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Gazette€3.75 March 2008

GazetteL A W S O C I E T Y

INSIDE: HOLY GRAIL OF PARTNERSHIP? • CLOSE GUANTÁNAMO • ELECTRONIC TAGGING • YOUR LETTERS

WINGING IT:Airlines and

passenger rights

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LAW SOCIETY GAZETTE MARCH 2008 CONTENTS

Editor: Mark McDermott. Deputy editor: 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 63.

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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March 08

Volume 102, number 2Subscriptions: €57

GazetteGazetteL A W S O C I E T YOn the coverOver the last 15 years, air travelhas changed beyond allrecognition, especially in Ireland.But Irish consumers now comprise16% of all European complainantsabout passenger treatment. Sowill EU regulations help?

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PIC: GETTY IMAGES

President’s message

News

Comment13 Letters14 Viewpoint: independent immigration appeals process

essential

Analysis18 News feature: reform of Bosnia/Herzegovina’s court

procedures21 News feature: landmark mediation decision: costs

impact?22 Human rights watch: immigration and the rights of

the child 22 One to watch: misleading advertising regulations

People and places

Book reviewPoynings’ Law and the Making of Law in Ireland, 1660–1800

Briefing51 Council report52 Practice notes54 Legislation update: acts passed in 200757 Solicitors Disciplinary Tribunal58 Firstlaw update59 Eurlegal: EU public procurement rules

Professional notices

Recruitment advertising

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LAW SOCIETY GAZETTE MARCH 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: Turbulence aheadAdvances have been made over the last few years in thearea of air passenger rights, but airlines are accused ofexploiting the vagueness of the regulations to minimisetheir obligations. Andrew Fergus fastens his seatbelt

26

Till death us do partAccording to an 1868 report, good marriage law shouldcombine a maximum of simplicity and a maximum ofcertainty. So how does current Irish law measure up?Michael McNamara pops the question

30

Game of tagElectronic monitoring of offenders will be an innovationin Ireland once the relevant provisions are commenced,but Tanya Moeller argues that the impact on the right toprivacy has not been sufficiently considered

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Seen and heardMany practitioners dealing with childcare cases areconcerned that the functions and powers of the guardianad litem are in need of urgent reform. “Won’t somebodyplease think of the children?” asks Katie Dawson

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Stop the pressesNew regulatory structures have added new elements tothe institutional mix in which issues involving the printmedia and the law are discussed. Prof John Horganexplains how the new structures will work

42

Partnership – the Holy Grail?Bringing good people up through the ranks is moreimportant than ever in law firms. But are youngerlawyers as set on the goal of partnership as theirpredecessors? David Rowe hunts for treasure

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FEATURES

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

annual conference, Budapest, 26–30 March • Employment opportunities• The latest CPD courses

… as well as lots of other useful information

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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 MARCH 2008PRESIDENT’S MESSAGE

“We cannotallow bad pressto deflect usfrom thechallenges andopportunitiesthat face theprofession”

This is the time of year when thepresident gets the opportunity to meetextensively with members throughoutthe country at bar association meetingsand other events. This feedback is

essential. Naturally, we hear of the disappointmentand, frankly, anger of colleagues at the actions of thefew. There is also dissatisfaction that solicitors rarelyget public acknowledgement of the excellent workdone by the overwhelming majority to the completesatisfaction of their clients in hundreds of thousandsof transactions every year. Bad press for lawyers isnothing new and has been a phenomenon forcenturies. We cannot allow it to deflect us from thechallenges and opportunities that face the professionat this time. I am delighted, therefore, that theoverwhelming mood at meetings of colleaguesaround the country is positive and progressive andfocused clearly on what lies ahead.

Exciting optionOne such recent meeting was the launch of the East Coast Collaborative Lawyers. This group,comprising solicitors and other professionals, isfollowing the lead of colleagues in Cork and Dublinin providing collaborative justice options for familiesin crisis. While not favoured by all, it nonethelessprovides a new and exciting option, and I amdelighted that solicitor colleagues are taking thelead. I was particularly struck by the fact thatreference was made at the launch to the presidentialmessage in the last Gazette. I was firmly of the viewthat such messages are only read by the author.

The launch also featured a very inspiring addressby Mrs Justice Catherine McGuinness, furtherunderlining the importance of alternative disputeresolution mechanisms.

2008 looks like it will be a red-letter year foralternative dispute resolution. First and foremost,the Law Society will be launching its own arbitrationand mediation schemes and I would stronglyencourage colleagues to support them.

Secondly, there will be an internationalconference on collaborative justice held in Corkfrom 1–4 May, offering Ireland an opportunity toshowcase the talent that is available here toundertake this work, for which there are bothdomestic and international opportunities.

Cothromna féine

Finally, a major international conference oncommercial arbitration is being held in Dublin from8–10 June 2008. The Society is pleased to supportthis conference, which is being brought to Irelandby our colleagues at the Bar.

Rule of Law ProjectIt is also refreshing to note that, notwithstandingany difficulties we have, there is an understandingwithin the profession that the difficultiesexperienced by many of our colleagues abroad aremuch greater. I would particularly like to applaudthe work of the Rule of Law Project initiated byMichael Irvine and Turlough O’Donnell SC. Anysolicitor prepared to become involved and give uptheir time to help lawyers in developing countriesshould contact [email protected].

Finally, it is time to start training for the CalcuttaRun, which will be held on 17 May. This is the run’stenth anniversary and the ambition this year is tobreak the €2-million ceiling in terms of fundsgenerated to date for GOAL’s orphanages in Calcuttaand the Fr Peter McVerry Trust in Dublin.

James MacGuillPresident

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LAW SOCIETY GAZETTE MARCH 2008NEWS

nationwide

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

■ KERRYMatthew Breslin, president ofKerry Law Society, tells me thatthe recent initiative of thePresident of the High Court toroll out non-jury sittingsthroughout the country, and toKerry in particular, has workedvery well. Kerry practitioners arelooking forward to none otherthan the Chief Justice himselfand the President of the HighCourt to preside over furthersittings in May.

In the meantime, there issome concern about thecourthouse in Tralee being underthreat of closure. Localpractitioners are very keen tohold onto their venerablecourthouse.

A seminar in practicemanagement and on theenforceability of prenuptialagreements by Marie Baker SC isplanned. Furthermore, MatthewBreslin is currently puttingtogether plans for an annualconference abroad, with Madridbeing the most likely venue.

■ WEST CORKPresident of the West Cork BarAssociation Richard Barrett isvery pleased with the recentuptake in CPD seminars. In thepipeline are seminars on currentPIAB developments byClonakilty solicitor Jim Brooksand from the land registry ondigital mapping.

■ GALWAYJames Seymour reports that, inthe coming months, CPDseminars are planned on the RoadTraffic Act 2006, recentdevelopments on PIAB, and e-stamping online, which will takeplace on 7 March. On 11 April,the association will hold apractice management seminarand, on 9 May, a family law

conference. All these seminarswill take place in the courthouseand will be free to practitioners.Jarleth McInerney is alsoorganising a sponsored walk inConnemara on 19 April in aid ofthe Crumlin Children’s Hospital.

■ DUBLINThe March CPD seminars willinclude ‘Advising elderly andvulnerable clients’ as well as ‘Thenew Charities Bill 2007’ and afamily law seminar on 13 Marchon mediation.

■ CORKBy all accounts, the recent SLAdinner was a huge success for PatMullins and his colleagues, withover 320 practitioners attending.Guests included President of theLaw Society James McGuill andDonal Eakin, his counterpart inNorthern Ireland.

Of course, the SLA eventwould not be the institution it iswithout the ‘topical song’,presented with style and panacheby Charlie Hennessy and KieranMcCarthy, assisted on piano (but,of course, with no involvementwhatsoever in the lyrics!) by PatDorgan. I am told that nobodywas left unscathed and thegeneral entertainment rolled on

with the Sinatra impressionistbelting out all of the great hitsand an impromptu seisún untildawn.

Pat Mullins advises of aconference on mental health lawin UCC in April and,significantly, the forthcomingEuropean Collaborative LawConference in Fota in May.

■ KILKENNYOwen O’Mahony, president ofthe bar association in Kilkenny, isvery proud of the Marble City’sposition as a High Court venue.The magnificent courthouse isjust about to undergo anoverhaul, which will put it out ofcommission for a couple of years,so that a venue for theNovember sittings of the HighCourt will need to be found. TheCircuit Court currently sits inthe resplendent surroundings ofKilkenny Castle, in the ParadeTower, with stunning views ofthe river and its environs, whilethe District Court is located atthe Glebe House on BarrackStreet.

■ WEXFORDHelen Doyle and her barassociation colleagues held arecent well-attended seminar on

law and the elderly. An upcomingseminar on the complexities ofVAT on property transactions isplanned, as well as a social eventin the coming months.

■ MAYOThe plight of the Ballina DistrictCourt Office continues to be amatter of concern to practitionersin the town. Dermot Hewson hasbeen to the fore in raising theprofile of the issue, both withlocal politicians and otherinterested parties. Circuit JudgePatrick Moran has also lent hissupport and has written directlyto the CEO of the CourtsService, PJ Fitzpatrick, askinghim to reconsider the decision toclose the District Court Office.Dermot tells me that there hasbeen great support from theDistrict Court Office staff, thegardaí, the press and variouscourt users, who shared concernalso on the issue of the proposedtransfer of Charlestown DistrictCourt area to the Tubbercurryarea.

Pat O’Connor advises that theHigh Court judges who presidedat the recent non-jury sittingswere very impressed with thefacilities in Castlebar andindicated that they would like tosee more cases there. Two moresessions will be held early in2008.

■ MIDLANDSCharlie Kelly of the Midland BarAssociation has informed me ofthe forthcoming visit of the LawSociety president and directorgeneral, as well as the upcomingseminars in early April on BERcertificates and compulsory regis-tration and first registration.

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

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Madrid: possible venue for Kerry’s annual conference

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LAW SOCIETY GAZETTE MARCH 2008 NEWS

Have you come acrossaspects of current law in

day-to-day practice that youbelieve are in need of reform,asks Peter Fahy, chairman of theLaw Reform Committee.

Following the establishmentof the Law Reform Committeeten years ago, the Law Societywas able to channel energy into

improving the law and how it ispractised – with great success.The committee has tackled alarge range of issues with a viewto improving the law for bothpractitioners and clients. Itswork is generally focused onwriting substantive reports onareas of law of specific interestto practitioners.

The committee has alreadyproduced major reports thathave identified reforms, such asDomestic Violence (May 1999),Mental Health (July 1999),Nullity of Marriage (October2001), Adoption (April 2000),Charity Law (July 2002),Discriminatory PlanningConditions (March 2005), and

Child Law (March 2006). Thefull text of all committeereports are available online atwww.lawsociety.ie.

The committee has justcompleted a new report,Enforcement of EnvironmentalLaw, which will be publishedshortly, and has also begun areport on divorce law.

The committee is alwaysseeking out new areas forexamination. With that inmind, it is inviting practitionersto submit to it areas of currentIrish law that might beconsidered in need of reform.

Please submit yoursuggestions to: Secretary, LawReform Committee, LawSociety of Ireland, BlackhallPlace, Dublin 7; or by email to:[email protected]. Yoursubmission should include ashort summary of the area oflaw in need of reform and thereasons why you believe reformis necessary or desirable.

Litigation Committeechairman Stuart Gilhooly

recently met with officials fromboth the High Court and theCircuit Court at separatemeetings to discuss matters ofmutual concern.

At a meeting with HighCourt officials, NualaMcLoughlin and Paula Healy, anumber of issues werecanvassed. The most pressingmatter was the requirement fora letter from practitioners inpersonal injury cases wheremore than one respondent isincluded on the authorisationand not all respondents arenamed as defendants. TheCentral Office requires a letterconfirming that the plaintiff isnot proceeding against the

unnamed respondents at thispoint in time (but leaving itopen that they may be joined inthe future).

The Litigation Committee isof the view that this letter isentirely superfluous, but follow-ing a full and frank discussion,the High Court is of the firmview that it is required for self-protection purposes. It, there-fore, will be necessary to providesuch a letter in all such instances.

On a more positive note, itwas agreed that affidavits ofverification in such cases couldbe endorsed on the originalpersonal injuries summons andlodged simultaneously, so longas the contents of the affidavitwere consistent with thispractice.

On a similar note, the HighCourt has agreed that personalinjuries summonses will not berefused because of a minortypographical error on the

PIAB authorisation. This hadbeen occurring and was veryfrustrating for practitioners.Clearly, substantial errors willbe treated differently.

The chairman subsequentlymet with representatives of theCircuit Court. He maderepresentations about thenotification of dates for trial,callovers and the frequency oflists in areas outside Dublin.The Circuit Court has agreedthat, where cases are added tothe list after it appears on thewebsite, parties will be notifiedindividually by email, phone orpost. In addition, they haveagreed that there will be aprioritisation this year forfamily-law cases in most venues,with more court time provided.

Litigation Committee discusses issues with Courts Service

Committee invites law reform submissions

Litigation Committee chairmanStuart Gilhooly

In 2007, it was decided that the Law Society andthe Bar Council should jointly undertake to

enhance the rule of law in countries in transition. A joint committee of the two organisations –

consisting of seven people, including the presidentand chairman (for the time being) of the LawSociety and the Bar Council respectively – wasformed. The committee is chaired by Attorney-General Paul Gallagher.

Approaches have been made to Irish Aid toascertain their support for this initiative. Apositive response has been obtained. Proposalson programmes in various countries are now

being formulated. When prepared, these will bebrought to the joint committee for approval.Once approved, proposals will then be placedbefore Irish Aid to seek appropriate funding.

Any solicitor or barrister may make aproposal, and every solicitor or barrister iswelcome to join the initiative. Many solicitorsand barristers have already undertaken work inoverseas aid. The level of interest in theprofessions has been very high, which is mostheartening. Anybody who is interested inbecoming involved should contact:[email protected] for more information.

Rule of Law Project gets ‘green light’

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Under the provisions of theRegistration of Deeds and

Title Act 2006, the PropertyRegistration Authority (PRA)was established on 4November 2006.

From 18 March 2008, allfees will have to be paid atthe Registry of Deeds. TheRevenue Commissioners’stamp-duty offices in DublinCastle and Cork will no longerstamp the Registry of Deedsregistration fee on memorials(see practice note, p52).

All change at theRegistry of Deeds

The Law Society of Ireland,the Law Society of England

and Wales, the Canadian BarAssociation and the Paris Barhave joined forces in drafting aletter calling for GuantánamoBay to be closed. The fourprofessional bodies have alsocalled for a 21-year-oldCanadian citizen, Omar Khadr,to be repatriated to Canada toface due process underCanadian law. Mr Khadr wasaged 15 when he was arrestedand is the last Westerner beingdetained in Guantánamo Bay.

The letter is being sent toPresident George Bush (who hasthe authority to closeGuantánamo), to CanadianPrime Minister Harper (who cannegotiate repatriation) and to theleaders of the countries of therespective professional bodies,with the hope that such leaderswill try to bring influence to bearon the US and Canada.

‘Immediate closure’The letter calls for “theimmediate closure of the illegalUS prison facility atGuantánamo Bay”.

“Few governmentaloperations in democraticcountries have shown such a

profound disrespect for the ruleof law,” it states. “GuantánamoBay has come to signifyinjustice for some at the handsof the powerful. The rule of law– that everyone, includinggovernments, is subject to thelaw, and that the law itself isneutral and fair – has becomean inconvenient afterthought.”

The combined statement alsodecries the US MilitaryCommissions Act of 2006, theauthority under which thedetainees are held and tried,saying that it undermines therule of law. “The act subjectsindividuals to trial by military

commission solely on the basisof their status as aliens. Ineffect, US citizens are notsubject to its provisions. Theact criminalises certain conductfor the first time and applies thelaw retroactively. It fails to meetthe requirements of the GenevaConvention Relative to theTreatment of Prisoners of War. Itpermits military commissions toconsider coerced statements. Itdenies defence counsel access toevidence that may be essentialto a proper defence on the basisof national security.

“Together, these measures,and many more, constitute

grievous affronts to the rule oflaw. Yet many governmentsremain silent aboutGuantánamo Bay.

“We do not deny that someof those detained atGuantánamo may havecommitted criminal acts. If so,they should be tried by aproperly constituted courtoperating under rules thatguarantee a fair trial. Ifconvicted, they should bepunished accordingly. But wemust not tolerate – nor permitour respective governments totolerate – the continuing denialof the principles underlying therule of law. We have seen theresult recently in Pakistan ofcontinuing further down thisroad…”

The letter concludes: “Thisis no time to be silent. It is timefor us all, includinggovernments, to bring whateverpressure we can to end theinhuman and inhumanetreatment of the Guantánamodetainees, and the violations ofthe principles of the rule of lawthere that have stained theconcept of justice. Six yearsafter it opened, it is time toclose the doors ofGuantánamo.”

As some practitioners maybe aware from recent press

reports, the Bar Council hasrecently issued a ruling to allmembers of the Law Libraryrequiring the provision of feeestimates in relation to all workdone, with limited exceptions.The ruling came into effect on1 March 2008. From that date,all barristers will be required toprovide an estimate of theirfees for any case or transactionas soon as practicable.

At a recent meeting between

representatives of the LawSociety and the Bar Council,the new proposals werediscussed at length. It wasagreed that a number ofpractical issues remained to bedetermined and that the BarCouncil would engageconstructively with a smallsubcommittee of the LawSociety in order to iron out anypotential difficulties that mayarise with this new regime.

Practitioners willunderstand the importance of

this issue from a solicitor’sperspective and, in addition,are reminded of therequirement to ensure theaccuracy of counsel’s fees. Inparticular, all practitioners willbe aware that counsel must beactually present at a courthearing in order to haveentitlement to a refresher fee.It is the obligation of thesolicitor, as well the barrister,to ensure that all fee notessubmitted are accurate in thisrespect.

Bar Council to iron out potentialfee estimate difficulties

Time to close Guantánamo’s doors

Guantánamo Bay: ‘Staining the concept of justice’

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Notice is hereby given that the 144th Annual General Meeting of theSolicitors’ Benevolent Association will be held at the Law Society,

Blackhall Place, Dublin 7, on Monday 21 April 2008 at 12.30pm: • To consider the annual reports and accounts for the year ended

30 November 2007,• To elect directors,• To deal with other matters appropriate to a general meeting.

SBA AGMThe date for the 2nd

European CollaborativePractice Conference, at FotaIsland, Cork, titled ‘Meitheal’,is looming.

Conference participantswill have the opportunity tohear from some of world’smost renowned collaborative

“Unnecessary andunjustified” is the

Law Society’s description of aprovision in a recentlypublished bill that specificallyprovides for courts to awardcosts against lawyerspersonally if their clients’judicial review cases arefound “frivolous orvexatious”.

The Immigrant Council ofIreland has also criticised thisprovision, describing it as“intimidatory”.

The provision is containedin the Immigration, Residenceand Protection Bill 2008, whichwas published by thegovernment at the end ofJanuary.

Law Society criticisms ofthis provision were quoted

The first practising solicitorever to be appointed a

judge of the High Court, MrJustice Michael Peart, sat forthe first time on the SupremeCourt recently. A shortage ofavailable Supreme Courtjudges resulted in his beingchosen from among the 36High Court judges to sit withMr Justice Fennelly and MsJustice Macken to hear a caseon 27 February.

But the question remains –who will be the first solicitor

The Personal InjuriesAssessment Board’s appeal

to the Supreme Court againsta January 2005 judgment ofMr Justice John MacMenaminwas due to commence on 26February. However, becausethere were not sufficientmembers of the court availableto hear the case on that date,the hearing was postponed.

The appeal relates to theHigh Court’s finding thatPIAB’s policy of insisting,regardless of the applicant’swishes, on correspondingdirectly with the applicantwhile copying thecorrespondence to theapplicant’s solicitor was ultravires and, although it was notnecessary to make a finding inthis regard, might wellrepresent a breach of theapplicant’s constitutionalrights.

The original judicial reviewproceedings were commencedby an applicant to PIABnamed Declan O’Brien. TheLaw Society was joined as anamicus curiae in the HighCourt and has been so joined,once again, in the appeal tothe Supreme Court.

Immigration Bill concerns

Ken Murphy: ‘The legal profession stands up for therights of vulnerable people…’

extensively in the media onthe day after the bill’spublication. Director general

Ken Murphy said: “Such aprovision already exists inthe rules of court. Itsinclusion here isunnecessary and unjustified.It seems designed todiscourage vulnerablepeople from fully exercisingtheir right to the protectionof the law.”

He continued, “Standingup for the rights of vuln-erable people, particularlywhere this may beunpopular, is in the besttraditions of the legalprofession.”

The Society hascommunicated directly tothe Minister for Justice, itsconcerns over this issue andits view that the provisionshould be withdrawn.

Solicitor sits onSupreme Court

PIAB appealpostponed

The essentials of team worklawyers. The primarytraining sessions will includeone-hour talks with twohours of training and roleplay each day.

Day two’s plenary sessionwill focus on children in thedivorce process. Seewww.acp.ie for more details.

to be appointed a judge of theSupreme Court? And whenwill that be?

Commercial law firm, O’DonnellSweeney Eversheds, has beenselected as one of the ‘BestCompanies to Work For inIreland’. The prestigious hon-our was announced on 28February by the Minister forEnterprise, Trade andEmployment, Micheál Martin,TD, prior to an awards ceremo-ny in the Crowne Plaza AirportHotel, Dublin. The list of 50companies is selected annuallyby the Great Place to WorkInstitute from more than 4,000eligible organisations in thecountry.

GOOD COMPANY

RETIREMENT TRUST SCHEMEUnit prices: 1 February 2008Managed fund: €5.466724Cash fund: €2.809394Long-bond fund: €1.398473All-equity fund: €1.271143

12 www.lawsociety.ie

LAW SOCIETY GAZETTE MARCH 2008 NEWS

HEALTH ADVICE AND SUPPORT FOR LAWYERS

DON’T BE A DEATHBED CONVERT

In 2003, the North Carolina BarAssociation published a

lifestyle survey based onresearch conducted among itsmembers. It makes interestingreading, not least because whatthe survey establishes is likelyto be mirrored elsewherethroughout the world.

Some of the most thoughtprovoking statistics included: • 56% of lawyers, when

questioned, said that theywould not enter law if theyhad their life over again, norwould they encourage theirchildren to do so,

• 16% of them were havingthree to five alcoholic drinks aday in order to cope with thestress in their lives,

• 16.8% of lawyers were usingprescription medicine to copewith their levels of stress andanxiety,

• 15% of lawyers wereconsidering suicide up totwice a month,

• 36% were taking on morework than they could handle.

It is worth noting that, of lawyerswho sought assistance, theaverage billable hours that theywere expected to complete in ayear was 1,800, with a further258 hours a year of non-billablework, for example, marketing,administration, businessdevelopment, and client care –no wonder they were showingsigns of cracking! The lawyerswho were in the highest need ofassistance also took only twoweeks of holidays a year out ofthe 6.4 weeks they were allowedto take.

Very clear pictureSo, a very clear picture develops– long hours of chargeable work,added to many hours of non-chargeable work devoted to

developing and maintaining thefirm, coupled with only takingone-third of the available holidaytime. End result? Deepunhappiness, coupled withphysical and mental strain orcollapse, leading to a need forpastoral care and assistance.

Senator Paul Tsongas ofMassachusetts once famouslysaid: “Nobody on his deathbedever said, ‘I wish I had spentmore time at the office’.”

Doesn’t that say it all aboutthe work/life balance we shouldall be striving to achieve, but sofrequently fail to attain? Do wehave to suffer some major

physical or psychological setbackbefore we will actually start toput ourselves and our health andwell-being first?

Sceptics, no doubt, think tothemselves that agencies likeLawCare exaggerate theincidence of stress/depression,alcohol abuse, suicide and soon, for the purposes of justifyingits existence. In fact, this is farfrom being the case. Forexample, in 1997 a report waspublished, based on two years ofstatistics from the Canadian BarInsurance Association – one ofthe largest life insurers oflawyers in the world. This report

studied the death claims from 1 December 1994 to 30November 1996. These recordsrevealed that suicide was thethird leading cause of deathamong insured lawyers duringthis two-year period, rankingimmediately after cancer andcardiac arrest. It amounted to11% of deaths that had occurred.

In the general population inCanada and the USA, the rateof suicide is in the range of tento 14 suicide deaths per100,000 of population. Thesuicide deaths identified by thisreport into lawyer deathsworked out at 69 suicide deathsper 100,000 of the population –nearly six times the rate in thegeneral population. The groupidentified as ‘most at risk’included ‘lawyers and judges’aged 48 to 65.

Reason for concernIn 1999, research carried out byJohns Hopkins University foundstatistically significant elevationsof major depressive disorders inonly three of 104 occupations –lawyers topped the list, sufferingfrom major depressive illnessesat a rate of almost four timeshigher than non-lawyers sharingthe same socio-demographictraits.

So you can see the reasonsfor our concern for those in thevarious areas of legal practice.They are genuine, well foundedand not hysterical. Many lawyersneed our help but do notnecessarily know where to turn.

Please stay alert for any suchlawyers among those with whomyou are acquainted – thestatistics indicate that there islikely to be at least one youknow who could benefit frombeing put in touch with LawCare.We are here for you, 365 days ayear.

We begin the first of a series of articles about LawCare and the health services it provides to lawyers, their staff and families in Ireland

ABOUT LAWCARELawCare is an advisory and support service to help

solicitors, their staff and their immediate families to deal with health problems such as depression and addiction, and

related emotional difficulties. The service is free and entirely confidential.

For totally confidential, non-judgemental help, ring freephone

1800 991 801(9am – 7.30pm weekdays and 10am – 4pm

at weekends/bank holidays, 365 days a year. Web: www.lawcare.ie

Email: [email protected]

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LAW SOCIETY GAZETTE MARCH 2008COMMENT

letters

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

‘Good Samaritan’ lawyers help bring home baby Misikir

Press Ombudsman changes appeals timeline

From: Therese O’Loughlin, TeachMhuire, Cleveragh Road, Sligo

Last October, my husband and I and our two young

children were about to embark onan adoption journey to Ethiopia,to bring home their new six-month-old baby sister. Thechildren were busy preparingtheir rooms and making cards,and their bedtime stories were fullof talk about the arrival of theirsister. The children and I spentdays buying little pink clothes andshoes, cleaning cots and buggyand preparing our home for thearrival of this little Ethiopian‘princess’. We were only daysaway from travelling to meet herwhen news broke from theAdoption Board that they hadsuspended adoptions fromEthiopia and that they wereadvising people not to travel untilfurther notice. As you canimagine, we were heartbroken.We pleaded with the AdoptionBoard, telling them we had areferral and were days away fromtravelling, but they weren’t in aposition to lift the suspension.

I cradled my children as theysobbed in my arms for their babysister. We had all our legalpapers and we had been guidedby the Adoption Boardthroughout the whole process –they never led us to believe thatwe might have a problem. Weknew that the orphanage couldnot hold her indefinitely for us. Ifelt so helpless. We had investedso much emotionally andphysically into this adoption andI had put my children throughvaccines. How could I explain tothem that their baby sisterwouldn’t be coming home?

I decided to ring a solicitor Ihad found on the web and whospecialises in adoption – AndrewHealy (Beatty & HealySolicitors) – and I outlined ourcase for him. As this stage, theorphanage had said that theywould hold our daughter for twomore weeks. I forwarded Andrewour papers and he repliedpromptly, telling us that wewould need to get a judicialreview in the High Court.

Andrew made contact with

Peter Finlay SC, who in turncontacted Daniel Simms (juniorcounsel) and, together, theyagreed to take our case forminimum fees. However, whenwe realised the financial diffi-culties involved – particularly ifour case failed – we decided notto proceed. Failure would haveput our family’s entire financialfuture in jeopardy. This was asoul-destroying moment for me.

I replied by email to Andrewexplaining our decision and thereasons for it. Within tenminutes, the phone rang. It wasAndrew, saying he had spokenwith Peter and Daniel, and that

they were prepared to take thecase for no fees. Could this behappening to me – someoneshowing me the hand of kindnessin my darkest hour?

The rest is history. We wentto the High Court, where JudgeSheehan said I was legallyentitled to adopt and, within twoweeks, I was in Ethiopia.

We are now home with ourbeautiful daughter Misikir. Everytime I look at her sleeping face Ithink of those tears I cried forher, those days when I thoughtI’d never get to hold her.Regularly when I recount thestory to a friend in front of thechildren, they always pipe up:“Three kind men in Dublinhelped mammy bring our babysister home.”

I can now live my life in peaceand happiness with my childrenand husband, thanks to Andrew,Peter and Daniel. They willnever know the extent of theirkindness. I wish the whole worldto know how these kind,considerate men helped me andmy family in our hour of need.

From: Professor John Horgan, PressOmbudsman, Dublin 2

Ihave been reviewing ourprocedures in the light of the

experience of the first couple ofmonths’ activity and would liketo notify you of a change thatshould help to expedite mattersgenerally, without affecting theoverall efficiency of ourprocedures.

As originally envisaged,complainants or editors whowanted to appeal a decision bythe Press Ombudsman were tobe given six weeks from the date

of that decision within which tolodge an appeal. This timeline isstated in our original brochure.

However, given that meetingsof the Press Council, where allappeals are initially discussed,take place only once a month,this timeline would involve quiteinordinate delays, to the pointwhere our desire to provideeveryone with a speedyresolution to complaints wouldbe quite frustrated.

In the circumstances, theperiod within which an appealcan be lodged, either by a

complainant or by an editor, willhenceforth be two weeks fromthe date on which the PressOmbudsman’s decision has beenissued. This should help toexpedite matters and should notpresent any great difficulty, giventhat much of the ground willhave been covered already aspart of the conciliation process.This is the same deadline thatapplies to editors’ responses toindividual complaints.

I would also like to reiteratethe importance of confidentialityin relation to any complaint until

all steps of the process, includingany appeal, have beencompleted. There is a simplereason for this, and it is thatfailure to observe confidentiality,particularly where an appealprocess has been invoked but notyet completed, could be seriouslyunfair to an editor, acomplainant, or both.

That said, I would like toexpress my thanks to all for thehigh degree of cooperation we inthis office have experienced fromall concerned since we began ourformal operations on 2 January. G


LAW SOCIETY GAZETTE MARCH 2008 COMMENT

Impartial immigration appeal

In the Programme forGovernment published in

June 2007, the governmentstated that “a fair and strategicimmigration policy is animperative to the sustaining ofa strong economy” andspecifically welcomed “legalimmigrants who come here towork to support Ireland’sdevelopment”, promising to“help them to become full andactive participants in Irish life”.As a step towards this, itundertook to ensure a “visiblyindependent appeals process”.

The establishment of anindependent appealsmechanism to deal withimmigration decisions is theonly way to ensure access to aneffective remedy for migrantsseeking to challenge decisionsaffecting their human rights asprotected under the ECHR, inparticular articles 3(prohibition of torture) and 8(right to family life).

Currently, people seeking tochallenge decisions refusingpermission to remain in thestate or permission to enter thestate – for example, for thepurpose of family reunificationor the preservation of thefamily unit – are effectivelyforced to seek judicial reviewof that decision by the HighCourt instead of accessing amore efficient and cost-effective immigration appealstribunal.

Applications for judicialreview that do not fall withinthe remit of section 5 of theIllegal Immigrants (Trafficking)Act 2000 can currently be madeex parte and the normal rules

regarding time limits apply. Inother words, the Minister forJustice does not need to beinformed in advance of themaking of the application andthe application can be madewithin three months,exceptionally six months, fromthe date of the decision to bechallenged. However, this is setto change with the coming intoforce of new immigrationlegislation introduced inJanuary. If the provisions of theImmigration, Residency andProtection Bill 2008 become law,all decisions taken under theforthcoming legislation willhave to be challenged on

notice to the other party andwithin a strict time limit of 14days from the date on whichthe person concerned wasnotified of the relevantdecision.

Effective remedy?It is of grave concern to thoseseeking to defend the humanrights of migrants and membersof their families that already,even where an application maybe made ex parte and withinextended time limits, access tojustice for migrants is limited,in that the High Court, as partof judicial review proceedings,is not in a position to review

the merits of a case and cannotdeal with questions of fact.Unlike an expert administrativetribunal, the High Court doesnot have the power to alter orvary an administrative decision.

In Chahal v UK ([1997] 23EHRR 413), the EuropeanCourt of Human Rightsobserved that “article 13 [of theECHR] guarantees theavailability at national level of aremedy to enforce thesubstance of the conventionrights and freedoms inwhatever form they mighthappen to be secured in thedomestic legal order”.According to the court, “the

The government may find itself in breach of the ECHR and the Constitution if it fails to live up to itscommitment to provide a visibly independent appeals process for immigrants, writes Hilkka Becker

The European Court of Human Rights, Strasbourg

15www.lawsociety.ie


viewpoint

process essentialeffect of this article is thus torequire the provision of adomestic remedy allowing thecompetent national authorityboth to deal with the substanceof the relevant conventioncomplaint and to grantappropriate relief”.

The court made reference tothe cases of Klass and Others vGermany ([1979-80] 2 EHRR214) and Leander v Sweden([1987] 9 EHRR 433), in whichit had held that article 13 onlyrequired a remedy that was “aseffective as can be” incircumstances where nationalsecurity considerations did notpermit the divulging of certainsensitive information.However, it distinguished thesecases from the case at hand,stating that “it must be bornein mind that these casesconcerned complaints underarticles 8 and 10 of theconvention and that theirexamination required the courtto have regard to the nationalsecurity claims which had beenadvanced by the government”.In relation to Mr Chahal, thecourt held that “therequirement of a remedy whichis ‘as effective as can be’ is notappropriate in respect of acomplaint that a person’sdeportation will expose him orher to a real risk of treatmentin breach of article 3, wherethe issues concerning nationalsecurity are immaterial”.According to the court inChahal, “given the irreversiblenature of the harm that mightoccur if the risk of ill-treatment materialised and theimportance the court attachesto article 3, the notion of aneffective remedy under article13 requires independentscrutiny of the claim that there

exist substantial grounds forfearing a real risk of treatmentcontrary to article 3. Thisscrutiny must be carried outwithout regard to what theperson may have done towarrant expulsion or to anyperceived threat to the nationalsecurity of the expelling state.”

Considering the above, casesregarding the right to familylife as guaranteed by article 8 ofthe ECHR, the right tofreedom of expressionprotected by article 10, andother rights under theconvention may not currentlybe adequately dealt with by wayof judicial review in the HighCourt, at least where nationalsecurity considerations are notan issue limiting the exposureof detailed informationregarding a case and therelevant government’sconsiderations regarding thematter.

It is also clear from the caselaw of the European court thatthe independent scrutiny ofclaims required by article 13 ofthe ECHR does not need to beprovided by a judicial authorityand, in that regard, theestablishment of anindependent ImmigrationAppeals Tribunal, as we haveseen in Britain, may well be themost appropriate way ofsecuring the protection ofmigrants’ rights in Irelandwhile at the same time avoidingunnecessary litigation in theHigh Court, as well as casesgoing to the European court.

Time limitsWhile the ECtHR hasaccepted that judicial reviewcan constitute an effectiveremedy for the purposes ofarticle 13, it has also held that

an unduly short limitationperiod can, in certaincircumstances, give rise to aviolation of article 6, whichprovides that everyone isentitled to a fair and publichearing, within a reasonabletime, by an independent andimpartial tribunal establishedby law.

This is particularly relevantin the context of the newimmigration bill, which, asoutlined above, is set toprovide that everyone whoseeks to challenge a decisionmade pursuant to the newlegislation will have to do so inthe High Court by way ofjudicial review, on notice to theother party and within a stricttime limit of 14 days from thedate of the relevant decision.

In Stubbings v UK ([1997] 23EHRR 213), the ECtHR heldthat, in order to be inaccordance with article 6(1) ofthe ECHR, the limitationsapplied must not “restrict orreduce the access left to theindividual in such a way or tosuch an extent that the veryessence of the right isimpaired”.

It is questionable whetherthe protection of article 6(1) ofthe ECHR does extend toimmigration decisions. Despitethe fact that a decision todeport a person can certainlylead to a violation of rightsprotected under theconvention, the court hasconsistently rejected suchapplications as inadmissible. InMaaouia v France ([2001] 33EHRR 1037), the courtconcluded that “decisionsregarding the entry, stay anddeportation of aliens do notconcern the determination ofan applicant’s civil rights or

obligations or of a criminalcharge against him, within themeaning of article 6(1) of theconvention”.

More recently, however, inJuristic and Collegium Mehrerauv Austria (2006), a case broughtjointly by an applicant for anemployment permit and hisprospective employer,challenging – among otherthings – the fact that there hadbeen no oral hearing before theadministrative court against therefusal of the permit, the courtconcluded that “article 6 of theconvention applies to theproceedings concerning thesecond applicant’s request foran employment permit”. Thecourt confirmed that “article6(1) embodies the ‘right to acourt’, of which the right ofaccess, that is, the right toinstitute proceedings before acourt in civil matters,constitutes one aspect”. It wenton to hold that “while thisright may be subject tolimitations, it must be satisfiedthat the limitations applied donot restrict or reduce theaccess left to the individual insuch a way or to such an extentthat the very essence of theright is impaired. Furthermore,a limitation will not becompatible with article 6(1) ifit does not pursue a legitimateaim and if there is not areasonable relationship ofproportionality between themeans employed and the aimsought to be achieved”.

While it remains to be seenwhether there will be a shift inthe court’s assessment of theapplicability of article 6(1),even with regard to decisionsaffecting family life asprotected under article 8, it cancertainly be argued that the

17www.lawsociety.ie


words “civil rights andobligations” in article 6(1)should be given the broadestpossible meaning, which, inaccordance with their contextand in the light of the objectand purpose of the convention,should extend to all legal rightsand obligations of theindividual whether vis à visother individuals or vis à visthe state.

Costs against legal advisorsThe Immigration Billintroduces the possibility of theHigh Court awarding costsagainst legal representatives incases where the court formsthe opinion that “the groundsput forward for contendingthat an act, decision ordetermination … is invalid orought to be quashed are

frivolous or vexatious” (section118(7)).

This will further limit theaccess of migrants and theirfamily members to effectivejudicial remedies. It is hopedthis provision, if enacted,would only be applied to casesthat had no merit whatsoever,such that they should not havebeen brought before the court.However, in a situation wherethe same provision will notapply to respondents’solicitors, even if they hadsought to defend a decisiontaken pursuant to thelegislation on similarlyfrivolous or vexatious grounds, this provision seemsin breach of basic judicialfairness guaranteed by article40.1 of the Constitution andthe guarantee of equality ofarms as protected by article 6

of the ECHR. The proposed provision

goes beyond what is already inthe Rules of the Superior Courts.Order 99, rule 7, allows for themaking of wasted costs orders,and these apply to both sidesand are clearly designed toprevent solicitors breachingtheir duty to the court. In thewords of Finnegan J in Kennedyv Killeen, “the power of thecourt to make an order underorder 99, rule 7, whether as tocosts as between the solicitorand his own client or an orderthat the solicitor personallybear the costs awarded againsthis own client, depends uponthe solicitor being guilty ofmisconduct in the sense of abreach of his duty to the courtor at least of gross negligencein relation to his duty to thecourt”.

Provisions similar to thoseproposed in section 118(7) and(8) of the Immigration, Residenceand Protection Bill 2008 do notapply in any other context andmay act as a deterrent to legalrepresentatives, particularlywhere they only have 14 daysor less to consider the merits of a case.

The provision of access toeffective remedies regardingimmigration decisions remainsa challenge, and thegovernment may well prove tobe in breach of provisions ofthe ECHR as well as theConstitution by not living upto its own commitment toprovide a “visibly independentappeals process”.

Hilkka Becker is senior solicitorwith the Immigrant Council ofIreland.

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LAW SOCIETY GAZETTE MARCH 2008 ANALYSIS

In May 2007, Irish Aid agreedto fund a project in Bosnia

and Herzegovina (BiH) underthe sponsorship of the country’sHigh Judicial and ProsecutorialCouncil (HJPC). The aim wasto assist an already establishedworking group, comprisinglocal experts, with drafting aBook of Rules on Internal CourtOperations. A team of Irishlawyers (Judge Gerard Griffin,Law Society past presidentMichael Irvine and Joe McArdleBL) travelled to BiH on anumber of occasions toparticipate in the workinggroup sessions.

The draft Book of Rules wascompleted in December 2007and was distributed to all courtsin BiH in January for input andcomments on the draftprovisions. It will be presentedto the HJPC for adoption inMarch, and it is anticipated thatit will be in use by the summer.

Efficient and effectiveThe project was warmlywelcomed and received in BiH.In terms of the judicial reformprocess, the time had come forthe introduction of a book ofrules for courts, which wouldmean that all courts would beforced to adopt standardisedpractices in terms of theiroperation.

In order to establish a fully-functioning judiciary in anycountry, it is essential that thecourts are independent andaccountable prior to theintroduction of initiatives thathave the aim of making thejudicial system more efficientand effective.

Over the last five years, muchhas been done to make thecourts in BiH moreindependent and accountable.

Probably the most importantinitiative undertaken in thisregard was the establishment ofthe HJPC at state level.

Since the conflict of1992–1995, BiH has beendivided into two entities, theFederation of BiH (principallypopulated by Bosnian Muslimsand Croats) and the RepublikaSrpska (principally populated bySerbs). In order to establish theHJPC, each of the entities hadto transfer competences to thestate level of BiH, competencesthat politicians have sincesought to reclaim. Suchattempts have been severelycriticised by the internationalcommunity.

Notwithstanding this, thetime has come for attention tothe establishment of an efficientand effective court system forBiH. The Irish assistance withthe drafting of the Book of Ruleswill ensure that standardisedcourt operations are introducedacross the country. This willmake it easier for the courtsystem to run efficiently, but

will also mean that it is easierfor the HJPC to monitor courtefficiency throughout BiH. Theassistance of the Irish expertsand the Law Society of Irelandhas been invaluable in thisregard, as it has allowedprinciples of European andinternational best practice to bereflected in the final draft of theBook of Rules.

Standardised contentThe Book of Rules currently inexistence in BiH dates back tothe 1970s. Each of the courtsacross the country has adaptedthis Book of Rules to its ownrequirements, so that there area variety of versions in usethroughout the court system inBiH.

BiH’s court system is quitecomplicated, and the variety ofversions of the rules in usefurther adds to that complexity.Currently, there are 48 first-instance courts in BiH (28 inthe Federation of BiH, 19 inRepublika Sprska, and one inthe independent District of

Brako), 16 second-instancecourts (ten in the Federation ofBiH, five in Republika Srpska,and one in Brako) together witha Supreme Court in each of theentities.

The standardised Book ofRules will mean that each ofthese courts will apply the samepractices and policies in termsof a range of issues, including: • Registration, numbering,

assigning and processingcases, together withguidelines for dealing withcase backlogs,

• Use of information andcommunications technologyby the courts, includinginternal policies on the use ofemail, data storage andinternet access,

• Personnel records of courtstaff, including performanceevaluations and attendancerecords,

• Terms of reference for keyadministrative staff in thecourts, such as, for example,the court secretary, who isessentially the manager ofthe court, and

• Organisation andmanagement of courtdepartments.

Irish visitFrom 2–7 December 2007, adelegation from BiH visitedIreland in order to gain aninsight into the Irish legalsystem and how it operates inpractice. The delegationcomprised two first instancejudges, a representative of oneof the entity ministries ofjustice, a representative of theHJPC and the author (aninternational member of theHJPC).

The delegation spent thefirst three days of their visit in

Irish lawyers share knowledgeBosnia and Herzegovina is getting hands-on assistance from Irish lawyers to update courtprocedures. Insider Lynn Sheehan reports on progress

The Council of the HJPC in session, with President of the HJPC BrankoPeric presiding. Mr Peric is a judge of the Court of Bosnia and Herzegovina.Also present is international member of the HJPC, Sven Marius Urke (left)

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LAW SOCIETY GAZETTE MARCH 2008ANALYSIS

with Bosnia and HerzegovinaDublin and visited theAttorney General’s office, theDPP’s office, the Law Societyand the Distillery Building ofthe Law Library. In addition,the delegation visited the LawReform Commission, theCourts Service, the FourCourts and the GlencreeReconciliation Centre. At theFour Courts, the delegationmet with Mr Justice IarflaithO’Neill, Judge PetriaMcDonnell, Judge GerardGriffin and Judge DesmondHogan. The delegation spentthe fourth day viewing thenewly-renovated court buildingin Cork and also met withJudge Patrick Moran. The day

was rounded off by a visit tothe Circuit Court Office andby sitting in on a case athearing.

Main priorityOn 21 January, the currentHigh Representative to BiHmet Javier Solana, EU HighRepresentative for theCommon Foreign and SecurityPolicy, in Brussels and stressedthat the main priority for thisyear was the country’s EUagenda. Earlier in the month,the High Representative hadinformal discussions withrepresentatives from EUmember states in Slovenia andoutlined the prospects for

meeting the conditions forsigning a stabilisation andassociation agreement in thefirst half of 2008. Sloveniacurrently holds the EUpresidency and it will giveparticular attention to theWestern Balkans and theirintegration into the EU.

Projects such as thatfinanced by Irish Aid last yearassist in preparing BiH for EUmembership. They also assistwith the building ofrelationships between Irelandand the Western Balkans. Thejoint committee established bythe Law Society and the BarCouncil (see p8) is anextremely important step and a

welcome initiative in terms ofthe provision of similarassistance to other countries inthe future.

Within such a framework, itis hoped that focused adviceand assistance can be given tocountries that are currentlytackling issues in the context ofthe establishment ofindependent and credible legalsystems and structures.

Lynn Sheehan, solicitor, wasappointed as an internationalmember of the High Judicial andProsecutorial Council of Bosniaand Herzegovina from 2006-2007. She currently works at theLaw Society’s law school in Cork.

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In a recent medical negligencecase, Mr Justice Kevin Feeney

directed that the plaintiff anddefendant should engage inmediation before the trial of theaction due before the court.This significant judgment wasissued in the case of CarmelMcManus v Liam Duffy andinvolved a willing plaintiff andan unwilling defendant in anapplication for a mediationconference.

The judge noted that therewas no case guidance on section15 of the Civil Liability andCourts Act 2004 in thisjurisdiction. He noted that itwas an important section andthat, where one party did notwish to mediate, a court couldexercise its power to compel amediation conference followingan application by either party.

Assisting settlementSection 15 of the 2004 actprovides that, on request of anyparty to a personal injuriesaction, a court may at any timebefore the trial of the actiondirect that the parties meet andattend a mediation conferenceif it considers that the holdingof a meeting would “assist” inreaching a settlement.

The court also consideredthe language used in section 16of the act and noted that“assist” was different from“likely” and implied that therewere benefits to be gained asdistinct from a likelihood ofreaching a settlement.

It was noted that, in theMcManus case, the defendanthad set out its position incorrespondence at an earlystage in the proceedings andhad stated that it was unlikely

that mediation would result insettlement. The particularinterpretation of the word“assist” was important, in thatmediation could determine ifone side’s argument was weak.The word “assist” is a wideterm, and Mr Justice Feeneywas of the view that there wasconsiderable merit in taking anopen view on the matter.

The judge considered theappropriate authorities in theBritish jurisdiction and, inparticular, the decision of theCourt of Appeal in the medicalnegligence case Halsey v MiltonKeynes General, NHS Trust([2004] 1 WLR 3002).

The judge had to decidewhether the parties were trulyunwilling parties. It was hisview that they were not in thiscase, and the fact that thedefendant felt that mediationwas unlikely to succeed did notmean unwillingness to proceed.

He also considered thevarying principles as laid downin Halsey. In McManus, it wasthe judge’s view that mediationwould be of benefit and wouldpotentially assist the experts infully understanding thedifferences in each party’s

arguments. Moreover,mediation might revealpotential strengths andweaknesses of the parties.

England’s experienceCounsel for the plaintiff invitedthe court to consider twoEnglish cases, namely Halseyand Dunnet v Rail Track Plc([2002] 2AER850).

Various aspects of thesecases, as they related to theMcManus case, were considered,including the nature of thedispute, the merits of the case,whether other settlementmethods had been attempted,and the cost of mediationrelated to the likely costs of theaction itself, delays in seekingmediation and the likely successof the mediation.

In Halsey, the Court ofAppeal held that the burden tosatisfy the court that mediationhad no reasonable prospect ofsuccess should not be on theobjecting party. Thefundamental question waswhether it could be shown by aproposing party that theobjecting party unreasonablyrefused to agree to mediation.The court judged that a fairer

balance would be struck if theburden were placed on theproposing party to show thatthere was a reasonable prospectthat the mediation would havebeen successful.

Mr Justice Feeney consideredthe arguments in Halsey, butdirected that, in thisjurisdiction, whether mediationhad a reasonable prospect ofsuccess should be interpreted asmeaning whether the mediationwas likely to “assist”.

Implications for costsIt remains to be seen how thecourts will interpret theprovisions of section 16(3) ofthe 2004 act. This sectionprovides that, at the conclusionof a personal injuries action, acourt may, having heardsubmissions, make an orderdirecting that if a party failed tocomply with the directionunder section 15(1) to attend amediation conference, thatparty should pay the costs ofthe action, or such part of thecosts of the action that thecourt directs should be incurredafter giving the direction undersection 15.

The issue of costs may not bea major factor in low monetary,run-of-the-mill cases. However,in significant High Court casesinvolving personal injuries ormedical negligence, a plaintiffcan make a cogent argumentpursuant to the provisions ofsection 16(2) that a recalcitrantdefendant, refusing to engage ina mediation conference, shouldface the appropriate sanction incosts.

Gavan Carty is commercialpartner at Kent Carty Solicitors.

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Mediation before a court action can assist in settlements and is now being encouragedby the courts, writes Gavan Carty

Landmark mediation decisionwill impact on costs

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LAW SOCIETY GAZETTE MARCH 2008 ANALYSIS

ONE TO WATCH: NEW LEGISLATIONEuropean Communities(Misleading and ComparativeMarketing Communications)Regulations 2007, SI no 744 of2007

These new regulations onmisleading and comparativemarketing communications haveexpanded the scope of unfaircompetition law in Ireland. Theregulations seek to protecttraders against misleadingmarketing communications andthe unfair consequences thereof.They also prohibit comparativemarketing communications in

certain circumstances. Theregulations will be influential inpreventing unfair competition andwill provide traders with anadditional cause of action incases of passing off andtrademark infringement.

The regulations perform athreefold function: • Supplementing the Consumer

Protection Act 2007,• Revoking the Misleading

Advertising Regulations 1988,and

• Implementing the Misleadingand Comparative AdvertisingDirective (2006/114EC).

DefinitionsA comparative marketingcommunication is defined as anyform of representation made by atrader that explicitly or byimplication identifies a competitorof the trader or a product offeredby such a competitor. Thedefinition of ‘representation’ isvery broad and includes any oral,written, visual, descriptive orother representation by a trader,including any commercialcommunication, marketing oradvertising and any term or formof a contract, notice or otherdocument used or relied on by a

trader in order to promote thesupply of a product. Thisdefinition has the potential tocover a much broader range ofcircumstances than thatenvisaged by the originaldirective, providing a much higherlevel of protection to tradersagainst unfair competition.

ProhibitionsThe regulations prohibit two typesof commercial practice:• Misleading marketing

communications, and• Certain prohibited comparative

marketing communications.

The decision in Bode vMinister for Justice, Equality

and Law Reform (unreported,[2007] IESC 62) displays anumber of anomalies in Irishlaw in relation to the status ofparents of Irish-born children.The decision focused inparticular on the Irish BornChild Scheme 2005 (IBC/05Scheme) and the balance to bestruck between the right of theexecutive to controlimmigration, and the rights ofthe child to family and privatelife under the Constitution andunder the European Conventionon Human Rights.

The Supreme Court held thatthe decision-making powers ofthe executive were not subject toreview by the courts, where thedecision does not impact on theapplicant or on theirconstitutional and conventionrights. Secondly, in making suchdecisions, the executive does nothave to consider the rights of the

Immigration decisions andA recent Supreme Court decision raises very significant issues in relation to the interactionbetween human rights and the power of the state, writes Elaine Dewhurst

Irish citizen child who may besubstantially affected by thatdecision, as such considerationscan be taken into account in thestatutory provisions surroundingdeportation. Thirdly, in makingadministrative decisions, theexecutive is under no obligationto assist an applicant inremedying a defect in theirapplication once the closing datefor applications has expired.Finally, the court held that thereis no stand-alone right to applyto the minister for residency andthat statutory procedures underthe Immigration Act already existto adequately examine the rightsof the applicant under theConstitution and theconvention.

The facts in BodeThe case involved an applicationby a child (an Irish-born citizen)and her parents to review thedecision of the minister to refusepermission to the child’s father

(a foreign national) to reside inthe state. The decision had beenmade under the IBC/05 Scheme,an administrative scheme set upby the minister to allow parentsof children born in the statebefore 1 January 2005 to claimresidency on the basis of theirIrish-born child. The schemeprovided that the parent mustprovide evidence that they havemet certain conditions, includingthat they have been in continuousresidence in the state. The fatherin Bode had been refusedresidency on the basis that he hadnot been continuously resident inthe state.

Executive decisions The Supreme Court held that, asthe minister’s decision did nothave any effect on the applicant,the decision was not subject toreview by the courts. This is instark contrast to the opinion ofMs Justice Finlay Geoghegan inthe High Court, who held that,

where the executive by anadministrative act takes adecision that affects anindividual and it is alleged thatsuch legislation or decision iscontrary to constitutional orlegally-protected rights of theindividual, it is a matter for thecourts to hear and determinethat dispute.

Denham J in the SupremeCourt noted that the state hasthe power to control the entry,residency, and exit of foreignnationals. This power is anaspect of the executive powerexercised by the minister onbehalf of the state. Thisinherent power includes theright to establish an ex gratiascheme such as the IBC/05scheme, which was establishedas a measure to assist certainnon-nationals. The court heldthat the effect of a refusal by theminister did not impact on theapplicant, as the applicantwould be in the same position

23www.lawsociety.ie


human rights watch

the trader’s motive for thecommercial practice; the natureof the trader’s commercialpractice and the legal rights ofthe trader to whom the productis supplied, and

• By reason of its deceptivenature, it is likely to affect thetrader’s economic behaviour orfor any reason it injures or islikely to injure a competitor.

Prohibited comparativemarketing communicationsA comparative marketingcommunication will be prohibitedif it:

• Is misleading as described inregulation 3 (as describedabove),

• Is misleading under sections43-46 of the ConsumerProtection Act 2007,

• Does not compare productsmeeting the same needs orintended for the samepurpose,

• Does not objectively compareone or more material, relevant,verifiable and representativefeatures, which may includeprice,

• Discredits or denigrates thetrademarks, trade names,

other distinguishing marks,products, activities, orcircumstances of a competitor,

• For products with designationof origin, does not relate toproducts in each case with thesame designation,

• Takes unfair advantage of thereputation of a trademark,trade name, or otherdistinguished marks of acompetitor or of thedesignation of origin of acompetitor’s products,

• Presents goods or services asimitations or replicas of goodsor services bearing a

Misleading marketingcommunicationsA marketing communication willbe misleading if it in any way(including in its presentation):• Deceives, or is likely to

deceive, the trader to whom itis addressed or whom itreaches in relation to anumber of factors, including,among others, the existence ornature of the product; the maincharacteristics of the product;the price of the product; theneed for any part replacement,servicing or repair; the extentof the trader’s commitment;

the rights of the childas they had been prior to theirapplication. They were stillentitled to have the ministerconsider their constitutional andconvention rights understatutory deportationproceedings.

Constitutional rightsThe assertion that the ministerin the IBC/05 Scheme shouldhave considered theconstitutional and conventionrights of the applicant was,according to the SupremeCourt, misconceived. Onceagain, this conflicts with theHigh Court decision, where MsJustice Finlay Geogheganconsidered the rights of thechild under the Constitutionand convention to be relevantissues under the scheme. Thecitizen child is central to thescheme. The High Court heldthat the fact that the schemewas addressed only to parents ofcitizen children distinguished itfundamentally from a schemeaddressed to non-nationals withno such citizen family link, and

gave rise to very differentconsiderations and obligationsfor the respondent.

The Supreme Court did notagree. The IBC/05 Scheme wasan administrative scheme withvery clear criteria. Thesecriteria were applied to theapplicant, and he failed to meetthe criteria. As the applicants to

the scheme were left in exactlythe same position both beforeand after the scheme, there wasno interference with their con-stitutional or convention rights.The fact that the applicantfailed in the scheme does notmean that his constitutional orconvention rights would neverbe considered. The scheme is

separate to the functions of theminister under the ImmigrationAct 1999, as amended, inrelation to deportation. Inmaking a deportation order, theminister must comply with theImmigration Act and, inparticular, section 3, which liststhe criteria to be considered bythe minister in decidingwhether to make a deportationorder. Under the case law, theminister is required to take intoaccount constitutional andconvention rights at this stage.Therefore, to enforce suchconsiderations during theIBC/05 Scheme was notnecessary or appropriate.

Unfair proceduresIn the High Court, Ms JusticeFinlay Geoghegan held thatthere had been unfairprocedures under the scheme.The applicant in this case hadnot received a letter informinghim of the omission of certaindocuments in his application andgiving him time to reply, whichother applicants under the

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25www.lawsociety.ie


scheme had received. Theminister’s omission was unfair tothe applicant in this case.

The Supreme Court held thatthere was no obligation on theminister to send a letter to theapplicant informing him of theomission and giving him time toreply. The minister was merelyrequired to consider theapplication within the ambit ofthe scheme. As the applicantwould be in the same positionboth before and after theminister’s decision, there were noserious consequences arisingfrom the refusal. In such cases,the minister was not actingunfairly in refusing to consideradditional material after theclosing date.

Right to applyThe Supreme Court consideredthat there was no right to make astand-alone application forresidence to the minister. It heldthat the appropriate processwithin which to consider issuesrelating to constitutional orconvention rights was undersection 3 of the Immigration Act1999 relating to deportation.There is provision in the act foran application to revoke adeportation order. The applicantcould at this stage notify theminister of any alteredcircumstances since the making

of the deportation order, such asthe birth of an Irish-born child.The minister would then beunder a duty to consider the newinformation to determinewhether to revoke thedeportation order. As there is astatutory process in place, there isno need for further procedures toallow an applicant to make astand-alone application forresidency.

Questions raisedThe Supreme Court decisionraises a number of questions inrelation to the status of parents ofIrish-born children in particular,and administrative schemes ingeneral. Firstly, to hold that thedecision-making power of theexecutive is not subject to reviewwhere there is no impact on theapplicant presupposes that therewas no effect on theconstitutional or conventionrights of the applicant in the case.The Supreme Court based thisassertion on the fact that theapplicant would have theirconstitutional and conventionrights considered at a later dateunder deportation proceedings.However, there is no guaranteethat the state would takedeportation proceedings againstthe applicant. In the High Court,it was found that there weresignificant consequences for the

applicant of a refusal by theminister under the IBC/05Scheme. Most significantly, theapplicant’s status was “in limbo”pending deportation proceedings.They had no right or entitlementas an individual to be in the stateand, importantly, they are notallowed to work.

Secondly, the Supreme Courtdid not take account of the rightsof the child who was an applicantin the proceedings and whowould also be affected by therefusal of the minister. The HighCourt was of the opinion that theineligibility of the applicant towork affected the ability of theapplicant to provide for thecitizen child and to rear andeducate the child with due regardfor their welfare. The grant ofresidency to the parent of theIrish-born child is of immediatebenefit to the life of the citizenchild.

Thirdly, a recent decision ofthe European Court of HumanRights, Liu and Liu v Russia,confirms the fact that article 8of the convention imposes apositive obligation on the statein immigration cases to ensurethat the enjoyment of rights is“practical and effective”. Thechild in this case is of such anage that their effective exerciseof their right to a private life inthe state is dependent on their

parents’ presence in the stateand their parents’ ability toprovide for them by workingand creating a stableenvironment in which the childmay develop. A balance betweenthe interests of the child and thecommunity must be considered,but this would necessarilyinvolve the respondent in aconsideration of the rights ofthe child. The failure of therespondent to do that in thiscase constituted an interferencewith the right to private lifeunder article 8, for which therewas no justification.

An application has been filedin the European Court ofHuman Rights in this case and adecision on admissibility is beingconsidered. It is presumed thatthe applicants will rely on articles8 and 14 of the convention. Itwill be interesting to see how theEuropean Court of HumanRights will deal with this delicatebalance between the right of thestate to control immigration andthe rights of the applicant andchild to family and private life. Itis hoped that the decision, ifadmitted, will finally confirm thestatus of Irish-born children andtheir parents in Ireland.

Elaine Dewhurst is the Law Society’sparliamentary and law reformexecutive.

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protected trademark or tradename, or

• Creates confusion amongtraders (i) between the traderwho made the comparativemarketing communication anda competitor or (ii) betweenthe trademarks, trade names,other distinguished marks,goods or services of the traderwho made the comparativemarketing communication andthose of a competitor.

RemediesThe trader or other person maymake an application to the Circuit

or High Court for an orderprohibiting the trader fromengaging in or continuing toengage in a misleading marketingcommunication or a prohibitedmarketing communication.

The court may, after aconsideration of all the interestsinvolved, including the publicinterest, make such an orderwithout proof of any actual lossor damage on the part of thetrader against whom the order issought or any intention ornegligence on the part of thetrader against whom the order issought.

The court may order that thetrader:• Desist from engaging in

misleading marketingcommunications or prohibitedmarketing communications,

• Publish a corrective statement,at the trader’s own expenseand in any manner that thecourt considers appropriate,

• Comply with other terms andconditions that the courtconsiders appropriate. There isno provision for damagesmade in the regulations, butthis may well fall under thiscategory.

Where such prohibited conduct ispromoted by a code of practice or itscode owner, a trader or other personmay apply to the Circuit Court orHigh Court for an order prohibitingthe code owner from such promotionor requiring the code owner towithdraw or amend the code, as thecourt considers necessary toprevent such promotion. The courtis free to impose any terms andconditions that it considersappropriate on the code owner.

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

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LAW SOCIETY GAZETTE MARCH 2008 COVER STORY

The airline industry has changed beyondall recognition in Europe over the past15 years, nowhere more so than inIreland. The EU-driven liberalisation ofthe marketplace, particularly in

loosening the grip of the flag carriers, has led to anexplosion of new entrants into the market. Thisproliferation of new airlines has led to fiercecompetition within the sector, resulting in ever-lower prices and ever more people choosing totravel by air. An unintended, though perhapsunsurprising, consequence of this increasinglycompetitive environment has been the steadilyworsening industrial relations between airlinemanagement and staff, leading to a rise in strikeaction. Recently, passengers have also had tocontend with increased security measures andthreats, often leading to delays and cancellations.Fortunately, the protections afforded to passengershave also undergone changes over the last numberof years. Consumers are principally protected by ECRegulation 261/2004, which establishes commonrules on compensation and assistance to airlinepassengers when denied boarding or when a flight isdelayed or cancelled. This protection issupplemented by the Montreal Convention, aninternational treaty to which the EU accededconcerning, among other things, the liability of aircarriers in the event of delays.

Those magnificent menThe regulation entered into force on 17 February2005. It details the type of assistance that must beoffered to passengers in the event of a delay,cancellation, denied boarding or downgrading. Theregulation is designed to reduce these problems andto introduce standardised levels of compensation andassistance for affected passengers. It applies to allpassengers departing from an airport in a memberstate and also to passengers departing from anairport in a third country to a member state on aEuropean Community carrier, unless they havealready received such assistance as required by the

Great advances have been made over the last few years in the area of air passenger rights, but

airlines are accused of exploiting the vagueness of the regulations to minimise their obligations.

Andrew Fergus fastens his seatbelt

laws of that third country. A national enforcementbody is to be set up in each member state to ensurecompliance by the airlines.

The aviatorCompensation payments are only to be made in theevent of a passenger being involuntarily deniedboarding, or when a flight is cancelled and theconsumer is not given adequate warning and offeredrerouting. However, the air carrier is not obliged topay this compensation if the cancellation is causedby ‘extraordinary circumstances’ that could not havebeen avoided, even if all reasonable measures hadbeen taken. ‘Extraordinary circumstances’ arenowhere defined in the regulation, but recital 14 ofthe preamble sets out a non-exhaustive list ofexamples of such circumstances. These includepolitical instability, unsafe meteorologicalconditions, security risks, unexpected aircraftshortcomings and strikes affecting the operation ofthe air carrier. Air traffic control decisions out of thehands of the airlines that lead to cancellations anddelays despite any reasonable measures that could betaken also constitute an ‘extraordinary circumstance’.

The only other guidance on this issue comes fromthe opinion of Advocate General Sharpston in SAS vKramme, where he said that, for an aircraft’swithdrawal for technical reasons to constitute anextraordinary circumstance, both the technicalproblem and the unavailability of a replacementaircraft must be extraordinary in the light of pastexperience. In other words, the problem must beone that does not typically occur on that type ofairplane or has not previously occurred on theparticular aircraft in question. Whether theunavailability of a replacement is extraordinary willdepend on the extent to which this could have beenforeseen by an air carrier making reasonableprovision, in the light of past experience, for thereplacement of aircraft withdrawn from operation asa result of technical problems. While the AG’sopinion is not binding, the court follows it in thevast majority of cases.

TURBULENCE

• Protecting rightsof air passengers

• Compensationand assistance

• Hostile reactionof airlines

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LAW SOCIETY GAZETTE MARCH 2008COVER STORY

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LAW SOCIETY GAZETTE MARCH 2008 COVER STORY

The compensation levels to be paid by the airlineare set out in article 7 of the regulation and rangefrom €250 to €600, depending on the length of theflight. This compensation may be reduced by 50%in the event that passengers are offeredrerouting to the final destination and theyarrive within a set time of their originalarrival time.

Memphis belleThe level of assistance to berendered under theregulation is set outin article 8, ‘theright toreimbursementor rerouting’,and article 9, ‘theright to care’.

Where article 8 applies, that is, in thecase of cancellation or denied boarding,passengers are to be offered a choicebetween the reimbursement of anyunused portion of their tickettogether with a return flight tothe point of departure at theearliest opportunity, or reroutingto the final destination undercomparable transport conditionsat the earliest opportunity or atthe passenger’s convenience.Article 8 only applies with regard todelay where it is more than fivehours, and then passengers are onlyentitled to the reimbursement andreturn flight element.

Article 9 is the other limb ofassistance, the right to care. This help isto be offered to passengers whose flightsare cancelled, delayed or who areinvoluntarily denied boarding. It statesthat passengers shall be offered free mealsand refreshments in reasonable relation tothe waiting time. It also stipulates that,where a stay of one or more nights isnecessary, hotel accommodation and transfersmust be provided. Passengers are also to beoffered telecommunications facilities free ofcharge, for example, access to telephonecalls, faxes or emails.

Executive decisionThe Convention for the Unification of Certain Rules forInternational Carriage by Air was signed in Montrealon 28 May 1999. The EU has acceded to theconvention and it became part of European law on28 June 2004. The convention was incorporatedinto Irish law by the Air Transport and Navigation(International Conventions) Act 2004. It updates andreplaces the Warsaw Convention. Montreal has no

direct relationship with Regulation 261/2004, butdoes supplement its protections. The conventionapplies to “all international carriage of persons,baggage or cargo by aircraft for reward. It applies

equally to gratuitous carriage by aircraftperformed by an air transport undertaking.”

While it does not specifically covercancellations, under article 19, an aircarrier is liable for damage caused by

flight delays unless it can prove it tookall reasonable measures or it wasimpossible to do so. In the case of

damage caused by delay, article22 limits the liability of air

carriers to 4,150 SpecialDrawing Rights (€4,565),

unless the act causingdamage was

intentional orreckless. Article 29goes on to say thatany action for

damages in thecarriage of passengers,

however founded, can onlybe brought subject to the

conditions and limits of liability setout in the convention.

Montreal also addresses the issue ofjurisdiction. Insofar as it concerns the

subject matter of this article, an actionfor damage must be brought, at the

option of the plaintiff, in the territory ofone of the states party to the convention,

either before the court of the domicile ofthe carrier or of its principal place ofbusiness, or where it has a place ofbusiness through which the contract hasbeen made, or before the court at theplace of destination. This seems to be atvariance with provisions of European law,principally Regulation 44/2001 onjurisdiction, which allows a consumer tobring proceedings against a party in thecourts where the consumer is domiciled.However, it also stipulates in article 71 that“this regulation shall not affect anyconventions to which the member statesare parties and which in relation toparticular matters, govern jurisdiction”. Inany event, the EU is bound by such an

international treaty by article 300(7) EC, andEuropean Court of Justice (ECJ) case law in thisarea has made it clear that such treaties prevail overany provisions of secondary community law.Therefore, a plaintiff taking a case to enforceMontreal Convention rights may not be able to takethat case in his home country. This could lead to thesituation where a passenger suing to enforce rightsunder both the regulation and the convention may

“The courtpointed outthat delay,cancellationsand deniedboarding cancause twotypes ofdamage”

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LAW SOCIETY GAZETTE MARCH 2008COVER STORY

have to bring two separate cases in two differentjurisdictions. The impact of this anomaly on Irishconsumers is slightly mitigated by the dominance ofRyanair and Aer Lingus in the Irish aviation market.

Battle of BritainThe regulation received a hostile reception from theairline industry: the validity of the Britishimplementing rules was challenged by means of ajudicial review in the English High Court. Thecourt referred a number of questions on theregulation to the ECJ. The Grand Chamber of theECJ delivered its judgment on these questions on 10January 2006 in IATA v Department of Transport.Essentially, the airlines argued that articles 5, 6 and7, that is, those headed ‘delay’, ‘cancellation’ and‘denied boarding’, were inconsistent with the coreEuropean principles of legal certainty andproportionality, and that they were not supported byany adequate reasoning. The airlines also assertedthat the regulation was inconsistent with theMontreal Convention.

The court rejected all of these arguments andupheld the validity of the regulation. The courtstated that the articles were sufficiently precise andclear to be valid. The issue of inconsistency with theMontreal Convention was raised on the basis of apurported conflict between articles 19, 22 and 29 ofthe convention and the regulation regarding theliability of the carrier and the extent ofcompensation for damage. The court pointed outthat delay, cancellations and denied boarding cancause two types of damage. Firstly, there is the“damage that is identical for every passenger, redressfor which may take the form of standardised andimmediate assistance, for example meals oraccommodation”. Secondly, there are individualdamages suffered by a passenger that are inherent inthat person’s reason for travelling, which requires acase-by-case assessment. The court felt that the

Montreal Convention only applied to the latter type ofdamage and the community act to the former, andthus there was no inconsistency.

Snakes on a planeGreat advances have been made over the lastnumber of years in the realm of air passenger rights.The introduction of Regulation 261/2004 and theaccession of the EU to the Montreal Convention haveplaced a greater onus on airlines to respect the rightsof their customers. They have also levelled theplaying field somewhat for passengers taking on theairlines. However, the evidence suggests that airlinecompliance with these measures has beenincomplete at best. The airlines stand accused ofexploiting the vagueness of the regulation withrespect to definitions in order to minimise theirobligations, often through an over-zealous use of the‘extraordinary circumstances’ defence and definingeffective cancellations as delays. It seems that manyairlines have yet to adapt to this new landscape ofpassenger rights and continue to operate as of old.Irish consumers have been disproportionately hit,comprising 16% of all complaints across Europe,while complaints against Irish carriers are 24% ofthe total, according to the European ConsumerCentre Network’s 2006 report. These numbersrepresent a significant jump on those of a yearpreviously.

In the absence of an alternative dispute resolutionprocedure in Ireland, many consumers whocomplain about their treatment are left with nooption but to go to court. Claims related to delay,cancellation or denied boarding would be dealt withas an ordinary breach of contract claims. Whilemany consumers can avail of the small claimsprocedure, other cases will belong in the District orCircuit Courts. The recent high-profile industrialrelations problems within the airline industry andthe problems that can follow in terms ofcancellations and delays, coupled with a growingawareness on the part of consumers of their rights,make it likely that we shall see many more suchcases in the coming months.

Andrew Fergus is a practising barrister.

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Cases:• Case C-396/06, Kramme v SAS, opinion of AG

Sharpston, 27 September 2007• IATA v Department of Transport (Britain) [2006] 2

CMLR 20

Legislation:• Air Transport and Navigation (International

Conventions) Act 2004• Convention for the Unification of Certain Rules for

International Carriage by Air (MontrealConvention)

• EC Regulation 261/2004• Regulation 44/2001 on jurisdiction• Warsaw Convention

LOOK IT UP

“Irishconsumershave beendisproportion-ately hit,comprising16% of allcomplaintsacross Europe,whilecomplaintsagainst Irishcarriers are24% of thetotal”

Customer servicewith a smile


LAW SOCIETY GAZETTE MARCH 2008 MARRIAGE LAW

If the desirable criteria for good marriage laware indeed maximums of simplicity andcertainty, then it is fair to say that thecommencement of part 6 of the CivilRegistration Act 2004 on 5 November 2007

considerably simplifies the law relating to marriagein Ireland, but not without uncertainties.

Under section 46(1)(a)(i) of the 2004 act, bothparties are required to give notice in writing to theregistrar not less than three months prior to the dateof the marriage.

An exemption from this requirement may beobtained from the High Court or the Circuit FamilyCourt, to be “exercised by a judge of the circuit inwhich either of the parties to the intended marriageconcerned ordinarily resides or carries on anyprofession, business or occupation or where theplace at which the marriage concerned is intended tobe solemnised is situate”.

Similar provisions for exemptions were introducedby the Family Law Act 1995. However, in asignificant number of cases, exemptions were

DEATHTILL

“A good general marriage law ought to embrace the maximum of simplicity and the maximum of

certainty,” declared the 1868 Report of the Royal Commission on the Laws of Marriage. So how

does current Irish law measure up? Michael McNamara pops the question

Impediments to marriage are listed in section 2(2)of the act: • The marriage would be void by virtue of the

Marriage Act 1835, as amended by the Marriage(Prohibited Degrees of Relationship) Acts 1907 and1921,

• At least one of the parties to the marriage isalready married,

• At least one of the parties to the intendedmarriage will be under the age of 18 years on thedate of solemnisation of the intended marriageand an exemption from the application of section31(1)(a) of the Family Law Act 1995 in relation tothe marriage was not granted under section 33 ofthat act,

• The marriage would be void by virtue of theMarriage of Lunatics Act 1811, or

• Both parties are of the same sex.

Thus the 2004 act introduced for the first time intothe Irish Statute Book the common law requirementthat marriage be between a man and a woman, and

obtained from judges not fitting the descriptionoutlined in the act, and thus the exemptions wereinvalid for want of jurisdiction. The Family Law(Miscellaneous Provisions) Act 1997 was introduced toremedy this. However, as the 1997 act refersspecifically to the 1995 act, the relevant provisions ofwhich have been repealed by the Civil RegistrationAct, it would not appear that this remedyingprovision has survived the commencement of thenew law.

King of QueensIn all cases, even where an exemption to the three-month notification requirement is granted by theappropriate court, the couple is required to attend ata registrar’s office not less than five days before thedate of the wedding to complete the remaining civilpreliminaries, that is, sign a declaration that there isno impediment to the marriage and present otherevidence as required by the registrar.

the impediment of bigamy. In the years between the law’s enactment and the

commencement of part 6, the statutory prohibitionon a marriage between a woman and the brother ofher former husband during the lifetime of thatformer husband – contained in the Deceased Wife’sSister’s Marriage Act 1907 – was found to be anunjustified restriction on the constitutional right tomarry by Laffoy J in O’Shea and O’Shea v Ireland.

How I met your motherOnce the civil preliminaries have been completed tothe satisfaction of the registrar, he or she shallcomplete a marriage registration form, valid for sixmonths, in relation to the intended marriage,without which it cannot be solemnised.

The marriage registration form, signed by each ofthe parties to the marriage, the two witnesses to themarriage, and the person who solemnised themarriage, must be returned to the registrar within a

• Notificationrequirements

• Solemnisers ofmarriages

• Places and times• Canon law

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LAW SOCIETY GAZETTE MARCH 2008MARRIAGE LAW

US DO PARTmonth. Whereas previously it was the responsibilityof solemniser of the marriage to do so, it is now theresponsibility of the parties to the marriage toreturn the form.

Married, with childrenThe 2004 act replaces the previous and variedformalities for solemnisation of marriage byCatholic priests, Church of Ireland clergy,Presbyterian ministers, solemnisers of churchbuildings used for public worship and registered byAn tArd-Chláraitheoir, appointed registrars ofmarriage, and the registration of marriages byregistering officers of the Religious Society ofFriends and secretaries of synagogues in respect ofJewish marriages, described in Shatter’s Family Lawas “complex and obscure, being contained in alabyrinth of statutes stretching from 1844 to 1972”.

Instead, part 6 of the 2004 act provides for aregister of solemnisers with the exclusive right to

solemnise a marriage, but only where the followingrequirements, declared to be substantiverequirements for marriage, are met:• Both parties to the marriage are present,• Two persons professing to be 18 years or over are

present as witnesses,• The place where the solemnisation takes place is

open to the public,• The solemniser is satisfied that the parties to the

marriage understand the nature of the marriageceremony and the declarations made by theparties to the marriage in the presence of eachother, the registered solemniser who issolemnising the marriage, and the two witnessesto the solemnisation, to the effect that he or shedoes not know of any impediment to themarriage, and to the effect that they accept eachother as husband and wife, and

• The form of the ceremony has been approved byAn tArd-Chláraitheoir, includes and is in no way

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LAW SOCIETY GAZETTE MARCH 2008 MARRIAGE LAW

inconsistent with the declarations by the parties,and, in the case of a registered solemniser who isnot a registrar, is recognised by the religious bodyof which he or she is a member.

‘Religious body’ is defined in section 45 as “anorganised group of people, members of which meetregularly for common religious worship”. Theapplication of this requirement of common religiousworship may produce problematic effects, as it maypossibly be contrary to the proscription ofdiscrimination based on the ground of religiousprofession, belief or status contained in theConstitution and the inclusive definition of religionadopted by the courts in cases such as Quinn’sSupermarket v Attorney General and Conway vIndependent (Newspapers) Ltd. The European Courtof Human Rights has also adopted a very broaddefinition of religion, encompassing a very widerange of religions and beliefs, including the rightnot to believe. The European Convention on HumanRights and the jurisprudence of the European Courtof Human Rights was introduced into Irish law bythe European Convention on Human Rights Act 2003,which requires all state bodies to act in compliancewith the convention.

The good lifeArticle 12 of the convention concerns the right tomarry, providing that “men and women ofmarriageable age have the right to marry and tofound a family, according to the national lawsgoverning the exercise of this right”.

In cases such as Sunday Times, the court hasestablished two major requirements for an

enactment to be considered in accordance with thelaw: it must be both accessible and foreseeable.Thus, the granting of an unfettered discretion tointerfere with the exercise of a protected right wouldbe incompatible with the convention.

In this regard, the lack of criteria by which AntArd-Chláraitheoir is to grant or withhold approvalfor the form of the ceremony under section 51(3)(a)and the provision whereby An tArd-Chláraitheoirmay cancel the registration of a solemniser “for anyother reason” under section 55 may hinder theirapplication in practice.

It is interesting to note in this regard that theIslamic community have registered two solemnisers,notwithstanding a previous case, Conlan v Mohamed,in which Barron J held that the essential ingredientsof a common law marriage were not present in anIslamic marriage, as it was potentially polygamous. Itis also perhaps noteworthy that there are Buddhistsolemnisers registered, although common religiousworship is not a requirement of Buddhism, though itdoes regularly occur.

The war at homeA marriage may be solemnised at a time and placechosen by the parties with the agreement of theregistered solemniser, subject to the requirementthat the marriage ceremony be open to the public.Where the registered solemniser is a registrar, theapproval of the HSE is also required, and this is tobe determined by reference to such matters as maybe specified by the Minister for Health.

Religious solemnisers will be bound by theirrespective liturgical and canonical requirements,which in the case of the Catholic Church would

Some members of the clergy are understood to have had concernsabout the new law and the functions of religious solemnisers. On theother hand, many were also happy to be relieved of the previous civilresponsibilities, especially of verifying that neither party was already in avalid marriage – an easier function to perform years ago when bothparties were probably from the same parish, or at least the samecounty, than now, when both parties could be from different countries,neither of them Ireland. That requirement still prevails in canon law.

An interesting question arises as to the civil status of a religiousmarriage not carried out in accordance with the requirements of therelevant religious community. In the case of the former, there is anIrish case, Ussher v Ussher, in which it was held that that the merefact that there was only one witness did not preclude the existence ofa valid civil marriage, although it was accepted that the marriage wasnot valid according to canon law. It was held that the presence of twowitnesses was not a requirement of the common law. Therefore, itwould appear that a marriage that was not carried out in accordancewith the requirements of the relevant religious community would stillbe a valid civil marriage once the requirements laid down in section51 of the 2004 act are met.

A particular question would arise as to the civil status of a Catholicmarriage where one of the parties only had the intention to marry fora limited time. If proven, this would lead to a decree of nullity incanon law due to lack of due discretion in consent and, possibly,inability to enter into and sustain a normal marital relationship. Norwould it be saved by the common law definition of marriage, theclassic exposition of which was given in Hyde v Hyde as “thevoluntary union for life of one man and one woman to the exclusionof all others”. The Irish courts have demonstrated a willingness tofollow the approach of canonical tribunals in granting decrees ofnullity on the grounds of inability to enter into and sustain a normalmarital relationship in RSJ v JSJ. However, when looking at the issueof consent, the courts have tended to confine themselves to theexistence of duress, in the absence of which there has been areluctance to look beyond the presumption that parties intended theirvows of perpetuity. Moreover, more recently, in PF v GO’M (orse GF),an increased reluctance to grant decrees of nullity on expandedgrounds was demonstrated by the Supreme Court in the light of theavailability of the remedies of judicial separation and divorce, both ofwhich, unlike nullity, are clearly defined by statute.

ARE YOU FAMILIAR WITH THE CANON?

“Barron J heldthat theessentialingredients ofa common lawmarriage werenot present inan Islamicmarriage, as itwas potentiallypolygamous”

33www.lawsociety.ie

LAW SOCIETY GAZETTE MARCH 2008MARRIAGE LAW

almost always require that weddings take place in achurch or chapel.

Provisions regarding places and times at whichcivil marriages may be conducted have generatedmost public comment. The Minister for Health hasspecified, among other things, that the venue inwhich the ceremony room is situated must conformto all the requirements of any venue open to thepublic in respect of planning permission andcertificate of fire safety, must meet all relevanthealth and safety requirements, must be accessible toall, in particular to people with disabilities, and mustbe a fixed structure – thus precluding marriagesbeing solemnised in the open air, a tent, marquee orother temporary structure, or a private dwelling.

Whether this delegation of the matters to whichreference must be made complies with the‘principles and policies’ test most recently refined bythe Supreme Court in Leontjava remains to be seen.Assuming that it does, as it is essentially anadministrative matter, it could also be renderedinvalid by virtue of its being considered to be anunreasonable use of delegated powers, as occurred inCassidy v Minister for Industry and Commerce, whichwas recently endorsed in Leontjava.

Terry and JuneIt is difficult to see how the introduction of therequirement of ‘fixed structure’ is intended by theact. Furthermore, its effect is to differentiatebetween those partaking in religious and civilmarriages, which may constitute discrimination onthe basis of religion. Under the Europeanconvention, it would have been open to thelegislature to introduce similar requirements for allmarriage venues in the interests of public safety, butit chose not to.

While the British equivalent, the RegistrarGeneral’s Guidelines, contains similar provisionsprecluding outdoor civil marriages, authority isdelegated to do so by section 46A of the MarriagesAct 1994, concerning “approval of premises”. TheCivil Registration Act 2004, by contrast, contains nomention of premises.

While the minister does not specify any mattersregarding time to which the HSE is to refer, it is

Cases:• Cassidy v Minister for Industry and Commerce [1978] IR 297• Conlan v Mohamed, unreported, High Court, Barron J, 25 July 1986• Conway v Independent (Newspapers) Ltd [1999] 4 IR 484, [2000] 1 ILRM 426• Hyde v Hyde and Woodmansee [1886] LR 1 P&D 130• Leontjava v Director of Public Prosecutions [2004] 1 IR 591• O’Shea and O’Shea v Ireland [2006] IEHC 305• PF v GO’M (orse GF) [2001] 3 IR 1• Quinn’s Supermarket v Attorney General [1970] IR 1• RSJ v JSJ [1982] ILRM 263 • Sunday Times v United Kingdom, 26 April 1979, 2 EHRR 245• Ussher v Ussher [1912] 2 IR 445

Legislation:• Civil Registration Act 2004, part 6• Deceased Wife’s Sister’s Marriage Act 1907• European Convention on Human Rights• European Convention on Human Rights Act 2003• Family Law (Miscellaneous Provisions) Act 1997• Family Law Act 1995• Marriage (Prohibited Degrees of Relationship) Acts 1907 and 1921• Marriage Act 1835• Marriage of Lunatics Act 1811• Marriages Act 1994 (Britain)

Literature:• Registrar General’s Guidelines (Britain)• Report of the Royal Commission on the Laws of Marriage, no 1216 (1868)

(British Parliamentary Papers, 1867-68)• Shatter, Alan (1997) Shatter’s Family Law (Dublin: Butterworth’s)

LOOK IT UP

understood that the current practice is to solemnisecivil marriages only during normal HSE workinghourse, that is, 9-5, Monday to Friday. As this hasbeen explained in the media by HSE representativesto be dictated by the availability of resources ratherthan any fixed policy, it most probably isunassailable.

Michael McNamara is a barrister on the South WesternCircuit who has taught on UL’s MA programme in civiland canon law.

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LAW SOCIETY GAZETTE MARCH 2008 HUMAN RIGHTS

Tracking the geographical movements of acertain person – electronic monitoring –is governed by the Criminal Justice Acts2006 and 2007. Sophisticated technologymay enable this form of surveillance to

intrude into the private life of a person at previouslyunprecedented levels. It is therefore necessary toconsider the impact of electronic monitoring on theright to privacy.

The acts allow electronic monitoring to recordthe movements of a person in three ways. Firstly, hismovements may be restricted simpliciter – that is,absolutely, without qualification. Secondly, he maybe required to remain at, or stay away from, aspecific place during temporary release by virtue ofa direction from the Minister for Justice. Thirdly, hemay be required to remain or reside at a particularlocation or refrain from attending at a place byvirtue of a court order while he is on bail. The latterapplies in case he is appealing a conviction in theDistrict Court to the Circuit Court, or if he ischarged with a serious offence.

In this way, electronic monitoring will directlyapply to both convicted offenders and peopleremanded on bail. However, it will also applyindirectly to affected third parties. They are,therefore, required to give their prior consent, and

Electronic monitoring of offenders will be an innovation in Ireland once the

relevant provisions are commenced. In her winning human rights essay – on

which this article is based – Tanya Moeller argues that the impact on the

right to privacy has not been sufficiently considered

Game of

they can also apply to have the court order varied. The acts require that the court or the Minister for

Justice need to consider different matters in themaking of an order or decision for electronicmonitoring. In addition, the acts provide for anenforcement mechanism by way of arrest warrant.

In the context of the right to privacy, it is moreinteresting that the provisions concerning theconvicted offender on the one hand, and the personcharged with a criminal offence on the other, arevery similar. This has important consequences forthe evaluation of the constitutionality of electronicmonitoring.

British bulldog Looking at the technology that facilitates electronicmonitoring in England and Scotland can shed lighton how such surveillance may be put into operationhere. There are three main types. The home-basedscheme is by far the most commonly used in England.A tag is fixed on the body and it sends a signal to areceiver that is installed in the home. As a result, thetagged person must remain within the family home,inside the signal radius of the receiver unit.

By contrast, satellite monitoring has the personcarry both tag and receiver, which calculates itslocation by means of global positioning system

TAG• Electronic

monitoring• Three ways of

monitoring• Right to privacy• Related

constitutionalissues

MAIN POINTS

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LAW SOCIETY GAZETTE MARCH 2008HUMAN RIGHTS

(GPS) and relays this information to a monitoringcentre. In real-time surveillance, any movementswould appear as location trails on a computer screenmap, detailing which street and in what directionthe person is moving. Satellite surveillance is notfully operable yet, but may be so in the future.

Finally, voice recognition depends on the storageof voiceprints in a central computer. The presenceof the person in a particular place can then bechecked by scheduled telephone calls.

The former Minister for Justice indicated that the

home-based system would allow for implementation ofthe relevant legislation in part, once a feasibility test iscarried out. Like in England, this type of electronicmonitoring is likely to be most prevalent here.

SardinesThe right to privacy is an unenumerated right underarticle 40.3 of Bunreacht na hÉireann. A surveillancetag can be seen as a form of interfering with the“right to be let alone”, as defined in Kennedy vIreland, which prohibited the interception of private

“It’s an ankle Rolex,I tells ya!”

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LAW SOCIETY GAZETTE MARCH 2008 HUMAN RIGHTS

The home-based system intrudes into the family home for technical as well asoperational reasons. In England, the tag must be fitted on a person at homebecause that is where the receiver unit is installed and tested, and theequipment requires maintenance visits. Regular phone calls will also check onthe presence of the person at home in case of small-scale alerts. These can betriggered by minor signal failures caused by ordinary activities, such as theperson taking a bath.

Besides these physical intrusions, living with an electronic tag can createpressures for the household, especially for women, who traditionally have greaterfamily responsibilities at home. A study by the National Audit Office in Englandshowed that tagged women commit substantially more breaches than taggedmen. Childcare becomes problematic if the tagged parent cannot collect ordiscipline children because they are confined to the house, and there can bedifficulties in emergency situations. Moreover, the relatives or partners of taggedpersons often observe a curfew with them.

Satellite monitoring may be less intrusive into the private life of the familyhome because the receiver is carried on the body, but the visibility of the taggingequipment on a person can lead to family embarrassment. In England, one inten monitored persons were recalled to court or reported for a possible recall toprison because his or her relatives withdrew their consent to electronicmonitoring.

HOME ALONE

communications where this was deliberate,conscious and unjustifiable. It can also be seen as atype of watching and besetting, which in X v Flynnwas established to be a means of violating the right

to privacy, even if no private conversations whereoverheard. The tag cannot record communication orimages of the person, but it can monitor hiswhereabouts at any requisite time in any area,constrained only by the limitations inherent in thetype of technology employed.

Furthermore, electronic monitoring can interferewith the private life in the family home, which isentwined with the inviolability of the privatedwelling (article 40.5) and the right to privateproperty (article 43).

The right to privacy is not unqualified. Accordingto Norris v Attorney General, it is restricted byconsiderations such as state security, public order,morality or other “essential components of thecommon good”. However, the doctrine ofproportionality, as developed by the Irish courts,requires that the state must impair a constitutionalright as little as possible and in proportion to itsobjective. The Criminal Justice Acts 2006 and 2007apply electronic monitoring to the convictedoffender and to a person remanded on bail. It alsoaffects third parties. The constitutionality ofelectronic monitoring in the context of privacydepends on the category of person this surveillanceis applied to.

Arguably, the least harm is caused to a convictedoffender because the common law has typicallyrequired such a person to accept a limitation to hispersonal rights, which arises from the imposition of

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LAW SOCIETY GAZETTE MARCH 2008HUMAN RIGHTS

his sentence. His criminal record could require himto be monitored to discourage further crimes.

However, it is not clear if electronic monitoringdoes, in fact, prevent criminal activity. Pilotschemes in Scotland did not increase perceptions ofpublic safety or reduce the custodial remandpopulation in any significant way. The HomeOffice was also sceptical, observing that it was“likely to be the access that offenders on curfewhad to training, employment, housing and familylife that helped them to reconnect with society andreduce their offending” rather than electronicmonitoring. Moreover, a tagged person can simplyignore or remove the tag while committing anoffence. It would therefore not be unreasonable toquestion the imposition of electronic monitoring,even on a convicted offender.

Stuck in the mudThe second target group are people who areremanded on bail and who still enjoy thepresumption of innocence. An interference withtheir personal rights during criminal prosecutionmust be carried out very carefully. For example,the European Court held that pre-trial detentioncan only be justified by “specific indications of agenuine requirement of public interest, which,notwithstanding the presumption of innocence,outweigh the rule of respect for individual liberty”(Scott v Spain). A similar justification would haveto be made for the case of electronic monitoringbut, given the lack of evidence for its success inthe prevention of crime, it cannot fulfil the“genuine requirement of the public interest”.

Moreover, it was noted above that the relevantprovisions governing the monitoring of personspre- and post-conviction in the Criminal Justice Acts2006 and 2007 are quite alike. If this legislativesimilarity causes the person who is presumedinnocent to suffer from the same intrusivesurveillance as the person who is found guilty, theproportionality of the activity would be put indoubt.

Finally, electronic monitoring indirectly affectsthird parties. While it is accepted that theprosecution of criminal offences commonly has animpact on a family, electronic monitoring should beregarded as unique in the regularity and length atwhich it intrudes into the family home. Theseintrusions can be explained by the circumstantialmisfortune of being related to the monitoredindividual, but they cannot be excused. Theyappear to be inherently disproportionate.

Blind man’s buffPending the commencement of the relevantprovisions in the Criminal Justice Acts 2006 and2007, a precise prediction on the operation ofelectronic monitoring in Ireland cannot be made.This should be seen as an advantage, as

policymakers will have sufficient time to considerthe probable impact of electronic monitoring on theright to privacy and plan the implementation of suchsurveillance accordingly.

Comparisons with Britain can be helpful, not onlyin suggesting the type of technology most likely tobe used here, but also in measuring its performancein the prevention of crime. The lack of evidence forthe success of electronic monitoring calls theconstitutionality of this new measure into question.The promise of the former Minister for Justice thata feasibility test will be carried out prior to fullintroduction is of some comfort, but is insufficient.Authoritative studies should establish whether thistype of surveillance would indeed enhancecompliance of the tagged person with court orders,and thereby reduce crime – or whether it will createa chaotic monitoring system that unjustifiablyintrudes into family homes and generates needlesslitigation.

Tanya Moeller holds a European Master’s degree inhuman rights and democratisation from the University ofPadua and has worked for the Irish Council for CivilLiberties. She is currently a trainee solicitor with MichaelJ Staines & Company.

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LOOK IT UPCases: • Kennedy v Ireland [1987] IR 587• Norris v Attorney General [1984] IR 36• Scott v Spain (1997) 24 EHRR 391• X v Flynn (19 May 1994) HC

Legislation: • Bail Act 1997• Criminal Justice Act 2006• Criminal Justice Act 2007

Literature: • Law Reform Commission, Report on Privacy,

Surveillance and the Interception ofCommunications, LRC 57-1998

• National Audit Office (Britain), The ElectronicMonitoring of Adult Offenders: Report by theComptroller and Auditor General, HC 800Session 2005-2006 (1 February 2006)

• Scottish Executive, Tagging Offenders: The Roleof Electronic Monitoring in the Scottish CriminalJustice System, www.scotland.gov.uk/consultations/justice/toem-03.asp

• Scottish Executive Social Research, AnEvaluation of the use of Electronic Monitoring asa Condition of Bail in Scotland, June 2007

• Shute, Satellite Tracking of Offenders: A Study ofthe Pilots in England and Wales, July 2007


LAW SOCIETY GAZETTE MARCH 2008 FAMILY LAW

For many years, the old adage that ‘childrenshould be seen and not heard’ was acommon feature of the Irish legal system.This position has, of course, changed inrecent years, with both the legislature and

courts placing increased emphasis on the rights ofchildren to be heard and represented in proceedingsaffecting their welfare. One area where practitionershave seen significant developments in recent years isin the area of child welfare/protection. The Child CareAct 1991 allows the District Court to appoint aguardian ad litem (GAL) in childcare proceedings.Twelve years after this provision became fullyoperational, many practitioners who deal routinelywith these cases in the District Court are concernedthat the role, functions and powers of the GAL are illdefined, under legislated and in need of urgentredress.

In whose interests?In Ireland, applications for care orders (s18), interimcare orders (s17) or supervision orders (s19) aremade in the District Court and are legislated forunder the provisions of the Child Care Act 1991. Inthese proceedings, the District Court undertakes aninquiry as to what is in the best interests of the child.The Health Service Executive (HSE) sets out a casefor why the child should be removed from the careof its parents, often calling a number of expertwitnesses in support of their application. Parents willoften strenuously oppose such applications, arguingthat the state is unjustifiably interfering with theirconstitutional rights as a family. Given the emotive

Many practitioners dealing with childcare cases before the courts are concerned that the

functions and powers of the guardian ad litem are in need of urgent reform. “Won’t somebody

please think of the children?” asks Katie Dawson

nature of such cases, the court has increasinglysought to avail of the knowledge of an independentexpert in child welfare and protection, namely theguardian ad litem.

The legislature first made provision for theappointment of a GAL in public law proceedings inthe Child Care Act 1991. Section 26(1) provides that“the court may, if it is satisfied that it is necessary inthe interests of the child and in the interests ofjustice to do so, appoint a guardian ad litem for thechild”.

Unfortunately for practitioners, nothingfurther is written in that act or subsequentlegislation that clarifies the role and functions ofthe GAL in childcare cases. Presumably, section20 on the Child Care (Amendment) Act 2007 willchange this position. Section 20, which came intoeffect on 23 July 2007, sets out the functions ofthe Children’s Acts Advisory Board (CAAB),formerly the Special Residential Services Board.The second of these functions is to “publishguidance on the qualifications, criteria forappointment, training and role of any guardian adlitem appointed for children in proceedings underthe act of 1991”.

While the publishing of clear guidelines on therole and functions is a welcome development –indeed CAAB has already sought representations inrelation to this – it is unclear when such guidelineswill actually be published or what statutory basisthey will have. There are some matters, such as theissue of dual representation for children in thesecases, presently prohibited under section 26 of the

• Rights of childrento be heard andrepresented inproceedings

• Role andfunctions of theguardian ad litemin childcarecases

• Shortcomings inthe presentsystem

• Proposed reforms

MAIN POINTS

andBOTH SEENHEARD

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LAW SOCIETY GAZETTE MARCH 2008FAMILY LAW

1991 act, which cannot be satisfactorily addressed bymeans of CAAB guidelines. Similarly, it is unclearwhat legal redress such guidelines would givepractitioners representing parties either opposingthe appointment of a particular GAL or seeking theremoval of the GAL appointed. In suchcircumstances, it might have been preferable if thelegislature had gone further and amended section 26of the 1991 act itself.

In doing so, the legislature could have givenconsideration to sections 41 and 42 of Britain’sChildren’s Act 1989. In England, the GAL’s roleinvolves an investigation into all the aspects of thechild’s life and family. Such investigations involveinterviews with the child and other members of thechild’s immediate and extended family, along withsocial workers and other care professionals involvedin the case. When the GAL has concluded theinvestigation, he/she provides a report, or series ofreports, for the court, setting out the child’s wishes,

the various options available to the court and arecommendation as to the appropriate order to bemade. Best practice in Ireland seems to follow thismodel.

What’s wrong?A number of criticisms of the present system havebeen set out in a large number of reports and articles,and are repeated below. For practitionersrepresenting a GAL in childcare proceedings, orindeed representing one of the other parties to theproceedings, the continuing lack of legislativeguidelines in this area is a growing problem. Undercurrent legislation:• Where a GAL is appointed, a child cannot have

separate legal representation (dual representation).If a child wishes to avail of separate legalrepresentation, than the GAL appointed must bedischarged,

• There is limited guidance as to when a GAL

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LAW SOCIETY GAZETTE MARCH 2008FAMILY LAW

Legislation: • Child Care (Amendment) Act 2007• Child Care Act 1991 • Children’s Act 1989 (Britain)• United Nations Convention on the Rights of the Child

Literature: • Bainham, Andrew, Children: The Modern Law, 3rd edition (Bristol: Jordan, 2005)• Capita Consulting Ireland in association with the Nuffield Institute for Health,

Review of the Guardian ad litem Service (March 2004)• Nestor, Jim, The Law of Childcare (Blackhall Publishing 2004)• Ombudsman for Children, Report of the Ombudsman for Children to the UN

Committee on the Rights of the Child (April 2006)• Shannon, Geoffrey, Child Law (Thomson Round Hall, 2005)

should be appointed or what remedies might beavailable if any of the parties do not agree with theGAL appointed. While it might not be advisable toallow any party to the proceedings to automaticallyveto the appointment of a particular GAL,circumstances might arise where a party mighthave a legitimate reason for opposing theappointment of, or seeking the removal of, anappointed GAL,

• There are no guidelines under the act as to whoshould be appointed as a GAL, what qualifications,skills or knowledge are necessary and/or preferableto being appointed, nor are there any directions asto how appointments should be vetted,

• There are no guidelines under the act clearlydefining the specific role of GALs or the durationor nature of the GAL’s task, including, for example,whether they need to provide a report or whetherthe role ends once proceedings are concluded,

• The powers of a GAL are not outlined under theact and there is no guidance on whether the GALshould have access to HSE and third-party reportsor files.

In a number of recent cases, parties to theproceedings have sought to ‘suggest’ whatdocumentation a GAL can have access to, ‘comment’upon how a GAL report to the court may bepresented, or ‘remark’ upon what information such areport can contain. It is clear that allowing otherparties to the proceedings to define the role, functionsand powers of a GAL is not compatible with a courtprocess seeking to ensure that the rights of the childare given paramount importance.

One obvious concern for practitioners operatingunder the current system is that if a child becomes aparty in the proceeding, any GAL appointed must bedischarged from the case. This provision suggeststhat, as a GAL performs the same role in representinga child’s interests as a lawyer directly representing thatchild, a child does not need both. Clearly that is notthe case. The role of the GAL is not to act as an‘advocate’ for the child’s wishes. As such, theprohibition on ‘dual representation’ contained in the1991 act should be removed if Ireland is to fullyadhere to the principles set out in article 12 of theUNCRC.

What to do?In circumstances where District Court childcare casesare becoming increasingly acrimonious and lengthy (arecent childcare case where the HSE applied for careorders ran for a total of 57 days at hearing in theDistrict Court), it is clear that legislation and/orstatutory guidelines are required to define the role ofthe GAL, and indeed the manner in which thesechildcare cases are run.

While it is not the author’s purpose to makerecommendations to CAAB, guidelines should bedrafted on the specific circumstances in which a GAL

should be appointed, along with the requirement thata GAL provide the court with a written report(s). Incompiling such reports, a GAL should have the rightto examine, take copies of, and use in evidence,materials and documentation held by the HSE andother relevant agencies. A formal, mandatoryselection process should be introduced, applying to allcurrent GAL practitioners and any individual seekingto be considered for appointment as a GAL. Theminimum qualifications and experience required toallow for an individual’s appointment as a GALshould be clearly defined in order to ensure that allGALs have the requisite level of knowledge andexperience in the area of child welfare/protection.

Furthermore, in addition to any guidelinespublished by CAAB, the legislature should amendsection 26 of the 1991 act, firstly to set out the role,functions and powers of the GAL and, secondly, toprovide for dual representation in public-law cases.The powers of the GAL should be defined so that theGAL is recognised as an independent officer of thecourt, with the ability to bring specific matters to thecourt’s attention. Furthermore, an amended section26 could make reference to any additional guidelines,to be published by CAAB in respect of the operationof the GAL system.

It is clear that the role of the GAL in public lawproceedings is a developing one and that theappointment of GALs, who in most cases avail ofseparate legal representation, is likely to become amore regular occurrence. In the absence of necessarylegislation and statutory guidelines, childcare casescontinue to be heard in the District Court. Forpractitioners, the current system remains whollyunsatisfactory. The guardian ad litem is a welcomedevelopment in the area of Irish childcare law. It mustnow be hoped that the legislative amendments andguidelines are put in place to ensure that the systemoperates in a manner that best protects the interestsof the children that the GAL is appointed torepresent.

Katie Dawson is a Dublin-based barrister.

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LAW SOCIETY GAZETTE MARCH 2008 MEDIA LAW

The recent establishment of new pressregulatory structures is the result of acomplex interplay of forces going back atleast two decades, and the effect of the newstructures is still difficult to predict with

any certainty. In this context, it is perhaps more helpfulto tease out the intentions behind the structures thanto suggest scenarios that the courts, and indeed thelegislature, might alter at any given moment.

The key element of the new structures is theirindependence from both government and the industry.This is a necessary precondition both of theiracceptability and their effectiveness. This is not self-regulation; it is independent regulation. Although thePress Council and the Office of the Press Ombudsmanare non-statutory bodies, they may be formallyrecognised by the Minister for Justice under theprovisions of the defamation legislation currently enroute through the Oireachtas, and this will give theirstatements certain necessary protection under law.

I love troubleIt is incontestable that the experience of the printmedia in relation to defamation has been a key driverof this innovation. Since the Boyle/McGonaglereport on press freedom and libel, commissioned byNational Newspapers of Ireland and submitted to theLaw Reform Commission, it has been clear that theepisodic and somewhat disorganised response of theindustry to this perennial problem was inadequate.Indeed, those familiar with that report will rememberthe authors’ astonishment that none of the

the pressesSTOPThe new Press Council and ombudsman add new elements to

the institutional mix in which issues involving the print media

and the law are discussed. The ombudsman, Prof John Horgan,

indicates how the new structures will work and explores some

of the legal implications

newspapers that had commissioned their researchwas able to tell them with any certainty how manydefamation actions they had faced in any givenperiod – or what these had cost.

Together with this has come the realisation that amajor factor undermining the credibility of the printmedia generally has been the absence ofintermediate solutions for problems caused byarticles that might cause offence for a wide variety ofreasons, but that might not involve defamation inthe strict sense. The system of readers’representatives, instituted briefly by somenewspapers in the wake of the Boyle/McGonaglereport, was an early and unsuccessful attempt toplug this accountability gap.

The new structures – funded by, but independentof, the industry – have a direct relationship both toproblems of defamation and those of readers’grievances generally, as well as providing a new andsubstantial measure of public accountability.

In relation to defamation, it will evidently continueto be the case that there will occasionally bepublication of some statements about people who willfeel, quite justifiably, that monetary compensation –and substantial monetary compensation at that – is theonly remedy acceptable to them. It is difficult to seethat the Press Ombudsman or the Press Councilwould have any substantial role in such a situation.

Ace in the holeIf a plaintiff feels that a decision in his favour by theombudsman or council will strengthen his legal

• Effectiveindependentregulation ofnewspapers

• Print mediaresponse todefamation

• Courtconsideration ofroles of PressCouncil andombudsman

MAIN POINTS

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LAW SOCIETY GAZETTE MARCH 2008MEDIA LAW

position, he of course has the option to make aformal complaint to the ombudsman in the firstinstance. However, if the publication concernedfeels that this is merely a proxy battle, it is likely todig its heels in, and the end result may not affect thecourt’s decision either way. Conversely, if there is afeeling that a conciliatory response will enhance thepublication’s defence, the plaintiff’s advisers maywell advise him to forego this option. The absence –at this point – of experience of the operation, eitherof these new structures or of the courts’interpretation of the new legislation after it has beenpassed, makes prediction hazardous.

What is also unknown is whether the courts will,in the future, consider the respective roles of the

Press Ombudsman, the Press Council, and the Codeof Practice for Newspapers and Periodicals as relevant inany discussion of the professional standards andbehaviour of journalists and editors embroiled in adefamation action.

Absence of maliceIt is worth noting that, while people have the optionof instituting legal proceedings or complaining tothe ombudsman, they cannot ride both horses at thesame time. If legal proceedings have been instituted,the ombudsman will not examine the issueconcerned until those proceedings have beencompleted or withdrawn. In this context, we wouldnot regard a solicitor’s letter to a publication as


LAW SOCIETY GAZETTE MARCH 2008 MEDIA LAW

‘legal proceedings’, but, in fairness to thepublication, we would expect a complainant tosuspend exchanges between his solicitor and theeditor concerned until the conclusion of theombudsman’s procedures. This is a common-senseapproach that will, I hope, have the effect ofenhancing the attractiveness of our procedures as afirst option, not least because they are risk-free, cost-free, and expeditious.

Defamation apart, however, many solicitors willhave had experience of clients who are exercisedabout statements made about them in the media, butwhose chances of succeeding in a classic defamationaction are not closely related to the intensity of theirfeelings on the matter. Some defamation actions arealso brought by plaintiffs who feel, with regret, thatthis is the only course of action open to them, butwho are not interested, primarily or at all, inmonetary compensation.

Practitioners whose clients fall into thesecategories have nothing to lose by recommending aninitial approach to the Press Ombudsman.(Incidentally, although in such cases a solicitor istechnically a third party, he can be considered as thecomplainant on the basis that he has the express

agreement of the person affected by the article tomake the approach on his behalf.) The newstructures offer the possibility of quick, fair and freeredress by an independent ombudsman or by a PressCouncil with a lay majority. If the person who is thesubject of the offending article chooses to retain hissolicitor as his agent in the matter, then of coursecosts will be involved, but this is not essential. Andno respondent’s costs are involved. In all cases,complainants must demonstrate that the offendingarticle is in breach of one or more of the sections ofthe industry’s new Code of Practice.

Citizen KaneThe hope embodied in the new structures, whetherin reference to defamation or other issues, istwofold. It is that readers will feel more empoweredto make their grievances known, and to expect areasonable response from their newspapers, and thateditors and journalists will feel less constrained bythe culture of defensiveness that (conditioned inlarge part by our old libel regime) traditionally gaveconfrontation priority over conciliation andcompromise.

The basic premise of the new structures is thatthe closer to source the problem can be resolved,the better it is for all concerned. Our procedures,therefore, generally require complainants to contactthe editor of the relevant publication first, and tolodge a formal complaint with us only if this initialapproach has been unsuccessful. The incentive foreditors to solve the problem at this stage hardlyneeds elaboration.

Failing that, our structures and procedures comeinto play.

The case officer in my office is effectively the firstport of call for all complainants and handles all casesup to the penultimate stages of the conciliationprocess. If that conciliation process has beeneffective, the final agreement between complainantand newspaper is effectively ratified by me asombudsman.

If the conciliation process has not been effective, itfalls to the ombudsman to decide on the merits of thecase, except in cases where the ombudsman decides to

There are a number of sections in the Code of Practice that representanother important step towards the effective independent regulationof newspapers and towards providing expeditious and cost-freeredress for members of the public. These are in the areas of privacyand harassment.

Up to now, however, the definition of what constitutes intrusion orharassment, and what constitutes the public interest, has been onethat has effectively been the prerogative of journalists and theireditors. The courts, of course, also have a role – but recourse to thecourts is expensive, that role is not often tested, and the ways andoccasions on which it has been tested have rarely been such as to

allow the drawing of practical conclusions in complex situations. Under the new structures, the ultimate decision on what does or

does not constitute justifiable harassment or intrusion into anindividual’s private life no longer rests solely with an editor or anindividual journalist. In the absence of legal proceedings, thatdecision now falls to be made by the Press Ombudsman or, in certaincases, by the full Press Council. Likewise, there is now, in the Codeof Practice, a formal definition of what is in the public interest. It maynot satisfy the purists and it needs to be fleshed out in due course bydecisions of the new institutions, but it offers a common-sensebenchmark to which anyone can sensibly relate.

THE INSIDER

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refer a case to the full Press Council fordetermination. Although there is an understandingthat cases referred to the council by the ombudsmanwill be those of some complexity or importance, thereis no requirement on the ombudsman to refer all suchcases to the council, nor any expectation that he will.Indeed, he is completely independent of the council inrelation to any decision he may take on referrals.

It is quite possible, at the end of the day, that eitherthe ombudsman or the council will find, in a case inwhich conciliation has not proved possible, that thenewspaper concerned has made an adequate, non-monetary offer of redress. On the other hand, if thecomplainant believes that the newspaper’s offer isinadequate, and the ombudsman or council agrees, thenewspaper will be required to publish our decisionwith due prominence, where it will be available fordiscussion and comment by the general public and,indeed, by that newspaper’s rivals and competitors.People who believe that this is an inadequate sanctionshould perhaps canvass the views of editors andjournalists on the matter!

All the president’s menDeterminations by the ombudsman are not necessarilythe end of the matter. Depending on the way thedecision has gone, either the complainant or thenewspaper has the option of appealing a decision bythe ombudsman to the council. In line with thecommon practice in other regulatory agencies thathave an appeals system, such appeals must generallyshow and state reasonable grounds, such as theemergence of significant new information or of aprocedural issue. It follows that there is no furtherappeal against a determination that has been madeeither in the first instance, or on appeal, by thecouncil.

If the complainant is still dissatisfied, he or shealways retains the option of legal proceedings.

As with all new institutions, there are grey areas.

Literature: • Boyle, Kevin and Marie McGonagle, A Report on

Press Freedom and Libel (Dublin: NationalNewspapers of Ireland)

• Code of Practice for Newspapers and Periodicals,available at www.presscouncil.ie

LOOK IT UP

Some of these are definitional, and I have alreadyreferred to them. Others relate to the possibleimpact of decisions by the Press Ombudsman or thePress Council on court proceedings held after theconclusion of the ombudsman’s or council’sinvolvement. It is not possible to speculaterealistically about this particular area in advance ofthe passage of the Defamation Bill and someexperience of its consequences, but it is somethingthat may assume some significance at a later date.Nor have I dealt with some other aspects of the Codeof Practice, such as the importance of press freedomand the protection of journalistic sources, not leastbecause this would require a quite different andequally lengthy article.

There are, I would add finally, important positivesabout this initiative. It has the active support ofjournalists, editors and proprietors of newspapers, toa degree that would have been unthinkable even fiveyears ago. It has received a welcome, albeit cautiousand provisional, from government. Publicexpectations are as yet limited, and this is in a sensebetter than a crisis of expectations that might bedifficult to manage. For the future, we will have towait and see. I trust that members of the legalprofession will share with me and the council awillingness to wait and evaluate the evidence beforecoming to any definitive conclusions.

Prof John Horgan is the Press Ombudsman.

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LAW SOCIETY GAZETTE MARCH 2008 PRACTICE MANAGEMENT

We have seen more changes in theenvironment in which Irish lawfirms operate in the past threeyears than perhaps in theprevious 20. The pace of change

is increasing, and many firms have had to change theway they operate. It is no longer sustainable to runan old-style firm with little or no management –increased management and better systems are afeature of all today’s progressive firms.

High salaries and bonuses have had a furthersubtle effect on the way partnerships work. Theproprietors of today’s firms are senior lawyers whoworked throughout their careers with partnership asan unquestioned goal. Many of today’s younglawyers are equally ambitious, but a significantpercentage has focused on work/life balance anddoes not wish to achieve the holy grail ofpartnership. Often these young lawyers are the mosttalented in a firm, and the perceived lack of driveand ambition in this group is a major concern forexisting equity partners. Many senior equity partnersattribute this to high salaries and good bonuses,thereby lessening the hunger for partnership.

Raiders of the lost arkSuccession planning is a key part in the continuingsuccess of any firm. Partners will grow old togetherunless there is an infusion of new ideas, new servicesand fresh impetus from a younger generation.Without this, a partnership eventually declines.

Many smaller firms and single practitioner firmshave no succession plan in place, having relied onthe fact that they have built an asset (the firm) andthat this asset can be disposed of on retirement.This was true up to approximately 18 months ago

PARTNERSHIP:the HolyIn mid-size and

larger law firms,

bringing good

people through

the ranks is

more important

than ever. This

involves

attracting the

right people,

keeping them,

and having

attractive

partnership

arrangements in

place. David

Rowe hunts for

treasure

but, since then, it has been increasingly difficult tosell a legal practice as the market tightens. Today’sbuyer is looking more closely at the style of thepractice, the client base, the staff and the systemsand technology in operation within the firm.Practices are currently selling at a significantdiscount to the levels being achieved two years ago,and in some cases are not selling at all. For thesmaller firm and the single practitioner, this isdeflating: a lifetime’s work transferred to anotherparty for a relatively small sum.

The best succession plan in a small firm is togrow your own successor. An individual comingthrough a practice is in a better position to holdonto the client base and knows the strengths andweaknesses of the practice.

In mid-size and larger firms, bringing goodpeople through the ranks is more important thanever. This involves attracting good people, retainingthem as solicitors, and having partnershiparrangements in place that are seen as attractive.There is no buy-in to partnership any more in mid-size and larger firms; partnership is earned on merit.

Temple of doomThere have been fundamental changes in the waythat partnership profit-sharing has operated in thepast five years. The traditional model of agreedpercentages for equal profit-sharing has beengradually eroded, particularly in mid-size and largerfirms. These firms are increasingly looking atputting between 10% and 20% of their profits asidefor a partner performance pool. This works well if itis fair and objective. If it is not, it is an unmitigateddisaster.

In these firms, both the spread of profits between

• Successionplanning

• Profit sharing• Consolidation of

firms

MAIN POINTS

47www.lawsociety.ie

LAW SOCIETY GAZETTE MARCH 2008PRACTICE MANAGEMENT

Grail?

Indiana Jones doesn’twork with partners ... butthen, he’s still searchingfor that Holy Grail

the top and the bottom of the profit-sharingmechanism has narrowed, and the length of timethat it takes to get to the top of the profit-sharingmechanism has shortened. This has been a responseto pressure from newer entrants within thepartnership, who argue that a partner is at peakcontribution levels during their 30s and 40s and theprofit share should reflect this.

The last crusadeFirms are now increasingly managing their partners’performance levels. This is often done byconducting annual appraisal-type reviews, similar tothose for other staff. This often breaks a traditionalcomfort zone, but it is also good management –

after all, the partners are the firm’s greatest assets.Being a partner in today’s law firm is a different

proposition to that of a couple of decades ago.There are huge advantages to partnership. Theseinclude the opportunity to build the businesstogether in a supportive environment, drawing fromeach others’ strengths, the mutual respect culturethat many firms have managed to preserve, theopportunity to share successes with others and theability to concentrate on one or two areas of work,and hence become an expert or specialist beyondwhat the general practitioner can hope to achieve.

There are downsides to being a partner too. Thelarger firms have, of necessity, become morecorporately managed, and some partners within


LAW SOCIETY GAZETTE MARCH 2008 PRACTICE MANAGEMENT

There is currently a consolidation upwards in theaverage firm size in Ireland. This is because biggerfirms are more competitive and they share theburdens of management and different areas ofexpertise with greater ease. Different partnersinevitably have different strengths, and having a mixof attributes across a firm means the firm can playits individual partners to their strengths. Many firmsare currently considering a merger, and it isinevitable that firm size will increase in a morecompetitive environment.

Well thought-out and strategically intelligentmergers work well, and there are many examples ofgood mergers in the Irish market. The critical issuein choosing a new merger are that the personalitiesget on, that the business mix is right, that the newpartners share a common objective, and that thecultures within the firms are compatible. This doesnot mean that both firms need be the same –indeed, many mergers work because the mix isdifferent in each firm.

“Partners willgrow oldtogether unlessthere is aninfusion of newideas, newservices andfresh impetusfrom a youngergeneration”

them would say that the sense of fun goes when youget to a certain size. The expectations of you andthe fact that you are expected to be a manager aswell as a lawyer do not always sit easily.

With the pace of change accelerating, the role ofthe partner is changing: it has become that of abusiness manager and a business winner.

After today’s partners will come a new generation– more women than men – with aspirations that nolonger begin and end with becoming a partner. Thelifestyles and needs of this new generation arechallenging traditional partnership models andcultures.

The reasons for this are easy to understand. Thecareers of today’s senior partners started when afirm was a club. Now every successful firm is run asa business. Law firms – like any other – have to bewell managed or they don’t survive.

“Howdy, pardner”

COME TOGETHER

‘Partner’ should no longer be regarded assynonymous with ‘owner’. ‘Partner’ should insteaddescribe the firm’s role models: those individualswho represent the best the firm has to offer, whoother staff admire, on whom today’s newly qualifiedsseek to model their careers, and to whom clientsinstinctively turn for advice.

‘Partner’ is a statement about aspiration andambition – the ideal of what we’d like to be.

A strong partnership is the most rewarding spaceto be in, both financially and supportively. In fact, itis the only space to be in.

David Rowe is a legal graduate and a charteredaccountant and was formerly finance director with MOP.His firm, Outsource, provides hands on financialmanagement and business advice to a wide range of Irishlaw firms.

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49www.lawsociety.ie

LAW SOCIETY GAZETTE MARCH 2008PEOPLE AND PLACES

Law Society and Bar Council summit meetingPictured at a meeting of the Joint Consultative Committee of the Law Society of Ireland and the Bar Council in

Blackhall Place on 21 February 2008 were (back, l to r): Philip Joyce, Paul O’Higgins SC, Stuart Gilhooly,Gerard Doherty, Deputy Director General Mary Keane and David Nolan SC. (Front, l to r): Ken Murphy (directorgeneral), John D Shaw (senior vice-president), James MacGuill (president), Turlough O’Donnell SC (chairman of

the Bar Council), Michael Collins SC (vice-chairman) and Jerry Carroll (director)

PIC: LEN

SM

EN

Can we build it?James Kinch, a solicitor who

contributes regularly to ‘Eurlegal’in the Gazette, has been awarded

a Distinction and the Nael GBunni Medal in his postgraduatediploma in construction law andcontract administration from TCD

Cáca milis agus madra rua...Walter P Toolan & Sons, Solicitors, of Ballinamore, Co Leitrim, has won

the ‘Best eco-friendly building’ award at the recent Local AuthorityManagers’ Association (LAMA) Awards 2008. At the awards ceremony

were (l to r): William Ireland (chairman of LAMA), Sinead Guckian (LeitrimCounty Council), Gabriel Toolan, Minister for the Environment John

Gormley TD, and Sharon Ní Bheoláin (awards host)

Outstanding achievement for MOPMatheson Ormsby Prentice has received an ‘Outstanding achievement

award’ at the Irish Institute of Training and Development’s NationalTraining Awards 2008 in the ‘Indigenous companies (250+ employees)’category. (L to r): Jackie Robinson-Adams, Mark Hyland, Valerie Byrne,Christine Ryder, Kevin Hannigan, Jackie Brennan, Lisa Farrelly, Kelly

Simon and Norella Broderick

Rebels strike!President James MacGuill with trainees from the ‘Rebel County’, whodefeated their Dublin counterparts in the National Client CounsellingCompetition, giving them the opportunity to represent Ireland at the

international final in Bangalore, India, in April. The Law School in Corkwas represented by Jennifer Keane and Marie Gavin

Northern lightsTwo past presidents of the Law Society were admitted to the roll ofsolicitors in Northern Ireland at a ceremony on 15 February (l to r):

past president Philip Joyce, past president Michael Irvine, the Lord ChiefJustice Sir Brian Kerr, President of the Law Society of Northern Ireland

T Donald Eakin, and John Kerr (son of the Lord Chief Justice)


LAW SOCIETY GAZETTE MARCH 2008 BOOK REVIEW

James Kelly. Four Courts Press (2007), Malpas Street, Dublin 8. ISBN: 978-1-84682-078-6. Price: €55.

We are now in the 86th

year of our independentlegislature. It is therefore hardto imagine a situation wherethe Dáil could not sit withoutthe prior consent of a foreignauthority, and even then couldnot pass legislation without itsprior approval. That, in anutshell, would have been theeffect of Poynings’ Law (1494) ifit still applied today.

The junior cert answer to thequestion: ‘What was Poynings’Law?’ is that it was a notableexample of how the Englishcrown sought to strengthen itslordship of Ireland bycontrolling the ability of theIrish parliament to pass laws forIreland – an early example ofwhat later became the norm ofEngland’s control of its coloniesaround the world. James Kelly’sbook, however, provides a muchmore sophisticated answer tothat question.

Sir Edward Poynings wouldprobably have been a merefootnote on the pages of Irishhistory if it were not for ‘10Henry VII, Chap 4’ passed atthe end of 1494 by the Irishparliament of the day, which actwas long-titled: “... an act thatno parliament be holden in thisland until the acts be certifiedinto England”. Poynings hadbeen sent to Ireland by HenryVII to take over as the King’sDeputy from Gearóid MórFitzgerald, essentially to reducethe country to greaterobedience to London and toavoid a repetition of thechallenge from Anglo-Irishleaders to the Tudor dynastythat had initially occurred in1487, when Lambert Simnel, apretender to the throne, had

been crowned Edward VI inDublin with the support ofGearóid Mór and others, andsubsequently in 1492 by asimilar Irish-supported claim byPerkin Warbeck. Many willrecall Lambert and Perkinsimply as two naïve and tragicfigures, but the reality is thattheir abortive regal assertionswere for three centuries to havea profound impact on ourlegislative history, as thisscholarly study demonstrates.

Poynings’ Law ordained, asthe author summarises, firstly,that no parliament could legallybe convened without the priorcommunication from the King’sLieutenant and Privy Council ofIreland of “the causes andconsiderations” requiring suchan assembly, and thecertification under the great sealof England by the King inCouncil that the reasonsproffered were acceptable; and,secondly, the law directed that“acts” communicated from theCouncil in Ireland could onlybecome law if they weredeemed “good and expedient”by the King in Council.

The law, in its manner ofapplication, went through anumber of manifestationsduring the long period from1494 to 1782 when, for theshort time up to the Act ofUnion in 1800, Grattan’sParliament had legislativeindependence. Dr Kelly, havingoutlined what transpired withthe law during the period oflegislative dependence from1494 to 1660, focused hisdetailed examination on howthe law was applied between1660 and 1800, when directlegislative rule from

Westminster commenced andwas so to continue up to 1922.

The year 1660 was, ofcourse, a year of hugesignificance in English history,with the restoration of themonarchy and Charles II,marking the end of the two-decades-long Cromwellianinterlude. An extendedinterpretation of the law was atthat time negotiated, whichpermitted Irishparliamentarians to draft bills“with the advice of” the IrishCouncil and to transmit sameto the English Council forconsideration and, if certifiedas approved, a session of theIrish Parliament would beconsented to by the EnglishCouncil – the consequencebeing that the Irish Council, asan executive body, controlledthe Irish legislative function. A further concessionaryinterpretation of the lawmanifested itself by 1695,whereby it became sufficientfor “heads of bills” to betransmitted to London forapproval, leaving the details tobe filled out by the IrishParliament itself.

This book is particularlyinteresting in a lawyerly way inits detail of this 140-yearperiod up to the Act of Unionand its focus on the legislativefunction and its keypersonalities, both in Dublinand London, and the varyingsubject matters of the billsbeing ‘negotiated’, whetherultimately rejected or passed.All the time, the reader isconscious of what is going onoutside the ‘precincts’throughout the same period;not least the Battle of theBoyne (1690) and the resultantinter-religious tensions, whichare reflected in the nature ofthe bills presented – revenue-raising, indemnities for themilitary and anti-‘popish’measures being, for thisreviewer, the most notable.

Dr Kelly, head of the HistoryDepartment, St Patrick’sCollege, Drumcondra, is to becomplemented in producing awork of real value that fills agap in an important aspect ofour history. His other morerecent books show his particular18th century interest – SirEdward Newenham, MP(1734–1814): Defender of theProtestant Constitution (2004)and The Liberty and OrmondBoys: Factional Riot in 18th

century Dublin (2005). The StPatrick’s ‘stable’ is certainly nowproducing winners, Poynings’Law following immediately onthe success of Dr DiarmaidFerriter’s Judging Dev: AReassessment of the Life andLegacy of Eamon deValera.

Michael V O’Mahony is pastpresident of the Law Society ofIreland.

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booksPoynings’ Law and the Makingof Law in Ireland, 1660–1800

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51www.lawsociety.ie

council report

Law Society Council meeting, 18 January 2008Meeting of presidents, secretaries and PROs of barassociationsThe president and directorgeneral briefed the Council onthe meeting of presidents, sec-retaries and PROs of bar asso-ciations, which had been heldon 10 December 2007. It wasnoted that meetings of theSociety with the presidents,secretaries and PROs of barassociations were a routineexercise but, on this occasion,had been held on a differentdate than normal. The mediahad chosen to represent themeeting as a ‘crisis’ meeting.However, this was not the case.

The Council noted the widerange of agenda items discussedat the meeting. The presidentnoted that it had provided avaluable opportunity to receivefeedback from the professionand to correct some of the mis-information promulgated bythe media in recent weeks.

Immigration, Residence andProtection Bill 2007The Council considered thecontent of the Immigration,Residence and Protection Bill2007 and, in particular, subsec-tions 99(7) and (8), which pro-vided that, where a courtformed the opinion that a judi-cial review brought on behalfof an immigrant was frivolous

or vexatious, the court coulddirect that the costs or a part ofthe costs of the proceedingsshould be borne by the legalrepresentative of the applicant.

The Council noted that thiswas the first occasion on whicha provision of this nature,which related to one group ofclients (that is, migrants) andone group of lawyers (that is,legal representatives formigrants), had been containedin legislation. The Councilagreed that the provisions wereunnecessary and heavy-hand-ed, particularly given thatorder 99 of the Rules of theSuperior Courts entitled judgesto levy costs in any type of legalproceedings where theyregarded the application asfrivolous or vexatious.

It was noted that theImmigrant Council of Irelandhad similar concerns and hadexpressed the view that the pro-visions could be intimidatory,particularly for smaller lawfirms, and could create anotherbarrier to justice for migrants. Itwas agreed that the Society’sconcerns should be communi-cated to the Minister for Justice,Equality and Law Reform.

Legal Practitioners (IrishLanguage) Bill 2007The Council reiterated its sup-port for the Legal Practitioners

(Irish Language) Bill 2007. Aletter from the president ofConradh na Gaeilge seekingthe Society’s support for twoproposed amendments to thebill was noted. The Councilagreed that the Society shouldemphasise its policy to supportand promote the use of theIrish language wherever possi-ble, but believed that theapproach being promoted bygovernment was the correctone. It was agreed that theremight be benefit in a meetingbetween the Society andConradh na Gaeilge to discussthe positive contribution thatthe Society could make to thework undertaken by Conradh.

Practice note on solicitors’terms and conditions ofengagement The Council approved a prac-tice note on solicitors’ termsand conditions of engagement,which had been prepared bythe Guidance and EthicsCommittee. The Councilnoted that the terms and con-ditions of engagement hadbeen forwarded to the NationalAdult Literacy Agency (NALA)to obtain its approval for thecontent in terms of readabilityand the use of plain English.Once approved by the Council,a certificate of plain Englishwould be obtained from NALA

prior to circulation of the prac-tice note to the solicitors’ pro-fession.

Certificate in legal IrishJames O’Sullivan reported thatit was intended to provide acertificate in legal Irish, tocommence at the Law Schoolin April 2008.

Oireachtas Committee on the ConstitutionalAmendment on ChildrenMoya Quinlan reported that theFamily Law Committee waspreparing a submission to theOireachtas Joint Committee onthe Constitutional Amendmenton Children. The proposedscope of the amendment to theConstitution related to (a) arecognition of the natural andimprescriptible rights of chil-dren; (b) the protection of thebest interests of children in pro-ceedings concerning custody,guardianship and access; (c) theprotection of the best interestsof children in the care andadoption system; and (d) theprotection of children in thecriminal justice system.

Aspects of the submissionwould be discussed with theCriminal Law Committee,and the draft submissionwould be circulated for discus-sion by the Council at itsFebruary meeting. G

Are you gettingyour e-zine?

The Law Society’s e-zine is the legal

newsletter of the solicitors’ profession. The

e-zine issues once every two months and

brings news and information directly to

your computer screen in a brief and easily-

digestible manner. If you’re not receiving

the e-zine, or have opted out previously

and would like to start receiving it again,

you can sign up by visiting the members’

section on the Law Society’s website at

www.lawsociety.ie. Click on the ‘New e-

zine for members’ section in the left-hand

menu bar and follow the instructions. You

will need your solicitor’s number, which

can be obtained by emailing the records

department at: [email protected].

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LAW SOCIETY GAZETTE MARCH 2008


practice notes

ELECTRONIC FUNDS TRANSFER: REQUIREMENTS FROM SOLICITORS

The Office of Accountants ofthe Court of Justice (‘the

accountants’) have set out theirrequirements from solicitors forthe introduction of electronicfunds transfer (EFT) for pay-ments out of court funds tosolicitors.

This will ensure that thefunds will be lodged directly tothe designated account and willbe available for immediate with-drawal. This will also eliminatethe risk of a cheque getting lost

in the post. In addition, on eachoccasion that a payment ismade, a remittance adviceadvising that the funds havebeen lodged to the bankaccount will be issued.

The accountants can onlymake EFT payments where thepayment is due to the solicitor’sfirm, as their system is based onthe bank details of suppliers. If apayment is made to an individualclient ‘care of’ the solicitors, theywill continue to issue cheques.

See below a suggested format that the accountants willrequire from each firm of solici-tors who wish to receive fundselectronically.

In the event that any of thesedetails change in the future,please ensure that the account-ants are notified as soon aspossible.

I confirm that the following bank details are correct:Full name of solicitor’s firm: Name and address of bank: Sort code: Account no: Signed:Date: Phone no:

Probate, Administration and Trusts Committee

DUBLIN CIRCUIT COURT: INFORMATION TO ACCOMPANY NOTICES OF TRIAL

CESSER OF PAYMENT OF REGISTRY OF DEEDS FEE BY MEANS OF A REVENUE STAMP

Practitioners should note that the Dublin Circuit Court Office has advised that a notice, in the form set out below and printed on the solic-itor’s headed notepaper, is to be completed and attached to all notices of trial for the Dublin Circuit Court.

(TO BE PRINTED ON SOLICITOR’S HEADED NOTEPAPER)NOTICE OF TRIAL

Record noTITLE1) No outstanding particulars on either side2) All discovery dealt with (both sides)3) Proofs advised4) Up-to-date reports available (where applicable)5) Matter not subject to application to transfer to the

High Court (if applicable) 6) TYPE OF CASE Personal injury

Debt collectionBreach of contract

Landlord and tenantAssaultBuilding contractFalse imprisonmentDefamation

7) DURATION OF CASE8) Dated to be avoided or any further notesSignedSolicitor plaintiff/defendantDateSolicitor’s address

Litigation Committee

Revenue has been informedby the Property Registra-

tion Authority (PRA) that a newRegistry of Deeds fees order isexpected to be introducedshortly. Under the new feesorder, fees will only be payabledirectly to the PRA by cash,cheque or electronically.

Currently, the fee in relation

to a memorial may be paiddirectly to the Registry ofDeeds or, alternatively, the feemay be paid through Revenueby having a stamp impressedon the memorial. The paymentmethod by means of aRevenue stamp will ceaseunder the new fees order. Thischange will have limited

impact, as the majority of feesin respect of memorials arecurrently paid directly to theRegistry of Deeds.

In anticipation of thischange and to ensure that thestamping of memorials pre-sented to Revenue offices isfinalised before the operativedate of the new fees order,

Revenue are ceasing to acceptRegistry of Deeds fees in rela-tion to memorials from 18March 2008.

From 18 March 2008, allmemorials should be sentdirectly to: Registry of Deeds,Kings Inns, Henrietta Street,Dublin 7, together with theappropriate fee.

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53www.lawsociety.ie

W ith effect from Wednes-day 20 February 2008,

solicitors may avail of video-con-ferencing facilities linked toCloverhill Remand Prison by wayof facilities located in the LawSociety’s consultation rooms inthe Four Courts. The video-con-ferencing facilities will be avail-able to practitioners at the fol-lowing times:• Monday-Friday: 10am-12 noon,

2pm-4pm,• Thursday: 10am-12 noon,

2.30pm-4pm.(Information regarding consulta-tions at other times is available

from the sources referred tobelow.)

Consultations are reservedin 15-minute slots. The feepayable to solicitors in respectof conferencing sessions duringthe period of the pilot scheme is€75. There will be no charge forthe use of the conferencingsuite for the period of the pilotscheme.

To arrange a video-conferenc-ing session, practitioners must:1) Request a video consultation

by email to the prison author-ities at [email protected], not later than 3.30pm

on the second-last workingday prior to the proposeddate of link-up. Emails mustbe in plain text only (no let-terheads, sketches, dia-grams, attachments) as oth-erwise the email will be quar-antined.

2) Receive confirmation ofappointment by email fromthe prison authorities.

Detailed information on the pro-cedures for arranging video-con-ferencing sessions, and on thevideo-conferencing scheme gen-erally, is available from the

Society’s website (www.lawsoci-ety.ie – ‘News’ section of themembers’ area), the FourCourts’ desk (leaflet available),and the Criminal Law Committee(leaflet available – tel: 01 6724800).

The pilot scheme will operatefor approximately three to sixmonths, with an operational re-view in April 2008. Members whohave comments/suggestions inrelation to the operation of thesystem should forward same toMr Ciaran Nevin, Prisons Service,at [email protected].

Criminal Law Committee

VIDEO-CONFERENCING WITH PRISONERS IN CLOVERHILL: PILOT SCHEMENOTICE

Saturday 17th May 2pmcelebrating 10 years keeping kids off the streets1 th

CALCUTTA RUN 2008

So sign up now and bring your family along for this really fun day out donations over €250 are tax deductable.

For more information, contact your firm’s Calcutta Run representative or visit www.calcuttarun.com

As it’s our 10th anniversary we hope to make it the best yet! All you have to do to take part is get fit enough

to run, jog or walk the scenic 10k and try to raise a minimum of €150 sponsorship so we can reach our target

€300k to help us reach our 10 year target of €2 million. After the run/walk join in the fun with a monster

barbeque, musical entertainment, activities for children and lots lots more. See our website for a training

programme to help you prepare for your run / walk (target 80 minutes).

Every finisher is a winner and makes a huge difference to the lives of kids in Calcutta and Dublin and

remember a great day out for you can make a great difference for them.

Sponsorship cards are available from our website www.calcuttarun.com or email us at

[email protected]

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legislation update

Acts passed in 2007Details of commencementdates updated to 15/2/2008.Details 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.

Appropriation Act 2007Number: 41/2007Date enacted: 21/12/2007Commencement date: 21/12/2007

Asset Covered Securities(Amendment) Act 2007Number: 13/2007Date enacted: 9/4/2007Commencement date: Com-mencement order(s) to bemade (per s61(3) of the act):31/8/2007 for all sections ofthe act other than section 30(per SI 591/2007)

Broadcasting (Amendment)Act 2007Number: 15/2007Date enacted: 10/4/2007Commencement date: 18/4/2007 for all sections of theact (per SI 158/2007)

Building Control Act 2007Number: 21/2007Date enacted: 21/4/2007Commencement date: Com-mencement order(s) to bemade (per s1(3) of the act)

Carbon Fund Act 2007Number: 12/2007Date enacted: 7/4/2007Commencement date: 7/4/2007

Child Care (Amendment)Act 2007

Number: 26/2007Date enacted: 8/5/2007Commencement date: Com-mencement order(s) to bemade (per s1(4) of the act):23/7/2007 for ss1, 2, 3 and 4,part 3 (ss14-21, ‘Consequen-tial and other amendments toChildren Act 2001’) and theschedule (per SI 509/2007)

Citizens Information Act2007Number: 2/2007Date enacted: 21/2/2007Commencement date: 21/2/2007 for s3 (change ofname from Comhairle toCitizens Information Board).Commencement order(s) tobe made for all other sections(per s10(3) of the act):30/3/2007 for all other sec-tions, other than s4 (insofar asit relates to the insertion ofparagraph (bb) in section 7(1)of the Comhairle Act 2000)and s5 (per SI 141/2007)

CommunicationsRegulation (Amendment)Act 2007Number: 22/2007Date enacted: 21/4/2007Commencement date: Com-mencement order(s) to bemade (per s1(2) of the act):15/5/2007 for all sections,other than ss9 and 21;1/7/2007 for s9; 15/5/2007for s21, except in relation tos32(2) and (6) of the ElectronicCommerce Act 2000 (theseprovisions will be broughtinto force when the necessarycommencement order ismade) (per SI 224/2007)

Community, Rural andGaeltacht Affairs(Miscellaneous Provisions)Act 2007Number: 32/2007

Date enacted: 9/7/2007Commencement date: 9/7/2007

Consumer Protection Act 2007Number: 19/2007Date enacted: 21/4/2007Commencement date: Com-mencement order(s) to bemade (per s1(2) of the act):1/5/2007 for all sections ofthe act, except ss48 and 49(which deal with surcharging)(per SI 178/2007); 1/5/2007appointed as the establish-ment day for the NationalConsumer Agency (per SI179/2007)

Copyright and RelatedRights (Amendment) Act2007Number: 39/2007Date enacted: 4/12/2007Commencement date: 4/12/2007

Courts and Court Officers(Amendment) Act 2007Number: 4/2007Date enacted: 5/3/2007Commencement date: 5/3/2007

Criminal Justice Act 2007Number: 29/2007Date enacted: 9/5/2007Commencement date: 9/5/2007 for part 8 (‘Amend-ments to the Sea Fisheries Acts2003 and 2006’). Commence-ment order(s) to be made forall other sections (per s1(2) ofthe act): 18/5/2007 for part 1(other than s3); part 2 (ss5-23, ‘Amendment of enact-ments relating to bail’) (otherthan ss6, 9-15, 18 and 19);part 3 (ss24-27, ‘Sentencing’);parts 5 (s33, ‘Misuse ofdrugs’) and 6 (ss34-40,‘Amendment of Firearms Acts

1925 to 2006’); part 7 (ss41-43, ‘Amendment of GardaSíochána Act 2005’) (otherthan s41); part 9 (ss45-60,‘Miscellaneous’) (other thans57); schedule 2; 1/7/2007 for s3; ss6, 9, 10, 14, 15 and18; part 4 (ss28-32,‘Inferences to be drawn incertain circumstances’); s57and schedule 1 (per SI236/2007)

Criminal Law (SexualOffences) (Amendment)Act 2007Number: 6/2007Date enacted: 7/3/2007Commencement date: 7/3/2007

Criminal Procedure(Amendment) Act 2007Number: 36/2007Date enacted: 25/10/2007Commencement date: 25/10/2007

Defence (Amendment) Act2007Number: 24/2007Date enacted: 21/4/2007Commencement date: 21/4/2007 for part 1 (ss1-3,‘Preliminary’) and for ss6 to9, 12, 14 to 17, 31 to 34 and65 (per s1(3) of the act).Commencement order(s) tobe made for all other sections(per s1(2) of the act). All com-mencement dates are subjectto the saving and transitionalprovisions set out in schedule1 (per s3 of the act); 7/5/2007for section 71 (inserts a news240A, ‘Courts Martial RulesCommittee’, into the DefenceAct 1954) (per SI 204/2007);24/9/2007 for s70 (substitutesa new subsection 240(1) relat-ing to rules of procedure inthe Defence Act 1954) (per SI660/2007)

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Education (MiscellaneousProvisions) Act 2007Number: 9/2007Date enacted: 10/4/2007Commencement date: 10/4/2007

Electoral (Amendment) Act2007Number: 14/2007Date enacted: 10/4/2007Commencement date: 10/4/2007

Electricity Regulation(Amendment) (SingleElectricity Market) Act2007Number: 5/2007Date enacted: 5/3/2007Commencement date: 18/6/2007 for ss1, 2, 3, 6, 7, 8,12, 13, 16 and 20 of the act;18/6/2007 for ss9 and 10,except insofar as those sec-tions relate to the single elec-tricity market committee (perSI 287/2007); 1/11/2007 forall other sections of the act,including ss9 and 10 insofaras these sections are notalready in operation (per SI731/2007)

European Communities Act2007Number: 18/2007Date enacted: 21/4/2007Commencement date: 21/4/2007

Finance Act 2007Number: 11/2007Date enacted: 2/4/2007Commencement date: 1/1/2007 for part 1 (ss1-56,‘Income tax, corporation taxand capital gains tax’), exceptwhere otherwise expresslyprovided in part 1 (pers130(9) of the act); 2/4/2007for other sections of the act,except where otherwiseexpressly provided for orwhere there is provision forthe making of a commence-ment order. Section 19(1) iscommenced by SI 614/2007,resulting in retrospectiveeffect, as per the dates in sec-

tion 19(2) of the act, beinggiven to the provisions of sec-tion 19(1) (as construed withreference to the EuropeanCommunities (Income Tax Relieffor Investment in CorporateTrades – Business ExpansionScheme and Seed CapitalScheme) Regulations 2007 (SI613/2007). 1/10/2007 fors109, subject to certain qualifi-cations. Section 109 amendspart 6 (‘Special provisionsrelating to uncertificated secu-rities’) of the Stamp DutiesConsolidation Act 1999 (per SI649/2007). 3/12/2007 for sec-tion 104(1), which inserts anew s81C (farmers’ relief fromstamp duty in certain circum-stances) into the Stamp DutiesConsolidation Act 1999 (per SI783/2007)

Finance (No 2) Act 2007Number: 31/2007Date enacted: 9/7/2007Commencement date: 9/7/2007

Foyle and CarlingfordFisheries Act 2007Number: 17/2007Date enacted: 10/4/2007Commencement date: Com-mencement order(s) to bemade (per s2 of the act)

Health Act 2007Number: 23/2007Date enacted: 21/4/2007Commencement date: Com-mencement order(s) to bemade (per s3 of the act):15/5/2007 for the followingprovisions of the act: (a) part1 (except the definition of‘designated centre’ in s2(1) ofthat part and except s2(2) ofthat part), part 2 (exceptss8(1)(c) and (d), 9 and 11 ofthat part), parts 3, 4, 5, 6, 11and 12; (b) ss40, 43 and 44 ofpart 7; (c) s104(2) and (3) ofpart 15; (d) s105 of part 15(except for the purposes ofpart 1 of schedule 2, itemisingcertain amendments to theChild Care Act 1991, item 3 ofpart 3 of schedule 2, itemising

certain amendments to theFreedom of Information Act1997, item 1 of part 4 ofschedule 2, itemising certainamendments to the Health Act2004, and part 5 of schedule2, itemising certain amend-ments to the Civil RegistrationAct 2004); (e) the followingschedules: (i) schedule 1, part2; (ii) schedule 2, part 2; (iii)schedule 2, part 3 (exceptitem 3); (iv) schedule 2, part 4(except item 1); (v) schedule2, part 6; (vi) schedule 2, part7 (per SI 226/2007).15/5/2007 appointed as theestablishment day for theHealth Information andQuality Authority under theact (per SI 227/2007).6/6/2007 for ss8(1)(d) and 9and for certain sections inparts 9 (ss70-78, ‘Inspectionsand investigations’) and 10(ss79-80, ‘Offences’) – see SI262/2007 for details (per SI262/2007). 5/11/2007 for (a)section 105, insofar as itrelates to the amendmentsreferred to in part 5 of sched-ule 2 to the act, and (b) part 5of schedule 2 to the act (theseprovisions amend the CivilRegistration Act 2004) (per SI735/2007)

Health Insurance(Amendment) Act 2007Number: 3/2007Date enacted: 22/2/2007Commencement date: 22/2/2007

Health (MiscellaneousProvisions) Act 2007Number: 42/2007Date enacted: 21/12/2007Commencement date: 21/12/2007

Health (Nursing Homes)(Amendment) Act 2007Number: 1/2007Date enacted: 19/2/2007Commencement date: 19/2/2007 for ss10 and 11; com-mencement order(s) to bemade for all other sections(per s12(3) of the act)

Local Government (RoadsFunctions) Act 2007Number: 38/2007Date enacted: 26/11/2007Commencement date: 1/1/2008 (per SI 793/2007)

Markets in FinancialInstruments andMiscellaneous ProvisionsAct 2007Number: 37/2007Date enacted: 31/10/2007Commencement date: Com-mencement order(s) to bemade (per s2 of the act):1/1/2008 for s25 and1/11/2007 for all other sec-tions, other than ss5, 8 and 19(per SI 730/2007). The actalready provides that ss5 and8 come into operation on1/11/2007. 1/2/2008 for s19(per SI 782/2007)

Medical Practitioners Act2007Number: 25/2007Date enacted: 7/5/2007Commencement date: Com-mencement order(s) to bemade (per s1(3) of the act)

Ministers and Secretaries(Ministers of State) Act2007Number: 33/2007Date enacted: 9/7/2007Commencement date: 9/7/2007

National DevelopmentFinance Agency(Amendment) Act 2007Number: 16/2007Date enacted: 10/4/2007Commencement date: 10/4/2007

National Oil ReservesAgency Act 2007Number: 7/2007Date enacted: 13/3/2007Commencement date: Com-mencement order(s) to bemade (per s1(2) of the act):16/4/2007 for part 1 (ss1-3,‘Preliminary and general’)and part 2 (ss4-6, ‘Sharetransfer’) of the act (per SI

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153/2007); 1/8/2007 for allother sections (per SI565/2007)

Personal InjuriesAssessment Board(Amendment) Act 2007Number: 35/2007Date enacted: 11/7/2007Commencement date: 11/7/2007

Pharmacy Act 2007Number: 20/2007Date enacted: 21/4/2007Commencement date: Com-mencement order(s) to bemade (per s1(2) of the act):22/5/2007 for the followingprovisions of the act: part 1(other than s4); part 2 (ss5-9,‘The Pharmaceutical Societyof Ireland’); part 3 (ss10-12,‘The council of the society’);s18 (‘Regulation of retailpharmacy businesses’); s76(‘Codes, rules and regula-tions’); schedule 1 (per SI243/2007)

Prisons Act 2007Number: 10/2007Date enacted: 31/3/2007Commencement date: Com-mencement order(s) to bemade (per s1(2) of the act):1/5/2007 for part 1 (ss1-3,

‘Preliminary and general), part4 (ss17-29, ‘Requirementsrelating to construction andextensions of prisons’), part 5(ss30-32, ‘Inspector of pris-ons’) and part 6 (ss33-43,‘Miscellaneous’) (other thanss33, 34, 38 and s42(a)) (per SI180/2007); 1/10/2007 for part3 (ss11-16, ‘Prison discipline’)and s42(a) (repeal of s3(3) ofthe Prisons (Visiting Committees)Act 1925) (per SI 370/2007);1/10/2007 for s38 (‘Paymentby prisoners for requestedservices’) (per SI 650/2007)

Protection of Employment(Exceptional CollectiveRedundancies and RelatedMatters) Act 2007 Number: 27/2007Date enacted: 8/5/2007Commencement date: 8/5/2007

Roads Act 2007Number: 34/2007Date enacted: 11/7/2007Commencement date: 11/7/2007

Social Welfare Act 2007Number: 40/2007Date enacted: 20/12/2007Commencement date: Var-ious – see act

Social Welfare andPensions Act 2007Number: 8/2007Date enacted: 30/3/2007Commencement date: 30/3/2007 for all sections of theact, other than ss5, 8, 9, 14,18, 20 to 25, 27, 28 and 34 to37, for which commence-ment orders are to be made(per s1(4) of the act):3/4/2007 for s35(a)(ii) and(iii), 5/4/2007 for s35(c)(ii)and (iii) and 6/4/2007 fors35(b)(ii) (per SI 146/2007);1/5/2007 for ss5, 8 and 28(b),3/5/2007 for ss22 and 23,and 7/6/2007 for s28(a) (perSI 219/2007); 27/4/2007 fors37 insofar as it relates to: (a)part 1 of schedule 2; (b) part2 of schedule 2 (except inso-far as it relates to s3A of thePensions Act 1990), and (c)part 3 of schedule 2 of theSocial Welfare and Pensions Act2007 (per SI 181/2007);22/5/2007 for s18; 6/6/2007for ss25(1), 35(b)(i), (c)(i) and(d) and 36; 4/7/2007 for s20(per SI 256/2007); 5/6/2007for s34 (per SI 268/2007);17/9/2007 for s37 and part 2of schedule 2 insofar as theseprovisions amend section 3A(as inserted by s39 of theSocial Welfare Law Reform and

Pensions Act 2006) of thePensions Act 1990 to specifythe sections of the PensionsAct 1990 a contravention ofwhich will warrant the appli-cation of a fine (per SI632/2007); 26/9/2007 for s9(other than paragraphs (b),(e)(i), (g)(i) and (i) of thatsection) (per SI 702/2007);27/9/2007 for ss21(b) and (c)and 24 (per SI 699/2007);1/11/2007 for s14 (per SI749/2007)

Statute Law Revision Act2007Number: 28/2007Date enacted: 8/5/2007Commencement date: 8/5/2007

Water Services Act 2007Number: 30/2007Date enacted: 14/5/2007Commencement date: Com-mencement order(s) to bemade (per s3 of the act):31/12/2007 for certain provi-sions of the act, including therepeal of enactments set outin the schedule to SI846/2007 (per SI 846/2007).See SI for details.

Prepared by the Law Society Library

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Budapest26–30 March 2008

DATES FOR YOUR DIARYThe Law Society of Ireland

Annual Conference 2008 willtake place in Budapest, capital

of Hungary. The conferencepackage includes return flights

from Dublin or Cork, fournights’ 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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Solicitors Disciplinary TribunalThis report of the outcome of a Solicitors Disciplinary Tribunal inquiry is published by the Law Society of Irelandas provided for in section 23 (as amended by section 17 of the Solicitors (Amendment) Act 2002) of the Solicitors(Amendment) Act 1994

THE HIGH COURT 2007 No 32SAIn the matter of GerardMurphy, solicitor, practisingas Gerard Murphy, Solicitor,at 1 Goldsmith Terrace,Bray, Co Wicklow, and in the matter of the SolicitorsActs 1954-2002 [4354/DT66/06]Law Society of Ireland(applicant)Gerard Murphy(respondent solicitor)

On 8 February 2007, theSolicitors Disciplinary Tribunalfound the respondent solicitorguilty of misconduct in hispractice as a solicitor in that he: a) Failed to pay over a

settlement cheque of €18,000

to the complainant in a timelymanner, having received samein April 2005 and only paidthe complainant in March2006, 11 months later,

b) Failed to comply with asection 10 notice dated 6February 2006 in a timelymanner, having only furnish-ed his file to the Society on 3 May 2006,

c) Attempted to charge thecomplainant fees of€2,268.75 for time that heallegedly spent in dealingwith her complaint to theSociety,

d) Failed to reply to the Society’sletters of 8 September 2005,16 September 2005, 20October 2005 and 6December 2005 in a timely

manner or at all, e) Failed to reply to the specific

enquiries set out in theSociety’s letter of 7 October2005 in a timely manner or atall.

The tribunal ordered that theLaw Society do bring suchfinding of the tribunal in respectof the respondent solicitorbefore the High Court, togetherwith the report of the tribunal tothe High Court, which reportincludes the opinion of thetribunal as to the fitness orotherwise of the respondentsolicitor to be a member of thesolicitors’ profession, havingregard to their findings andrecommendations in respect ofthe sanction that should be

imposed in regard to theirfindings in respect of therespondent solicitor.

On 22 October 2007, thePresident of the High Courtordered, pursuant to section 8 ofthe Solicitors (Amendment) Act1960 (as substituted by section18 of the Solicitors (Amendment)Act 1994 and amended bysection 9 of the Solicitors(Amendment) Act 2002), that therespondent solicitor shall not bepermitted to practise as a solepractitioner or in partnership,that he be permitted only topractise as an assistant solicito/runder the direct control andsupervision of another solicitorof at least ten years standing, tobe approved in advance by theLaw Society of Ireland. G

Publication of advertisements in this section is on a fee basis and does not represent an endorsement by the Law Society of Ireland.

SPANISH LAWYERS

RAFAEL BERDAGUER ABOGADOS

Avda. Ricardo Soriano, 29,Edificio Azahara Oficinas, 4 Planta, 29601 Marbella, Malaga, Spain

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

Web site: www.berdaguerabogados.com

PROFILE:

Spanish Lawyers Firm focusedon serving the need of the

foreign investors, whether incompany or property transac-tions and all attendant legalitiessuch as questions of inheritance,taxation, accounting and book-keeping, planning, land use andlitigation in all Courts.

FIELD OF PRACTICES:

General Practice, Administra-tive Law, Civil and Commer-

cial Law, Company Law, Bankingand Foreign Investments inSpain, Arbitration, Taxation,Family Law, International Law,Litigation in all Courts.

TWENTY YEARS ADVISING CLIENTS IN REAL ESTATE TRANSACTIONS IN SPAIN

Regulated by the Solicitors Regulation Authority of England and Wales

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

firstlaw update

Mental health lawAdmission order – renewal order –whether the correct procedures wereadopted in the circumstances – nodetention without independentreview – Mental Health Act2001.The applicant had a history ofcontact with the psychiatricservices due to his affliction withschizophrenia. In March 2007,he was admitted as a voluntarypatient and later left. His familyhad concerns for him in Apriland a recommendation wasmade to involuntarily admithim. The argument was one asto procedures adopted and thegeneral scheme of the act, whereno person shall be detainedwithout independent review.Having been detained on anadmission order, a renewal orderwas made without his knowledgea few days before the MentalHealth Tribunal was due to sit toreview his original detention inthe hospital. Issues were raisedby the applicant as to the exactdate that the renewal orderbecame effective, and the lawful-ness of his detention as a result.

The court held that thedetention the tribunal wasreviewing was the detention on

foot of an order under section14 of the act, which was anadmission order. The applicantwas detained in accordance withlaw and in his own interest. Theappeal was dismissed.MD (applicant/appellant) vClinical Director of StBrendan’s Hospital andMiriam Gannon (respondents),Supreme Court, 27/7/2007[FL14329]

DeportationJudicial review – whether therespondents ought to have givenseparate consideration to the minorapplicants’ claims for refugee status. The applicants applied for anorder of certiorari by way of judi-cial review, quashing the recom-mendations of the second-named respondent that theapplicants be refused asylum.They also sought an order ofprohibition and an injunctionrestraining their deportation.The applicants arrived in thisstate with their parents and,essentially, their claim related toa failure of the respondent toconsider their applications forasylum separately from theirparents’ application.

McGovern J refused theapplication, holding that theapplicants’ mother signed a doc-ument confirming that shewished to include her children inher asylum application.Furthermore, the concerns ofthe applicants’ parents in rela-tion to their children were raisedbefore the Refugee ApplicationsCommissioner and the RefugeeAppeals Tribunal. Consequently,there was no reason why theapplicants ought to have beentreated separately from theirparents. Further-more, the first-named respondent was notobliged, when making thedeportation order, to considerthe applicants separately. Z(Z), Z(G) and Z(S) (A minorsuing by his next friend andfather, ZZ) (applicants) vMinister for Justice, Equalityand Law Reform (respondent),High Court (McGovern J),26/6/2007 [FL14350]

Practice and procedureAmendment of a statement of claim– Civil Liability Act 1961, part 4– Rules of the Superior Courts.The plaintiff’s claim arose pur-suant to the Civil Liability Act1961, arising out of the death of

the plaintiff’s husband in a caraccident where his car collidedwith a truck and the contents ofthe load on the truck propelledforward, causing extensiveinjuries. The plaintiff sought toamend the statement of claimafter receiving details of particu-lars from the defendant. Amotion was heard on that basis.The defendants opposed themotion on the grounds of delay,that the new claim would bestatute barred, and that aninspection of the van was carriedout. The amendment soughtraised a new issue in the action,which was not raised by theplaintiff but by the defendant inits plea of negligence and con-tributory negligence. Time wasextended to deliver a reply thatwould deal, in terms of the over-loading of the vehicle, with aplea of negligence and contribu-tory negligence against theplaintiff.Allen (plaintiff/respondent) vIrish Holemaster Ltd (defen-dant/appellant),Supreme Court, 27/7/2007[FL14322]

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

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REFUGEE AND ASYLUM LAW

CONSTITUTIONAL LAW

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eurlegal

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

Public procurement – new Remedies DirectiveAnew directive that amends

the existing public pro-curement Remedies Directives(Council Directives 89/665/EEC of 21 December 1989 and92/13/EEC of 25 February1992) has recently been formal-ly adopted by the Council ofMinisters and the EuropeanParliament.

The objectives of Directive2007/66/EC of 11 December2007 are to provide clear andeffective procedures for seekingredress in cases where biddersconsider contracts to have beenunfairly awarded, so as to ensurethat contracts ultimately go tothe best tender and, as a conse-quence, make businesses andcitizens more confident thatpublic procurement proceduresare being conducted in a fair andcompetitive manner throughoutthe EU.

The new directive followedextensive consultations with allmajor stakeholders in the publicprocurement process, includinglawyers, which revealed thatlegal remedies that can be intro-duced at a stage before a publiccontract is actually concludedare not sufficiently effective inall member states and shouldtherefore be strengthened. EUlaw on public procurement aimsto increase competition andtransparency in order to createopportunities for all EU busi-nesses and better value andhigher-quality services for thetaxpayer: contracts should beawarded on the basis of objec-tive criteria that ensure compli-

ance with the principles oftransparency, non-discrimina-tion and equal treatment andthat guarantee that tenders areassessed in conditions of effec-tive competition.

The directive seeks to addessential clarifications to theexisting Remedies Directives toallow the results intended by thecommunity legislature to beattained. In particular, the direc-tive seeks to strengthen nationalreview procedures in cases ofillegal direct awards. Public pro-curement is a cornerstone of theinternal market and accounts forsome 16% of EU GDP.Member states have 24 monthswithin which to implement thedirective.

Review proceduresThe Remedies Directives and thenew Remedies Directive coverremedies for public contractsthat fall within the scope of thesubstantive EU directives onpublic procurement, Directive2004/18/EC (works, suppliesand services contracts in theclassical sector) and Directive2004/17/EC (works, suppliesand services contracts in thesectors of water, energy, trans-port and postal services). Thenew directive notes that,according to ECJ case law,member states should ensurethat effective and rapid reme-dies are available against deci-sions taken by contractingauthorities and contractingentities as to whether a particu-lar contract falls within the per-

sonal and material scope ofDirectives 2004/18/EC and2004/17/EC.

Tenderers are already afford-ed a degree of protection underthe current Remedies Directivesand as a result of Alcatel (CaseC-81/98, Alcatel Austria andOthers [1999] ECR I–7671),which held that the laws relat-ing to the review procedures ofthe award of public supply andpublic works contracts must beinterpreted as meaning thatmember states are required toensure that the contractingauthority’s decision, prior tothe conclusion of the contractas to the bidder with which itwill conclude the contract, is inall cases open to review in aprocedure whereby an appli-cant may have that decision setaside if the relevant conditionsare met (notwithstanding thepossibility, once the contracthad been concluded, of obtain-ing damages).

There has, however, beensome uncertainty as to howthese provisions apply in prac-tice and considerable criticismof the fact that these provisionsdo not address some of the mostserious breaches of procurementlaw, such as the illegal directaward of public contracts with-out competition and the misuseof framework agreements.

Minimum standstill periodIn order to address the absenceof a period allowing an effectivereview between the decision toaward a contract and the con-

clusion of a contract (which thedirective notes is a seriousobstacle to effective judicialprotection for the tenderersconcerned, namely those ten-derers who have not yet beendefinitively excluded), thedirective provides for a mini-mum standstill period of atleast ten calendar days from theday following the date on whichthe contract award decision issent to the tenderers and candi-dates concerned, during whichthe conclusion of the contractin question is suspended.

The standstill period shouldgive the tenderers concernedsufficient time to examine thecontract award decision and toassess whether it is appropriateto initiate a review procedure.Tenderers shall be deemed tobe concerned if they have notyet been definitively excluded.An exclusion is definitive if ithas been notified to the tender-ers concerned and has eitherbeen considered lawful by anindependent review body orcan no longer be subject to areview procedure. Candidatesshall also be deemed to be con-cerned if the contractingauthority has not made avail-able information about therejection of their applicationbefore the notification of thecontract award decision to thetenderers concerned.

The communication of theaward decision to each tendererand candidate concerned shallbe accompanied by a summaryof the relevant reasons as set

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out in article 41(2) of Directive2004/18/EC, subject to theprovisions of article 41(3) ofthat directive, and a precisestatement of the exact standstillperiod applicable, pursuant tothe transposing provisions ofnational law.

Derogations from the stand-still periodArticle 2(b) provides that mem-ber states may provide, by wayof derogation, that the stand-still periods shall not applywhere (a) Directive 2004/18/EC does not require prior pub-lication of a contract notice inthe Official Journal (OJEU) (anotice of the contractingauthority’s intention to con-clude the contract is, however,required to be published in theOJEU in accordance with arti-cle 3a and a standstill period often days to be applied beforeconcluding the contract. A sim-ilar procedure applies wheremember states have invokedthe derogation from the stand-still period for contracts basedon a framework agreement anda dynamic purchasing system –the requirements are set out inarticle 2d(5)); (b) the only ten-derer concerned is the one whohas been awarded the contractand there are no candidatesconcerned; and (c) in the caseof a contract based on a frame-work agreement as providedfor in article 32 of Directive2004/18/EC and in the case ofa specific contract based on adynamic purchasing system asprovided for in article 33 ofthat directive.

In order to combat illegalawards in respect of which astandstill derogation had beeninvoked, member states are toensure that such contracts areineffective, in accordance witharticles 2(d) and 2(f) of thedirective, where applicable.

Relevant informationThe standstill period shouldgive the tenderers concernedsufficient time to examine the

contract award decision and toassess whether it is appropriateto initiate a review procedure.When the award decision isnotified to them, the tenderersshould be given the relevantinformation that is essential forthem to seek effective review.The same applies equally tocandidates, to the extent thatthe contracting authority orentity has not made available indue time information about therejection of their application.

Illegal direct awardsThe directive regards ineffec-tiveness as the most effectiveway to restore competition andto create new business opportu-nities for those economic opera-tors who have been deprivedillegally of their opportunity tocompete. A contract resultingfrom an illegal direct awardshould therefore, in principle, beconsidered ineffective. The inef-fectiveness, however, should notbe automatic but should beascertained by or should be theresult of a decision of an inde-pendent review body.

Where a contract is so deter-mined to be ineffective, the con-tract will have to be tenderedagain, this time in accordancewith the appropriate rules.National courts may only decidethat these contracts remain inforce if the review body finds,after having examined all rele-vant aspects, that overridingreasons relating to a generalinterest require that the effectsof the contract be maintained.

In such cases, alternativeremedies that are effective,proportionate and dissuasivemust be applied, which mayentail the shortening of theduration of the contract or theimposition of fines on the con-tracting authority – an awardof damages where the scope ofcancellation of contractualobligations that still have to beperformed has been limitedwould not, however, constitutean appropriate remedy.

In relation to overriding rea-

sons relating to a general inter-est, the directive points out thateconomic interests in the effec-tiveness of the contract may onlybe considered as overriding rea-sons if, in exceptional circum-stances, ineffectiveness wouldlead to disproportionate conse-quences. However, economicinterests directly linked to thecontract concerned shall notconstitute overriding reasonsrelating to a general interest.Such interests include the costsresulting from the delay in theexecution of the contract, thecosts resulting from the launch-ing of a new procurement proce-dure, the costs resulting fromthe change of the economicoperator performing the con-tract and the costs of the legalobligations resulting from theineffectiveness.

In order to prevent seriousinfringements of the standstillobligation and automatic sus-pension, which, the directivenotes, are prerequisites foreffective review, effective sanc-tions should apply. Contractsthat are concluded in breach ofthe standstill period or auto-matic suspension should there-fore be considered ineffectivein principle if they are com-bined with infringements ofDirective 2004/18/EC orDirective 2004/17/EC, to theextent that those infringementshave affected the chances of thetenderer applying for review toobtain the contract.

The principle of ineffective-ness may be inappropriate inthe case of other infringementsof formal requirements. Insuch cases, member statesshould have the flexibility toprovide for alternative penal-ties. It is for the member statesto determine the details ofalternative penalties and therules of their application.

Requirements for review proceduresMember states are to ensurethat the measures taken for thepurpose of providing effective

review procedures include pro-vision for powers to take inter-im measures with the aim ofcorrecting the alleged infringe-ment or preventing furtherdamage to the interests con-cerned, either to set aside orensure the setting aside of deci-sions taken unlawfully, or theawarding damages to personsharmed by an infringement.

A review procedure shouldbe available at least to any per-son having or having had aninterest in obtaining a particu-lar contract and who had beenor risks being harmed by analleged infringement.

Member states may also pro-vide that the body responsiblefor the review procedures maytake into account the probableconsequences of interim meas-ures for all interests likely to beharmed, as well as the publicinterest, and may decide not togrant such measures where theirnegative consequences couldexceed their benefits. A decisionnot to grant interim measuresshall not, however, prejudiceany other claim of the personseeking such measures. In rela-tion to the allocation of powersto deal with the review, memberstates may confer powers onseparate bodies responsible fordifferent aspects of the reviewprocedure.

Intention to seek reviewWhere a member state requiresa person intending to use areview procedure to inform thecontracting authority or con-tracting entity of that intention,the directive provides that, insuch cases, it is necessary tomake it clear that this should notaffect the standstill period or anyother period to apply for review.Further, when a member staterequires that the person con-cerned has first sought a reviewwith the contracting authorityor contracting entity, it is neces-sary that this person should havea reasonable minimum periodwithin which to refer to thecompetent review body before

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the conclusion of the contract,in the event that that personshould wish to challenge thereply or lack of reply from thecontracting authority or con-tracting entity.

However, seeking reviewshortly before the end of theminimum standstill periodshould not have the effect ofdepriving the body responsiblefor review procedures of theminimum time needed to act, inparticular, to extend the stand-still period for the conclusion ofthe contract. In the event, it isnecessary to provide for an inde-pendent minimum standstillperiod that should not endbefore the review body has takena decision on the application.This should not prevent the

review body from making aprior assessment of whether thereview, as such, is admissible. Inthis regard, the directive statesthat member states may providethat this period shall end eitherwhen the review body has takena decision on the application forinterim measures, including on afurther suspension of the con-clusion of the contract, or whenthe review body has taken adecision on the merits of thecase, in particular on the appli-cation for the setting aside of anunlawful decision.

Except where the directiveprovides for member states toensure that a contract is consid-ered ineffective by a review bodyin specified instances, the exer-cise of powers such as the grant-

ing of interim measures, the set-ting aside of decisions takenunlawfully or the awarding ofdamages are to be determinedby national law. Similarly, theconsequences of a contractbeing considered ineffective areto be determined by nationallaw – national law may, in partic-ular, provide for retroactive can-cellation of all contractual obli-gations or limit the scope of thecancellation to those obligationsthat still have to be performed.

Enforceability of decisionsMember states are to ensurethat decisions taken by bodiesresponsible for review proce-dures can be effectivelyenforced. Where bodiesresponsible for review proce-

dures are not judicial in char-acter, written reasons for theirdecisions must always begiven. Further, in such a case,provision must be made toguarantee procedures wherebyany allegedly illegal measuretaken by the review body orany alleged defect in the exer-cise of the powers conferredon it can be the subject of judi-cial review or review by anoth-er body that is a court or tri-bunal within the meaning ofarticle 234 of the treaty andindependent of both the con-tracting authority and thereview body.

James Kinch is a senior executivesolicitor in the law department ofDublin City Council.

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RECENT DEVELOPMENTS IN EUROPEAN LAW

Case C-411/95, Félix Palaciosde la Villa v Cortefiel ServiciosSA, 16 October 2007. Directive2000/78 established a generalframework for equal treatmentin employment. It aims to com-bat certain kinds of discrimina-tion, including discrimination ongrounds of age.

Spanish law treats compul-sory retirement clauses in col-lective agreements as lawful –where they provide as solerequirements that workers musthave reached retirement age(65 years) and fulfilled othersocial security conditions forentitlement to a contributoryretirement pension.

Mr de la Villa worked forCortefiel from 1981 as organi-sational manager. In 2005, hewas notified of the terminationof his contract of employment,as he had reached the compul-sory retirement age. At thisdate, he had completed theperiods of employment neces-sary to draw a retirement pen-sion under the social securityscheme amounting to 100% of

his contribution base. Mr de la Villa argued that the

notification to him amounted toa dismissal and took proceed-ings in the Spanish courts. TheSpanish courts referred a num-ber of questions to the ECJ onthe interpretation of Directive2000/78. The ECJ held that theSpanish legislation fell withinthe scope of the directive.

The legislation provides that,when a worker reaches the agefixed for compulsory retirement,this leads automatically to thetermination of his employmentrelationship. It thus establishesrules relating to “employmentand working conditions, includ-ing dismissals and pay” withinthe meaning of the directive.

The court then consideredwhether there were possiblejustifications for the differencein treatment. The legislationwas part of a national policyaiming to promote better acc-ess to employment by means ofbetter distribution of workbetween the generations. Thefact that the legislation doesnot formally refer to an aim ofthat kind does not automatical-

ly exclude the possibility that itmay be justified.

The ECJ considered thatother elements, taken from thegeneral context of the measureconcerned, may enable its un-derlying aim to be identified forthe purposes of judicial reviewas regards its justification. Thecourt inferred from the contextin which it was adopted that themeasure was aimed at regulat-ing the national labour market,in particular for the purposes ofchecking unemployment.

The promotion of a high levelof employment is one of theends pursued both by the EUand the EC. Such an aim, inprinciple, could be regarded as“objectively and reasonably”justifying a difference in treat-ment on grounds of age.

Member states enjoy broaddiscretion in their choice, notonly to pursue a particular aimin the field of social and employ-ment policy, but also in the def-inition of measures capable ofachieving it. The national meas-ures may not go beyond what is“appropriate and necessary” toachieve the aim pursued by the

member state concerned. The court found it was not

unreasonable for a memberstate to take the view that com-pulsory retirement, as a workerreaches the age-limit providedfor, may be appropriate and nec-essary to achieve the legitimateaim of promoting full employ-ment by facilitating access tothe labour market.

In addition, the measure didnot unduly prejudice the legiti-mate claims of workers subjectto compulsory retirement. Thenational legislation is not onlybased on a specific age, butalso takes account of the factthat the persons concerned areentitled to financial compensa-tion by way of a reasonableretirement pension at the endof their working life.

Case C-98/06, Freeport plc vOlle Arnoldsson, 11 October2007. Mr Arnoldsson is anemployee of a company thathas, since 1996, carried out‘factory shop’ retail-centredevelopment projects through-

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out Europe. Freeport acquired anumber of those projects fromthe company. One of these wasa project is Kungsbacka,Sweden.

At a meeting between MrArnoldsson and the managingdirector of Freeport, it wasagreed that he would receive aStg£500,000 success feewhen this shop opened. Someweeks later, Freeport con-firmed the agreement in writ-ing, but added three conditionsto payment of the fee. Heaccepted those conditions.One of these provided that thepayment he would receivewould be made by the companythat was to become the ownerof the Kungsbacka site.Freeport sent Mr Arnoldssonwritten confirmation of therevised agreement.

The shop in Sweden isowned by a Swedish company,Freeport Leisure (Sweden) AB.It is owned by a wholly ownedsubsidiary of Freeport plc.Arnoldsson asked both Freeportand Freeport AB to pay his fee.Freeport AB refused as it wasnot a party to the agreementand did not exist when theagreement was concluded.

In February 2003, hebrought an action in theSwedish courts against bothcompanies, claiming the pay-ment of his fee with interest. Hebrought this action againstFreeport, relying on article 6(1)of Regulation 44/2001.Freeport argued that it was notestablished in Sweden and thatthe claims were not so closelyconnected as to confer jurisdic-tion on the Swedish courts.Freeport argued that the claimagainst it was contractual innature, whereas that againstFreeport AB was tortious (asArnoldsson had no contractual

relationship with that company).Thus, article 6(1) should not beapplied, as the two actionswere not connected.

The case was referred to theECJ. It was asked whether anaction based on a disputed obli-gation on the part of a companyto make a payment as a conse-quence of an undertaking givenby an undertaking that is nei-ther a representative nor anagent of the company can beconsidered as contractual innature.

The court held that the ques-tion rested on the premise thatarticle 6(1) does not applywhere actions brought against anumber of defendants beforethe courts for the place whereany one of them is domiciledhave different legal bases. Itpointed out that it was notapparent from the wording ofarticle 6(1) that the conditionslaid down for application of thatprovision include a requirementthat the actions brought againstdifferent defendants shouldhave identical legal bases.

It is for the national court toassess whether there is a suffi-cient connection between thedifferent claims so that theyshould be heard together toavoid the risk of irreconcilablejudgments result from separateproceedings. It distinguished itsearlier decision in RéunionEuropéenne as having beendecided in a different legal andfactual context.

The Swedish court alsoasked whether the applicationof article 6(1) presupposes thatthe action was not broughtagainst a number of defendantswith the sole object of oustingthe jurisdiction of the courts ofthe member states where oneof the defendants is domiciled.

The ECJ indicated that article

6(2) expressly provides for acase in which an action isbrought solely in order toremove the party sued from thejurisdiction of the court thatwould be competent in hiscase. There is no such expressprovision in article 6(1). Thetest for the application of article6(1) is that there is a sufficientconnection between the claimsto make it expedient to hearand determine them together,to avoid the risk of irreconcil-able judgments resulting fromseparate proceedings.

Case C-119/05, Ministero dell’Industria, del Commercio edell’Artigianato v Lucchini SpA,18 July 2007. In 1990, thecommission declared all stateaid applied for under an Italianlaw as incompatible with thecommon market.

Lucchini, a company that hadapplied for the aid in 1985,obtained final judgment in thenational courts that it was enti-tled to the aid for which it hadapplied. In obtaining judgment,it had not referred to the appli-cable EC law nor to the com-mission’s decision.

In 1999, the AdministrativeCourt of Lazio declared that, asthe national court’s decisionhad become final, the Ministryof Industry – which had revokedthe decree granting the aid andhad called on Lucchini to repayit on foot of the commission’sdecision – could not revoke thepayment of the aid.

The court was askedwhether EC law precludes appli-cation of the principle of resjudicata in such circumstances.The ECJ pointed out that,although national courts haveoccasion to consider whether

EC acts are valid, they do notthemselves have jurisdiction todeclare such acts invalid. Thatjurisdiction is vested in the ECcourts, and such acts becomedefinitive unless properly chal-lenged by their respectiveaddressees. A recipient of aidthat has been the subject of anegative decision by the com-mission cannot call into ques-tion the lawfulness of that deci-sion before the national courtsby challenging the nationalmeasures taken to implementthat commission decision.

An interpretation of the rele-vant Italian legislation that laiddown the principle of res judica-ta – which precludes the open-ing of a second set of proceed-ings or the examination of mat-ters that could have been raisedin earlier proceedings but werenot – could result in effectsbeing attributed to a decision ofa national court that exceededthe jurisdiction of the nationalcourt in question. Such an inter-pretation could frustrate theapplication of community lawinsofar as it would make itimpossible to recover state aidthat had been granted in breachof EC law.

As a result of the primacy ofEC law, national courts mustgive full effect to its provisionsand – if necessary – refuse, oftheir own motion, to apply anyprovision of national law that iscontrary to those provisions ofEC law. Therefore, the relevantItalian law seeking to lay downthe principle of res judicatamust not be applied insofar asits application prevents therecovery of state aid granted inbreach of EC law that has beenfound to be incompatible withthe common market in a com-mission decision that hasbecome final. G

STATE LIABILITY

Meet at the Four Courts

FOR BOOKINGS CONTACT MARY BISSETT OR PADDY CAULFIELD

TEL: 668 1806LAW SOCIETY ROOMSat the Four Courts


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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 April Gazette: 19 March 2008. For further information, contact Catherine Kearney or Valerie Farrell ontel: 01 672 4828 (fax: 01 672 4877)

These rates will apply from Jan/Feb 2008 to Dec 2008

GazetteGazetteL A W S O C I E T Y

11668F/41664; lands: plot of groundsituate in the townland ofRiverstown and barony ofBarrymore in the county of Cork;Co Cork

Regd owner: Daniel Joseph Guerin;folio: 54696F; lands: plot of groundsituate in the townland of Rathduaneand barony of Muskerry West, in thecounty of Cork; Co Cork

Regd owner: Francis Diver andMargaret Diver, West End, Ardara,Co Donegal; folio: 5548 and 5737;lands: Drumbaran; Co Donegal

Regd owner: Donal Campbell andDarina Campbell, Speenogue, Bart,Co Donegal; folio: 55967F; lands:Speenoge; Co Donegal

Regd owner: Pierce Bermingham andNancy Boyle; folio: DN46232L;lands: property situate in the town-land of Ballycragh and barony ofUppercross; Co Dublin

Regd owner: Bernadette Brennan (49undivided 1/50 share(s)); folio;DN23718F; lands: property situatein the townland of Kilbogget andbarony of Rathdown in the county ofDublin; Co Dublin

Regd owner: Mohamed Taha (oneundivided 1/50 share); folio:DN23718F; lands: property situatein the townland of Kilbogget andbarony of Rathdown in the county ofDublin; Co Dublin

Regd owner: Industrial DevelopmentAgency (Ireland) (statutory corpora-tion); folio: DN134874F; lands:property situate in the townland ofFortunestown and barony ofNewcastle; Co Dublin

Regd owner: Deirdre Mille-Kavanagh;folio: DN56583F; lands: propertysituate on the east side of theMalahide Road in the parish of

Killester, district of Killester and cityof Dublin; Co Dublin

Regd owner: Francis Keogh andConstance Keogh, 25 MountDrummond Square, Harold’s Cross,folio: DN155702F; Co Dublin

Regd owner: Roisin Sullivan and PhilipSullivan, 54 Seagrange Road; folio:DN46728L; Co Dublin

Regd owner: John Carlin (one undivid-ed 1/100 share); folio: DN112530F;lands: property known as no 55Prospect Avenue, Rathfarnham, situ-ate in the townland of Newtown andbarony of Uppercross; Co Dublin

Regd owner: Killian Banks (99 undivid-ed 1/100 share); folio: DN112530F;lands: property known as no 55Prospect Avenue, Rathfarnham, situ-ate in the townland of Newtown andbarony of Uppercross; Co Dublin

Regd owner: Joseph O’Keeffe and AnnaO’Keeffe; folio: DN37185L; lands:property situate in the townland ofTempleogue and barony ofUppercross; Co Dublin

Regd owner: Gearoid Clarke and EdelClarke; folio: DN61007L; lands:property situate in the townland ofCastleknock and barony ofCastleknock; Co Dublin

Regd owner: Hugh Ignatius Byrne;folio: DN3526F; lands: property sit-uate in the townland of Ballystruanand barony of Coolock; Co Dublin

Regd owner: Teresa McKenna; folio:DN1153; lands: property situate inthe townland of Coolquoy Commonand barony of Nethercross; CoDublin

Regd owner: John O’Rourke andAntoinette O’Rourke; folio:DN130190F; lands: a plot of groundknown as 9 Whitechapel Road,Blanchardstown, situate in the town-

land of Coolmine and electoral divi-sion of Blanchardstown-Coolmineand barony of Castleknock; CoDublin

Regd owner: Martin Joseph Gibsey;folio: 28716F; lands: townland ofKeernaun and barony of Clare; CoGalway

Regd owner: Hans H Hoppe; folio:3712F; lands: townland of Dooros(Ross By) and barony of Ross; CoGalway

Regd owner: Thomas O’Halloran;folio: 8359F and 56131F; lands:townland of Carrowmoreknock andFreeheen Island and barony ofMoycullen; Co Galway

Regd owner: Tom Quinton; folio:75125F; lands: townland ofKnockaunnagat and barony ofDunmore; Co Galway

Regd owner: Patrick Whyte (as tenant-in-common of one undivided halfshare); folio: 53000; lands: townlandof Knockroe, Killimor,Cloonsheecahill, Cappanasruhaunand barony of Kilconnell; CoGalway

Regd owner: William Brophy andEileen Brophy; folio: 16309F; lands:townland of Clievragh and barony ofIraghticonnor; Co Kerry

Regd owner: Patrick Dineen andHannah M Dineen; folio: 28736F;lands: townland of Camp and baronyof Corkaguiny; Co Kerry

Regd owner: Terry Egan; folio: 7531F;lands: Carrahane Lower and baronyof Clanmaurice; Co Kerry

Regd owner: Timothy Murphy andSheelagh Murphy; folio: 7189F;lands: townland of Barrow andbarony of Trughanacmy; Co Kerry

Regd owner: John O’Connor; folio:19856F; lands: townland 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 certificate issuedin respect of the lands specified in theschedule, which original land certifi-cate is stated to have been lost or inad-vertently destroyed. The land certifi-cate will be dispensed with unless noti-fication is received in the registry with-in 28 days from the date of publicationof this notice that the original certifi-cate is in existence and in the custodyof some person other than the regis-tered owner. Any such notificationshould state the grounds on which thecertificate is being held.Property Registration Authority,Chancery Street, Dublin 7(Published 7 March 2008)

Regd owner: John Gaskin; folio: 184F;lands: Ballydarton and barony ofIdrone East; Co Carlow

Regd owner: Patrick Keogh(deceased); folio: 1726F; lands:Aclare and Myshall and barony ofForth; Co Carlow

Regd owner: John William James;folio: 7972F; lands: Tankardstownand barony of Rathvilly; CoCarlow

Regd owner: Anthony Shields, 81Edgewood Lawn, Blanchardstown,Dublin 15; folio: 5369F; lands:Portaliff; Co Cavan

Regd owner: John Joseph Murphy andJohannah Murphy, Uragh,Swanlinbar, Co Cavan; folio: 2400;lands: Uragh, Commas; Co Cavan

Regd owner: Annie McKiernan,Leitra, Corlough, Bawnboy, CoCavan; folio: 1050; lands: Leitra; CoCavan

Regd owner: Patrick O’Donoghue andFrances O’Donoghue; folio:14227F; lands: townland ofBallyconnoe South and barony ofBurren; area: 0.164 hectares; CoClare

Regd owner: Martin Reddington andColette Reddington; folio: 16608F;lands: townland of Crag and baronyof Tulla Lower; area: 10.927hectares; Co Clare

Regd owner: Seamus Barry (deceased);folio: 35035; lands: plot of groundsituate in the townland ofDromderrig and barony of Kinsalein the county of Cork; Co Cork

Regd owner: John Joseph Cronin(deceased); folio: 699; lands: plot ofground situate in the townland ofBallyard and barony of Barrymorein the county of Cork; Co Cork

Regd owner: Denis Dooley; folio:

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Croogorts and barony ofTrughanacmy; Co Kerry

Regd owner: Patricia O’Shea; folio:10646F; lands: townland of Ross andbarony of Trughanacmy; Co Kerry

Regd owner: John P O’Sullivan; folio:22870F; lands: townland ofDerrylahan and barony ofGlanarought; Co Kerry

Regd owner: Donnacha Finucane;folio: 37636F; lands: townland ofKilcolgan Upper and baronyIraghticonnor; Co Kerry

Regd owner: Albert Schumacher-Cantillon; folio: 19469; lands: town-land of Knockenagh South andbarony of Iraghticonnor; Co Kerry

Regd owner: Thomas Reilly (deceased),Baltracey, Maynooth, Co Kildare;folio: 8882F; lands: townland ofBaltracey (Ikeathy and OughteranyBy) in the barony of Ikeathy andOughterany in the electoral divisionof Balraheen; Co Kildare

Regd owner: Catherine Delahunty(deceased); folio: 5263; lands:Filbuckstown, known as DouraneRoad, Mooncoin, Waterford andbarony of Iverk; Co Kilkenny

Regd owner: John Cunningham; folio:3247; lands: Baunfree and barony ofKells; Co Kilkenny

Regd owner: Michael McGrath; folio:15083; lands: Aughatubbrid orChatsworth and barony ofFassadinin; Co Kilkenny

Regd owner: Mary Fahy, MaryMurphy, Mary O’Flynn, EllenHogan, Una Mary O’Neill; folio:1605; lands: Reviewfields andbarony of Shillelogher; CoKilkenny

Regd owner: Margaret O’Doherty;folio: 5297F; lands: Park View,Kilmakevoge, Glenmore and baronyof Ida; Co Kilkenny

Regd owner: Anne Carroll; folio: 7810;lands: Ballykenneen Upper andbarony of Tinnahinch; Co Laois

Regd owner: Patrick Earley, Drum-humman, Carrick-on-Shannon, CoLeitrim; folio: 10544; lands:Drumhumman; Co Leitrim

Regd owner: John Francis Keating,Ballakiltyfea, Cloone, Carrick-on-Shannon, Co Leitrim; folio: 13519;lands: Bellakiltyfea; Co Leitrim

Regd owner: Giesela Adam and HeinzJoachim Adam, c/o Brittons,Solicitors, Ballyshannon, CoDonegal; folio: 12751, 2457F and13249; lands: Drumany (O’Brien);Co Leitrim

Regd owner: Cealtra DevelopmentsLimited; folio: 27842F; lands: town-land of Bohereen and barony ofClanwilliam; Co Limerick

Regd owner: Patrick McCarthy(deceased); folio: 9495F; lands:townland of Barnakyle and baronyof Pubblebrien; Co Limerick

Regd owner: Denis O’Grady and

Miriam O’Grady; folio: 33980F;lands: townland of Rathcahill Westand barony of Glenquin; CoLimerick

Regd owner: John Walsh; folio: 11266;lands: townland of Kilglass andbarony of Coshlea; Co Limerick

Regd owner: Kathleen Keegan andAnnie Keegan, Tenelick, Colehill,Co Longford; folio: 10582; lands:Tennalick; Co Longford

Regd owner: Michael Casey, Clonmee,Newtowncashel, Co Longford;folio: 4127F; lands: Cloonmee, CoLongford

Regd owner: John Michael Taaffe,Dromin, Drogheda, Co Louth;folio: 3050; lands: Rathescar; CoLouth

Regd owner: Michael J Higgins andJohn P Creighton; folio: 7372; lands:townland of Gortgarve and baronyof Gallen; area: 3.497 hectares; CoMayo

Regd owner: John Jeffers; folio: 2617F;lands: townland of Carrowbeg andbarony of Burrishoole; Co Mayo

Regd owner: Michael McQueeney andMary McQueeney; folio: 44695;lands: townland of Hazelhill andbarony of Costello; area: 0.0177hectares; Co Mayo

Regd owner: Mary Needham; folio:33839F; lands: townland of Murriskdemesne and Bellatalleen andbarony of Murrisk; Co Mayo

Regd owner: Richard Niland and BridNiland; folio: 28136F; lands: town-land of Kiltaugharaun, Knockalinskand Creggarve and barony ofKilmaine; Co Mayo

Regd owner: Noel A Farrell and AnneFarrell, Kilbride, Mulhuddart, CoDublin; folio: 23546F; lands:Ballymacarney; Co Meath

Regd owner: John Michael Taaffe,Dromin, Dunleer, Co Louth; folio:10753; lands: Deenes; Co Meath

Regd owner: Robert Harper; folio:18207; lands: Annamult and baronyof Shilleogher; Co Meath

Regd owner: Denis Kelly; folio: 4344F;lands: Cloghan Demesne,Gortarevan, Clonahenogue andbarony of Garrycastle; Co Offaly

Regd owner: James Anderson; folio:624F; lands: Knockdrin and baronyof Warrenstown; Co Offaly

Regd owner: James Joseph Dohertyand Mary Kate Doherty; folio:33221; lands: townland of Drummadand barony of Frenchpark; area: 1acre; Co Roscommon

Regd owner: Michael Earley andPamela Earley; folio: 12876F; lands:townland of Ballypheasan andbarony of Balintober South; area:0.0530 hectares; Co Roscommon

Regd owner: Paul Kelly; folio: 30942;lands: townland of Carrow Beg andbarony of Boyle; area: 4.2391hectares; Co Roscommon

Regd owner: Eamon Carney andPauline Carney; folio: 13585F;lands: townland of Buninna andbarony of Tireragh; area: 0.46hectares; Co Sligo

Regd owner: John P Healy and EileenHealy; folio: 17561; lands: townlandof Lissaneeny, Srannagh andClooskirt and barony of Tirerrill;Co Sligo

Regd owner: Gerard Carroll; folio:141L; lands: townland ofGortmaloge and barony of Iffa andOffa East; Co Tipperary

Regd owner: John Commins; folio:2197; lands: townland of Blackcastleand barony of Eliogarty; CoTipperary

Regd owner: Mortimer Barron andBreda Barron; folio: 12728; lands:plot of ground situate in the town-lands of (1), (4) Toberagoole, (2), (5)Pilltown, (3) Garrananaspick, in thebarony of Decies-within-Drum inthe county of Waterford; CoWaterford

Regd owner: Michael Coyne(deceased); folio: 7543; lands: plotof ground situate in the townland ofMoyng and barony of Decies-with-in-Drum in the county ofWaterford; Co Waterford

Regd owner: John Murphy; folio:1705F; lands: plot of ground situatein the townland of Headboroughand barony of Coshmore andCoshbride in the county ofWaterford; Co Waterford

Regd owner: John Skehan; folio: 2396;lands: plot of ground situate in thetownland of Shanakill in the baronyof Upper Third in the electoraldivision of Rathgormack in thecounty of Waterford; CoWaterford

Regd owner: Desmond Dalton,Parkanham Hall Road,Castlepollard, Co Westmeath;folio: 11618; lands: KinturkDemesne, Co Westmeath

Regd owner: Hans Eric Ehlers, 35Auburn Heights, Athlone, CoWestmeath; folio: 5198; lands:Collegeland; Co Westmeath

Regd owner: James Lowry, Rath,Glasson, Athlone, Co Westmeath;folio: 3724; lands: Rath; CoWestmeath

Regd owner: Alfred Palmer, 23Merville Road, Stillorgan, CoDublin, and Vincent J Holloway, 12St Brigid’s Road, Clondalkin, CoDublin; folio: 19045; lands:Creaghduff; Co Westmeath

Regd owner: John Ross, Newport,Lenamore, Co Longford; folio:12466; lands: Corrydonnellan; CoWestmeath

Regd owner: John Ross, Corrydon-nellan, Rathowen, Co Westmeath;folio: 19158; lands: Corrydonnel-lan; Co Westmeath

Regd owner: John McCarthy; folio:9115; lands: Coolnastudd andbarony of Gorey; Co Wexford

Regd owner: Bridget Murray; folio:23022; lands: Quanstown andbarony of Forth; Co Wexford

Regd owner: Peter Breen; folio:17949; lands: Ballymacoonoge, TheBallagh and barony of BallaghkeenSouth; Co Wexford

Regd owner: Elizabeth Mary Curran;folio: 6785, 6786, 8355, 2583F;lands: Ballynamona and barony ofBallaghkeen North; Co Wexford

Regd owner: Louise Mary Ennis;folio: 21271; lands: Tullycanna andbarony of Bargy; Co Wexford

Regd owner: Kathleen Hoxey,Dernamuck, Knockanarrigan,Donard, Co Wicklow; folio: 6348;lands: townland of Clonshannonand barony of Talbotstown Upper;Co Wicklow

Regd owner: Paul Janzen ofBallinvalley, Redcross, CoWicklow; folio: 8811F and 9073;lands: townland of BallinvallyUpper (ED Ennereilly) in thebarony of Arklow in the electoraldivision of Ennereilly, the cottagethereon situate in the townland ofBallinvally Upper (ED Ennereilly),known as Ballinvalley Upper,Woodenbridge, Arklow, in thebarony of Arklow in the electoraldivision of Ennereilly; CoWicklow

Doyle, Stephen (deceased), late ofWoodpark, Sixmilebridge, Co Clare,and 9 Scamore House, Shannon,Drumgeeley Hill, Shannon, Co Clare,who died on 6 June 2007. Would anyperson having knowledge of a will madeby the above-named deceased, or if anyfirm is holding same, please contactJohn Casey & Company, Solicitors,Bindon Street, Ennis, Co Clare; tel: 065682 8159, fax: 065 682 0519

Elwood, Patricia (deceased), late ofMerlin Park Regional Hospital, Galway,and formerly of 195 Bohermore,Galway, who died on 17 January 2008.Would any person having knowledge ofa will made by the above-nameddeceased please contact Emerson &Conway, Solicitors, 1 St Francis Street;tel: 091 562 531, fax: 091 566 808

Finn, Francis (deceased), late of MainStreet, Kiltimagh, Co Mayo, who died 6December 2007. Would any personhaving knowledge of a will made by theabove-named deceased please contactGilmartin & Murphy, Solicitors, MainStreet, Kiltimagh, Co Mayo; tel: 094938 1204, fax: 094 938 1226

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Fletcher, Anne (deceased), late of 30Montpellier Hill, Dublin 7, who diedon 20 January 2008. Would any personhaving knowledge of a will made by theabove-named deceased please contactSmyth & Son, Solicitors, 30 MagdaleneStreet, Drogheda, Co Louth; tel: 041983 8616, fax: 041 983 5194

Heath, Kathleen (deceased), late of StJoseph’s Hospital, Ennis, Co Clare, andlate of 3 Central Building Abbey Street,Ennis, Co Clare, and Knockliscrine,Barefield, Ennis, Co Clare, who died on17 August 2007. Would any person hav-ing knowledge of a will made by theabove-named deceased, or if any firm isholding same, please contact JohnCasey & Company, Solicitors, BindonStreet, Ennis, Co Clare; tel: 065 6828159, fax: 065 682 0519

Kenny, Denis (deceased), late of 57Lohunda Park, Clonsilla, Dublin 15,who died on 26 January 2008. Wouldany person having knowledge of a willmade by the above-named deceasedplease contact Richard Black, Solicitors,Beechfield House, Clonee, Dublin 15;tel: 01 825 3400

Kiernan, Denis (deceased), late of 19Deravaragh Road, Crumlin, Dublin6W, who died on 7 December 2007.Would any person having knowledge ofa will made by the above-mentioneddeceased please contact Michael Hayes& Co, Solicitors, 1 Sundrive Road,Dublin 12; tel: 01 492 2332, fax: 01 4922540, email: [email protected]

Leavy, Christopher Joseph(deceased), late of 4 Del Val Avenue,Co Dublin, and ‘Arno’, 79 TerenureRoad East, Dublin 6. Would any personhaving knowledge of a will made by theabove-named deceased please contactLacy & Associates, Solicitors, MainStreet, Blanchardstown, Dublin 15; tel:01 821 3540, fax: 01 822 1033

Lynch, Flannan (otherwise Flan)(deceased), late of 65 Creagoun,Tobertaiscaun, Ennis, Co Clare, national-school teacher, who died on 26June 2007. Would any person havingknowledge of a will made by the above-named deceased please contact SeamusMonaghan & Co, Solicitors, TeelingStreet, Sligo; tel: 071 913 8572, fax: 071913 8573, email: [email protected]

McEvoy, James (deceased), late ofThe Cottage, Loughill, Co Limerick,who died on 19 February 2007. Wouldany person having knowledge of thewhereabouts of a will made on 20 April2005 by the above-named deceasedplease contact Michael B O’Donnell,solicitor, Rathkeale, Co Limerick; tel:069 64600, fax: 069 64749

McFaul, Teresa (widow) (deceased),late of Ardmore, Muff, Co Donegal.Would any person having knowledge ofa will made by the above-nameddeceased, who died on 4 August 2006,please contact Messrs Patrick JO’Doherty & Co, Solicitors, BridgeStreet, Carndonagh, Co Donegal; tel:074 937 4129

Murphy, Phyllis (otherwise AnniePhilomena) (deceased), late of ReaskHouse, Carlanstown, Kells, Co Meath.Would any person having knowledge ofa will being made by the above-nameddeceased, who died on 20 April 2002 atWoodlands House, Nursing Home,Navan, please contact Oliver Shanley &Company, Solicitors, 62/63 AcademyStreet, Navan, Co Meath, tel: 046 9093200 or fax: 046 902 9937

Spillane, James (otherwise Jimmy)(deceased) (farmer), late ofDerrygrinagh Middle (otherwiseDerrygranaugh), Bantry, Co Cork,farmer, who died on 10 January 2008.Would any person having knowledge ofa will being made by the above-nameddeceased please contact ElizabethMurphy, solicitor, Wolfe & Co,Solicitors, Market Street, Skibbereen,Co Cork; tel: 028 21177, fax: 028 21676,email: [email protected]

Timothy, Patrick (deceased), late ofCorgarva, Creggs, Co Galway, whodied on 19 December 1984. Would anyperson having knowledge of a will madeby the above-named deceased pleasecontact Ann O’Leary & Co, Solicitors,Millennium House, Main Street,Tallaght, Dublin 24; tel: 01 427 1000,fax: 01 427 1001, email: [email protected]

London solicitors will be pleased toadvise on UK matters and undertakeagency work. We handle probate, liti-gation, property and company/com-mercial. Parfitt Cresswell, 567/569Fulham Road, London SW6 1EU; DX83800 Fulham Broadway; tel: 00442073 818311, fax: 0044 2073 814044,email: arobbins@parfitts. co.uk

English qualified solicitors – is yourclient buying or selling property in theUK or Northern Ireland? We hold cur-rent practicing certificates and insur-ance in the three jurisdictions ofIreland, N Ireland and the UK. Withlarge volumes of Irish clients buyingproperty in the UK, we can act as agentor take matters on referral. ContactCatherine Allison & Co, 6 RodenPlace, Dundalk, Co Louth at 042 9320854 or [email protected]

Celbridge: newly refurbished periodproperty set out in six modern officesuites. Located on main street in excel-lent trading location. All units haveown front-door access and share a pri-vate, secure parking area for 14 cars.Contact: Coonan’s; tel: 01 628 8400 orvisit our website, www.coonan.com

Seven-day ordinary publican’slicence for sale. Contact MD White& Co, Solicitors, Carndonagh, CoDonegal; ref: PW/T.1855; tel: 074 9374102, fax: 074 937 4313, email:[email protected]

Thinking of retiring? Dublin north.Shannons of Swords have acquiredadjoining premises. They now wish toacquire a solicitor’s practice or takeovera retiring solicitor’s caseload/clientele.Reply in confidence to VincentShannon at 01 840 1780 [email protected]

Wanted: Irish Law TimesReports. Do you have an archiveof Irish Law Times Reports datingback to 1867 that you would con-sider selling? If so, please [email protected]

ARE YOU: under pressure? too busy? overworked?

DO YOU: need help to clear a backlog and/or to providebroader services to existingclients without increasing

overheads?Experienced, reputable solicitorwith own practising certificate andinsurance available to undertakelitigation, commercial, employ-ment and family law work forsolicitors’ firms.

Short term, temporary, projector consultancy basis. Confiden-tiality guaranteed.

Caroline O’Reilly BCL, Dip E Comm. Email: [email protected], mobile: +353 87 0516526, tel/fax: +353 1 849 4226

In the matter of the Landlord andTenants Acts 1967-1994 and in thematter of the Landlord and Tenant(Ground Rents) (No 2) Act 1978 andin the matter of no 28 AirfieldCourt, Donnybrook, Dublin 4, andin the matter of an application ofPaula Daly (‘the applicant’)Take notice that any person having anyinterest in the freehold estate of the fol-lowing property: 28 Airfield Court,

Donnybrook, Dublin 4.Take notice that Paula Daly intends

to submit an application to the countyregistrar for the county of the city ofDublin for acquisition of the freeholdinterest of the aforesaid property, andany party asserting that they hold asuperior interest in the aforesaid prem-ises (or any of them) are called upon tofurnish evidence of the title to theaforementioned premises to the belownamed within 21 days from the date ofthis notice.

In default of any such notice beingreceived, Paula Daly intends to proceedwith the application before the countyregistrar at the end of 21 days from thedate of this notice and will apply to thecounty registrar for the county of thecity of Dublin for directions as may beappropriate on the basis that the per-sons beneficially entitled to the superi-or interest including the freehold rever-sion in each of the aforesaid premisesare unknown or unascertained.Date: 7 March 2008Signed: Richard Black Solicitors (solicitorsfor the applicant), Beechfield House,Clonee, Co Meath

In the matter of the Landlord andTenants Acts 1967-1994 and in thematter of the Landlord and Tenant(Ground Rents) (No 2) Act 1978: anapplication by Pairc An ChrocaighTeorantaTake notice that any person having aninterest in the freehold estate in the fol-lowing property: all that and those thepremises situate off Drumcondra Parkand formerly known as 24ADrumcondra Park in the parish of SaintGeorge and city of Dublin, showedcoloured blue on the map annexed tosaid deed.

Take notice that Pairc an ChrocaighTeoranta intends to submit an applica-tion to the county registrar for thecounty of the city of Dublin for theacquisition of the fee simple interest inthe aforesaid property, and any partyasserting that they hold a superiorinterest in the aforesaid property iscalled upon to furnish evidence of titleto the aforementioned property to thebelow named within 21 days from thedate of this notice.

In default of any such notice beingreceived, the applicant, Pairc anChrocaigh Teoranta, intends to proceedwith the application before the countyregistrar at the end of 21 days from thedate of this notice and will apply to thecounty registrar for the county of thecity of Dublin for directions as may beappropriate on the basis that the per-sons beneficially entitled to the superiorinterest including the freehold reversionin each of the aforesaid property areunknown or unascertained.Date: 7 March 2008Signed: Reddy Charleton & McKnight

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(solicitors for the applicant), 12 FitzwilliamPlace, Dublin 2

In the matter of the Landlord andTenants Acts 1967-2005 and in thematter of the Landlord and Tenant(Ground Rents) (No 2) Act 1978 andin the matter of an application byEilis ReillyAny person having a freehold estate orany intermediate interest in all that andthose that part and parcel of the townand lands of Delgany known as EastHill, Delgany Road, Greystones, CoWicklow, containing two acres, threeroods and 17 perches late IrishPlantation Measure, equivalent to fouracres, two roods and 24 perches BritishImperial Standard Measure, measuredand bounded on the north and west bypart of the lands of Kindlestown and onthe south and east by the road leadingfrom Delgany to Greystones, the sub-ject of an indenture of lease dated 24May 1837 between Mary BakerKeoghoe and Eliza Keoghoe of the onepart and Robert Lumsden of the otherpart for a term of 999 years at a rent of£11.15s.5d.

Take notice that Eilis Reilly, beingthe person currently entitled to thelessees’ interest under the said lease,intends to apply to the county registrarof the county of Wicklow for the acqui-sition of the freehold interest and allintermediate interests in the aforesaidproperties, and any party asserting thatthey hold a superior interest in theaforesaid property is called upon to fur-nish evidence of their title to same tothe below named within 21 days fromthe date of this notice.

In default of any such notice beingreceived, Eilis Reilly intends to proceedwith the application before theWicklow county registrar at the end of21 days from the date of this notice andwill apply for such directions as may beappropriate on the basis that the personor persons beneficially entitled to thesuperior interests including the freehold

reversion in the aforesaid premises areunknown and unascertained.Date: 7 March 2008Signed: Patrick White & Co (solicitors forthe applicant), 25 Fitzwilliam Square,Dublin 2

In the matter of the Landlord andTenant (Ground Rents) Act 1967 andthe Landlord and Tenant (GroundRents) (No 2) Act 1978: acquisition offee simple (section 4 of the said act of1967)To any person having any interest in thefollowing property: all that messuageand plot of ground together with theash pit thereon situate near to the MainStreet in the town of Baltinglass in thebarony of Talbotstown Upper andcounty of Wicklow, as more particular-ly delineated on the map annexed to theindenture of lease dated 22 March 1949between Eustace Bowles, John Countde Salis, and Richard Bertram Verdin ofthe one part and Henry Harmon of theother part for the term of 81 years from29 September 1948, subject to the year-ly rent of £1 per annum and thereoncoloured red.

Take notice that Ann Farrar intendsto submit an application to the countyregistrar for the county of Wicklow forthe acquisition of the fee simple in theaforesaid property, and any party assert-ing that they hold a superior interest inthe aforesaid premises (or any of them)to the leasehold interest created by thesaid indenture of lease dated 22 March1949 are called upon to furnish evidenceof title to the aforementioned premisesto the below named within 21 days fromthe date of this notice.

In default of any such evidence beingadduced, Ann Farrar intends to proceedwith the application before the countyregistrar at the end of 21 days from thedate of this notice and will apply to thecounty registrar for the county ofWicklow at 3 Wentworth Place,Wicklow, for directions as may beappropriate on the basis that the person

or persons beneficially entitled to thesuperior interests including the fee sim-ple in each of the aforesaid premises areunknown or unascertained.Date: 7 March 2008Signed: Millett and Matthews (solicitors forthe applicant), Main Street, Baltinglass, CoWicklow

In the matter of the Landlord andTenant (Ground Rents) Act 1967 andthe Landlord and Tenant (GroundRents) (No 2) Act 1978: acquisition offee simple (section 4 of the said act of1967)To any person having any interest in thefollowing property: all that messuagedwelling house and premises situate atMain Street, Baltinglass in the county ofWicklow, delineated on the mapannexed to the indenture of lease dated20 September 1932 between HenryJames Tollemache, the HonourableStanhope Alfred Tollemache, CecilLyonel Newcomen Tollemache andEustace Bowles of the one part andKathleen Kitson of the other part forthe term of 99 years from 29 September1930, subject to the yearly rent of £15per annum and thereon coloured red,together with the right of way on thepremises coloured green on the saidmap, at present in the occupation ofJohn and Ann Farrar, on foot and withhorses, carts, carriages and other vehi-cles along the lane, lettered ‘C’, ‘D’, ‘E’,and ‘F’ on the said map.

Take notice that Ann Farrar intendsto submit an application to the countyregistrar for the county of Wicklow forthe acquisition of the fee simple in theaforesaid property, and any party assert-ing that they hold a superior interest inthe aforesaid premises (or any of them)to the leasehold interest created by thesaid indenture of lease dated 20September 1932 are called upon to fur-nish evidence of title to the aforemen-tioned premises to the below namedwithin 21 days from the date of thisnotice.

In default of any such evidence beingadduced, Ann Farrar intends to proceedwith the application before the countyregistrar at the end of 21 days from thedate of this notice and will apply to thecounty registrar for the county ofWicklow at 3 Wentworth Place,Wicklow, for directions as may beappropriate on the basis that the personor persons beneficially entitled to thesuperior interests including the fee sim-ple in each of the aforesaid premises areunknown or unascertained.Date: 7 March 2008Signed: Millett and Matthews (solicitorsfor the applicant), Main Street, Baltinglass,Co Wicklow

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 Fiona FitzgeraldTake notice that any person having aninterest in the freehold estate or anyintermediate interest therein of the fol-lowing property: all that and those theplot of ground being more particularlydescribed in the first schedule (part 2) ofan indenture of assignment dated 4April 2003 made between LeitwayHomes Limited and Fiona Fitzgeraldand herein described as “all that andthose that plot or piece of ground as ismore particularly delineated with a redverge line on the map attached hereto”,being part of the premises held under anindenture of lease dated 19 November1974 made between HardwickeLimited of the one part and EllenAdelaide Ronan of the other part for allthe unexpired residue of the term of 700years from 8 November 1893 and madebetween Bridget Emily Redmond of theone part and Hugh Joseph Smith of theother part, subject to the yearly rent of£10 per annum, payable by equal half-yearly payments.

Take notice that Fiona Fitzgeraldintends to submit an application to thecounty registrar for the city of Dublinfor the acquisition of the freehold inter-est in the aforesaid property, and anyparty or parties asserting that they holda superior interest in the aforesaidpremises are called upon to furnish evi-dence of title to the aforementionedpremises to the below named within 21days from the date of this notice.

In default of any such notice beingreceived, Fiona Fitzgerald intends 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 personbeneficially entitled to the superiorinterest including the freehold reversionin the aforesaid remises are unknown orascertained.Date: 7 March 2008Signed: McEvoy Partners (solicitors for theapplicant), Connaught House, BurlingtonRoad, Dublin 4

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 Leitway HomesLimitedTake notice that any person having aninterest in the freehold estate or anyintermediate interest therein of the fol-lowing property: all that and those theplot of ground together with thedwellinghouse and premises nowerected thereon and known as no 35Belmont Avenue, Donnybrook,Dublin, formerly known as no 1 StellaTerrace, Dublin, being part of thepremises held under indenture of lease


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dated 19 November 1974 madebetween Hardwicke Limited of theone part and Ellen Adelaide Ronan ofthe other part for all the unexpiredresidue of the term of 700 years from 8November 1893 and made betweenBridget Emily Redmond of the onepart and Hugh Joseph Smith of theother part, subject to the yearly rent of£10 per annum, payable by equal half-yearly payments.

Take notice that Leitway HomesLimited intends to submit an applica-tion to the county registrar for the cityof Dublin for the acquisition of the free-hold interest in the aforesaid property,and any party or parties asserting thatthey hold a superior interest in theaforesaid premises 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, Leitway Homes Limitedintends to proceed with the applicationbefore 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 ascertained.Date: 7 March 2008Signed: McEvoy Partners (solicitors for theapplicant), Connaught House, BurlingtonRoad, Dublin 4

In the matter of the Landlord andTenant (Ground Rents) Acts 1967-1994: notice of intention to acquirethe fee simpleTo: any person or persons for the timebeing entitled to or having an interest inthe freehold or a leasehold estate in theproperty now known as 30 SouthCumberland Street, in the city ofDublin, being the property demised bya lease dated 27 April 1948 and madebetween Evaline A Chitty, PhoebeStephenson and Cecelia Davis of theone part and Susan Dunne of the otherpart for the term of 35 years from 1November 1945, subject to the yearlyrent of £30.

Take notice that the Provost, Fellowsand Scholars of the College of the Holyand Undivided Trinity of QueenElizabeth near Dublin, being the per-sons entitled under sections 8-10 of theLandlord and Tenant (Ground Rents) (No2) Act 1978, to purchase the fee simpleintend to submit an application to thecounty registrar for the city of Dublinfor the acquisition of the freehold inter-est in the aforesaid property, and anyparty asserting that they hold a superiorinterest in the aforesaid property (orany of them) are called upon to furnishevidence of title to the aforementionedpremises to the below named within 21days from the date of this notice.

In default of any such notice beingreceived, the Provost, Fellows andScholars of the College of the Holy andUndivided Trinity of Queen Elizabethnear Dublin intend to proceed with theapplication before the county registrarat the end of 21 days from the date ofthis notice and will apply to the countyregistrar for the city of Dublin fordirections as may be appropriate on thebasis that the person or persons benefi-cially entitled to the superior interest,including the freehold reversion in theproperty, are unknown or unascer-tained.Date: 7 March 2008 Signed: Macaulay Graham Judge (solici-tors for the applicants), 26 Lower HatchStreet, 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 1978 andin the matter of an application undersection 15 of the Landlord andTenant (Ground Rents) Act 1967All that and those that part of the prem-ises known as 7a Sussex Mews, SussexTerrace, Dublin 4, being the rear part ofpremises 151 Upper Leeson Street inthe county of the city of Dublin. Theapplicants: Conor Davitt and FrankO’Hagan, as trustees of the E O’HaganDiscretionary Will Trust.

Take notice that the applicants havesubmitted an application to the countyregistrar of the county of Dublin for theacquisition of the freehold interest inthe aforesaid premises, held pursuant toa lease dated 14 December 1840 andmade between Henry Read of the firstpart and Robert Chambers of the sec-ond part.

Take notice that any party assertingthat they hold a superior interest in theaforesaid premises are called upon tofurnish evidence of title to the afore-mentioned premises to the under-named solicitors within 21 days fromthe date of this notice.

In default of any such notice beingreceived, the applicants intend to pro-ceed with the application before thecounty registrar at the end of the saidperiod of 21 days from the date of thisnotice and will apply to the county reg-istrar for the county of Dublin fordirections as may be appropriate on thebasis that the persons beneficially enti-tled to the superior interest includingthe freehold reversion in the aforesaidpremises are unknown or unascer-tained.Date: 7 March 2008Signed: Lyons Kenny Solicitors (solicitors forthe applicant), 57 Fitzwilliam Square,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 1978: anapplication by Dublin Institute ofTechnologyTake notice that any person havingany interest in the freehold interest ofthe following property: all that andthose the lands more particularlydescribed in an indenture of leasedated 9 July 1924, between ReginaldDashwood Tandy of the one part andAndrew J Cullen of the other part, asall that messuage or tenement knownas 35 New Bride Street, as more par-ticularly shown on the plan endorsedon these presents together with allrights, easements and appurtenancesto the said premises belonging orusually held or enjoyed therewith, sit-uated in the Parish of St Peter andcity of Dublin and now occupied byDublin Institute of Technology underthe lease for a term of 99 years from1 January 1924, subject to the yearlyrent of £15.

Take notice that the applicant,Dublin Institute of Technology, intendsto submit an application to the countyregistrar for the county of the city ofDublin for the acquisition of the free-hold interest in the aforesaid property,and any party or parties asserting thatthey hold a superior interest in theaforesaid property 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 such notice beingreceived, the applicant intends to pro-ceed with the application before thecounty registrar for the county/city ofDublin for directions as may be appro-priate on the basis of the person or per-sons beneficially entitled to the superiorinterest including the freehold rever-sion in the above premises are unknownor unascertained.Date: 7 March 2008Signed: Arthur Cox (solicitors for the appli-cants), Earlsfort Centre, Earlsfort Terrace,Dublin 2

In the matter of the Landlord andTenant (Ground Rents) Acts 1967-1984: notice of intention to acquirefee simple (section 4)To: Ms Ellen Noonan, East Douglas,Cork; and Joseph O’Donovan(deceased), c/o Mr Patrick Dorgan,Coakley Maloney, Solicitors, 49 SouthMall, Cork; and Irish Life andPermanent plc, c/o Ms Darina White,A&L Goodbody, Solicitors, IFSC,North Wall Quay, Dublin 1; and allpersons concerned.1. Description of land to which thisnotice refers: that part of the ShellService Station, Douglas, Cork City,being “all that and those piece or plot ofground being part of the lands ofDouglas in the parish of Carrigaline inthe barony and county of Cork, con-taining in all one-and-one-half roodsstatute measure approximately, whichlands are more particularly delineatedon the map” endorsed on the subleasedated 17 August 1953 and madebetween (1) Ellen Noonan and (2)Denis Noel O’Mahony, Patrick VincentO’Mahony, Michael Kevin O’Mahonyand Daniel Joseph O’Mahony andthereon coloured yellow, a copy ofwhich map is attached hereto.2. Particulars of applicant’s lease ortenancy: sublease dated 17 August1953 made between (1) Ellen Noonanand (2) Denis Noel O’Mahony,Patrick Vincent O’Mahony, MichaelKevin O’Mahony and Daniel JosephO’Mahony for a term of 97 years from25 March 1953 at a rent of £50(€63.49 modern-day rent) perannum, payable in equal half-yearlyinstalments on 25 March and 29September each year of the term.

Take notice that Topaz EnergyLimited (formerly known as Irish ShellLimited), Registered Office: TopazHouse, Beech Hill, Clonskeagh, Dublin4, being a person entitled under section 9 of the 1978 (no 2) act, propos-es to purchase the fee simple in the landdescribed in paragraph 1.

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Date: 7 March 2008Signed: Arthur Cox (solicitors for the appli-cant, Topaz Energy Limited, formerlyknown as Irish Shell Ltd), Earlsfort Centre,Earlsfort Terrace, Dublin 2

In the matter of the Landlord andTenant (Ground Rents) Act 1967 andin the matter of the Landlord andTenant (Ground Rents) (No 2) Act1978: notice requiring informationfrom a lessorTo: Ms Ellen Noonan, East Douglas,Cork; and Joseph O’Donovan(deceased), c/o Mr Patrick Dorgan,Coakley Maloney, Solicitors, 49 SouthMall, Cork; and Irish Life andPermanent plc, c/o Ms Darina White,A&L Goodbody, Solicitors, IFSC,North Wall Quay, Dublin 1; and all per-sons concerned.Description of land to which thisnotice refers: that part of the ShellService Station, Douglas, Cork City,being “all that and those piece or plot ofground being part of the lands ofDouglas in the parish of Carrigaline inthe barony and county of Cork, contain-ing in all one-and-one-half roods statutemeasure approximately, which lands aremore particularly delineated on themap” endorsed on the sublease dated 17August 1953 and made between (1)Ellen Noonan and (2) Denis NoelO’Mahony, Patrick Vincent O’Mahony,Michael Kevin O’Mahony and DanielJoseph O’Mahony and thereoncoloured yellow, a copy of which map isattached hereto.Particulars of applicant’s lease: sub-lease dated 17 August 1953, madebetween Ellen Noonan (lessor) andDenis Noel O’Mahony, Patrick VincentO’Mahony, Michael Kevin O’Mahonyand Daniel Joseph O’Mahony (lessees).Take notice that Topaz Energy Limited,with a registered office at Topaz House,Beech Hill, Clonskeagh, Dublin 4,being a person entitled under the above

acts to acquire the fee simple in the landdescribed above, require you to give me,within one month after the service ofthis notice on you, the following infor-mation:a) The nature and duration of your

reversion in the land,b) The nature of any incumbrance on

your reversion in the land, andc) The name and address of:

i) The person entitled to the nextsuperior interest in the land, and

ii) The owner of any such incum-brance,

d) The name of the person to be servedwith the notice of intention toacquire the fee simple.

Date: 7 March 2008Signed: Arthur Cox (solicitors for the appli-cant, Topaz Energy Limited, formerlyknown as Irish Shell Ltd), Earlsfort Centre,Earlsfort Terrace, Dublin 2

In the matter of the Landlord andTenant Acts 1967-2005 and in matterof the Landlord and Tenant (GroundRents) (No 2) Act 1978 and in thematter of premises known as 93Leinster Road, Rathmines, Dublin 6Take notice that any person having aninterest in the freehold estate of the fol-lowing property: all that and those thedwelling house and premises known as93 Leinster Road, Rathmines, in the cityof Dublin, being a portion of the hered-itaments and premises held under anindenture of lease dated 20 March 1855and made between Patrick Dempsey ofthe one part and Patrick Kerr of theother for a term of 143 years from 25March 1855 at a yearly rent of IR£9.9.0and subject to the covenants and condi-tions therein contained.

Take notice that the applicants, DrBill Twomey, Conor Twomey, CiaranTwomey, Barry Twomey, LorcanTwomey, Siobhan Trainor, MiriamTwomey and Bronagh Sparrow (the‘applicants’), being the persons entitled

under sections 9 and 10 of the Landlordand Tenant (Ground Rents) (No 2) Act1978, intend to submit an application tothe county registrar for the city of thecounty of Dublin for the acquisition ofthe freehold interest and any intermedi-ate interests in the aforesaid premises,and any parties asserting that they holda superior interest in the aforesaidpremises are called upon to furnish evi-dence of title to the aforementionedpremises to the below named within 21days from the date of this notice.

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 the county of Dublin for such direc-tions as may be appropriate on the basisthat the person or persons beneficiallyentitled to the superior interest includ-ing the freehold reversion in the afore-said premises are unknown or unascer-tained. Date: 7 March 2008Signed: Maples and Calder (solicitors for theapplicant), 75 St Stephen’s Green, 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 1978 and inthe matter of the property situate atnos 119 and 120 Upper ChurchStreet in the city of Dublin: an appli-cation by Halifax Taverns LimitedTake notice that any person having aninterest in the freehold estate of the fol-lowing property: all that and those thehereditaments and premises known asnos 119 and 120 Upper Church Streetin the city of Dublin, with yards andappurtenances belonging thereto con-taining in breadth in front to ChurchStreet on the east side 34 feet, eightinches or thereabouts, in breadth in therear on the west 45 feet, four inches or

thereabouts, in depth from front to rearon the north 48 feet, four inches, and indepth from front to rear on the southside 41 feet, six inches or thereabouts,situate at 119 and 120 Upper ChurchStreet in the city of Dublin and beingthe property demised by an indenture oflease dated 20 June 1861 and madebetween John Batson and Robert Healyfor the term of 200 years from 1 May1861, subject to the yearly rent of 34pounds sterling and to the covenants onthe part of the lessee and conditionstherein contained.

Take notice that Halifax TavernsLimited intends to submit an applica-tion to the county registrar for the cityof Dublin for the acquisition of the free-hold interest in the aforesaid propertyand that any party asserting that theyhold a superior interest in the aforesaidproperty are called upon to furnish evi-dence of title to the aforementionedproperty to the below named within 21days from the date of this notice.

In default of any such notice beingreceived, Halifax Taverns Limitedintends to proceed with the applicationbefore the country registrar at the endof the 21 days from the date of thisnotice and will apply to the county reg-istrar for 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 the afore-said property are unknown or unascer-tained.Date: 7 March 2008Signed: Cusack McTiernan (solicitors forthe applicant), 6 Fitzwilliam Place,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 1978 and inthe matter of an application by OliverHarrington and Mary Harrington

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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]

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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]


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Any person having a freehold estate orany intermediate interest in all that andthose that piece or parcel of land for-merly known as number 4 Salana Villas,Clonliffe Road, in the parish of SaintGeorge and the county of the city ofDublin, and now known as 191Clonliffe Road, Drumcondra, Dublin9, the subject of an indenture of leasedated 13 September 1882 between theWorking Man’s Benefit BuildingSociety of the first part, William Hall ofthe second part and William Riordan ofthe third part for a term of 189 yearsfrom 1 May 1882 at a rent of £4.10s perannum.

Take notice that Oliver Harringtonand Mary Harrington, being the per-sons currently entitled to the lessees’interest under the said lease, intend toapply to the county registrar of thecounty of Dublin for the acquisition ofthe freehold interest and all intermedi-ate interests in the aforesaid properties,and any party asserting that they hold asuperior interest in the aforesaid prop-erty is called upon to furnish evidenceof their title to same to the belownamed within 21 days from the date ofthis notice.

In default of any such notice beingreceived, the said Oliver Harringtonand Mary Harrington intend to pro-ceed with the application before theDublin county registrar at the end ofthe 21 days from the date of this noticeand will apply for such directions as

may be appropriate on the basis thatthe person or persons beneficially enti-tled to the superior interests includingthe freehold reversion in the aforesaidpremises are unknown and unascer-tained.Date: 7 March 2008Signed: Murray Flynn Maguire (solicitorsfor the applicant), 12-16 Fairview Strand,Dublin 3

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 James Kelly: appli-cation for fee simple in property atGoldenbridge, Inchicore, Dublin 8Take notice that any person having anyinterest in the freehold estate of the fol-lowing property: all that and those thatplot of ground being part of the landsof Goldenbridge, Inchicore, in the cityof Dublin, which said lands are moreparticularly described and delineatedon the map attached to a deed ofassignment dated 31 December 1991and made between UDT Bank Ltd ofthe first part, James Kelly of the secondpart and Ranisse Properties Limited ofthe third part, and thereon outlined inred and referred to as the sold land.

Take notice that James Kelly, theapplicant, intends to submit an applica-tion to the county registrar for thecounty of the city of Dublin for theacquisition of the freehold interest in

the aforesaid property, 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 within 21days from the date of this notice.

In default of any such notice beingreceived, the applicant, James Kelly,intends 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 thecounty of the city of Dublin for direc-tions as may be appropriate on the basisthat the persons beneficially entitled to

the superior interest including thefreehold reversion in each of the afore-said premises are unknown andunascertained.Date: 7 March 2008Signed: Paul A Ferris & Co (solicitors forthe applicant), Suite 227 The CapelBuilding, Mary’s Abbey, Dublin 7

Available to work in multi-role capacity in medium tolarge firm. Law degree(University of Manchester,1985). Experienced in dealingwith the public. Returning toworkforce. Experience includeslegal work. Interests includefamily law. Contact: Jane Heyn,2 Clyde Road, Ballsbridge,Dublin 4; tel: 01 660 3057 or 085739 3366

Trainee solicitor seeks new trainingcontract (Dublin area). Enthusiasticand hardworking trainee seeks transferof training contract. Experience in theareas of residential conveyancing, civillitigation and family law. Available tocommence employment in April 2008.CV available on request. Enquiries byemail: [email protected]

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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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