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MEASURE FOR MEASURE:High Court costs

Gazette€3.75 Jan/Feb 2008

GazetteL A W S O C I E T Y

INSIDE: DIVORCE 10 YEARS ON • BUYING/SELLING PRACTICES • FOCUS ON GALWAY • YOUR LETTERS

MEASURE FOR MEASURE:High Court costs

2 www.lawsociety.ie

LAW SOCIETY GAZETTE JAN/FEB 2008 CONTENTS

Editor: Mark McDermott. Deputy editor: Dr Garrett O’Boyle. Designer: Nuala Redmond.Editorial secretaries: Catherine Kearney, Valerie Farrell. For professional notice rates (lost land certificates, wills, title deeds, employment, miscellaneous), see page 67.

Commercial advertising: Seán Ó hOisín, 10 Arran Road, Dublin 9; tel: 01 837 5018, fax: 01 884 4626, mobile: 086 811 7116, email: [email protected]. Printing: Turner’s Printing Company Ltd, Longford.

Editorial board: Stuart Gilhooly (chairman), Mark McDermott (secretary), Paula Fallon,Michael Kealey, Mary Keane, Aisling Kelly, Patrick J McGonagle, Ken Murphy, Philip Nolan.

REGULARS

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Jan/Feb 08

Volume 102, number 1Subscriptions: €57

GazetteGazetteL A W S O C I E T YOn the coverWhat light through yonderwindow breaks? ’Tis an accountof High Court costs, measure formeasure. Asses are made tobear, and so are you: the wordsexpressly are “a pound of flesh”.Let every eye negotiate for itself,but all that glisters is not gold

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PIC: GETTY IMAGES/GAZETTE STUDIO

President’s message

News

Comment13 Letters

Analysis16 News feature: new LRC programme18 News feature: Justice Media Awards 200720 Human rights watch: if you want blood, you’ve got it20 One to watch: new marriage regulations

People and places

ObituaryEugene Carey, 1955-2007

Student spotlight

Book reviewPrinciples of Irish Property Law

Briefing56 Council report57 Practice notes58 Legislation update: 17 November ’07 – 16 January ’0860 Solicitors Disciplinary Tribunal61 Firstlaw update63 Eurlegal: the Lisbon Treaty

Professional notices

Recruitment advertising

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LAW SOCIETY GAZETTE JAN/FEB 2008CONTENTS

The Law Society of Ireland can accept no responsibility for the accuracy of contributedarticles or statements appearing in this magazine, and any views or opinions expressed arenot necessarily those of the Law Society’s Council, save where otherwise indicated. Noresponsibility for loss or distress occasioned to any person acting or refraining from actingas a result of the material in this publication can be accepted by the authors, contributors,editor or publishers. The editor reserves the right to make publishing decisions on anyadvertisement or editorial article submitted to this magazine, and to refuse publication or toedit any editorial material as seems appropriate to him. Professional legal advice shouldalways be sought in relation to any specific matter.

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

COVER STORY: Measure for measureWhat is the basis of the High Court’s jurisdiction tomeasure costs, and when is measurement of costs moreappropriate than taxation? Hugh Kennedy and BridO’Flaherty break out their measuring tapes

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Ten years afterTen years after divorce was introduced in Ireland, thereare about 60,000 divorced people here. But what type oflegal framework and practice should underpin the law inthis area? Geoffrey Shannon’s intentions are honourable

28

Disputed territoryThe Ryanair judgment limits the Labour Court’sjurisdiction to issue recommendations with regard tonon-unionised workplaces. But it leaves many areasopen to further interpretation, writes Maura Connolly

32

Breathing easyIn the third article in our series on how an economicdownturn might affect solicitors, Barry Lyons says thatthe right knowledge can lead to new business byproviding examinership solutions to difficulties faced byclient companies

36

Sweetening the potIn the second of a two-part series, Hilary Haydondemystifies the complexities of valuing, buying andselling a solicitor’s practice

40

Into the WestIn our continuing series of snapshots of the professionaround the country, Colin Murphy finds plenty ofchange in Galway, some of it led by a cabal of ‘youngguns’ who think that some things could be done better

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FEATURES

Get more at lawsociety.ieGazette readers can access back issues of themagazine as far back as Jan/Feb 1997, right upto the current issue at lawsociety.ie.

You can also check out: • Current news• Forthcoming events, including the new

distance learning course in District Courtprocedures, 23 February

• Employment opportunities• The latest CPD courses

… as well as lots of other useful information

PROFESSIONAL NOTICES: send your small advert details, with payment, to: GazetteOffice, Blackhall Place, Dublin 7, tel: 01 672 4828, or email: [email protected] CHEQUES SHOULD BE MADE PAYABLE TO: LAW SOCIETY OF IRELAND.

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HOW TO REACH US: Law Society Gazette, Blackhall Place, Dublin 7.Tel: 01 672 4828, fax: 01 672 4877, email: [email protected]

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LAW SOCIETY GAZETTE JAN/FEB 2008PRESIDENT’S MESSAGE

client or in the capacityof an arbitrator ormediator. In the course ofthe year, the Society willbe launching newschemes of arbitrationand mediation, and Iwould encourage you toparticipate and,importantly, to bring these opportunities to theattention of your clients.

We are, of course, at the beginning of a new CPDcycle, and what better time to strategically plan torefine our existing skill sets? While, obviously, it is amatter for individual choice, increasing numbers areseeking to participate in diploma programmes,certificate courses or advanced advocacy courses asan alternative to the more traditional stand-alonelectures. The feedback we get is that longer coursesbring more ‘added value’ and satisfaction to theparticipants. This is, therefore, the perfect time toplan to derive maximum benefit from the CPDobligations in the course of this present cycle.

In summary, my wish for the profession for 2008is that, in recognising inevitable change, we embraceit as presenting opportunities rather than threats. Weowe it to ourselves personally to continually reflecton whether we work to live, or live to work. Therecan be no doubt that if we practise smartly, our jobsatisfaction will be greater, and our capacity todeliver a quality service to our clients will beenhanced.

It’s my hope that, in plagiarising the motto of the Munster team, we can be inspired by theirtenacity: “To the brave and faithful, nothing isimpossible.”

James MacGuillPresident

G

“In the course ofthe year, theSociety will belaunching newschemes ofarbitration andmediation, and I wouldencourage you to participateand, importantly,to bring theseopportunities tothe attention ofyour clients”

Mura gcuirfidhmuid san earrachní bhainfidh muidsan fhomhair

Colleagues, first and foremost I wouldlike to take this opportunity to wishyou and your families every successand happiness for 2008. It is, ofcourse, the time of the year for well-

intentioned New Year’s resolutions. In my own case,the resolutions are by now so familiar that I viewthem as the annual visit of close family friends. Onthis occasion, however (as so often in the past), Ihope that they stay around until at least earlysummer!

On a professional level, it is also an opportunityfor us to take stock and to plan for the year ahead.As ever, there is no shortage of doom and gloombeing predicted, given that there is undoubtedlyincreased pressure on some traditional areas ofpractice.

For this reason, the Society has established aPractice Management Task Force, which aims toprovide guidance and assistance to solicitors whoare interested in changing their work practices toaccommodate practising into their lives – ratherthan the other way around.

The start of a new year, coming at a time ofchange in the legal market place, is also anopportunity for colleagues to consider developingnew expertise, perhaps in the practice areas wherethere is now a huge demand for legal talent. Whilethere are many to choose from, I would like toconcentrate here on the area of arbitration/mediation/alternative dispute resolution. The Societyis strongly supportive of measures that that canresolve contentious problems for our clients asquickly and as economically as possible. There isgrowing support, not only from within the profession,but also within from the public, to explorealternatives to costly and time-consuming litigation.

There are many suitable courses to train us howto participate in this work, whether representing a

7www.lawsociety.ie

LAW SOCIETY GAZETTE JAN/FEB 2008NEWS

nationwide

Send your news to: Law Society Gazette, Blackhall Place,Dublin 7, or email: [email protected]

■ SLIGOBar association presidentSeamus Monaghan, Fergal Kelly(secretary), Carol Ballantyneand Brian Gill have beenworking hard on behalf of theirmembers. Following a verysuccessful social event in theyacht club in Rosses Point,we’ve heard about a number oflocal seminars that have beenheld in recent months. Thesehave been very successful andhave attracted a large audienceof practitioners.

■ MAYOIt is good to see the revival ofan initiative on the part ofsolicitors that reflects well oneveryone. In Dublin in the mid1980s, we had a number of verysuccessful Wills Weekpromotions, which not onlygenerated its own publicity forworthy causes but also filled thewills cabinet.

Pat O’Connor and his teamin Mayo are promoting a WillsWeek (25-29 February)throughout the county. Thepublic, through a mediacampaign, are being encouragedto call in to their solicitor tomake a will and, in so doing, tomake a donation of €100 to anyMayo charity of their choice.The will is put together free ofcharge by the solicitor.

■ CORKMortimer Kelleher, SLA vice-president, has given advancenotice to the membership of aforthcoming trip to theEuropean Parliament on 2September. Former SLAstalwart, Leeside practitionerand now MEP, Colm Bourke,has invited a delegation toattend a session in theparliament in Strasbourg.Mortimer stresses that the trip

is separate and distinct from theannual ‘away’ trip, which takesplace towards the end ofSeptember, and those interestedin travelling should contactColette Curtin, SLA secretary.

■ GALWAYThe AGM of the Galway BarAssociation was held on 13December 2007 in GalwayCourthouse. The newly electedcommittee for 2008 is: president– James Seymour (Seymour &Co), vice-president – AilbheBurke (Pauline O’Reilly & Co),treasurer – Cairbre O’Donnell(John C O’Donnell & Son),secretary – David Higgins (LawCentre), PRO – KayanneHorgan (Higgins ChambersFlanagan), committee members– Louis Bourke (Brian Lynch &Associates), Robert Meehan(Blake & Kenny), ValerieCorcoran (CorcoranMcLoughlin), Cait Fitzgerald(Kilfeather & Co), CiaraO’Callaghan (HigginsChambers Flanagan), LauraKing (Higgins ChambersFlanagan).

A special word of thanks tooutgoing president Ailbhe

Burke, outgoing treasurerValerie Corcoran and outgoingsecretary Yvonne Francis andthe committee for their sterlingwork during the past year.

For 2008, it is proposed torepeat the association’s day atthe Galway Races in August andthe Law Ball in early December,both of which were verysuccessful. CPD courses willfeature large in the coming year(see article, page 43). A numberof other functions are alsoproposed, including wine-tastings, to be held in aid ofvarious local charities.

■ DUBLINThe DSBA dinner dance – held,as usual, in the Four Seasons –was a glittering occasion and agreat credit to Michael Quinlanand his organiser-in-chiefGeraldine Kelly. The event wasoversubscribed, with up to 400 inattendance. DSBA guestsincluded Minister for EducationMary Hanafin, the presidents ofmost of the courts, Dublincounty registrar Susan Ryan, thepresident and director general ofthe Law Society, CatherineTreacy (chief registrar of the

Property Registration Authority),and the presidents of a numberof bar associations, includingPatrick Mullins from the SLA,Patrick O’Connor from Mayo,Anne Heseltine from Liverpool,Christopher Clarke from Bristol,James Cooper from the LawSociety of Northern Ireland,John Guerin from Belfast,Stephen Hindmarsh fromManchester, and Catherine Allenfrom the SYS.

A feature of the night is thecharity raffle. This year, DSBApresident Michael Quinlannominated the cystic fibrosischarity.

Michael Quinlan has also put the final touches toarrangements for the mostaudacious legal conference inyears, namely the DSBA annualconference in China. This is totake place between 14 and 21September and involves threenights stays in both Beijing andShanghai. Anyone interested isasked to contact Michael or anyother council member.Considering the five-starpackage over a basic six or sevennights, an anticipated andheavily subsidised cost (throughsponsorship) seems good valueindeed.

The DSBA has just movedoffices, from Hatch Street,where it has been for the lastthree years, to larger premiseson Harcourt Street beside BCMHanby Wallace on the ‘Green’side. Maura Smith and her staff(having got over a significantwater leak in week one) aredelighted with the move and the additional space that it givesto those involved in theassociation.

‘Nationwide’ is compiled by KevinO’Higgins, principal of the Dublinlaw firm Kevin O’Higgins.

G

At the Southside Solicitors’ function in the Royal St George Yacht Club were Justin McKenna (Partners at Law), John O’Malley (John P O’Malley & Co), Mr Justice Michael Peart and Jacinta Proctor

8 www.lawsociety.ie

LAW SOCIETY GAZETTE JAN/FEB 2008 NEWS

The role of the EuropeanCourt of Justice in the

evolution of the EU was thefocus of the annual HibernianLaw Journal lecture, deliveredby Advocate General EleanorSharpston at Blackhall Place on22 November. AG Sharpstonexamined the triumphs,challenges and limitations of thecourt in her lecture, which waschaired by Mr Justice NialFennelly of the Supreme Court.

Fresh from her viewing of theBook of Kells earlier in the day,AG Sharpston compared thefamous opus to the Treaty ofRome, which admittedly wasmore comparable to a “rough

sketch”. The ECJ had addedconsiderable detail to thatsketch, she explained, andemphasised that had the courtnot been so bold in its decisions,the Treaty of Rome might havebeen regarded as just one moreinternational treaty.

Rapid expansionThe advocate general discussedthe challenges currently facingthe court, including those posedby the rapid expansion of theEU in recent years. The court’scaseload is increasingdramatically and, accordingly,the length of time forproceedings is also increasing.

The 23 languages of the courtmake it like a ‘Tower of Babel’,she said. AG Sharpstondemonstrated through strikingexamples how this linguisticfactor would exacerbate theincreased caseload. Also, with anincreased number of judges, itwill be more difficult tomaintain coherence in case law.

Another challenge facing thecourt is the specific technicalexpertise required of it in areassuch as tax and trade law, whilemaintaining the broad visionnecessary to deal withconstitutional issues.

The AG stressed that more

discussion of the role and thecurrent limitations of the ECJ isneeded if it is to continue torespond to the challenges itfaces and play a useful role inthe development of EC law. Sheargued that member states mustnow engage actively with thisissue.

Current editor of theHibernian Law Journal, John-Hugh Colleran, also announcedthe launch of the HLJ onwestlaw.ie. All articles publishedto date are now available onlinefor the first time. The 2007edition is currently printing andwill be available shortly.

The sections and committeesof the International Bar

Association’s (IBA) LegalPractice Division are onceagain offering scholarships toyoung lawyers who wish toparticipate in the IBA annualconference, but who are unableto do so owing to financialconstraints.

The 2008 scholarship awardsinclude the following: • Free registration for the IBA

2008 annual conference, 12-17 October 2008, BuenosAires, Argentina,

• A contribution towards travelcosts to the conference,

• Cover of accommodationcosts while attending theconference,

• Two year’s free IBAmembership, includingmembership of one LPDcommittee and one PPIDconstituent,

• A waiver of either the nextIBA annual conferenceregistration fee or theregistration fee of one of thechosen committees’ specialistconference in 2009,

• Free membership of theScholarship Alumni Group.

For a full list of the sectionsand committees awardingscholarships, you should visitwww.ibanet.org/legalpractice/

Scholarships.cfm. Each application must be

accompanied by a 2,500-wordpaper on a subject selected byeach of the sections/committees(see link above).

Applicants are only permittedto apply for one section orcommittee scholarship andmust be 35 years or under atthe time of the conference. Thedeadline for submissions isMonday 7 April 2008.

Advocate General Sharpston callsfor discussion on ECJ’s role

IBA annual conference scholarships

Attending the HLJ lecture were (back, l to r): Rosemary Wall, Michele Barker, Maeve Regan, Sinéad Hayes, Julia Emikh, Killian Kehoe,

Emer O’Connor and TP Kennedy (director of education, Law Society).(Front, l to r): Erika O’Leary, Avril Mangan, AG Eleanor Sharpston,

John-Hugh Colleran (HLJ editor), Paul Ryan and Nicholas Blake-Knox

Launching Westlaw’s online access to the HLJ were (l to r): John-HughColleran (editor), Lisa Scully-O’Grady (Round Hall Publishing andwestlaw.ie) and TP Kennedy (director of education, Law Society)

9www.lawsociety.ie


Fermoy’s newly refurbishedcourthouse was officially

opened on 17 December 2007by Minister for Justice BrianLenihan.

The board of the CourtsService was represented byJudge Patrick Moran, whopresided over the event, whileGarda Commissioner FachtnaMurphy also attended.

The courthouse, which hasstood in Fermoy since 1808,features significantly improvedpublic facilities and is located inthe town’s dedicated civiccomplex. It now boasts: • Two courtrooms,• Judges’ chambers,• A family law suite,• A victim support room,• Consultation/waiting rooms,• New prisoner accommod-

ation, including cells and asecure interview room, and

• Accommodation for membersof the gardaí and the PrisonService.

Secure car parking and cellaccommodation included in theextended building will furtherenhance the different uses of thebuilding. This will allow muchmore District and Circuit Court

business to be conducted inFermoy.

Judge Moran commended theminister for putting in place animpressive technology systemfor the courts. Citizens nowhave easy online access to thesmall claims system, whichenables members of the publicto create and lodge small claimsapplications, pay the applicationfees and check the status of theirclaims. Statistics show that therewas a 28% increase in totalclaims received in the first ninemonths of 2007 in 16 pilot sitescompared with last year’s figures.Following the satisfactorycompletion of the pilot scheme,six District Court offices wentlive on 7 December 2007,

bringing the total number of liveoffices to 22. The roll-out to theremaining District Court officesis expected to be completed inthe first quarter of 2008. Incoming years, similar projectswill allow for the onlinepayment of court payments and fines.

Information technology willalso make it easier forpractitioners and members ofthe public to track the progressof cases through the HighCourt. A public search facilityproject for the High Court CaseTracking System went live on 21November 2007. It is availableonline to court users and thepublic via the internet. Thesystem records all proceedings

issued and documents filed inHigh Court civil cases andcontains court listings, dates andsummaries of orders andjudgments. New technology hasalso allowed the Courts Serviceto establish a central office forthe processing of summonsapplications receivedelectronically from An GardaSíochána.

Preserving historyFermoy Courthouse was built byJohn Anderson and ArchibaldGrubb and erected at the eastend of the town in 1808.Though the building haschanged much over the past 200years, many features remainfrom earlier times.

The refurbishment processhas respected and retained theinherent character, quality andpresence of the 200-year-oldbuilding. The porch has beenremoved to reveal the originalGibbs-designed door surround,and timber sash windows anddoors have been retained. Thecourtroom furniture is believedto be original and the viewinggallery is particularly distinctive.The double-height courthouse’sceilings are formed of panelled,sheeted timber.

Fermoy Courthouse opens in€7 million civic centre

The newly refurbished courthouse in Fermoy has significantly improved public facilities

The global warming debate is heating up, but the Law

Society is playing its part inbecoming greener.

For the last five years, theSociety has been recyclingpaper, cardboard, bottles, andplastics for both staff andstudents. In addition, it recyclesmobile phones, printercartridges and handheldelectronic devices for TempleStreet Children’s Hospital.

In May 2007, the CalcuttaRun (the Society’s annual

charity event that benefitsGOAL and Fr Peter McVerry’sArrupe Society) was branded a‘green day’ – the Societyengaged Greyhound Recyclingand Recovery to assist it so thatalmost 95% of the materialcollected on the day wasrecycled. The event celebratesits tenth anniversary in 2008,when it hopes to set a newrecord in the amount of fundsraised and materials collectedfor recycling.

Last October, the Society

switched the contract for allwaste management at BlackhallPlace to Greyhound Recyclingand Recovery. This has assistedthe segregation of all waste atsource – allowing even morematerial to be recovered.

The Society outputs 22million photocopies from itsprint room annually. Of thisfigure, 98% of all output isdouble-sided. The Society’spaper comes fromInternational Paper (UK)Limited, which uses sustainable

forestry. Their achievementshave earned them a place onthe 2007 list of the worldsmost ethical companies.

In March 2007, the Societymoved all of its electricitysupply requirements toAirtricity. Airtricity receives89% of its energy fromrenewable sources.

The Society has alsoestablished an Eco FriendlyTask Force to build upon theachievements to date and it isconsidering many useful ideas.

Where do we get our energy from?

PIC: TH

E AVON

DH

U PR

ESS

11www.lawsociety.ie


Acountrywide IT securityawareness campaign –

makeITsecure – is beinglaunched on 11 February. Thetwo-week public/privatepartnership programme will runon an all-island basis.

The campaign will stress theimportance of IT security forbusiness users and ordinaryconsumers. It will give guidance

on how to effectively protectyourself from IT security threats,particularly phishing, spyware,ID theft and child safety online,including social networking.

The organisers ofmakeITsecure say thatawareness of key internetthreats among consumers andsmall businesses is “very low”.Due to “a significant number of

unmanaged and unsecuredenvironments that are easy preyfor malicious and criminalhackers”, all users need to bemore aware of the importanceof IT security.

Further information on thesecurity measures thatbusinesses and consumers needto take is included on thewebsite: www.makeitsecure.ie.

New Year’s day saw theestablishment of the Press

Council of Ireland and theOffice of the PressOmbudsman. The new PressOmbudsman’s office will giveeveryone access to anindependent press complaintsmechanism that, according tothe Press Council, will be“quick, fair and free”.

The objectives of the PressCouncil and Press Ombudsmanare:• To provide the public with an

independent forum forresolving complaints aboutthe press,

• To resolve all complaintsquickly, fairly and free ofcharge,

• To maintain the higheststandards of Irish journalismand journalistic ethics, and

• To defend the freedom of thepress and the freedom of thepublic to be informed.

The Press Council has 13 mem-bers. Seven of these, includingits chairman, Professor ThomasMitchell, are lay membersrepresenting a broad spectrum ofIrish society. The remaining sixcome from the press industryand have senior editorial andjournalistic expertise.

The Press Council of Irelandappoints the Press Ombudsman– a position that is held byProfessor John Horgan ofDCU. The council will makedecisions on “significant or

complex” cases that have beenreferred to it by the PressOmbudsman. It will also decideon appeals to decisions made bythe Press Ombudsman.

Press Ombudsman The role of the ombudsman isto investigate complaints thatbreach the new code ofpractice, which the pressindustry signed up to in 2007.The code can be viewed atwww.presscouncil.ie. The PressOmbudsman’s aim is to providethe public with a way to resolveany complaints in relation tonewspapers and periodicals thatbreach the code.

Complaints about an articleor about the behaviour of ajournalist can be made to theOffice of the PressOmbudsman. For a complaintto be examined by the office:

• It must breach the code ofpractice for newspapers andperiodicals, and

• The person making thecomplaint must show thatthey have been directlyaffected by, and involved in,the article or behaviour inquestion.

The ombudsman’s office will,in the first instance, attempt toresolve the matter by makingdirect contact with the editorof the publication concerned.The ombudsman will outlinethe complaint to thepublication and seek to resolvethe matter by conciliation. Ifthis process fails, theombudsman will examine thecase and make a decision. Hemay refer significant orcomplex cases to the PressCouncil of Ireland.

■ PRIZE BOND DRAW RESULTS

HELD ON 6 NOVEMBER 2007

1 x €1,250: bond number

1973 (anonymous).

4 x €500: bond number 1471

(John O’Donnell, ‘Glendine’,

Lynn, Mullingar, Co

Westmeath); bond number

1639 (Patrick T Moran,

Michael Moran & Co,

Mountain View, Castlebar, Co

Mayo); bond number 1713

(anonymous); bond number

2240 (Enda P O’Carroll, Wells

& O’Carroll, Main Street,

Carrickmacross, Co Monaghan).

5 x €275: bond number 1221

(Kenneth Armstrong, 9 Glenart

Avenue, Blackrock, Co Dublin);

bond number 1860 (Brian

Gallagher, Gallagher Shatter, 4

Upper Ely Place, Dublin 2); bond

number 1975 (Thomas Farrell,

Farrell & Partners, O’Connor

Square, Tullamore, Co Offaly);

bond number 2174 (Mary

Twomey, David Twomey & Co,

55 Main Street, Castleisland,

Co Kerry); bond number 2279

(George V Maloney, 6 Farnham

Street, Cavan).

■ RULE OF LAW PROJECT

LAUNCHED

The Law Society has

established a Rule of Law

Project. The objective is to

encourage members to

develop and enhance the rule

of law in the developing world

with the assistance of Irish Aid

or otherwise, so that human

rights, democracy, good

governance and justice may be

available to all people. This

project is being run in

cooperation with the Bar

Council. If you are interested

in becoming involved in this

project, please contact

[email protected] for

more information.

■ RETIREMENT TRUST

SCHEME

Unit prices: 1 January 2008

Managed fund: €5.893084

Cash fund: €2.800760

Long-bond fund: €1.362925

All-equity fund: €1.424523

Press Council launched

IT security is in your interest

Justice minister Brian Lenihan, Prof John Horgan and Prof Thomas Mitchell at the launch

12 www.lawsociety.ie

LAW SOCIETY GAZETTE JAN/FEB 2008 NEWS

From 1 January 2008, the LawSociety has funded the

provision of the services ofLawCare to the solicitors’profession in Ireland. Providedacross Britain for the past tenyears, LawCare offers a free and completely confidentialadvisory service for lawyers,their immediate families, andtheir staff. It helps callers todeal with health issues andrelated emotional problems such as stress, depression, drug and/or alcohol dependency,eating disorders, bullying,bereavement and gambling,among others.

LawCare freephone helplineLawCare offers its service inIreland through a freephonehelpline, 1800 991 801, whichoperates 365 days a year,Monday to Friday, 9am to7.30pm, and weekends/publicholidays from 10am to 4pm. Out-of-hours calls are connected toan answering service and will bereturned within 24 hours.

Those answering calls arelawyers trained in telephonecounselling skills, who seek toidentify the nature and extent ofany problems. Whereappropriate, they refer callers toa relevant health professional forcounselling and/or treatmentand to other specialistorganisations who offer help.

They may also be able to offerthe support of a lawyervolunteer, who has personalexperience in dealing with similarproblems. More volunteers arealways welcome, and LawCarewould be pleased to hear fromany solicitor who is prepared tooffer their help as a volunteer.

A board of trustees deals withLawCare’s policies anddevelopment. The Law Society is

represented on the board by TomMurran (Council member) andLouise Campbell (supportservices executive). Neither,however, have any directinvolvement in the day-to-dayprovision of the LawCare service,which is completely confidential,and no details relating to anycallers are passed to the LawSociety, other than generalstatistical information.

DSBA confidential helplineSince 1994, the Dublin Solicitors’Bar Association has provided itsconfidential helpline, tel: 01 2848484, to assist every member ofthe profession with any problem,whether professional or personal.A recorded message provides thenames and phone numbers of twosolicitors on duty during thecurrent week, who may becontacted in complete confidence.Over 100 solicitors do volunteerduty for one week of the year. Nodetails relating to any callers arepassed to the Law Society.

SLA confidential serviceSince 2000, the Southern LawAssociation (SLA) has provided aconfidential service to assist any

member of the SLA experiencingdifficulties in practice, whetherthe problem is professional orpersonal. A panel of eightexperienced and approachableCork-based solicitor volunteersprovide this confidential service.Their contact details are includedon the official SLA headednotepaper on which membersreceive regular correspondence.No details relating to any callersare passed to the Law Society.

Mentor programmeThe mentor programme providesan opportunity for solicitorssetting up in practice to makecontact with a more senior andexperienced solicitor, forguidance and advice on aninformal and voluntary basis. For a copy of the register ofmentors, please contact LouiseCampbell (contact details below).

Panel to assist solicitors indifficulty with the Law Society A panel is available to assistsolicitors about whom acomplaint is made to the Society,or who might be in difficulty withthe Society, and who requireassistance with their initialresponse. The list of panelmembers is sent with the initialletter from the Society, and isalso available on the Society’swebsite, www.lawsociety.ie, inthe Law Directory, or on requestfrom Therese Clarke, secretary,Guidance and Ethics Committee,Manor Street, Dublin 7; tel: 01868 1220, email: [email protected].

For information on any LawSociety member service, pleasecontact Louise Campbell, supportservices executive, BlackhallPlace; tel: 01 881 5712 oremail: [email protected].

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SUPPORT SERVICES FOR MEMBERS

HELP! I NEED SOMEBODY!Louise Campbell summarises five separate sources of assistance and support available to

the profession, independent of the Society

Put your bestfist forward

■ THOMAS ADDIS EMMET

FELLOWSHIP

FLAC is giving one Irish law

student the opportunity to

take part in an exciting

programme run in conjunction

with the University of

Washington, Seattle. Through

its Thomas Addis Emmet

Fellowship, the successful

candidate will get the chance

to work for two months in the

USA in the field of inter-

national public interest and

human rights law. Those

invited to apply include law

undergraduates, postgrad-

uates, Law Society students

and King’s Inns students. The

closing date is 8 February

2008. Full details, rules and

entry form are available at

www.flac.ie.

■ ACCESS TO EULIS LIVE

Landdirect.ie now offers

customers the facility to

search other European online

land registry services. All

professional users of land

registration services who

subscribe to landdirect.ie and

are resident within the

European Economic Area have

been getting access to EULIS

automatically since 1

December 2007. If you are an

existing landdirect.ie customer

and do not wish to have

access to EULIS, you should

email [email protected].

■ MHC SEEKS VIEWS

The Mental Health Commission

has invited members of the

public and organisations,

individuals or groups with an

interest in mental health issues

to make submissions on the

operation of part 2 of the

Mental Health Act 2001. This

concerns the involuntary

admission of adults and

children to approved centres.

The closing date for

submissions is 5pm on 18

February 2008. Submissions

must be forwarded on a

specific template, available

from www.mhcirl.ie.

13www.lawsociety.ie

LAW SOCIETY GAZETTE JAN/FEB 2008COMMENT

letters

Send your letters to: Law Society Gazette, BlackhallPlace, Dublin 7, or email: [email protected]

Will the Central Office ever join us in the 21st century?From: Liam Moloney, Moloney &Co, Naas, Co Kildare

When one considers thatthe courts start between

10.30am and 11am and theCentral Office doesn’t evenopen until 10.30am each day,

what connectivity is therebetween the administration andpractice of the court system?Why are the opening hourslinked to the Superior CourtRules?

The filing system is a fiasco,

where one has to waitsometimes even longer than anhour to file one document so itbears the court stamp. Thereis absolutely no excuse for theinefficient practices beingoperated, which would never

be tolerated in the privatesector.

Surely a few more staff canbe reallocated to the CentralOffice to bring theseoutmoded practices to an end? G

Sustainable Energy Ireland(SEI) has drawn our attention

to an inaccuracy that appeared inthe ‘BER Necessities’ article(see Gazette, November 2007).The article referred the reader toan illustration of a ‘BERcertificate’ on page 41. TheGazette is happy to point out thatthe illustration on page 41 wasnot, in fact, a BER certificate,but rather a certificate issued byNational Energy Assessors (NEA)in its own name, with no legalstanding.

“Its similarity to the officialBER certificate could easily leadto confusion. It would not bedifficult to imagine that asolicitor would mistake an NEAcertificate for an official buildingenergy rating,” says the SEI. “Forthese reasons, SEI has already

sought and secured acommitment from NEA towithdraw this document fromcirculation.”

NEA respondsIn reply, NEA points out thefollowing: “Prior to ‘non-mandatory BERs’ beingintroduced in October 2007,customers who could notpurchase a BER and wishedto understand where theirproperty rated on the BERscale had no solutionavailable to them. It is forthis specific reason thatNEA developed its own in-house certificate. We found that this document, whichwas clearly NEA branded, servedthe purpose of demonstrating toour customers the energy

efficiency of their property. This was the precise purposeand function of this certificate.

I believe that SEI wouldagree that NEA has never misled any of itscustomers or potentialcustomers and, since theintroduction of non-mandatory BERs, followingNEA representations in favourof this, we have retired theNEA certificate.

“On a request from SEI, ina letter received on 30October, NEA immediatelyretired the NEA certificate infavour of the SEI cert. In aproactive fashion, we wrote toSEI to provide notice that theLaw Society Gazette, to which wehad contributed an article, hadgone to press prior to receipt ofthe SEI request.”

Hopefully this clarifies thematter.

In the December issue of theGazette (p17), we referred to

a recent conference on EUcounter-terrorism law in Dublin,where we intimated that one ofthe speakers, Dr Max Barrett,solicitor, believed that, “thefinancial sanction measuresimposed by the EU add little tothe existing Criminal Justice Act

1994”. In fact, Dr Barrett wouldlike us to point out that heindicated at the conference thathe considered the financialsanction measures adopted bythe European Union to beworking well in tandem with theCriminal Justice Act 1994.

It might also be incorrectlyinferred from the article that Dr

Barrett had indicated that“voluminous domestic andinternational obligations [had]besieged the financial sector,which appears to be no cleareron the distinction betweenterrorism and other criminalactivity”. Dr Barrett hasindicated that the broadcontention of his conference

presentation was that, within thefinancial services sector, theCriminal Justice Act 1994continues to be the principaldeterrent to the offence offinancing terrorism,notwithstanding the enactmentof the Criminal Justice (TerroristOffences) Act 2005. We arehappy to clarify these matters.

EU counter-terrorism law

SEI takes issue with ‘BER necessities’ cert

President welcomes proposed


LAW SOCIETY GAZETTE JAN/FEB 2008 ANALYSIS

The Law Society president has strongly defended the Society’s stance on regulation and has welcomed draft legislation that will introduce a legal services ombudsman, writes Mark McDermott

P resident of the LawSociety James MacGuill

has delivered his strongeststatement yet on the subject ofregulation of the legalprofession. Speaking at aparchment ceremony on 20December at Blackhall Place,which was attended byPresident of the High CourtMr Justice Richard Johnson,Minister for Justice BrianLenihan, and legal affairseditor of The Irish Times DrCarol Coulter, the presidentsaid that, while he had alreadypublicly made certainobservations on the subject of the regulation of the profession, it wasparticularly apposite to revisitthe subject again.

Addressing the minister,assembled guests and thenewly qualified solicitors, hesaid: “Opinion-formers andother commentators assumethat the legal professionsupports self-regulation. We don’t – and won’t –

promote self-regulation,” hestated. “As we have pointed outrepeatedly, it is fundamentallymisleading to describe thecurrent system of regulation ofsolicitors in Ireland as ‘self-regulation’.”

Mr MacGuill pointed outthat the system of regulationoperated under statute and wascharacterised by “all-pervasiveexternal supervision and controlby independent people,

including the President of theHigh Court, the Minister forJustice, the independentadjudicator and the non-lawyernominees of IBEC, ICTU andthe Director of ConsumerAffairs.”

“These people of integrityand standing would not toleratea system that worked otherthan in the public interest,” hesaid.

Draft legislation welcomedThe system could be improved,he accepted, and said that theLaw Society welcomed thedraft legislation that wouldintroduce a legal servicesombudsman, together with anon-lawyer majority on theSociety’s Complaints and ClientRelations Committee, tofurther increase – in the publicinterest – the independence,transparency and accountabilityof the system.

“We believe in havingappropriate regulation of theprofession by others, and we

will play our part in that. Ibelieve that it is now timelythat we have this review by theOireachtas. The profession andpublic must be satisfied that oursystems and standards have themost appropriate and bestpublic protection measures.

“The single greatest threatto the independent legalprofession is not the form ofregulation that applies. It’s aperception that regulation isineffective – that it’s self-serving; that it protects thelawyer, not the client – that it’sgeared to the profession, notthe consumer.

“That is not what regulationshould be about,” he continued.“It is not what we are about.We work in a profession wherewe help people, often undergreat pressure in the mostcritical events of their lives.Their homes, futures,businesses, good names,families and even libertydepend on us. They depend onthe excellence of the service weprovide and the relationship oftrust we have with them – therelationship of trust that everysolicitor in this room guards sodearly. That,” he concluded, “iswhat any future regulation mustbe about.”

Legislative reformsResponding to the president’scomments, Minister BrianLenihan said that thegovernment had agreed apackage of legislative reformsthat would be specific to thelegal professions.

“This reflects the govern-ment’s recognition thatimproved regulation of thelegal professions is necessary –and that is why legislativeproposals for the establishment

Special guests of the Law Society at the 20 December parchment ceremony at Blackhall Place were (l to r): Law Society President James MacGuill, Minister for Justice Brian Lenihan, Irish Times legal affairs

editor Dr Carol Coulter, President of the High Court Mr Justice Richard Johnson and Law Society Director General Ken Murphy

Meeting of minds – Minister BrianLenihan and director general Ken

Murphy share some thoughts during the parchment ceremony

legal services ombudsman

15www.lawsociety.ie

LAW SOCIETY GAZETTE JAN/FEB 2008ANALYSIS

of a legal services ombudsmanare being progressed. The billis being drafted for publicationearly in the new year,” he said.

“The ombudsman willreplace the Law Society’sindependent adjudicator andwill provide both for review ofindividual complaints and ofcomplaints procedures, as wellas overseeing admission to theprofession, particularly withregard to the adequacy of thenumbers admitted.”

The Law Society had beenclosely consulted on thedevelopment of the bill, and hesaid that the Society “hascontributed in a very positiveway and is, I am glad to state,fully supportive of thegovernment’s proposals”.

In addition to thisdevelopment, he continued, anumber of the recomm-endations initiated by the LawSociety by way of the BrosnanReport on regulatory matters inrelation to solicitors were nowprovided for in the Civil Law(Miscellaneous Provisions) Bill2006.

“For example, the billprovides for a majority of laymembership of regulatorycommittees. Provision is alsomade to ensure betterenforcement of orders of theSolicitors’ DisciplinaryCommittee.”

Addressing the issue of thecases currently beinginvestigated by the Law Societyand also before the courts, theminister welcomed the fact thatthe Law Society and the IrishBankers’ Federation had beenengaged in discussions with aview to ensuring themaintenance of a properbalance between the needs ofgood conveyancing, mortgagelending and banking practice.

“I understand that thesediscussions have been very

constructive,” he said. “It is offundamental importance thatboth the legal system and thebanking system operate to thehighest standards and that thepublic can have full confidencein them.”

Changes to legal costsThe minister told the audiencethat a legal costs bill was alsobeing developed to reform themanner in which disputed legalcosts would be assessed. Thiswould have the allied objectiveof making the market for civillegal services more predictable,consistent and transparent toconsumers.

“It is my intention that thebill will also provide forsignificant improvements in thequality and quantity of theinformation that a solicitor isrequired to provide to clients,”he said, “and the manner inwhich it is to be supplied. I amfirmly of the view that theindividual litigant should have acentral role to play incontrolling his or her legalcosts.

“How the litigant can be soempowered will be addressed inthe bill,” he continued. “Sufficeto say that the timely provisionof information to clients iscentral to this empowerment. I want to have a new assessmentof the costs system which, aspart of its remit, provides infor-mation to the public on the lawand on client’s entitlements rel-ating to costs. The new systemshould have a mechanism tocollect, analyse and publish datain relation to costs, counsels’fees, witnesses’ expenses andother disbursements from allcourt jurisdictions. Finally, thebill will also provide forlegislative and proceduralchanges to reduce delays incourt hearings and generallyexpedite the legal process.”

The minister next addressedthe Legal Practitioners (IrishLanguage) Bill, published inNovember 2007. The billpromotes the better use of theIrish language by legalpractitioners and the provisionof legal services through Irish.The bill, he said, would ensurethat a better standard of legalservices would be available tothe public in Irish.

Sound adviceThe ceremony also included ashort speech by Carol Coulter,Irish Times legal affairs editor.Dr Coulter told the nextgeneration of Irish solicitors thather interest in law and publicpolicy stretched back 20 years,to the appeals of the Birming-ham Six and the Guildford Four.This had alerted her to the greatcommitment that certainsolicitors showed to their clients,especially clients who wereisolated and widely condemned

by society.More recently, while

conducting the Family LawReporting Project for theCourts Service, she hadconsidered how solicitorsdefended their clients’ interests.She warned of the danger ofperceiving clients’ interests asbeing solely concerned with agood financial outcome. Often,people had other interests, shesaid, “like the need to maintaingood relations with theirchildren, and their children’sother parent and wider family,into the future”.

She advised the newlyqualified solicitors whenadvising such clients (who were often hurt and angry) toconsider the importance oftheir duty to alert them to theirpersonal and family-relationship requirements,rather than being overlyconcerned with the desire toobtain the best financial deal. G

Law Society President James MacGuill

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MEN



Even better thanWhen is a document not a

document? When is aparent not a parent? When is asignature not a signature?When is a migrant not animmigrant?

When the Law ReformCommission was established in1975, it could hardly haveexpected to have to tackle thekind of futuristic, existentialquestions that bedevil it in2008. Information is now moreeasily transferred by virtualmeans, but the law tends to likethings that are down on paper –like signatures. If the courts areto respond to the efficiencygains that technology has

The LRC issued its Third Programme of Law Reform in December 2007 – intended to take it upto 2014 – and the mark of the postmodern society is all over it. Colin Murphy reports

brought, will they have torecognise electronic signaturesand PDF contracts as being asgood as the ‘real’ thing?

Evidence no longer meanssimply the kind of tangible cluesof Cluedo. Increasingly,evidence is something that isinterpreted under a microscope,or upon inspection on acomputer screen of a digitisedversion. Electronic files can’t belabelled, locked up in astoreroom, and signed in andout – so what are the rules thatshould govern their transfer?

And the postmodern societyisn’t simply about ‘virtual’movement. Increasingly, it’s

characterised by movement ofthe most tangible legal ‘goods’of all – people. Where oncepeople held wakes beforeemigrating to America, and thefew who arrived on our shorescame here to stay, today peoplemigrate rather than emigrate orimmigrate – they come and go.What does that mean for theright to, and the procedures forgranting, residence andcitizenship, and familyreunification?

For the Law ReformCommission’s director ofresearch, Raymond Byrne,“technology is a big feature ofthe world that we live in – it’s

an issue that people thinkabout, and that’s reflected in theprogramme”.

Achtung babyThe programme doesn’t containanswers to these questions.What it does contain is anoutline of 37 law reformprojects, grouped under nineheadings (see panel), which areeffectively legal versions of thequestions above, and manyothers.

One of these groups –‘Technology, innovation and theindividual’ – includes threeprojects: ‘Legal aspects ofbioethics’, ‘Legal aspects ofassisted human reproduction’,and ‘Privacy’. And technologicalissues crop up elsewhere. In thegeneral area of ‘Law ofevidence’, there are projects on‘Documentary evidence andtechnology’ and ‘Forensicevidence’, while the area of‘Land law and property’includes the ‘eConveyancingroad map’ project.

This reflects both the newdemands that scientificinnovation is placing on thelegal system and the widespreadconcerns that people have abouthow technology increasinglypermeates their lives. AsRaymond Byrne notes, “Privacyis the only topic mentioned ineach of the commission’s threeprogrammes. There is aconcern [among members ofthe public] that our privacy isbeing increasingly threatened.”

Rattle and humWhat concerns the public istaken seriously by thecommission. For this thirdprogramme, the commission

The programme will occupy the commission from2008 to 2014.

Its priorities are the law relating to juries, thelaw relating to documentary evidence andtechnology, the rule on hearsay, and legal aspectsof bioethics and assisted human reproduction.

The LRC intends to publish consultation paperson a number of its priority areas in 2008, with finalreports on some areas possibly being presented in2009. Each of the areas in the programme shouldbe brought to final report by 2014.

As Raymond Byrne says, consultation papersconsist of “an analysis of all the law as it exists,identifying if there are gaps in the existing law andwhat other countries have done to fill those gaps,and provisional recommendations”.

The programme consists of 37 law reformprojects, grouped under nine major headings:• The legal system and public law (to include the

law relating to juries),• Law of evidence (to include the law relating to

documentary evidence and technology, andhearsay),

• Criminal law,

• Land law and property,• Family law,• Specific groups in a changing society,• Technology, innovation and the individual (to

include legal aspects of bioethics and assistedhuman reproduction),

• Commercial law, and• International law.

These were chosen after a public consultationprocess, during which the commission receivedover 200 submissions suggesting over 400 areasof law for inclusion in the programme.

The commission’s criteria for deciding on the 37projects were that they must meet a realcommunity need, that the commission has thecapacity to research them, that the finalprogramme should include a mix of projects, andthat the projects should not overlap with the workof other bodies engaged in law reform.

Since the Law Reform Commission was foundedin 1975, it has published over 130 documentscontaining proposals for law reform, available atwww.lawreform.ie.

THE LRC’S THIRD PROGRAMME OF LAW REFORM: IN BRIEF

17www.lawsociety.ie


the real thingembarked on an extensivepublic consultation, withpublic meetings in Galway,Cork and Dublin during 2007.They received over 200submissions, with over 50% ofthem coming from non-legalparties. Submissions couldeven be made over thetelephone, and were strictlyconfidential, according to thepresident of the commission,Mrs Justice CatherineMcGuinness.

One of the issues that thepublic consultations threw up,to the surprise of thecommission, was the lawrelating to juries: “Wewouldn’t have anticipated thatourselves,” said CatherineMcGuinness.

A number of peopledescribed their ownexperiences in court and onjuries in their submissions.Catherine McGuinnessexplained the general issueraised: “The Juries Act of 1976has become outdated in anumber of ways. The jurysystem is supposed to reflectthe whole of society. Peopleare supposed to be tried by ajury of their peers. But, by andlarge, it’s the people who areavailable to sit on juries whocomprise them. There’s a great‘middle’ [stratum] of societywho tend to avoid juryservice.”

And there are moreparticular concerns, such as:“If an immigrant person isbeing tried, there is noreflection on the jury of thatparticular community.”

According to thesubmissions received, the mostprominent public concernsrelated to juries, to aspects offamily law – including therights and duties of fathers –and to children and the law.

Government departmentsmake submissions also, but,according to CommissionerPatricia Rickard-Clarke, “theydon’t carry particular weightjust because they’regovernment departments”.

Unforgettable fireCatherine McGuinness saysthat 70% of the recommend-ations contained in the secondprogramme (2000-2007) havealready found their way intolaw or are on their way intolaw. “By internationalstandards, by comparison withother law reform bodies, that’sa very good rate of implement-ation.”

Since 2000, the LRC haspublished a draft bill orguidelines, as appropriate, witheach report, to make it as easyas possible for legislators totake on their recommend-ations.

In a number of cases,individual members of theOireachtas have brought theseforward as private members’

bills and the government hastaken them up (such as SenatorMary Henry’s Mental Capacityand Adult Guardianship Bill2007).

As a result, since 2000, “thegraph [of implementation ofrecommendations] has goneway up”, says Patricia Rickard-Clarke.

And as Raymond Byrnesays, “it would be surprising if100% of a Law ReformCommission report werealways implemented. We’renot a part of government. TheOireachtas decides what lawsshould be made, and it isn’tsimply a rubber stamp for theLRC. Debate should happen.The reports of the commissionprovide a context for thatdebate.”

When recommendations areignored or not prioritised, thecommission continues tomonitor the issue. “Thecommission would neverforget recommendations thathave been made in the past,”says Raymond Byrne. “The

commission is not a lobbygroup, but there is constantdiscussion with governmentdepartments, particularly withthe Department of Justice,Equality and Law Reform,about the extent to whichrecommendations have orhaven’t been implemented.”

Catherine McGuinnessgives a pithy overview of therole of the commission. “Wehave had this kind of historywhere we were a bit inclinedto say ‘forget about this, it’sdifficult – leave it until there’sa huge problem and thecourts have to make adecision’. That’s obviously noway to reform the law. Thecourts will do the best theycan, but they are deciding onthe facts of each case ratherthan on a general principle. Itis of course more desirablethat we would reform vialegislation.”

And empoweringlegislators to make thosereforms is the key task of thecommission. G



Justice Media Awards 2007

Ireland’s top print andbroadcast journalists were out

in force at the Justice MediaAwards 2007 on 7 December.The awards, which have beenrunning for 16 years, attractedthe biggest ever number ofentries. The judging panelcommented that there had beena noticeable improvement in theoverall standard in certaincategories – specifically the‘National dailies’ and ‘Regional’categories. ‘Sundays’ –traditionally the strongestperformer in terms of quality –had disimproved compared withprevious years, though thejudges pointed out that thewinners in this and all othercategories continued to excel.

This year’s awards werepresented by President of theLaw Society James MacGuilland director general KenMurphy. The guest speaker wasHigh Court judge, Mr JusticeGarrett Sheehan.

The president congratulatedall those who had entered for theawards. Not everyone could be awinner on the night but, giventhe high standards set by thejudging panel, the prestige ofwinning an award would ensurethat journalists would beencouraged to enter again andagain.

The winners in each categorywere presented with speciallycommissioned Justice MediaAwards from Dublin Crystal anda cheque for €750. Runners-upreceived Certificates of Meritand cheques to the value of€250 each.

WINNERSDaily newspapers The Justice Media Award inthis category went to DearbhailMcDonald of the IrishIndependent for her series on

‘Jury Reform’ – specifically inrelation to how juries arechosen. Her finding that juries

seldom represent a fair cross-section of the community as awhole points to an obvious

weakness in the system thatrequires urgent addressing.

Two Certificate of Meritwere presented, one to StephenRogers of the Irish Examinerfor his article ‘Click here forsex’, and the other to PaulCullen of The Irish Times forhis article ‘Pros and Cons ofthe Personal InjuriesAssessment Board’.

Sunday newspapersThe Justice Media Award wentto Kieron Wood of the SundayBusiness Post for his article‘Mandatory Sentencing’. Thishighly challenging articlefocused on several disquietingprovisions of the CriminalJustice Bill that have since beenenacted.

A Certificate of Merit waspresented to John Burns of TheSunday Times for his article‘Mistrial by Internet’.

Regional newspapers The Justice Media Award wentto Maria Rolston of Cork’sEvening Echo for her series‘Reform of the Family LawSystem’. Through her excellentseries, she showed that regionalnewspapers can deal with thebig legal issues facing thegeneral public today.

A Certificate of Merit waspresented to Paul Deering ofThe Sligo Champion for histhought-provoking article: ‘SexOffenders and the Law’.

Court reporting – print mediaThe Justice Media Award wentto Isabel Hayes of the SundayTribune for her article ‘TheChildren’s Court’. Isabelfocused on the human tragedyof child offenders, the effect ontheir lives and the lives of theirfamilies, and concludes thatthere is a real problem of

The Law Society competition is now the sole one that celebrates excellence in journalismin Ireland. Mark McDermott reports on the gala awards last December

Chairman of the Law Society’s PR Committee, Patrick Dorgan,addressed the assembled journalists and special guests

Dearbhail McDonald of the Irish Independent won a Justice Media Awardfor her series on ‘Jury Reform’ and receives her award from president

James MacGuill and director general Ken Murphy

Guest speaker at the JMAs was High Court judge Mr Justice Garrett Sheehan

19www.lawsociety.ie


set stellar standards

children being criminalisedunnecessarily without anyattempt to address theirbehaviour.

Court reporting – broadcastmedia The Justice Media Award wentto Barry Cummins of RTÉNews, for his powerful series oftelevision reports, ‘On theBalance of Probabilities’. Aninquest into the death of anewborn baby girl foundstabbed to death in DunLaoghaire in April 1973 wasfinally held in February 2007.Barry followed the case fromstart to finish, revealing aclarity of approach to hissubject and a commendable lackof bias that added hugely to theappeal of this series of reports.

Television news In this category, a Justice MediaAward was presented toDympna Moroney (producer),

Charlie Bird (correspondent),and Samantha Libreri(researcher) for their roadsafety campaign series. Thisseries caused many people toquestion their driving habits,shone a spotlight on the newlegislation, and set as its goalthe saving of lives.

Television features anddocumentaries The winner was Paul Loughlin

of RTÉ’s current affairsprogramme, Prime Time. In therun-up to the announcement ofthe general election, Prime Timetransmitted a number of specialprogrammes on the issues thatwere uppermost in the minds ofthe electorate, one of which wascrime. The programme askedwhether judges were out oftouch with Irish citizens, to theextent that they might bereturning criminals to the

community with little sign thatpunishment was being fairlymatched to the crimecommitted.

The judging panel said of theprogramme: “It is an importantcontribution to a very seriouslegal issue. It shows that amajor gulf exists between whatjudges and the citizens ofIreland regard to be the fairadministration of justice in Irishcourts.”

A Certificate of Merit waspresented to Mary Raftery andSheila Ahern (RTÉ News andCurrent Affairs) for the PrimeTime programme ‘MakingThem Pay’.

No overall winnerNotwithstanding thecommendable standard ofwinning entries in eachcategory, no single entry stood apart from the rest – so no overall award waspresented. G

Winners of the Justice Media Awards 2007 in the Council Chamber at Blackhall Place

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Director general Ken Murphy was the recipient of a special ‘multimedia’award, crafted in Cork silver, celebrating his close ‘collaboration’ with

the media down the years



ONE TO WATCH: NEW LEGISLATIONCivil Registration Act 2004(Commencement) Order 2007 (SIno 736 of 2007); Civil Registration(Marriages) (Fees) Regulations2007 (SI no 737 of 2007);Marriage Registration FormRegulations 2007 (SI no 738 of

2007); Delivery of Notification ofIntention to Marry (PrescribedCircumstances) Regulations 2007(SI no 744 of 2007)

On 5 November 2007, part 6 ofthe Civil Registration Act 2004

came into force. This partprovides for the establishment ofa Register of Marriages that willrecord all marriages taking placein the state (s13(1)(e)) and setsout in detail the substantiverequirements for a valid marriage

as supplemented by regulation(ss45 to 58 inclusive).

Notification of marriageA marriage will not be valid unlessthe parties to the marriage notifythe registrar in writing not less than

On Christmas Eve 2007, MrJustice George Birmingham

made an interim order directingthe National Maternity Hospitalto provide all necessary care to apremature infant known as BabyB, including a blood transfusion,should his life be in danger.Baby B had been born ten weeksprematurely on 20 Decemberand was transferred to theneonatal intensive care unit ofthe hospital due to internalbleeding. He was initially treatedwith blood products notcontaining red blood cells, buthis parents, both devoutJehovah’s Witnesses, objected toany potential blood transfusionon religious grounds.

The initial court order wasextended on 28 December,despite the objections of thechild’s parents, followingmedical advice on thedeterioration of Baby B’scondition and the likelynecessity of a blood transfusionover the following days. If BabyB, weighing less than 1kg, wereto lose as little as twoteaspoonfuls of blood, his lifewould be under imminentthreat. Mr Justice Birminghamacknowledged that the child’sparents were acting out of a“deeply held conviction”, butheld that doctors caring for Baby

Religious objections toRecent cases have highlighted the contentious issue of the right to refuse life-saving bloodtransfusions on religious grounds, writes Niamh Hayes

B should be authorised toperform a blood transfusion ifthe child’s condition deterioratedfurther and a transfusion becameabsolutely necessary. He statedthat it would amount to“brinkmanship” and an“abdication of responsibility” notto extend the order, as thehospital could otherwise beforced to delay life-savingtreatment pending a furthercourt application. The case wasadjourned for mention to 7March.

The Coke side of lifeSome months previously, on 20September, Mr Justice HenryAbbott ruled that doctors atthe Coombe MaternityHospital should be permittedto carry out a life-saving bloodtransfusion on a Congolesewoman, known only as Ms K,who had lost 80% of her bloodthrough haemorrhage whilegiving birth to a baby boy. MsK was conscious and cognisant,objected to the procedure onthe grounds of her religiousbeliefs as a Jehovah’s Witness,and had asked medical staff foran alternative remedy of CocaCola and tomatoes. Mr JusticeAbbott, in an Irish legal first,overruled the stated wishes ofthe adult Ms K, stating that

the Irish Constitution requiredthat precedence be given tothe welfare of Ms K’s newbornchild, as to refuse thetransfusion would effectivelydeny the child the right to itsmother.

The Coombe Hospitalsubsequently began what maywell be a landmark legal actionagainst Ms K’s refusal of thetransfusion, arguing that it hada duty to protect and safeguardthe woman’s right to life, thefamily rights of the mother andchild and the right of her childto be nurtured and reared by itsmother. Further, lawyers for theCoombe argued that it wouldbe contrary to public order andmorality to permit Ms K to puther life in danger by refusingroutine medical treatment andthat her undoubted constit-utional rights to freedom ofconscience and freedom ofreligious practice did not extendto the refusal of life-savingmedical treatment.

Ms K submitted a counter-claim in which she alleged thatthe decision to administer thetransfusion was in breach of herrights under the IrishConstitution and the EuropeanConvention on Human Rights,that she was entitled to refusesuch treatment and that the

hospital had committed assaultand trespass upon her person.The Attorney General wasjoined as a defendant to theproceedings and a decision byMs Justice Mary Laffoy isexpected in the coming weeks.

Legal implicationsWhile there is precedent inIrish law for a court order tooverrule the religious beliefsand wishes of parentsconcerning medical treatmentin the best interests of the child,Ms K’s case is far morecontroversial. It raises issues ofthe right to privacy, bodilyintegrity, freedom of conscienceand freedom of religion inrelation to an adult, whoseautonomy of decision makingwhen of sound mind one couldreasonably expect to berespected. Baby B’s case is lessideologically fraught, as it haspreviously been established thatthe courts can and willintervene in exceptionalcircumstances, even overrulingthe wishes of a child’s parents, ifto do so is in the best interestsof the child.

In Northwestern Health Boardv W ([2001] 3 IR 622) (theBaby Paul case, involvingparental objections to thePKU test), a majority of the

21www.lawsociety.ie


human rights watch

Notification by registered post isalso possible, where a party or theparties to an intended marriageare resident outside the state andit would not be reasonable orpracticable for them to comply, orare unable to comply on grounds

of ill-health, as certified by aregistered medical practitioner. Thenotification in such cases shouldbe delivered by registered post or,where it applies to only one of theparties, delivered in person by theother party (s46).

The parties may seek anexemption from the requirementfor notification from the either theCircuit Family Court or the HighCourt. Both parties are requiredto make the application, whichmay be made informally and may

three months prior to themarriage. All notifications must bedelivered by both parties inperson and must be accompaniedby the prescribed fee of €150and any other documents asspecified by the registrar.

blood transfusionsSupreme Court stressed thatstate interference in familydecisions should be permittedonly in truly exceptionalcircumstances. Chief JusticeKeane’s dissenting judgmentargued that the constitutionalprotections afforded tochildren may oblige the stateto intervene where necessaryto protect their welfare and tovindicate their personal rights.Chief Justice Keane’s analysisdistinguished between theinherent jurisdiction of thecourts to protect the rights ofthe child under articles 40.3,41, and 42.5 and the parenspatriae (‘father of the people’)jurisdiction by which the stateassumes wardship, although inprevious relevant decisions thepower of wardship has beenused as the authoritative basisfor court-authorised medicalintervention.

A leading example of this isthe case of In re a ward of Court– Baby Janice (High Court, 18March 2004; High Court, 5August 2004), in which theJehovah’s Witness mother of achild born with a hole in herheart withdrew her consent to alife-saving operation due to thenecessary use of bloodtransfusions and bloodproducts. In March 2004, BabyJanice was made a ward of courtand Mr Justice Finneganauthorised the appropriate

medical treatment for the child.In August 2004, Mr JusticeAbbott unambiguously extendedthe court order, authorising allurgently necessary remedialsurgery. In September 2004 –Baby Janice having made a goodrecovery – the wardship orderwas discharged and mother andchild rejoined the rest of thefamily in Britain.

The order made in the BabyB case did not involvetemporary wardshipjurisdiction, but was made overthe objections of the parents inthe best interests of the welfareof the child. Ms K’s case, bycontrast, involved court-authorised medical interventiondespite the religious objectionsand refusal of consent of amentally sound adult, as a

failure to do so would almostcertainly result in her death.The Supreme Court haspreviously stated that theunenumerated right to privacyand bodily integrity extends tothe right to refuse medicaltreatment even in cases wheredeath would result, with orwithout a religious motivationfor the decision (In re a Ward ofCourt (Withholding MedicalTreatment) (No 2), [1996] 2 IR79). The right to freedom ofconscience and religioncontained in article 44.2.1 hasbeen defined as guaranteeing“the right not to be compelledor coerced into living in a waywhich is contrary to one’sconscience … so far as theexercise, practice or professionof religion is concerned” (per

Walsh J, McGee v AttorneyGeneral, [1974] IR 284).

It is particularly interestingto note that Mr Justice Abbottbased his initial emergencycourt order on references to theright of Ms K’s newborn son tothe company and care of hismother. It is questionable howsignificant this line of argumentwill be in the forthcomingjudgment of Ms Justice Laffoy,since the constitutional right ofchildren to the care andcompany of their parents underarticle 41 was not held to extendeven to the prevention of theparents’ deportation in the caseof Osayande & Lobe v Minister forJustice ([2003] 1 IR 1).

Both cases will undoubtedlyhave a noteworthy legal impacton medical practice relating toblood transfusions in cases ofreligious objection. Theforthcoming High Courtdecision in the disputebetween Ms K and theCoombe Hospital has thepotential to significantlyredraw the boundariesbetween the competing rightsof bodily integrity, family andfreedom of religion, and willbe anxiously awaited by thosein the legal, medical andreligious spheres.

Niamh Hayes is a PhD student inthe Irish Centre for Human Rightsat NUIG.

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Vampires join the 21st century

23www.lawsociety.ie


be heard otherwise than in public.A court fee shall not be chargedin respect of it. The exemption willonly be granted where the partiescan show that there is a seriousreason why it should be justifiedand that it is in their interests forthe exemption to be granted. Anotification of the exemption mustbe presented to the registrar(s47).

The parties to a marriage mustattend in person at the office ofthe registrar not less than fivedays before the date of themarriage to make and sign adeclaration in the presence of theregistrar to the effect that there isno impediment to the marriage(s46).

Marriage registration formOnce notification has beenreceived, the registrar mustcomplete a marriage registrationform, and this should be given toone of the parties to the marriage(s48), who in turn should pass itto the solemniser for examination.The form is set out in SI 738 of2007 (Marriage Registration FormRegulations 2007). Provision ismade for a situation where sixmonths have passed since theform was given to the parties butthe marriage has not yet beensolemnised. In such cases, theparties are required to begin theprocess of notification again andthe registrar will furnish them withanother marriage registrationform.

Immediately after the marriage,the marriage registration formshall be signed by each of theparties to the marriage, twowitnesses and the solemniser.The form should be returned to

the registrar within one month ofthe marriage and the registrar willthen register the marriage assoon as is practicable thereafter.The marriage cannot be registeredwithout the marriage registrationform. If the registrar is satisfiedthat the form has been lost,destroyed or damaged, the tArdChláraitheoir may direct theregistrar to complete another formand arrange for signature by allthe relevant parties and toregister the details of themarriage in the register (s49).

If, within 56 days of themarriage, the registrar has notreceived the marriage registrationform, he or she may serve anotice on the parties requiringthem to provide the dulycompleted form within 14 days. Ifthe parties fail to comply, theregistrar may serve another noticerequiring one of the parties toattend on a specified date at theoffice of the registrar or otherconvenient place to provide theform (s50).

Ceremony The following requirements areprovided for in the act.

Solemniser. The marriage mustbe conducted by a registeredsolemniser in a form of ceremonythat is approved by the tArdChláraitheoir. The tArdChláraitheoir will maintain aregister of all persons empoweredto solemnise marriages that isopen to inspection by the publicat all reasonable times (s51(1)).

Parties. Both parties to themarriage must be present. Theremust also be two witnesses,professing to be over the age of18 (s51(2)).

Location. The marriage can besolemnised only at a place andtime chosen by the parties to themarriage with the agreement ofthe registered solemniserconcerned. The place where themarriage is taking place must beopen to the public (s 51(2)).There is an exception made for asituation where one or both of theparties is too ill to attend at aplace that is open to the public,as certified by a medicalcertificate, and thesuperintendent registrar or an tArdChláraitheoir gives approval to thesolemniser for the marriage totake place at a location chosen bythe parties and agreed by thesolemniser (s51, as amended bythe Health Act 2007, schedule 2,part 5).

Declarations. The solemnisermust be satisfied that the partiesto the marriage understand themarriage ceremony and thedeclarations. The parties mustdeclare in the presence of eachother, the registered solemniserand the two witnesses, that he orshe does not know of any lawfulimpediment to the marriage andthat they accept one another ashusband and wife. Once thedeclarations have been accepted,the parties are then considered tobe married (s51(4)).

Language. If one of the partiesto the marriage does not haveknowledge of the language of theceremony, a translator must beprovided. The interpreter mustsign a declaration in the presenceof the solemniser that theyunderstand and are able toconverse in that language.Immediately after the ceremony,they must also give and sign, in

the presence of the solemniser, acertificate, in the language of thesolemniser, to the effect that theyhave acted faithfully as aninterpreter (s51(6)).

Objections A person may object to a marriageat any time before a marriage issolemnised. The objection must bemade in writing to the registrar,who will notify the parties of thestated objection and make suchinquires as he or she thinks fit. Ifthe marriage registration form hasalready been given to the parties,the registrar may request thereturn of the form and correct it byadding any notifications to it. It willthen be returned to the parties. Ifthe registrar sees fit, the objectioncan be sent to the tArdChláraitheoir, who will in turnensure that the parties are notifiedof the objection lodged, theinvestigation, and the fact that themarriage cannot go ahead until theinvestigation is completed. If noimpediment is found, then theparties will be notified and will bereissued with their marriageregistration form. If there is animpediment found, the parties willbe notified that the marriage shallnot proceed, including the reasonfor the decision. If the marriagehas already been solemnised, itshall not be registered. An appealis available to the Circuit FamilyCourt (s58).

More information on the newprovisions is available atwww.citizensinformation.ie.

Elaine Dewhurst is the LawSociety’s parliamentary and lawreform executive.

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Get more at lawsociety. ieGazette readers can access back issues of the magazine as far back as Jan/Feb 1997 right up to the current issue atlawsociety.ie. You can also check out current news, forthcoming events, employment opportunities and the latest CPD courses, as well as lots of other useful information.


LAW SOCIETY GAZETTE JAN/FEB 2008 COVER STORY

The High Court on occasion exercises itsjurisdiction to ‘measure’, on the spot, thecosts of applications determined before it.For example, the costs of an application torestrict a director of a company have

commonly been measured, the usual order for costsbeing that the restricted director “do pay the sum of€X as a contribution toward the costs of the applicantliquidator”. In family law proceedings, the court hason occasion measured the entire costs of an action, inthe interests of finality. In the Commercial Court, it isnot uncommon for costs to be summarily determinedand ordered to be payable immediately, particularly ininterlocutory applications.

In addition, the Master of the High Court, inMitsubishi Electric Europe BV v Design Air Ltd, hasengaged in a pilot exercise to measure costs ofcommon applications. The master set out inconsiderable detail how he believes such regularlyoccurring costs should be measured.

Here, we examine the basis of the High Court’sjurisdiction to measure costs, and we explore thequestion of when measurement of costs may be moreappropriate than taxation.

All the world’s a stageOrder 99 of the Rules of the Superior Courts 1986 dealswith the jurisdiction of the High Court on thequestion of costs generally. Under order 99, rule 1,

MEASUREMEASU

What is the basis of the High Court’s jurisdiction to measure costs, and

when is measurement of costs more appropriate than taxation? Hugh

Kennedy and Brid O’Flaherty break out their measuring tools

the High Court enjoys a wide discretion in theawarding of costs of proceedings that come before it,subject to law. The court’s jurisdiction to measurecosts arises under order 99, rule 5, which reads: “Inawarding costs, the court may direct (a) that a sum ingross be paid in lieu of taxed costs…”

Thus, it is clear that the High Court hasjurisdiction to measure the costs of any proceedings ina summary manner, rather than delegating thequantification of costs to the taxing master in defaultof agreement by the parties.

Masters of their fatesUnder order 63, rule 6, the master has jurisdiction toaward costs at his discretion and “may direct paymentof a sum in gross in lieu of payment of costs to betaxed”. In the Mitsubishi case, the master engaged in apilot exercise to measure the costs of “a randomsample of applications of the sort which are made ona daily basis in the master’s court”. The master hadalready made rulings on different types of motions in16 separate cases and had made costs awards. He theninvited the parties in all the motions to return andmake submissions on the quantum of costs of themotions; the parties did so in 13 of the cases. Threeparties declined to participate: “For the record, itshould be noted that three of the larger firms inDublin … requested the master not to measure costsin their particular cases. For whatever reason, these

MEASU for

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LAW SOCIETY GAZETTE JAN/FEB 2008COVER STORY

RE

• Measuring costs• Measuring

jurisdiction• Pointers for

practitioners

MAIN POINTS

RE


LAW SOCIETY GAZETTE JAN/FEB 2008 COVER STORY

Some pointers for practitioners on measurement:• The court may, of its own motion, decide to

measure costs rather than direct them to be taxedin default of agreement,

• The court that hears the matter should be the onethat measures, and not another court, as it is onlythe court that has actually heard the case andknows about it that is in a position to make asummary assessment of costs,

• If the court decides to measure, it need not ape orcopy the practices and procedures of the taxingmaster, but can act in a summary manner,

• Under order 99, rule 5, no provision is made for theparties to be heard before the court measures, butit is clearly in the interests of justice that parties beafforded the opportunity to be heard first,

• It is open to one or both of the parties to ask thecourt to measure instead of tax,

• Where a party seeks to have its costs measured bythe court, to aid the court, a statement of theparty’s costs can be presented for the court’sconsideration, with a copy for the other side – toavoid accusations of ambush and to allow the otherparty to respond, it might be prudent to send a copyto the other side prior to the hearing,

• Parties may dispute items of costs presented to thecourt by the other side,

• Measurement rather than taxation may be moreappropriate in: – Short, self-contained and discrete matters that

have reached a conclusion before the court,– Matters where finality is desirable and the

aggravation of taxation proceedings would bestbe avoided,

– Standard or common applications that frequentlycome before the court,

– Matters where measurement and an order forimmediate payment is requested becausepayment by the losing party is in doubt,

– Cases where the court wishes to mark itsdispleasure with a party’s conduct, or wheresome serious prejudice has been caused to theopposite party for which it is necessaryimmediately to compensate him,

– Cases where ‘issue-based costs orders’ aremade by the court,

• On the other hand, taxation may be moreappropriate than measurement in:– Cases where there is likely to be an overall

taxation at the conclusion,– Complex or non-standard matters that are

perhaps interlinked with or referable to otherproceedings where costs will be taxed,

– Hearings that last longer than a day,– Matters where one party is legally aided, a minor

or under a disability, or an emanation of thestate,

– Matters where a costs award covers multipleplaintiffs or defendants,

• Order 99, rule 5, appears to exclude splitmeasured/taxed costs awards by the court,

• Measurement is not to be confined to ‘simple’ or‘small’ cases only.

Finally, practitioners should remember that an award of measured costs has the same status as any other order of the court and is enforceable in likemanner.

THE PLAY’S THE THING

solicitors’ firms, presumably on their clients’instructions, opted to go the taxation route.”

The master warns in Mitsubishi that changesproposed by the Legal Costs Working Group shouldbe monitored by the courts. The master summarisesthe Irish and English jurisprudence available onmeasurement of costs. He explains in great detail howcosts should be measured.

The master then applied these principles to the 13cases before him and measured costs accordingly.Since Mitsubishi, the master has been applying theprinciples set out there to measure and fix the costs ofvarious types of interlocutory motions, whenrequested to do so.

A pound of fleshAlthough it is not uncommon for the court toexercise its discretion to measure costs, there is verylittle case law indeed (the master’s Mitsubishi rulingaside) dealing with when the court should exercisethis discretion, and how. The provisions of order 99are in identical terms to the pre-1999 England and

Wales equivalent rules, and the Court of Appeal hasprovided useful guidance.

The seminal case is Leary v Leary, a 1987 decisionof the English Court of Appeal in matrimonialproceedings. There, when delivering judgment, thetrial judge, without prior warning to the husband, hadmade an order under the equivalent of order 99, rule5, directing him to pay to the wife a fixed amount ofstg£31,000 costs instead of having the costs taxed.The trial judge stated that the order for costsreflected the consequences of the husband’s failure todisclose his financial position during the proceedingsand that the possibility of further litigation arising outof a taxation should be forestalled for the benefit ofthe parties.

The Court of Appeal upheld the judge’s summarymeasurement, finding that the judge was entitled toaward a fixed sum in lieu of taxed costs if heconsidered such an award was required to reflect thefailure of a party to disclose his financial situation.The court went on to say that, generally, the power tomeasure costs was not confined to “modest and

“The wholepurpose ofmeasurementwas to avoidthe expenseandaggravationinvolved inprotractedlitigationarising out ofa taxation”

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LAW SOCIETY GAZETTE JAN/FEB 2008COVER STORY

simple cases”. Nor was the judge required, beforemaking the award, to conduct an inquiry in the natureof a ‘preliminary taxation’ in which there was adetailed investigation of the figures. The wholepurpose of measurement was to avoid the expense andaggravation involved in protracted litigation arisingout of a taxation. The discretion was, however,required to be exercised judicially, and the judge wasrequired to give proper consideration to all relevantfactors when measuring. Furthermore, it depended onthe circumstances of the case whether the rules ofnatural justice required the judge to warn of hisintention to measure and to give the affected partythe opportunity of making submissions before doingso.

Let’s kill all the lawyersSince the introduction of the new Civil Procedure Rulesin 1999 in England, a new regime for the awarding ofcosts generally, and specifically the assessment ofcosts, has been in operation, leading to a large gapbetween the practice of the Irish and English courts.

The English and Welsh courts now deal with thequantification of costs either by way of ‘detailedassessment’ by a costs officer (analogous to taxation)or by ‘summary assessment’ (akin to measurement).Summary assessment involves the court determiningthe amount payable at the end of the hearing, usually

on a relatively rough-and-ready basis. Wherehearings of either trials or interim applications aredisposed of within a day, all courts are obliged tomake a summary assessment of the costs of that dayon that day, unless there is good reason not to do so.Summarily assessed costs are normally payable within14 days of the order.

To assist the judge, parties are required to file andserve – not less than 24 hours before the hearing –signed statements of their costs, detailing thenumber of hours claimed, the hourly rate, the gradeof fee earner, the solicitor’s costs for attending thehearing, counsel’s fees and VAT. At the end of thehearing, the judge asks for the parties’ statementsand examines the detailed breakdown of costsactually incurred by the party to whom costs havebeen awarded, before measuring those costs. Thecourt is permitted to draw on its general experienceof costs in comparable cases, although judicial tariffsfor different types of cases are not allowed.

Hugh Kennedy and Brid O’Flaherty are barristers ingeneral practice.

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LOOK IT UPCases:• Leary v Leary [1987] 1 All ER 261• Lownds v Home Office [2002] 1 WLR 2450 (summary assessment under the

CPR regime)• Mitsubishi Electric Europe BV v Design Air Ltd [2007] IEHC 203, unreported, 22

May 2007• Silva v C Czarnikow Ltd [1960] 1 Lloyd’s Rep 319 (measurement sought and

granted to guarantee costs payment)• Veolia Water UK plc v Fingal County Council [2006] IEHC 240, Clarke J,

unreported, 22 June 2006 (issue-based costs orders)

Legislation: • Rules of the Superior Courts 1986, orders 99, 63

Literature: • Legal Costs Working Group, Legal Costs Working Group Report, 7 November

2005, available at: www.justice.ie/en/JELR/legalcosts.pdf/Files/legalcosts.pdf


LAW SOCIETY GAZETTE JAN/FEB 2008 FAMILY LAW

In 2007, Ireland marked its first full decade ofdivorce legislation. Since the introduction ofdivorce, the country has witnessed radicalchange that has resulted in a more secular andless traditional society. Key among these

changes has been considerable economic growthleading to increased personal wealth. Ireland nowboasts approximately 33,000 millionaires, a statisticthat at the time of the 1986 – and indeed the 1995 –referenda would have been unimaginable to mostIrish people. In addition to growing wealth, Irelandhas also been significantly influenced by itsmembership of the European Union.

It is within the context of this change that thedivorce jurisdiction has operated in Ireland since itcame into force in 1997. While marriage hasremained popular, divorce has also become morecommon. According to the Central Statistics Office,divorce is now the fastest-growing ‘marital status’,with the number of divorced people in Irelandincreasing from 35,100 in 2002 to 59,500 in 2006.

Undoubtedly, the rise in the number of divorcedpeople also reflects an increasing acceptance ofdivorce within Irish society. Reflecting this greateracceptance of divorce, a recent survey carried out onbehalf of The Irish Times revealed that, were areferendum on divorce now to take place, 75% ofpeople would vote in favour of it, a substantialincrease on the 50.28% in 1995. The question

TEN YEARS

facing Ireland now is what type of legal frameworkand practice should underpin its law in this area?What type of divorce do we want?

WatershedThe introduction of divorce marked a watershed inIrish legal and social history. The scheme of divorceentered into continues the old common-lawtradition of a lifelong spousal support obligation.Since 1997, several cases have come before theCircuit, High and Supreme Courts that haveprovided clarification on some of the ambiguities inthe divorce legislation. Moreover, the increasinginternationalisation of family law has fundamentallyaltered the manner in which divorce advice isimparted. The result is that the manner in which thedivorce remedy is now operating may bear littleresemblance to the intention of the legislature thatpassed the original statute.

At the time of both the 1986 and 1995 divorcereferenda, many people were concerned that divorcewould leave first families in poverty. The basis forthis assumption was unclear. Nevertheless, ithindered the development of a debate as to howfinancial and property issues should be dealt with ondivorce.

A list of factors, as set out in the Family Law(Divorce) Act 1996, have to be assessed and weighedby the courts in determining proper provision.

• Divorce –watershed inmodern Irish legaland social history

• Determining properprovision

• High degree ofuncertainty

MAIN POINTS

AFTERTen years after divorce was introduced in Ireland, there are about 60,000

divorced people here. But what type of legal framework and practice should

underpin the law in this area? Geoffrey Shannon’s intentions are honourable

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LAW SOCIETY GAZETTE JAN/FEB 2008FAMILY LAW

Despite ten years of practice, it remains a fact thatmost issues are considered in light of the unique andspecific facts that exist in each individual case. Thedivorce system allows considerable discretion, whichcreates a very high degree of uncertainty for couplescontemplating divorce.

Ancillary reliefThe Supreme Court, in the leading T v T case,stated that, on divorce, the courts are obliged tomake “proper provision” for both spouses, takinginto account all of the circumstances of eachparticular case. This affords judges considerablediscretion in dealing with the assets of a marriage.

It is now time to formulate a set of principles forthe determination of ancillary reliefs, including allmaintenance orders, property adjustment orders andpension adjustment orders. This would providegreater clarity and certainty in the determination ofsuch orders. In particular, clear principles to guidethe determination of what comprises “properprovision” are needed.

Clean breakDespite the determination through the granting of adivorce that a marriage has ended and that bothparties are free to remarry, there has been little orno debate on the obligations owed by one former

Times have changed sincethe divorce referenda


LAW SOCIETY GAZETTE JAN/FEB 2008 FAMILY LAW

During the divorce campaign, much assistance was pledged by thegovernment of the day to ‘protect from attack’ the institution ofmarriage by way of increased financial resources for such servicesas marriage-guidance counselling, mediation and improved courtfacilities. The government-run Family Mediation Service expandedthroughout the country, and the newly established Courts Serviceembarked on a programme of providing improved court facilities.

Progress in providing support services, however, has been slow. In particular, there is a need for greater coordination between thecourts and the existing support services. In 1985, the JointCommittee on Marriage Breakdown reported that “one of the mostdisturbing aspects” of the court structure was the lack of any properin-court service. While improvements have taken place since thisreport was published, further progress is necessary. In Australia, forexample, the Australian Family Court has a large counselling serviceattached to it. It is now more than ten years since the publication ofthe Law Reform Commission’s Report on Family Courts and many ofits recommendations have yet to be implemented.

In addition to more comfortable, convenient and client-friendlycourt facilities, both the courts and parties to a divorce would

benefit greatly from the promotion and more widespread use ofmediation and other forms of alternative dispute resolution. Thiswould minimise the number of contested cases ending up in thecourts and also reduce the level of ‘brinkmanship’ that sees manysettlements being reached on the steps of the courts.

While the Courts Service is to be commended for its pilot workin increasing the reporting on family law cases in front of the High,Circuit and District Courts, there remain substantial gaps in theinformation available to practitioners, researchers and the generalpublic in relation to the operation of divorce in Ireland. Forexample, it is difficult to encourage informed public debate on theactual implications of divorce without properly collected, collatedand analysed data on issues such as maintenance awards, childcustody cases, the treatment of the family home, the duration ofproceedings and the costs involved in pursuing differentapproaches. In addition, the lack of information on the majority ofdivorce cases, that is, those heard in the Circuit Court, and therelated matters that are decided in the District Court, represents aconsiderable gap in our knowledge of the application of Irishdivorce law.

THE FAMILY LAW SYSTEM

spouse to the other. The law on ‘clean-break’divorce should be reviewed and consideration shouldbe given to the practice in England where, at aminimum, ‘deferred clean-break’ divorce is possibleby limiting the time and circumstances under whicha receiving spouse can return to the courts to seekfurther provision.

Prenuptial agreementsThe increasing use of prenuptial agreements is afurther indication that couples entering intomarriage want, in the event of divorce, to haveclarity and certainty in relation to their financialmatters. Prenuptial agreements are merely a type ofcontract. There is no reason why all such contractsshould be prima facie unenforceable.

A better view would be to permit such contracts,but make them subject to the general rules andregulations governing contract and the substantiveprinciples governing ancillary relief. With theenactment of the divorce legislation, the path is nowclear for giving effect to the enforceability ofprenuptial agreements in limited circumstances. Nolonger does article 41 of the Constitution obstructthe enforceability of such agreements. The time istherefore ripe for the matter to be addressed in acomprehensive manner by the legislature. The firststep in this process has already been completedthrough the publication of the report of theGovernment Study Group. Legislative action onfoot of this is now awaited.

The law should be reviewed to allow for thedevelopment of prenuptial contracts that are validand enforceable to the extent that they support andfoster the interests of children and spouses. It shouldbe noted, however, that even if the legislature steps

in to support such agreements, the judiciary shouldretain a wide discretion to vary their terms.

Where the heart isThe judiciary increasingly acknowledge thecontribution of women to the family home, thepsychological attachment of children to the familyhome and its stabilising influence at a time of intenseemotional upheaval in children’s lives. Nonetheless,of note in this area is the wide-ranging discretion ofthe judiciary in deciding on the treatment of thefamily home. Clear principles for the treatment ofthe family home are required in order to give greaterpredictability to vulnerable and dependent familymembers.

NullityIn addition to clarifying the grounds for divorce, thereis a corresponding need to assess the grounds fornullity in Ireland. In particular, there is a need toreview the ground that stipulates the “incapacity toenter into and sustain a proper or normal maritalrelationship”, thereby rendering the marriage voidable.

The evolution of the law of nullity in Ireland issomewhat unique, owing to the fact that there wasno system for the legal dissolution of marriage inIreland until the introduction of divorce. Thus, thenullity ground was used by many as a means ofdissolving their marriage in the absence of divorce.Now that divorce is available in Ireland, the utilityand operation of this ground must be questioned.

Invisibility of childrenMany would argue that the striking feature of theIrish divorce system is the relative invisibility ofchildren. The child’s perspective is underdeveloped

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LAW SOCIETY GAZETTE JAN/FEB 2008FAMILY LAW

and often non-existent in the divorce process, wherechildren are caught in the crossfire.

In many divorces, custody of and access to thechildren of the marriage are more zealouslycontested than the financial settlement. Althoughoften fought over for protracted periods of time, itremains the case that children are rarely heard indivorce proceedings in Ireland. A number ofreasons – some valid and others not – have beenpostulated for this. Accommodating theperspective of the child in divorce proceedings isnot easy. Our family law system is adult-centredrather than child-centred. Moreover, the child’sviews and the welfare of the child are notsynonymous. We must consider what works best –the direct voice of the child, the interpretation ofexperts or a combination of both.

Striking characteristicIn considering divorce legislation and itsinterpretation in the courts, Irish divorceproceedings can be seen to have one strikingcharacteristic: the overwhelming discretionarypowers of the courts to determine cases on the basisof the unique facts of each. This approach can beseen to have both positive and negative aspects.

On the positive side, those seeking a divorce havean opportunity to put their specific case, with all itsunique circumstances, to the courts for theirconsideration. On the negative side, this discretion ofthe courts has resulted in a high degree ofuncertainty for those seeking a decree of divorce. Italso leaves the judiciary with relatively few guidelinesand supports when making decisions in what areoften very complex and potentially emotive cases. Itwould therefore be to the advantage of the judiciary,the legal profession and those seeking the remedy of

divorce were the existing legislation and practicereviewed.

In conclusion, we must look back over the firstten years of divorce in Ireland and consider the typeof Irish society that (barely) allowed this relativelyrestrictive legislation to become possible in 1995, atthe changes that have occurred since, as well as atimpending national and international developmentsand trends.

In this broad context, we must ask ourselves if thislegislative regime is one befitting our rapidlymodernising, rapidly secularising, increasingly globalsociety. Public policy, legislation and the practice ofthe courts should not wish, nor be allowed, tobecome irrelevant or even obsolete to those itpurports to serve. With that in mind, we must nowengage in mature and informed debate on the issuesthat arise as a result of divorce in 21st centuryIreland.

Geoffrey Shannon is the Law Society’s deputy director ofeducation and the author of Divorce: Law and Practice(Thomson Round Hall, 2007).

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LOOK IT UPCases:• T v T [2002] IESC 68

Legislation:• Bunreacht na hÉireann, article 41• Family Law (Divorce) Act 1996

Literature:• Law Reform Commission, Report on Family

Courts (LRC 52-1996, March 1996)

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LAW SOCIETY GAZETTE JAN/FEB 2008 EMPLOYMENT LAW

The Supreme Court’s judgment in Ryanairv Labour Court and Irish Municipal Publicand Civil Trade Union (IMPACT)considered the jurisdiction of the LabourCourt to investigate disputes in non-

unionised workplaces. The judgment has effectivelyslowed the developing trend where the LabourCourt applied the Industrial Relations (MiscellaneousProvisions) Act 2004 to issue recommendations as tothe standard of terms and conditions to be applied innon-unionised workplaces. The 2004 actstrengthened the mechanisms set out in theIndustrial Relations (Amendment) Act 2001, by whichthe Labour Court could issue recommendations inthese types of workplaces and ultimately issue abinding determination. With approximately 100cases having come before the Labour Court underthe 2001 act, the legislation has had a verysignificant impact to date and has been actively usedby trade unions to strengthen their role andinvolvement in non-unionised organisations.

Many employers, particularly multinationalemployers, prefer to deal directly with employeesand consult with them about business decisions asthey affect the workforce, choosing not to put inplace formal mechanisms for trade-unionrecognition. While employees have the right to joinand form a trade union, the employer is not legallyobliged to recognise that union for negotiation

DISPUTED The Ryanair judgment limits the Labour Court’s jurisdiction to issue

recommendations as to the standard of terms and conditions in non-

unionised workplaces. But it leaves many areas open to further

interpretation, writes Maura Connolly

• Jurisdiction of theLabour Court

• Definitions of‘collectivebargaining’ and‘trade dispute’

• Impact onindustrialrelations practiceand procedure

MAIN POINTS

purposes. This principle was tested in the periodleading up to Ryanair in a number of high-profilecases involving employers such as Ashford Castleand GE Healthcare, where the Labour Courtdirected the employer to deal with the trade unionfor a variety of purposes (including individualgrievance procedures and to agree rates of pay,policies and procedures, and working conditions),but did not direct trade-union recognition.

Fair proceduresIn the Ryanair case, the Supreme Court analysed theLabour Court’s jurisdiction and imposed limits onthe ambit of that jurisdiction. While the judgment isof significant interest on the facts and in the contextof industrial relations disputes, it may also havewider application to other employment rightsbodies. In the Supreme Court, Geoghegan Jcriticised some aspects of the Labour Court’spractice and procedure on grounds of proceduralunfairness. The Labour Court’s practice of relyingon written submissions in determining factualmatters was criticised, and the Supreme Courtdirected that, where factual matters were in dispute,oral evidence should be taken from the employeesconcerned. Written submissions are commonlyprepared in the context of Rights Commissionerhearings, Equality Tribunal mediation andinvestigation proceedings, and internal grievance

territory

33www.lawsociety.ie

LAW SOCIETY GAZETTE JAN/FEB 2008EMPLOYMENT LAW

and disciplinary investigations. The logicalimplication of the Supreme Court decision is that,while the use of written submissions may continuein these employment rights bodies, whenever factualmatters are contradicted, then direct evidence willbe preferred.

There is an established body of case law,beginning with Re Haughey, which sets out theprinciples of fair procedures and, in particular, theright to test the evidence of witnesses through cross-examination. The effect of the Ryanair case may beto extend these fair procedure rights to the moreinformal processes of the Labour Court and otheremployment rights bodies. This may have theadditional effect of introducing more lawyers intothese forums, which have long been regarded as thehome of the union and employer representatives.

In the series of cases under the 2001 act

preceding the Ryanair case, the employees were notdirectly identified in the Labour Court process andwere represented throughout by the trade union.There is no minimum threshold of employeesrequired to be represented by the trade union as aprecondition to bringing a claim. The LabourCourt’s practice of accepting a statement on behalfof the trade union that it represented unnamedemployees in the workplace concerned was a matterof concern for certain employers. An employercould be engaged in a lengthy process under the2001 act without being aware of the significance ofthe outcome for it in terms of the numbers affectedby the decision. This practice was criticised as unfairin the Ryanair case. In a recent case, Castle TFurniture Limited v SIPTU, the Labour Courtaccepted the evidence of the trade union that itrepresented nine out of 18 employees (of which one

Is it a bird? Is it a plane?No, it’s a typically understanding Ryanairrepresentative accusingIMPACT of ‘chickeningout’ of talks


LAW SOCIETY GAZETTE JAN/FEB 2008 EMPLOYMENT LAW

was identified by name) and preferred the directevidence of the trade union as against the writtensubmission of the employer, who was unable toattend the hearing.

Labour Court jurisdictionUnder section 2(1) of the 2001 act (as amended bythe 2004 act), the Labour Court has jurisdiction (atthe request of a trade union) to investigate and makebinding determinations on disputes referred to itwhere a number of key preconditions are met. As apreliminary matter in Ryanair, the Labour Courthad to decide whether the preconditions werecomplied with. The preliminary issues were: • Whether a ‘trade dispute’ existed, • Whether the existing information and

consultation processes in Ryanair amounted to‘collective bargaining’, and

• Whether the internal dispute-resolutionmechanisms had failed to resolve the dispute.

The Labour Court decision was judicially reviewedin the High Court and then appealed to theSupreme Court.

The Supreme Court emphasised that all of thepreconditions should be satisfied before the LabourCourt had jurisdiction to investigate a dispute. Withthis increased hurdle, it may be that unions seekinga role in workplaces will revert to the establishedroute of Labour Court investigations under theIndustrial Relations Act 1969, which does not requiresuch a high threshold.

In the cases that have been reported by theLabour Court since the Ryanair decision, theformula adopted seems to be that the parties haveagreed that the preconditions have been met, so thatthe Labour Court has jurisdiction. Other caseswhere jurisdiction was not conceded have notproceeded before the court. For employers whohave in place effective consultation processes – aswould be the case in many larger multinationalcompanies – the Supreme Court definition ofcollective bargaining (see below) may prove a bar tothe Labour Court’s jurisdiction.

Trade disputeWhile the term ‘trade dispute’ is not defined underthe 2001 act, the applicable definition is that set outin section 3 of the Industrial Relations Act 1946,where a trade dispute is defined to include any“dispute or difference between employers andworkers or between workers and workers connectedwith the employment or non-employment, or theterms of the employment, or with the conditions ofemployment of any person”.

This is a different definition to that contained inthe Industrial Relations Act 1990. The SupremeCourt agreed that the relevant definition was thatcontained in the 1946 act, but disagreed with theLabour Court’s interpretation in Ryanair. The

Labour Court had highlighted the use of the word‘difference’ as supporting the argument that thereexisted a trade dispute.

The Supreme Court disagreed that the use of theword ‘difference’ was intended to mean somethingdifferent to dispute. It was stated that the inclusionof the word ‘difference’ was intended to indicate thewider meaning of the expression ‘trade dispute’.

The Supreme Court also held that the LabourCourt, in determining whether there was a tradedispute, should have investigated whether there wasinternal machinery for resolving the perceivedproblem and whether that machinery had beenexhausted.

Collective bargainingThe evidence before the Labour Court was that, incommon with many employers, Ryanair hadestablished consultative bodies known as EmployeeRepresentative Committees (ERCs) and held ‘townhall meetings’. Ryanair claimed that the existence ofthese consultative bodies and processes amounted ineffect to collective bargaining, such that the LabourCourt had no right to adjudicate on the dispute. Italso argued that no bona fide trade dispute existedbetween the parties, and it submitted that this waspart of a strategy on the part of the union to compeltrade-union recognition.

The Labour Court accepted that it could notdirect trade-union recognition against an employer.It determined that Ryanair’s communication andconsultation processes did not amount to collectivebargaining, using a definition developed by the courtin Ashford Castle v SIPTU. Further, the factualbackground was that the pilots had withdrawn fromthe ERC process and, as such, at the time of thereferral, there was not an ERC in place for thepilots. The Supreme Court held that the unilateralwithdrawal from machinery put in place by theemployer would not of itself entitle the employees toassert that there was no collective bargaining processin being.

The Supreme Court disagreed with the LabourCourt’s approach to whether or not machineryexisted for collective bargaining negotiations. Whileit cited the definition of ‘collective bargaining’ asdeveloped in the Ashford Castle case, the SupremeCourt held that the description of collectivebargaining processes, while appropriate to aunionised workplace, was not necessarily applicableto a non-unionised workplace: “If there is amachinery in Ryanair whereby the pilots may havetheir own independent representatives who sitaround the table with representatives of Ryanairwith a view to reaching agreement, if possible, thatwould seem to be ‘collective bargaining’.”

The Supreme Court found that the LabourCourt’s approach was fundamentally unfair. Ryanairofficers gave evidence at the hearing to the effectthat the ERC mechanism amounted to collective

“The effectmay be toextend fairprocedurerights to themore informalprocesses ofthe LabourCourt andotheremploymentrightsbodies”

Hoist ’em, Mr O’Leary

35www.lawsociety.ie

LAW SOCIETY GAZETTE JAN/FEB 2008EMPLOYMENT LAW

bargaining. The Supreme Court held that if thatfactual situation was going to be disputed, it shouldhave been done by “sworn or at the very leastunsworn oral evidence before the Labour Courtfrom pilots working in the company”. The SupremeCourt held that the Labour Court’s reliance only onwritten submissions from the union was unfair.

The unilateral withdrawal of the pilots from theERC mechanism did not, in the view of GeogheganJ, mean that the process had failed. Withoutidentifying precisely the parties to the dispute (andin particular which pilots were involved in thedispute), the Labour Court did not have before itevidence on which it could conclude that theinternal procedures had failed to resolve the dispute.

Wider impactGeoghegan J summarised his criticisms of thefairness of the procedures adopted by the LabourCourt:a) The Labour Court should not have permitted

complete non-disclosure of the identity of the

persons on whose behalf the union waspurporting to be acting, and

b) In circumstances where unsworn oral evidencewas given to the court by two companyrepresentatives, the court was not entitled todisbelieve that evidence without hearing evidencefrom at least one pilot who was an employee ofRyanair.

The Supreme Court’s decision will lead to acomplete overhaul of the Labour Court’s practiceand procedures and is likely to lead to the necessityfor the increased application of the rules of evidenceand testing of that evidence where factual mattersare in dispute.

While the full impact of the Ryanair decision forfuture cases brought under the 2001 and 2004 actsremains to be seen, it has potential to radicallychange the procedures implemented by the LabourCourt and other industrial relations andemployment rights bodies in investigating workplacedisputes.

The Supreme Court has identified as an elementof fair process that employees ought to be identified,and this may affect the number of referrals made tothe Labour Court in the future.

Depending on the outcome of the Labour Court’sfurther deliberations in the re-hearing of Ryanair, ifthe Supreme Court definition of ‘collectivebargaining’ is accepted, it is likely that an increasingnumber of employers will resist intervention by theLabour Court by pointing to existing informationand consultation procedures. Some commentatorshave regarded the lack of a definition of ‘collectivebargaining’ as a legal void that will requirelegislation to clarify and posited that other forms ofemployee representation, such as works councils andother types of employee representative councils, willpresent a rival to the traditional trade unions.

The development of Labour Court jurisdictionand its intervention in workplaces under the 2004act has caused concern in some sectors. TheSupreme Court decision places limits on thatjurisdiction but leaves many areas of the legislationopen to further interpretation and consideration.

Maura Connolly is a partner and head of the employmentlaw group at Eugene F Collins Solicitors.

G

Cases:• Ashford Castle v SIPTU [2004] ELR 214• Castle T Furniture Limited v SIPTU, CD/07/248,

Labour Court Recommendation no 19002, 1October 2007

• GE Healthcare and Services IndustrialProfessional Technical Union, CD/04/678,Labour Court Recommendation no 18013

• Public and Civil Trade Union/Irish Airline PilotsAssociation v Ryanair [2005] 16 ELR 99

• Re Haughey, Supreme Court [1971] IR 17• Ryanair v Labour Court and Irish Municipal Public

and Civil Trade Union (IMPACT), unreported,Supreme Court, Geoghegan J, 1 February 2007

• Ryanair v Labour Court and Irish Municipal Publicand Civil Trade Union [2006] 17 ELR 1

Legislation:• Industrial Relations Acts 1946, 1969, 1990• Industrial Relations (Amendment) Act 2001• Industrial Relations (Miscellaneous Provisions)

Act 2004

LOOK IT UP

WILLS, PROBATE & ESTATESThe Law Society is now selling Wills, Probate & Estates, published by the

Law Society of Ireland/Oxford University Press. Contact Julianne Ward:email: [email protected] or phone: 01 672 4942 if you wish to order a copy.


LAW SOCIETY GAZETTE JAN/FEB 2008 COMPANY LAW

By the very nature of the work we do,solicitors understand every aspect oftheir clients’ business affairs, fromcompany incorporation to employmentissues, from financing to company

borrowings. This presents a clear opportunity duringtimes of economic uncertainty for the solicitor tointeract with client companies.

While it is often true that little insight can beoffered to a company that it will not already be awareof, there are times when company directors get blind-ed by the predicament their company is facing. Whenthis happens, very frequently they fail to realise thatnot only are they ‘catching a falling knife’ by followingtheir money, but that they are doing nothing to resolvethe company’s underlying problems – thereby riskingits ultimate survival. Solicitors do themselves nofavours by ignoring sometimes obvious signals about acompany’s performance because, ultimately, thecompany will fail and the solicitor will lose a client.

Frequently, solicitors can play a vital role in therecovery of a company by analysing the issues andproposing solutions within the structure of theexaminership process. This article sets out, in verygeneral terms, the conditions required for theappointment of an examiner and, most particularly,whether the company is a candidate for theappointment of an examiner. Real-life situations aredescribed, where companies were in dire difficultiesbut were saved by the process of examinership,involving asset disposals, company sales andrefinancing.

The likely ladsIn assessing whether a company is a candidate for theappointment of an examiner, two criteria should beemployed. First, does the company’s situation complywith the provisions of the Companies (Amendment) Act1990, as amended by the Companies (Amendment) (No2) Act 1999, which states that the company must be“likely to be unable to pay its debts” and “the courtshall not make an order [appointing an examiner]unless it is satisfied that there is a reasonable prospectof the survival of the company and the whole or anypart of its undertaking as a going concern”.

The second criterion to be taken into account is

In the third article in our series on how a possible economic downturn may

affect solicitors, Barry Lyons says that the right knowledge can lead to new

business by providing dramatic examinership solutions to the commercial

difficulties faced by smaller client companies

whether the company is sufficiently robust in terms of: • Assets, • Contracts,• Turnover, • Trading profits, • Expertise, or • Potential to warrant the interest of financiers

(investors, lending institutions, asset purchasers) tosupport it by providing financing or acquiring assetsfrom it.

Other questions that should be asked when assessingthe likelihood of the survival of the company include:• Is the company likely to survive in whole or in part

as a going concern, or is the company ‘terminallyinsolvent’?

• What are the assets of the company? • What are the liabilities of the company and how are

these liabilities secured?• Are the assets of the company easily sold? • Is the company trading profitably on a current basis

(without including the historic debt)?• Are the assets (or turnover) sufficiently large to

justify the costs of examinership? • What is the staffing position of the company

(number of staff and length of service) and what willtheir reaction be to the likely changes followingexaminership?

• What is the regulatory position of the company,including licenses, environmental matters, keycustomer audits, planning permissions, and so on?

• What is the level of outside investment required toallow a scheme of arrangement to be put to thecreditors?

In my experience, it is very unusual that circumstanceswould not allow the exploration of the examinershipoption, particularly where the alternative is theliquidation of the company, the loss of jobs and theruin of the promoters.

As can be seen from the case studies below, thebreathing space afforded by examinershipfrequently gives companies the ability to succeed inthe future and: • Relieves a company of an intolerable debt burden,

and/or

• Exploring theexaminershipoption

• Likely candidates• Life after

restructuring

MAIN POINTS

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LAW SOCIETY GAZETTE JAN/FEB 2008COMPANY LAW

Breathing

• Disposes of non-core assets, and/or • Reorganises the company’s structures, and/or • Enables refinancing, and• Agrees a scheme of arrangement with their

creditors (including the Revenue) under theoversight of the High Court.

Between 2004 and 2006, 93% of companies thatwent into examinership survived. In the USA, 22%of insolvent companies applied under the similarprovisions of Chapter 11, with only 2% of Irishcompanies seeking the same protection in the sametime period.

easy

Should’ve goneto Specsavers


LAW SOCIETY GAZETTE JAN/FEB 2008 COMPANY LAW

In early 2005, Shamrock Rovers Football Club –one of the most recognisable of Ireland’s soccer clubs– was beset by woes, including: • Having no home grounds, • Having been successfully sued by a former

manager for €25,000, • Having filed inaccurate returns to the FAI,

thereby jeopardising its future in the league, and• Having liabilities (including Revenue liabilities) in

excess of €2.5 million.

Drop the dead donkeyDespite the immeasurable goodwill towards the club,there simply were not the resources required toresolve matters. However, there was hope: firstly,that the backbone of the club, a communitysurrounding the 31 teams playing at all levels, wouldassist with its survival; and secondly, a commitmentfrom South Dublin County Council that it wouldmake Tallaght Stadium available to the club in orderto provide it with a home ground to generaterevenue.

A petition for the appointment of an examiner wassuccessful and the company was given 70 days tocreate a rescue package to resolve its problems,which comprised: • Confirmation from South Dublin County Council

that Tallaght Stadium, when completed, would beavailable to the club as its home ground,

• Sufficient investment to provide for a scheme ofarrangement to pay the company’s creditors andpay for the examinership costs,

• New commercial management, and• The approval of the High Court of the proposed

scheme of arrangement.

A group of fans put sufficient funds together toenable the examiner to propose the scheme ofarrangement to the creditors of the company. Atestament to the loyalty of the unsecured creditorswas that they agreed to write off their debt byaccepting a dividend of 3.5% of the company’sliability to them.

Notwithstanding that the FAI sanctioned the clubfor going into examinership by docking it tenpoints, resulting in its demotion to the first division,in 2007 it was promoted again and finished fifth inthe Eircom League.

Arrested developmentPrue and David Rudd and Family Ltd was acompany with insufficient cash resources thatexpanded too rapidly and became insolvent. Thecompany had a strong family brand and customercertifications allowing its products to be sold bymultiples such as Superquinn and Tesco. These werevaluable assets, which took the company years tobuild and which would be lost if it went intoliquidation. The company also had custom-madepremises for food processing, and the lease woulddetermine if the company went into liquidation. Allvalue added by the company in complying withHACCP (food safety) requirements, fitting cold-rooms and so on, would have reverted to thelandlord and, therefore, the company was aparticularly suitable candidate for examinership.

A scheme of arrangement was agreed with thecompany’s creditors, and it successfully emergedfrom examinership following investment by a localbutcher who could help exploit the brand whilebenefiting from the use of the premises.

Keeping up appearancesIn 2003, Macmine Castle Enterprises Ltd ownedand operated a slaughterhouse in Enniscorthy. Thecompany turned over €15 million per annum sellingprocessed pig meat in Ireland and Britain. Operatingin an industry with significant price fluctuation andtight margins, without any financial managementsystems to monitor its exposure or hedge againstvariations in currency and commodity prices, thecompany became insolvent when the commodityand currency prices conspired against it.

The company petitioned to have an examinerappointed in order to give it a chance of survival. Aspart of the examinership, a British company boughtshares in the company and the proceeds were used

Seamus had becomerather too obsessedwith examining hismodel village

39www.lawsociety.ie

LAW SOCIETY GAZETTE JAN/FEB 2008COMPANY LAW

to provide for a scheme of arrangement where a30% dividend was paid to the unsecured creditors,together with the costs of the examinership. Theplant was retooled from a pork abattoir to a halalsheep and lamb slaughterhouse. The company is stilltrading successfully.

Robin’s nestDenber Forestry Services Ltd provides forestrymanagement services. Customers include Coillte,some national parks, and large developmentcompanies that need industrial landscaping. It is anextremely labour-intensive business in which failureto fully complete contracts or any delay indischarging the contract price by the customer willresult in cash-flow problems.

In 2007, the company undertook a number ofjobs for which payment was not immediatelyforthcoming for a number of reasons. As is typical inthese situations, the directors spent all their valuabletime firefighting and trying unsuccessfully to patchup the cash-flow deficit.

Because the costs of the contracts had beendischarged by the company (wages, consumables,and so on) they simply ran out of money needed tocontinue to trade. This was notwithstandingsignificant ongoing contracts, quality customers andrecognition in the marketplace for expertise. Thecompany needed time to rectify its cash-flowdifficulties and successfully petitioned for theappointment of an examiner. The breathing spaceafforded by this allowed the directors to: • Complete jobs on which a small amount of work

remained, so that invoices could issue, • Put an invoice discounting facility in place so that

monies could be released to provide for a schemeof arrangement and the costs of the examinership,and

• Create robust terms and conditions ofengagement, including stage payments for futurecontracts, so that these problems would not occuragain.

The creditors agreed to take a dividend on theamount owed to them because, in a specialistindustry, they would have the opportunity to recouptheir loss from future trade with the company.

Are you being served?Shop to Shop Ltd operates the small but busyBoccaccio restaurant in Dublin’s Dame Street. In2005, it opened another restaurant in Mullingar,with the plan that the management team wouldmove from one outlet to another. Between traffic,the length of the commute and the antisocial hoursinvolved, insufficient staff monitoring led to wastageproblems. Not only was a significant sum expendedon the fit-out of the Mullingar premises, but it alsobegan to haemorrhage money, to the extent that itwas jeopardising the Dame Street restaurant.

It was apparent that, for the company’s survival,the cash-flow drain of the Mullingar outlet neededto be stopped by jettisoning it. However, the tradingposition of the company deteriorated dramaticallywhen it was revealed that unpaid VAT, PAYE andPRSI were supporting its trade. Radical measureswere required to avoid the Revenue takingenforcement action, which would spell the end ofthe company.

The company successfully petitioned for theappointment of an examiner, whose objectives were to: • Dispose of the Mullingar restaurant – at first it

appeared that there was a potential purchaser in aposition to take over the lease, but this came tonothing and the lease was surrendered, and

• Attract investment to provide for a scheme ofarrangement for the creditors of the company.

Investment was attracted that would provide for thescheme of arrangement and discharge theexaminership costs. The High Court approved theexaminer’s proposals for a scheme of arrangementand, as a result, Boccaccio still serves one of thefinest rombo con patate al forno in Dublin.

Curb your enthusiasmArdmore Technologies Limited is atelecommunications company that provides design,installation and maintenance services to localgovernment, industrial, state and semi-state sectors.It has significant maintenance contracts and is alsocharged with installing local area networks (LANs)for a number of county councils. The company alsolaunched a broadband internet service in 2005 andhad 350 customers.

In late 2007, the company had unforeseentechnical issues regarding three LAN installations.The difficulties caused delays with payment, whichstalled the projects, leading to cash-flow problems.Arising from its difficulties, the companysuccessfully petitioned to have an examinerappointed.

Given that the provision of (largely) domesticbroadband services is non-core to the activities ofthe company, it was agreed to sell this business toanother company that provides broadband servicesto adjoining areas and use the proceeds of the sale to provide for the scheme of arrangement with thecreditors and also to discharge the costs of theexaminership.

In such circumstances, it is clear that exploringthe examinership option will ultimately be to thebenefit of solicitors and their clients, and should beconsidered by advisors to distressed companies at anearly stage of deliberations.

Barry Lyons is a partner in Lyons Kenny Solicitors andhas acted for the examiner in most of the examinershipsin the state in the past five years, and also for creditors,investors and companies seeking court protection.

G

LOOK IT UPLegislation: • Companies

(Amendment) Act1990

• Companies(Amendment) (No2) Act 1999

“Notwithstandingthat the FAIsanctioned the club forgoing intoexaminership by docking it ten points ... in 2007 it waspromoted againand finished fifth in theEircom League”


LAW SOCIETY GAZETTE JAN/FEB 2008 PRACTICE MANAGEMENT

Last issue (December 2007, p32), we lookedat the valuation of a practice, taxconsiderations and past and futureprofitability. In this article, we willexamine assessing the practice fee income,

continuation of practice, and the nature and timingof the payment and consideration, all of which areessential in determining the ultimate purchase priceof a practice.

A review of the breakdown of the practice feeincome over the previous three years is an essentialexercise when assessing the valuation of a practice.Practices that have niche market areas of fee-incomesources – for example, professional negligencemedical claims or quality bank-referred assignments– can improve the overall assessment of the qualityof work and practice. Similarly, industryspecialisation – for example, being an advisor to thepharmacy sector – would indeed add considerablepractice value to the overall goodwill assessment.

Quality streetThe quality of staff is another essential ingredient ina valuable practice. A thorough commitment toclient care should be evident in all staff, not justfrom front-line fee earners. The price that a willingpurchaser would be prepared to pay for a practiceshould be significantly influenced upwards ordownwards depending on his or her perception ofthe quality and commitment of staff. Clearly, a well-educated, computerised workforce that is willing toadapt to change and move with the current timeswould exude quality in terms of ability to succeedand would greatly assist in creating confidence with

In the second of a two-part series, Hilary Haydon demystifies the complexities of

valuing, buying and selling a solicitor’s practice

clients and future business development. The extent to which technology is used may be a

useful indicator of the overall quality of a practice.In the past, a firm that failed to move fromtypewriter to word processor might not be long forthis world! In today’s market, one should assess thelevel of computerisation adopted by the practice,including accounting systems, time-managementrecords and case-management software. The reportsemanating from these systems will provide essentialguides to the stability and future potential of theclient base.

Another important factor that has a strongbearing on future profitability is the size and state ofthe wills cabinet. Although the timing and amountof future income from this source is uncertain, awell-referenced wills cabinet, giving details of thedate of each will and the age of the testator, can be avery useful pointer to future income from this area,provided that the basic database is well maintainedand up to date. This is particularly so where thesolicitor has carried out a yearly review of thecabinet and uses his or her knowledge of the clientto estimate the likely value of the estate in each case.

SmartiesA very important factor in arriving at the ultimatepurchase price is the amount of assurance the buyerhas that the clients will remain and will continue toprefer new work. Two factors are important here.

Firstly, the purchaser should include a ‘pay if theystay’ clause to protect him from a suddenhaemorrhage of clients. This can be achieved byincluding a clause that values goodwill based on an

SweeteningTHE POT

41www.lawsociety.ie

LAW SOCIETY GAZETTE JAN/FEB 2008PRACTICE MANAGEMENT

average of past fees (say, over the last three years)and an average of future fees from the same clients(say, over two years following purchase). This mayresult in a higher price being paid for the goodwill –but then a purchaser should not mind paying forwhat they get, as long as they get what they arepaying for!

Secondly, it is very desirable from the purchaser’spoint of view that the vendor should appear (at leastin the public eye) to retain a connection with thefirm. This is obviously impossible where thepurchaser is buying from the personalrepresentatives of a deceased practitioner, but inmost other situations, some type of ongoing contactshould be sought. The stronger and more obviousthis contact is, the greater the amount the purchasershould be willing to pay.

The inclusion of the retiring practitioner as a‘consultant’ on the headed notepaper can assist with

this transition, with their attendance at some of thefirm’s public relations activities, for example, golfoutings or seminars. Similarly, a marketing letterfrom the retiring vendor to clients on a periodicbasis can assist to create the illusion of strongercontinuity in some circumstances.

Other factors affecting the continuation of thepractice are the overall number of clients and theaverage fee per client. A practice with a smallnumber of very large clients is much morevulnerable than a practice with a large number ofsmall clients. Somewhere between these twoextremes lies the optimum mix. However, it should be borne in mind that there are no hard andfast rules in this area, and there are exceptions toevery rule.

In most acquisitions of a practice, the marketingof the transaction is often referred to as a ‘merger’ ofthe two firms. This is to be recommended, as many

• Assessingpractice feeincome

• Continuation ofpractice

• Nature and timingof payment andconsideration

MAIN POINTS

Sweetening the deal– quality staff,sweet technologyand ‘sticky’ clients.Mmm, tasty!


clients do not like to be thought of ashaving been ‘bought’ by another firm.However, it is important in theseinstances to ensure that agreementallows for marketing in this manner –without the purchaser taking on anyliability for any claims or liabilities that

pertain to the vendor prior to thetransaction contract closing.

Selection boxPurchasers and vendors may have very differentviewpoints about the nature and timing of thepayment and consideration. At its simplest, thevendor will generally want a once-off capitalpayment, whereas the purchaser will want to payover an extended period. These different viewpointsmay well be linked to differing taxation implicationsfor the vendor and the purchaser.

Tax implications can have a major effect on thenature and timing of the payments. On the onehand, it may very well suit the vendor to pay capitalgains tax on a capital receipt, but the purchaser willget no tax relief on the payment other than interestrelief on money borrowed to fund the payment. Onthe other hand, it may be preferable from thepurchaser’s point of view to make a stream of futurepayments to the vendor in respect of the latter’scontinuing involvement with the practice.

This approach has obvious benefits for thepurchaser, including that:• The purchaser does not have to find a large

capital sum,• The vendor is tied to the practice for an agreed

number of years,• The purchaser will be making the payments out

of the revenues generated by the practice, and• The purchaser may be able to get tax relief on the

payments, which may be charged as consultancyfees in the practice account.

To obtain these benefits, the purchaser may have topay a considerably higher price. Conversely, thevendor should be willing to accept a considerablylower price where a once-off capital sum is involvedand the vendor can walk away from the situation.

Between these two extremes there are a great many

compromise positions, and these will tend to getteased out in the negotiations between both parties.However, it is vital that professional tax advice isobtained to ensure that both parties understand thetax implications of the eventual decision.

Finger of fudgeAs stated at the outset, there is no definitive,scientific and correct value that can be placed on apractice for sale. Everything depends on the precisecircumstances of each case; the nature, age and styleof the practice; and the particular requirements ofthe vendor and purchaser.

It is vital that the vendor does the necessaryhomework and knows exactly what is being offeredfor sale and is clear in his or her mind about theextent (if any) to which he or she is prepared to beassociated with the practice under its newownership.

The higher the quality of the client base, thestronger the future involvement of the vendor – andthe longer the period of time over which paymentcan be expected, the greater the price that can beachieved.

A very much lower price will be attainable wherethe quality of the client base is poor, where thevendor will have no future contact (because ofdeath, emigration, and so on), and where immediatepayment is required.

Finally, it must be reiterated that it is essential forpurchasers and vendors to secure adequateprofessional advice on all aspects of the proposedacquisition or sale of a practice.

In today’s legal world, it is very much a buyer’smarket, whereby potential vendors are trying topersuade would-be buyers into the market.Therefore, vendors need to prepare their practicefor a potential sale and, as such, many of the pointsraised here will greatly assist. Planning andpreparation provide essential keys to both vendorand purchaser. Think like Keano: “Fail to prepare –prepare to fail.”

Hilary Haydon is joint managing partner in HilaryHaydon & Company Chartered Accountants (Dublin andCork). He specialises in providing accounting and businessdevelopment advice to the legal profession.

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LAW SOCIETY GAZETTE JAN/FEB 2008 PRACTICE MANAGEMENT

Last year, the Red Cross demobilised 1,000 child soldiers. Right now,

300,000 child soldiers are in need of rescue. This Christmas, the Red

Cross are here to help innocent victims of war. Please support our work

in many crisis zones worldwide - by making a donation today.

FOR CREDIT CARD AND STANDING ORDER DONATIONSCALL 1850 50 70 70 OR GO ONLINE WWW.REDCROSS.IE

Last year, the Red Cross demobilised 1,000 child soldiers. Right now,

300,000 child soldiers are in need of rescue. The Red Cross is here to help

innocent victims of war. Please support our work in many crisis zones world-

wide – by making a donation today.

43www.lawsociety.ie

LAW SOCIETY GAZETTE JAN/FEB 2008COUNTY FOCUS

Afarmer came to Galway solicitor JamesSeymour last year looking for him tosort out a problem involvingtrespassing heifers. Seymour helpedresolve the situation and, just before

Christmas, called out to the farm to receive his fee. He left with a box of 30 steaks.“I think I got paid one of the heifers,” he says,

“Sometimes you do have to barter.”

There’s plenty of change in the legal profession in Galway – some of it

reflecting the changes in the country as a whole and some of it led by a

cabal of ‘young guns’ who think some things could be done better. Colin

Murphy rides into the West

INTO THE

It may be an untypical payment, but Seymour isan untypical county bar association president. He isin his early 30s, is a sole practitioner, and worksfrom home in a suburb of Galway. He does housecalls and has office hours from 6pm to 11pm on aSunday evening to facilitate clients who can’t makeit during the week. He keeps his charges low, hesays, and charges a flat rate for conveyancing.

If some of the ways the profession is responding

West• Barter payment• The Field• Free CPD• Community

service

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LAW SOCIETY GAZETTE JAN/FEB 2008 COUNTY FOCUS

to increasing competition are through consolidationand franchise conveyancing, Seymour is a reminderthat there may be another approach: keeping costslow and providing the flexibility demanded in today’smarket.

“Like any other business, you’re selling yourproduct to the customer, and you have to cater totheir needs,” he says.

He didn’t plan it that way: he spent two yearslooking for a job in Galway before deciding to goout on his own. It seems to be working, though theLaw Society isn’t making things any easier for solepractitioners, he says.

“There’s a perception among sole practitionersthat their days are numbered, that they’re beingpushed into a corner. With the level of regulationincreasing and the specialisation that the LawSociety wants, there’s a perception that the LawSociety doesn’t want to see sole practitionerscontinuing.”

The FieldOver a Friday evening pint in the local legal haunt,O’Connell’s on Eyre Square (“Many a case has beensettled here,” he says, “all the insurance companiesare on the Square”), Seymour describes the peculiarintimacy of a practice that regularly takes him out toConnemara to visit clients, and even, on occasion,on the boat to Inis Mór.

Two brothers came to him for help in selling asite. They were Gaelgóirí, bachelors in their 70s,and lived together in a cottage in Connemara. Butwhen an older family member left some land tothem, one received an acre more than the other (notthat any of the land was worth much then), and theyfell out. They haven’t spoken to each other since.They discussed the sale of their site with Seymourwithout speaking to each other.

When they had the basis for an agreement, onebrother said to Seymour, “I’ll sign. You’d better getthe other fellow to sign too.”

“John B Keane’s The Field – there’s a lot of thatout there,” he says. “The land is a strong force inpeople. Families can become very bitter over landand wills.”

He contrasts the nature of working with people inGalway to his previous experience in a Dublincommercial firm. “In Dublin, it’s more professionaland clinical. People come in, they want a job done.Here, with elderly clients, they may not tell youwhat it is they want to talk to you about. You haveto draw it out of them.”

Despite his relatively young age, Seymour is notatypical on the Galway Bar Association committee.The average age of committee members is between30 and 35, he says. A number of them studiedtogether at Blackhall, some were even at NUIGalway together before that, and over half initiallyworked in Dublin before moving back to Galway.There’s a strong bond there, and it seems to have

driven them to take up the mantle of the barassociation together.

Kayanne Horgan, the public relations officer, saysthere was a “generational change” a couple of yearsago. For many years, the association had done littlemore than organise an annual ball. In recent years,even that had lapsed. Last year, they reinauguratedthe ball and established an annual event at theGalway Races. (This year’s race event is on 28 July,and the ball is on 29 November – you’ve been givenplenty of warning!)

“There’s a big drive to get people to know eachother,” says Seymour. As across the country, theprofession has seen huge growth in numbers inrecent years. There are now 340 solicitors in 134firms in Galway city and county (about half aremembers of the bar association).

“The big problem we have here is that you couldbe a well-established solicitor in Galway and you’dwalk into the courthouse and you wouldn’t know10% of the people.”

The committee aims to have 250 of the county’ssolicitors on their books by the end of the year. “Wewant to make it a proper organisation, to provide aforum for them.”

Free CPD!Social activities are one part of that, but there is amore practical incentive also. Starting in Februaryand running throughout the year, the association isoffering a complete course of continuingprofessional development (CPD) seminars to itsmembers – for free.

Membership costs €50 and Seymour says theassociation can pay for ten hours of seminars spreadthroughout the year from members’ subscriptions.Hotels are willing to give them conference facilitiesat very reasonable rates, and many of the lecturersare willing to provide their time for free, or for anominal fee, on the basis that it’s ultimately good fortheir business also.

On 8 February, Emer Meeneghan BL ispresenting a seminar, ‘Update on personal injuriesand the PIAB’, and, on 27 February, John Costelloof Eugene F Collins is lecturing on ‘Legal issuesaffecting elderly and vulnerable clients’. Laterseminars are to be confirmed.

The idea of providing CPD for free didn’t comefrom the young Turks of the committee, however: itwas suggested at the AGM in December by a seniormember, Billy Glynn. The committee wasimmediately persuaded.

The seminars are to be held at 4pm on Fridays,thus combining the pragmatic incentive of CPDhours with the social one of food and drink withcolleagues afterwards.

“It’s a stressful profession,” says David Higgins,the association’s secretary, “and it helps if you have a rapport outside of work with the peopleyou’re dealing with.”

“I think Igot paidone of theheifers.Sometimesyou haveto barter”

Apocalypse cow!

45www.lawsociety.ie

LAW SOCIETY GAZETTE JAN/FEB 2008COUNTY FOCUS

He points out that social events are particularlyvaluable to those solicitors who don’t deal inlitigation: “Litigators meet people in court. If you’redoing conveyancing, you don’t meet yourcolleagues.”

‘Browning’ pointsAll three agree that the profession has got morechallenging in recent times.

James Seymour summarises the challenges:“People are more demanding: they want lower fees,they’re not afraid to question you, and there’s ahigher level of regulation.”

David Higgins says: “A client will walk in thedoor and say: ‘I want to see my solicitor right now.’But they’ll ring ahead to see their dentist ordoctor.”

Kayanne Horgan, who works in a five-solicitorfirm (large, by the county’s standards) in the villageof Headford, has had similar experiences, but puts adifferent spin on it.

“You have people coming in off the street with aquery – it could be a consumer rights question.They might have bought a toaster and it broke – andyou talk to them about it and maybe write them aletter, and you wouldn’t charge for it. That’s the way it should be. It’s good for you in thecommunity.”

Tom O’Donnell remembers the days when“people put on their good suit to come in and see asolicitor”. O’Donnell qualified 40 years ago and isthe second in three generations of lawyers. Hisfather, John C O’Donnell, set up the firm, and

Tom’s son, Cairbre, is treasurer of the barassociation.

O’Donnell tells a story of a client who came tohim with a financial problem. There not being manybanks in the West in those days, this man hadchosen to hide his money in some rocks in an oldfort. But when he went to withdraw it, the rats hadgot there first. There wasn’t much legal recourse forthat.

He recalls that, when he started in the 1960s,memorials had to be written out in longhand inIndian ink on special parchment paper, and briefswere prepared on special brief paper, which wasmuch larger than normal paper, and required aspecial typewriter.

There were 25 to 30 solicitors in Galway then. Ittook three to six moths to get a land registry folio ormap. When the court sat in Galway, about one-thirdof proceedings were in Irish. In Connemara, 90% ofcourt business was in Irish. The gardaí gave all theirevidence in Irish, as they were paid extra to do so.

When he joins us, O’Donnell greets DavidHiggins as Gaeilge, and he says he does still talk tosome colleagues and clients in Irish, but its use hasdiminished greatly.

“You’re more likely to hear Polish or Latvian thanIrish in court now,” says Kayanne Horgan.

There’s plenty of change in the legal profession inGalway – some of it reflecting the changes in thecountry as a whole and some of it being led by acabal of young guns who think some things could bedone better. But there’s plenty of tradition there yet,and they seem to value that too. G

Galway’s haul: JamesSeymour (GBA president),Kayanne Horgan (PRO),Tom O’Donnell (John CO’Donnell), David Higgins(treasurer)

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LAW SOCIETY GAZETTE JAN/FEB 2007 PEOPLE AND PLACES

Past presidents and Council members of the Law Society gathered on 17 January to celebrate the Outgoing President’s Dinner, held in honour of PhilipJoyce. (Front, l to r): Frank O’Donnell, Judge Gerard Griffin, President James MacGuill, Philip Joyce, Moya Quinlan, Bruce St John Blake and Anthony Collins.

(Back, l to r): Elma Lynch, Andy Smyth, Geraldine Clarke, Michael Irvine, Laurence K Shields, Patrick O’Connor, Owen Binchy and Michael V O’Mahony

Attending a special dinner held at Blackhall Place in honour of Paul Callan SC were (back, l to r): Law Society Director General Ken Murphy, Donal Branigan, Turlough O’Donnell SC, senior vice-president John D Shaw, Donal P O’Hagan and Eamon Coffey BL. (Front, l to r): past president

Moya Quinlan, Mr Justice Matthew Deery, Paul Callan SC, Law Society President James MacGuill, Mr Justice Donal Barrington and deputy director general Mary Keane

The former chief clerk of Cork Circuit Court,Sam Gill, presents past president of the LawSociety Philip Joyce, with a copy of his CD,

Circuit Court Draft Order Precedents

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Celebrating the launch of The Superior Courts of Law: Official Law Reporting in Ireland, 1866-2006, by Dr Eamonn Hall, solicitor, were (back, l to r): Brian Murray SC (chairman of the Law

Reporting Council of Ireland) and Ken Murphy (director general of the Law Society and ex-officiomember of the council). (Front, l to r): Michael McDowell SC (former chairman of the council),

Chief Justice John Murray (ex-officio member of the council) who spoke at the launch, Dr EamonnHall (author and former chairman of the council) and Maurice Collins SC (vice-chairman)

47www.lawsociety.ie

LAW SOCIETY GAZETTE JAN/FEB 2007PEOPLE AND PLACES

Solicitors from DunLaoghaire, Blackrock,

Dalkey, Monkstown andStillorgan gathered for theannual Southside Solicitors’black-tie dinner in the Royal StGeorge Yacht Club recently,writes Kevin O’Higgins.Pioneered masterfully by host-for-life Justin McKenna, thismarked the 23rd year of theevent, at which the guestspeaker was one of our own,Judge Michael Peart, who wasvery well received.

It was a special night for thelocal firm of ThomasMontgomery & Co, which was

celebrating 100 years of legalpractice serving the communityof Dun Laoghaire and itsenvirons. At least threegenerations of the family werepresent, including a verysprightly Mr Montgomerysenior, all of 97 years. Specialguests included JudgesGilligan, Quirke and Lavin,local Judge Claire Leonard,President of the Law SocietyJames MacGuill, directorgeneral Ken Murphy, Presidentof the Human RightsCommission Maurice Manning and DBSA PresidentMichael Quinlan.

The new committee of the Galway Bar Association (back, l to r): Cairbre O’Donnell, Louis Burke, JamesSeymour and Rob Meehan. (Front, l to r): Kayanne

Horgan, Elizabeth Cazabon, Ailbhe Burke and Yvonne Francis

Southside solicitors convene at the yacht club

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‘TRIBES’BALL

The Galway Bar Association(GBA) held its annual ball

on 1 December 2007 in theMeyrick Hotel, Eyre Square,Galway. In all, 170 membersattended. The night beganwith a cocktail reception,kindly sponsored by IrishDistillers. Following the meal,everyone strutted their stuffon the dance floor to the livelysounds of The Conquerors.

The ball was a fitting end

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Guests at the GBA ball included (l to r): Judge Raymond Groarke, county

registrar Marian Higgins-Chambers, Judge Geoffrey Browne, Judge Mary Fahy

and Judge Gerard Keyes

to what has been a veryproductive year for outgoingGBA president Ailbhe Burke

and her committee. Thecommittee would like toconvey its sincere appreciation

to its generous sponsors,Ulster Bank and IrishDistillers.

Thomas Montgomery & Co is celebrating 100 years of serving the community of Dun Laoghaire and its environs. Three generations of thefamily are represented here, including Mr Montgomery senior (97 years)

Solicitors and trainee solicitors from Partners at Law, Dun Laoghaire

The Blackrock contingent were well represented at the Southside Solicitors’ function

A new VAT on Property regime will be introduced on 1 July 2008. Anyone

owning or selling property and their legal advisors need to consider the impact

of the new regime.

Purcell McQuillan Tax Partners can review property portfolios and advise on

the implications of the new regime on existing and future property transactions.

Purcell McQuillan Tax Partners is a leading independent taxation consultancy

practice which was established in 2001.

Please contact Marian Lee if you would like to

discuss the implications of the new regime.

Marian’s contact details are as follows:

Telephone: 01 668 2700

Fax: 01 668 2750

Email: [email protected]

Address: 17 Clyde Road, Dublin 4.

Purcell McQuillan Tax Partners also provides comprehensive VAT advisory

services:

VAT implications of particular transactions, including requirement to register

for VAT, the applicable VAT rate(s) and the recoverability of VAT incurred

Impact of legislative changes and evolving case law on transactions and

businesses

Review of client businesses to identify VAT opportunities and potential

areas of exposure

We have considerable experience in assisting businesses prior to and

during VAT audits and in subsequent negotiations with the Revenue

New VAT on Property Regime

49www.lawsociety.ie

LAW SOCIETY GAZETTE JAN/FEB 2007PEOPLE AND PLACES

The annual ball of the MayoSolicitors’ Bar Association

took place in the magnificentsurroundings of the recentlyrefurbished Mount FalconCountry House Hotel, Ballina,on 8 December.

The association, now in its102nd year, had a full house oflegal diners, dancers and guestspresent, which is now regardedas one of the main annual socialevents for the legal profession inthe West of Ireland.

The guest of honour wasPresident of the High Court MrJustice Richard Johnson,accompanied by his wife Nuala.President of the Law SocietyJames MacGuill was also present.

By tradition, no speeches

were made, save a few words ofwelcome from the president ofthe association, Pat O’Connor ofSwinford. An enjoyable andmemorable night, even if a littlepast the usual bedtime for some,was the unanimous verdict.

Birds of a feather flock together at Mount Falcon ball!

(Back, l to r): John Guerin (chairman, Belfast Solicitors’ Association),Donal T Eakin (president, Law Society of Northern Ireland), Judge

Geoffrey Browne, James MacGuill (president, Law Society of Ireland),Mrs Gillian O’Connor, and Michael Quinlan (president, DSBA). (Front, l to

r): Mr Justice Richard Johnson, Judge Mary C Devins, Pat O’Connor(president, Mayo Solicitors’ Bar Association) and Mrs Pat Eakin

(Back, l to r): Marc Loftus, Caroline Barry, Tony O’Connor SC, SamanthaGeraghty, Edel McCool, Judge Bernard Brennan and John O’Connor.(Front, l to r): Patsy Murphy, Minister of State Dr Jimmy Devins, Pat

O’Connor (president, MSBA), and Judge John Garavan President of the MSBA Pat O’Connor with his brothers John O’Connor

(Law Society Council member) and Tony O’Connor SC

(Back, l to r): Michael Quinlan (president, DSBA), Mr Justice RichardJohnson (president of the High Court), Pat O’Connor (president, MSBA),

Paul O’Connor (dean, Faculty of Law, UCD), Dermot Hewson (vice-president, MSBA) and John O’Connor (past president, DSBA).(Front, l to r): Nollaig Browne, Paddy O’Connor, Nuala Johnson and

Gillian O’Connor

At the launch of two new law degrees at NUI Maynooth were (l to r): Dr Robert Galavan (NUI Maynooth), Attorney General Paul Gallagher SC,Professor John Hughes (president, NUI Maynooth) and Dr Neil Maddox

(NUI Maynooth)

Get swinging for Friends in IrelandKildare’s business community and glamorous personalities turned out inforce recently at the Newbridge Silver Restaurant to launch the Curragh

Golf Classic, which takes place next May, in support of Friends in Ireland.The charity has built and established orphan-housing/feeding centres as

well as day and health-care centres in South Africa. (L to r): JacintaO’Brien, Marian Finucane and Geraldine Molloy of the Law Society

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AXWELLS

Be one of the 1,500 solicitors, staff and friends to help reach our 10 year target of €2 million for Goal’s

Orphanages in Calcutta and the Peter McVerry Trust’s projects for homeless boys in Dublin.

IT’S NEVER TOO EARLYHere is the first four weeks’ brisk walk/jog programme to

enjoying the Calcutta Run (target 80 min)

WEEK 1, 11 FEBRUARY

1. Walk 30 min

2. Walk 30 min, jog 3-5 min


WEEK 2, 18 FEBRUARY

1. Walk 20 min, jog 5-7 min, walk 10 min


3. Walk 25 min, jog 7 min, walk 10 min

WEEK 3, 25 FEBRUARY

1. Jog 5 min, walk 25 min, jog 5 min

2. Jog 5 min, walk 25 min, jog 7 min


WEEK 4, 3 MARCH


2. Jog 7-10 min, walk 30 min, jog 5-7 min

3. Jog 7-10 min, walk 30 min, jog 5-7 min

Always make sure you are warmed up before you jog!

CALCUTTA RUN 2008JOIN IN OUR 10 YEAR ANNIVERSARY

Saturday 17th MayFun run/walk at Blackhall Place

OUR TARGET IS €2 MILLION. YOUR TARGET IS €150. GET INVOLVED, GET HEALTHY, GET YOUR FAMILY AND FRIENDS INVOLVED.

For a sponsorship card, see our website www.calcuttarun.com or phone 01 672 4846

51www.lawsociety.ie

LAW SOCIETY GAZETTE JAN/FEB 2007OBITUARY

The death of Eugene Careyon 5 December 2007 has

deprived the Irish legalcommunity of one of its best-known and most colourfulcharacters. A native of Mallow,Co Cork, and a past pupil of StColman’s College, Fermoy, hewas apprenticed to the firm ofDavid J O’Meara & Sons,Mallow, and qualified as asolicitor in 1977. On qualifying,he worked with Wolfe Collins& O’Keeffe, Solicitors, inSkibbereen and Bantry. Hereturned to his native Mallowin 1982, where he joined thefirm of Richard Moylan &Company. He set up his own practice in 1995 and specialised inlitigation, especially road traffic cases. His drive and ingenuityfrequently won him ‘hopeless’ road traffic cases in the DistrictCourt. He loved the cut and thrust of District Court practiceand such practice encompassed most of the 26 counties.

He had a deep love of sport, in particular golf, the GAA andhis beloved Manchester City. He held the position of runaí ofMallow GAA Club at the time of his death. He was a keen

sportsman and played hurlingand rugby, with some success inhis younger days.

He was a man of boundlessenergy, charm anddetermination. He was awonderful raconteur andstoryteller, and many of hiscolleagues will remember withfondness his fund ofexaggerated legal tales.

He will be deeply missed bythe many clients he loyallyserved over many years and byhis loyal staff.

Eugene was diagnosed withcancer in January 2007. He didnot let this interfere with his

work or enjoyment of life. He continued to work in his practiceuntil his passing on 5 December 2007. He bore his illnessbravely and with great humour.

Eugene will be sadly missed by his wife Betty, and by hischildren, Emer, Brian and Myles, his mother Maureen, hissiblings Maura and Milo, and by his legion of friends.

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Eugene Carey1955-2007

Legal Aid BoardTraining in Collaborative Law/Practice

The Legal Aid Board is delighted to announce that Pauline Tesler is once again coming to Ireland to carry out training in CollaborativePractice for lawyers engaged in family law. Already there are about 250 lawyers in Ireland who have received this training and whoare resolving cases collaboratively. Pauline will give a two day basic training course aimed at those who have not received training inthe process before. Details of the course are as follows:

TWO DAY BASIC TRAINING COURSE: Dates: 28 and 29 April 2008 Venue: Radisson SAS Royal Hotel, Golden Lane, Dublin 8

Time: 9.15am to 5.15pm Course fee: €300

The fee for the course is significantly discounted from the actual cost and will include lunch and light refreshments. The discount ispart of the Legal Aid Board’s commitment to the collaborative process as a means of resolving family disputes. An application formis available on the Board’s website (www.legalaidboard.ie) or by contacting Killian McCarthy at 01 6441905 or [email protected]. Completed applications should be forwarded to Killian at Training Unit, Legal Aid Board, 47 Upper Mount Street,Dublin 2, DX 139, with a cheque payable to “Legal Aid Board”. Numbers are likely to be limited and places on the course will beallocated on a first come, first served basis.

For those of you wondering what Collaborative Practice is about - it is a dispute resolution model that involves a commitment on thepart of clients and solicitors to: (i) negotiate a settlement that is fair, (ii) round table meetings involving both the solicitors and theclients, and (iii) a commitment on the part of the solicitors that they will not go to Court on behalf of their clients (other than to rubber stamp a settlement). An information leaflet on the process is available on the Board’s website.

PENSIONS – DUBLINThe successful candidate will be advising on a broadrange of public sector and international and domesticcompanies on pension schemes and employee shareplans. Applicants should have preferably gained experi-ence in a large or medium size practice. €€70-80K

BANKING – DUBLINLeading commercial law firms and financial institutionsare currently looking for banking solicitors of variousexperiences and skills. Previous experience working in-house in a bank or in a reputable private practice need-ed. €€Neg

PROBATE – DUBLIN A well known commercial law firm is now looking torecruit a solicitor with good experience and a genuineinterest in Probate. Successful person will ideally havecompeted the STEP Diploma or Diploma in Estates andTrusts. €€75K+

COMMERCIAL CONVEYANCING – DUBLINSenior Commercial Conveyancing solicitor with relevantyears experience in commercial conveyancing needed.The successful candidate will have experience in largedeal commercial transactions advising investors, devel-opers and financial institutions. €€80K+

FULL-TIME/PART-TIME PSL – DUBLINOur client is one of Ireland's leading law firms and theycurrently have openings for Professional SupportLawyer. The role will ideally suit a qualified solicitor with experience in banking/corporate/commercial con-veyancing who is interested in moving into a challenginglegal position with a better work/life balance. €€Neg

CORPORATE – DUBLINTop 10 law firm requires a corporate lawyer. This jobhas a varied workload of M&A, VC, securities and pri-vate equity. Good skills in drafting and negotiating com-mercial documents required. This firm offers greatopportunities for career development. €€70-100K

IP – DUBLINNiche commercial practice outside the Top 5 is lookingfor an IT/Intellectual Property specialist to work closelywith its corporate team in developing further its IT/TPfunction. It works with biotech, software and manufac-turing companies. €€60K+

TAX – DUBLINTop 5 law firm seek an AITI qualified solicitor with practi-cal experience in corporate taxation aspects of inwardinvestment projects, M&A and real estate investments.€€Neg

LITIGATOR – DUBLINThe successful candidate will join a leading UK LawFirm in its recently opened Dublin office. The successfulcandidate will need to be able to work under minimalsupervision in a small team. H/she will be working fornumerous major insurance companies. €€65K+

IN-HOUSE – TELECOMS – DUBLINLeading international telecoms company urgentlyrequires a commercial lawyer to join its in-house legalteam based in its Dublin HQ. Providing legal adviseacross all commercial divisions of the company including IT, Regulatory and Contract Negotiation. €€80-100K

IN-HOUSE – FUNDS – DUBLINSecurities division of international bank is looking torecruit an investment funds lawyer who has experienceof advising on legal aspects of corporate, project andfunds matters. €€70-80K

IN-HOUSE – PHARMACEUTICAL – DUBLINInternational pharmaceutical company requires a com-mercial lawyer with experience in commercial contractnegotiation and a good understanding of patent/intellectual property. €€80-100K

Contact: John Cronin, LL.B, Solicitor, PRC Recruitment on 01-6139510 or [email protected]

RECRUITMENT

53www.lawsociety.ie

LAW SOCIETY GAZETTE JAN/FEB 2007STUDENT PAGE

student spotlight

Viewing the architecture of Northern politicsH istory is made more than it

is told, and what is chosento be told is chosen by thevictors, writes Fergal Mawe. Butas the Law Society motto says,veritas vincet (truth conquers).So, will the actions of theBlackhall students who travelledto Belfast on 11 January 2008be remembered in the future?

A group of over 70 studentsfrom Cork and Dublin venturedto Belfast for what was expectedto be an entertaining weekendaway. It turned into a cross-border peace-building tourinvolving Cork and Dublin lawstudents, members of the PSNI,UUP, SDLP and an ex-IRAprisoner group.

Gaelic football proved to bethe dough in this peacedividend’s cake. A high-spiritedgame against the PSNI ended ina draw, in the spirit of diplomacy.Present at the match and dinnerafterwards were John McAllisterand Basil McCrea, MLAs for theUlster Unionist Party.

Stormont tourSaturday saw a tour of thehistoric Stormont complex,after which we met SDLP MLAAlban McGuinness. Alban read

for the Northern Ireland Bar atQueen’s University. He wassubsequently called to theNorthern Bar in 1976 and theBar of Ireland in 1984. Duringhis uplifting talk, hecommented on how theprogress towards peace was likeRome – neither being built in aday – and he called for those

who had campaigned for it forover 30 years never to beforgotten.

After Stormont, we headedfor the Falls Road, where wemet with an ex-IRA prisonergroup. We were given ahistorical walking tour of thearea – being told from theoutset that it would be an

unapologetic view of theconflict from the Republicanperspective. Concluding thetour at the Bobby Sandsmemorial, we ventured intoBelfast’s city centre.

No mere masons?This trip showed students areality that exists on ourdoorstep. In post-Celtic TigerIreland, it can be easy to forgetwhat happened prior to theGood Friday Agreement. It’s alsoeasy to overlook how peoplecontinue to cope with the ever-present divisions and tensions.Sir Walter Scott once said: “Alawyer without history orliterature is a mechanic, a mereworking mason; if he possessessome knowledge of these, hemay venture to call himself anarchitect.” In this light, wemust all begin to discover thehistory and truth that arevisible, if we will only stop totake a look.

Thanks to David Galvin andall who attended. G

One of Belfast’s famous murals, on the Falls Road

A word from our sponsors...Shaking hands before the match

55www.lawsociety.ie

LAW SOCIETY GAZETTE JAN/FEB 2007BOOK REVIEW

Principles of Irish Property lawFiona de Londras. Clarus Press (2007), Griffith Campus, South Circular Road, Dublin 8. ISBN: 978-1-905536-09-2. Price: €95.

This book has much tocommend it. Written to

appeal to the student reader, itis sufficiently clear,comprehensive and wellreferenced to also benefit thepractitioner. It is, furthermore,right up to date, featuring thefirst coverage in a full-lengthwork of the Residential TenanciesAct 2004, the Registration ofDeeds and Title Act 2006 and theLand and Conveyancing LawReform Bill 2006.

De Londras steers a carefulpath, in the context of the 2006bill, between the law as it is andthe law as it is likely to be.Inevitably, this obliges somecurtailment of conventionalcoverage – notably the commonlaw remainder rules and rulesagainst remoteness, althoughthe rule against perpetuities iswell dealt with.

The author is obviously acapable teacher and oftendisplays a welcome tendency toexplain a technical propositionfully and then summarise itssalient features. Her treatmentof fee simple subject to acondition is a good instance ofthis. She also makes regular andeffective use of examples, notleast in the barring of the entail,

subsequent gifts, overreaching,indemnity covenants, legalseverance of a joint tenancy, andhotchpot.

A further strength is the clearexposition of important recentcase-law developments: animuspossidendi in adverse possession,the duties of due diligence of areceiver over mortgagedproperty, and ongoingrefinements in the licence/leasedistinction controversy.

In some places, however,treatment is sketchy. Is it rightto equate actual notice withactual knowledge? What aboutsections 12 and 13 of Deasy’sAct? Worth more than afootnote, surely? A little moreon intestacy would have beenwelcome. But there arecompensations: a useful analysisof the problems emerging inrecent case law about the rightsof a judgment mortgageeregarding co-owned registeredland; the use of section 7 of theFamily Home Protection Act 1976to vitiate the right of amortgagee to possession; hercaveat about the enforcement ofpositive covenants by andagainst successors of registeredland; and the underappreciatedperils of section 121 of the

Succession Act 1965.Like any writer, Fiona de

Londras has her biases. Thesefocus on the role of the familyoutside marriage and the landrights of those in same-sexrelationships. A reader alien tothese enthusiasms must makeallowances. Even so, do wereally need the exact samequotation twice, twinned withcomparable commentary eachtime, from the European Court of Human Rightsdecision in Karner v Austria?Admittedly, de Londras in herintroduction extols the virtue oftreating human rights law aspervasive across traditionally‘stand-alone’ topics. She

succeeds, but at some cost toher own cherished principle of‘proportionality’.

Certain stylistic glitches jar.Non-academic phrases like‘stymie’, ‘hassle-free’, ‘roll out’and ‘tweaked’ sit uncomfortablyalongside more straitenedscholarly usages such as‘reneger’ (for the act ofreneging), ‘percentile’ and ‘thetrespass paradigm’ (oh, please!).There is also the consistentrendering of ‘mortis’ in donatiomortis causa as ‘mortus’ andseveral typos through which oneploughs with care. A footnoteabout detainees in GuantánamoBay in an effective section onrights of residence seems tohave strayed from another textaltogether.

Matters perhaps to beconsidered for her secondedition, which the author is wellpoised to write once the Landand Conveyancing Law ReformBill 2006 has been enacted.Meanwhile, land lawyers andthose who aspire could usefullyacquire this commendable firstedition.

Albert Power is author ofIntangible Property Rights inIreland.

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LAW SOCIETY GAZETTE JAN/FEB 2008


council report

Law Society Council meeting, 7 December 2007Council members represent-ing the Law Society ofNorthern IrelandThe Council approved theappointment of James Cooper,Joe Donnelly, Rory McShaneand John Pinkerton as membersof the Council for 2007/2008,representing the Law Society ofNorthern Ireland.

Appointment to the Judicial AppointmentsAdvisory BoardThe Council approved theappointment of the president,James MacGuill, as the Society’snominee on the JudicialAppointments Advisory Boardfor a three-year term beginningon 15 January 2008. TheCouncil expressed its apprecia-tion to the outgoing nominee,Laurence K Shields, who hadserved the Society and the pro-fession in an exemplary mannerin this capacity for many years.

Civil Law (MiscellaneousProvisions) Bill 2006The director general reportedthat the government, at the ini-tiative of the Minister forJustice, Equality and LawReform, had decided to dividewhat was currently the CivilLaw (Miscellaneous Provisions)Bill 2006 into three separatebills. The first bill would dealwith the Irish language and

would abolish the existing pre-qualification Irish examinationsand replace them with a com-pulsory course on the PPCIand an optional course on thePPCII.

The second bill wouldinvolve the removal of part IIof the Civil Law (MiscellaneousProvisions) Bill into a separatelegal services bill, to be pub-lished in early 2008. The thirdbill, containing the remainderof the Civil Law (MiscellaneousProvisions) Bill, would proceedthrough committee stage dur-ing the following week.

Report on meeting with theIrish Banking Federation John D Shaw briefed theCouncil on a meeting betweenthe Society and the IrishBanking Federation. He saidthat it had been a very cordialand cooperative meeting.Among the proposals theSociety had put to the IBF wasthat the lending institutionsmight establish a register ofloans. The proposal was that,in cases where the lendersactually advanced funds on thesecurity of a property, theyshould keep an electronic reg-ister indicating that a particu-lar sum was advanced on thesecurity of that particularproperty or address.

This would be similar to the

system the lenders alreadyoperated in relation to financeand leasing loans for motorcars. As this precedent alreadyexisted for such a register, theSociety had asked the IBF if itcould be adapted for residentialmortgage lending.

The IBF representatives hadagreed to consider the propos-al and respond. The IBF, inturn, had proposed certainchanges to the agreed terms ofthe standard solicitor’s letter ofundertaking. The Society wasconsidering these and wouldrespond to the IBF during thecourse of the following week.

Meeting of presidents, secretaries and PROs of barassociationsThe president noted that theannual meeting of presidents,secretaries and PROs of thelocal bar associations would beheld on 10 December. While ithad been branded in the mediaas a ‘crisis’ meeting, this wasnot the case, and it would dealwith the usual full range of top-ics, in addition to which eachbar association had been invit-ed to suggest topics for theagenda.

Practising cert fee 2008Gerard Doherty reported thatthe Finance Committee hadfixed the practising certificate

fee for 2008 at €2,036, whichrepresented an increase of €40,or 2% on the fee payable in2007.

GazetteStuart Gilhooly reported thatthe Gazette had been awardedsecond prize in the annualPeriodical Publishers’ Assoc-iation of Ireland Awards, in thecategory of ‘business-to-business specialist magazine’.This was the second year in arow that the Gazette hadachieved this prestigious result.The Council congratulatededitor Mark McDermott andthe Gazette team for theirexcellent work during thecourse of the year.

Task force on practice man-agement Philip Joyce reported that thetask force had been establishedto examine the changing natureof practice and its effect on therecoverability of costs. One ofthe functions of the task forcewas to ensure that solicitorsunderstood their cost base andobtained reasonable remunera-tion for the services they pro-vided. The task force wouldseek to obtain comparableinformation from other juris-dictions and would also seekviews from the professionthrough the e-zine. G

NORTH CORK SOLICITORS PRACTICE FOR SALE THRIVING GENERAL PRACTICE

Contact David Rowe, Managing Director, Outsource,

phone 01-678 8490 or email [email protected].

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57www.lawsociety.ie

practice notes

Generally, practitioners treata disposal of an interest in

property as not chargeable toVAT if the property has not beendeveloped after 31 October1972. However, there is anexception to this rule, and VAT ischargeable where the disposalis related to development of theproperty.

Section 4(5) of the VAT Act1972, as amended, states:“Where a person disposes of aninterest in immovable goods toanother person and in connec-tion with that disposal a taxableperson enters into an agree-ment with that other person orperson connected with thatother person to carry out adevelopment in relation to thoseimmovable goods, then:a) The person who disposes of

the interest in the saidimmovable goods shall, inrelation to that disposal, bedeemed to be a taxable per-son,

b) The disposal of the interestin the said immovable goodsshall be deemed to be a sup-

ply of those goods made inthe course or furtherance ofbusiness, and

c) The disposal of the interestin the said immovable goodsshall, notwithstanding sub-section (1), be deemed to bea disposal of an interest inimmovable goods to whichthis section applies.”

Essentially, one can read this assaying that where landowner Adisposes of undeveloped land topurchaser B and, in connectionwith that disposal, B enters anagreement with a taxable per-son, say a builder, to developthat land, then the disposal by Ato B is chargeable to VAT,notwithstanding that A had notdeveloped the land and that itmay well be undeveloped at timeof disposal.

By way of example, this cap-tures site disposals by alandowner where the purchaserenters a contract with a builderto build a house on the site andthe builder is on the site underlicence from the landowner.

Revenue’s Notes forGuidance states: “Subsection(5) provides that where a site issold in connection with anagreement to develop that sitethen the sale of the site is tax-able. The purpose of this provi-sion is to prevent artificial sepa-rate VAT treatment of the sale ofa site when it is in fact connect-ed to a development of that site.The sale of an undeveloped sitewhich is not directly linked to anagreement to develop the site isnot covered by this section andis not taxable.”

For VAT purposes, a subsaleis treated as, firstly, a supply ofthe property from the vendor tothe purchaser and, secondly, asupply of the property from thepurchaser to the subpurchaser.Obviously, where the property inquestion is developed, and inthe VAT net, the position is clear-cut. However, where the proper-ty is undeveloped, the subsalemust be considered in the con-text of section 4(5). If it is thecase that the purchaser devel-ops the property in connection

with his acquisition from thevendor, then the first supplywould fall within the provision.Similarly, if it is the case that thesubpurchaser develops theproperty in connection with hisacquisition from the purchaser,then the second supply wouldfall within the provision.However, what is not free fromdoubt is the scenario where thesubpurchaser develops theproperty in connection with hisacquisition of the property, andwhether this could bring the firstsupply within the provision.While there is a case to bemade that the first supply is nota VATable supply in this latterscenario, to avoid risk, the ven-dor may wish to seek confirma-tion from the Revenue that sec-tion 4(5) does not apply.

Where a practitioner is advis-ing on the sale of undevelopedland, it would be prudent toascertain the relevant surround-ing transactions and, if neces-sary, confirm with the Revenuethat section 4(5) does not apply.

Taxation Committee

P ractitioners are reminded that residentialproperty tax clearance certificates are no

longer required in sales of residential property.Section 118 of the Finance Act 2007 effec-tively abolished the clearance certificatescheme for sales completed on or after 1February 2007. This applies both to contractsdated on or after 1 February 2007 or contractsdated prior to 1 February 2007 where the saleis to be completed on or after 1 February2007. The committee is currently reviewingthe standard Requisitions on Title and requisi-tion 16.11 will be revised accordingly.

Conveyancing Committee

P ractitioners will be aware that theRevenue has published an online

guide to the above act, which is availableon the Revenue website, www.revenue.ie.It should be noted that the stamp dutyexemption for all first-time purchasers of anew house/apartment occupied as thepurchaser’s only or principal place of resi-dence is subject to compliance with cer-tain conditions. These conditions are notimmediately apparent on the first page ofthe online guide, and it is necessary toclick on the links in order to establish whatthese conditions are.

Revenue has confirmed that there is acontinuing requirement for a floor area com-pliance certificate in the case of new hous-es or apartments having a floor area of 125square metres or less.

Practitioners should note that a floorarea compliance certificate includes arequirement to meet certain building stan-dards and will not issue automatically onproof of floor area only.

For larger houses or apartments, a cer-tificate of floor area by a qualified architect,engineer or surveyor is also still required.

Conveyancing Committee

VALUE ADDED TAX – UNDEVELOPED PROPERTY CHARGEABLE TO VAT

REVENUE GUIDE TO THE FINANCE (NO 2) ACT2007 – NEW HOUSES OR APARTMENTS

RPT CLEARANCE CERTIFICATES

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legislation update

17 November ’07 – 16 January ’08Details of all bills, acts andstatutory instruments since1997 are on the library cata-logue – www.lawsociety.ie(members’ and students’areas) – with updated infor-mation on the current stagea bill has reached and thecommencement date(s) ofeach act.

ACTS PASSEDAppropriation Act 2007Number: 41/2007Contents note: Appropriatesto the proper supply servicesand purposes sums granted bythe Central Fund (PermanentProvisions) Act 1965; makesprovision in relation todeferred surrender to the cen-tral fund of certain undis-charged appropriations by ref-erence to the capital supplyservices and purposes, as pro-vided for by section 91 of theFinance Act 2004, and makesprovision in relation to finan-cial resolutions passed by DáilÉireann on 5/12/2007. Date enacted: 21/12/2007Commencement date: 21/12/2007

Copyright and RelatedRights (Amendment) Act2007 Number: 39/2007Contents: Amends the Copy-right and Related Rights Act2000 to provide that theMinister for the Environment,Heritage and Local Govern-ment may make regulationsestablishing a publicly fundedpublic lending remunerationscheme to remunerate authorsfor the lending of their copy-right works by public librariesin accordance with Directive92/100/EC, and provides forrelated matters.

Date enacted: 4/12/2007Commencement date: 4/12/2007

Health (MiscellaneousProvisions) Act 2007Number: 42/2007Contents note: Gives statu-tory effect to establishmentorders made under section 3 of the Health (CorporateBodies) Act 1961 as if they wereacts of the Oireachtas. TheHealth (Corporate Bodies) Act1961 provided that theMinister for Health andChildren could establish bod-ies by order to perform func-tions in relation to the provi-sion of a health service. Thereare currently 19 such bodies inexistence (listed in theexplanatory memo to the bill).Amends the establishmentorders of eight of these bodies,as set out in schedule 1 of theact. Amends the MedicalPractitioners Act 2007 and theHealth Act 2004.Date enacted: 21/12/2007Commencement date: 21/12/2007

Local Government (RoadsFunctions) Act 2007Number: 38/2007Contents note: Provides forthe transfer of functions inrelation to non-national roadsand the national vehicle driverfile (NVDF) from the Ministerfor the Environment, Heritageand Local Government to theMinister for Transport. Makesnecessary amendments to theLocal Government Act 1998, theRoads Act 1920 and the Trans-port (Railway Infrastructure) Act2001.Date enacted: 26/11/2007Commencement date: 1/1/2008 (per SI 793/2007)

Social Welfare Act 2007Number: 40/2007Contents note: Amends andextends the Social WelfareConsolidation Act 2005, asamended, to provide forincreases in the rates of socialinsurance and social assistancepayments and improvements inthe family income supplementand widowed parent grant.Provides for an increase in theweekly earnings limit belowwhich PRSI is not payable andan increase in the income ceil-ing above which PRSI contri-butions are not payable byemployed or optional contrib-utors. Amends the HealthContributions Act 1979 to pro-vide for an increase in theweekly and annual exemptionthresholds for the health con-tribution levy.Date enacted: 20/12/2007Commencement date: Var-ious – see act

SELECTED STATUTORYINSTRUMENTSBuilding Regulations(Amendment) Regulations2007Number: SI 854/2007Contents note: Amend theBuilding Regulations 1997 (SI497/1997) in relation to newdwellings by the substitution ofa new part L (conservation offuel and energy) in the secondschedule to the 1997 regula-tions in order to set higherthermal performance standardswith the aim of achieving atleast a 40% reduction in ener-gy use and related CO2 emis-sions.Commencement date: 1/7/2008, subject to transitionalarrangements in certain cir-cumstances; regulations L2(e)and L3 shall apply to the instal-

lation of oil and gas fired boil-ers after 31/3/2008 (per regula-tion 3 of the regulations)

Criminal Justice Act 2006(Commencement) (No 4)Order 2007Number: SI 848/2007Contents note: Appoints1/1/2008 as the commence-ment date for s38 of the act.Section 38 amends section 9 ofthe Firearms Act 1925 in rela-tion to the registration of aperson in the register offirearms dealers.

Electricity Regulation(Amendment) (SingleElectricity Market) Act 2007(Commencement ofRemaining Provisions) Order 2007Number: SI 731/2007Contents note: Appoints1/11/2007 as the commence-ment date for ss4, 5, 11, 14, 15,17, 18 and 19 of, and theschedule to, the act. Appoints1/11/2007 as the commence-ment date for ss9 and 10 of theact, insofar as these sections arenot already in operation.

European Communities(Misleading and ComparativeMarketing Communications)Regulations 2007Number: SI 774/2007Contents note: ImplementDirective 2006/114/EC on mis-leading and comparative adver-tising. Revoke the EuropeanCommunities (Misleading Advert-ising) Regulations 1988 (SI134/1988).Commencement date: 20/11/2007

European Communities(Undertakings for CollectiveInvestment in Transferable

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Securities) (Amendment)Regulations 2007Number: SI 832/2007Contents note: Amend theEuropean Communities (Under-takings for Collective Investmentin Transferable Securities)Regulations 2003 (SI 211/2003),as amended by the EuropeanCommunities (Undertakings for Collective Investment in Transferable Securities)(Amendment) Regulations 2003(SI 212/2003), to give effect toDirective 2007/16/EC imple-menting Directive 85/611(UCITS Directive) as regardsthe clarification of certain defi-nitions. These definitionsrelate to the eligible assets inwhich UCITS may invest.Commencement date: 19/12/2007

Finance Act 2007(Commencement of Section104(1)) Order 2007Number: SI 783/2007Contents note: Appoints3/12/2007 as the commence-ment date for s104(1) of theact. Section 104(1) inserts anew s81C into the Stamp DutiesConsolidation Act 1999. Thisallows a farmer to claim relieffrom stamp duty where thefarmer sells farmland and pur-chases farmland in order toconsolidate that farmer’s hold-ing and where both the sale andpurchase of farmland occurwithin 18 months of eachother. The relief applies toinstruments executed on orafter 1/7/2007 and on or before30/6/2009.

Health Act 2007(Commencement) (No 3)Order 2007Number: SI 735/2007Contents note: Appoints5/11/2007 as the commence-ment date for: (a) s105, insofaras it relates to the amendmentsreferred to in part 5 of schedule2, and (b) part 5 of schedule 2to the act. These provisionsamend the Civil Registration Act2004, coinciding with the com-

mencement of part 6 (in rela-tion to marriage) of that act on5/11/2007 (per SI 736/2007).

Health (In-Patient Charges)(Amendment) Regulations2007Number: SI 824/2007Contents note: Amend theHealth (In-Patient Charges)Regulations 1987 and 2005 byraising the daily charge for in-patient services from €60 to€65 and the maximum amountpayable in any period of 12consecutive months from €600to €660. Exemptions, includ-ing medical card holders andhardship provision, continue toapply.Commencement date: 1/1/2008

Health (Out-Patient Charges)(Amendment) Regulations2007 Number: SI 825/2007Contents note: Amend the Health (Out-PatientCharges) Regulations 1994 and2005 by raising from €60 to €66 the charge for atten-dance at accident and emergency or casualty departments, where a medicalpractitioner has not referredthe person concerned. The charge shall not apply where such attend-ance results in hospital admis-sion. Exemptions, includingmedical card holders andhardship provision, continueto apply.Commencement date: 1/1/2008

Health Services Regulations2007Number: SI 837/2007Contents note: Provide forthe refund of the amount bywhich expenditure on pre-scribed medicines or medicaland surgical appliances exceeds€90 in any calendar month.Replace article 6 of the HealthServices Regulations 1972 (SI88/1972) and revoke the HealthServices Regulations 2005 (SI

832/2004).Commencement date: 1/1/2008

Markets in FinancialInstruments andMiscellaneous ProvisionsAct 2007 (Commencement)(No 2) Order 2007 Number: SI 782/2007Contents note: Appoints1/2/2008 as the commence-ment date for s19 of the act.Section 19 amends part V ofthe Central Bank Act 1997 toprovide for the authorisationand regulation of non-deposit-taking lenders by the IrishFinancial Services RegulatoryAuthority.

Patents (Amendment) Act2006 (Certain Provisions)(Commencement) Order2007Number: SI 761/2007Contents note: Appoints13/12/2007 as the commence-ment date for the followingsections (arising from the revision of the European Patent Convention) of the act:ss2(b), (c), (d) and (e); 3, 4, 5,11, 13, 14, 17; 29(a), (b), (c)(i)and (d); 31(a), (b) and (d); 33,35.

Pensions (Amendment) Act2002 (Section 43)(Commencement) Order2007Number: SI 843/2007Contents note: Appoints31/12/2007 as the commence-ment date for s43 of the act.Section 43 inserts new ss59D,59E and 59F into the PensionsAct 1990.

Social Welfare and PensionsAct 2007 (Section 14)(Commencement) Order2007Number: SI 749/2007Contents note: Appoints1/11/2007 as the commence-ment date for s14 of the act.This provision relates to thestate pension qualified adultallowance.

Solicitors (ContinuingProfessional Development)Regulations 2007Number: SI 807/2007Contents note: Make provision for the requirednumber of hours of continuing professional development (CPD), in thespecified time cycles, beingundertaken by a solicitor as aprerequisite to being granteda practising certificate.Provide for the certifying ofthe hours of CPD undertakento the Law Society and pro-vide that a breach of the regu-lations may be found by theSolicitors Disciplinary Trib-unal to be misconduct.Revoke the Solicitors (Contin-uing Professional Development)Regulations 2003 (SI 37/2003),subject to exceptions in par-ticular circumstances.Commencement date: 1/1/2008

Waste Management(Packaging) Regulations2007Number: SI 798/2007Contents note: ImplementDirective 94/62/EC on pack-aging and packaging waste, asamended by Directive2004/12/EC. Replace theWaste Management (Packaging)Regulations 2003 (SI 61/2003)as amended.Commencement date: 15/12/2007 for articles 19 and 33(1); 31/3/2008 for all otherarticles (per article 3 of the reg-ulations)

Water Services Act 2007(Commencement) Order2007Number: SI 846/2007Contents note: Appoints31/12/2007 as the commence-ment date for certain provi-sions of the act, including therepeal of enactments set out inthe schedule to the order – seeSI for details.

Prepared by the Law Society Library

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Solicitors Disciplinary TribunalThese reports of the outcome of Solicitors Disciplinary Tribunal inquiries are published by the Law Society ofIreland as provided for in section 23 (as amended by section 17 of the Solicitors (Amendment) Act 2002) of theSolicitors (Amendment) Act 1994

In the matter of Patrick JGillespie, a solicitor carryingon practice under the styleand title of P Gillespie andCompany, Solicitors, of BuryStreet, Ballina, Co Mayo, andin the matter of the SolicitorsActs 1954-2002 [6919/DT79/06] Law Society of Ireland(applicant)Patrick J Gillespie(respondent solicitor)

On 18 October 2007, theSolicitors Disciplinary Tribunalfound the respondent solicitorguilty of misconduct in his prac-tice as a solicitor in that he: a) Failed to furnish the follow-

ing documentation relatingto the administration of theestate of a named person andrequested by the Society: i) The section 68 letter,ii) A copy of the bill of costs,iii) Copy statement of

account,iv) Copy receipt for payment

of capital acquisitions forand on behalf of a namedbeneficiary;

b) Failed to account for intereston monies held by him in thenamed estate, which monieswere due for payment to thenamed beneficiary pursuantto the provisions of SI 372 of2004 (Solicitors (Interest onClients’ Monies) Regulations2004);

c) Failed to respond to theSociety’s correspondenceduring the investigation ofthe complaint and, in partic-ular, the Society’s letters of 1September 2005, 19 October2005, 10 November 2005, 21

November 2005, 19 Decem-ber 2005, 19 January 2006, 1February 2006, 20 February2006, 27 February 2006, 28March 2006, 24 April 2006, 3May 2006, 24 May 2006, 8June 2006.

The tribunal ordered that therespondent solicitor:a) Do stand censured,b) Pay a sum of €2,000 to the

compensation fund,c) Pay the whole of the costs of

the Law Society of Ireland,including witnesses’ expens-es, as taxed by a taxing masterof the High Court in defaultof agreement.

In the matter of Ciaran RCallan, a solicitor previouslypractising as Callan &Company Solicitors, RiverBank House, Dodder ParkDrive, Dublin 14, and in thematter of the Solicitors Acts1954-2002 [4316/DT16/07] Law Society of Ireland(applicant)Ciaran R Callan(respondent solicitor)

On 22 November 2007, theSolicitors Disciplinary Tribunalfound the respondent solicitorguilty of misconduct in his prac-tice as a solicitor in that he failedto ensure that there was fur-nished to the Society an accoun-tant’s report for the year ended30 April 2006 within six monthsof that date, in breach of regula-tion 21(1) of the Solicitors’Accounts Regulations 2001 (SI421 of 2001), in a timely man-ner or at all.

The tribunal ordered that

the respondent solicitor:a) Do stand censured,b) Pay a sum of €2,500 to the


the Law Society of Ireland astaxed by a taxing master ofthe High Court, in default ofagreement.

In the matter of JohnFetherstonhaugh, a solicitorpractising as Fetherston-haugh Solicitors, PatrickStreet, Mountmellick, CoLaois, and in the matter ofthe Solicitors Acts 1954-2002[3270/DT07/07] Law Society of Ireland(applicant)John Fetherstonhaugh(respondent solicitor)

On 22 November 2007, theSolicitors Disciplinary Tribunalfound the respondent solicitorguilty of misconduct in his prac-tice as a solicitor in that he: a) Failed to ensure that there

was furnished to the Societyan accountant’s report for theyear ended 28 February 2006within six months of thatdate, in breach of regulation21(1) of the Solicitors’ AccountsRegulations 2001 (SI 421 of2001), in a timely manner orat all,

b) Through his conduct,showed disregard for hisstatutory obligations to com-ply with the Solicitors’Accounts Regulations andshowed disregard for theSociety’s statutory obligationto monitor compliance withthe Solicitors’ AccountsRegulations for the protection

of clients and the public.The tribunal ordered that

the respondent solicitor:a) Do stand censured,b) Pay a sum of €2,000 to the


the Law Society of Ireland astaxed by a taxing master ofthe High Court, in default ofagreement.

In the matter of PatrickMoran, a solicitor of 2Westland Square, Dublin 2,and in the matter of theSolicitors Acts 1954-2002[10159/DT97/06] Law Society of Ireland(applicant)Patrick Moran(respondent solicitor)

On 27 November 2007, theSolicitors Disciplinary Trib-unal found the respondentsolicitor guilty of misconductin his practice as a solicitor inthat he failed to ensure thatthere was furnished to theSociety an accountant’s reportfor the year ended 31December 2005 within sixmonths of that date, in breachof regulation 21(1) of theSolicitors’ Accounts Regulations2001 (SI 421 of 2001).

The tribunal ordered thatthe respondent solicitor:a) Do stand advised and

admonished,a) Pay a sum of €1,500 to the

compensation fund,a) Pay the whole of the costs of

the Law Society of Ireland astaxed by a taxing master ofthe High Court, in default ofagreement. G

SOLICITORS’

HELPLINE THE SERVICE IS COMPLETELY CONFIDENTIAL ANDTOTALLY INDEPENDENT OF THE LAW SOCIETY

01 284 8484

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News from Ireland’s online legal awareness serviceCompiled by Bart Daly for FirstLaw

firstlaw update

Judicial reviewWhether the degree of prejudicewas established – whether therewas prosecutorial delay – absenceof essential witness – whetherthere were other potential witness-es, evidence and records – whetherthere was sufficient proximity andgravity to discharge the onus ofproof – whether exceptional andunfair circumstances existed to putthe applicant on trial. The complaints in questionwere initiated on the basis ofallegations made by the samecomplainant. The applicantfaced a total of six charges ofindecent assault and grossindecency against the appli-cant. The first four chargeswere alleged to have takenplace at address A and theother two charges were expect-ed to have taken place ataddress B. The complainantalleged that, as a young person,he was abused by the applicanton a number of occasions.Issues arose over a potentialwitness, who the applicant saidlived with him at address A, butlater died. The applicantclaimed he would have been anessential witness, given the par-ticular prejudice that wouldhave arisen from the descrip-tion of the house that he sharedwith the deceased, includingthe applicant’s habits asdescribed by the complainant.

McMenamin J held thatjudicial review was to be grant-ed by way of prohibition inrelation to the charges ataddress A but not in relation toaddress B.O’B(C) (applicant) v Directorof Public Prosecutions (res-pondent), High Court,

McMenamin J, 30/3/2007,2005 1242 JR [FL14286]

Practice and procedureNegligence on behalf of the defence– whether expert evidence could beadduced at a later stage – Courtsof Justice Act 1924.The appellant was chargedwith a single offence of rape.The complainant did not makea complaint for two years. Thesecond trial convicted theappellant of the offence. Issuesarose as to whether the appel-lant could form the view thatcertain medical evidence thatwas available at the time of thetrial should have been put inissue by the defence at the timeof trial.

It was held that it is not nec-essary to assert negligent con-duct of the defence at the trialwhen the appellant was unsuc-cessful at trial. It is not open toan appellant to hold back on apoint of substance for tacticalreasons and then seek to deploythe point in a later appeal. Thecourt refused to admit theexpert evidence that wassought to be adduced by theapplicant.People (DPP) (respondent) vO’Regan (appellant), SupremeCourt, 30/7/2007, 43/07[FL14299]

Judicial review Fair procedures – audi alterampartem – certiorari – Redun-dancy Payments Acts 1967-2003 – whether the applicantreceived a fair hearing from therespondent.The applicant sought an orderof certiorari by way of judicialreview quashing two decisions

of the respondent regardingredundancy payment claimsbrought by two of the appli-cant’s former employees, whowere the notice parties to theseproceedings. The applicantclaimed that it did not receive afair hearing from the respon-dent, as the respondent deter-mined the issue of redundancypayments having regard to theprovisions of the Protection ofEmployees (Part-Time Work) Act2001, despite the fact that thisact was not referred to by anyof the parties in their writtensubmissions. Both partiesbefore the respondent centredtheir submissions on the inter-pretation of the RedundancyPayments Acts 1967-2003. Theparties initially agreed that thecase should proceed by way ofwritten legal submissions only,but later requested an oralhearing, which was denied.

Charleton J quashed thedecisions of the respondent,holding that the respondentfell into error in basing its deci-sion on a remedy created by anact to which none of the partieshad referred, and in respect ofwhich the respondent may notever have had jurisdiction todetermine, and in failing tohear evidence on a point ofdetermination as to objectivejustification (for treating part-time employees in a lessfavourable manner comparedto full-time employees) onwhich the parties would havebeen entitled to call evidence.Consequently, the decisions ofthe respondent regarding thepayment of redundancy pay-ments to the notice partiesought to be quashed. Galway-Mayo Institute ofTechnology (applicant) v

Employment Appeals Tribunal(respondent), High Court,Charleton J, 20/6/2007, 2005601 JR, 602 JR [FL14291]

DelayEnlargement of time for deliveryof statement of claim – ResidentialInstitutions Redress Board – nostep taken to progress plenarysummons as difficulty with service– inordinate and inexcusable delay– state of mind of the plaintiff.The plaintiff was seeking toextend time for enlargement ofthe delivery of the statement ofclaim. This was already refusedby the Master of the HighCourt. The proceedings con-cerned damages for personalinjury, physical abuse, sexualabuse, false imprisonment,inconvenience and expense suf-fered by the plaintiff as a resultof the actions of the seventhdefendant, who was a Catholicpriest. The plaintiff was resident at BA during the years 1971-1977. The plaintiffpursued a claim under the Residential InstitutionsRedress Board and received anaward for the period 1971 to1977, but the content of thestatement of claim related tothe time after 1977. The plain-tiff’s solicitor had difficulty inserving the proceedings on theseventh-named defendant. Noevidence of effort to locate theseventh-named defendant wasgiven, but the Rules of theSuperior Courts provide for themaking of an application forsubstituted service.

Mr Justice Peart enlargedthe time for the delivery of thestatement of claim, finding

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that, even if the plaintiff hadacted with reasonable dispatchon the conclusion of her claimthrough the Redress Board, thejustice of the case would lie infavour of allowing an enlarge-ment of time for delivery.Although the delay was inordi-nate, it was not inexcusable.L(L) (plaintiff) v FXIS, BA,Minister for Education andScience, Minister for Justice,Equality and Law Reform,CDA, TF, LC, Ireland and theAttorney General (defen-dants), High Court, Peart J,16/5/2007, 2001 9906P[FL14279]

Judicial reviewReaction of deceased’s brother incourtroom before empanelment ofthe jury – familiarity attemptswith a juror – whether a fair trialwould ensue – discharge of a jury– questioning jury as to the events– intimidation of a juror. There was inappropriate inter-action with the jury at or inconnection with the trial of theaccused. Issues arose when, atthe arraignment stage of theaccused’s trial, and on pleadingnot guilty to murder but guiltyto manslaughter, shouting fromthe public gallery was heard.Before the swearing of the jury,a garda identified a man whowas the brother of the victim,who said in the courtroom thathe reacted on seeing his sister’shusband, who strangled her.The judge asked the jury, after

empanelment, whether theincident would cause any diffi-culties. One of the jurorsreported that the deceased’sbrother made himself familiarwith him on two occasions.The judge drew attention tothis matter and excluded thedeceased’s brother and his wifefrom the court building andfrom the streets surroundingthe building during the courseof the trial.

The court held that thecumulative effect of the inci-dents involved would have ledto an unfair trial. The appealwas allowed and a retrialordered.Director of Public Prosecutions(applicant) v Mulder (respon-dent), Supreme Court,20/7/2007 [FL14306]

JurisdictionCriminal Assets Bureau –Brussels Regulations – civil orcriminal claim – public authority– corrupt enrichment – planningpermission – private individualinstituting proceedings – whethercourt had jurisdiction – whetherarticle 1 of the Brussels Regula-tion applicable – Proceeds ofCrime Act 1996.The plaintiff sought an orderpursuant to s16(B)(2) of theProceeds of Crime Act 1996directing the defendant to paymonies that had allegedly beencorruptly enriched. The defen-dant sought to set aside anorder for service on the

grounds that the proceedingsfell within the scope of theBrussels Regulation. The plain-tiff alleged that the proceed-ings were not a civil or com-mercial matter within themeaning thereof.

Feeney J held that the courthad jurisdiction to entertain theproceedings. The proceedingswere not civil or commercial.The CAB was a public bodybringing proceedings that a pri-vate individual could not bring. Criminal Assets Bureau(plaintiff/respondent) v L(JWP) (defendant/ applicant),High Court, Feeney J,24/5/2007, 2006 14 CAB[FL14298]

Property adjustment orderJudgment mortgage against theinterest of the first-named defen-dant – whether family law proceed-ings effected the interest of otherparties – legal priority where pro-ceedings commenced in respect of theland prior to the judgment mort-gage – Family Law Act 1995.The plaintiff had obtained judg-ment against the first-nameddefendant in the sum of€173,994.40 plus costs to theamount of €402.60. Judgmentwas registered in December2005 against the interest of thefirst-named defendant. The firstdefendant was joint owner ofthe fee simple interest in thelands and premises in question.

The defendants were marriedbut were now separated. Familylaw proceedings were institutedbetween the first and second-named defendants that orderedthat the respondent transfer tothe applicant his entire benefi-cial interest in the premises. Itwas intended by the parties thatthe order would not affect theinterest of the plaintiff in theinstant proceedings. Issues arosein relation to priority wherelegal proceedings had com-menced in respect of the landsprior to the judgment mortgageand whether it was entitled torank in priority. The propertyadjustment order was made infavour of the second-namedrespondent and was made byconsent in circumstances wherethe plaintiff was not given anopportunity to make represen-tations on whether an ordercould be made.

Dunne J held that the inter-ests of the second-named defen-dant ranked in priority to that ofthe plaintiff. The order soughtwas refused.Dovebid Netherlands BV(plaintiff) v William Phelan,trading as the Phelan Partner-ship, and Denise O’Byrne(defendants), High Court,Dunne J, 16/7/2007, 2006380 SP [FL14280]

This information is taken fromFirstLaw’s legal current awarenessservice, published every day on theinternet at www.firstlaw.ie.

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PROPERTY LAW

Budapest26–30 March 2008

DATES FOR YOUR DIARYThe Law Society of Ireland Annual

Conference 2008 will take place in Budapest, capital of Hungary. The conference package includes

return flights from Dublin or Cork,four nights’ accommodation at the

five-star Hilton Hotel, welcomereception and gala dinner.

Package price for bookings: €1,145 per person sharing.

For more information or to register, go towww.lawsociety.ie or phone Anna Keating

at Ovation, tel: 01 280 2641

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eurlegal

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

The Treaty of LisbonA t the December European

Council summit inLisbon, EU leaders signed thenew Reform Treaty, also knownas the Treaty of Lisbon. The newtreaty (together with a numberof protocols and declarations)will amend the existing EU andEC treaties rather than replacethem, and adopts some of thechanges envisaged by the nowdefunct constitutional treaty.

It is seen as necessary toamend the current treaty struc-ture in order to enable EUinstitutions to function effec-tively, as the EU has greatlyexpanded in recent years, bothin terms of the number of itsmember states and the policyareas within its remit.

This article provides a briefexplanation of the most signifi-cant changes envisaged by theReform Treaty and the back-ground to these changes.

Reframing the EUCurrently, there are two sepa-rate entities governed by theEC Treaty (the Treaty of Rome)and the Treaty on EuropeanUnion (the EU Treaty). Broadly,the EC Treaty sets out the rulesof the European Community,which is a supranational organisation in which memberstates have pooled sovereigntyin relation to certain issues.The EU Treaty sets out therules governing policy areas,such as the common foreignand security policy and policeand judicial cooperation incriminal matters, in relation towhich EU member states coop-erate but have not pooled sov-ereignty.

The distinction between theEuropean Union and theEuropean Community is to bedropped, and the Treaty of Lisbonenvisages that the EC willmerge with the EU so that infuture a single entity, theEuropean Union, will exist. Inaddition to amending the exist-ing treaties, the new treaty pro-vides that the EC Treaty will berenamed the Treaty on theFunctioning of the EuropeanUnion.

The European Union willhave legal personality that willallow it to conclude interna-tional agreements and joininternational organisations,where its member states unani-mously agree. The LisbonTreaty specifically foresees thatthe EU will sign the EuropeanConvention on Human Rights,which will allow the EuropeanCourt of Human Rights tocontrol the compliance of EUacts with the convention.

The treaty confirms that theEuropean Union is not autho-rised to act beyond the compe-tences conferred on it by mem-ber states and the policy areasover which the EU has compe-tence are specifically identifiedin the Lisbon Treaty.

European ParliamentThe role of the EuropeanParliament is enhanced by theapplication of the ‘co-decision’legislative procedure to 50 newareas, giving the parliamentequal status to the council inthese legislative procedures,where its role had previouslybeen limited to a consultativeone. Under co-decision, the

parliament and the counciljointly adopt legislation, andthis will now become the ordi-nary procedure for adoptinglegislation.

The treaty provides for aceiling on the number of MEPs(751), with a lower limit of sixand upper limit of 96 for anyone member state. Ireland willhave 12 MEPs.

European CouncilThe treaty formalises the Euro-pean Council as an EU institu-tion. The council (meetings ofEU heads of state and govern-ment) gives political direction tothe EU and is currently organ-ised on an informal basis.

A new permanent post ofPresident of the EuropeanCouncil has also been created(currently, the role rotatesbetween member states everysix months.) The president willbe elected by the member statesfor a term of two-and-a-halfyears (renewable once). Thefunctions of the president willinclude chairing meetings of thecouncil and representing theEU abroad on certain matters.

Nevertheless, the positioncomes with no executive powersand the current system of rotat-ing national presidencies willcontinue in an amended formfor the Council of the EU(sometimes also called theCouncil of Ministers), which willremain a separate institution.

European CommissionThe number of commissionerswill be reduced. From 2014, twothirds of member states maynominate a commissioner at any

one time, and this right will berotated among member states.The President of the EuropeanCommission will be ‘elected’ bya majority of MEPs following anomination by the EuropeanCouncil. (The EuropeanParliament’s role is currentlylimited to approving the nomi-nee of the European Council.)

Voting in the councilQualified majority voting(QMV) in the council will beextended to an additional 44areas – removing the require-ment of unanimity and the pos-sibility of national vetoes in theseareas (which mostly concern thefreedom, security and justiceissues discussed below). A newQMV system will come intooperation in 2014 that willrequire a double majority of (a)55% of member states (15 of thecurrent 27) and (b) memberstates representing 65% of theEU’s population in order toadopt a provision. This is lowerthan the current majority levelof approximately 74%. In prac-tice, member states rarely holdvotes on EU legislation, prefer-ring instead to proceed by meansof compromise and consensus.

National parliaments and citizens The treaty provides nationalparliaments a role in oversee-ing the work of the EU, whichincludes a right to raise con-cerns about proposals to thecommission. In order toimprove transparency, meet-ings of the Council ofMinisters will be open to thepublic.

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A citizens’ initiative proce-dure provides that a million cit-izens from different memberstates may petition the com-mission to bring forward a newlegislative proposal.

Ratchet clauseThe treaty provides for a sim-plified revision procedure fortreaty provisions relating tointernal policies and action ofthe EU. This will enable somechanges to the treaties to bemade in future by memberstates acting unanimously andwith the approval of all nation-al parliaments. However, thecompetences of the EU cannotbe increased by this procedureand substantive changes to thetreaties will require the con-vention of an IGC and theusual ratification process,which in Ireland’s case includesa referendum.

Enhanced cooperationWhere at least nine memberstates would like to take collec-tive action inside the unionframework, they will be able touse enhanced cooperation pro-

cedures. However, this will notbind non-participating mem-ber states.

Freedom, security and justiceUnder the Treaty of Lisbon, thispolicy area will change frombeing a matter for intergovern-mental cooperation to being amatter within the supranation-al competence of the EU. Infuture, the ordinary EU leg-islative procedure will applyand legislative acts and actionswill be subject to the scrutinyof the European Court ofJustice (ECJ).

The issues covered by thispolicy area include judicialcooperation in criminal mat-ters, the mutual recognition ofjudgments, the definition ofcriminal offences and sanc-tions, police cooperation, bor-der checks, and a commonimmigration policy and asylumsystem. The treaty states thatthis shall not affect memberstates’ responsibilities withregard to the maintenance oflaw and order and the safe-guarding of internal security.

The treaty also provides that

a member state may requestthat the ordinary legislativeprocedure is suspended if itconsiders that a draft directivewould affect fundamentalaspects of its criminal justicesystem.

Ireland has chosen to optout of the legislative proce-dures in this area, but it mayopt in on a case-by-case basis.Ireland will append a declara-tion to the treaty stating itsintention to opt in wheneverpossible. Ireland will review itsopt-out three years after thetreaty comes into force.

The treaty also foresees theestablishment of a Europeanpublic prosecutor’s office tocombat fraud against the EU.

External policyThe new post of HighRepresentative of the Unionfor Foreign Affairs andSecurity Policy will be created.The high representative willbe appointed by the EuropeanCouncil and will be aEuropean commissioner and avice-president of the commis-sion. He or she will also chair

the Council of Ministers ofForeign Affairs. The new posi-tion is a development on therole currently undertaken byJavier Solana, who representsthe Council of the EU but isnot in charge of the EuropeanCommission’s external policyportfolios.

The post is designed toincrease the coherencebetween the different strandsof EU policies that have anexternal element and hence thecombined impact of these poli-cies. The new treaty also con-tains a new chapter on externalaction by the EU and requiresmember states to take deci-sions unanimously under thischapter.

The treaty also provides fora European External ActionService to support the fullrange of the external policiesof the EU and its memberstates – as well as the externaldimension of internal policies– in a more effective andcoherent way. The EuropeanExternal Action Service willassist the high representativeand will work in cooperation

Watch those salutes there, lads: it might be misconstrued...

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with the diplomatic services ofthe member states.

These new arrangementsfor external relations willrespect the specific decision-making procedures in the areaof common foreign and secu-rity policy (see ‘defence’,below).

The Lisbon Treaty includes anew article on humanitarianaid operations and foresees thecreation of a EuropeanVoluntary Humanitarian AidCorps.

DefenceThe European security anddefence policy will be broughtmore clearly into the EUframework, but will remainsubject to special decision-making arrangements based onintergovernmental coopera-tion and falls outside the remit of EU legislative acts.The European Commission,European Parliament and ECJhave very limited roles in rela-tion to this policy area. Inaddition, the use of article 308of the current EC Treaty (the‘catch-all’ article) is excluded.

The new treaty states thatnational security remains thesole responsibility of eachmember state. The openingarticle on the common securityand defence policy will beamended to state: “The com-mon security and defence poli-cy shall include the progressiveframing of a common uniondefence policy. This will lead toa common defence, when theEuropean Council, actingunanimously, so decides.” Thecorresponding article in thecurrent EU Treaty ends with

“which might lead to a com-mon defence, should theEuropean Council so decide”.At present, article 29.4.9 of theIrish Constitution prohibits par-ticipation in a commondefence.

This section of the Treaty ofLisbon contains other innova-tions. For example, theEuropean Defence Agency(EDA) is given a treaty basis.The EDA was established bythe member states in 2004, andIreland participates in this. Thepurpose of the EDA is to assistmember states in relation todefence matters, for example,promoting the harmonisationof operational needs and effec-tive procurement methods, and

the coordination of pro-grammes and research.

EnvironmentThe new treaty amends thecurrent EC Treaty article onenvironmental policy toinclude the need to combat cli-mate change and affirm sus-tainable development as objec-tives of this policy.

EnergyThe treaty includes energy as aspecific policy area, the objec-tives of which include ensuringthe functioning of the EUenergy market, the security ofenergy supply, the promotionof energy efficiency and saving,the development of renewable

forms of energy, and the pro-motion of interconnection ofenergy networks. A protocol tothe treaty makes some minoramendments to the 1957 TreatyEstablishing the European AtomicEnergy Community (theEuratom Treaty).

Solidarity and civil protectionA new solidarity clause pro-vides that the EU and its mem-ber states shall act jointly in aspirit of solidarity if a memberstate is the object of a terroristattack or the victim of a naturalor man-made disaster.(Decisions on action involvingdefence implications must betaken by the council actingunanimously.)

The new treaty also includesan article on civil protection,which aims to encourage coop-eration to improve the effec-tiveness of systems for prevent-ing and protecting against nat-ural or man-made disasters.

Ratification?The Treaty of Lisbon representsthe next step in the Europeanproject. It needs to be ratifiedby all member states, and ratifi-cation by Ireland will require areferendum, which is due to beheld during 2008. If it is rati-fied, it is envisaged that thetreaty will enter into force on 1January 2009.

A full text of the treaty doc-umentation can be viewed atwww.reformtreaty.ie.

David Geary is head of EU, com-petition and regulatory law atEugene F Collins, Solicitors,Dublin.

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SOME OTHER CHANGES• In addition to the changes outlined above, the Treaty of Lisbon

introduces a small number of new EU policy areas, includingtourism, space policy, administrative cooperation and sport.

• It accords the EU Charter of Fundamental Rights the same legalvalue as the treaties.

• A new article provides a treaty basis for the protection of intel-lectual property rights.

• A new article on respect for churches and religious associationsor communities and non-confessional organisations provides foran open, transparent and regular dialogue with them.

• The treaty amends the existing article on public health to includea specific reference to mental health.

• It amends the provisions relating to services of general econom-ic interest (that is, public services) to oblige member states tospecify that the conditions under which these operate includeeconomic and financial conditions.

• The treaty provides that member states remain in the EU by theirown choosing and provides for a right of withdrawal.

• It further develops the right of member states to suspend a mem-ber state’s rights for breach of the EU’s rules and values.

• The treaty introduces new provisions with regard to enlargementso as to ensure that accession takes place only when a candi-date country is fully ready to meet the demands of membership.

CourtMeet at the Four Courts

FOR BOOKINGS CONTACT MARY BISSETT OR PADDY CAULFIELD

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In July 2007, a new regulation onchoice of law in tort (RegulationEC no 864/2007) was intro-duced. The regulation will applyfrom 11 January 2009. This hasbecome known as the Rome IIRegulation to distinguish it fromthe Rome I Regulation on choiceof law in contract.

It sets out a general rule thatthe law applicable to a non-con-tractual obligation arising out ofa tort is the law of the state inwhich the damage occurs, irre-spective of the state in which theevent giving rise to the damagetook place. For situations wherethe tort is manifestly more con-nected with another state, theregulation provides for specificrules to allow courts to treat indi-vidual cases in the most appro-priate way. The parties are also

free to agree on the law applica-ble to their circumstances, if thechoice is demonstrated with“reasonable certainty”. Non-con-tractual obligations arising out offamily relationships, matrimonialproperty issues and successionrights are excluded from the reg-ulation.

From 1 July 2007, Denmark hasopted in to the Regulation on theService of Judicial andExtrajudicial Documents in Civiland Commercial Matters(Regulation 1348/2000).

Case C-368/05, Color DrackGmbH v Lexx InternationalVertriebs GmbH, 3 May 2007.Color Drack is an Austrian com-pany and Lexx is a companyestablished in Germany. Theyentered into a contract for thesale of goods under which Lexx

undertook to deliver goods tovarious retailers of Color Drackin Austria. A dispute arose overan alleged contractual obligationon the part of Lexx to take backunsold goods and to reimbursethe price to Drack. Drack broughtan action against Lexx in Austria.The Austrian court acceptedjurisdiction on the basis of arti-cle 5(1) of regulation 44/2001(the contract exception). Article5(1)(b) provides that, if there is adispute concerning the deliveryof goods, the place of perform-ance is where the goods were orshould have been delivered. TheAustrian appeal court referred aquestion to the ECJ. It askedwhether article 5(1)(b) could beinterpreted as meaning that aseller of goods domiciled in onemember state who deliversgoods to a purchaser domiciledin another member state, at var-

ious places within that othermember state, can be used bythe purchaser regarding a claimunder the contract relating to allthe deliveries – if need be, at theplaintiff’s choice – before thecourt of one of those places ofperformance. The ECJ held thatit could. The court held that thisinterpretation resulted in aforum that could be anticipatedby the parties to the contract.The court having jurisdiction tohear all the actions based on thecontract for the sale of goods isthat in the area of the principalplace of delivery, which must bedetermined on the basis of eco-nomic criteria. In the absence ofdetermining facts for establish-ing the principal place of deliv-ery, the plaintiff may sue thedefendant in the court for the place of delivery of itschoice. G

JURISDICTION

RECENT DEVELOPMENTS IN EUROPEAN LAW

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• Lost land certificates – €138.50 (incl VAT at 21%)• Wills – €138.50 (incl VAT at 21%)• Title deeds – €138.50 per deed (incl VAT at 21%)• Employment/miscellaneous – €138.50 (incl VAT at 21%)

HIGHLIGHT YOUR NOTICE BY PUTTING A BOX AROUND IT – €€33 EXTRA

RATES IN THE PROFESSIONAL NOTICE SECTION ARE AS FOLLOWS:

PROFESSIONAL NOTICE RATES

ALL NOTICES MUST BE PAID FOR PRIOR TO PUBLICATION. CHEQUES SHOULD BEMADE PAYABLE TO LAW SOCIETY OF IRELAND. Deadline for March Gazette: 20 February 2008. For further information, contact Catherine Kearney or Valerie Farrellon tel: 01 672 4828 (fax: 01 672 4877)

These rates will apply from the Jan/Feb 2008 issue and subsequently

GazetteGazetteL A W S O C I E T Y

Regd owner: Patrick J Howard; folio:29355; lands: townland of Caherrushand barony of Ibrickan; area: 1 rood,3 perches; Co Clare

Regd owner: Daniel Melody and MaryMelody; folio: 11171; lands: town-land of Cratloemoyle and barony ofBunratty Lower; area: 20.934hectares; Co Clare

Regd owner: James Brosnan(deceased); folio: 32049 and 32051;lands: plot of ground situate in thetownland of Curraheen and baronyof Duhallow in the county of Cork;Co Cork

Regd owner: Mary Buckley (deceased);folio: 50231; lands: plot of groundsituate in the townland of Curracloghand barony of Muskerry West in thecounty of Cork; Co Cork

Regd owner: Richard Griffin (deceased);folio: 3946L; lands: plot of groundsituate to the south of Long Lane inthe parish of St Anne’s Shandon inthe county borough and city of Cork;Co Cork

Regd owner: Michael Landers; folio:1974L; lands: plot of ground situatein the townland of Youghal Landsand barony of Imokilly in the countyof Cork; Co Cork

Regd owner: John Joseph McCarthy;folio: 45765/45770; lands: plot ofground situate in the townland ofBallinlough and barony of CarberyWest (East Division) in the county ofCork; Co Cork

Regd owner: Michael Murphy; folio:5664; lands: plot of ground situate inthe townland of Ballincrossig andbarony of Cork in the county ofCork; Co Cork

Regd owner: Denis Murphy andHannah Mary Murphy; folio:

47603F; lands: plot of ground situatein the townland of Ballymichael andbarony of Muskerry West in thecounty of Cork; Co Cork

Regd owner: Elizabeth Murphy(deceased); folio: 55108; lands: plotof ground situate in the townland ofSlip and barony of Bantry in thecounty of Cork; Co Cork

Regd owner: Patrick F Murphy andMary P Murphy; folio: 50230; lands:plot of ground situate in the town-land of Maulnagrough and barony ofMuskerry West in the county ofCork; Co Cork

Regd owner: Patrick O’Connor; folio:4790; lands: plot of ground situate inthe townland of Mullenroe andbarony of Muskerry West in thecounty of Cork; Co Cork

Regd owner: Aiden O’Donovan andElaine O’Donovan; folio: 70729F;lands: plot of ground known as no 1College Park, situate to the north ofAshe Street in the townland ofScartagh and barony of Carbery East(East Division) in the county ofCork; Co Cork

Regd owner: Joseph O’Donovan(deceased); folio: 16512L; lands: plotof ground known as the ground floorplan of retail unit known as nos 6 and7 The Quay’s, situate in the parishand town of Passage West in thecounty of Cork; Co Cork

Regd owner: Michael O’Driscoll; folio:40280; lands: plot of ground situatein the townland of Knockan-namaurnagh and barony of CarberyWest (East Division) in the county ofCork; Co Cork

Regd owner: Gerard O’Keeffe andEileen O’Keeffe; folio: 18698F;lands: plot of ground situate in the

townland of Ballyclogh and baronyof Orrery and Kilmore in the countyof Cork; Co Cork

Regd owner: James O’Leary; folio:3574; lands: plot of ground situate inthe townland of Mashanaglass andbarony of Muskerry East in thecounty of Cork; Co Cork

Regd owner: O’Mahony Bros Limited;folio: 41769/49176; lands: plot ofground situate in the townland ofDouglas and barony of Cork in thecounty of Cork; Co Cork

Regd owner: Joan O’Shea and Denis MO’Shea; folio: 9614F; lands: plot ofground situate in the townland ofAdamstown and barony ofKerrycurrihy in the county of Cork;Co Cork

Regd owner: Claire Quain; folio:10091F; lands: plot of ground situatein the townland of Derryleigh (EDBealock) and barony of MuskerryWest, in the county of Cork; CoCork

Regd owner: Jeremiah Rohan; folio:34338F; lands: plot of ground situatein the townland of Ballynacorra Westand barony of Imokilly in the countyof Cork; Co Cork

Regd owner: Rochestown Auto CentreLimited; folio: 8943F; lands: plot ofground situate in the townland ofMonfieldstown and barony of Corkin the county of Cork; Co Cork

Regd owner: John Sheehan; folio:92310F; lands: plot of ground situatein the townland of Ballineadig andbarony of Muskerry East in thecounty of Cork; Co Cork

Regd owner: John Spillane; folio:13365F; lands: plot of ground situatein the townland of (1) Lisheenowen,(2) Dromboy North, and barony of

LOST LAND CERTIFICATES

Registration of Deeds and Title Acts1964 and 2006An application has been received fromthe registered owners mentioned inthe schedule hereto for an order dis-pensing with the land certificateissued in respect of the lands specifiedin the schedule, which original landcertificate is stated to have been lostor inadvertently destroyed. The landcertificate will be dispensed withunless notification is received in theregistry within 28 days from the dateof publication of this notice that theoriginal certificate is in existence andin the custody of some person otherthan the registered owner. Any suchnotification should state the groundson which the certificate is being held.Property Registration Authority, Chancery Street, Dublin 7(Published 1 February 2008)

Section 49. Regd owner: AmbroseQuilty, Creggyconnell, Co Sligo; folio:18527; lands: Creggyconnell; Co Sligo.In the matter of the Registration of TitleAct 1964 and in the matter of an appli-cation by Joseph Finnegan for registra-tion as owner with an absolute title;application no: AP/DC/D2006WR011064B.

To whom it may concern (and in par-ticular the next of kin of the above-mentioned Ambrose Quilty): takenotice that Joseph Finnegan ofCreggconnell, Rosses Point, Co Sligo,has lodged an application under section49 of the above act to be registered asfull owner with an absolute title of theabove-mentioned folio lands. The mapmay be inspected at the PropertyRegistration Authority, SetantaCentre, Nassau Street, Dublin 2.

All persons objecting to such regis-tration are hereby required to file theirobjections in writing, duly verified,within one calendar month from thedate of publication of this notice. In theabsence of objection or in the event ofany objection not being sustained, reg-istration will be effected.Date: 1 February 2008

Regd owner: Patrick Byrne; folio:2375F; lands: Ballynsboley andbarony of Idrone East; Co Carlow;Co Carlow

Regd owner: Patrick O’Reilly,Cullighan Upper, Belturbet, CoCavan; folio: 1177; lands: Drumgart;area: 9.2875 hectares; Co Cavan

Regd owner: Frank Hassett; folio:14621; lands: townland of Moyrieskand barony of Bunratty Upper; CoClare

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(1) Barretts, (2) Barrymore, in thecounty of Cork; Co Cork

Regd owner: John O’Sullivan and JoanO’Sullivan; folio: 31697F; lands: plotof ground situate in the townland ofDromanallig and barony of MuskerryWest in the county of Cork; CoCork

Regd owner: Liam Webb; folio: 461F;lands: plot of ground situate in thetownland of Cullen and barony ofKinalea in the county of Cork; CoCork

Regd owner: Aileen Gilleran; folio:214F; lands: plot of ground situate tothe east of the road leading fromDouglas to Monkstown in the parishtown of Passage West and in thecounty of cork; Co Cork

Regd owner: Patrick O’Regan; folio:4374; lands: plot of ground situate inthe townland of Ballysimon andbarony of Duhallow in the county ofCork; Co Cork

Regd owner: Eileen VeronicaCunningham and Donald HenryCunningham, Port-a-Carraig,Shroove, Greencastle, Co Donegal;folio: 1918F; lands: townland ofShroove and barony of InishowenEast; Co Donegal

Regd downer: Sean Lawell and DeirdreLawell, Loughanure, Annagry, CoDonegal; folio: 42954F; lands:Loughanure; Co Donegal

Regd owner: James Patrick Martin,Goladoo, Barnesmore, Co Donegal;folio: 448; lands: Corracramph,Tawnawully and Tirhugh; CoDonegal

Regd owner: Christopher Boyle andHelen O’Neill; folio: DN39346F;lands: property known as 181Millbrook Lawns, situate to the eastside of the Old Bawn Road in thetown and parish of Tallaght; CoDublin

Regd owner: Kevin Buckley and AineBuckley; folio: DN85638F; lands:property situate in the townland ofCornelscourt and barony ofRathdown; Co Dublin

Regd owner: Maureen Butler; folio:DN1782; lands: property situate inthe townland of Murphystown andbarony of Rathdown; Co Dublin

Regd owner: Seamus J Cullen; folio:DN31668L; lands: property situateto the north side of Yellow Walls –Swords Road, in the parish and townof Malahide situate in the townlandof Yellow Walls and barony ofCoolock; Co Dublin

Regd owner: Mary Clarke (one undivid-ed 1/3 share); folio: DN129336F;lands: property situate in the town-land of Burrow and barony ofNethercross; Co Dublin

Regd owner: Mary Clarke (one undivid-ed 1/3 share); folio: DN64671F; lands:

property situate in the townland ofBurrow and barony of Nethercross;Co Dublin

Regd owner: Jane Dever; folio:79474L; lands: property known asflat 21, New Square, situate on thenorth-west side of New RowSquare in the parish of St Luke anddistrict of South Central; CoDublin

Regd owner: Liam Ebbs and Ray Ebbsand Lorraine Conneely; folio:DN130108L; lands: property beingapartment 42, Block 2, fourth floor ofBelmont Hall, situate at ParnellStreet/Middle Gardiner Street in theparish of St George and district ofNorth Central in the city of Dublin;Co Dublin

Regd owner: Patrick Jordan; folio:DN87847F; lands: property situateto the north side of the Grand Canalin the town and parish of Clondalkinin the townland of Ballymanagginand barony of Uppercross; CoDublin

Regd owner: Joanna Kelly; folio:DN33156L; lands: (1) property situ-ate to the west side of BaysideBoulevard North in the parish ofKilbarrack, district of Howth, (2)property being a garage on the westside of Kilbarrack, district of Howth;Co Dublin

Regd owner: Elizabeth CharlotteMahon; folio: DN17814; lands:property situate to the east ofSandymount Road in the district ofPembroke and city of Dublin; CoDublin

Regd owner: William Arthur St GeorgeWalsh and Mona MavourneenWalsh; folio: DN21342F; lands:property situate in the townland ofBalally and barony of Rathdown; CoDublin

Regd owner: Eleanor Marie Quinlan(one undivided half share); folio:DN76453F; lands: property knownas 42 Highfield Road, situate in theparish of Rathfarnham and district ofRathmines; Co Dublin

Regd owner: Charles Quinlan (oneundivided half share); folio:DN76453F; lands: property knownas 42 Highfield Road, situate in theparish of Rathfarnham and district ofRathmines; Co Dublin

Regd owner: Frank O’Sullivan andGretta O’Sullivan; folio: DN71140L;lands: property situate in the town-land of Old Orchard and barony ofRathdown; Co Dublin

Regd owner: Miriam Ryan; folio:DN3812; lands: property known asno 15 Albert Park, situate on the westside of the said park in the borough ofDun Laoghaire in the townland ofBullock and barony of Rathdown; CoDublin

Regd owner: Mary MacMahon; folio:DN53019L; lands: property knownas 60 Gulistan Cottages, situate in theparish of St Peter, district ofRathmines; Co Dublin

Regd owner: Damien Bergin; folio:37675F; lands: townland of Ballybrittand parish of St Nicholas; CoGalway

Regd owner: Michael Conway; folio:9142F; lands: townland ofCloonavihony and Windfield andbarony of Killian; Co Galway

Regd owner: Margaret Kelly; folio:432F; lands: townland of Eighterardand barony of Moycullen; area:2.0683 hectares; Co Galway

Regd owner: Martin Mannion; folio:8519F; lands: townland ofCloghscolta and barony of Galway;Co Galway

Regd owner: Brian J O’Higgins; folio:56521; lands: townland ofCarrowmoneash and barony ofDunkellin; area: 0.7183 hectares; CoGalway

Regd owner: Anne Coles; folio: 42189F;lands: townland of The Wood andbarony of Corkaguiny; Co Kerry

Regd owner: Cornelius Counihan; folio:21746F; lands: townland ofDoonryan and Gortnacarriga andbarony of Magunihy; Co Kerry

Regd owner: Patrick Doyle; folio:24556; lands: townland of Shinnaghand barony of Magunihy; Co Kerry

Regd owner: Joseph O’Sullivan; folio:8432; lands: townland of Gortroe andKnocknagashel West and barony ofTrughanacmy; Co Kerry

Regd owner: Treacy Cagney of 57Ryevale Lawns, Leixlip, Co Kildare;folio: 4115F; lands: townland ofLeixlip and barony of North Salt; CoKildare

Regd owner: Tanya Delaney and DeclanDuignan, of site no 3 OldtownHeights, Sallins Road, Naas, CoKildare; folio: 26750F; lands: north-west of the Naas/Johnstown Road inthe urban district of Naas, being partof the townland of Monread Southand barony of Naas North, shown asplan(s) 493M edged red on the reg-istry map (OS map ref(s) 3509/17,3509/18); Co Kildare

Regd owner: Michael Dowling; folio:12429; lands: Darbyshill and baronyof Crannagh; Co Kilkenny

Regd owner: Matthew Dunne; folio:9830F; lands: Coolederry and baronyof Portnahinch; Co Laois

Regd owner: John Enright and BridgetEnright; folio: 28011; townland ofCorgrig and barony of Shanid; CoLimerick

Regd owner: Eamon Flynn and MarionFitzgerald; folio: 32987F; lands:townland of Killonan and barony ofClanwilliam; Co Limerick

Regd owner: Cola Fox (formerly ColaWarren); folio: 2698F; lands: town-land of Glenosheen and barony ofCoshlea; Co Limerick

Regd owner: MJ and Ita Kehoe; folio:27113; lands: townland of Corgrigand barony of Shanid; Co Limerick

Regd owner: Charles Hanley; folio:10990F; lands: Knockdromin andbarony of Connello Lower; CoLimerick

Regd owner: Michael O’Donovan; folio:4034F; lands: townland ofBallynamona and barony ofSmallcounty; Co Limerick

Regd owner: Eamonn O’Malley andSiobhan O’Malley; folio: 32579F;lands: townland of Gouldavoher andPubblebrien; Co Limerick

Regd owner: Anne TheresaMacNamara, Paul GerardMacNamara; folio: 9430F; lands:parish of St Patrick’s, electoral divi-sion of Abbey B; Co Limerick

Regd owner: Mr Richard Culhane,Aughnacliffe, Co Longford; folio:12253; lands: Aughnacliffe; CoLongford

Regd owner: Paul Kenny, Drumnacross,Moatfarrell, Co Longford; folio:904F, 8951F; lands: Moatfarrell; CoLongford

Regd owner: Martin Ayres, 14 Willowdale, Bay Estate,Dundalk, Co Louth, and GeraldineAyres, 30 Drive One, Muirhev-namore, Dundalk, Co Louth; folio:416L; lands: Marshes Lower; CoLouth

Regd owner: Brendan Kieran,Kilcroney, Dundalk, Co Louth; folio:3366; lands: Kilcroney; Co Louth

Regd owner: Stephen Joyce; folio: 142L;lands: townland of Carrowbeg andbarony of Murrisk; Co Mayo

Regd owner: Catherine McGinley; folio:5851F; lands: townland of Behybaunand barony of Tirawley; Co Mayo

Regd owner: John Coghlan and KateCoghlan; folio: 17721F; lands: town-land of Carrowbaun and barony ofBurrishoole; Co Mayo

Regd owner: Patrick and Mary Smith;folio: 13579; lands: Rathscanlon andbarony of Gallen; Co Mayo

Regd owner: Ailin Cagney; folio:14766F; lands: Ardanew and town-land of Gilbertstown, Longwood,Enfield, Co Meath; Co Meath

Regd owner: Michael Govern andEileen Govern, 7 BeechmountCrescent, Navan, Co Meath; folio:4131F; lands: Balreask Old; CoMeath

Regd owner: Antoinette Dunne; folio:13274; lands: Ballymacwilliam andbarony of Warrenstown; Co Offaly

Regd owner: John Brynt; folio: 8835;lands: Clonagh and barony ofBallycowen; Co Offaly


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Regd owner: Thomas Hogan; folio:1210F; lands: Gortarevan and baronyof Garrycastle; Co Offaly

Regd owner: Peter Lyons; folio: 8252;lands: Raheenglass and barony ofEglish; Co Offaly

Regd owner: Maurice O’Regan andMary O’Regan, 3 St Mary’s Road,Edenderry, Co Offaly; folio: 10823;lands: part of the lands of Edenderryin the barony of Coolestown, proper-ty known as 3 St Mary’s Road,Edenderry, Co Offaly; Co Offaly

Regd owner: Padraig Gribben; folio:13043; lands: townland ofBarnacawley and barony ofFrenchpark; area: 4.3579 hectares;Co Roscommon

Regd owner: John Nevin; folio: 1727F;lands: townland of Lack and Kilbarryand barony of Ballintober North; CoRoscommon

Regd owner: Michael Kenoy and AnnaMay Kenoy; folio: 14542; lands:townland of Mullaghmore andbarony of Boyle; area: 16.1166hectares; Co Roscommon

Regd owner: John Farrell; folio: 13266;lands: townland of NewtownFarragher and barony of Ballymor;area: 13.3290 hectares; CoRoscommon

Regd owner: Garrett Carter; folio:18216F; lands: townland of Lecarrowand barony of Carbury; area: 0.2960hectares; Co Sligo

Regd owner: Mary Herbert; folio:1944F; lands: townland of Muckduffand barony of Tireragh; Co Sligo

Regd owner: Maureen Scanlan; folio:20021; lands: townland ofKnockmoynagh, Kilcreevin andNewpark and barony of Corran; CoSligo

Regd owner: Michael and Joan Hally,Middlequarter, Newcastle, Clonmel;folio: 31774; lands: townland ofMiddlequarter and barony of Iffa andOffa West; Co Tipperary

Regd owner: John Moylan; folio: 12476;lands: townland of Ballycrine andbarony of Ikerrin; Co Tipperary

Regd owner: Patrick Mullally; folio:15885F (part 9105); lands: townlandof Gortnasculloge and barony ofSlievardagh; Co Tipperary

Regd owner: Patrick and Anne Ryan;folio: 2687F; lands: townland ofTullow and barony of Owney andArra; Co Tipperary

Regd owner: James Morrissey; folio: 36Co Tipperary; lands: townland ofLisnamoe and barony of UpperOrmond; Co Tipperary

Regd owner: Timothy O’Neill andMary O’Neill; folio: 36491; lands:townland of Newport and barony ofOwney and Arra; Co Tipperary

Regd owner: John Carey, Sheila Carey,Teresa Carey; folio: 24404F; lands:

townland of Shanballyedmond andbarony of Owney and Arra; CoTipperary

Regd owner: John F Halpin (deceased);folio: 3096L; lands: plot of groundsituate in the townland ofBallythomas and barony ofUpperthird in the county ofWaterford; Co Waterford

Regd owner: Laurence Hackett,Castletowngeoghegan, CoWestmeath; folio: 2360; lands:Castletown; Co Westmeath

Regd owner: James Foley; folio: 22612;lands: Saintkiernans and barony ofShelburne; Co Wexford

Regd owner: Christopher Galvin; folio:17965; lands: Borehovel and baronyof Ballaghkeen North; Co Wexford

Regd owner: William and CatherineQuaid; folio: 11404F; lands: Killelanand barony of Ballaghkeen South;Co Wexford

Regd owner: Daniel Quigley and EileenQuigley; folio: 9689; lands: Donardand barony of Bantry; Co Wexford

Regd owner: Hazel Douglas, Cherrylin,Quill Road, Kilmacanogue, CoWicklow; folio: 6541; lands: town-land of Kilmacanogue South andbarony of Rathdown; Co Wicklow

Regd owner: Angela Ford and DevinFord of The Dew Inn, Glenealy, CoWicklow; folio: 9736F; lands: town-land of Coolnakilly and barony ofNewcastle; Co Wicklow

Regd owner: Joseph McMahon; folio:1431F; lands: situate in the townlandof Ballinacarrig Upper in the baronyof Ballinacor North and county ofWicklow; Co Wicklow

Regd owner: Charles Philip Walker,Ballinglen, Arklow, Co Wicklow;folio: 1057F; lands: townland ofBallinglen and barony of BallinacorSouth; Co Wicklow

Glacken, Mary (deceased), late ofGlackenstown, Wilkinstown, Navan,Co Meath, who died on 25 September2007 at Glackenstown, Wilkinstown,Navan, Co Meath. Personal representa-tive: John Glacken. Would any personhaving knowledge of a will made by theabove-named deceased please contactOliver Shanley & Co, Solicitors, 62-63Academy Street, Navan, Co Meath; tel:046 909 3200, fax: 046 902 9937

Hoban, Margaret (widow)(deceased), late of Alzheimer’s CareCentre, Highfield Hospital, SwordsRoad, Whitehall, Dublin 9, and former-ly of 2 Russell Avenue, Jones’s Road,Drumcondra, Dublin 9, who died on 26June 2003. Would any person having

knowledge of a will made by the above-mentioned deceased please contactGartlan Winters, Solicitors, 56 LowerDorset Street, Dublin 1; tel: 01 8557434, fax: 01 855 1075, email:[email protected]

McNamara, Nicholas (orseRaymond) (deceased), late of 21Meadowcourt, Clane, Co Kildare, wid-ower, who died on 9 March 2007 at 21Meadowcourt, Clane, Co Kildare.Would any person having knowledge ofa will made by the above-mentioneddeceased please contact PatriciaO’Donnell, solicitor, unit 6, CollegeWay, Kilcock Road, Clane, Co Kildare;tel: 045 861 114, fax: 045 868 147,email: [email protected]

Maher, Patricia (deceased), late of 20Beauvale Park, Artane, Dublin 5, whodied on 27 October 2006. Would anyperson having knowledge of the where-abouts of the will dated 7 May 1997made by the deceased please contactNiall Gaffney, Gaffney Halligan & Co,Solicitors, Artane Roundabout,Malahide Road, Artane, Dublin 5; tel:01 831 2470, fax: 01 831 5726

Martin, Anne (deceased), late of 46O’Daly Road, Drumcondra, Dublin 9,who died on 13 October 2007. Wouldany person having knowledge of a willmade by the above-named deceasedplease contact Maguire McClafferty,Solicitors, 8 Ontario Terrace, PortobelloBridge, Dublin 6; tel: 01 491 0010, fax:01 491 0011, email: [email protected]

Neligan, Winifred (deceased), late of43 Lennox Street, Dublin 8. Would anyperson having knowledge of a will madeby the above-named deceased, who diedon 1 December 2007, please contactMichael J Kennedy & Co, Solicitors,Parochial House, Baldoyle, Dublin 13;tel: 01 832 0230, email: [email protected]

O’Connor, Denis (deceased), late ofTominearly, Clonroche, Enniscorthy,Co Wexford. Would any person havingknowledge of a will executed by theabove-named deceased, who died on 28October 2007, please contact MessrsPeter G Crean & Co, Solicitors, MillWood, Carrigduff, Bunclody, CoWexford

O’Connor, Patrick (deceased), late of21a Coolgreaney Road, Arklow, CoWicklow. Would any person havingknowledge of the whereabouts of a willmade by the above-named deceased,who died on 13 January 2007, pleasecontact Cooke & Kinsella, Solicitors,Wexford Road, Co Wicklow

O’Donnell, Mary (deceased), late of 3Carrigeen Park, Waterford City. Wouldany person having knowledge of thewhereabouts of any next of kin of theabove-named deceased please contactGerard Halley, MM Halley & Son,Solicitors, 5 George’s Street, Waterford;tel: 051 874 073

O’Neill, Richard (deceased), late ofDouglas Nursing Home and formerlyKillacloyne, Carrigtwohill, Co Cork,retired farmer, who died on 3November 2007. Would any personhaving knowledge of a will made by theabove-mentioned deceased please con-tact Eoin C Daly & Co, Solicitors, 38South Mall, Cork; tel: 021 427 5244,fax: 021 247 5243

O’Shea, Joseph (deceased),Mountfead, Mountrath, Co Laois,who died on 12 February 2000;O’Shea, Thomas (deceased),Mountfead, Mountrath, Co Laois,who died on 16 March 2001; O’Shea,Thomas (deceased), Mountfead,Mountrath, Co Laois, who died on 27 February 1961. Would any personhaving knowledge of any will made byany of the above-named deceasedplease contact Cahill & Company,Solicitors, Abbeyleix, Co Laois; tel: 057 873 1246/873 1220, fax: 057873 1480

Quigley, Mary (deceased), late of 178Collins Avenue East, Donnycarney,Dublin 5. Would any person havingknowledge of a will being made by theabove-named deceased, who died 14November 2007, please contactO’Leary Maher, Solicitors, 191 HowthRoad, Killester, Dublin 3; tel: 01 8331900, fax: 01 833 4991

Sheridan, Eugene (deceased), late of50 Beaumont Drive, Churchtown,Dublin 14, retired telecom supervisor,who died on 1 April 2006. Would anyperson having knowledge of a will madeby the above-mentioned deceasedplease contact Stephenson, Solicitors,55 Carysfort Avenue, Blackrock, CoDublin; tel: 01 275 6759, email:[email protected]

Walsh, Maureen (deceased), late of 4St Kinnith’s View, Athboy Road,Ballivor, Co Meath (formerly of 3Larkfield Avenue, Dublin 6, and 5Maple Wood, Tallaght, Co Dublin),who died on 27 September 2007.Would any person having knowledge ofa will made by the above-nameddeceased please contact Brady & Co,Solicitors, High Street, Trim, CoMeath; tel: 046 943 1034, fax: 046 9436693, email: [email protected]

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The well-established branchoffice, client list (and, if required,existing lease on favourable termsin well-established location) of aDublin city centre solicitors firmis for sale. Might suit start-uppractice or as a ‘bolt on’ to existingpractice in the area. Apply in con-fidence to box no 11/08

Articles for sale: dictaphone machines(tape). Four transcriber tape units withhandheld microphones; three typistunits headphones, foot pedal and play-ers; one Olympus handheld recorder;one remote control handheld micro-phone with speaker. Usual price €450each, will sell for €250 each. All in work-ing order. Selling due to transfer to digi-tal. Contact John on tel: 086 366 7412

Ashford Temple & Co, law agents, lawresearchers and investigators. Usualrange of services provided. Specialistinvestigations in most areas of civil andcompany law matters, including obtain-ing evidence as necessary. All assign-ments undertaken and or validated bylegal personnel. 29 Buckingham Village,Dublin 1; tel/fax: 01 855 4844, mobile:087 278 0467, email: [email protected]

Storage unit for sale situate atJames’s Street, Dublin 8; €125kplus VAT – long lease, fully fittedout. Email: [email protected] ortel: 087 263 2909

In the matter of the Landlord andTenant Acts 1967-2005 and in thematter of the Landlord and Tenant(Ground Rents) (No 2) Act 1978 and inthe matter of an application byCharles O’Neill, Michael Noble,Conor Clarkson and Freida O’NeillAny person having a freehold estate orany intermediate interest in all that andthose piece or parcel of ground with thehouse and premises thereon, formerlyknown as Struanhill but now known asColmcille, together with the gate lodgeand stable, coach house and garagethereon, situate at Delgany in the coun-ty of Wicklow (hereinafter referred to as‘the property’), being the lands com-prised in a certain indenture of leasedated 21 October 1946 between EileenO’Donnell of the one part and James SEdge of the other part for a term of 890years from 25 March 1946 at a yearlyrent of £39.4s.3d.

Take notice that Charles O’Neill,Michael Noble, Conor Clarkson andFreida O’Neill, being the persons cur-rently entitled to the lessees’ interests inthe property, intend to apply to thecounty registrar for the county ofWicklow for the acquisition of the free-hold interest and all intermediate inter-ests in the property, and any partyasserting that they hold a superior inter-est in the property is called upon to fur-nish evidence of title to same to thebelow named within 21 days from thedate of this notice.

In default of any such notice beingreceived, the said Charles O’Neill,Michael Noble, Conor Clarkson andFreida O’Neill intend to proceed withthe application before the county regis-trar at the end of 21 days from the dateof this notice and will apply to the coun-ty registrar for the county of Wicklowfor directions as may be appropriate onthe basis that the person or persons ben-eficially entitled to the superior interestsincluding the freehold reversion in eachof the aforesaid premises are unknownor unascertained.Date: 1 February 2008Signed: O’Sullivan & Associates (solicitorsfor the applicants), 10 Herbert Street,Dublin 2

In the matter of the Landlord andTenant Acts 1967-1994 and in the

matter of the Landlord and Tenant(Ground Rents) (No 2) Act 1978: anapplication by Gregory Barry,Elizabeth Jordan, Joan O’Connorand Anne Barry. Schedule: 89 and89A Sandymount Road, Dublin 4Take notice that any person having aninterest in the freehold estate of theproperty described in the schedule here-to (the premises).

Take notice that the applicant intendsto submit an application to the countyregistrar for the city of Dublin for theacquisition of the freehold interest inthe premises, and any parties assertingthat they hold a superior interest in thepremises (or any of them) are calledupon to furnish evidence of title to thepremises to the below named within 21days from the date of this notice.

In default of any such notice beingreceived, the applicant intends to pro-ceed with the application before thecounty registrar at the end of 21 daysfrom the date of this notice and willapply to the county registrar for the cityof Dublin for directions as may beappropriate on the basis that the personor persons beneficially entitled to thesuperior interest including the freeholdreversion in each of the premises areunknown or unascertained.Date: 1 February 2008Signed: Daly Lynch Crowe & Morris (solic-itors for the applicant), The Corn Exchange,Burgh Quay, Dublin 2

In the matter of the Landlord andTenant Acts 1967-1994 and in thematter of the Landlord and Tenant(Ground Rents) (No 2) Act 1978 and inthe matter of an application by RialtoFoodmarket Limited and in the mat-ter of the properties known as num-bers 455 and 457 South CircularRoad (formerly known as numbers155 and 157 respectively), Rialto,Dublin 8, in the city of DublinTake notice that any person having aninterest in the freehold estate or anyintermediate interests in the propertiesknown as numbers 455 and 457 (for-merly known as numbers 155 and 157)South Circular Road, Rialto, in the cityof Dublin held as follows: (a) as to 455(formerly 155) South Circular Road,Rialto, Dublin 8, in the city of Dublin,held under indenture of lease dated 3February 1936, made between JamesStewart of the one part and HenryRudge of the other part (hereinaftercalled the ‘Rudge lease’) for the term of500 years from 5 October 1933 at ayearly rent of IR£20, subject to thecovenants and conditions therein con-tained; and (b) as to 457 (formerly 157)South Circular Road, Rialto, Dublin 8,in the city of Dublin, held under inden-ture of lease dated 28 February 1936and made between James Stewart of the

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one part and Margaret L Stewart of theother part (hereinafter called ‘theStewart lease’) for the term of 500 yearsfrom 1 October 1933, subject to yearlyrent of IR£20 and also subject to thecovenants and conditions therein con-tained.

Take notice that Rialto FoodmarketLimited intends to submit an applica-tion to the county registrar for thecounty of Dublin at Áras Uí Dhálaigh,Inns Quay, Dublin 7, for the acquisitionof the intermediate interests in theaforesaid properties, and any partiesasserting that they hold the fee simpleor any intermediate interests in theaforesaid properties are called upon tofurnish evidence of title to the saidproperties to the below-named solicitorwithin 21 days from the date of thisnotice.

In default of any such notice beingreceived, Rialto Foodmarket Limitedintends to proceed with the applicationbefore the county registrar at the end of21 days from the date of this notice andwill apply to the county registrar for thecity of Dublin for directions as may beappropriate on the basis that the personor persons beneficially entitled to theintermediate interests, including the feesimple in the aforesaid properties, areunknown or unascertained.Date: 1 February 2008Signed: Joseph T Mooney & Company(solicitors for the applicant), 23 UpperMount Street, Dublin 2

In the matter of the Landlord andTenant Acts 1967-2005 and in thematter of the Landlord and Tenant(Ground Rents) (No 2) Act and in thematter of an application by JosephKennedy and in the matter of theproperty known as ‘Antoni’, no 47 StFinbarr’s Park, Glasheen Road, CorkTake notice that any person having aninterest in the freehold estate or any

superior interest in the property knownas all that and those the premises anddwellinghouse erected thereon, situateat Croughtamore in the parish of StFinbarr, barony of Cork and county ofCork, and commonly known as‘Antoni’, no 47 St Finbarr’s Park, Cork,being part of the hereditaments andpremises comprised in and demised byan indenture of lease dated 25November 1936 between KennedyO’Callaghan, William O’Callaghan,James Power and Joseph Power of theone part and Joseph Kennedy of theother part for a term of 74 years from 25March 1937 (except the last day there-of), subject to the yearly rent of oneshilling and to the covenants and condi-tions on the part of the lessee thereincontained.

Take notice that Joseph Kennedyintends to submit an application to thecounty registrar for the city of Cork forthe acquisition of the freehold interestand any intermediary interest in theaforementioned property, and any partyor parties asserting that they hold asuperior interest in the aforesaid prop-erty are called upon to furnish evidenceof title in the aforementioned propertyto the below named within 21 days ofthe date of this notice.

In default of any such notice beingreceived, Joseph Kennedy intends toproceed with the application before thecounty registrar at the end of the 21days from the date of this notice and willapply to the county registrar for the cityof Cork as may be appropriate on thebasis that the person or persons benefi-cially entitled to the superior interestincluding the freehold reversion in theaforesaid premises are unknown orunascertained.Date: 1 February 2008Signed: John Henchion & Co (solicitors forthe applicant), The Bakehouse, WaterlooRoad, Blarney, Co Cork

In the matter of the Landlord andTenant Acts 1967-2005 and in thematter of the Landlord and Tenant(Ground Rents) (No 2) Act and in thematter of an application by ThomasDeclan Callan and Elizabeth Callanand in the matter of the propertyknown as no 33 St Finbarr’s Park,Glasheen Road, CorkTake notice that any person having aninterest in the freehold estate or anysuperior interest in the property knownas all that and those the premises anddwellinghouse erected thereon, situateat Croughtamore in the parish of StFinbarr, barony of Cork and county ofCork, and commonly known as no 33 StFinbarr’s Park, Cork, being part of thehereditaments and premises comprisedin and demised by an indenture of leasedated 14 May 1938, between Kennedy

O’Callaghan and William O’Callaghanof the one part and Hannah Callan ofthe other part for a term of 74 yearsfrom 25 March 1937 (except the last daythereof), subject to the yearly rent ofone shilling and to the covenants andconditions on the part of the lesseetherein contained.

Take notice that Thomas DeclanCallan and Elizabeth Callan intend tosubmit an application to the county reg-istrar for the city of Cork for the acqui-sition of the freehold interest and anyintermediary interest in the aforemen-tioned property, and any party or partiesasserting that they hold a superior inter-est in the aforesaid property are calledupon to furnish evidence of title in theaforementioned property to the belownamed within 21 days of the date of thisnotice.

In default of any such notice beingreceived, Thomas Declan Callan andElizabeth Callan intend to proceed withthe application before the county regis-trar at the end of the 21 days from thedate of this notice and will apply to thecounty registrar for the city of Cork asmay be appropriate on the basis that theperson or persons beneficially entitledto the superior interest including thefreehold reversion in the aforesaidpremises are unknown or unascertained.Date: 1 February 2008Signed: John Henchion & Co (solicitors forthe applicant), The Bakehouse, WaterlooRoad, Blarney, Co Cork

In the matter of the Landlord andTenant Acts 1967-2004 and in thematter of the Landlord and Tenant(Ground Rents) (No 2) Act 1978 and inthe matter of the premises known as10C Chapelizod, Dublin 20: anapplication by James P MulroyThis notice is directed to any person orpersons having any interest in the free-hold estate of the following property: allthat and those the premises known as10C Chapelizod Road, Dublin 20, pre-viously known as the Majestic Cinemaand then the Oriel Cinema, situate inthe village of Chapelizod, parish of

Chapelizod, barony of Castleknock andcity of Dublin, held by the applicantunder an indenture of lease dated 9December 1694 and made between SirJohn Temple of the one part andRichard Winstanley of the other partfor a term of 500 years from 30September 1694.

Take notice that James P Mulroy of 1Matson Lodge, Ballymakenny Road,Drogheda, in the county of Louth,intends to submit an application to thecounty registrar for the city of Dublinfor the acquisition of the freehold inter-est in the aforesaid property and thatany party asserting that they hold asuperior interest in the aforesaid prop-erty are called upon to furnish evidenceof their title to the aforementionedpremises, through the solicitors for theapplicant named below, within 21 daysfrom the date of this notice.

In default of such notice beingreceived, the applicant, James P Mulroy,intends to proceed with the applicationbefore the county registrar for the cityof Dublin at the end of 21 days from thedate of this notice and shall apply to thecounty registrar for the city of Dublinfor directions as may be appropriate onthe basis that the person or persons ben-eficially entitled to the superior interestincluding the freehold interest of theaforesaid property are unknown orunascertained.Date: 1 February 2008Signed: Donal Branigan & Co (solicitors forthe applicant), 5 Laurence Street,Drogheda, Co Louth

In the matter of the Landlord andTenant Acts 1967-1994 and in thematter of the Landlord and Tenant(Ground Rents) (No 2) Act 1978 and inthe matter of the part of the landsand premises of Callary in the halfbarony of Rathdown and county ofDublin, situate at Deerpark Road,Mount Merrion, in the county ofDublin: an application by Flanagan’sof Buncrana LimitedAll that and those that piece or plot ofground being part of the lands of Mount

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Merrion, otherwise Callary, situate in thehalf barony of Rathdown and county ofDublin, with the cinema or theatre andoffices erected thereon, which premisesare particularly delineated, measured (bethe same more or less) and described onthe map or plan drawn on these presentsand are thereon edged red together withthe right in common with the lessors andall other persons having a similar right(including all persons lawfully resortingto the said premises) at all times and forall purposes whether on foot or withhorses, carts, carriages or motors to passand repass over and along the road oravenue adjoining the said premises(which said road or avenue is not intend-ed to be hereby demised) and all otherroads or avenues of the lessors communi-cating therewith (hereinafter called ‘thepremises’), which were demised to TheDeerpark Cinema Limited for a term of250 years from 25 March 1953, subjectto the yearly rent of stg£435 and subjectto the covenants and conditions thereincontained on the part of the lessee to beobserved and performed.

Take notice that the applicants,Flanagan’s of Buncrana Limited, beingthe lessee entitled under sections 8, 9and 10 of the Landlord and Tenant(Ground Rents) (No 2) Act 1978, intendsto submit an application to the countyregistrar for the county of Dublin for theacquisition of the freehold interest andany intermediate interest in the aforesaidproperty, and any party asserting thatthey hold a superior interest in the saidaforesaid premises or any of them arecalled upon to furnish evidence of title tothe aforementioned premises to thebelow named within 21 days from thedate of this notice.

In default of any such notice beingreceived, the said Flanagan’s of BuncranaLimited intends to proceed with theapplication before the county registrar atthe end of 21 days from the date of thisnotice and will apply to the county reg-istrar for the county of Dublin for suchdirections as may be appropriate on thebasis that the person or person benefi-cially entitled to the superior interestincluding the freehold reversion in theaforesaid premises are unknown or areunascertained.Date: 1 February 2008Signed: CS Kelly & Co (solicitors for theapplicant), Market House, Buncrana, CoDonegal

In the matter of the Landlord andTenant Acts 1967-1994 and in thematter of the Landlord and Tenant(Ground Rents) (No 2) Act 1978: anapplication by Tom Ryan and AnnRyan of 12 Wasdale Grove, Terenure,Dublin 6Take notice that any person having aninterest in the freehold or any superiorinterest in the property known as num-

ber 26, Lower Rathmines Road, situatein the barony of St Sepulchre, parish ofSt Kevin and city of Dublin, which areheld under: (1) indenture of lease dated 8December 1953, made between HildaEvelyn Kerr of the one part and MinaWine of the other part for a term of 885years from 29 September 1953 subject toan annual rent of £17.10.00; (2) inden-ture of head-lease dated 3 September1841 and made between ChristopherEdward Wall of the one part and RalphNash McDermott and FrancesMcDermott of the other part for a termof 1000 years from 25 March 1841, sub-ject to the yearly rent of £7.03.0, shouldgive notice of their interest to the under-signed solicitors.

Take notice that Tom Ryan and AnnRyan intend to submit an application tothe county registrar for the county of thecity of Dublin for the acquisition of thefreehold interest and any intermediateinterests in the aforesaid premises, andany party asserting that they hold a supe-rior interest in the aforesaid premises iscalled upon to furnish evidence of title tothe said premises to the below namedwithin 21 days from the date of thenotice.

In default of any such notice beingreceived, the applicants, Tom Ryan andAnn Ryan, intend to proceed with theapplication before the city registrar atthe earliest opportunity and will apply tothe county registrar for the county ofDublin for directions as may be appro-priate on the basis that the person orpersons beneficially entitled to the supe-rior interest including the freeholdreversion to the said premises areunknown or unascertained.Date: 1 February 2008 Signed: Tom Collins, Tom Collins & Co(solicitors for the applicants), 132 TerenureRoad North, Dublin 6W

In the matter of the Landlord andTenant Acts 1967-1994 and in thematter of the Landlord and Tenant(Ground Rents) (No 2) Act 1978: anapplication by Darren Fay of 2Blackwood Close, Ongar Chase,Ongar, Dublin15, and Keith Fay of 8Mount Symon, The Rise, Clonsilla,Dublin 15Take notice that any persons having aninterest in the freehold estate or anysuperior interest in the property knownas ‘Clonad’, 1 College Road,Castleknock, Dublin 15, being the prop-erty demised by indenture of lease dated4 August 1967 and made betweenGallagher Group Limited of the firstpart, Terence Keaney of the second partand Virginia Marie Gaynor of the thirdpart for a term of 900 years from 25March 1965, subject to the yearly rent of€1.27 thereby reserved and thecovenants on the part of the lessee andconditions therein contained.

Take notice that the applicants,Darren Fay and Keith Fay, intend tosubmit an application to the county reg-istrar for the city of Dublin at Áras UíDhálaigh, Inns Quay, Dublin 7, for theacquisition of the freehold interest in theaforesaid property, and any party assert-ing that they hold a superior interest inthe aforesaid property is called upon tofurnish evidence of title to the aforesaidproperty to the below named within 21days from the date of this notice.

In default of any such notice beingreceived, the applicants, Darren Fay andKeith Fay, intend to proceed with theapplication before the county registrarfor the city of Dublin at the end of the 21days from the date of this notice and willapply to the county registrar for the cityof Dublin for directions as may beappropriate on the basis that the personor persons beneficially entitled to thesuperior interest including the freeholdreversion in the aforesaid property areunknown and unascertained.Date: 1 February 2008Signed: Lacey & Associates (solicitors for theapplicants), Main Street, Blanchardstown,Dublin 15

In the matter of the Landlord andTenant Acts 1967-2005 and in thematter of the Landlord and Tenant(Ground Rents) (No 2) Act 1978, andin the matter of an application byNewtonheath Company Limited,having its registered office at 125Emmett Road, Inchicore, Dublin 8(trading as St Patrick’s AthleticFootball Club) Take notice that any person having anyinterest in the freehold or leaseholdestate of the following property: all thatand those the premises demised by anindenture of lease of 28 February 1958,made between Sarah O’Reilly, JohnO’Reilly, Michael O’Reilly and MaryTeresa Magaharn, as lessors of the onepart, and Martin Dunne, Joseph Cronin,Bartholomew Cummins, and DenisWard, as lessees of the other part, andtherein described as known as all thatand those that piece or plot of groundsituate on the east side of certain landsthen in the occupation of the lessees andknown as Richmond Park, Kilmainham,in the parish of St James, formerly in thebarony of Coolock and county ofDublin, but then in the city of Dublin,which said property was more particular-ly shown on the map drawn on the saidlease, being a strip of land with a standerected thereon at Richmond Park,Inchicore, Dublin 8, which said landswere held by the lessors under the saidindenture of lease together with otherlands from Arthur Hart Guinness underan indenture of lease made on 16 April1856 between Arthur Hart Guinness aslessor and Anthony Murphy as lessee.

Take notice that Newtownheath

Company Limited (trading as StPatrick’s Athletic FC) intends to submitan application to the county registrar forthe county of the city of Dublin for theacquisition of the freehold interest of theaforesaid properties, and any partyasserting that they hold a superior inter-est in the aforesaid premises (or any ofthem) are called upon to furnish evi-dence of the title to the aforementionedpremises to the below-named solicitorswithin 21 days of the date of this notice.

In default of any such notice beingreceived, Newtownheath CompanyLimited intends to proceed with theapplication before the county registrar atthe end of the 21 days from the date ofthis notice and will apply on 27February2008 to the county registrar for thecounty of the city of Dublin for direc-tions as may be appropriate on the basisthat the person or persons beneficiallyentitled to the superior interest includ-ing the freehold reversion in each of theaforesaid premises are unknown orunascertained.Date: 1 February 2008Signed: Sheehan & Co (solicitors for theapplicant), 1 Clare Street, Dublin 2

In the matter of the Landlord andTenant Acts 1967-1994 and in thematter of the Landlord and Tenant(Ground Rents) (No 2) Act 1978 and inthe matter of the property known asthe plot of ground at Kilmainham,formerly known as 26-27Kilmainham Lane: an application byJohn Ryan of 15 Glenmaroon Road,Palmerstown, Dublin 20Take notice that any person having anyinterest in the freehold estate of the fol-lowing property: all that and those theproperty known as plot of ground atKilmainham formerly known as 26-27Kilmainham Lane, in the city of Dublin,held under an indenture of lease dated24 October 1905 (hereinafter called ‘thelease’) and made between Jane SophiaBeatty of the first part, William JosephBeatty of the second part and RobertSpendlove and Sarah Ann Spendlove ofthe third part for a period of 300 yearsfrom 29 September 1905, subject to ayearly lease of £20 thereby reserved.

Take notice that the applicant, JohnRyan, intends to submit an application tothe county registrar for the county/cityof Dublin for the acquisition of the free-hold interest in the aforesaid properties,and any party asserting that they hold asuperior interest in the aforesaid premis-es (or any of them) are called upon tofurnish evidence of title to the aforemen-tioned premises to the below namedwithin 21 days from the dated of thisnotice.

In default of any such notice beingreceived, the applicant intends to pro-ceed with the application before thecounty registrar at the end of 21 days


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FREE EMPLOYMENT

REGISTERRECRUITMENT

For Law Society members to advertise for all theirlegal staff requirements, not just qualified solicitors.

Log onto the new expanded employment recruitment register onthe members’ area of the Law Society website, www.lawsociety.ie,or contact Trina Murphy, recruitmentadministrator, at the Law Society’sCork office, tel: 021 422 6203 oremail: [email protected]

FREE LOCUM

REGISTERRECRUITMENT

For Law Society members seeking a position as alocum solicitor or seeking to employ a locum solicitor.

Log onto the new self-maintained locum recruitment register on themembers’ area of the Law Society website, www.lawsociety.ie, orcontact Trina Murphy, recruitmentadministrator, at the Law Society’sCork office, tel: 021 422 6203 oremail: [email protected]

from the date of this notice and willapply to the county registrar for thecounty/city of Dublin for directions asmay be appropriate on the basis that theperson or persons beneficially entitledto the superior interest including thefreehold reversion in the aforesaidpremises are unknown or unascertained.Date: 1 February 2008Signed: McGonagle Solicitors (solicitors forthe applicant), 13 Upper Ormond Quay,Dublin 7

In the matter of the Landlord andTenant Acts 1967-1994 and in thematter of the Landlord and Tenant(Ground Rents) (No 2) Act 1978: anapplication by Sheila AngelaO’Byrne, Marianne Clegg, DaviniaWilson, Edward O’Byrne, SheelaghO’Byrne, Daniel O’Byrne, KevinO’Byrne and Clodagh O’Byrne (‘thesaid applicants’)Take notice any person having an inter-est in the freehold estate of the followingproperty: all that and those part of thepremises demised by lease dated 17March 1880 between WilliamFitzwilliam Burton and Robert B Close,one part, and Edward Melia, other part,therein described as “all that and thosepart of the lands of Clondalkin markedtwenty four on the estate map situate inthe barony of Uppercross and county ofDublin containing … twenty six percheslate Irish Plantation measure or there-abouts now lately in the occupation ofJames Donough with the dwellinghousethereto belonging or usually enjoyedtherewith”, and thereunder held for oneyear from 21 September 1879 andthereafter from year to year.

Take notice that the said applicantsintend to submit an application to thecounty registrar for the city of Dublinfor the acquisition of the freehold inter-est in portion of the aforesaid property,and any party or parties asserting that

they hold a superior interest in theaforesaid premises, which may haveformed part of a trust known as theBurton Estate Trust, are called upon tofurnish evidence of title to the afore-mentioned premises to the belownamed within 21 days from the date ofthis notice.

In default of any such notice beingreceived, the said applicants intend toproceed with the application before thecounty registrar at the end of 21 daysfrom the date of this notice and willapply to the county registrar for the cityof Dublin for directions as may beappropriate on the basis that the personor persons beneficially entitled to thesuperior interest including the freeholdreversion in the aforesaid premises areunknown or unascertained. Date: 1 February 2008Signed: Matheson Ormsby Prentice (solici-tors for the applicants), 70 Sir JohnRogersons Quay, Dublin 2; ref:BDO/ck/647475/2

In the matter of the Landlord andTenant Acts 1967-1994 and in thematter of the Landlord and Tenant(Ground Rents) (No 2) Act 1978 and inthe matter of premises situate at 6/7Granby Place in the parish of StMary and city of Dublin: an applica-tion by Christopher Garry andGeraldine GarryTake notice that any person having anyinterest in the freehold estate of, or anysuperior or intermediate interest in, thehereditaments and premises situate at29 Asgard Park in the townland ofHowth, barony of Coolock and countyof Dublin (which said premises heldunder an indenture of lease dated 26July 1974 made between MichaelMurray & Company Limited of the onepart and Christopher Garry of the otherpart for a term of 500 years from 25March 1961), should give notice to the

undersigned solicitors.Take notice that the applicants,

Christopher Garry and Geraldine Garry,intend to apply to the county registrarfor the city of Dublin for the acquisitionof the freehold interest and all interme-diate interests in the above-mentionedproperty, and any party asserting thatthey hold an interest superior to theapplicants in the aforesaid property arecalled upon to furnish evidence of title tosame to the below-named solicitorswithin 21 days from the date hereof.

In default of any such notice beingreceived, the applicants intend to pro-ceed with the application before thecounty registrar at the end of 21 daysfrom the date of this notice and willapply to the county registrar for the cityof Dublin for such directions as may beappropriate on the basis that the personor persons beneficially entitled to suchsuperior interest, including the freeholdreversion, in the aforementioned prop-erty are unknown or unascertained.Date: 1 February 2008Signed: Sheehan & Co (solicitors for theapplicant), 1 Clare Street, Dublin 2

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Gore & Grimes solicitors are seekingto recruit commercial solicitors withexperience in the areas of M&A, pri-vate equity and general commercialmatters. Successful applicants will berequired to advise generally on and todraft commercial agreements, termsand conditions etc. We are seekingstrong individuals with excellent com-munication skills and the necessaryexperience. Please send applications toBrian O’Neill, Gore & Grimes, byemail: [email protected]

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RECRUITMENTNOTICE TO THOSE PLACING RECRUITMENT

ADVERTISEMENTS IN THELAW SOCIETY GAZETTE

Please note that, as and from theAugust/September 2006 issue ofthe Law Society Gazette, NO recruitment advertisementswill be published that include references to years of post-qualification experience (PQE).

The Gazette Editorial Board hastaken this decision based on legaladvice, which indicates that suchreferences may be in breach ofthe Employment Equality Acts1998 and 2004.

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