001Commencement date: 19/10/2001

Freedom of Information Act,1997 (Prescribed Bodies) (No 4)Regulations 2001Number: SI 475/2001Contents note: Prescribe each ofthe bodies listed in the schedule tothe regulations as a public body forthe purposes of the Freedom ofInformation Act, 1997 by theirinclusion in paragraph 1(5) of thefirst schedule to the act. Bodieslisted include universities, insti-tutes of technology, colleges ofhigher education, regional authori-ties and regional assembliesCommencement date: 1/10/2001

Local Government Act, 2001(Commencement) Order 2001Number: SI 458/2001Contents note: Appoints9/10/2001 as the commence-ment date for sections 1(1), 1(6),1(7), 2 to 4, 6 to 8 and 247;9/10/2001 for section 5(1) andpart 1 of schedule 3 to the extentspecified in the schedule to thisorder (repeals of certain enact-ments); 1/1/2002 for part 23(sections 238-242) (transfer ofshareholding in Temple BarProperties Limited to DublinCorporation)

Organisation of Working Time(Records) (Prescribed Form andExemptions) Regulations 2001Number: SI 473/2001Contents note: Require employers,in accordance with section 25(1) ofthe Organisation of Working TimeAct, 1997, to keep: a) a record ofthe number of hours worked byemployees (excluding meals andrest breaks) on a daily and weekly

basis, b) a record of leave grantedto employees in each week by wayof annual leave or in respect of apublic holiday and payment madein respect of that leave, c) a week-ly record of the starting and finish-ing times of employees, and pro-vides for related mattersCommencement date: 1/11/2001

Safety, Health and Welfare atWork (Construction) Regulations2001Number: SI 481/2001Contents note: Amend the Safety,Health and Welfare at Work(Construction) Regulations, 1995(SI 138/1995) to give furthereffect to council directive92/57/EEC on the minimum safe-ty and health requirements at tem-porary or mobile construction sitesCommencement date: 1/1/2002,with certain exceptions (see regu-lation 1 of the regulations)

Solicitors Acts, 1954 to 1994(Euro Changeover) Regulations2001Number: SI 504/2001Contents note: Provide for thesubstitution of payments in euroamounts for amounts expressed inIrish pounds in regulations madeunder the Solicitors Acts, 1954 to1994. Revoke Solicitors Acts,1954 to 1994 (Euro Changeover)Regulations 2001 (SI 460/2001)Commencement date: 15/11/2001

Supreme Court and High Court(Fees) (No. 2) Order 2001Number: SI 488/2001Contents note: Sets out in euroamounts the fees to be charged,with effect from 1/1/2002, in theOffice of the Registrar of theSupreme Court, the Central Office,the Examiner’s Office, the Office ofthe Official Assignee inBankruptcy, the Taxing Master’sOffice, the Accountant’s Office, theOffice of Wards of Court, theProbate Office and District ProbateRegistries; provides for the exemp-tion from fees of certain proceed-ings, including family law proceed-ings.

Prepared by the Law SocietyLibrary

G

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44

Note:• Transaction certificate

amounts are listed in theshaded columns.

• Amounts of stamp duty arecalculated rounded down tothe nearest euro.

Conveyancing Committee

STAMP DUTIES

RESIDENTIAL PROPERTY:Market value First-time Other Investors Investors

buyers owner new 2nd handoccupiers houses/ houses/

apartments* apartmentsUp to €127,000 Exempt Exempt 3% 9% €127,001 €190,500 Exempt 3% 3% 9% €190,501 €254,000 3% 4% 4% 9% €254,001 €317,500 3.75% 5% 5% 9% €317,501 €381,000 4.5% 6% 6% 9% €381,001 €635,000 7.5% 7.5% 7.5% 9% Over €635,000 9% 9% 9% 9% These rates are progressive, not cumulative.* For instruments executed on/after 27/2/01

NON-RESIDENTIAL PROPERTY:Market value Up to €6,350 Exempt €6,351 €12,700 1% €12,701 €19,050 2% €19,051 €31,750 3% €31,751 €63,500 4% €63,501 €76,200 5% Over €76,200 6% These rates are progressive, not cumulative.

There were a number of errors in the stamp duties table published last month as part of the practice note entitledConveyancing in euro, and that section of the note should not be used by practitioners. A revised stamp duties tableis published below, with apologies for any inconvenience caused

CORRECTION

The inherent dangers and legalcomplexities which arise when

a solicitor acts for both parties ina voluntary transfer were speltout with great clarity by theSupreme Court in its decision inCarroll v Carroll, Supreme Court,21 July 1999. Those complexitiescreate dangers not just for theparties but for the practitionerwho acts for both parties. TheLaw Society has not decided toprohibit acting for both sides, butgreat care must be taken. Thereare certain cases where a solici-tor may not act for both donor anddonee, and it is incumbent on thepractitioner to appraise him/her-self of all the circumstances andthen make the decision as towhether he/she can properly andprofessionally continue to act forboth parties.

The Conveyancing Committeehas prepared this practice note toassist those solicitors who maywish to act for donor and donee ina voluntary transfer and to assistthem in reaching the decision asto whether they can properly doso.

The presumption of undueinfluence is the first hurdle thatmust be overcome. The SupremeCourt in its decision held thatwhere the presumption of undue

influence exists, the onus lies onthe donee to establish that thegift resulted from the ‘free exer-cise of the donor’s will’: as thepresumption is a rebuttable oneand is a rule of evidence, thedonee must adduce the evidencenecessary to rebut it. While thecourts have declined to limit thecategories of relationship in whichthe presumption will arise, themore obvious ones are solicitorand client, doctor and patient,religious adviser and pupil,trustee and beneficiary, as wellas intra-family relationships.

It goes without saying thatundue influence may actuallyexist in an individual case: caremust be taken to ensure that thisdoes not arise.

To assist in reaching the nec-essary conclusions on aspectssuch as undue influence, the fol-lowing should be borne in mind:1) Clients should be seen sepa-

rately2) Should either the donor or

donee be independentlyadvised? A solicitor who haspreviously acted for a memberof a family and who is asked toact for the first time for aprospective donor would dowell to have the donor sepa-rately advised. Equally, a solic-

itor who has previously actedfor the donor should consideradvising the donee, in a situa-tion where the transfer willimpose obligations on thedonee, to be independentlyadvised

3) Full instructions must be takenof all relevant family circum-stances and family relation-ships

4) Full details of the donor’sother assets must be obtainedto decide whether the donor isin a financial position to carryinto effect his/her desire

5) A decision on the donor’s men-tal capacity must be taken.Should medical opinion besought?

6) Is the proposal a free exerciseof the donor’s will?

7) Does the donor’s physical sit-uation allow the gift to bemade? What are his/herfuture requirements? What willhis/her future accommodationbe? Does the proposal put injeopardy his/her financial inde-pendence? Does he/sheappreciate the situation?

8) Does the proposal imperil thefinancial independence ofother members of the family?Have other members of thefamily been made promises or

relied on arrangements whichwill be affected by what is pro-posed? Do the proposals con-tradict any previously drawnwills or other documents?

9) Is the solicitor aware fromdealings with other membersof the family that this proposalwill surprise other family mem-bers?

10) Even if independent advice isnot required, care must betaken in explaining the conse-quences of the proposedaction to both donor anddonee. Professional skill andjudgement is required in advis-ing both parties. This is notfulfilled by simply followinginstructions without consider-ing the appropriateness ofwhat is being undertaken

11) A solicitor acting for both can-not be independent of thedonee

12) Careful notes of all atten-dances on the parties must bekept. Full written advice to theparties must be given on allaspects of the transaction.Any documents requiring exe-cution must be given to theparties in advance for perusaland must be read andexplained to them.

Conveyancing Committee

Voluntary transfers

Practice notes

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45

Practitioners should note thatin a recent case stated from

the Circuit Court, the SupremeCourt considered the questionof whether interest is payable oncosts from the date of the judg-ment or order awarding them, oronly from the date of taxation.While the plaintiff in the caseargued that, from the moment ofthe judgment, the successfulparty is entitled to interest, thedefendants argued that interestshould run only from the date ordates upon which the successfulparty has discharged the costs

in respect of which he seeksinterest.

The court held that costs con-stitute a liability of the unsuc-cessful party from the momentof the decree or judgment, thatthey are not payable until quan-tified, but that when quantified,the debt relates back to the dateof the judgment, with interestrunning from that earlier date.

Brendan Clarke and FergusMcCarthy v Commissioner of anGarda Síochána, (SupremeCourt, 31 July 2001, Fennelly J)

Litigation Committee

Apractising certificate mustbe applied for before 1

February in each practice yearin order to be dated 1 Januaryof that year and thereby operateas a qualification to practisefrom the commencement of thepractice year.

It is misconduct for a solicitorto practise without a practisingcertificate. Any solicitor foundto be practising without a prac-tising certificate will be referredto the Disciplinary Tribunal.

Assistant solicitors shouldnote that it is the statutory obli-gation of every solicitor toensure that he or she has apractising certificate in force

from the commencement of thepractice year. Assistant solici-tors cannot absolve themselvesfrom this responsibility by rely-ing on their employers to pro-cure their practising cer tifi-cates.

Practitioners should alsonote that practising for any peri-od of time without a practisingcer tificate could jeopardisetheir professional indemnityinsurance situation. Fur ther-more, a break in continuity ofpractising certificates may dis-qualify a solicitor from applyingfor judicial appointment.

PJ Connolly, Registrar ofSolicitors

The Probate Officer hasadvised the Probate,

Administration and TaxationCommittee of the followingarrangements regarding the eurochangeover. To facilitate thechangeover to euro display ongrants of representation, allRevenue certificates for the HighCourt lodged with papers on orafter 19 November 2001 mustshow euro or dual currencies.The Revenue Commissionershave agreed to certify in dual cur-rencies from 1 November 2001.

From 1 January 2002, allpapers lodged in the Probate

Office will have to show euro cur-rency only. However, an exceptionwill be made in the case ofRevenue affidavits in Irish puntswhich have been passed by theRevenue Commissioners.Practitioners should note, howev-er, that the certificate for the HighCourt on these affidavits will onlybe accepted in euro currency.

To avoid delays, practitionersare requested to lodge any docu-mentation which they may haveprepared in Irish punts as soonas possible.

Probate, Administration andTaxation Committee

In making an application for agrant of probate or adminis-

tration, there is an obligation toquote a PPS (personal publicser vice) number for thedeceased and each beneficiary.If either the deceased or anybeneficiary does not have aPPS number, then before theInland Revenue affidavit (formCA24) is submitted to theRevenue, a PPS number mustbe obtained.

If the person for whom anumber has to be obtained isIrish resident, then the applica-tions should be made personal-ly at one of the local offices ofthe Depar tment of Social,Community and Family Affairs.Proof of identity (long form ofbir th certificate, passport orfull driving licence or other validphotographic ID, other support-ing documentation showingaddress) will be required to beproduced at the time of appli-

cation. A form reg 1 must becompleted.

If the applicant is not Irishresident, then the PPS numberwill be given to the solicitor asagent and the application (formreg 1) should be sent via thesolicitor to Client IdentityServices, Depar tment ofSocial, Community and FamilyAffairs, Gandon House, AmiensStreet, Dublin 1 and a form ofconsent for the PPS number tobe issued to a third party mustbe signed by the applicant.Solicitors must not take on thisobligation in the case of Irishresident beneficiaries.

If either the deceased was ora beneficiary is in receipt of astate pension, then the pensionnumber is the appropriate num-ber to quote when making anenquiry for a PPS number withClient Identity Services.

Probate, Administration andTaxation Committee

PPS numbers (formerly RSI numbers)

Euro changeover: Probate Office

Practising certificates

Entitlement to interest on costs

HENRY A CROSBIEBUSINESS CENTRE

Tel: 01-8363994Fax: 01-8363997

[email protected]

Office Suites available in Bow Street Friary

Between 22 May 2000 and 21 May2001, the Disciplinary Tribunal meton 27 occasions. During the year 48new applications, alleging misconductagainst solicitors, were received ofwhich 20 were direct applications tothe tribunal from members of the pub-lic. The remainder emanated from theLaw Society of Ireland. The followingis an analysis of these applications:

NEW APPLICATIONS 48Law SocietyPrima facie cases found 6Awaiting prima facie decision 22At hearing

Misconduct 1Awaiting inquiry 5

Private Prima facie cases found 4No prima facie cases found 3Withdrawn 1Awaiting prima facie decision 12At hearing

No misconduct 1Awaiting hearing 3

APPLICATIONS FROM PREVIOUS PERIOD 70Law SocietyAwaiting prima facie decision 1At hearing

Misconduct 18Withdrawn 2Struck out 1Adjourned 22

Private No prima facie cases found 10Awaiting prima facie decision 1At hearing

Misconduct 3No misconduct 7Struck out 1Adjourned 4

Orders made by the DisciplinaryTribunal pursuant to section 7(9) ofthe Solicitors Amendment Act, 1960as substituted by section 17 of theSolicitors (Amendment) Act, 1994:Censure, fine, restitution and costs 3Censure, fine and costs 4

Censure, restitution and costs 2Censure and fine 3Restitution and costs 1Fine 1Censure and costs 1Censure 2Admonished, restitution and costs 1Advised, admonished and costs 1Advised and costs 1Advised and admonished 1

Fines ranged from £500 to £5,000.

Report of the Disciplinary Tribunalunder section 7(3)(b)(ii) of theSolicitors (Amendment) Act, 1960 assubstituted by section 17 of theSolicitors (Amendment) Act, 1994Recommendation:That the respondent solici-tor’s practising certificateshould be limited in that heshould practise under thesupervision of a solicitorwith at least ten years’experience 1

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This is the first annual reportof the tribunal under my

chairmanship and it is an oppor-tunity I welcome to review theoperation of the tribunal in theyear ended 21 May 2001. Forcompleteness, the report alsocovers the period from the dateof the last published report ofthe tribunal – 31 October 1999,up to 21 May 2000. Theappointments of the presentmembers of the tribunal com-menced on 22 May 2000 andthese will run for a period of fiveyears. The tribunal consists often solicitor members and fivelay members, appointed by thepresident of the High Court.

The tribunal is an independ-ent, semi-judicial body and it iswholly independent of the LawSociety of Ireland, its officesbeing situated at 32 ManorStreet, Dublin 7

The tribunal holds inquiries,as it has done for many years,regarding complaints allegingconduct tending to bring theprofession into disrepute –broadly, that is to say unethicalconduct, failing to reply to cor-respondence from the LawSociety or from clients, or caus-ing unreasonable or persistentdelay in regard to some aspect oftheir clients’ affairs. Where ithas been proven that misconducthas been established, the tribu-

DISCIPLINARY TRIBUNAL ANnal will decide on the appropri-ate sanction and can by order doone or more of the following:• Advise and admonish or cen-

sure the respondent solicitor• Direct payment of a sum, not

exceeding £5,000 to be paidby the respondent solicitor tothe compensation fund

• To direct that the respondentsolicitor shall pay a sum, notexceeding £5,000, as restitu-tion or part-restitution to anyaggrieved party, without prej-udice to any legal right ofsuch party

• To direct that the whole orpart of the costs of the societyor of any person appearingbefore them, as taxed by a tax-ing master of the High Court,in default of agreement, shallbe paid by the respondentsolicitor.

The tribunal has no power tocarry out its own investigationsand consequently any applica-tion coming before it must bemade by completing the appro-priate application form and affi-davit, in accordance with the tri-

bunal’s rules. The majority ofcomplaints which come beforethe tribunal are at the instanceof the Law Society of Ireland,but it is open to members of thepublic to present a complaint.The procedure is an adversarialone and consequently it is a mat-ter for an applicant to prosecutea case and for a respondentsolicitor to respond. In thisregard, the tribunal is aware thatmembers of the public may findthe process of making an appli-cation to the tribunal an onerousone, but assistance is availablefrom the clerk to the tribunal inrelation to completing the formsleading to an application. At thehearing stage, should one bedirected, the tribunal, which sitsin divisions of three (two solici-tor members and one lay mem-ber), is cognisant of the con-cerns some lay applicants mayhave when presenting theircases, without the assistance oflegal representation, and dueallowance is given. Indeed, whenrequested, applicants have beenpermitted to be assisted by a‘friend’, who may assist an appli-

cant but may not act as an advo-cate.

Ideally, complaints shouldnever get to the stage whereclients feel the need to make acomplaint either to the LawSociety of Ireland or direct tothe tribunal. However, as hasbeen stated on many occasionsin the past by my predecessor,delay and the lack of communi-cation form the basis of themajority of complaints receivedby the tribunal. It is of immenseconcern that solicitors acceptinstructions to attend to certainmatters and subsequently fail tobring the particular business to aconclusion. Clients should beadequately informed of theprogress of their business andshould have outlined to themthe main steps which need to betaken.

The tribunal would urgemembers of the profession, whoare the subject of a complaint, torespond promptly, fully andaccurately to the Law Society.Ignoring or misleading the soci-

DISCIPLINARY TRIBUNALSolicitor membersThomas D Shaw (chairman)Ernest CantillonClare ConnellanCarol FawsittMaeve HayesMichael HoganDonal KelliherGeraine O’LoughlinMichael O’MahonyIan Scott

Lay membersMary ConlonTed ConlonDenis MurphyPaul KingstonKristin Quinn

Continued on page 48 ➜

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NNUAL REPORT 2000/2001Civil actions• Delaying in prosecuting a civil action

of complainants• Settlement cheque, when received,

was the property of the client andshould have been given to him andnot lodged to the solicitor’s clientaccount

• Solicitor had authority to negotiate asettlement but there was no evidencehe had authority to conclude a settle-ment

• Solicitor had no authority to payclient’s funds without the client’s con-sent

• Deliberately misleading clients over asustained period of time in regard tothe filing of a cross appeal in theSupreme Court and submitting falsedocumentation in support of theseassertions

• Misleading a colleague acting onbehalf of a complainant

• Misleading complainants in relation tothe conduct of their civil proceedings

• Using solicitor’s fees as an induce-ment to persuade a client from a cho-sen course of action and was not act-ing in the client’s interest in thisregard

• Refusing to discharge costs notwith-standing a certificate by the taxingmaster of the High Court

• Failing to have a settlement, in whichminor parties were involved, ruled inthe High Court and failing to havemonies in the client account lodged incourt in accordance with the solici-tor’s obligations as an officer of thecourt

• Acting in a conflict of interest situa-tion by accepting instructions whennone of the exceptions as set out atparagraph 1.3 of the Guide to the pro-fessional conduct of solicitors inIreland appear to apply

• In a conflict of interest situation givingassurances to a client that it shouldbe possible to reach agreement withanother party which should precludethe need for the client to seek inde-pendent legal advice and which result-ed in the client not proceeding to seeksuch independent legal advice at thattime

• In a conflict of interest situation con-tinuing to act for one party by enteringan appearance to proceedings initiat-ed by that party

• Failing to act promptly on the advicefrom counsel to institute proceed-ings for negligence and a breach ofduty against a colleague and recov-ery of the purchase price; a civil billwas issued more than five years

after the applicant’s first consulta-tion with the respondent solicitor.Contrary to the applicant’s expressinstructions, the case was neverbrought to trial.

Communication with clients• Failing to communicate or to answer

correspondence from clients• Causing a complainant extreme dis-

tress and inconvenience through fail-ing to deal with a complaint in a time-ly manner

• Failing to keep complainant informedof all offers and the settlement of acase

Conveyancing• Failing to advise the society as per its

request of the date of re-lodgment ofa deed of transfer of the complainantin the Land Registry together with thedealing number, the subject matter ofthe complaint to the society

• Delaying in completing a conveyanc-ing transaction

• Through a delay in processing part ofthe transaction relating to theexchange of land put a client’s inter-est in serious jeopardy

• Acting in the transfer of property fromone party to another without advisingthat party, that he, the solicitor, couldend up owning the property (which hesubsequently did) and without advis-ing him to obtain independent legaladvice

• Unilaterally altering or causing to bealtered a deed of transfer after it hadbeen executed by the vendor of prop-erty without the knowledge, authorityor consent of the vendor and his solic-itor

• Subsequently in a letter to the ven-dor’s solicitor enclosing a copy of thealtered deed specifically did not drawhis attention to the unilateral alter-ations

• Causing serious delay in completing aconveyancing transaction for a client

• Through delay in processing part ofthe transaction relating to theexchange of land put a client’s inter-est in serious jeopardy

• Severely prejudicing a client by refus-ing to procure a bond

Probate• Drawing up a will for a client in which

he (the solicitor) was named as resid-uary legatee and executor and bene-fited in that estate and failing toadvise the testator to seek independ-ent legal advice

• Preparing wills for a client with a spe-

cific bequest to him and wherein hewas appointed as joint executor of thewill;

Practising certificate• Failing to apply for a practising certifi-

cate and practising as a solicitor with-out a practising certificate in contra-vention of the provisions of theSolicitors Acts, 1954 to 1994

Professional indemnity insurance• Failing to file evidence that profes-

sional indemnity insurance cover hadbeen effected pursuant to the provi-sions of section 4(a) of statutoryinstrument no 312 of 1995

Regulatory body: Law Society of Ireland• Failing to attend meetings of the

Registrar’s Committee despite beingrequested to do so

• Refusing to comply with a direction ofthe Registrar’s Committee pursuantto section 8(1) of the Solicitors(Amendment) Act, 1994 that anindemnity bond be obtained inrespect of the title to a former client’sproperty, which bond was necessitat-ed by the inadequate services provid-ed to the client

• Bringing the society’s regulatory rolein respect of the solicitors’ professioninto disrepute by showing a flagrantdisregard for the direction of theRegistrar’s Committee

• Failing to comply with an undertakinggiven to the registrar’s meeting towrite to a complainant on the day fol-lowing the meeting and to furnish acopy of the letter to the society

• Failing to comply with an undertakinggiven to the Registrar’s Committee toprocure a duplicate land certificate

• Misrepresenting the situation to thesociety in a letter where he denied hewas practising as a solicitor

• Obstructing and inhibiting the soci-ety’s investigation of a complaint

• Breaching an obligation to furnish afile and documents the subject matterof the complaint pursuant to a noticeunder section 10(1) of the Solicitor’s(Amendment) Act, 1994

• Obstructing and frustrating the soci-ety’s statutory power to provide aremedy to a client arising out of theinadequate service to that client

• Failing to reply to correspondencefrom the society in a timely manner orat all

• By ignoring correspondence showed aserious disregard for the society’scomplaint handling procedure and forthe society itself as a regulatory body

of the solicitors’ profession• Failing to answer correspondence

from the society both in respect of thesociety’s request for an explanationof the matter and in respect of inform-ing the society of what progress wasbeing made in respect of a client’stransaction

• Misleading the society in the investi-gation of a practice by denying that hehad benefited as a beneficiary in thewill of any other client when this wasnot the case

Solicitors’ accounts regulations breaches• Failing to file an accountant’s report

since commencing practice in breachof regulation 21(1) of the Solicitors’accounts regulations 1984 in a time-ly manner or at all

Section 55• Practising as a solicitor and acting in

a transaction for a purchaser inbreach of section 55(1) of theSolicitors Act, 1954 and section56(1) of the Solicitors (Amendment)Act, 1954

Undertakings• Breaching an undertaking not to nego-

tiate a joint deposit receipt untilreceipt of confirmation from a solicitorcolleague, the recipient of the saidundertaking, that the premises thesubject matter of the transaction hadbeen completed save for certainrepairs specified in a written under-taking

• Failing to disclose to a solicitor col-league the negotiation of a jointdeposit receipt despite receiving let-ters from a solicitor colleague whichreferred to the monies remaining onjoint deposit pending completion ofcertain works as per the undertakinggiven

• Accusing a solicitor colleague in a let-ter of pursuing a personal agendawithout instructions from the clientsin seeking compliance with an under-taking

• Failing to make any attempt to complywith the terms of an undertakingnotwithstanding the direction of theRegistrar’s Committee on 2 April1998

• Failing to comply with an undertakinggiven to a colleague to furnish a dis-charge of a building society charge

• Failing to comply with an undertakinggiven to discharge a judgment mort-gage and to furnish a discharge ofsame to a colleague.

Principal grounds on which professional misconduct was found

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ety is particularly damaging tothe profession. The tribunal hastaken a very serious view of con-duct which shows a disregard forthe society’s complaint handlingprocedure and for the societyitself as a regulatory body of thesolicitors’ profession.

A number of complaints relat-ing to breaches of undertakingscame before the tribunal. As it isthe duty of solicitors to complywith professional undertakings,solicitors should ensure thatthey never give an undertakingin circumstances where theycannot perform it.

Some of the foregoinggrounds of misconduct arose as aresult of solicitors attempting tocontinue acting in a conflict ofinterest situation. Solicitorsshould be mindful of their posi-tion in such cases and should beguided by paragraph 1.3 of Aguide to professional conduct of solic-itors in Ireland. It is not only inconveyancing transactions thatconflict of interest can arise. The

tribunal has considered mattersof conflict in relation to civilproceedings where they found asolicitor guilty of misconduct inthat he, in a conflict of interestsituation, continued to act forone party by entering an appear-ance to proceedings initiated bythat party.

I would also like to record mythanks to the members of thetribunal for their participationand hard work during the year.

The Disciplinary Tribunal isconstituted under the provisionsof the Solicitors Acts, 1954 to1994 and its powers are largelyconfined to receiving and hear-ing complaints of professionalmisconduct against solicitors.The tribunal consists of tensolicitor members and five laymembers, who are appointed bythe president of the High Court.Under section 16 of the Solicitors(Amendment) Act, 1994, the laymembers are nominated by theminister for justice to representthe interests of the general pub-lic. For the purpose of hearingand determining any applica-

tion, the tribunal sits in divi-sions comprising two solicitormembers and one lay member.

Under section 3 of theSolicitors (Amendment) Act, 1960as amended by the Solicitors(Amendment) Act, 1994, miscon-duct includes:• The commission of treason

or a felony or a misde-meanour

• The commission outside thestate of a crime or an offencewhich would be a felony or amisdemeanour if committedin the state

• The contravention of a provi-sion of the Solicitors Acts, 1954to 1994 or any order or regu-lation made thereunder

• Conduct tending to bring theprofession into disrepute.

However it should be noted thatthe Solicitors (Amendment) Bill,1998 has further extended thedefinition of misconduct toinclude the following:‘In the course of practice as a solicitori) Having any direct or indirect

connection, association or

arrangement with any personwhom the solicitor knows, orupon reasonable enquiry shouldhave known, is a person who isacting or has acted in contraven-tion of section 55 or 56 or section58 (which prohibits an unquali-fied person from drawing orpreparing certain documents), asamended by the Solicitors(Amendment) Act, 1994 of theSolicitors Act, 1954 or section2 of the Solicitors(Amendment) Act, 1998, or

ii) Accepting instructions from anysuch person to provide legal serv-ices to any other person’.

The procedures before the tri-bunal are formal and as the out-come of a hearing may affect thelivelihood of a solicitor, the tri-bunal requires a high standardof proof. In this regard, the tri-bunal has available an informa-tion leaflet and other documen-tation to assist members of thepublic when making an applica-tion to the tribunal.

Thomas D Shaw, chairman

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➜ Continued from page 46

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Personal injury judgments

CASE Brendan McEneaney v Monaghan County Council and Coillte Teoranta, High Court, judgment of Mr Justice Philip O’Sullivan of 26July 2001.

Road traffic accident – car skidded on patch of ice on public road – water on road – absence of drain to collectwater flowing onto road – whether formation of ice on road foreseeable – liability of local authority and adjoininglandowner – alcohol consumption – speed – failure to wear seat belt – actuarial evidence – conflict over assess-ment of damages for future pecuniary loss – annual loss of earnings – method of calculation to ensure that theplaintiff was not over-compensated – medical inflation – how to provide net annual loss out of both capital andincome – assumed ‘real’ rate of return – application of ‘discount rate’ to lump sum award

THE FACTSOn the evening of Sunday 13

February 1994, BrendanMcEneaney, then aged 22 yearsof age, decided to celebrate theeve of St Valentine’s Day withhis girlfriend MaeveMcCaughey. He collected MsMcCaughey between 6pm and7pm, having travelled some 12miles to her home. They wentto a hotel in Castleblayney, CoMonaghan, and later to a puband back again to the hotelwhere there was a disco. Bothleft the disco after 1am.

It was a cold night and MrMcEneaney set off to drive MsMcCaughey to her home, trav-elling in the Monaghan towndirection. As they were travel-ling, he had to slow down topass through a line of coneswhich he did without difficultyand then resumed his speedtravelling in a northerly direc-tion on the newly surfacednational road betweenCastleblayney and Monaghantown. He approached a ‘fast’elevated bend and his car sud-denly went out of control, hav-ing skidded on a patch of ice,travelled across the centre of theroad, across the oncoming car-

riageway, the hard shoulder, thesoft shoulder, through a fenceand eventually hit a tree. Whilethe car was out of control, itwent through a turn of approxi-mately 180 degrees so that theimpact with the tree occurred atthe right-hand rear corner ofthe car. Mr McEneaney wasfound facing down some ten feetaway from the car and, itappeared, had been catapultedbackwards out through the rearwindow. His passenger, MsMcCaughey, was found hangingby her seat belt, the car havingcome to rest on its left-handside. Mr McEneaney was notwearing his seat belt.

Brendan McEneaney sus-tained very serious injuries as aresult of the accident. His spinalcord had been severed betweenthe fifth and sixth thoracic ver-tebrae, resulting in completeparalysis below the level of thenipples of his chest with theinevitable tragic paraplegia, lossof all sensation and useful move-ment below this level, loss ofcontrol of bladder and bowelfunction, loss of sexual sensationand continuing vulnerability toinjury, including pressure sores

to the lower part of his body.There was evidence that itwould be extremely difficult forhim to look after himself from awheelchair, and he had becomedepressed and had manicepisodes on and off since theaccident. His mental healthwould require close manage-ment involving observation andmonitoring of medication. Hecould, in certain circumstances,drive a car, but there was evi-dence that a low percentage ofparaplegic patients everreturned to meaningfulemployment and, given MrMcEneaney’s additional psy-chosis, this made the prognosisworse.

The case against MonaghanCounty Council and CoilteTeoranteMr McEneaney sued Mon-aghan County Council as thebody responsible for the roadand Coillte Teoranta whoselands adjoined the road wherethe accident occurred. In rela-tion to Monaghan CountyCouncil, it was argued that thecouncil had been negligent andin breach of its duty in relation

to the design and maintenanceof the road and, in particular,because, at the bend in question,the council had failed to providea ‘french drain’ which wouldhave collected water whichseeped from the slope on theadjoining lands onto the road,thereby creating a localised haz-ard. It was argued that it wasforeseeable that on a night suchas that of the accident, a patchof black ice would form in cir-cumstances which would not bepredictable to the driver of a car.

The road had been realignedin 1965 but had just been resur-faced in the months prior to theaccident and indeed some of thecones associated with thoseworks were still in place on thenight of the accident. In rela-tion to Coillte Teoranta, it wasargued that its lands whichadjoin the road contained chan-nels which facilitated the flowof water onto the road, and itwas claimed by MonaghanCounty Council that Coilltehad a duty under section76(5)(b) of the Roads Act, 1993to take reasonable steps to pre-vent such water flowing ontothe public highway.

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O’Sullivan J set out the facts.He referred to an applica-

tion to the court that the caseagainst Coillte Teoranta be dis-missed and referred to evidenceof Paul Womeril, a forensicengineer, who gave evidence asto the ‘design speed’ of the roadin wet conditions. The engineersaid it was basic engineering toprovide a ‘french drain’ to pro-tect the road and he was not sur-prised to discover that ice hadformed, once water was permit-ted onto the road, given thetype of weather on the night ofthe accident. He said that giventhe problem, there should havebeen manual and mechanicalspreading of salt and a warningsign, but the fundamental defectwas the lack of the drain.O’Sullivan J held that in theabsence of a drain to collect thewater flowing onto the road atthe point of the accident, it wasforeseeable that ice would formin conditions which would causea hazard. This constituted abreach of duty owed byMonaghan County Council toMr McEneaney which amount-ed to negligence. The caseagainst Coillte Teoranta wasdismissed.

Alcohol, speed and failure towear a seat beltMonaghan County Councilsubmitted that there had beencontributory negligence on thepart of Mr McEneaney underthree headings: he had con-sumed too much alcohol on thenight, he drove too fast and hefailed to wear a seat belt. Thejudge dealt with each of these inturn.

Although Mr McEneaneyhad consumed alcohol, thejudge considered that theamount of alcohol consumeddid not impair Mr McEneaney’sjudgement or ability to drive.

The issue of speed, however,was relevant. The judge statedthat the probability was that MrMcEneaney was travelling atapproximately 70 miles an hour.That was in breach of the speed

limit, but was within the designcapacity of the road and, there-fore, but for the ice there wouldhave been no accident. Breachof a speed limit could, of itself,amount to contributory negli-gence. The judge held that adriver of a car at 10 miles anhour in excess of the maximumnational speed limit withoutappropriate excuse was guilty ofa want of care for his own safe-ty in that he thereby incurredthe enhanced risk that the con-sequences of any unforeseeableaccident would be worse by rea-son of this excess speed.Accordingly, by reason of theexcessive speed, MrMcEneaney was guilty of con-tributory negligence and mustaccept one third of the fault forthe accident, and, accordingly,damages would be reduced bythat amount.

In relation to the seat beltissue, it was accepted that MrMcEneaney had been propelledbackwards through the rearwindow, ending up face-down-wards some ten feet away fromhis car. There was evidence thatif a seat belt had been worn, itwould not have prevented MrMcEneaney being thrown outof the car. Accordingly, thejudge held that Mr McEneaneywas not guilty of contributorynegligence by his failure to weara seat belt.

Actuarial issues, the ‘multi-plier’ and the ‘discount rate’I offer some general observa-tions before returning to thejudgment of O’Sullivan J. Theusual issue arose about theamount of earnings that MrMcEneaney would have earnedhad there been no accident.The assessment of damages forfuture pecuniary loss is animprecise process. The conven-tional approach is to assess theamount notionally required tobe laid out in the purchase of anannuity which would providethe annual amount needed forthe whole period of loss. Toassess the amount required to

purchase this annuity, a ‘multi-plicand’ is used which is, ineffect, the annual loss of earn-ings or the annual cost of care,as the case may be. An assump-tion is then made as to the num-ber of years a plaintiff would,apart from the accident, haveworked or during which he orshe would need to be cared for.However, merely to multiplythe one figure by the otherwould greatly over-compensatea plaintiff. Accordingly, to avoidover-compensation the courtsapply a ‘discount rate’ in orderto arrive at a lump sum which,taking into consideration inter-est and capital, would provide asclose as possible the net annualloss out of both capital andincome so that at the end of therelevant expected period of loss,there would be nothing left.The ‘discount rate’ applied isstated to represent the assumed‘real’ rate of return after infla-tion and net of tax on the capi-tal invested. Readers arereferred to an article byProfessor Niamh Brennan ofUCD and John Hennessy, BL, Forensic accounting and thecalculation of personal injury dam-ages, in the Bar review,September 2001, and to Dr PMWhite’s book Irish law of dam-ages for personal injuries and death(Butterworths 1989).

In relation to the computa-tion of damages, traditionally a4% discount rate was used byactuaries in computing futurelosses or costs to allow for so-called ‘real’ growth. It wasargued in the McEneaney casethat this was excessively opti-mistic and resulted in theunder-compensation of plain-tiffs. It was contended that thefigure should be closer to 2%.

O’Sullivan J considered theissue of the specific cost offuture medical care and appli-ances. It had been submittedthat the cost of these hadincreased historically at 3% ayear in excess of the general rateof inflation and that an actuari-al ‘discount’ figure of closer to

0% should be considered in thiscontext. It was also argued withregard to general damages incases of ‘catastrophic’ injurythat the guideline figure of£150,000 established by theSupreme Court in June 1984 inSinnott v Quinnsworth Limitedand Others ([1984] IRLM 523)was the equivalent of a figuretoday of between £230,000 and£600,000. Evidence on thesematters was given by MooreMcDowell, senior lecturer ineconomics, University CollegeDublin, and Desmond Peelo,chartered accountant withexperience as a non-executivedirector of a fund-managingcompany.

O’Sullivan J stated that on 15March 2001 the nominalredemption yield on Irish gov-ernment securities was between4.5% and 5.2%. The judgeassumed that Eurozone infla-tion was likely to be in therange of 2% to 3% in the medi-um term, and was of the opin-ion that the prospective ‘real’rate of return on Irish govern-ment securities was in the rangeof 1.5% to 3.2% with a meanvalue of 2.4%. Reference wasmade to the House of Lordscase of Wells v Wells ([1998]1AC 345), where it was heldthat a plaintiff’s damages shouldbe calculated on the basis ofminimum risk exposure.Accordingly, it was argued theappropriate ‘real’ rate should bethe ‘real’ rate of return on long-term government debt paper inrespect of which historical evi-dence and the generality of eco-nomic opinion indicated a ‘real’rate of return of around 2%.

The judge noted it wasremarkable that the only Irishcase dealing with the appropri-ate ‘multiplier’ (as it is called)was the decision of Hamilton J(as he then was) delivering theHigh Court judgment in Cookev Walsh ([1983] ILRM 429),where he concluded that theappropriate calculation shouldbe based on a ‘real’ interestyield of 2.5%. O’Sullivan J con-

THE JUDGMENT

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sidered he must approach theassessment of the sum requiredto produce the appropriateannuity for Mr McEneaney overthe next 39 years (his expectedlifespan), and he must do so onthe basis that it would yield areasonable, secure and reliablestream of annual funding (com-prising income and capital) and,to that end, the investment ofthe award should be as risk freeas reasonably possible. Thejudge considered that the appro-priate discount rate for generalcalculation purposes should be2.5%.

(This was significant, as pre-viously a discount rate of 4%had been used by actuaries incomputing the so-called ‘real’rate of interest in order to deter-mine a fair lump sum to ensurethat a plaintiff would not beover-compensated.)

In the context of the decisionof the Supreme Court in Sinnottv Quinnsworth ([1984] ILRM523) in relation to general dam-ages and the cap of £150,000,O’Sullivan J referred to the evi-dence of economist MooreMcDowell, who testified in theMcEneaney case that to main-

tain the level of general damagesat the nominal value indicatedby the Supreme Court in Sinnottwould be to reduce it substan-tially in real terms having regardto inflation measured by refer-ence to the consumer priceindex. The view had beenexpressed in that case that unlessthere were particular circum-stances which would suggestotherwise, general damagesshould not exceed the sum of£150,000. O’Sullivan J statedthat the equivalent of £150,000for general damages as deter-mined in Sinnott v QuinnsworthLimited in today’s money wouldbe £300,000. The judge statedthat if he erred in this figure, heconsidered he did so on the sideof ‘conservatism’, especially if hecompared the income which£150,000 would have yielded inJune 1984 (at say 10%) with thatwhich £300,000 would yield (at4%) some 17 years later. Thejudge, however, stated that hecould not accept that a para-plegic, such as in the presentcase, was in the same category asa quadriplegic.

In the circumstances of theMcEneaney case, the judge con-

sidered that having regard tothe very large sums to be award-ed to Mr McEneaney under theheadings of ascertainable loss,he would award £75,000 forpain and suffering to the date ofthe trial and £125,000 for painand suffering in the future,being amounts in both casesvery considerably less than hewould have assessed had hebeen considering them on theirown.

The judge then referred tothe decision of the SupremeCourt in Reddy v Bates ([1984]ILRM 197), where it was heldthat in calculating future loss ofearnings, account should betaken of the fact that at the timeof assessment of the relevantaward there had been a highrate of unemployment not onlyin Ireland but in Great Britainand in most member states ofthe EEC (as it then was). Thejudge stated that the numbers ofredundancies and closures offirms led to the conclusion thatthere was no longer any safe orguaranteed employment. Thatwas a fact of which juries (andnow judges) should be requiredto take into account in assessing

future loss of earnings in anygiven case. The judge statedthat he saw no basis for reduc-ing the figure which he allowedfor future loss of earnings in theMcEneaney case.

O’Sullivan J referred again tothe evidence of economistMoore McDowell, to the effectthat the cost of future medicalcare would be likely to rise at arate of 3% in excess of the gen-eral rate of inflation. In thosecircumstances, the judge statedthat while the amount for futurecare was very significant indeed,he considered that he must acton the evidence. The only miti-gating impact of this significantelement of this aspect of anaward from the point of view ofMonaghan County Councilarose in the context of the prin-ciples established by theSupreme Court in Cooke vWalsh, whereby the court wouldassess general damages by refer-ence to the proposed sub-awards in relation to ascertaina-ble loss. The judge did this byreducing the general damageswhich he awarded to MrMcEneaney in relation to painand suffering in the past and inthe future to a figure of £75,000for pain and suffering in thepast and a figure of £125,000for pain and suffering in thefuture, which he stated was con-siderably less than he wouldhave awarded had he consideredthese general damages on theirown.

This case is under appeal tothe Supreme Court.

This case has been summarised bysolicitor Dr Eamonn Hall.

G

THE

AWAR

D Having regard to all the factors and evidenceset out in the judgment, O’Sullivan J awardedBrendan McEneaney the following damages:• Past special damages (which were agreed):

£137,726• Future costs of house modifications (which

were agreed): £40,500• Loss of earnings in the future: £400,000• Cost of care in the future: £2,224,000• Insurance at an agreed rate of 2%: £44,400• Costs of medical aids and appliances, taking

into account inflation of 3% over the general

rate: £527,743• General damages for pain and suffering in

the past: £75,000• General damages for pain and suffering in

the future, £125,000.

Total damages were £3,574,369. Havingregard to the finding that Mr McEneaney wasguilty of contributory negligence and mustaccept one third of the fault for the accident, MrMcEneaney’s decree was reduced to the sumof £2,382,913.

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Eurlegal

Public procurement: recent Irishdevelopments

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

The purpose of this note is tobriefly review four recent

Irish developments in the fieldof public procurement:• The Whelan Group case in the

High Court, which (unsuc-cessfully) sought a review of apublic contract award byClare County Council (judg-ment of 9 March 2001)

• The commencement by theEuropean Commission ofinfringement proceedingsagainst Ireland regarding theBlanchardstown Civic Centre(March 2001)

• The establishment of an elec-tronic tenders portal in Ire-land, www.e-tenders.gov.ie(23 March 2001)

• The decision of the informa-tion commissioner in case98188 Mark Henry and theOffice of Public Works (25 June2001).

The Whelan Group caseThe case of Whelan Group(Ennis) Limited v Clare CountyCouncil ([2001] IEHC 33, 9March 2001) involved a chal-lenge by the Whelan Group tothe tendering procedure adopt-ed by Clare County Council inrespect of major road improve-ment works planned for theNewmarket-on-Fergus area ofCounty Clare (the ‘proposedworks’).

In February 2000, ClareCounty Council published acontract notice in the officialjournal and in an Irish newspa-per in respect of proposedworks whose value was estimat-ed at £25 million. The noticemade it clear that the councilwas adopting the restricted pro-cedure for the award of the con-

tract. The notice provided inthis regard that applicantswould be required to completea pre-qualification question-naire, which requested informa-tion concerning the applicant’sfinancial and economic standingand technical knowledge andability.

The questionnaire provid-ed, among other things, ‘thatthe minimum relevant experi-ence shall be judged on thecontractor’s record during theperiod 1995 to 1999 inclusive.Evidence of that record shallbe furnished, with the attachedpre-qualification question-naire. The contractor shall, asa minimum, have satisfactorilycompleted: roadworks project,value exceeding £10 millionexcl VAT for any one individ-ual project.’

The questionnaire providedthat any applicant that did notcomply with the specified mini-mum of pre-qualification crite-ria set out in the questionnairewould be excluded from furtherconsideration.

The Whelan Group obtaineda copy of the pre-qualificationquestionnaire and returned it,duly completed, to the council.In its replies it stated it had car-ried out road and bridge worksfor the county councils of Cork,Limerick and Offaly to thevalue of £11.9 million. Thecouncil discovered on examin-ing the questionnaire that theWhelan Group had not in factcarried out an individual projectto the value of not less than £10million. The largest contractvalue of works carried out had atender price of £3.9 million.On that basis, the council took

the view that the minimum cri-teria specified in the question-naire had not been met and didnot invite the Whelan Group tosubmit a tender.

The Whelan Group chal-lenged that decision on thebasis that it infringed principlesof EU public procurement law,particularly those that prohibitdiscrimination, inequality oftreatment, lack of transparencyand lack of proportionality.The Whelan Group sought aseries of declarations from theHigh Court (presumably,although not stated, under theEuropean Communities (reviewprocedures for the award of publicsupply and public works contracts)regulations, 1992-1994) to theeffect that the council was inbreach of its obligations andfurthermore sought an orderremoving the requirement thata contractor should have com-pleted one individual project tothe value of £10 million.

In his judgment of 9 March2001, Kelly J held that theWhelan Group was not entitledto the reliefs which it soughtand dismissed the proceedings.

He was satisfied that the cri-terion in question was includedon the advice of an expertstanding committee, whichtook the view that the criterionwas necessary having regard tothe financial and technical com-plexity of the project.Furthermore, it was taken inaccordance with the practicedetermined by the NationalRoads Authority.

As the criterion applied to allpotential contractors, Kelly Jcould not see how it could besaid to be discriminatory. He

also believed it was an objec-tive criterion as it was capableof objective assessment andapplication. Furthermore,there was a rational basis for it.Finally, it was transparentbecause every potential tender-er who was notified of therequirement had to complywith it.

Kelly J noted that the EUdirective in question, the Publicworks directive (93/37/EEC),did not set out the specifictechnical or economic criteriathat were to be applied in thecontext of the restricted proce-dure. However, the directivedid recognise (in article 22) theuse of minimum conditions asa basis for selecting candidatesusing the restricted procedure.These minimum conditionscould be of an ‘economic andtechnical nature’. In his view,therefore, ‘as evidence can besought as to the value of worksperformed by the contractor inthe preceding five years itmust be the case that the valueof those works can be used as aminimum condition, providedof course that there is anobjective and non-discrimina-tory basis for choosing such acriterion. In my view there isin this case both an objectiveand non-discriminatory basisfor choosing the criterion’.

He rejected the suggestionthat the criterion did not relateto technical ability.

Finally, Kelly J was satisfiedthat the criterion ‘did not suf-focate genuine competition’.Although the Whelan Groupwas excluded because of itsinability to comply with thecriterion, Kelly J believed that

Public procurement: recent Irishdevelopments

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the stipulation was proportion-ate, had a rational basis, and wasapplied objectively. Therefore,it did not in his opinion offendagainst the requirements ofcommunity law.

The case has been appealedto the Supreme Court, but hasnot been heard as yet.

This case confirms that,under Irish law, it is open tocontracting authorities to setminimum criteria to be met bypotential tenderers at the pre-qualification stage, providedthey are:• In compliance with the rele-

vant directive and EC lawgenerally

• Applied in an objective man-ner

• Rational• Proportionate• Non-discriminatory• Transparent

EC proceedings againstIrelandIn March 2001, the EuropeanCommission sent a formalrequest (in the form of a ‘rea-soned opinion’) to Ireland inrespect of the award of contractsfor the construction of a civiccentre at Blanchardstown,County Dublin, in an allegedbreach of the Public works direc-tive. In particular, the EuropeanCommission took the view thatthe contracting authority, FingalCounty Council, used a numberof selection criteria that are notamong the authorised criterialisted in the directive.

Ireland had two months afterreceipt of the reasoned opinionto provide a response. It isunderstood that Ireland didreply and the EuropeanCommission was satisfied withthe response. Apparently, theinfringement was not as seriousas the commission had believedand, in any event, Ireland gaveundertakings that the infringingpractice would not be continuedin future.

Establishment of electronicpublic sector portalOn 23 March 2001, theDepartment of Finance estab-

lished an electronic public sec-tor tender portal, www.e-ten-ders.gov.ie, as part of the gov-ernment’s action planImplementing the informationsociety in Ireland. In particular,the portal is intended to con-tribute to the development ofe-procurement in Ireland.

The website is intended toprovide (as an interim meas-ure) a central source for allIrish public sector procure-ment opportunities. The sitedisplays, on a daily basis, allpublic sector procurementopportunities currently beingadvertised in the official jour-nal and national and localpress. There is no charge tolocal authorities for using the website, which is also freely available for use by thepublic. As such, it is intendedto reduce the financial and administrative burdensincurred by local authorities intendering public sector con-tracts.

While the website princi-pally displays prior indicativenotices and contract notices, italso provides, where available,associated tender documentswhich can be downloaded bypotential tenderers. There isalso an archive of ‘closedopportunities’ and contractaward notices and a databaseof public sector organisations.This site also provides back-ground information on pro-curement rules and guidelines,including EU directives andnational guidelines.

Where applicable, the obli-gation to publish relevantnotices in the official journalcontinues to apply andrequests for tenders must con-tinue to be provided in a paperformat if a potential tendererinsists on it, notwithstandingthat an electronic copy isavailable to download fromthe site.

The establishment of thiswebsite is a welcome develop-ment and anticipates forth-coming changes in EU publicprocurement law, which willmake provision for, among

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other things, electronic meansof procurement by contractingauthorities.

Freedom of Information Act,1997In June 2001, the informationcommissioner established underthe Freedom of Information Act,1997 issued a lengthy anddetailed decision on the appli-cation of the act to public pro-curement in Ireland.

The act establishes a generalright of access to records ofpublic bodies subject to a num-ber of exceptions. The excep-tions of most relevance to pub-lic procurement are confiden-tial information (section 26)and commercially sensitiveinformation (section 27). Theseexceptions may be waived bythe public body, following con-sultation with affected thirdparties, where there is a publicinterest in disclosing suchrecords. In the case of where arequest for access to recordsmade under the act is refused,the requester may appeal thedecision to the informationcommissioner, who may uphold

the original decision or directthat access be granted to someor all of the records in question.

This particular decision ofthe information commissionrelated to a request made underthe act to the Office of PublicWorks (OPW) to view allinformation and documenta-tion relating to a tender com-petition for army vehicles con-ducted by the OPW. For rea-sons of space, it is not proposedto consider the decision indetail. Instead, a summary ofthe current views of the infor-mation commissioner on theapplication of the FOI act topublic procurement in Irelandis provided below:• Public bodies are obliged to

treat all tenders as confiden-tial, at least until the timethat the contract is awarded

• Tender prices may be tradesecrets (for the purpose ofthe ‘commercially sensitiveinformation’ exception) dur-ing the currency of a tendercompetition, but only inexceptional circumstanceswould historic prices remaintrade secrets. Tender docu-

ments revealing detailedinformation about a compa-ny’s current pricing strategyor about otherwise unavail-able product information mayalso be regarded as commer-cially sensitive information,even following the conclusionof a tender competition

• Tender prices and privateinformation generally qualifyas commercially sensitiveinformation

• When a contract is awarded,successful tender informationloses confidentiality withrespect to a) price and b) thetype and quantity of thegoods supplied. Moreover,the public interest alsofavours the release of suchinformation, subject to cer-tain exceptions:1) Other successful tender

information which is com-mercially sensitive mayremain confidential anddisclosure in the publicinterest ordinarily will notbe required

2) Unsuccessful tender infor-mation which is commer-cially sensitive generally

remains confidential afterthe award of the contractand the public interest liesin protecting that informa-tion from disclosure

3) No tender-related recordsare subject to release orexemption as a class andeach record must be exam-ined on its own merits inlight of the relevant cir-cumstances.

In arriving at these views, theinformation commissioner hadregard to the confidentialityprovisions of the Irish guidelineson public procurement, theDepartment of Finance noticeno 9 on FOI and public pro-curement, and the EC Suppliesdirective, as well as United Statesand Australian case law in thisarea. The decision is welcomefrom the point of view of pro-viding greater clarity for bothpublic sector bodies and poten-tial tenders on the impact of theact on public procurement inIreland.

John Gaffney is an associate withthe Dublin law firm William Fry.

G

We are pleased to announce that the world class speaker and best selling author, RobParsons will be returning to Dublin for a one off Seminar on Time and Stress

Management, which will take place at The Law Society, Blackhall Place Dublin, on 1 February2002.

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ROB PARSONS RETURNS TO DUBLIN

Formerly Lawyers Planning Services

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Tom Kitt, minister of state atthe Department of Enter-

prise, Trade and Employment on24 July 2001 signed statutoryinstrument 346 of 2001, therebyratifying the protocol relating tothe Madrid agreement concerningthe international registration oftrade marks. Irish trade-markapplicants and owners will from19 October 2001 have access toan additional system of interna-tional trade-mark registration,namely the Madrid agreement pro-tocol as administered by WorldIntellectual Property Organi-sation (WIPO) from Geneva.1

The text of the protocol wasadopted at Madrid on 28 June1989 and it is the latest in a seriesof efforts since the 1890s to set upan effective and popular systemfor the international registrationof trade marks. The Madrid agree-ment itself was signed at the diplo-matic conference convened inMadrid on 14 April 1891.However, the Madrid agreementfailed to attract widespread mem-bership, notably the UnitedStates, United Kingdom andJapan. Therefore in order toattract a larger membership,WIPO sought to devise a newsystem for the international regis-tration of trademarks – theMadrid protocol. The Madrid proto-col is a convention that parallelsthe Madrid agreement but remainsindependent of the agreement. Itwill ultimately replace the Madridagreement and is expected in timeto become a truly internationalcentralised trade-mark applica-tion system.

Ireland’s ratification of theMadrid protocol has two conse-quences. The first is that appli-cants can register trade marks in anumber of countries fromIreland. Secondly, applicants inother Madrid protocol countries

can designate Ireland, therebyrendering the need for a separateIrish application obsolete.

It will be possible to apply foran international registration of atrade mark under the Madrid pro-tocol through the Irish PatentOffice. Through a single applica-tion based on either an Irishtrade-mark application or a regis-tration, it will be possible toobtain registration in the desig-nated countries. The internation-al trade-mark registration systemis useful for registering trade-mark rights in a wide variety ofcountries in a simple and morecost effective manner than filingnational applications.

The main facts • In order to file an internation-

al application, the person inwhose name the basic applica-tion or registration standsmust be a national of the con-tracting state in which suchapplication was filed or regis-tration was obtained, or bedomiciled, or have a real andeffective industrial or commer-cial establishment in the con-tracting state

• An application for internation-al registration must designateone or more countries inwhich the mark may be pro-tected. Further countries canbe designated subsequently. Acountry may be designatedonly if that country and thecountry of origin are bothparty to the protocol treaty

• The international applicationmust be presented on the formprescribed by the regulations.The office of origin must cer-tify that the particulars appear-ing in the international appli-cation correspond to the par-ticulars, at the time of the cer-tification, in the national appli-

cation or registration• The applicant must indicate

the goods and services inrespect of which protection ofthe mark is claimed in accor-dance with the Nice classification(7th edition)

• Priority from a national appli-cation may be claimed inaccordance with the Paris con-vention

• The international bureau willnotify each country in whichprotection has been requested(whether in the internationalapplication or subsequently).Each designated country hasthe right to refuse protection,within the time limits specifiedin the protocol. Ireland hasspecified an 18-month rejec-tion period

• The registration period of aninternational registration is tenyears. It may be renewed forfurther periods of ten years onpayment of the prescribed fees.

The advantages of Madrid pro-tocol membership• Simple and flexible system • One application/registration

instead of several• Subsequent designation of sta-

tus. For example, it is possibleto extend the international reg-istration to include countries asthey become members of theMadrid protocol

• Unlike other systems of inter-national trademark registration,such as the Community TradeMark, refusal in a designatedcountry will only affect thatcountry and will not preventregistration in other territories.

Ratification of the Madrid protocoldoes however also raise a numberof concerns. The first is theadministrative burden to be borneby the local patents office. It is

possible that there will be greatervolume of overseas trade-markapplications as more and morecountries accede to the protocol,which could have an adverseeffect leading to delays in theexamination of domestic applica-tions.

The second problem is thequestion of trade-mark searching.Searching for trade marks underthis international system will bedifficult because of the volume oftrade marks to be searched againstand because broad statements ofgoods and services will make ithard to analyse the results. It willbe very difficult to ascertain thebona fides of an application or tootherwise ascertain the trade-mark owner’s intention to use themark.

Neither of these concerns areinsurmountable. As the Madridprotocol will ultimately replace theMadrid agreement and is expectedto become a truly internationalcentralised application and regis-tration system, not acceding itwould leave Ireland isolated andout of step with internationaldevelopments. Ireland’s eventualratification of the Madrid protocolwill save Irish business enterprisestime and expense by providing amore streamlined system for reg-istration and maintaining theirtrade marks internationally.

Gary Rice is a partner and YvonneKelly is an apprentice solicitor withthe Dublin law firm Beauchamps.

Footnote1 The Community Trade Mark is

administered by the Office forHarmonisation of the InternalMarket from Alicante, Spain,and has been in force since 1996.It is ‘unitary’, which means thatCTM registrations are valid forthe whole European Union.

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Ratification of Madrid protocolEXPERTSPHONE CARMEL OR RITA ON 01 672 4914/6 (FAX: 672 4915) or e-mail: [email protected]

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• Guarantee company – ten days, from £130• Single member company – ten days, £180

• New companies, using complete nominees – five days, £220

FAST • FRIENDLY • EFFICIENT • COMPETITIVE PRICES • MEMBERS OF EXPRESS SERVICE

THE LAW SOCIETY’S COMPANY SERVICE, BLACKHALL PLACE, DUBLIN 7

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BRUSSELS CONVENTION

Co-defendantsArticle 6(1) of the Brussels conven-tion provides that co-defendants maybe sued in the domicile of any one ofthem. Case189/87 Kalfelis vSchröder ([1988] ECR 5565,affirmed in subsequent cases)established that the claims must beso closely connected that it is expe-dient to hear and determine themtogether to avoid the risk of irrecon-cilable judgments resulting from sep-arate proceedings. However, matterswere somewhat complicated by ajudgment of the ECJ in C-51/97Reunion Européenne SA vSpliethoff’s Bevrachtingskantoor BVand the Master of the VesselAlblasgracht V002 ([1998] ECR I-6511). Much of the case turned onthe application of article 5(3) tointernational transportation.However, one of the questionsreferred to the ECJ concerned theapplication of article 6(1). In its judg-ment, it considered the nature of theconnection required for article 6(1).It held that ‘two claims in one actionfor compensation, directed againstdifferent defendants and based inone instance on contractual liabilityand in the other on liability in tort ordelict cannot be regarded as con-nected’. This judgment is troublingas, if followed, would appear to con-tradict decisions of English and Irishcourts applying Kalfelis, where thesecourts allowed claims in contract andtort to be heard by the one court.The matter has arisen squarelybefore the English courts and beenreferred to the ECJ for a final inter-pretative ruling in Watson v FirstChoice Holidays and Flights Limitedand Anor, 25 June 2001, CA (unre-ported). An English plaintiff took anaction against an English travel com-pany, First Choice, and joined aSpanish hotel company, Aparta, asan additional defendant. Apartaapplied to have the proceedingsagainst it set aside on the basis thatthe English courts had not jurisdic-tion to hear the claim against it. Theplaintiff had been on a package holi-day organised by First Choice. Hestayed in a hotel complex owned byAparta. One night he visited anotherpart of the resort at the invitation ofanother guest. He was deniedaccess and was chased away by asecurity guard. He ran away, jumpedover a low wall, not observing a dropof some 20 metres on the other sideof the wall to a road. He fell and was

seriously injured. His action againstFirst Choice was contractual. Heargued that they were liable for hisinjuries under an express contractualterm and that there was an impliedterm that the resort would be safe ofhazards and that security staff wouldbe properly trained and supervised.His claim against Aparta was in tortfor negligence in relation to thebehaviour of its staff and the lack oflighting, fencing and warning. LloydLJ for the English Court of Appealwas inclined to hold that there was a‘substantial connection’ between thetwo actions, sufficient for article6(1). Apart from the existence of thecontract, the facts on which theclaims were based were identical.However, given the decision inReunion Européenne, the courtdecided to refer the matter to theECJ. The Court of Appeal has askedthe ECJ to rule on whether in a claimagainst one defendant in contract, asecond defendant against whomthere is a claim in tort can be joinedto the action, where there is a con-nection between the two claims ofsuch a nature that it is expedient tohear the claims together in order toavoid the risk or irreconcilable judg-ments resulting from separate pro-ceedings.

TortRecently the question of classifica-tion of a constructive trust claimbased on dishonest assistance hasarisen in the context of the Brusselsconvention. Did it fall within the spe-cial jurisdictional rules for torts,delicts and quasi delicts (article5.3)? In such a case, the courts ofthe place where the harmful eventoccurred can take jurisdiction. InCasio Computer Co Ltd v Sayo andOrs, 11 April 2001, CA (unreported),the English Court of Appeal consid-ered the matter. The case was acomplex one involving the fraudulenttransfer of funds. Sayo was a man-ager of Casio, a Japanese company.With the assistance of others inJapan he got control of US$30 mil-lion of Casio’s funds, which he wasto invest on company purposes.US$25 million was lodged to anaccount in London, controlled by anIsle of Man company, OVM. Thepresident of OVM was a Mr Kaiser.This money was subsequently trans-ferred to an account in the ChannelIslands in the name of another Isleof Man company of which a Ms Patelwas a director. Kaiser, Patel and oth-ers appear to have been aware of

the origin of the funds and had per-suaded Sayo to invest them in aproject to develop a golf course inGran Canaria. It transpired that thisgolf course project did not exist andthat these individuals were trying todefraud Sayo and his Japaneseassociates. Casio argued that Sayoand his associates were construc-tive trustees of its money. AsKaiser, Patel and others had alsobeen informed that the funds wereCasio’s, it argued that they werealso constructive trustees owingCasio a fiduciary duty. Tuckey LJheld that a constructive trust claimbased upon dishonest assistance iswithin the scope of article 5(3). Heheld that the harmful event tookplace in England. The act of dishon-est assistance was the use of theaccount in England and it was thusthe place of the event giving rise todamage. The place where damageoccurred was outside the jurisdic-tion.

CONTRACT

The European Commission hasadopted a communication launchinga broad debate on the problems fac-ing the internal market, given thedivergences between national lawsof contract. The communicationfocuses on the need for EU action inthis area. It sets out four differentoptions for improvement and isintended as the basis for a broadconsultation of business interests,legal practitioners, consumer groupsand academics. The four proposedoptions are: • Let market forces deal with any

problems that may exist • Identify the elements common to

most national contract law rulesand use them as a guideline fornational legislations when draw-ing up legislation or for use bynational courts and arbitrators intheir decisions

• Review and amend all relevantlegislation to simplify it andimprove its quality

• Create a new legal instrument atEU level in the area of contract.

The consultation period is to lastuntil 15 October 2001. Given the rad-ical nature of the communication andits potential impact on national law,the consultation period may beextended. The European Council atits meeting in Laeken is expected totake a decision as to the follow up ofthe communication.

LITIGATION

Taking of evidenceIn June 2001, a regulation wasadopted on co-operation betweennational courts in the taking of evi-dence in civil and commercial pro-ceedings. This will come into effectfrom 1 July 2004 and will applybetween all the member states ofthe EU with the exception ofDenmark. It will allow a civil court inone state to request a court inanother state to take evidence in itsstate. Such a request is to be madethe in official language of the placewhere the evidence is to be takenand in a prescribed form. Any appro-priate means can be used for thetransmission of these requests.The requested court is to acknowl-edge the request and is given 90days to execute the request. Article10 provides that a videoconferenceor teleconference can be request-ed. There are a number of groundsfor refusing a request where a per-son claims the right to refuse togive evidence or is prohibited fromdoing so by the law of the request-ed state or where the request fallsoutside the scope of the regulation.Article 17 allows a court in onestate to take evidence directly inanother state on request to the cen-tral body in the state concerned.The parties to the proceedings maybe requested to bear the fees ofexperts and interpreters and otherspecified costs. To ensure properimplementation of the regulation,the commission is required to pre-pare and maintain a manual settingout:• The courts on a state by state

basis which will undertake theexecution of such requests

• The central body in each stateresponsible for supplying informa-tion, resolving difficulties anddealing with applications underarticle 17

• The technical means available bycourts for receiving requestsunder the regulation

• The languages in which requestsmay be accepted in various states

• Any bilateral arrangements facili-tating the taking of evidencewhich are compatible with the reg-ulation.

As between member states, the reg-ulation supersedes any other bilater-al or multilateral agreement betweenthese states relating to the subjectmatter of the regulation. G

Recent developments in European law

People and places


57

Lots of competitionPictured at the recent launch of Competition law and practice are theauthor Vincent Power, partner and director of A&L Goodbody’s EU andcompetition law unit, Tánaiste Mary Harney and Frank Riordan, senior

partner at A&L Goodbody

Charity caseThe Galway Bar Association and the Western Bar raised £23,000 for theBurren Chernobyl Project in a charity run from Clifden to Galway on 30

June. Pictured at the presentation of the cheque are (left to right)Rosemary Finlay, the organiser of the event, Theresa Flynn of the BurrenChernobyl Project, Mike Ryan, president of the Galway Bar Association,Brother Liam O’Meara with Sergi from Belarus, Judge Moran, Geraldine

Costello and Judge Harvey Kenny

Law Society entertains the top brass

Seated (left to right) then president Ward McEllin, Tánaiste andMinister for Enterprise, Trade and Employment Mary Harney, and then senior vice-president Elma Lynch. Standing are (left to right)

deputy director general Mary Keane, then junior vice-president MichaelIrvine, director general Ken Murphy and special advisor

to the tánaiste, John O’Hara

Seated (left to right) Taoiseach Bertie Ahern, then president WardMcEllin, and Minister for Local, Community and Family Affairs Dermot

Ahern. Standing are (left to right) then senior vice-president ElmaLynch, registrar of solicitors PJ Connolly, the chairman of the

delegation committee David Martin, director general Ken Murphy and deputy director general Mary Keane

SOLICITORS’HELPLINE

01 284 8484The Solicitors’ Helpline is available to assist every member of the profession with anyproblem, whether personal or professional.The service is completely confidential and totally independent of the Law Society.If you require advice for any reason, phone: 01 284 8484

People and places


58

Rights here, right nowPictured at the recent conference organised by the

Law Society’s Employment and Equality LawCommittee in association with the National Disability

Authority, entitled Legal and social rights of thedisabled: implications of the equality legislation, are(left to right) Brian Miller of the National DisabilityAuthority, Minister of State Mary Wallace, Judge

Declan Budd, president of the Law ReformCommission, and Brian Sheridan of the society’s

Employment and Equality Law Committee

Roscommon purposePictured at the AGM of the Roscommon Bar Association in September are (seated, left toright) Peter Jones, president of the association, Law Society Director General Ken Murphy,

then president of the society Ward McEllin, Padraig Kelly and Marie Connellan. Standing are(left to right) Harry Wynne, John V Kelly, Con Harlow, Rebecca Finnerty, Alan Gannon,

Terry O’Keefe, Jonathan Wynne and Gerard Gannon

Nasty or Nice?Pictured at the recent Hibernian law journal lectureentitled ‘Post Nice or anti-Nice’ are (left to right)

former attorney general John Rogers, Vincent Power,partner in A&L Goodbody, and Gráinne de Burca,

professor of European law at the European UniversityInstitute, Florence

50 years in practiceAt a dinner hosted recently by the Mayo Bar Association for a number of solicitors who havebeen in practice in the county for 50 years were (seated) Mayo bar president James Cahilland then president of the Law Society Ward McEllin, and (standing, left to right) RosemaryLoftus, Don Shiels, Patrick U Murphy, Mary King, John Gordon, Kevin Loftus, Judge Carroll

Moran, and county registrar Fintan Murphy

Solve your storage problems with a new-style Gazette magazinebinder. Each easy-to-use binder takes a year’s worth of issues andis finished in blue leatherette with the Gazette logo in gold on thefront and spine.

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People and places


59

Pictured with Law Society Director General Ken Murphy and immediate past president Ward McEllin at theJustice Media Awards ceremony in Blackhall Place in November were: RTÉ’s Joe Little, who won the over-all award and also the television category; Carol Coulter of the Irish Times who won the daily newspapercategory; Roisin Boyd and Ryan Tubridy of RTÉ’s Five-Seven Live who won the radio category; and Jerome

Reilly of the Sunday Independent who took the honours in the non-daily newspaper category

Joe Little Carol Coulter

Roisin Boyd and Ryan Tubridy Jerome Reilly

JUSTICE MEDIA AWARDS 2001

Cyclical trendsVincent Crowley of the Dublin lawfirm Collins Crowley & Co, ErcusStewart SC, and Justin McKenna

of Dublin firm Partners at Lawpictured at a charity cycling

event for Goal

Southern comfortThe Law Society’s then president Ward McEllin and director general Ken Murphy flank Patrick Casey, president of the Southern Law Association,

at the association’s AGM in Cork last month

Every day I write the book:Gazette advertising manager Seán

Ó hOisín presents the all-newGazette yearbook and diary to Law

Society President Elma Lynch

Apprentices’ page


60

It’s the end of an eraSADSISolicitors Apprentices Debating

Society of Ireland

Code ofconductAs recommended by

SADSI, a code ofconduct for training andtrainee solicitors can now beintroduced. The EducationCommittee of the LawSociety, following anamendment to regulation 4of the 1997 Solicitors Actsregulations, now has thepower to prescribe this. Thisis mirrored in the indenturesof apprenticeship, whereboth the training and traineesolicitors covenant to abideby the terms of the code ofconduct.

On a high noteThe February 2000 PPC2 ball was held on 6 September in the

Shelbourne Hotel. Fine wining and dining were the order of the night, followed by a spot prize bonanza, and dancing ’til the wee hours. Thenight was a resounding success and rounded the course off on a high

note. The organising committee (pictured, left to right) were AlisonHodge, Madeleina Loughrey-Grant, Shane Bourke, and Mary Kelleher, allof McCann Fitzgerald. They would like to thank the Law Society, Ulster

Bank and Rochford Brady for their generous support

Commiserations to SADSI’s Ronan Fehily andWilly Fogarty, who werebeaten by the King’s Innsteam in arguing the motion‘That this house wouldelect its judges’. We lookforward to a less formal re-match in the near future!Anyone without priorexperience who isinterested in participatingin a maiden speakersdebate should contactSADSI’s debating co-ordinator, Louise Rouse,tel: 01 618 0000.

Subject to the agreement ofthe minister for justice, the

terms ‘master’ and ‘apprentice’are to become labels of thepast. A submission by SADSI

to bring an end to this medievalterminology has finally beenratified by the EducationCommittee of the Law Societyand by Law Society Council.

One of the proposedamendments to the Solicitors Actsprovides for former ‘masters’ tobe known as ‘training solicitors’and ‘apprentices’ to be known as

Three monthcreditThe Education Committee ofthe Law Society hasextended the allowance onthe two-year apprenticeshipperiod to four months (achange from three months) inrespect of the periodsapprentices may have spentin a solicitor’s office beforethe commencement of thePPC1.

Pictured at the training session in employment and equality law inthe Labour Court on 8 October are Ann Brady, Joe Power, Paul

Lamon, Michael Considine and Colm McKeown. Kieran O’Mara ofO’Mara Geraghty McCourt, Madeline Reid of the Office of theDirector of Equality Investigations, and Hugh O’Neill, registrar of the Labour Court, presided over the event, and we are very

grateful for their assistance. Many thanks also to Terence McCrann of McCann Fitzgerald

Indentures ofapprenticeship

Trainee solicitors wishing tochange apprenticeships

should be aware that a specificform of assignment, form 5,has been introduced in the2002 Solicitors Acts regulations,which includes a provision forany conditions preceding thechange that may be directed bythe Education Committee.

Bowing outThis is the final Gazette page

of the SADSI committeefor 2001. I would like to takethis opportunity, as auditor, tothank all the committee fortheir hard work and relentlessgood humour during the year.I would also like to thank theLaw Society staff and,particularly, TP Kennedy andMichael Peart for theircourtesy and generosity.

John EdmundDoyle MemorialDebate

‘trainee solicitors’. It is hopedthat the new classification willreflect a more egalitarian and21st century workingenvironment.

Professional information


61

ADVERTISING RATES

All advertisements must be paid for prior to publication. Deadline forJanuary/February Gazette: 18 January 2002. For further information, contactCatherine Kearney or Nicola Crampton 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 inthe schedule hereto for the issue of aland certificate as stated to have beenlost or inadvertently destroyed. A newcertificate will be issued unless notifi-cation is received in the registry with-in 28 days from the date of publicationof this notice that the original certifi-cate is in existence and in the custodyof some person other than the regis-tered owner. Any such notificationshould state the grounds on which thecertificate is being held.(Register of Titles), Central Office, LandRegistry, Chancery Street, Dublin (Published 7 December 2001)

Regd owner: John Brady; Folio:5047F; Lands: Aghnadaragan;Area: 0.908 acres; Co Cavan

Regd owner: Patrick Kilkelly; Folio:1496; Lands: Townland of Rossaliaand Corranroo and Barony ofBurren; Area: 7.6105 hectares and8.4377 hectares; Co Clare

Regd owner: Edmond Lyons; Folio:768F; Lands: Known as theTownland of Monfieldstown situatein the Barony of Cork; Co Cork

Regd owner: Denis Calnan (deceased)and Veronica Calnan; Folio: 45899;Lands: Known as the Townland ofGrillagh situate in the Barony ofCarbery East (east division) and theCounty Cork; Co Cork

Regd owner: Neil Durning, PeterDurning, Patricia Kilgour andAnne Coates; Folio: 29825; Lands:Aghavannen Near; Area: 0.3096hectares; Co Donegal. As tenantsin common of a one quarter shareeach

Regd owner: William Nicholl; Folio:9954, 9963; Lands: Ballynahone(part); Area: 81.315 acres; CoDonegal

Regd owner: The County Council ofthe County of Dublin; Folio:DN912; Lands: Property situate inthe Townlands of Clondalkin andYellowmeadows and Barony ofUppercross; Co Dublin

Regd owner: Shinko MicroelectronicsIreland Limited; Folio:DN38806F; Lands: Property situ-ate to the east side of Blessingtonroad in the parish and town ofTallaght, property situate in theTownland of Killinarden andBarony of Uppercross and propertysituate to the south of the Tallaghtbypass in the town of Tallaght; CoDublin

Regd owner: The County Council ofthe County of Dublin; Folio:DN8763; Lands: a plot of ground

situate in the Townland ofDarcystown and Barony ofBalrothery East; Co Dublin

Regd owner: Kathleen Russell; Folio:DN99989F; Lands: Property inthe Townland of Coolatrath Eastand Barony of Nethercross area;Co Dublin

Regd owner: Dorothy Keys; Folio:DN74236L; Lands: Propertyknown as no 7 Orchard Terrace,upper Grangegorman, situate inthe parish of Grangegorman andnorth-central district; Co Dublin

Regd owner: Niall Glynn and BredaGlynn, 26 Arnold Park,Glenageary, Folio: 97026F; CoDublin

Regd owner: Gregory Geoghegan;Folio: DN77595L; Lands:Property being Unit 21, FirstFloor, Palmerstown Centre; CoDublin

Regd owner: Francis and MaryMelia; Folio: DN31117F; Lands:Property situate in the Townlandof Clonsilla and Barony ofCastleknock; Co Dublin

Regd owner: Sean Keeley; Folio:DN43201F; Lands: Property situ-ate in the Townland ofTaylorsgrange and Barony ofRathdown; Co Dublin

Regd owner: Mary Bonnie Cummins;Folio: DN125328F; Lands:Property known as 17 Balkill Park,Howth, situate to the west ofBarglass Road; Co Dublin

Regd owner: Kevin Peakin; Folio:DN1048L; Lands: Propertyknown as 52 Mount ProspectAvenue situate on the north side ofthe said avenue in the parish anddistrict of Clontarf; Co Dublin

Regd owner: Hibernian TrusteeCompany Limited; Folio:DN4182; Lands: Property situateon the north and south sides ofCrumlin Road, north and southsides of Raphoe Road, west side ofWindmill Road in the parish anddistrict of Crumlin; Co Dublin

Regd owner: James McDermott;Folio: DN938; Lands: Propertysituate in the Townland ofBorranstown and Barony ofBalrothery West; Co Dublin.

Regd owner: Enzo Farinello; Folio:DN5666F; Lands: Property situ-ate in the Townland of Knocklyonand Barony of Uppercross; CoDublin

Regd owner: Enzo (Orse Vincenzo)Farinella; Folio: DN36763L;Lands: Property situate in theTownland of Knocklyon andBarony of Uppercross; Co Dublin

Regd owner: John William Burke;Folio: 10221; Lands: Townland ofRinville East and Barony ofDunkellin; Area: 33 acres, 3 roods

and 16 perches; Co GalwayRegd owner: Francis and Mary

Dorgan; Folio: 11779; Lands:Townland of Kinard West and Doand Barony of Corkaguiny and Do;Co Kerry

Regd owner: David Joy (deceased);Folio: 13866; Lands: Townland ofGortnaskarry (part) and Barony ofDunkerron North; Area: 53.38acres; Co Kerry

Regd owner: Thomas B Fitzgerald;Folio: 29448; Lands: Townland ofBanna Mountain in Barony ofBanna Mountain; Co Kerry

Regd owner: Leaf Ireland Limited;Folio: 7559; Lands: Townland ofKilcock and Barony of Ikeathy andOughterany; Co Kildare

Regd owner: Liam Butler; Folio:11990; Lands: Carmagh (parts);Area: 7.343 acres; Co Leitrim

Regd owner: Thomas Nethercottand Teresa Nethercott(deceased); Folio: 14145; Lands:Townland of Ballybrown andBarony of Pubblebrien; CoLimerick

Regd owner: John P Ryan(deceased); Folio: 2135; Lands:Townland of Crehaun andBarony of Coonagh; CoLimerick

Regd owner: Kathleen McNamara;Folio: 2744L; Lands: Townlandof Shannabooly and Barony ofNorth Liberties; Co Limerick

Regd owner: Marie Copues; Folio:4427F; Lands: Townland ofAskeaton and Barony of ConnelloLower; Area: 1.3 acres; CoLimerick

Regd owner: Thomas Croghan;Folio: 8502; Lands: Cloondara;

DUBLIN SOLICITORS’PRACTICE OFFERS

AGENCY WORK IN NORTHERN

IRELAND* All legal work undertaken

on an agency basis* All communications to clients

through instructing solicitors* Consultations in Dublin if required

Contact: Séamus ConnollyMoran & Ryan, Solicitors,

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

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

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

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

NORTHERNIRELAND

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]



62

SOLICITOR URGENTLY REQUIREDOverseas Contract

Established general practice in the Turks & Caicos Islands seekssolicitor for immediate position. Minimum requirement – 5 yearsPQE. Details of salary, etc. available on request. Please reply instrictest confidence to [email protected] or to:

FINBAR F DEMPSEY & COMPANYPO Box 70Grand Turk

Turks & Caicos IslandsPh: 649-946-2245. Fax: 649-946-2758

HIRE EXPERIENCEI am retiring from private practice to act as a freelanceconsultant solicitor. I am looking for challenging,short-term and/or part-time assignments in generalpractice, practice administration, or other wise, asrequired. I am totally flexible, mobile and computerliterate.

Esmond ReillySolicitor, 4 Orchard Rise, Stamullen, County Meath.

Telephone: 01 841 6022. Fax: 01 841 6024Mobile: 087 256 1925. E-mail: [email protected]

Area: 19.1937; Co LongfordRegd owner: Patricia Faughey; Folio:

6906; Lands: Edenagrena; Area:0.475 hectares; Co Louth

Regd owner: Thomas Grimes; Folio:17903; Lands: Townland ofDrumneen and Barony of Mayo;Area: 20.902 hectares; Co Mayo

Regd owner: Margaret Bye; Folio:3047, 17963; Lands: Donore andLionsden; Area: 78.9 acres and9.2625 acres; Co Meath

Regd owner: John Murray; Folio:20551; Lands: Clonycavan; CoMeath

Regd owner: Bridget McBennett;Folio: 19096; Lands: Aghakista;Co Monaghan

Regd owners: Patrick Joseph Bell andFlorence Bell; Folio: 6468F;Lands: Srah and Barony ofBallycorran; Co Offaly

Regd owner: Patrick Joseph Moore(deceased); Folio: 7248; Lands:Moyclare and Barony ofGarrycastle; Co Offaly

Regd owner: Comhlucht SiuicreÉireann Teoranta; Folio: 18952and 3782F; Lands: Commons andBallycarrane and Barony ofEliogarty; Co Tipperary

Regd owner: Liam Dwyer (deceased);Folio: 2689; Lands: Farranmac-brien and Barony of OrmondLower; Co Tipperary

Regd owner: Michael Moylan; Folio:16600; Lands: Dary and Barony ofOrmond Lower; Co Tipperary

Regd owner: Maja Hein; Folio: 8314;Lands: Roughan and Barony ofOrmond Lower; Co Tipperary

Regd owner: Helena Kane; Folio:12926, 12927; Lands: Ranaghan;Area: 65.9125 acres; CoWestmeath

Regd owner: Reverend MartinClancy, Patrick Sullivan, JohnKilbride, James Ryan, JamesBrennan and Liam Collins; Folio:6024; Lands: Carnew and Baronyof Shillelagh; Co Wicklow

WILLS

Boylan, Maureen, 19 LawnswoodPark, Stillorgan, Co Dublin. Wouldany person having knowledge of a willbeing made by the above named,please contact Bergin, Burke & Ryan,Solicitors, 63 Mary Street, Dublin 1,tel: 01 878 0320, fax: 01 878 0233

Carmody, Patrick (deceased), late ofCloughkeating, Patrickswell, CoLimerick. Would any person havingknowledge of a will executed by theabove-named deceased who died on 8February 2001, please contactCulhane, Judge & Co Solicitors, TheSquare, Newcastle West, CoLimerick, tel: 069 62969, fax: 06962396

Daly, Bill (otherwise known asWilliam), late of 32 Homefarm Road,Drumcondra, Dublin 9. Would anyperson having knowledge of a willexecuted by the above-nameddeceased who died on 12 March 1992,please contact Doyle Hanlon,Solicitors, 6 Richmond Road,Drumcondra, Dublin 3, tel: 01 8369300, fax: 01 836 7474, e-mail: [email protected]

Doogan, Sheila (deceased), late ofMeenderrynasloe, Annagry, CountyDonegal. Would any person havingany knowledge of a will executed bythe above-named deceased who diedon 5 October 1980, please contactPatrick J Sweeney & Co, Solicitors,Dungloe, Co Donegal

Fitzpatrick, Margorie (otherwiseMargaret M Fitzpatrick) late of 8Castlecourt, Killiney Hill Road,Killiney, County Dublin and formerlyof 4 The Maples, Monkstown Valley,Monkstown, County Dublin. Wouldany person having knowledge of a willmade by the above-named deceasedwho died 24 July 2001, please contact

Michael Sheil & Associates,Solicitors, Temple Court, TempleRoad, Blackrock, County Dublin

Kelly, Hugh F (deceased), late of 28Oliver Plunkett Avenue, DunLaoghaire, Co Dublin. Would anyperson having knowledge of a willmade by the above-named deceasedwho died on 31 July 2001, please con-tact Maguire McNeice & Co,Solicitors , 2 Main Street, Bray, CoWicklow, tel: 01 286 2399, fax: 01282 9428

Kelly, William, 32 HazelwoodAvenue Bay Estate, Dundalk, CoLouth, and formerly of Clondra, CoLongford. Would any person havingnotice of a will being made by theabove named, please contactConnellan Solicitors, 3 ChurchStreet, Longford tel: 043 46440, fax:043 46020

Martin, John (deceased), late of 6Bloomfield Avenue, South CircularRoad, Dublin 8. Would any personhaving knowledge of a will made bythe above-named deceased pleasecontact Barry Healy & Company,Solicitors, ‘Laurel Lodge’, Hillside,Monaghan, tel: 047 71556, fax: 04771557

Mescal, Jane, of The Weirs, Tuam,Co Galway and formerly of Killernan,Dunsallagh, Ennis, Co Clare. Wouldany person having knowledge of a willmade by the above-named deceasedwho died on 18 May 1999, pleasecontact TA O’Donoghue & Son,Solicitors, Tuam, Co Galway, tel: 09324414

Reynolds, Thomas (deceased), late ofNorthbrook Hotel, Northbrook Road,Ranelagh, Dublin 6 and 187 ClonliffeRoad, Drumcondra, Dublin 3. Wouldany person having knowledge of a willexecuted by the above-nameddeceased who died on 15 April 2001,please contact Anne Greene, Solicitor,58 The Palms, Roebuck Road, Dublin14, tel & fax: 01 283 1484

Seery, Francis Joseph (Frank)(deceased), late of Newforest,Kilbeggan, Co Westmeath, formerlyof 7 Riverview Cottages, Julianstown,Drogheda, Co Meath, and 3Hampton Place, Balbriggan, CoDublin. Would any person havingknowledge of a will made by theabove-named deceased who died on 7September 2001, please contact NJDownes & Co, Solicitors, Mullingar,Co Westmeath, tel: 044 48646, fax:044 43447

MISSINGHEIRS TRACED

+44 (0)20 7549 0900Fax: +44 (0)20 7549 0949 • DX: 53347 Clerkenwell

Email: [email protected] • www.title-research.com

WILLSEARCH

Title Research



63

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

Twohig, Timothy (deceased), late of14 Ashe Street (formerly Mill Street),Clonakilty, County Cork. Would anyperson having knowledge of a willexecuted by the above-nameddeceased who died on 21 January1961, please contact McCarthy & Co,Solicitors, 10 Ashe Street, Clonakilty,Co Cork, tel: 023 33348, fax: 02333105

Walsh, Edmond P (Ned), late ofLower Kilmona, Grenagh, Co Cork.Would any person having knowledgeof the whereabouts of the original willdated 20 April 1994 or any subse-quent will of the above-nameddeceased who died on 23 April 2001,please contact McCarthy andMcCarthy, Solicitors, PremierHouse, Main Street, Ballincollig, CoCork, tel: 021 487 0550

EMPLOYMENT

General practice: solicitorrequired, Dublin 7. Mainly for civillitigation (plaintiff work), also someprobate work: Newly qualified.Woods & Company, 41 Arran Quay,Dublin 7, contact: Godfrey Hogan,tel: 01 872 2022, e-mail:[email protected]

Solicitor required – PQE desirable.Salary commensurate with experi-ence. Please reply with CV to JimHoulihan, Desmond A Houlihan &Son, Solicitors, Birr, Co Offaly

Part-time locum solicitor requiredfor approximately 12 weeks, early tomid January on 2/3 day week (mustinclude Wednesdays). Experience inDistrict Court, litigation and con-veyancing essential. Reply in writingto Patricia Holohan & Co, 5 TheSteeples, Timmons Hill, DublinRoad, Navan, Co Meath

Locum solicitor required for officein Naas, Co Kildare, to cover mater-nity leave. Must be experienced inconveyancing and litigation. MidJanuary 2002. Reply in writing toHanahoe & Hanahoe, Solicitors, 16North Main Street, Naas, Co Kildare

Solicitor with PQE practising cer-tificate and savvy available for locumposition. Divorce and personal injurywork in Dublin area preferred, tel: 01660 5893, mobile: 087 671 3671

Galway solicitor is interested inundertaking District Court agencywork in the city and surroundingareas for out-of-town solicitors.Please reply in strictest confidence toBox no 100

Dublin-based solicitor available forpart-time position. PQE in conveyanc-ing, family, probate, and litigation.Reply to Box no 101

Solicitor – very reliable. Would like tohear from another solicitor with a viewto partnership, Cork city or county.Reply to Box no 102

Experienced locum solicitor withexperience in all areas of law seekslocum work. South Western regionpreferred. Reply to Box no 103

MISCELLANEOUS

Northern Ireland solicitors provid-ing an efficient and comprehensivelegal service in all contentious/non-contentious matters. Dublin-basedconsultations and elsewhere. Feeapportionment. ML White, Solicitors,43-45 Monaghan Street, Newry,County Down, tel: 080 1693 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:080 1693 61616, fax: 080 1693 67712

London solicitors will advise on UKmatters and undertake agency work. Allareas. Corporate/private clients. Ellis& Fairbairn, 26 Old Brompton Road,South Kensington, London SW7 3DL,tel: 0044 171 589 0141, fax: 0044 171225 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 or else-where if required. Fee sharing envis-aged. Donnelly Neary & Donnelly, 1Downshire Road, Newry, Co Down,tel: 080 1693 64611, fax: 080 169367000. 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 websiteat www.levenes.co.uk

EYE INJURIES ANDOPHTHALMOLOGICAL

NEGLIGENCE

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

Consultant Ophthalmic Surgeon

Experienced expert witness inophthalmological personal

injury, medical negligence and civil litigation

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

L43 5SWsecretary: +44 (0) 151 6047047

fax: +44 (0) 151 6047152e-mail: [email protected]

Publican’s ordinary seven-daylicence for sale. Reply to CorneliusSheehan & Co, Solicitors, 2 AlmaPlace, Monkstown, Co Dublin, tel: 01230 3570, fax: 01 230 3573

TITLE DEEDS

James Boothman (deceased). Wouldany person knowing the whereaboutsof deeds to the property of the lateJames Boothman at 39 WhitebarnRoad, Churchtown, Dublin 14,please contact Hinkson, Solicitors,Field’s Corner, Churchtown, Dublin14, tel: 01 296 3211, fax: 01 296 3213

In the matter of the Landlord andTenant (Ground Rents) Acts, 1967 -1994 and in the matter of theLandlord and Tenant (GroundRents) (No 2) Act, 1978: an applica-tion by Maureen McElhinney, for-merly of 17 Moncks Place but nowof 45 Woodview Grove,Blanchardstown, Dublin 15Take notice that any person havingany interest in the freehold estate ofthe following property: All that andthose the yard adjoining Number 10Leslie Buildings, formerly LesliePlace, rear of Avondale Road,Phibsborough, in the parish ofGrangegorman and City of Dublin,presently in the occupation of thelessee as tenant from the lessors andmore particularly delineated anddescribed in the map thereof there-unto annexed and thereon colouredred.

Take notice that MaureenMcElhinney intends to submit anapplication to the country registrarfor the County/City of Dublin forthe acquisition of the freehold inter-est in the aforesaid properties andany party asserting that they hold asuperior interest in the aforesaid

premises (or any of them) are calledupon to furnish evidence of title tothe aforementioned premises to thebelow named within 21 days fromthe date of this notice.

In default of any such noticebeing received, MaureenMcElhinney intends to proceed withthe application before the countyregistrar at the end of 21 days fromthe date of this notice and will applyto the county registrar for theCounty/City of Dublin for direc-tions as may by appropriate on thebasis that the person or persons ben-eficially entitled to the superiorinterest, including the freeholdreversion are unknown or unascer-tained.Date: 22 October 2001Signed: John P Redmond & Company(solicitors for the applicant), MarshalseaCourt, 22/23 Merchant’s Quay, Dublin 8

In the matter of the Landlord andTenant (Ground Rents) Acts, 1967 -1994 and in the matter of theLandlord and Tenant (GroundRents) (No 2) Act, 1978 and in thematter of 149 D, E, and F NorthStrand, Dublin: an application byDavid and Rita HarrisTake notice that any person havingany interest in the freehold estate ofthe following property: 149 D, E,and F, North Strand in the City ofDublin.

Take notice that David Harris andRita Harris intend to submit anapplication to the country registrar


64


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for the County/City of Dublin forthe acquisition of the freehold inter-est in the aforesaid properties and anyparty asserting that they hold a supe-rior interest in the aforesaid premises(or any of them) are called upon tofurnish evidence of title to the afore-mentioned premises to the belownamed within 21 days from the dateof this notice.

In default of any such notice beingreceived, David Harris and RitaHarris intend to proceed with theapplication before the county regis-trar at the end of 21 days from thedate of this notice and will apply tothe county registrar for theCounty/City of Dublin for directionsas may by appropriate on the basisthat the person or persons beneficial-ly entitled to the superior interest,including the freehold reversion, areunknown or unascertained.Date: 24 October 2001Signed: Kevin Gaffney of GaffneyHalligan & Co (solicitors for the appli-cant), Artane Roundabout, MalahideRoad, Artane, Dublin 5

In the matter of the Landlord andTenant (Ground Rents) Acts, 1967 -1994 and in the matter of theLandlord and Tenant (GroundRents) (No 2) Act, 1978 and in the

matter of the Landlord and Tenant(Ground Rent) Acts 1967-1984:notice of intention to acquire thefee simpleTo any such person or persons forthe time being entitled to the interestin the freehold estate of the follow-ing property: The premises known as25 Leeson Park, Dublin 4 in theCounty of the City of Dublin.

Take notice that the executors ofthe estate of Miss Maeve Molloy,deceased, being persons entitledunder the provisions of sections 9and 10 of the Landlord and Tenant(Ground Rents) (No 2) Act, 1978intend to submit an application tothe county registrar for theCounty/City of Dublin for the acqui-sition of the freehold interest in theaforesaid property and any partyasserting that they hold a superiorinterest in the aforesaid property (orany of them) are called upon to fur-nish evidence of title to the afore-mentioned premises to the belownamed within 21 days from the dateof this notice.

In default of any such notice beingreceived, the executors of the estateof Miss Maeve Molloy, deceased,intend to proceed with the applica-tion before the county registrar atthe end of 21 days from the date of

this notice and will apply to thecounty registrar for the County/Cityof Dublin for directions as may beappropriate on the basis that the per-son or persons beneficially entitledto the superior interest, including thefreehold reversion in the property,are unknown or unascertained.Date: 6 November 2001Signed: A&L Goodbody (solicitors for theapplicant), International FinancialServices Centre, North Wall Quay,Dublin 1

In the matter of the Landlord andTenant (Ground Rents) Acts, 1967 -1994 and in the matter of theLandlord and Tenant (GroundRents) Act, 1978 and in the matterof purchase of freehold estate ofproperty situate at 4 Fairview,Clontarf, Dublin 3: an applicationby Cathal McHugh, EamonnMcHugh and Martin Kinsella trad-ing as McHugh Kinsella & Co,Accountants, Garadice House, 3-4Fairview, Clontarf, Dublin 3Take notice that any person havingan interest in the freehold estate ofthe property known as 4 Fairview,Clontarf, Dublin 3, held under anindenture of lease dated 15 July 1839and made between Jane Mooney,Philip Mooney, Elizabeth Mooney

and James Mooney of the one partand Richard Moore of the other partwere demised unto the said RichardMoore for a term of 200 years from16 January 1840 subject to the yearlyrent of seven pounds and ten shillingssterling and subject to the convenantsand conditions on the part of the les-see therein contained.

Take notice that Cathal McHugh,Eamonn McHugh and MartinKinsella intend to submit an applica-tion to the country registrar for theCounty/City of Dublin at Áras UíDhálaigh, Inns Quay, Dublin 7, forthe acquisition of the freehold interestin the aforesaid property and anyparty asserting that they hold a supe-rior interest in the aforesaid propertyare called upon to furnish evidence oftitle to the aforementioned premisesto the below named within 21 daysfrom the date of this notice.

In default of any such notice beingreceived, Cathal McHugh, EamonnMcHugh and Martin Kinsella intendto proceed with the application beforethe county registrar at the end of 21days from the date of this notice andwill apply to the county registrar forthe County/City of Dublin for direc-tions as may by appropriate on thebasis that the person or persons bene-ficially entitled to the superior inter-est, including the freehold reversion,are unknown or unascertained.Date: 9 November 2001Signed: Sean Meaney & Company,Solicitors, Riversdale House, 139 LowerDrumcondra Road, Dublin 9

In the matter of the Landlord andTenant (Ground Rents) Acts, 1967 -1989: notice of intention to acquirethe fee simpleAll that and those the dwellinghouseand garden situate at Upper MainStreet, Borrisoleigh and County ofTipperary in the possession of MaeveBane and Patrick Bane, held under ayearly tenancy at a yearly rent of£2.50.

Take notice that we, Maeve Baneand Patrick Bane, both of UpperMain Street, Borrisoleigh, Thurles,Co Tipperary, being persons whomwe believe to be entitled under sec-tion 3 of the Landlord and Tenant(Ground Rents) Act, 1967, propose topurchase the fee simple in the landand premises described in paragraphone.

And further take notice that suchapplication shall be made before thecounty registrar on 21 January 2002at Clonmel Courthouse, Clonmel, CoTipperary.Date: 21 November 2001Signed: James J Kelly & Son (solicitorsfor the applicants), Patrick Street,Templemore, Co Tipperary

LAND REGISTRYCork Road, Waterford

TO WHOM IT MAY CONCERN

Re: Estate of Patrick Daly, deceasedand Re. Lands of Curraghverara, County Limerick.Application for first registration by John Reardon

Reference No. P4242/98

TAKE NOTICE that John Reardon of Baskethill,Pallasgreen, County Limerick has applied to be registeredas owner in fee simple of part of the Townland ofCurraghverara in the Barony of Clanwilliam County ofLimerick containing 3.84 hectares more particularly shownon the map lodged with the application and which may beinspected in this office.

Any objection to such registration must be filed in writ-ing in this office and duly verified within one calendarmonth of the date of publication of this notice.

In the absence of a valid objection being received withinthat time registration will proceed.

Dated the 30th day of November, 2001.

Brian KellyExaminer of TitlesLand RegistryCork RoadWaterford.

contents gazette lawsociety...update 43 practice notes 44 annual report of the disciplinary tribunal...

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