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Gazette€3.75 December 2006

GazetteL A W S O C I E T Y

TO BE OR NOT TO BE:Is that the question?

2 www.lawsociety.ie

LAW SOCIETY GAZETTE DECEMBER 2006 CONTENTS

Editor: Mark McDermott. Deputy editor: Garrett O’Boyle. Designer: Nuala Redmond.Editorial secretaries: Catherine Kearney, Valerie Farrell. For professional notice rates (lostland certificates, wills, title deeds, employment, miscellaneous), see page 70.

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

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

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December 2006

Volume 100, number 10Subscriptions: €57

GazetteGazetteL A W S O C I E T YOn the coverThe recent High Court decisionon the custody of frozenembryos has raised a host ofethical and legal issues – andthe spectre of the debate onwhen life begins

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PIC: GETTY IMAGES

News

Cork Law School opensMinister Micheál Martin declared the new facility formallyopened on 20 November

Justice Media AwardsRTÉ’s Prime Time scoops the overall award

Letters

Practice doctorManaging your cash flow

People and places

Student spotlight

Parchment ceremony photographs, 2006

Annual conference 2007 in Cannes:programme schedule

Briefing55 Council reports56 Committee report57 Practice notes60 Legislation update: 18 October – 17 November 200662 Solicitors Disciplinary Tribunal report63 FirstLaw update65 Eurlegal: recent developments in European law

Professional notices

Recruitment advertising

3www.lawsociety.ie

LAW SOCIETY GAZETTE DECEMBER 2006CONTENTS

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: Child in timeThe recent High Court decision that embryos in vitroare not ‘unborn’ in constitutional terms shows that,while medical and scientific breakthroughs forge ahead,our legal system limps behind, argues Hilary Coveney

18FEATURES

Tipp for the topNewly-elected President of the Law Society, Philip Joyce,is the fifth president to hail from ‘the Premier County’.Here he talks to Mark McDermott about his student days,his native county, and the plans for his presidency

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Breaking up is hard to doThere are 30,000 millionaires in Ireland, so there may wellbe some high-earning spouses who would want to protecttheir assets in the event of a separation or divorce. Butthere is no obligation on a court to enforce pre-nuptialagreements. Geoffrey Shannon explains

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In whose interests?In a recent case, a solvent company made an applicationfor a prospective validation order. Brónagh Maher discusses the appropriate test to be applied in this novelsituation

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The big thawThe 1980s saw both the end of the Cold War andnumerous assassination attempts. From local andinternational get-togethers, to provincial and foreignnews, the ’80s Gazette presented an intriguing mix ofviews. Mark McDermott continues this celebration of 100volumes of the Gazette

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

You can also check out: • Current news• Forthcoming events, including ‘Finding your

Training Contract’ seminar in Dublin (26 Jan)• Employment opportunities• The latest CPD courses

… as well as lots of other useful information

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

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

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LAW SOCIETY GAZETTE DECEMBER 2006NEWS

nationwide

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

R ight across the country,presidential bar association

chains of office are being passedon, following the recentconvening of a number ofAGMs. In the capital, DavidBergin has become the newpresident of the DSBA for thecoming year, with MichaelQuinlan as vice-president andJohn P O’Malley and HeleneCoffey as the new treasurer andprogrammes’ directorrespectively. Kevin O’Higginscontinues as secretary.

Elsewhere, at the MayoSolicitors’ Bar Association AGM,Pat O’Connor was electedpresident in succession to FionaMcAllister, with DermotHewson as vice-president,Gareth Bourke as secretary andCaroline Barry as treasurer. Itscommittee, then, is made upfrom centres around the countyand comprise Michael Browne(Westport), Jacqui Durkan(Castlebar), Samantha Geraghty(Swinford), Charles Gilmartin(Kiltimagh), Mark Fitzgerald(Ballinrobe), Mary O’Brien(Claremorris), Evan O’Dwyer(Ballyhaunis), Fiona McAllister(immediate past-president) andJames Cahill (Council memberof the Law Society).

Meanwhile, down south, theSouthern Law Association heldits AGM, in which EamonHarrington became the newpresident, succeeding SineadBehan. The then President ofthe Law Society, Michael Irvine,and Director General KenMurphy engaged in a livelydialogue with a large attendance.

■ CORKGreat balls of fireA masked ball took place in theold city jail in Cork. This was afundraiser for MerrymountHospice, and the local judiciary

were special guests. Weunderstand that everyoneenjoyed an excellent night, andgreat credit for its organisation isdue to Gail Enright, JustinCondon, Fiona Twomey andJane Anne Rothwell.

The annual dinner of theSouthern Law Association hasbeen fixed for 6 February next.In relation to work-relatedmatters, the recent High Courtsittings were presided over bythe President of the High Courtand were adjudged a greatsuccess. A seminar and practicalworkshop on informationtechnology as a legal researchtool was held recently by theSLA in association with theFaculty of Law in UCC.

■ DUBLINDining in styleA splendid dinner, attended byall his council colleagues andtheir partners, was held tohonour the considerable

achievement of Brian Gallagherduring his presidency of theDSBA. Held in sumptuousGeorgian surroundings, Brianwas toasted by his colleagues fora truly amazing year on behalf ofthe bar association, where hiswork rate and achievements weretruly outstanding. Brian’shumility is such that he willdesist from reading thesecomments, but the regard andesteem for which he is held inthe profession is immense.

Electoral systemIt does not always happen but,when it does, it adds to theinterest of any AGM: an electionfor officers. After some years ofAGM banality, both last year andthis year have thrown up hotly-contested elections for newcouncil members. In Dublin, thisusually applies to one or twoplaces. Last year, we greatlybenefited from the arrival of bothPaddy Kelly and John Hogan.

This year, too, we were thrilledwith the emergence of AlmaSheehan. It was an interestingnight for Alma, in that not onlywas she elected as a new councilmember, but earlier in the even-ing she was announced the win-ner for the junior category in theawards of excellence. The senioraward went to John Gaynor.

Remembering EmerElsewhere, a very successful quiznight was organised by theyounger members’ committee ofthe DSBA. This was a fundraiserfor cancer research in memoryof a young solicitor, Emer Casey(28), who died from cancer. Shewas working with MOPs. Thenight was a huge success, withover 60 tables full and asignificant sum of money raisedfor this worthy cause.

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

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Midland Bar Association AGMThe AGM of the Midland Bar Association (MBA) was held in the Prince of Wales, Athlone, on 6 November

2006. Guests of honour included the Law Society’s newly-elected president, Philip Joyce, and directorgeneral Ken Murphy. Charles Kelly took over as president of the MBA from Paul Connellan, while Fiona Hunt

takes over as secretary from Aoife Cadden. The MBA aims to continue being active in organising CPDcourses for its members during the coming year. (Back row, l to r): Matt Shaw, Robert Marren, Brian Carolan,

Peter Jones, Hugh Campbell, John Shaw, Matt Johnston, and Denis Larkin. (Middle row): Rhona Kelly,Michelle Mellotte, Mary Ward, Barry McLoughlin, Tom Rogers, Bernadette Greene, Paddy Caulfield,

Richard Whelehan, and Martin Reidy. (Front row): Aoife Cadden, Philip Joyce, Charles Kelly, Ken Murphy, Paul Connellan, Fiona Hunt, and Aidan O’Carroll

6 www.lawsociety.ie

LAW SOCIETY GAZETTE DECEMBER 2006 NEWS

COMPETITION REPORT

The Competition Authority’s final

report on competition in the legal

profession is now expected to be

published on 11 December 2006.

As reported in the November

issue (p8), the authority began

its study of the profession,

together with a number of other

professions, in April 2001. In

March 2003, the authority’s

economic consultants, Indecon,

published the results of their

research. The authority published

its own ‘preliminary report’ in

February 2005, while the Society

delivered a 90-page response in

July 2005 (which is available on

the Society’s website). The

Society awaits the authority’s

report with interest.

ROLL OVER BEETHOVEN!

10,000 – is the number of

solicitors that the Law Society of

Ireland will see included on the

Roll in January 2007. It will be

the first time in its history that

the Society will have exceeded

this substantial milestone.

“There has been an

extraordinary growth in the

profession in recent years,” says

director general Ken Murphy.

“This is a new landmark for the

profession in Ireland.”

2005 PINK SHEETS

The 2005 ‘Pink Sheets’ index to

Supreme Court, High Court and

Court of Criminal Appeal written

judgments is circulated to

members as an insert with this

issue of the Gazette.

This is an index, with keyword

summaries, to all the 2005

reserved written judgments of the

superior courts circulated to

date. The summaries were

prepared by the Law Reporting

Council. The index is a joint

publication by the Law Society

and the Bar Council.

RETIREMENT TRUST SCHEME

Unit prices: 1 November 2006

Managed fund: €5.922932

All-equity fund: €1.388165

Cash fund: €2.685678

Long-bond fund: €1.420402

The President of the HighCourt, Mr Justice Joseph

Finnegan, has found that theMaster of the High Court hasno power to make a solicitorpersonally responsible for theso-called ‘wasted costs’ of afailed application. On 2February of this year, themaster had purported to makea solicitor, specifically not thesolicitor’s client, personallyliable for all the costs on bothsides of a failed application forinterrogatories in a personalinjury case.

The Law Society respondedswiftly to the making of thisunprecedented order and thepublic statements about itmade by the Master of theHigh Court, EdmundHonohan, who announced hisintention to make other suchorders in the future. TheSociety said that it raised“fundamental issues” and hadcaused “great uncertaintyamong solicitors”. The Societyimmediately sought to bejoined as an amicus curiae inthe appeal. The application inthis regard was granted by thePresident of the High Court,who said that the Society wasacting “not just in the interestof its members but also in thepublic interest”.

In his judgment of 28November in this case, Kennedyv Killeen Corrugated ProductsLimited and Others, thePresident of the High Courtfound that the master does nothave jurisdiction to makeorders under order 99, rule 7,of the Rules of the SuperiorCourts (the so-called ‘wastedcosts’ rule) and “accordinglythe master had no power tomake the order the subjectmatter of this appeal”. Heproceeded to set aside theorder of the master.

Master exceeded powers in ‘wasted costs’ case

In relation to the power ofthe High Court to make anorder under order 99, rule 7,that the solicitor personallybear the costs awarded againsthis own client, the presidentsaid that it “depends upon thesolicitor 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. In the present case I amsatisfied that the conduct ofthe solicitor falls far short ofthis requirement. In particularI have regard to thecircumstance that the solicitoracted on the advice of seniorcounsel”.

Law Society welcome The Law Society welcomedthe president’s judgment,although it was not surprisedby it. The power to make so-called ‘wasted costs’ ordersagainst solicitors is a major oneinvolving complex issues. Forconstitutional and otherreasons, it should be exercisedonly by a judge and not by theMaster of the High Court,who is not a judge. It is alsoclear from the president’sjudgment that orders underorder 99, rule 7, should only be

made in cases of misconduct orgross negligence on the part ofa solicitor and, accordingly, arelikely to be made very rarely.

In the view of the Society –and, it seems clear from hisjudgment, in the view of thepresident also – the solicitor inthis case behaved impeccably.

In the Society’s view, itwould make no sense for theMaster of the High Court tobe given power to make ordersunder order 99, rule 7, even inthe unlikely event that thiswere constitutionally possible.It is the experience in otherjurisdictions that whether ornot a procedural step taken ina particular case should giverise to a ‘wasted costs’ order isa decision that can only bemade properly at theconclusion of the case. It isonly then, with the benefit ofthe full history of the case,including the disclosedpurpose of the interlocutoryapplication being questioned,that whether or not there wasmisconduct or grossnegligence on the part of thesolicitor can be assessedcorrectly by a judge.

As a matter of policy, itwould also be contrary to thewhole thrust of reform of civillitigation, which favoursreducing the length of trials.The reforms of recent yearsencourage the clarification ofissues in dispute before thetrial commences, andprocedural applications, suchas the application forinterrogatories in this case,would not be made if solicitorsbelieved they were atsignificant risk of personalliability for the costs of failedapplications. The result wouldbe longer trials and morecostly, rather than less costly,litigation.

President of the High Court Mr Justice Finnegan

7www.lawsociety.ie


ESSAY COMPETITION

The Association of Pension

Lawyers in Ireland is holding its

third annual essay competition.

The essay title is ‘Trust Law and

Pensions – Is it time for a

change?’ First prize is €3,000

with a second prize of €1,000

also being offered.

The competition is open to all

students of law, including trainee

solicitors, and to qualified

solicitors and barristers up to two

years qualified.

The closing date for entries

is 28 February 2007. Entries

should be sent to Peter Fahy,

Association of Pension Lawyers

in Ireland, c/o O’Donnell

Sweeney Solicitors, 1 Earlsfort

Centre, Earlsfort Terrace,

Dublin 2.

The rules of the competition

and guidance on the possible

direction an essay might take are

available from the same address.

ICTR PRESIDENT FOR HLJ TALK

Judge Erik Møse, President of the

International Criminal Tribunal for

Rwanda (ICTR), will be the guest

lecturer at the Hibernian LawJournal’s sixth annual lecture.

The lecture will be held on

Tuesday 19 December 2006 at

7pm in the Law School Lecture

Theatre, Blackhall Place.

Last month, we carried areport on the case of Bailey vArthurs and Another.

The case against Dr Arthursconcerned his failure to give apsychiatric report, which hedid not write, to a patient. Theclaim against Dr Arthurs wasdismissed by both the CircuitCourt and, on appeal, by theHigh Court. Any inference tothe contrary in last month’sreport was incorrect. We arehappy to apologise for anyembarrassment caused to Dr Arthurs.

DR JOSEPHARTHURS –APOLOGY

The President of the LawSociety, Philip Joyce, has

been in telephonecommunication with solicitorJohn Hennessy to assure him ofthe profession’s full support forhim at this very worrying time.

Joyce has said that “the gardaímust provide whatever it takes byway of protection to guaranteehis safety when he returns to liveand practise as a solicitor inSwords, Co Dublin. It is notmerely unthinkable at a humanlevel, it would also be unthinkablein terms of the damage to thestate and to Irish society if anyharm were to befall him.”

At a meeting of the LawSociety Council on 1 December,it was resolved not merely toexpress sympathy to JohnHennessy, but to explore withhim what further practicalsupport the Society could givehim and his practice.

Cold-blooded murderOn 21 November, the Societyissued a statement condemningthe cold-blooded murder of 28-year old Latvian woman, BaibaSaulite, which cruelly ended herlife and left her two youngchildren without a mother. TheSociety simultaneously condemn-ed the death threats that had beenmade against Ms Saulite’ssolicitor. These threats had beenmade many weeks before theshooting dead of Ms Saulite.

The Society had beenapproached a month earlier byJohn Hennessy. He made theSociety aware that he was underarmed garda protection becauseof death threats he had receivedresulting from the legal work hehad undertaken on behalf ofBaiba Saulite. It was clear that hehad done an excellent job onbehalf of this grateful client, butthat this had caused deepantagonism to another party.

‘Whatever it takes’ toprotect Saulite solicitor

The gardaí had told anunderstandably shocked JohnHennessy that they had receivedintelligence that a ‘contract’ hadbeen ordered for Hennessy’smurder. He was given advice onthe security measures he shouldundertake at his home and hisoffice. Although he neverreceived 24-hour armedprotection, when the threat wasviewed by the gardaí as being atits height, armed gardaí wereplaced outside his home andoffice and accompanied him ashe moved from place to place.

Every possible assistance“John seemed remarkably calmand courageous as he explainedthis nightmare situation to us,”said director general KenMurphy. “We saw withouthesitation that we must give himimmediately every possibleassistance. On that day, we sent aletter by fax to GardaCommissioner Noel Conroyurging that Hennessy beprovided with garda security atthe highest level possible.”

On 21 November, afterSaulite’s murder and atHennessy’s request, the Societyissued a news release in thecourse of which it urged themedia not to try to contact him,but to deal with the Society onall queries. The Society also

urged the media, for obviousreasons, to report this mattervery responsibly. On Joe Duffy’sLiveline radio programmeMurphy condemned as “verydangerous” and “irresponsible”the publication by the EveningHerald of the name andphotograph of John Hennessy on its front page.

The story of the death threatto Hennessy broke live on RTÉtelevision’s Six One News whenMurphy emphasised that “athreat to a solicitor, simply fordoing his job expertly andfearlessly on behalf of his client,is a direct attack on theadministration of justice and onthe rule of law. The thoughts andsupport of his profession are withhim, and with the family of BaibaSaulite, at this terrible time.”

The Society was pleased withthe personal interest taken in thesituation by CommissionerConroy and with his responsive-ness on the matter. Some daysafter the murder of Baiba Saulite,and John Hennessy’s departureabroad on garda advice for hissafety, Philip Joyce and KenMurphy had an hour-long meet-ing with Commissioner Conroyand several of his most seniorofficers in the commissioner’soffice. The Society remains inconstant communication withJohn Hennessy.

Murder victim Baiba Saulite. Her solictor received death threats

8 www.lawsociety.ie

LAW SOCIETY GAZETTE DECEMBER 2006 NEWS

The Law ReformCommission has launched

its Report on Rights and Duties of Cohabitants. The report waspublished on 1 December. In2004, the commission published a consultation paperon this topic, and madeprovisional recommendationsfor reform. The report contains the commission’s finalreform recommendations,including a draft CohabitantsBill.

The report makes substantialrecommendations for reform ofthe law concerning cohabitants,defined as opposite sex or same-sex couples who live together in

an intimate relationship andwho are not related to eachother. It covers cohabitants whodo not marry or who have notregistered their relationshipthrough, for example, civilpartnership.

The report assumes that aform of civil partnership forsame sex couples is likely to beintroduced in the near future.

The commission emphasisesthat its recommendations arenot an alternative to publicregistration systems – whethermarriage or civil partnership –but deal with a differentsituation, which is the positionof cohabitants who do not

publicly register theirrelationship (for whateverreason). The commission hasconcluded that this group ofcohabitants – whether same-sexor opposite-sex – should beconsidered separately in anyreform of the law.

The report deals with therights and duties of cohabitantsunder a wide range of topics: • Encouraging cohabitants to

make agreements on financialmatters (cohabitantagreements), howtransactions between‘qualified cohabitants’ shouldbe dealt with under tax laws,and what succession

entitlements qualifiedcohabitants should beentitled to apply for;

• General recognition of samesex and opposite-sexcohabitants under, forexample, social welfare law,private tenancy law, in thehealth-care and hospitalsetting, and under domesticviolence law;

• Providing for a ‘safety net’redress system for ‘qualifiedcohabitants’, who could applyto court for financial relief atthe end of a relationship, butonly if they could show thatthey had become ‘econom-ically dependent’.

LRC launches report on cohabitants

The new President of theLaw Society is Philip M

Joyce, who will serve untilNovember 2007.

Philip was deemed electedto the post after serving assenior vice-president last year.At the first meeting of thenew Council, on 3 November,James MacGuill was electedsenior vice-president for2006/07, while John Costellowas elected junior vice-president.

In this year’s Councilelection, the number of validvoting papers was 2,714. Eight spoiled votes wererecorded, though 33 papersfailed to comply with various sub-sections of bye-law 6(16).

The following memberswere elected to the LawSociety Council (the numberof votes appears after eachname): 1) Michael G Irvine 1,3882) Donald Binchy 1,3613) James MacGuill 1,2824) Michael Quinlan 1,2825) John P Shaw 1,2646) Gerard J Doherty 1,2047) James B McCourt 1,203

New officer team takes the helm

8) Gerard F Griffin 1,1949) Maura Derivan 1,13010) Michelle Ní Longáin 1,10411) Daniel E O’Connor 1,09812) Simon Murphy 1,05813) Patrick Dorgan 98514) Colin Daly 92915) Barry MacCarthy 846

The following candidates werenot elected:16) Linda O’Shea Farren 773

17) Margaret O’Shea-Grewcock 685

18) TC Gerard O’Mahony 450

As there was only one candidatenominated for each of the tworelevant provinces (Ulster andLeinster), there was no election.The candidate nominated in eachinstance was returned unopposed:Ulster – Margaret M Mulrine;Leinster – Andrew J Cody.

Council members are electedfor a two-year term. The sittingcouncil members who wereelected last year are: John DShaw, John O’Connor, Kevin DO’Higgins, Stuart Gilhooly,Michele O’Boyle, John Costello,James O’Sullivan, James Cahill,Moya Quinlan, Paul E Connellan,Marie Quirke, Thomas Murran,Niall Farrell, Jarlath McInerneyand Joseph B Mannix.

The new officer team (l to r): Junior Vice-President John Costello, President Philip Joyce and Senior-Vice President James MacGuill

9www.lawsociety.ie


Group life assuranceThe Law Society operates a grouplife assurance scheme. Thescheme is administered by PenproLtd and underwritten by FriendsFirst Life Assurance Company Ltd.An information leaflet on thescheme will be issued to LawSociety members in December withtheir practising certificateinformation.

In brief, the scheme currentlyprovides cover of €48,750, withthe current premium being €58.The scheme primarily covers LawSociety members who holdpractising certificates, with thescheme premium of €58included in the practisingcertificate fee for 2007. However,solicitors employed in the publicservice, who are exempt fromholding practising certificatespursuant to the Solicitors Acts,judges and county registrars mayalso join the scheme, providedthey are Law Society membersand pay the scheme premium for2007. The insured must beresident in Europe. Cover is onlyoperative where the insured isunder 70 years of age at the dateof death. Friends First reservesthe right to require medicalexaminations and/or healthdeclarations in certaincircumstances.

Those insured under thescheme have the option to nomin-ate a beneficiary(ies) to receivepayment under the scheme. Thisnomination can be changed at anytime up to the date of theinsured’s death. In the absence ofa nominee, the benefit will be paidto the estate of the insured.

A signed nomination enclosedin a sealed envelope, indicatingthe insured’s name, solicitornumber and date of birth may beforwarded to Louise Campbell,Support Services Executive, LawSociety of Ireland, Blackhall Place,Dublin 7. Louise co-ordinates thisscheme and may be contacted for further information, tel: 01 881 5712 or email:[email protected].

The Law Society in conjunctionwith Penpro Ltd is currentlyexploring possible additionalvoluntary top-up life assurance andwill issue information on this inearly 2007.

Retirement trust schemeThe retirement trust scheme wasestablished in 1975 to facilitatemembers of the Law Society insaving for retirement. It is aRevenue-approved personalpension group scheme. It hasgrown and developed over theyears alongside developments in

the pensions industry generally. The retirement trust scheme

operates under the trusteeship ofthe Bank of Ireland and ismonitored by a committee of theLaw Society. Members of the LawSociety, whether self-employed, inpartnership or in non-pensionableemployment, are eligible to join theretirement trust scheme. TheGazette contains monthlyretirement trust scheme reportsso that members can follow itsprogress. For further information,please contact Brian King orMaureen Carolan at the Bank ofIreland, tel: 01 637 8770/637 8764 or email:[email protected] [email protected].

Financial adviceThe Law Society has recentlyappointed Penpro Limited as

financial advisor to its members, insubstitution for Marsh Ireland.Penpro Limited provides advice tomembers on all aspects offinancial planning, insurance, andmortgages. They will answerqueries on the solicitor unsecuredfinance plan for preliminary tax,pension contributions, professionalindemnity, and practising-certificate-fee finance. For furtherinformation, please contact LizO’Brien at Penpro Limited, tel: 01 200 0100 or email:[email protected].

Health insuranceHealth insurance group schemesare on offer to members throughVHI, tel: 1850 444 444, BUPA tel:1890 700 890 or VIVAS Health tel:1850 716 666, all offering a 10%group scheme discount.

Credit cardA Law Society of Ireland Affinitycredit card, offering a wide rangeof benefits, is available tomembers through MBNA. Forfurther information, please phone:1800 409 510.

Further information on all of theabove is available on themembers’ area of the LawSociety’s website:www.lawsociety.ie.

SUPPORT SERVICES FOR MEMBERS

TAKING ADVANTAGEMEMBERS’ ADVANTAGE SCHEMES

Membership of the Law Society comes with lots of added benefits, including valuable advice that offers value for money. Here, supportservices executive Louise Campbell summarises the main features of the Members’ Advantage Schemes

CPD Plus is again beingmade available to members

in 2007. Membership runs from1 January 2007 to 31 December2007 and is available to firmsand individual members.

Subscribers will be eligible toattend an unlimited number ofCPD seminars/conferences andworkshops during that period,

subject to limited exceptions(the Law Society diplomaprogramme and the advocacycourses run by the Law Societyare excluded). Prices are: • CPD Plus: €900,• CPD Plus Firm: €1,525.Click www.lawsociety.ie forapplication forms and terms andconditions.

Other benefits of CPD Plusinclude: • Priority booking,• Free copies of materials to

two CPD seminars you donot attend,

• Advance notice of hot-topicseminars,

• Advance copies of the CPDbrochure.

‘CPD Plus’ a big successBritish legal firm Linklaters ischallenging the country’sbiggest law firm, CliffordChance, to the title of ‘biggestin Britain’. Its revenue was up22% at the half-year stage toStg£536 million. Linklaters isexpected to break the magicStg£1-billion barrier by year-end.

RACE TO BEBIGGEST

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

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

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

Talk to

Kieran FinnanAbout a

Banking Health CheckA Nationwide Service to the Legal Profession

Finnan Financial Limited21 O'Connell Street, Waterford. Phone 051 850672

[email protected] www.finnanfinancial.com

11www.lawsociety.ie

Alma Clissmann reports on developments in relation to the practical applicationof the European Convention on Human Rights

human rights watchSupreme Court decisiondefends amicus interventions


In Doherty v South DublinCounty Council and Others, with

the Equality Authority as amicuscuriae/respondent (SupremeCourt, 31 October 2006), theapplicants were a Travellercouple in their 70s, living on anemergency halting site inClondalkin, Co Dublin. Theirclaim was that the council, ashousing authority, failed toprovide them with appropriateaccommodation in the form of acentrally heated, insulated andinternally plumbed caravan,accommodation that would havebeen provided to members ofthe settled community as ahouse. This, they claimed,constituted direct or indirectdiscrimination against membersof the Travelling Community inrelation to social advantages andservices, including housing.

The law pleaded was:• The Housing Acts 1966-2004,

as interpreted in the light ofthe European Convention onHuman Rights Act 2003;

• Section 3 of the ECHR Act2003;

• Articles 40.1, 40.3 and 41 ofthe Constitution;

• The Equal Status Acts 2000-2004, and in particular section6 of the Equal Status Act 2000,as amended;

• Council Directive 2000/43/EC of 29 June 2000, imple-menting the principle of equaltreatment between personsirrespective of racial or ethnicorigin (the Race Directive).

Amicus curiaeThis particular decisionconcerned the capacity of theEquality Authority to participatein the proceedings as an amicuscuriae (friend of the court).

Quirke J had granted leave tothe authority in the High Courtto intervene as an amicus and theissue now came before theSupreme Court on appeal. TheEquality Authority’s case wasthat its functions included thepromotion of equal treatment ofall persons, that the issues raisedin the proceedings came withinits direct remit, and that the caseclearly had importantconsequences beyond itsparticular facts. The authoritysaid that it could be of assistanceto the court in relation to theinterpretation of the EU RaceDirective and its interrelationshipwith domestic legislation, and inrelation to the issue of reason-able accommodation of personswith a disability. The stateparties opposed the application.

The state’s argument wastechnical – that the legislationestablishing the EqualityAuthority did not expresslyprovide for a role as amicuscuriae, and that the expressinstances of the authority’spower to intervene in courtproceedings were implicitlyexhaustive of the powers of theauthority in this respect.Analysing the legislation indetail, Fennelly J, giving thejudgment of the Supreme Court,held that the provisions relied ondid not necessarily exclude thepower of the authority to act asamicus curiae. He then turned towhether this was included in thescope of the authority’s generalpowers and referred to case lawon the interpretation of statutorybodies’ powers, in particularKeane and others v An BordPleanála and others ([1997] 1 IR184). He held that the authorityhad the statutory power to act as

amicus curiae, and that this powerfalls well within the scope of thegeneral power of the authorityand is not merely ancillary orincidental. Under thesecircumstances, Fennelly J heldthat it was not necessary toconsider the question in thelight of the Race Directive. Hedismissed the appeal, and themajority of the court concurred.

Dissenting judgmentMacken J dissented. Sheconsidered that the technicalargument made was rathernarrow and sterile, and preferredto broaden her consideration tothe role of an amicus curiae. Shereferred to case law in the USand Australia, which saw amicusinterventions as appropriate onappeal, but not at first instance.This issue had not yet beenargued before Irish courts. Shereserved her position on theproper role of an amicus curiae,stating that the establishment ofthe appropriate principles wouldbe of importance where theauthority had already secured anorder to act as amicus in anothercase, and where the principleswould apply equally to similarapplications by other parties.

The rest of her judgmentfocused on the interpretation ofthe legislative provisionsestablishing the EqualityAuthority, its functions andpowers, in the context ofestablished law on theinterpretation of statutory orcorporate powers. Sheconcluded that the statutory roleof the authority within thelegislative framework thatcreated it and which governs itspowers, functions andoperational mechanisms, and the

role it sought to take on in theseproceedings, were incompatibleand would have the effect ofgiving the authority a doublerole in relation to proceedingswithin the legislative scheme,something not intended by thelegislative scheme.

Amicus interventionsThe majority decision is veryimportant for the future role ofstatutory bodies and NGOsseeking to intervene in test casesor cases that raise wider issues.Amicus interventions havebecome common in cases in theUS and before the EuropeanCourt of Human Rights, wherebodies with specialisedknowledge or expertise in aparticular area can bring thatknowledge before the court.They can sometimes update thecourt about developments ininternational law, science orpractice in a particular area ordemonstrate that a harmfulpractice is systemic rather thanincidental or peculiar to theparticular case. This can be animportant factor in casesinvolving people’s rights, wheresystemic practices may result inindirect discrimination.

If the decision had gone theother way, it might have effect-ively closed down the develop-ment of amicus interventions inIrish courts, except by bodiesthat have a specific statutorymandate to make them. As itnow stands, such interventionsmust have the leave of the court,which should prevent vexatiousapplications.

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

G

12 www.lawsociety.ie

LAW SOCIETY GAZETTE DECEMBER 2006 NEWS FEATURE

M inister for Enterprise,Trade and Employment

Micheál Martin paid tribute tothe educational excellence andvision of the Law Society whenhe formally opened the Society’sCork Law School on 20November.

The minister warmlywelcomed the Society’s decisionto establish in Cork. He notedthat the decision had been takenin response to demand, both interms of numbers and in thedesire that people can train tobe solicitors somewhere other,and cheaper, than Dublin.

The extraordinary explosionin the numbers of traineesolicitors – up approximately90% in the last four years – wasone of the main themes of theaddress given by President ofthe Law Society Philip Joyce.He pointed out that, in 2002,356 trainee solicitors started theProfessional Practice Course inthe Law Society. This year, 672commence this training.

In 2002, there were 714trainees at various stages in theprocess of qualification assolicitors. The equivalent figure

Historic day as minister opensThe formal opening of the Professional Practice Course in Cork by enterprise minister MicheálMartin was a historic day for the Law Society

now is 1,867, and this dramaticincrease shows no signs ofabating. A total of 546 solicitorswere added to the Roll in 2006.“These extraordinary figures area testament to the willingness ofthe solicitors’ profession toinvest time and resources intraining their future colleagues,”Joyce noted. He went on todescribe the formal opening ofthe Professional Practice Coursein Cork as “a very historic dayfor the Law Society”.

The Society’s premises inWashington Street, directlyacross from Cork’s historiccourthouse, contain a 180-seat lecture theatre, seventutorial rooms, a fully equippedIT room, staff offices andmeeting rooms. The LawSchool is staffed by a verycapable team of seven LawSociety employees based fulltime in Cork.

The Cork ProfessionalPractice Course is identical toits Dublin counterpart, althoughthe course in Cork is unique inthat it is characterised by acollaboration with UniversityCollege Cork. The traineesolicitors on the course havebeen enrolled as students inUCC as well as with the LawSociety, which gives them accessto UCC’s excellent academic,social, sporting andentertainment facilities.

The president concluded bypaying tribute to the practisingmembers of the profession, 750of whom deliver lectures,tutorials and workshops on theProfessional Practice Coursesannually. “This scale ofinvolvement is unparalleled andthere is nothing comparable toit in any other jurisdiction,” hesaid. He paid particular tributeto the members of the SouthernLaw Association, whose

At the opening of the Law School in Cork were enterprise ministerMicheál Martin, director general Ken Murphy, and trainees Cliona

O’Donoghue, Elisa McMahon and Rhona O’Kelly

The Cork Law School team: Nora Stack, Karen Smyth, Caroline Foley, Mary Singleton, Trina Murphy,Gail Sheerin and Valerie Morrison

Stuart Gilhooly (chairman of the Education Committee), Director ofEducation TP Kennedy and Valerie Morrison

13www.lawsociety.ie

LAW SOCIETY GAZETTE DECEMBER 2006NEWS FEATURE

new Cork Law School

enthusiastic support had beencritically important for thisinitiative.

In a humorous speech ofwelcome, President of theSouthern Law AssociationEamon Harrington announcedthat he was pleased with hisachievement, after only threedays in office as president, inalready opening a Law SocietyLaw School in Cork. “I intendto deliver the Supreme Courtto Cork by the end of next

week and the European Courtof Justice the following week,”he quipped.

Chairman of the Society’sEducation Committee, StuartGilhooly, spoke of the Society’scommitment to provide simplythe best professional trainingfor lawyers anywhere in theworld. He gave thanks andcompliments to the manypeople who had beenresponsible for the majorachievement of establishing a

Law School in Cork so quicklyand efficiently, in particular theSociety’s director of education,TP Kennedy, saying “he neverseems to be fazed by anydifficulty, but works patientlyand effectively to overcomeevery problem.”

Concluding the speeches tothe 73 trainees and the largernumber of solicitors who hadgathered for the event in theSociety’s new lecture theatre,director general Ken Murphy

put this initiative in the widercontext of the enthusiasm forchange and progress thatcharacterises both today’s LawSociety and the solicitors’profession generally. “This isvery much a profession of thelaptop and Blackberry ratherthan the quill pen,” he said. “Itis a profession characterised byyouth, openness and confidencein the future – a future in whichthe Cork Law School will playan important part.” G

(L to r): Director general Ken Murphy, UCC president Gerry Wrixon, enterprise minister Micheál Martin, chairman of the Education Committee Stuart Gilhooly, president Philip Joyce and Lord Mayor of Cork Michael Ahern


LAW SOCIETY GAZETTE DECEMBER 2006 NEWS FEATURE

Padraig Nally, a one-hourPrime Time special report

by RTÉ television, has beennamed Overall Winner of theLaw Society’s Justice MediaAwards, held in the Society’sheadquarters in Blackhall Placeon 17 November.

The judges were unanimousin their view that the 2006Overall Winner’s prize shouldgo to the programme’s makers –Mary Wilson (reporter) andTanya Sillem (producer). Theawards are Ireland’s longest-running media competitionwhich, this year, celebrates itscrystal anniversary (15 years).

This Prime Time specialreport investigated the killing ofTraveller John ‘Frog’ Ward byPadraig Nally in October 2004and the legal consequences thatfollowed. The programmeincluded exclusive interviewswith Nally and his neighbours,and Ward’s family and friendsand was a masterful piece oftelevisual work.

Explaining the judges’decision, Law Society DirectorGeneral, Ken Murphy, said:“Superb investigative journalism

Padraig Nally takes top honours

was characterised by excellentproduction values from thisPrime Time (News and CurrentAffairs) duo. The programmewas startling in its simplicity andprobing in its interviewing style,while its production standardswere second to none. Its quality,starkness and directnessencouraged viewers to lookdeeper into this divisive case.”

The report brought viewersbehind the scenes in an effort tounderstand the actions ofPadraig Nally on the day of thekilling, interviewed Nally in hisown home, and depicted a manwho felt very much under siege

as a result of previous encounterswith members of the TravellingCommunity. It also sought

balance by speaking to JohnWard’s son, Tom, who waspresent on the day of the killing,in order to try to determine whyNally acted the way he did, andit looked at the effect of Ward’smurder on his widow Marie andtheir family. It raised questionsabout whether or not thepresiding judge was wrong torule out a plea of self-defence forNally. It brought forward newevidence showing that JohnWard had a long criminal recorddating back over 30 years. Theprogramme also revealed thatfour bench warrants for JohnWard’s arrest were outstanding atthe time of his death.

At a black-tie ceremony, thePresident of the Law Society,Philip Joyce, presented theOverall Winners prize to MaryWilson and Tanya Sillem,consisting of a specially-commissioned Dublin Crystaltrophy and a cheque for €1,500.

Concluding, Ken Murphysaid: “The quality of productionin Padraig Nally is typical ofPrime Time’s standards ofexcellence. The interviews withthe affected parties, thereconstructions, and thisprogramme’s examination of thelegal issues surrounding the casemake Padraig Nally a very worthywinner of the Overall JusticeMedia Award.”

The winners in each of theother 11 categories in thecompetition were presented withJustice Media Awards,comprising a Dublin Crystaltrophy and a cheque for €750,while the runners-up receivedCertificates of Merit and chequesfor €250.

RadioThe Justice Media Award in theRadio category was presented toJohn Murray and CianMcCormack, from RTÉ’s

The Law Society’s Justice Media Awards celebrated its crystal anniversary in November with a galaevent at Blackhall Place

RTÉ’s Tanya Sillem and Mary Wilson receive the overall award from LawSociety President Philip Joyce and director general Ken Murphy

Law Society President Philip Joyceand Tánaiste Michael McDowell

15www.lawsociety.ie

LAW SOCIETY GAZETTE DECEMBER 2006NEWS FEATURE

in Justice Media Awards 2006

Morning Ireland team, for theirreport Road Safety – Perception,Enforcement and Interpretation.

TelevisionThe Justice Media Award fortelevision was presented toRTÉ’s Mary Wilson andproducer Tanya Sillem for theirPrime Time special reportPadraig Nally. A Certificate ofMerit went to journalist PaulMaguire and producer NiamhSammon for the Prime Time(News and Current Affairs)programme The Neary Report.

Court Reporting – PrintFor her two-part series on theKilrush Murder Trial, EmerConnolly of The Clare People waspresented with a Justice MediaAward in the Court Reporting(Print) section.

Court Reporting – BroadcastIn the Court Reporting(Broadcast) section, RichardDowling of RTÉ Dundalk wasawarded a Justice Media Awardfor his television report, ForFrances.

Daily newspapersThe joint winners of the JusticeMedia Award in the DailyNewspapers category were NoelBaker of the Irish Examiner for

his four-part series JuvenileJustice and Ruadhán MacCormaic of The Irish Times forhis captivating series TheCoroner’s Court. A Certificate ofMerit was awarded to TPO’Mahony of the Irish Examinerfor his article Privacy MattersProve A Very Public Concern.

SundaysThe winner of the JusticeMedia Award in the SundayNewspapers category was EndaLeahy of The Sunday Times forhis article Ireland: Safe Haven.Certificates of Merit wereawarded in this category toDearbhail McDonald, formerly

of The Sunday Times and nowwith the Irish Independent, forher article Too Much, Too Young;John Burke and Eoghan Rice ofThe Sunday Tribune for theirarticle, Mountjoy: A Prison atBreaking Point; and Ian Kehoeof the Sunday Business Post forhis article Commercial CourtService Cuts To Chase.

RegionalsThe winner of the JusticeMedia Award in this categoryis: Ann Murphy of the EveningEcho, Cork, for her storyFamilies Fight for Say in Court.

MagazinesJohn Cradden of ConsumerChoice magazine was presentedwith a Justice Media Award forhis article ResidentialManagement Companies in themagazines category.

BooksJoint Justice Media Awardswere presented in the bookscategory to: Damian McHughfor his book Public Relations andCorporate Communications Lawin Ireland, published byFirstLaw; and Willie PenroseTD for Farming Law – A Guidefor Farmers, published byFirstLaw in conjunction withthe Farming Independent. G

Kieran Walsh, Niamh Nolan (RTÉ news), Philip Joyce, Mary Little and Joe Little (RTÉ’s social and religious affairs correspondent)

The Tánaiste Michael McDowell, who was the evening’s guest speaker, takes centre stage with the winners in the Justice Media Awards

Carol Coulter, senior vice-president James MacGuill, Tánaiste MichaelMcDowell and deputy director general Mary Keane

Pursuant to the provisions of the Registration of Deeds and Title Act 2006 the Minister for Justice,

Equality and Law Reform has made an order providing for the commencement of section 73 of the

Act. As and from January 1st 2007 the Property Registration Authority will cease to issue, or

reissue, land certificates or certificates of charge.

For a period of 3 years after January 1st 2007 production of an existing certificate to the Authority

shall be required for the registration of a dealing with the property whose ownership it certifies, in

accordance with existing requirements. On completion of the application the certificate will be can-

celled and no replacement issued.

At the expiration of the 3 year period, referred to above, all remaining land certificates and cer-

tificates of charge, not already cancelled, shall cease to have any force or effect.

During the 3 year period the following provisions shall apply where a person claims to hold a lien

on registered land or a registered charge through deposit or possession of a land certificate or cer-

tificate of charge or an undertaking to furnish a land certificate or certificate of charge, where

monies were actually advanced and where the land certificate or certificate of charge did not issue

from the Land Registry prior to the 1st of January 2007:

● a holder of such a lien may apply to the Authority for registration of the lien in such manner

as the authority may determine;

● the application shall be on notice by the applicant to the registered owner of the land or

charge and be accompanied by the original certificate;

● the lien is deemed, for the purpose of section 69 of the Registration of Title Act 1964, to be

a burden which may be registered as affecting registered land;

● the Authority shall register the lien without charging any fee.

Note: The foregoing does not apply to a lien for costs on a land certificate or certificate of charge.

The online service of the Property Registration Authority

The Property Registration AuthorityAn tÚdarás Clárúcháin Maoine

Land Certificates and Certificates of Charge

Visit PRAI.ieor landdirect.ie for latest information

17www.lawsociety.ie

LAW SOCIETY GAZETTE DECEMBER 2006LETTERS

letters

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

From: James Kinch, solicitor, lawdepartment, Dublin City Council

Irefer to interpreterstranslating in and out of a

foreign language in the courts inIreland and, as I understand it,persons are being employed as‘interpreters’ on the basis oftheir nationality. There is oftenlittle or no consideration taken

Interpreting the interpretersas to their having any, oradequate, qualifications to act asan interpreter.

The role of interpreters inthe Irish courts is not asregulated as it is in England andmost other (EU) member states.Many practitioners are alreadyaware that such interpreters arebeing used, but I understand

that some are not questioningthe qualifications of theinterpreters involved.

I wonder whether it would beof assistance if the Law Societywere to recommend thatpractitioners carefully examinethe qualifications of interpretersbefore allowing them to act asinterpreters in court?

Recoverable party-and-party costs and PIABFrom: Seamus Sadlier, McCannand Associates, accountants

Iwrite to you in connectionwith a recent ruling made in

the Dublin Circuit Court byMs Susan Ryan, the countyregistrar, concerning party-and-party costs of dealing with thePersonal Injuries AssessmentBoard.

I acted on behalf of thesolicitor for the plaintiff in anaction in which an assessmentwas made by PIAB in the sum of €9,000, with an additional€200 expenses. Following legaladvice, this assessment wasrejected by the plaintiff, whosubsequently issuedproceedings in the CircuitCourt.

The personal injuriessummons issued in September2005 and the matter proceededin the usual course up to adviceon proofs stage. Thedefendant’s solicitors thentendered the sum of €9,201and the plaintiff subsequentlyaccepted this amount for

personal reasons. It should benoted, however, that it wasaccepted by the countyregistrar on taxation that boththe plaintiff’s solicitor andbarrister were of the view thatthe case was worth in excess ofthe tendered amount.

I prepared a full bill of costs,to include all work done inrelation to dealing with thePIAB and subsequentproceedings. The matterproceeded to taxation and, on 3 July 2006, following lengthyoral submissions by both

parties, judgment was reservedto 21 July.

While the submissions madeby both sides are too detailedand voluminous to set forthhere, the thrust of my argumentto the county registrar was thatthe High Court had previouslyruled that a client was entitledto representation by a solicitor(O’Brian vs PIAB, 2004/785JR,25/1/05 – under appeal to theSupreme Court). Furthermore,while the legislation did statethat no party-and-party costscould be recovered for cases

where the assessment wasaccepted, there was no contraryprovision where the assessmentwas rejected and proceedingsissued. In addition, I submittedthat, as there is a statutoryobligation to deal with PIABand, in the particularcircumstances of this case,where legal advice was that theassessment was insufficient, itwas a necessary step for theattainment of justice, thereforecosts of such a necessary stepshould be recoverable on aparty-and-party basis.

LAW SOCIETY GAZETTE DECEMBER 2006


COVER STORY

Medical and scientific breakthroughshave generated a reproductiverevolution, with new or assistedreproductive technologies (ARTs)making it possible to create

‘families’ in ways not previously contemplated. Theadvent of ARTs has also challenged our traditionalfamily law system and our understanding of theconcepts of parentage, custody and access, rights ofchildren and succession. ARTs include artificialinsemination, in vitro fertilisation (IVF), surrogacyand use of sperm, egg and embryo donation. ARTshave been available in Ireland since the 1980s, withthe first Irish ‘test-tube baby’ having been born in1987.

While many cases have recently come before theEnglish and international courts on the implicationsof ARTs, the first such Irish case was the case of MRv TR & Others, which was decided by McGovern Jon 15 November 2006. This landmark decisionconcerned the fate of three frozen embryos thatwere held in storage following the separation oftheir ‘parents’.

Multiple embryos are often created in the courseof IVF treatment to avoid women undergoingfurther courses of invasive, and potentiallydangerous, infertility treatment where possible.Surplus embryos can then be stored or frozen for aperiod of time to be used at a later date. In manyjurisdictions, disputes have arisen in relation to thecustody of these cryopreserved or frozen embryosfollowing the breakdown of a marriage orrelationship. It was only a matter of time before thisissue would arise in the Irish context.

‘Love’s labours lost’The parties in this case were married on 5 March1992 and their first child was born in October 1997.In the hope of expanding their family, theyundertook IVF treatment in 2001, as a result ofwhich six viable embryos were created. Three

CHILDinTIMEThe recent High Court conclusion that the three frozen embryos at the centre of the ‘embryo

custody’ case are not ‘unborn’ within the meaning of the Constitution has raised many legal and

ethical difficulties. Hilary Coveney explains

embryos were implanted at that time and theremaining three embryos were frozen. The IVFprocess was successful and the wife gave birth to adaughter in October 2002. However, before thischild was born, marital difficulties had arisen and theparties had separated.

A dispute subsequently arose as to the custodyand possible use of the three remaining embryos.The wife sought to assert a ‘right to reproduce’ andapplied for custody of the embryos in the hope ofhaving a further child or children. She also arguedthat the embryos constituted human life and shouldattract the constitutional protection afforded to the‘unborn’, with associated personal rights, includingthe right to life. The father, on the other hand,argued for his ‘right not to reproduce’, saying that hedid not wish to have a child against his will within aseparated family unit, with all the associated legalobligations. These legal responsibilities wouldinclude automatic joint guardianship as a ‘married’father and an obligation to pay maintenance.

The court divided the case into two distinct parts:the first concerned the private law issue of consent.The wife argued that her husband had eitherexpressly or impliedly consented to the three frozenembryos being used for future implantation, withher counsel arguing that there was “no going back”for him once the embryos had been created. Thehusband, however, denied that he had consented tothe use of embryos as envisaged by the wife. Thecourt examined the various consent forms and otherdocumentation that had been executed by the partiesin the context of the IVF treatment. It held thatthere was no agreement between the couple,whether express or implied, as to what was to bedone with the frozen embryos in the circumstancesthat had arisen.

Since the required consent of the husband to theimplantation of the three frozen embryos had notbeen obtained, the court ruled in his favour on thisissue. The court also stated that the consent forms

• Private law issueof consent

• Meaning of theterm ‘unborn’

• Personal rights

MAIN POINTS

19www.lawsociety.ie

LAW SOCIETY GAZETTE DECEMBER 2006COVER STORYPIC

: GETTY IM

AGES

A two-day old human embryo atfour-cell stage of development



COVER STORY

were vague in a number of important respects and,for example, did not cover possible contingencies,such as the death of either party or a futureseparation or divorce.

‘Life’s but a walking shadow’The second part concerned the public andconstitutional law question of the status of theembryo and the critical issue of when human lifemight be said to begin. In other words, is an embryo ahuman life from the moment of its creation or is it acluster of human cells with only the capacity forhuman life until implanted in the womb?

Evidence from a number of expert witnesses wasadduced in the High Court on this question. Thesewitnesses varied in their opinion, with some arguingthat life begins at the moment of fertilisation (fusionof egg and sperm). Others argued for the time ofimplantation in the womb, at which stage acontinuum of pregnancy begins. Still others arguedfor a date following implantation when the human‘primitive streak’ may be said to have formed.

Given the very divergent and conflicting views onthis subject, the court held that it was not possible forit to decide the issue. The court further noted that thepoint at which people use the term ‘human being’ orascribe human characteristics to genetic material

depends not only on science and medicine, butextends also to moral and religious beliefs. It wasgenerally accepted, however, that embryos are“deserving of special respect and that their verycreation raises serious moral and ethical issues whichin themselves impose restraints on what may or maynot be done with them”.

To assess the status of the embryo, it was necessaryfor the court to consider the meaning of the term‘unborn’ in article 40.3.3 of the Constitution – the‘right to life’ amendment that was inserted followingthe abortion referendum in 1983. The wife arguedthat the embryo, being ‘unborn’, was entitled toconstitutional protection and therefore had a right tolife. In considering previous case law concerning theprotection of the ‘unborn’, the court noted that allsuch cases had arisen in the context of abortion,where the foetus is clearly already in existence.However, the status of the embryo is a differentmatter and one that has never been considered by theIrish courts.

‘What’s in a name?’The court was of the view that the generalunderstanding of the word ‘unborn’ at the time of theconstitutional referendum related to a foetus in thewomb and not to the possibilities available since thattime with the advent of ARTs. McGovern J found thatthe “clear purpose” of the amendment was to dealwith the issue of abortion. On this basis, the courtconcluded that the word ‘unborn’ does not includeembryos in vitro and therefore does not include thethree frozen embryos at the heart of the dispute inthis case. As a consequence, the embryos are notafforded constitutional protection and do not have the‘personal rights’ enshrined in the Constitution.

The court further held in this regard that it shouldnot be the function of the courts to decide their legalstatus and whether the word ‘unborn’ should includeembryos in vitro, stating that this was a matter eitherfor the Oireachtas, or the people in the event that aconstitutional referendum is put before them. JudgeMcGovern wrote: “laws should, and generally do,reflect society’s values and will be influenced by them.But, at the end of the day, it is the duty of the courtsto implement and apply the law, not morality.”

A decision is now awaited as to whether the wifewill appeal the decision to the Supreme Court. In themeantime, a question mark hangs over the status ofthese embryos and the reality that they are now likelyto remain in storage for an indefinite period, since theMedical Council’s Guide to Ethical Conduct andBehaviour prevents their destruction or their being“allowed to perish”.

As the in camera rule does not apply to proceedingsof this nature, the parties were forced to play out thiscritical and very private aspect of their lives in thepublic glare, and it is my view that some thoughtshould be given to extension of the in camera rule inthese cases.

In vitro fertilisation:frozen sperm andhuman embryos

PIC: R

EX FEATUR

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21www.lawsociety.ie

LAW SOCIETY GAZETTE DECEMBER 2006COVER STORY

Britain introduced comprehensive rules andregulations in this area with the enactment of theHuman Fertilisation and Embryology Act 1990. This actdeals specifically with the issue of ‘embryo custody’disputes, insisting on the continued consent of bothparties to storage and use of embryos at all times.

The Human Fertilisation and EmbryologyAuthority also regulates all aspects of ART clinics andpractices, and insists that prospective parents receivecounselling at each step of the process, so thatcircumstances such as the death or separation of thecouple can be discussed and planned for. The aim ofthe legislation is to avoid disputes arising, wherepossible.

‘We are such stuff as dreams are made on’Many courts in other jurisdictions, including the UScourts, have also relied upon a consent or intent-based model to determine ART disputes. Manyreaders will be familiar with the case of Natalie Evans,who recently brought proceedings in England and theEuropean Court of Human Rights, seeking custody ofstored embryos and asserting her right to family life.Ms Evans had created embryos with her formerpartner in 2001 prior to undergoing cancer treatment.Their relationship subsequently broke down and,when she sought to use these embryos, her formerpartner refused.

Since consent is the governing criterion under the1990 act, the English courts held that she could notuse the frozen embryos after her former partner hadwithdrawn his consent for their continued storage anduse. Ms Evans was also unsuccessful in the EuropeanCourt of Human Rights, where it was ruledunanimously that the embryos did not have anindependent right to life. However, she wassubsequently granted leave to appeal the decision to

the Grand Chamber of the ECHR, which hearingtook place on 22 November 2006. A final decision isawaited and will be watched with great interest by aninternational audience. The facts of this case areparticularly difficult, as the embryos were createdprior to the removal of Ms Evans’ ovaries in thecourse of undergoing cancer treatment. As a result,she will be unable to have a biological child in theevent of the destruction of these embryos and she hasspoken of her “last hope” in this regard.

Unlike many other jurisdictions, there is currentlyno statutory or legislative guidance in relation to thepractice of ARTs in Ireland. The only practicalguidance concerning ARTs is found in the MedicalCouncil guidelines, which, of course, do not deal inany way with the important legal consequences. Thereis an urgent need for legislation in this jurisdiction toregulate ARTs and provide guidance on the myriadlegal and other implications that arise as a result.While medical and scientific breakthroughs continueapace, our legal system is left limping behind. Theconsequences of an absence of legislative guidancehave already been seen in the R case. In his judgment,McGovern J noted that “the absence of any rules orregulations in this jurisdiction means embryos outsidethe womb have a very precarious existence”. He hasfurther ordered that the state should pay the legalcosts of the case due to the points of exceptionalpublic importance that it raised, and also due to theabsence of any legislative or regulatory regime forARTs in Ireland.

The government recently established aCommission on Assisted Human Reproduction toreview this area, and a comprehensive report waspublished in March 2005 with many wide-rangingrecommendations. However, these recommendationsare still being considered by the Oireachtas JointCommittee on Health and Children. In its report, thecommission recommended the use of an intent-basedmodel for the resolution of ART disputes – themajority of the commission recommended that anembryo should not attract legal and constitutionalprotection until time of implantation. Thecommission also expressed the hope that a rationaldebate on ARTs would now take place in Ireland inthe context of ever-developing biotechnology andbioethics.

The plight of the couple at the centre of the R casemay not be unique, since it is estimated that there arecurrently approximately 1,000 embryos in storage inIrish IVF clinics. The current laissez-faire situation isunacceptable, not alone for doctors and lawyers, butmore importantly for those turning to ART clinics forassistance. Legislation and appropriate guidance arenow urgently required to give these issues theimportance and urgency they deserve.

Hilary Coveney is a solicitor with Matheson OrmsbyPrentice and the head of the newly-formed Family LawUnit.

G

LOOK IT UPCases: • Evans v Amicus Healthcare Ltd [2004] EWCA Civ

727 (Court of Appeal judgment); [2003] EWHC2161 (Fam) (High Court judgment)

• Evans v United Kingdom (application no6339/05) ECHR, 7 March 2006

• MR v TR & Others, High Court, McGovern J, 15November 2006

Legislation: • Bunreacht na hÉireann, article 40.3.3• Human Fertilisation and Embryology Act 1990

(Britain)

Literature: • Medical Council’s Guide to Ethical Conduct and

Behaviour• Commission on Assisted Human Reproduction

report, published in March 2005

“Embryos aredeserving ofspecial respectand their verycreation raisesserious moraland ethicalissues which in themselvesimposerestraints onwhat may ormay not bedone withthem”



INTERVIEW

When the newly-elected President ofthe Law Society, Philip Joyce, setout on his legal career, he thoughthe had got it made. Shortly afterhe qualified, he was involved in a

family law case that took him from Tipperary toParis. After a hard, but productive day’s work, heended up drinking champagne with the husband’srepresentative until a very late hour. “I thought thatmy practice was going to be like that for ever,” laughsPhilip, “but, unfortunately, I haven’t had any otherParisian business since!”

The new president decided on a career in law backin the 1970s. From Killenaule in Co Tipperary, hisbackground was in farming, though he is at pains topoint out that being the youngest of four and havingan elder brother who was ten years his senior put paidto any thoughts of a career in agriculture. Philip sayshe was undecided about what he wanted to do withhis life during his leaving certificate year, but haddecided “for whatever reason to keep on Latin, whichwas a requirement for law at the time, so in duecourse I came to the Law School”. Which wasprobably just as well, since his brother Patrickeventually inherited the farm.

“At the time I started law, my mother had diedsome years previously. My father was very pleasedthat I decided to do law. My father’s first cousin was a

Tipp forNewly-elected President Philip Joyce talks to Mark McDermott about his

student days, his native Tipperary, and his plans for the coming year

solicitor in Killenaule called Edgar Ryan. They werevery friendly over the years. I didn’t have anyparticular contact with him, however, but it was hispractice that I eventually took over in 1976.”

Philip has fond memories of his time in the LawSchool, which he describes as being “all over theplace” during that period. “In theory it was based inthe Four Courts, as the Law Society hadn’t reallymoved out of there,” he says. “Lectures took place invarious locations around Dublin. We never knewfrom one term to the next where the next lecture wasgoing to be. A bicycle was an essential requirement.”He remembers lectures being held in St Andrew’sHall, Earlsfort Terrace, and in a rugby club – “I’veforgotten where. It all seemed a little haphazard atthe time.”

Upper echelonsIt was as class rep of the Law School’s LiaisonCommittee that he first made contact with the upperechelons of the Society. “Being class rep brought meinto some contact with the then director general, JimIvers, who I remember as being an excellentadministrator. On one occasion, the Society got someexam results wrong. There was a lot of trouble over itand the results had to be withdrawn. I can recallwriting a long letter to Jim about that, and asking itto be published in the Gazette. The letter was neverpublished. Mr Ivers had me in and we discussed it indetail. He offered to give me the letter back, but Iwouldn’t take it! I presume he didn’t want it aroundthe place,” Philip smiles.

After he completed his studies, Philip did his pre-qualification training with Tallaght-based solicitorJohn Glynn, where he worked out his apprenticeship.There, the future president learned the fundamentalsof practice and pretty much everything he wouldneed to know about conveyancing. “John wasextremely efficient in the way he ran his business,”says Philip. “He was careful about how he did hiswork, making sure that everything was completedproperly and on time. I wouldn’t have regardedmyself as efficient as John in that respect, so, if it’snot doing him any disservice, I will put him down as

• Law Schoolmemories

• A rural practice• Presidential goals

MAIN POINTS

SLICE of LIFEChildhood: Ballynonty, Co Tipperary. The youngest child of Martin and Joan Joyce. Books: Killenaule Primary School, Castleknock College and the Law School of theLaw Society of Ireland. Bosses: Bryan Maguire of JJ O’Shee Murphy & Co, Clonmel, Co Tipperary. John Glynn& Co, Tallaght, Dublin. Mortarboard: the Law School in 1976. First job: the office of Edgar J Ryan & Co, the genesis of his partnership firm, Joyce& Barry Solicitors. Is now a partner in the law firm Joyce & Barry Solicitors,Killenaule, Thurles, Co Tipperary. Married to: Rosario Boyle SC. Local hero: he is the first chairman of the Killenaule Development Association.

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LAW SOCIETY GAZETTE DECEMBER 2006INTERVIEW

top

teaching me all I knew. How much of it I retained, I’llleave for others to judge!”

In these heady times of economic prosperity, itmight seem strange that Philip decided to move outof the capital city after only one year, heading insteadfor what might have been considered a quietTipperary backwater. Philip explains: “In 1975, thesalary level for a young qualified solicitor would nothave been that high. The opportunities that exist nowcertainly weren’t in evidence then. I had been askedto go back to the firm of Edgar J Ryan & Co byTerry Ryan, Edgar’s widow, with a view to acquiring

the practice after a couple of years, which happenedin 1979. Terry now lives in Drogheda. Her daughteris Elizabeth Senior, who’s very well known in theprofession.” Philip’s practice is now Joyce & Barry,with offices in Killenaule and Cashel. David Barry,son of the late Harry Barry, solicitor, is the otherpartner in the practice.

It was during this time that Philip got involvedwith the Tipperary Bar Association. “After a relativelyshort time, I found myself on the committee of thebar association. Tipperary always holds elections fortheir committee, while the choice of president is a

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LAW SOCIETY GAZETTE DECEMBER 2006INTERVIEW

well-regulated affair and alternates between Northand South Tipperary. I have no idea why anybody putme on the committee on the first day, as it was such ashort time after I went into practice. At that time, JohnCarrigan was still secretary. I eventually succeeded himin that post and remained in it for ten years.”

His election to the Council of the Law Society camein November 1988. “I was asked to put my nameforward by the Tipperary Bar Association, which I did.I was conscious that, coming from a small practice inrural Tipperary, it was going to be difficult to getelected. At the time, 30 members were elected eachyear rather than 15 every two years, which is thesystem now. I came in at number 30 of 30!”

Should I stay or should I go?Philip has been elected to Council every year since. Heis philosophical about his election as President of theLaw Society. “I suppose there comes a point in time,when you’re on the Council for a long number ofyears, and you have to make the decision either to stayor go. If you stay, you know that you’re going tobecome president at some point.

“I think it gives you an opportunity to lead theprofession, and to be of some influence in the way thatthe Law Society goes about its work. It would beunrealistic to think that, with one year in office, youcould change things to a huge degree. You have to bevery lucky to be presented with the opportunities tomake radical change.

“I would have to say that there is great satisfactionin the work you do on Council from one year to thenext, and in serving on the various committees. EveryCouncil member can point to some aspect or otherwhere they have made a difference on behalf ofmembers, or perhaps in some submission that has beenmade to government insofar as legislation isconcerned. These things wouldn’t necessarily bedramatic, but I think every Council member can lookback over their period in Council and feel that they didwell from time to time.

“I spent ten years in one form or another on theregulatory side of the building, and from that exper-ience you learn a lot. You also have the opportunity tohelp colleagues that have got into some difficulty. Butthere is, I think, a continuing problem with solicitorswho might feel that they’re in some difficulty, and whodo not feel that there is a ready-made solution forthem. I would like to see the Regulation of PracticeCommittee engaging in an ongoing educationalcommunication with members of the profession. Weneed to establish a constant stream of communicationfrom the committee to our members, so that they arefamiliar with the work that the investigatingaccountants have to do and that they understand thereason for their queries, with the aim of improving theprofession’s response and standards generally.”

Philip has also proposed the establishment of a taskforce that will conduct a thorough review of theSociety’s complaints-handling systems. It will look at

these systems from the initiation of a complaintthrough to its completion, will take account of bothpolicy and legal considerations, and will makerecommendations. The task force will be chaired byJoe Brosnan.

The new president is also happy to see the officialopening of Cork’s Law School. “I’m glad that oursystem of education has become decentralised tosome extent. I think that this can only benefit theprofession in the long run. My hope would be that,when students are educated in Cork, it will become asource of employees for practices outside Dublin,because just at the moment, it’s very difficult for suchpractices to attract newly-qualified solicitors. Ifeverything is not so geared towards Dublin, thenlawyers might see that ‘outside the Pale’ has its ownopportunities.”

Philip believes that the main role of the presidentis to represent the views of the Society’s members,and to be involved as much as possible in arepresentative capacity. “Of course, various issues willarise throughout the year, including the delivery ofthe Competition Authority’s final report, the reportof the Miller Implementation Group in relation tosolicitors’ costs, and the results of various items oflitigation that the Society is involved in on behalf ofits members. However, as things stand, I wouldexpect that it will continue to be the Society’sfunction to be the sole regulators of the solicitors’profession and also the sole educators.”

What’s his chief goal? “The challenge during myyear in office will be to respond to the issues thatarise, and to try and make changes where required.Primarily, my focus will be to increase the level ofcommunication between the Society and its members,and between our members and the task force inrelation to complaints. This will be extremelyimportant.” G

• Lawrence J Ryan(1931/32)

• John Carrigan(1957/58)

• Senator John Nash(1959/60)

• Donal G Binchy(1990/91)

• Philip Joyce(2006/07)

TIPPERARY’SFIVE PRESIDENTS



CONTRACT LAW

Apre-nuptial agreement is a pre-weddingcontract, by which a couple intendingto marry sets out how property andfinances would be divided in the eventof a separation or divorce. Pre-nuptial

agreements have increased in practical importancesince divorce became law in Ireland in February 1997.They are commonplace in the world of celebrity,where they are seen as a form of divorce planning.There is no Irish law preventing individuals intendingto marry from signing a pre-nuptial agreement, butthe difficulty is that the courts are not obliged toenforce such an agreement should the parties separateor divorce.

Fifty ways to leave your loverBinding pre-nuptial agreements appeared to havebeen relegated to the back burner until the recentMiller and McFarlane judgments in Britain. NeitherAlan Miller nor Kenneth McFarlane had a pre-nuptialagreement. These recent House of Lords judgmentshave given renewed impetus to the drawing up of pre-nuptial agreements – not only in England, but also inIreland – as high-earning spouses attempt to protecttheir positions in the event of a separation or divorce.

In Miller, the Law Lords held that Melissa Millercould keep the £5 million she was awarded by theCourt of Appeal after a childless marriage lasting lessthan three years to Alan Miller, a multi-millionairefund manager. Lawyers for Miller had argued that theLords should cut the £5 million award to £1.3million, as the marriage was childless, lasted only twoyears and nine months, with the added factor ofMelissa Miller bringing no wealth to the marriage.Describing the £5 million award upheld by the Courtof Appeal as “a jaw-dropping amount”, Miller’slawyers argued that it would give Melissa Miller “ameal ticket for life” after a very short marriage.

In the McFarlane case, the Lords considered thecase of Julia McFarlane, who had given up apromising career as a solicitor during a 16-yearmarriage to Kenneth McFarlane, a tax partner. TheLaw Lords held that she was entitled to £250,000 ayear from her husband for an indefinite period, rather

BREAKINGThe justice minister is to set up an expert group on the recognition of

pre-nuptial agreements. Geoffrey Shannon discusses the legal standing of pre-

nuptial agreements, given that there are some 30,000 millionaires in Ireland

than a mere five years as was held by the Court ofAppeal. The couple had previously agreed a 50/50split of their £3 million worth of assets.

The Miller case is of particular interest and mayvery well be followed in Ireland. The Lords’groundbreaking ruling indicates that, even in a shortmarriage, a wife might be entitled to a 50/50 split ofthe wealth generated during that marriage. This islikely to strike fear into the hearts of wealthy Irishmen contemplating separation or divorce after a shortmarriage. One of the factors an Irish court can takeinto account is the length of the marriage, although itis only one of a number of factors.

The Miller ruling will no doubt be reflected in anysettlement negotiations between Heather Mills andPaul McCartney over his £800 million. Indeed, theMcCartney’s were married for twice as long as theMiller’s and there was also a child of the marriage. Itshould be stated that McCartney did not have a pre-nuptial agreement.

I will surviveBut what is the current status of pre-nuptialagreements under Irish law, and how compatiblewould a pre-nuptial agreement be with theConstitution?

Under article 41 of the Constitution, the family isthe basic unit of society. Article 41.1.1 talks of thefamily “as the natural primary and fundamental unitgroup of society”. It also pledges to “guard withspecial care the institution of marriage” and toprotect it against unjust attack. Thus, there is aconstitutional obligation under article 41 to protectand preserve the family unit, as far as practicable.

The nature of the family in Ireland, however, haschanged dramatically over the past 30 years. Theimmense social, cultural and economic changes sincethe 1970s have altered family structures. Today, thereality mirrors that of our European partners. Thatincludes an increase in the incidence of maritalbreakdown.

Up to now, an attempt by the legislature tointroduce any legislation to dilute the paramountcy ofthe family or encourage people to walk away from

• Recognition ofpre-nuptialagreements

• Family Law(Divorce) Act1996

• Case law in otherjurisdictions

MAIN POINTS

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LAW SOCIETY GAZETTE DECEMBER 2006CONTRACT LAW

UPhard to dois

PIC: G

ETTY IMAG

ES



CONTRACT LAW

what most would accept as the ideal family unit wouldhave been deemed unconstitutional by the SupremeCourt. That is no longer the case, following theremoval of the constitutional prohibition on divorceby the insertion of article 41.3.2 into the IrishConstitution. This weakens, but does not negate, theargument that a pre-nuptial agreement made incontemplation of a separation (that may occur at somefuture date and that is not inevitable) is unenforceablefor reasons of public policy.

Heart of glassThe provisions of the Family Law Act 1995 and theFamily Law (Divorce) Act 1996 (the Divorce Act) do notappear to support the enforceability of pre-nuptialagreements. It is clear from the Family Law Acts thatthe Oireachtas legislated to facilitate repeatedapplications to court for ancillary relief, rendering thestatutes opposed to the concept of spousal autonomy.

That the overall philosophy of these acts is notsupportive of spousal autonomy is clear. In JD v DD(Judicial Separation), for example, McGuinness J heldthat no ‘clean break’ provision could be made whenfinancially reordering a broken marriage andcontinued, at page 89: “This also appears to mean thatno agreement on property between the parties can becompletely final, since such finality would be contraryto the policy and provisions of the legislation”.

A further relevant and instructive case is thedecision of Finlay Geoghegan J in RG v CG, whichconcerned the weight to be attributed to a consentorder at the conclusion of judicial separationproceedings. Finlay Geoghegan J stated that she didnot consider it appropriate on the facts of the case totake into account an acknowledgement on the part ofthe wife, contained in the consent order, to the effectthat the consent constituted proper provision for thepurposes of the Divorce Act. The judge quoted withapproval the dicta of Mumby J in X v X, where hestated: “A contract which purports to deprive thecourt of a jurisdiction which it would otherwise have iscontrary to public policy. Thus, a spouse cannotvalidly agree, whether expressly or impliedly, not toapply for maintenance or other forms of ancillaryrelief. Such a stipulation is contrary to public policyand unenforceable” (see also N v N).

To the extent that a pre-nuptial agreement purportsto exclude the jurisdiction of the courts, it will be inbreach of the constitutional requirement that properfinancial provision be in place to ensure that spousesand dependent family members have been catered for.By virtue of article 41.3.2 of the Constitution and theFamily Law (Divorce) Act 1996, the court must besatisfied that such provision as the court considersproper, having regard to the circumstances, exists orwill be made for the spouses and any dependentmembers of the family. It must therefore be noted thatthe constitutional imperative on the part of the courtsto ensure ‘proper provision’ has been made beforegranting a decree of divorce will, no doubt, make pre-

nuptial agreements, that have been concluded severalyears prior to the divorce no more than a factor in the overall consideration of a case. Further, if it wereintended to have regard to pre-nuptial agreements, itis reasonable to assume that they would have beenspecifically mentioned in the 1995 act and the Divorce Act.

Tainted loveIn the Divorce Act, specific reference is made toseparation agreements as a factor to consider insection 20(3), and thus if it were intended to haveregard to pre-nuptial agreements, one would also haveexpected some other detailed provisions dealing withsuch agreements.

It is possible to argue that section 20 of the DivorceAct and section 16 of the 1995 act, which set out thefactors to be taken into account by a court inreordering assets in a divorce and judicial separationcase respectively, provide a framework under which apre-nuptial agreement can be recognised. Theintroductory requirement set out in section 20(1) ofthe Divorce Act and section 16(1) of the 1995 actrequires the court to “ensure such provision as thecourt considers proper having regard to thecircumstances”. This general standard is not definedany more clearly by the legislature, thus increasing thelevel of discretion afforded to the judiciary in thesecases. A pre-nuptial agreement could be considered aspart of the circumstances of the case by a court whendetermining what ancillary orders to make undersection 16 of the 1995 act and section 20 of theDivorce Act. In the first reported divorce decision, RC vCC (Divorce), Barron J, after considering the financialarrangements made by the spouses, stated: “I amsatisfied that these provisions are proper in the overallcircumstances of the family”. This clearlydemonstrates that the judge felt he had to view thearrangements in their totality. In so doing, there isroom for argument that the terms of a pre-nuptialagreement are a circumstance that ought to beconsidered.

Go your own way The government study on pre-nuptial agreements islikely to consider the law in other jurisdictions. Pre-nuptial agreements are enforceable in many Europeancivil law states (Belgium, Denmark, France, Germany,Italy, the Netherlands, Norway, Spain, Sweden andSwitzerland). They normally must be signed in thepresence of a notary (for example, Germany, Italy, theNetherlands and Spain). In many states – for example,Denmark, Italy, Spain and Sweden – pre-nuptialagreements must also be registered.

Pre-nuptial agreements are enforceable in severalUS states, with the exceptions of Kentucky, Michigan,Mississippi, Pennsylvania, South Carolina andVermont. In the US, many states have adopted theUniform Premarital Agreement Act 1983, leading tolegislation on the basis of this. The US courts have

“Considerableuncertaintysurrounds notonly the statusof a pre-nuptialagreementexecuted inIreland, butalso theenforceabilityof a pre-nuptialagreementexecuted inanothercountry”

29www.lawsociety.ie

LAW SOCIETY GAZETTE DECEMBER 2006CONTRACT LAW

generally upheld pre-nuptial agreements that havebeen validly entered into, with independent legaladvice, proper disclosure and that are not tainted byfraud. Interestingly, it seems that lawyers in the USare themselves becoming increasingly cautious aboutdrafting pre-nuptial agreements, due to the lowfinancial returns for the practitioner and the highnegligence exposure, a trend also observed inAustralia and Germany. It appears that pre-nuptialagreements are generating increased litigation in theUS, focused on whether fair procedures were adoptedin the negotiation of the contents of the agreement.

Binding pre-nuptial agreements were brought intoforce in Australian law by the Family Law AmendmentAct 2000, which inserted a new part VIIIA into theFamily Law Act 1975 (FLA). The new part VIIIA ofthe FLA provides that couples may, among otherthings, enter into a ‘financial agreement’ beforemarriage. A financial agreement may cover theirproperty and financial resources, spousal maintenanceand “incidental and ancillary matters”. For this formof pre-nuptial agreement to be binding, there are anumber of formalities, including that each party hasreceived independent legal advice before theagreement is entered into.

It should be noted, however, that there is no courtsupervision or registration of ‘financial agreements’,with the responsibility for overseeing such agreementsresting on family law solicitors as the providers ofindependent legal advice. For the Australian family lawsolicitor, the independent advice requirements arehighly onerous and difficult to discharge, which, inturn, have raised concerns about potential professionalliability. It is therefore not surprising that somesolicitors are refusing to act for clients wishing to enter‘financial agreements’ for fear that their professionalindemnity insurance might not cover them in theevent of litigation for professional negligence, on thebasis that advising on a ‘financial agreement’ mayamount to financial rather than legal advice.

Without youThere has been some consideration of pre-nuptialagreements in England and Wales. A 1998 HomeOffice Green Paper, Supporting Families,recommended that pre-nuptial agreements should notbe enforceable if one or more of the following sixcircumstances apply:• Where there is a child of the family (whether the

child pre-existed or post-dated the agreement),• Where under the general law of contract the

agreement is unenforceable,• Where one or both of the parties did not obtain

independent legal advice before entering into theagreement,

• Where the agreement would cause “significantinjustice”. (I believe the words “significantinjustice” are unduly vague in this context. Thiscould, no doubt, generate increased litigation, agoal that the paper seeks to prevent),

• Where one-half of the couple, or the couple as awhole, has failed to give full disclosure of assets andproperty before the agreement was made,

• Where the agreement is made fewer than 21 daysprior to the marriage.

Earlier this year, Resolution (the solicitors’ family lawassociation in England and Wales) renewed its call forpre-nuptial agreements to have binding legal effect inEngland and Wales. It made reference, in particular, toan increasing number of client enquiries from peopleentering a second and subsequent marriage, seekingprotection for properties they had before they wed.

There is no reason why a pre-nuptial agreementshould be prima facie unenforceable. That said,considerable uncertainty surrounds not only the statusof a pre-nuptial agreement executed in Ireland, butalso the enforceability of a pre-nuptial agreementexecuted in another country.

The law should now be clarified to ensure that pre-nuptial agreements are valid and enforceable to theextent that they support and foster the interests ofchildren and spouses. It should be noted, however,that even if, following Minister McDowell’s review,the legislature steps in to support pre-nuptialagreements, caution should be exercised. Anylegislation should not simply be a ‘rubber stamping’exercise, but should allow the judiciary to retain a widediscretion to vary the terms of a pre-nuptialagreement.

Geoffrey Shannon is the Law Society’s deputy director ofeducation. The CPD Unit will be hosting a conference on27 February 2007 on ‘Divorce – Ten Years On’, to markthe tenth anniversary of the introduction of divorce inIreland.

G

LOOK IT UPCases: • JD v DD (Judicial Separation) [1997] 3 IR 64• McFarlane (Appellant) v McFarlane (Respondent) [2006] UKHL 24• Miller (Appellant) v Miller (Respondent) [2006] UKHL 24 • N v N (Jurisdiction: Pre-nuptial agreement) [1999] 2 FLR 745• RC v CC (Divorce) [1997] 1 IR 334• RG v CG (High Court, unreported, Finlay Geoghegan J, 8 February 2005)• X v X [2002] 1 FLR 508

Legislation: • Bunreacht na hÉireann, article 41• Family Law (Divorce) Act 1996• Family Law Act 1975 (Australia) • Family Law Act 1995• Family Law Amendment Act 2000 (Australia)• Uniform Premarital Agreement Act 1983 (USA)

Literature: • Supporting Families: A Consultation Document, British Home Office Green

Paper, 1998



COMPANY LAW

Until recently, the reported case lawdealing with section 218 of theCompanies Act 1963 involved companiesthat were unlikely to be in a position tomeet their liabilities as they fell due

(see, for example Re Lynch, Re Ashmark Ltd, Re PatRuth Limited and Re Industrial Services Company). Insuch circumstances, the courts had to consider, inexercising the jurisdiction to validate certain post-commencement dispositions, whether thedisposition was in the interests of the general bodyof creditors – particularly the unsecured creditors –of the company. As Courtney comments, “theprimary rationale of the validation mechanism in CA1963, s218 is to protect creditors” (2002: paragraph27.068). This is due to the fact that an inappropriatedisposition of a company’s assets after thecommencement of a winding up will usually result insome liabilities of the company being met and othersnot being met, meaning fewer assets will be availableto pay the unsecured creditors. As stated by MurphyJ in Re McBirney and Co Ltd, “the entire burden ofthe authorities is to the effect that the making of thepayment (as opposed to the incurring of theexpense) must be shown to be for the benefit of thecompany or at least desirable in the interests of theunsecured creditors as a body”.

However, in his recent judgment in Joyce vWellingford Construction, Clarke J was asked toexercise his jurisdiction under section 218 to validatea disposition of a significant company asset by a

IN WHOSEIn a recent case, a solvent company made an application for a prospective

validation order. Brónagh Maher discusses the appropriate test to be applied

in this novel situation

interest?company in relation to which there was nosuggestion, in the event that it was wound up, that itwould be unable to meet its liabilities.

Mixed companyThe application under section 218 arose in thecontext of substantive proceedings under section 205of the Companies Act 1963, in which the petitionerwas claiming relief from alleged oppression of hisposition as a minority shareholder in the company.The relief claimed raised the possibility of thecompany being wound up, and there was therefore apetition before the court to wind up the company,despite the fact that there was no suggestion that theassets of the company would be insufficient to meetall of its creditors. By virtue of section 220(2) of theCompanies Act 1963, the winding up of a company bythe court is deemed to have commenced at the timeof the presentation of the petition for the windingup, and therefore any disposition of the property ofa company while a winding up petition is pendingbefore the court is open to the risk that it may bedeclared void pursuant to section 218.

The board of the company had resolved to sellDerg Marina, a significant asset that had beenpurchased by the company in 2003 for €4 million,but could not proceed in practice with the salewithout the prior sanction of the court, as anypurchaser would be open to the risk that, in theevent of a court-ordered winding up, the sale wouldbe void unless validated by the court. Obviously, no

• Dispositions bysolvent companies

• Companies Act1963, section 218

• Recent case ofJoyce v WellingfordConstructionLimited

MAIN POINTS

31www.lawsociety.ie

LAW SOCIETY GAZETTE DECEMBER 2006COMPANY LAW

purchaser would be willing to buy without the courtorder, and it was therefore necessary for Clarke J todecide whether a prior validation of the sale shouldoccur. The power of the court to prospectivelyvalidate a post-commencement disposition was setout in Buckley LJ’s judgment in In Re Gray’s InnConstruction Company Limited, where he stated:“Where a third party proposes to enter into atransaction with a company which is liable to beinvalidated under s227, the third party can declineto do so until the company has obtained a validatingorder, or it might itself seek a validating order, or itcan enter into the transaction in anticipation of thecourt making a retroactive validating order at a later

Cases:• In Re Gray’s Inn Construction Company Limited [1980] 1 All ER 814• Joyce v Wellingford Construction Ltd & Ors, 2005 IEHC 392 (17 November

2005, unreported, High Court)• Re AI Levy (Holdings) Ltd [1963] 2 All ER 556• Re Ashmark Ltd (No 1) [1990] ILRM 330• Re Industrial Services Company (Dublin) Limited (No 2) [2002] 4 IR 394• Re Lynch, Monaghan & O’ Brien Ltd, (9 June 1989, unreported, High Court)• Re McBirney and Co Ltd (2 July 1992, unreported, High Court)• Re Pat Ruth Limited [1981] ILRM 51

Legislation:• Companies Act 1963

Literature:• Thomas B Courtney, The Law of Private Companies, 2nd edition, (Dublin:

Butterworths, 2002)

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As a result of the lessons learned in both the US and the UK, Irish civil andcommercial society is embracing new and innovative forms of dispute reso-lution. Recent legislative change at national (Civil Liability and Courts Act,2004 & Statutory Instrument S.I. No. 2 of 2004 Superior Court Rules regard-ing Commercial Proceedings) and at EU level (pending EU MediationDirective 2007) underpin the emergence of Mediation as an essential toolin the fast and efficient resolution of civil and commercial disputes.Sophisticated clients are increasingly aware of the benefits of mediation;namely, a speedier and more cost efficient method of dispute resolution.

Friarylaw & ADR Group provide the most comprehensive Mediation train-ing, professional accreditation and case management services in thisjurisdiction. Friarylaw administer a structured pupilage programme for ouraccredited mediators and we are committed to assisting in the develop-ment of mediation practice of our panel members.

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

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

33www.lawsociety.ie

LAW SOCIETY GAZETTE DECEMBER 2006COMPANY LAW

date” (section 227 was the then operative equivalentprovision of section 218 under Britain’s CompaniesAct 1948).

Asset registerIn exercising his jurisdiction under section 218, inthe unusual circumstances of a company with assetsexceeding its liabilities, Clarke J commented:“It seems clear that the underlying purpose ofsection 218 is to ensure that the interests of thoseparties who might be affected by a disposition whichtakes place after the commencement of a winding upare not materially altered by such a disposition. Inthe case of a company which will be unable to meetits debts, then the person who will be affected (or atleast potentially affected) by a disposition of thecompany’s property are likely to be the creditors andmost especially, in many cases, the unsecuredcreditors.”

However, where the company seeking the court’svalidation of a disposition is in a position to meet allof its liabilities, “the parties whose interests mightbe affected by a post-commencement disposition arethe members of the company who would, in theevent of a winding up, share in the distribution ofthe net surplus of the company’s assets”. Theauthorities dealing with section 218 therefore wouldhave to be read as applying, in the case of a solventcompany, to the interests of the members as a wholeas opposed to the interests of the creditors.

Circle of trustIn Joyce v Wellingford, the grounding affidavitindicated that the sale of the property was necessarybecause of the pressing nature of various liabilitiesthat the company had. As well as owing substantialsums to the company’s bankers, there were other“significant cumulative liabilities” and, furthermore,there was a winding-up petition by one of thecompany’s main contractors pending before thecourts. Having found that there was “a high degree ofprobability of the company going into liquidationunless something radical is done to solve its cashproblem in the short term”, Clarke J indicated that hewould be prepared to validate a sale that was achievedhaving complied with certain conditions, includingthe appointment of a neutral auctioneer to obtain themost commercially advantageous contract from theperspective of the company. Clarke J’s decision not tomake the validation order as sought (the applicationwas for an order validating a sale for not less than €6 million, as an offer had already been received inthat amount) was in large part influenced by the factthat there appeared to be a complete breakdown oftrust between the shareholders of the company, asevidenced by the section 205 proceedings, and thefact that “in the absence of a transparent process …being put in place, I am likely to remain unsatisfiedthat a sale would necessarily reflect the best interestsof the shareholding taken as a whole”.

In arriving at his conclusion, he stated: “the testby which validation should be ordered by the courtis, in a case such as this case, the interests of theshareholders taken as a whole. In principle,therefore, to achieve that interest, the sale needs tobe on the most commercially advantageous terms(which question is likely to be determined by thesale price and the likely time of closing) but mustalso not be subject to any circumstances that wouldmitigate against the sale achieving its principleobjective, which is staving off a threatenedliquidation.”

Solvent abuseIn light of Clarke J’s judgment in Joyce, theauthorities dealing with section 218, which establishthat a disposition will be validated if such dispositionis found by the court to be beneficial to and in theinterests of the general body of creditors, must alsobe read as applying to the interests of the membersof the company where the applicant for thevalidating order is in fact a solvent company. This isdue to the fact that, in the event of a winding-uporder being made in respect of a solvent company,the net assets of the company after discharging alldebts will fall to be distributed among theshareholders. Therefore, the interests of theshareholders should not be materially altered by thedisposition. In the words of Clarke J, the situation inwhich the company in Joyce found itself was“unusual but by no means unique”, and thereforeClarke J’s judgment is likely to be of assistance infuture applications pursuant to section 218.

Brónagh Maher is a Dublin-based barrister.

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The general proposition that the post-commencement disposition of a major assetof the company may be of benefit to the company and its creditors was set out inIn re Gray’s Inn Construction:

“There may be occasions, however, when it would be beneficial, not only forthe company but also for its unsecured creditors, that the company should beenabled to dispose of some of its property during the period after the petition hasbeen presented but before a winding-up order has been made. An obviousexample is if the company has an opportunity by acting speedily to dispose ofsome piece of property at an exceptionally good price. Many applications forvalidation under the section relate to specific transactions of this kind oranalogous kinds.”

An example of such a case is Re AI Levy (Holdings) Ltd. In that case, adisposition was prospectively validated where, after the presentation of a petitionto wind the company up, a company resolved to sell its leasehold interest in aproperty because the lease was liable to be forfeited if it, as the tenant, waswound up. The sale of the lease at market value was found to be clearly to thebenefit of creditors of the company, as the company was put in funds arising fromthe sale of the lease. If the company had not disposed of its interest, it wouldhave had neither funds nor a leasehold interest available for distribution amongstthe creditors.

SUNNY DISPOSITION

Section 218 of theCompanies Act 1963provides:“In a winding up by thecourt, any dispositionof property, includingthings in action, andany transfer of sharesor alteration in thestatus of the members of thecompany, made afterthe commencement ofthe winding-up, shall,unless the courtotherwise orders, be void.”

IN GOODCOMPANY


LAW SOCIETY GAZETTE DECEMBER 2006 LOOKING BACK

Arather novel meeting was held by theDublin Solicitors’ Bar Association inDecember 1980. A so-called ‘GripeNight’ was organised, where memberscould discuss grievances “at which it was

hoped that the Council would hear from colleaguesabout matters and problems which were creatingdifficulties. Despite the fact that from time to time theAssociation is criticised by solicitors for its apparentfailure to communicate with them and to look aftertheir interests, the attendance at this meeting was inthe main disappointing…

“Most of the criticism was levelled at the Courtsand the failure of judges to issue judgments or,alternatively, as happens in the Lower Courts, to siton time. This latter complaint relates in particular toKilmainham District Court and the method of listingcases in that Court was also the subject of severecriticism. It was felt that a system could be evolvedwhereby certain cases should be listed in the morningand others in the afternoon, thereby avoidingunnecessary attendance of solicitors.

“In relation to the Land Registry and theCompanies Office, it was apparent that manymembers have been finding that files are not availablefor inspection” (Gazette, January/February 1981, p16).

In the same issue, the Gazette discusses the 1981Congress of the Association Internationale des JeunesAvocats (AIJA), which took place in Dublin on 24 to28 August 1981. The association was founded in 1962“as a non-political organisation dedicated tofurthering the interest of young lawyers and of theentire legal profession and to encouraging co-operation among lawyers of all the world”. In an‘Open letter to the lawyers of Ireland’ the president ofthe AIJA, P R Meurs-Gerken from Copenhagen, says:

“The first euphoria of our congress in Dublin’s faircity where the girls are so pretty is over; we are all

The

The ’80s marked the end of the Cold War and a new era of perestroika. From local and

international get-togethers, to the provincial and foreign news, the Gazette presented an

intriguing mix of views in the 1980s under the editorship of Mary Buckley (now Gaynor). Mark

McDermott continues this celebration of 100 volumes of the Gazette

back at work at the bar, at the desk – it’s autumn,rainy, foggy.

“But still, we feel enlightened, strengthened to copewith the dark and cold days of winter by thewonderful memories we have of the important workwe succeeded in doing during the day and the greatfun we had with our Irish hosts during the eveningsand nights.

“At no AIJA Congress in my experience havethanks been better earned or more deserved than theywere at the AIJA Congress in Dublin in August…

“Many of us had heard of the hospitality of theIrish. Your reputation is one thing, but the actualexperience of a warm welcome from hosts who wereso obviously pleased to see us and who, without fussor trouble, were so obviously interested in makingsure that we felt welcome and enjoyed ourselves intheir country, was something we shall never forget”(Gazette, January/February 1982, p11).

Household nameIt’s rather apt that, in this issue when we cover theJustice Media Awards 2006, the Gazette in June 1982was covering the Society’s awards to youngjournalists:

“The Law Society’s Award for the best article on alegal topic submitted by a 2nd Year Student at theSchool of Journalism, Dublin College of Commercehas been awarded to Brenda Power, Ballynooney,Mullinavat, Co Kilkenny, whose article on ‘RapeCases – A Trial Within a Trial’ will appear in thenext issue of the Gazette.” Brenda has since become ahousehold name on RTÉ radio and television, andwrites for a variety of publications.

The same issue featured an advertisement for acompany-based legal adviser in Dublin, offering thegrand salary of IR£13,500 per annum.

In an article on wills in the October 1982 issue,

BIG thaw

• ‘Gripe Night’• Congress euphoria• Lifestyle profile

MAIN POINTS

35www.lawsociety.ie

LAW SOCIETY GAZETTE DECEMBER 2006LOOKING BACK

Donal G Binchy’s rather amusing opening is worthyof repetition here:

“We can hope, with some confidence, that the LawSociety’s ‘Make A Will Week’ will help to overcomethe natural reluctance of many people to make Willsand convince people of the genuine necessity to makeproper testamentary provision for their families. Inturn, solicitors must be ready to meet the challengeby drawing wills that suit the circumstances andrequirements of our time.

“Historically, the earliest known will is apparentlyattributed to Noah. Not merely was he reputed tohave made the first will, but he also had the largestestate ever recorded. He bequeathed the worldbetween his three sons! Anyone who disputed this wasdenounced as a heretic by a fourth century Bishop.Noah did not, however, have to contend with theSuccession Act, Estate Duty or Capital AcquisitionsTaxes, nor with the complexities of agricultural valuesand tax-free thresholds…” (Gazette, October 1982,p181).

In ‘A Profile of Lawyer Lifestyles’ in the April1984 issue, an article by Rosslyn S Smith (reprintedfrom the American Bar Association Journal) posed thefollowing questions:

“Did you ever wonder if you’re earning as much asother lawyers? When you worked on a Saturday, wereyou curious if other lawyers put in that much time?The ABA Journal wondered too, and for the first timeever developed a profile of what it’s like to work as a

lawyer. Some highlights of the survey are: • As a group, ABA lawyers work very hard. Four of

five work more than 40 hours a week, and morethan eight of 10 work at least one Saturday amonth. Almost 30 percent work every Saturday.

• Most lawyers have an office practice. The averagelawyer member works 47 hours a week but spendsless than 1.25 hours a week in court.

• Despite the long hours and career pressures, 89percent said they are happy with their careerchoice…

“With all that has been written about the increasingspecialization of the profession, it should be notedthat 44 percent of those surveyed indicated they werein general practice. Twenty-two percent concentratedin corporate law, 11 percent in tax and 9 percent inreal estate. One in every four checked off more thanone area of concentration of practice” (Gazette, April1984, p81).

And to finish on a funny, the June 1983 issuefeatures an amusing letter, dated 27 May, fromsolicitor Grattan Neville in Clonakilty, Co Cork: “Dear SirOverheard at Dunmanway District Court on the 25th

inst., whilst the Defence Solicitor was cross-examininga witness – “I must put it to you that the van had notsufficient power left to mount the grass virgin”.

“I have heard of a grass widow or widower but agrass virgin?” (Gazette, June 1983, p141). G

Future director generalKen Murphy pictured inthe March 1985 Gazette.At the time, he was theyoungest member of theLaw Society’s Council

And the wall cametumbling down:Berlin, 1989

practice doctor

Got an issue you would like addressed by our panel of practice doctors? Email: [email protected]

David Rowe: “Cash reallyis the lifeblood”

Cash is the lifeblood of any business, butcash management is an area wheremany solicitors’ practices fall down.Many practices operate a crisis-management type system – they ignore

cash management except when a crisis is looming,for example, the payment of a tax bill.

Managing work in progress (unbilled work)There are two stages to good cash management –managing work up to the time it is invoiced, andmanaging work after it is invoiced. The importantissues here are: • Agree the fees in advance with the client; don’t

avoid the issue.• Sending a ‘flyer’ does not work. The client will

always expect to negotiate if you do this.• Look for opportunities to invoice monthly or

quarterly statements.• Send out invoices immediately on closing.

Collecting outlaysControlling outlays is another area where solicitorscan make considerable improvements. Many firmstake the view that their competitors will pay alloutlays for a client, and it is competitively damagingif they do not do so. This has changed significantlyin the last number of years.

Due to the change in the personal injury litigationfollowing the introduction of PIAB, many firms whowere prepared to fund litigation outlays for a clientare no longer prepared to do so. A client expects topay for costs you incur on their behalf, and does notexpect you to fund it in most cases.

Debtors – collecting invoices when they are issuedHaving sent out the invoice to the client, assumingthat you cannot be paid by transferring the costsfrom the client account with the client’s approval,the next stage is to collect the money from theclient. Recommended steps here are: • Transfer monies in the client account quickly

(with client approval).• Have accounts personnel issue monthly

CASH KINGstatements and reminders to clients. All otherprofessional firms produce these.

• Distance the solicitors from the initial collectionprocess – they want the next instruction from theclient.

Paying your suppliersThe main suppliers are your own staff who are paidon a weekly or a monthly basis. Other suppliers areincidental to cash management in a solicitor’soffice, but you should take credit from yoursuppliers and pay them at month-end followingreceipt of their invoice, unless you have agreedalternative terms.

Many partners often wonder why the profits theyhave made do not equal the cash in the bankaccount. The answers are usually simple – theycentre on management of one or a number of theissues above. Cash really is the lifeblood. You willhave one significant challenge removed if you followthe steps recommended above.

David Rowe is managing director of Outsource, businessadvisors to Irish law firms.

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There are a number of golden rules in managing the balance sheet: • Always finance fixed assets such as desks, IT equipment, cars, buildings

etc. These are items that offer value to the business over a number of years.Match this with a loan over a number of years, thereby avoiding an instantcash hit when a new asset is bought.

• Have the right mix of capital/debt. Many firms avoid having any borrowings in their balance sheet. This can be unduly harsh on the partners, as they endup with high amounts of capital tied up unnecessarily in the business. Whilethere is no rule of thumb, banks will happily finance a law firm approximately50/50 with the partners’ own capital.

• Look after tax and pension payments monthly. Many firms experience theannual trauma in gathering together sufficient funds to pay the partners taxand pension liability at this time of year. A more managed alternative is totransfer the expected tax and pension liability to a savings account on aregular monthly basis. The end point is the same, this simply shifts thepressure from a huge once-a-year pressure to a monthly pressure to issue bills and collect cash.

MANAGING THE BALANCE SHEET

is


LAW SOCIETY GAZETTE DECEMBER 2006 PRACTICE MANAGEMENT

37www.lawsociety.ie

LAW SOCIETY GAZETTE DECEMBER 2006BOOK REVIEWS

books

Civil Procedure in the SuperiorCourts (second edition)Hilary Delany and Declan McGrath. Thomson Round Hall (2005), 43 Fitzwilliam Place, Dublin 2. ISBN: 1-85800-406-3.Price: €350 (hardback).

P rimitive man had regard toprocedure. The tribe would

sit in a circle with one manspeaking at a time. In fact, therewas a concept of adherence toproper procedure. Proper or adegree of civilised procedure hasa relationship with due process.It was that great US judge FelixFrankfunter who wrote that the“history of liberty has largelybeen the history of proceduralsafeguards” (McNabb v UnitedStates, 318 US 322, 347 [1943]).

Judge Peter Kelly, a master ofthe intricacies of the law ofpractice and procedure (apartfrom his gifts as a jurist), writesin the foreword to the secondedition of Delany and McGrath’sbook that the authors haveproduced “a work of high qualityand great utility”. Judge Kellygoes so far as to state that thebook is a “vade mecum” for anylegal practitioner – “aninvaluable tool for bench, bar

and solicitors”. It would bedifficult, if fruitless, for me toquibble with Mr Justice PeterKelly.

Seriously, procedural law playsa significant role in the quest forjustice. One must know how togo about the process of seekingjustice: otherwise one may failmiserably.

This book contains 30chapters. There is acomprehensive table of cases,statutes, orders and other relatedinstruments. There are about1,020 pages in the entire book.The table of contents reveals theessence of the book. The titles ofthe chapters include thecommencement of proceedingsin the superior courts, service ofproceedings, appearance,pleadings, joinder of causes ofaction, remittance ofproceedings, third-partyprocedure, discovery,interrogatories (a much

neglected procedure, in myopinion), security for costs, delayand want of prosecution, strikingout proceedings, discontinuance,lodgements and offers,settlement of proceedings,appeals, costs (a matter ofseminal importance for lawyersof all hues), the summarysummons procedure, personalinjury actions, the commercial

court, judicial review and case-stated procedure.

The price of the book mayappear expensive to some, at€350, but why should authorsslave endlessly to produce a tomefor practitioners and otherswithout some prospect ofreward? High Court workrepresents a significant part ofthe remuneration of manylawyers.

Dr Delany and Mr McGrathhave produced an invaluableconstructive work on theintricacies of civil procedure inthe superior courts of Ireland.The book is admirably thorough,eminently readable and the giftsof intelligence and scholarship ofthe authors enhance our ownunderstanding of the seminalimportance of procedural law inour superior courts.

Dr Eamonn G Hall is the chiefsolicitor of Eircom Ltd.

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39www.lawsociety.ie

LAW SOCIETY GAZETTE DECEMBER 2006BOOK REVIEWS

Older People in Modern Ireland:Essays on Law and PolicyEoin O’Dell (ed). First Law (2006), Merchant’s Court, Merchant’s Quay, Dublin 8. ISBN: 1-904480-32-2. Price: €145.

This book is essential readingfor any practitioners who

have elderly clients. The bookgrew out of two conferences.The first was organised by theIrish Women Lawyers’Association in January 2005. Thesecond was organised by theTrinity Law School in April2005. Papers from both of theseconferences and from othercontributors are included in thisexcellent publication.

In all, there are 22 papersrelating to older persons writtenby well-known specialists andlawyers, involving legal andmedical problems, elder abuse,age discrimination, nursing-home care, social policy, recentLaw Reform Commissionproposals, the Constitution andhealth-care costs, and many

other relevant topics.Some of the papers give very

good practical guidance on issuessuch as wards of court, powers ofattorney and other issues relatingto incapacity.

However, I would like tohighlight a number of thepapers. Law Reform Commis-sioner Patricia Rickard Clarkehas an excellent paper, written inher usual erudite fashion, onelder abuse and the greater legalprotection required to preventphysical, sexual, psychologicaland financial abuse and generalneglect of the elderly.

There is also an excellentpaper by Jane Liddy on how theEuropean Convention on HumanRights can be used to help en-force the rights of the elderly toobtain appropriate nursing care.

Ita Mangan, barrister, isextremely critical of the fact thatit is difficult for older people tovindicate whatever rights theyhave against the health servicewithout taking cumbersome,costly and time-consuming courtaction, and she rightly bemoansthe absence of a statutory inde-pendent complaints and appealsmachinery for the health service.Barrister Oran Doyle and ProfGerry Whyte give an excellentanalysis of the reasoning of theSupreme Court in the strikingdown of the Health (Amendment)(No 2) Bill 2004, where it washeld that the attempt by the stateto retain unlawfully exactedcharges for health care was an in-vasion of vested property rights.

Colm O’Cinneide discussesage discrimination and Irish

equality law in the context of EUlaw and discusses the EqualityAuthority report ImplementingEquality for Older People.

Consultant geriatricianDesmond O’Neill and DrMarianne Falconer discuss thecomplex care needs of olderpeople in nursing homes, andEstelle Feldman looks at the roleof the ombudsman in enforcingthe rights of the elderly.

This book is not justcompulsory reading forsolicitors, but also for anyprofessional person involved inthe elderly. Eoin O’Dell is to becongratulated for thispublication.

John Costello is head of the privateclient department at Dublin lawfirm Eugene F Collins.

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LAW SOCIETY GAZETTE DECEMBER 2006 PEOPLE AND PLACES

Last Word on the Calcutta Run!Ireland rugby star Gordon D’Arcy and Today FM’s The Last Word

presenter Matt Cooper presented a cheque for €230,000 to GOAL and the Peter McVerry Trust in the offices of A&L Goodbody in Dublin on23 November. Both charities will receive €115,000 each. The cheque

represents the proceeds from the 2006 Calcutta Run, which has raiseda grand total of €1.53 million for the two charities over the past

eight years. Thanks to all Law Society staff who took part or helped with the 10km run in May

STEP it upTrust and estate planning lecturers pictured with members of the

diploma team, Stuart Gilhooly, chairman of the Education Committee,and Paraic Madigan, chairman of the Society of Trust and Estate

Practitioners, Ireland

Stress bustersAt the recent seminar on liability for occupational stress were (l to r):Barbara Joyce (Law Society), Patrick Groarke (Groarke and Partners,Solicitors, Longford), Dr Abbie Lane (consultant psychiatrist at Dublin

County Stress Clinic), Miss Justice Mary Laffoy (who chaired the seminar), Michael Kennedy (BCM Hanby Wallace) and Ian Moore

(A&L Goodbody)

Looking eastAt the Law Society/International Bridges to Justice (IBJ) ‘Communities of

Conscience’ meeting, in Dublin on 24 October, were: (back, l to r): Philip McNamara (Inspire Nation, sponsor), Barry Donoghue (deputyDPP), Jennifer Smith (IBJ), Ken Murphy (director general of the Law

Society), Yang Jie (IBJ), Colette Carey (Law Society Criminal LawCommittee) and Lin Zhu and Yuxin Wang (interpreters). (Front, l to r):Zhang Xuemei (IBJ), Li Baoyue (IBJ), Michael Irvine (then president of

the Law Society), Wu Ge (IBJ) and Mr Justice Dermot Kinlen

Dublin solicitor Peter Boylehas taken office as

president of the Irish RugbyFootball Union for the 2006/07season. As always when asolicitor takes the helm,unprecedented success follows.Victory at Lansdowne Road oversouthern hemisphere giantsSouth Africa and Australia haslifted the Irish international rugbyteam to the heady heights ofthird-best in the world rugbyrankings. Could this be the yearfor the elusive ‘Grand Slam’?What about the World Cup?

A third-generation solicitor andprincipal of Charles BW Boyleand Son, Dublin, the presidentplayed his rugby as a centre/wing/full back for DublinUniversity and Wanderers FC,and also had spells withMilwaukee RFC and SydneyUniversity. He is a past pupil ofthe High School in Dublin. Peterwas a member of the last TrinityCollege team to win the LeinsterSenior Cup, in 1976, and is theclub’s first delegate to becomepresident of the IRFU since HMRead in 1955-56.

Steeped in a rich rugbytradition, the IRFU president,who is married to Joan and hasthree children, Melanie, Jeremyand Christine, is a son of the

late Cyril Boyle – a travellingreserve for Ireland in the mid1930s. Cyril was also an Irishteam and Lions selector in1959. Peter is a nephew of ex-Irish international wing, VeseyBoyle, who was capped ninetimes between 1936 and 1939and is the last surviving memberof the 1938 Lions team.

Injury cut short Peter’splaying career and led to earlyadministrative involvement withthe Leinster Branch. There, hefollowed in the footsteps of hisfather (1955-56) by beingenrolled as president in 1983-84. He was also honorarytreasurer of the Leinster Branchfor 14 seasons.

He is currently one of theIRFU’s delegates on theInternational Rugby Board,European Rugby Cup and SixNations Committees.

Dublin solicitor is IRFU president

PIC: LEN

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41www.lawsociety.ie

LAW SOCIETY GAZETTE DECEMBER 2006PEOPLE AND PLACES

Prize-winners’ podiumFE1 prize-winners received their awards from the then President of the Law Society, Michael G Irvine, in the

presence of guest speaker Mary Robinson. The Overend Scholarship – Jennifer O’Sullivan; Constitutional Law– Marianne Bogue and Nicola Heskin. Criminal Law – Jennifer O’Sullivan; Contract Law – Iseult Ní Ghallchoir;Law Of Equity (Patrick O’Connor Memorial Prize) – Brendan Murphy, presented by John O’Connor. EU Law –Gina Conheady; Law of Tort – Mary Townsend; Law Of Property – Gina Conheady and John Aherne; and the

King’s Hospital Prize – Joanne Neary

Cream of the cropArthur Cox have been awardedIrish Law Firm of the Year for

the second year running at theannual Chambers’ Global Awards

ceremony in London (l to r):Francis Neate (president of theInternational Bar Association)

with Padraig O’Riordain (managingpartner of Arthur Cox)

Award for excellenceAlma Sheehan receives the Awardfor Excellence (Junior Category)

from Kevin O’Higgins at the AGMof the Dublin Solicitors’ Bar

Association

Commercial confereesConferees of the Diploma and Certificate in Commercial Law, pictured with Judge Peter Kelly, Michael Irvine (immediate past-president of the Law

Society) and Stuart Gilhooly (chairman, Education Committee) on 1 November 2006

Law Reform Essay PrizewinnersAttending the Law Reform Essay Prize-giving ceremony were (l to r): Director General of the Law Society KenMurphy, Maebh Harding (joint 1st place), Liz Campbell (joint 2nd place), President of the High Court Mr Justice

Joseph Finnegan, the then President of the Law Society Michael G Irvine and Yvonne Marie Daly (joint 2nd place)

netWork risk health & safety ltd.

43www.lawsociety.ie

LAW SOCIETY GAZETTE DECEMBER 2006STUDENT PAGE

student spotlight

The Blackhall men’s gaelicteam got their season off to

a strong start in early Octoberwith victory over Cóláiste nahÍde, Finglas. Understandably,it took a while for the team togel in what was the first matchof the year. However, a strongwork ethic from all playersensured that Blackhall won on ascoreline of 1-12 to 1-7.

Blackhall’s opponents in thesecond round were TrinityCollege. A blistering first-halfperformance saw the team lead4-06 to 0-03 at half-time. Withvictory assured, complacencyset in and a shell-shockedTrinity fought back admirablyto salvage some pride. Finalscore: 4-07 to 0-08.

Seeking to secure a hat-trickof victories, a committed effort

from the Blackhall boys wasrequired to overcome thedogged challenge of FroebelTeaching College. Thecombined elements of freezingcold, driving rain and a gale-force wind led to a low-scoringscrappy affair, with the sideslevel at half time 0-04 to 1-01.However, Blackhall’sdetermination and will to winfashioned a hard-fought, butwell-deserved, five-point win:1-08 to 1-03.

Round four of the leaguebrought Blackhall up againstthe Royal College of Surgeonsand, with the chance ofbecoming the first-everBlackhall men’s gaelic team toqualify for the knock-out stages,the match took on addedsignificance. At the end of a

tense first half, Blackhall led by1-05 to 1-03. The game wasultimately decided by a goal fiveminutes from time, withBlackhall winning by six points:2-09 to 1-06, thereby clinchingqualification for the quarter-finals.

The Dun Laoghaire Instituteof Art, Design and Technologyprovided the opposition in thefinal round of the group stages.In what can only be describedas Blackhall’s most completeteam performance to date, weran out comprehensive winnerson a scoreline of 4-19 to 1-00.

It is hoped that the Blackhallmen’s gaelic team continues itswinning streak and that itqualifies for the league final inDecember.

Colm Mullen

It might have been Cancun inthe sun, but for one member

of the Matheson OrmsbyPrentice triathlon team takingpart in the Corporate TeamWorld Championships inMexico, what started out as aswim in the sun ended as acycle and running puddlefest.Paul Gillick’s efforts paid off,however, when he and histeammates, Keira-Eva Mooneyand Aidan Kelly, took gold inthe inaugural InternationalTriathlon Union CorporateTeam World Championships.

The trio, representingMatheson Ormsby Prenticeand Belpark Triathlon Club inDublin, travelled to Mexico totake part in the event on 5November. Each member ofthe team had to complete atriathlon comprising a 500-metre swim, 13-kilometrecycle and a 3.3-kilometre run,handing off to the nextteammate in the relay event.

Hot competitionA total of 18 corporate teamsfrom 11 countries took part,featuring some of the world’stop athletes. Keira-Eva foundherself lining up against theworld’s most decoratedOlympic swimmer, JennyThompson, who boasts 12Olympic medals – eight ofthem gold!

Weather conditions at theMexican event ranged fromsunny to stormy. Paul, theanchor man, had justcompleted his swim in fineweather but had to completehis cycle and run in Monsoon-like conditions. The trainingand hard work paid off,

World triathlon glory for MOPs trio

however, with the trio takingthe laurels in the ‘MixedCategory’ at the end of the

event. All three were presentedwith gold medals and enjoyeda few days of well-earned

recuperation on Cancun’sstunning beaches afterwards.

“We took part in a numberof triathlons during thesummer, putting in somepretty good performances, sowe thought we had a prettygood chance,” Keira-Eva toldthe Gazette. She came 62nd inthe World Agegroup TriathlonChampsionships in Lausannein Switzerland last September.“I probably put in one of mybest performances there,” shesaid.

“We’re really over themoon about our win inCancun and are very proud tohave done our firm proud,”said Keira-Eva. “We lookforward to defending our titlenext year.”

Blackhall men on a winning streak

A trio of loveable MOP-tops


LAW SOCIETY GAZETTE DECEMBER 2006 PARCHMENT CEREMONIES

New

ly-q

ualif

ied

solic

itor

s at

the

pre

sent

atio

n of

the

ir p

arch

men

ts o

n 10 F

ebru

ary

2006

Form

er P

resi

dent

of

Irel

and,

Mar

y R

obin

son,

the

n Pr

esid

ent

of t

he L

aw S

ocie

ty M

icha

el G

Irv

ine,

and

Dire

ctor

Gen

eral

of

the

Law

Soc

iety

Ken

Mur

phy

wer

e gu

ests

of

hono

ur a

t th

e 10 F

ebru

ary

Parc

hmen

t C

erem

ony

for

new

ly-q

ualif

ied

solic

itors

: S

usan

App

elbe

, C

athe

rine

Bar

ry,

Sar

ah B

roph

y, C

athe

rine

Bou

rke,

Sea

mus

Bow

e, R

oisi

n B

urke

, C

onor

Car

rigan

, C

olin

Cla

rke,

Ais

linn

Col

l, C

olet

te C

ulle

ton,

Em

ma

Cum

min

s, T

omas

Dav

y, Y

vonn

e D

onlo

n, P

adra

ig G

lees

on,

Sar

ah H

alpi

n, C

arol

Jer

myn

, Ju

stin

Len

non,

Deb

orah

Leo

nard

, Je

nnife

r M

agee

, Jo

seph

Mag

uire

, Pe

ter

Mal

one,

Ao

ife M

cCan

n, P

adra

ig M

cDer

mot

t, H

elen

McG

rath

, Ia

n M

cKen

na,

Jam

es M

cMah

on,

Der

mot

Mor

ahan

, C

arol

ine

Mur

phy,

Sor

cha

Ní C

huin

neag

ain,

Mae

bh N

í Mha

oile

oin,

Suz

anne

O’K

eeff

e,

Gill

ian

O’M

ahon

y, D

erm

ot O

’Rei

lly,

Eibh

linn

O’S

ulliv

an,

Paul

ine

O’T

oole

, Li

nda

Ram

sbot

tom

, O

rla R

eilly

, R

osem

ary

Sca

llan,

Pau

la S

colla

n, M

arie

-Cla

re S

culli

on,

Bre

ndan

Sha

rkey

, Lu

cind

a S

haw,

Lynd

a S

myt

h, V

eron

a S

myt

h, N

iam

h Tu

ite a

nd C

lare

Van

ce

45www.lawsociety.ie

LAW SOCIETY GAZETTE DECEMBER 2006PARCHMENT CEREMONIES

New

ly-q

ualif

ied

solic

itor

s at

the

pre

sent

atio

n of

the

ir p

arch

men

ts o

n 7 A

pril

2006

Pres

iden

t of

the

Hig

h C

ourt

Mr

Just

ice

Jose

ph F

inne

gan,

the

n Pr

esid

ent

of t

he L

aw S

ocie

ty M

icha

el G

Irv

ine,

and

Dire

ctor

Gen

eral

of

the

Law

Soc

iety

Ken

Mur

phy

wer

e gu

ests

of

hono

ur a

t th

e 7 A

pril

Parc

hmen

t C

erem

ony

for

new

ly-q

ualif

ied

solic

itors

: Ei

lis A

nglim

, M

iche

lle B

eirn

e, J

ohn

Bou

rke,

Jen

nife

r B

urke

, O

rlaith

Byr

ne,

Gle

nda

Car

ry,

Jean

Con

nors

, Ia

n C

rott

y, F

iona

Cul

livan

, K

ate

Cun

ning

ham

, Jo

yce

Cun

ning

ham

, Ja

mes

Dow

ning

, Ph

ilip

Egan

, S

ari E

yres

, C

arol

ine

Fann

ing,

Lor

rain

e Fa

rrel

l, N

iam

h Fa

rrel

ly,

Eile

en F

ingl

eton

, Fi

nnua

laFi

nn,

Sar

ah G

allig

an,

Sha

ron

Gar

dner

, D

onal

Gav

in,

Mae

ve G

eogh

egan

, C

laire

Gill

igan

, An

gela

Gly

nn,

Mar

guer

itte

Gly

nn,

Mur

iel H

anno

n, C

iara

Has

sett

, Pa

tric

k H

ealy,

Sha

ron

Kee

ly,

Kat

hlee

n K

elly,

Con

or L

ineh

an,

Nia

ll M

ac G

iolla

bhui

, S

usan

Grim

es,

Son

ya H

enag

han,

Will

iam

Hen

ry,

Dei

rdre

Mal

one,

Cia

ra M

cDon

nell,

Gre

gory

McL

ucas

, S

iun

McM

ahon

, M

icha

el M

oran

, Fr

eda

Mur

phy,

Sin

ead

Mur

phy,

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n M

urra

y, C

lare

Nau

ghto

n,

Gar

eth

Nob

le,

Kat

hryn

O’D

risco

ll, C

onw

ay O

’Har

a, J

ohn

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eill,

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ther

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inso

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nn S

hiel

s, S

imon

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re,

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herin

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rran

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avid

Wal

sh a

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aul W

hite



New

ly-q

ualif

ied

solic

itor

s at

the

pre

sent

atio

n of

the

ir p

arch

men

ts o

n 9 J

une

2006

Ms

Just

ice

Mar

y Fi

nlay

Geo

gheg

an,

then

Pre

side

nt o

f th

e La

w S

ocie

ty M

icha

el G

Irv

ine,

and

Dire

ctor

Gen

eral

of

the

Law

Soc

iety

Ken

Mur

phy

wer

e gu

ests

of

hono

ur a

t th

e 9 J

une

Parc

hmen

t C

erem

ony

for

new

ly-q

ualif

ied

solic

itors

: Al

varo

Bla

sco,

Eric

Bol

and,

Rob

ert

Bur

ke,

Sar

ah C

assi

dy,

Patr

icia

Cro

sbie

, B

arry

Den

ham

, M

aure

en D

oole

y, F

iona

Dow

nes,

Gav

in D

risco

ll, L

orna

Duf

fy,

Bar

bara

Eiv

ers,

Aisl

ing

Fair,

Hel

en F

ergu

son,

Pet

er F

inan

, Fi

nian

Fin

n, T

hea

Fish

er,

Shi

ona

Fitz

gibb

on,

Gem

ma

Ford

e, L

ouis

e G

alla

gher

, N

iam

h G

arve

y, T

here

se G

unni

ng,

Tim

othy

Hen

ness

y, A

oife

Hen

ry,

Trac

y H

oran

,S

usan

Hud

son,

Kat

herin

e K

eane

, D

onal

Kea

ting,

Lau

ra K

eatin

g, F

lore

nce

Lave

lle,

Cia

ran

Ledw

ith,

Ailb

he L

evin

gsto

ne,

Aoife

McD

onag

h, C

ian

McG

rath

, Pa

raic

McK

eogh

, D

ecla

n M

olon

ey,

Rua

iri M

ulre

an,

Piar

ais

Nea

ry,

Jona

than

O’B

rien,

Miri

am O

’Con

nor,

Brid

O’D

wye

r, N

aom

i O’H

iggi

ns,

Rut

h O

’Nei

l, Li

sa O

’Rei

lly,

Bria

n O

rmon

d, M

aeve

Roc

he,

Thom

as S

imm

ons,

Trio

na S

ugru

e, K

aren

Sut

ton,

S

teph

en S

wab

ey,

Oliv

ia T

hom

pson

, M

ark

Tier

ney,

Dei

rdre

War

d, D

ebor

ah W

eeke

s an

d El

izab

eth

Upt

on

47www.lawsociety.ie


New

ly-q

ualif

ied

solic

itor

s at

the

pre

sent

atio

n of

the

ir p

arch

men

ts o

n 7 J

uly

2006

Mr

Just

ice

John

L M

urra

y, C

hief

Jus

tice,

the

n Pr

esid

ent

of t

he L

aw S

ocie

ty M

icha

el G

Irv

ine,

Ror

y B

rady

SC

, At

torn

ey G

ener

al,

and

Dire

ctor

Gen

eral

of

the

Law

Soc

iety

Ken

Mur

phy,

wer

e gu

ests

of

hono

ur a

t th

e 7 J

uly

Parc

hmen

t C

erem

ony

for

new

ly-q

ualif

ied

solic

itors

: Li

esl A

ssa,

Siu

na B

arte

ls,

Dar

ragh

Bla

ke,

Pete

r B

oyle

, D

enis

e B

uckl

ey,

Sor

cha

Bur

ke,

Cao

imhe

Cla

rkin

, Em

ma

Cof

fey,

M

icha

el C

oone

y, M

ark

Dill

on,

Yvon

ne D

onag

hey,

Pau

l Don

nelly

, Fi

ona

Doy

le M

arga

ret

Fahy

, Al

ex F

egan

, Ad

rian

Flyn

n, P

hilip

Fly

nn,

Bre

ndan

Fra

wle

y, A

ndre

w F

reem

an,

Dol

ores

Gac

quin

, S

ean

Get

hin,

Ju

ne G

lynn

, Jo

yce

Goo

d, D

onog

h H

ardi

man

, El

aine

Hea

ly,

Mic

helle

Hen

ry,

Hel

ena

Hic

key,

Gill

ian

Hig

genb

otha

m,

Emm

a H

olde

n, N

ina

Mar

ie H

ourig

an,

Patr

ick

Hum

e, A

lina

Joki

nen,

Ala

n K

eatin

g,

Mai

rin K

elle

her,

Joea

nne

Ken

ny,

Sio

bhan

Lai

ghle

is,

Mic

hael

Leo

nard

, Pa

tric

ia L

ullin

g, G

emm

a M

cMul

lin,

Sor

cha

Mon

agha

n, A

nna

Mor

an,

Emm

a M

urph

y, D

avid

Nev

in,

Suz

anne

O’H

are,

R

ober

t O

’Kee

ffe,

Cat

herin

e O

’Mea

ra,

Fion

a O

’Nei

ll, P

eter

O’N

eill,

Lau

ra P

elly,

Emily

Rya

n, E

lma

Sha

naha

n, C

onor

Sta

ffor

d, R

icha

rd S

tapl

eton

, S

haro

n Va

n S

inde

ren,

Sin

ead

Sw

an,

Paul

Wal

dron

, D

airin

e W

alsh

and

Hild

a W

rixon



New

ly-q

ualif

ied

solic

itor

s at

the

pre

sent

atio

n of

the

ir p

arch

men

ts o

n 1 S

epte

mbe

r 2006

Ms

Just

ice

Mar

y Fi

nlay

Geo

gheg

an,

then

Pre

side

nt o

f th

e La

w S

ocie

ty M

icha

el G

Irv

ine,

and

Dire

ctor

Gen

eral

of

the

Law

Soc

iety

Ken

Mur

phy

wer

e gu

ests

of

hono

ur a

t th

e 1 S

epte

mbe

r Pa

rchm

ent

Cer

emon

y fo

r ne

wly

-qua

lifie

d so

licito

rs:

Sco

tt B

arry

, Je

anne

Boy

le,

Ste

phen

Bre

nnan

, An

ne M

arie

Byr

ne,

Tara

Ann

Byr

ne,

Hila

ry C

alla

nan,

Ais

linn

Cam

pion

, C

orm

ac C

arty

, N

essa

Cox

, Iren

e D

aly,

M

aure

en D

aly,

Rua

iri D

enni

son,

Jul

ia E

mik

h, C

ian

Farr

ell,

Emer

ia F

lood

, H

azel

Fly

nn,

Gra

inne

Ghe

nt,

Emily

Gle

eson

, N

oirin

Gra

ce,

Cat

herin

e H

ayde

n, S

inea

d H

ayes

, K

arl H

utch

inso

n, E

mm

a Je

an H

inch

y,Lo

uise

Kel

ly,

Lisa

Kill

een,

Cat

hal L

avel

le,

Audr

ey L

eahy

, Eo

in M

adde

n, M

aura

Mad

den,

Nei

l Mag

uire

, C

aitr

iona

McC

arth

y, J

enni

fer

McC

arth

y, M

ary

Ros

e M

cNal

ly,

Cla

re M

orris

sey,

Sar

ah M

orris

sey,

Dea

rbha

il M

ulhe

rn,

Kat

e M

urph

y, B

laith

in O

’Brie

n, L

ara

Mar

ia O

’Brie

n, D

aith

i O’D

onna

bhai

n, E

anna

O’M

alle

y, J

ohn

O’R

egan

, R

uth

O’R

egan

, S

andr

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’Rei

lly,

Aile

en O

’Rio

rdan

, Yv

onne

Qui

nn,

Bria

n S

hort

t, M

icha

el S

myt

h, N

icol

a S

wee

ney,

Mad

elei

ne T

horn

ton,

Oliv

er T

ighe

, An

drew

Tra

ynor

and

Jen

nife

r Tu

ite

49www.lawsociety.ie


New

ly-q

ualif

ied

solic

itor

s at

the

pre

sent

atio

n of

the

ir p

arch

men

ts o

n 6 O

ctob

er 2

006

Pres

iden

t of

the

Hig

h C

ourt

Mr

Just

ice

Jose

ph F

inne

gan,

the

n Pr

esid

ent

of t

he L

aw S

ocie

ty M

icha

el G

Irv

ine,

and

Dire

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Law

Soc

iety

Ken

Mur

phy

wer

e gu

ests

of

hono

ur a

t th

e 6 O

ctob

er P

arch

men

t C

erem

ony

for

new

ly-q

ualif

ied

solic

itors

: Jo

n B

ayle

, N

iam

h B

axte

r, Ea

mon

n B

urke

, El

izab

eth

Cox

, N

icol

a C

urry

, K

athe

rine

Cus

sen,

Pat

rick

Dal

y, M

elan

ie D

odds

, S

hane

Don

nelly

,S

inea

d D

unne

, S

andr

a Eg

an,

Lynn

e En

glis

h, D

enis

e Fa

nnin

g, B

rian

Fole

y, J

ohn

Fulle

r, N

essa

Gar

dine

r, C

arol

ine

Gar

land

, K

aren

Gre

nham

, D

arin

a H

anna

n, E

nda

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ley,

Bar

bara

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dan,

Sin

ead

Kea

vey,

Car

olin

e Ly

nch,

Nic

ola

Lync

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omas

Lyn

ch,

Ger

ard

Moo

ney,

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h N

ic A

oidh

, G

illia

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’Cal

lagh

an,

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cy O

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Car

mel

O’D

onne

ll, C

iara

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orm

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Rut

h O

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Noe

leen

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onal

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Joa

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sh



New

ly-q

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itor

s at

the

pre

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atio

n of

the

ir p

arch

men

ts o

n 26 O

ctob

er 2

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Mr

Just

ice

Mic

hael

Pea

rt,

then

Pre

side

nt o

f th

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w S

ocie

ty M

icha

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Irv

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and

Dire

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Gen

eral

of

the

Law

Soc

iety

Ken

Mur

phy

wer

e gu

ests

of

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ur a

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ctob

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arch

men

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for

new

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itors

: El

eano

r B

anno

n, E

mily

Com

ber,

Patr

ick

Con

nor,

Jayn

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easy

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ura

Dun

ne,

Sin

ead

Dur

can,

She

ana

Farr

ell,

Jess

ica

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us,

Iain

Fer

guso

n, E

layn

e Fi

tzm

auric

e, D

avid

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fney

,Je

ffre

y G

reen

e, P

aul K

errig

an,

Pete

r La

very

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orm

ac M

acD

iarm

ada,

Bria

n M

aher

, D

avid

McC

arro

ll, E

lizab

eth

McS

harr

y, C

arol

ine

Moo

re,

Mic

hael

Mor

oney

, La

ura

Mul

roon

ey,

Just

in M

urph

y, R

onan

Mur

phy,

Aine

Ní F

hlat

hart

a, B

rend

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’Brie

n, D

onog

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met

O’G

rady

, N

eil O

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ffe,

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’Sul

livan

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mot

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uinn

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awn

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Der

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tens

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Ois

in S

uttle

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ma

Wal

sh a

nd C

hris

toph

er W

heel

er

Solicitors’ Mutual DefenceJardine Lloyd Thompson Ireland

Limited

Annual Conference 2007 April 11-15 • Cannes

ADVERTISEMENT FEATURE: ANNUAL CONFERENCE


Message from the president

Dear Colleague,

This year the Annual Conference of the LawSociety will be held in Cannes from 11 to 15 April 2007.

I am sure I do not need to tell you what a stunning location it is. The ConferenceCommittee have spared no effort in puttingtogether an interesting and varied programme.The area has some fantastic amenities and we have been assured of fine weather!

We are very grateful to our sponsors, Bank ofIreland, Jardine Lloyd Thompson Ireland Ltd,Benson & Associates and the Solicitors’ MutualDefence Fund for their continued and very generous support of our conference.

I am very gratified that so many of you havemade advance bookings and I invite those ofyou that have not yet booked to now do so. I hope that you will find it to be a really enjoyable event and I look forward to meeting you there.

Philip M JoycePresident

Option 1 • Charter package

The cost includes return flights, taxes, transfers, four nights bedand breakfast at the spectacular Hotel Martinez, welcome reception, conference seminar and gala banquet.

Full delegate *?1,350Accompanying person ?1,250

Surcharges could apply in respect of changes in air fares orincreases in insurance premiums or VAT/tax rates in respect ofthe hotel.

Charter flights : 11 April 2007 departure from Dublin – morning flight – times tbc. 15 April 2007 departure from Nice – afternoon flight – times tbc.(Exact times will be detailed in your booking confirmation. The charter flight will be allocated strictly in order of bookingsreceived.)

Connecting flights: Delegates are asked to make their own arrangements for connecting flights.

Single room supplement: ?100 per night.* Includes ?100 registration fee

Option 2 • Package less flights

To facilitate delegates from outside Dublin, we are offering apackage without flight option so that delegates can book theirown flights from local airports. Flights will be the responsibilityof the individual to arrange. Please check with local airlines forinformation. Aer Lingus operate direct flights from Cork to Nice(at time of going to print).

Full delegate *?990Accompanying person ?890

The cost includes taxes, four nights bed and breakfast at theHotel Martinez, welcome reception, conference seminar andgala banquet. Surcharges could apply in respect of changes orincreases in insurance premiums or VAT/tax rates in respect ofthe hotel. This price does not include airport transfers, flights and may incur hotel surcharges.

Single room supplement: ?100 per night.* Includes ?100 registration fee

Online booking available at www.la wsociety.ie


Registration fee

Payable by delegates only and not accompanying persons: ?100

Accommodation

All delegates will be accommodated at the Hotel Martinez, whichis conveniently located on Le Croissette in Cannes, enjoying wonderful views. This year we are offering guaranteed sea-viewrooms upon payment of a supplement (limited availability – seebooking form for details).

Social programme

The conference will open on Wednesday evening with a welcome reception for all participants at the Hotel Martinez.

On Thursday, there will be an optional full-day tour of Nice,Villa Ephrussy de Rothschild and Eze village. Delegates can experience a short sightseeing walking tour of Nice, where youcan take in many city attractions such as the Promenades desAnglais, the harbour and also the Vieux-Nice, the most pictur-esque area of the city.

The tour continues to the magnificent Villa Ephrussy deRothschild and Gardens. This is one of the finest listed buildingson the French Riviera, an area known locally as the Cape ofMillionaires. Constructed between 1905 and 1912, the Villa ishome to an extraordinary collection of art. A stroll through thestunning gardens overlooking the Mediterranean Sea is highlyrecommended. Lunch will be provided. From here, delegates willbe taken to Grasse to visit the Fragonard Perfume factory. Knownas the world’s perfume capital in 1926, you can complete yourtour by purchasing perfume, soaps and cosmetics as a souvenir ofyour day.

Friday’s optional tour is a half-day wine tasting at Château deBellet. The castle is a splendid example of Niçoise architectureand the Bellet vineyard, located within the city’s boundaries, produces some of Provence’s best vintage wines. The tour startswith a visit of the vineyard and culminates with wine tasting inthe castle accompanied with typical local bread – a treat for allbudding wine connoisseurs!

Friday evening will include a drinks reception and gala dinner at Hotel Martinez.

On Saturday, there will be a half-day tour of MaeghtFoundation and St Paul de Vence. The Maeght Foundation hous-es an impressive collection of modern art works. Sculptures andmosaics by famous artists Miro, Giacometti, Chagall and Braquecan be seen in the beautiful gardens. The tour continues to themagical hill-top village of St Paul de Vence, where delegates candiscover the narrow paved streets, chapels and the ancient build-ings of this famous Provence village.

Programme

WEDNESDAY, 11 APRIL 2006

Morning Assemble for departure at Dublin Airport (charter package).

Afternoon Arrival at Nice Airport. Transfer to hotel for check-in.

Evening Welcome reception for all participants. Venue: Hotel Martinez Cannes.

THURSDAY, 12 APRIL 2006

Morning and Optional tour: full-day Nice, Villa Ephrussy afternoon De Rothschild and Eze Village.

Evening At leisure.

FRIDAY, 13 APRIL 2006

Morning Conference business session.Venue: Hotel Martinez Cannes.

Afternoon Optional tour: half-day wine tasting at Chateau de Bellet.

Evening Drinks reception and gala dinner. Venue: Hotel Martinez Cannes (Dress: smart informal).

SATURDAY, 14 APRIL 2006

Morning and Optional tour: half-day tour of Maeght afternoon Foundation and St Paul de Vence

Evening At leisure.

SUNDAY, 15 APRIL 2006

Afternoon Departure.

Booking arrangements

The closing date for receipt of bookings is 20 February 2007.Please complete the reservation form and return with payment.Any remaining monies will be collected in advance of the conference. It is the responsibility of the delegate to submit allrequired passport information.

Contact details

If you would like any further information, please contact: Niamh McCrystal or Deborah Hayden (Ovation Group) tel: 01 280 2641, email: [email protected]

Online booking available at www.la wsociety.ie

Solicitors’ Mutual DefenceJardine Lloyd Thompson Ireland

Limited

1. The Conference Secretariat must receive notification ofall cancellations in writing (by email or fax) to Deborah Hayden/Niamh McCrystal, Ovation Group, 1 Clarinda Park North, Dun Laoghaire, Co. Dublin.

2. Cancellations received up to and including 31 December 2006 will be subject to a 10% cancellation fee.

3. Cancellations received from 1 January 2007 to 19 February 2007 will be subject to a 50% cancellation fee.

4. No refunds will be given after 20 February 2007.5. Cancellation should be communicated in writing or by

email. Transfer of registration fee to another delegate will be accepted. Please inform the Conference Secretariat of any changes as soon as possible.

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

7. Travel agent reserves the right to allocate all bookings on flights. It is the responsibility of the delegate to submit correct passport details. Charges will apply for change of details.

The organisers reserve the right to alter any of thearrangements for this conference, including cancellation of the event should unforeseen circumstances require such action. The organisers accept no responsibility forresulting costs and inconvenience to delegates, who areadvised to have their own travel insurance in place. The currency exchange rate to be applied in the case of payments and refunds will be based on the availableexchange rate at the time of the transaction. OvationGroup is not responsible for any changes in exchangerates that may cause any differences or any other additional fees levied by your bank or card processor. By registering for the Law Society of Ireland AnnualConference, delegates give permission for their contactdetails to be used for official purposes and to be includedin the list of participants.


Booking/cancellation terms and conditions

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55www.lawsociety.ie

council reportReport of Law Society Council

meeting held on 6 October 2006

New Council membersThe Council welcomed its newCouncil members, MauraDerivan, Barry McCarthy andPatrick Mullins, together withPatrick Dorgan, who had beenre-elected after a break from theCouncil, and wished them wellfor their term of office.

Taking of office of presidentand vice-presidentsThe outgoing president,Michael Irvine, thanked theCouncil members, the directorgeneral and the staff of the soci-ety for their support during histerm of office, a year that hehad found to be very rich incollegiality, both professionallyand personally. He wished theincoming president, Philip

Joyce, every success in the com-ing year. Mr Joyce was thenformally appointed as presidentof the society. He said that hewas honoured to be the fifthpresident of the Society fromTipperary and to be in suchesteemed company asLawrence J Ryan, JohnCarrigan, Senator John Nashand Don Binchy. He paid trib-ute to the hard work and com-mitment of Michael Irvine dur-ing his year of office. He alsoacknowledged the support andencouragement of his wife,Anne, and children, Colin,Janet and Heather.

The senior vice-president,James MacGuill, and the juniorvice-president, John Costello,then took office and indicated

their support for the Counciland the president for the comingyear.

Approval of motion passed at AGMThe Council approved themotion passed at the AGM onthe previous evening, as follows: “That having regard to therenewed interest of more andmore people in the Irish lan-guage, the Law Society should:1) Provide its members with

annual education courses toenable them to achieve com-petency in legal Irish;

2) Request the government,through its departments andagencies, to provide throughthe medium of Irish all legalservices – to include the per-

sonnel and the documenta-tion – for those clients of ourswishing to transact their busi-ness in that language.”

Death threats against a solicitorThe director general briefed theCouncil in relation to corre-spondence and discussions withthe Garda Commissioner, aris-ing from death threats madeagainst a solicitor. He reportedto the Council on a meeting withthe solicitor concerned and thesecurity measures that had beenput in place as a consequence ofthe threats. The Councilexpressed their revulsion at thethreat to life of the solicitor, aris-ing from his fearless representa-tion of his client.

Implementation Group onLegal CostsThe Council approved a sub-mission to the Miller Imple-mentation Group on LegalCosts, in response to the group’srequest for comments on amodel form bill of costs.

The Council noted that themodel form bill of costsappeared to envisage a pure sys-tem of hourly-charging for solic-itors’ work. It was noted that thisrepresented a departure from theHaran report. Consequently, theSociety had highlighted the sig-nificant limitations of measuringcosts by reference to recordedtime and hourly charge-outrates. The submission suggestedthat, should any costing systembe limited to hourly rates, itshould provide for an uplift onsuch hourly charges to take intoaccount factors other than time.

In relation to the proposedguidelines on legal costs, the

Society’s submission urged theimplementation group to recognise that such prescribedguidelines were not capable ofimplementation without contra-dicting the central recommenda-tion of the Haran Group rele-vant to access to justice – namelythat successful parties should notsuffer a penalty in vindicatingtheir rights and thus should beentitled to recover their costsreasonably incurred in theprocess.

ratemysolicitor.comThe president reported that thecourt case brought by a barristeragainst ratemysolicitor.com hadbeen before the court on theprevious day, as a consequenceof which Mr Justice Hanna hadmade an order requiring theadministrators of the website,Digiweb, to reveal the identitiesof those behind the site. Thematter had been put back to the

following Thursday.The director general said that

the Law Society had been whol-ly supportive of the proceedings.The Council noted the contentsof the transcript of his interviewwith Pat Kenny and his letter toThe Irish Times, in which he hademphasised that no reasonableperson should attach any credi-bility to the website.

Appointments to other bodiesThe Council approved theappointment of Paul Keane asthe Society’s representative onthe Published Accounts AwardsCommittee and the appoint-ment of Patrick O’Connor andAndrew Cody to the Society ofActuaries Disciplinary Panel.

Active CitizenshipThe Council discussed theActive Citizenship initiative thathad been launched by AnTaoiseach with a view to increas-

ing the involvement of all sectorsof the community in communityinitiatives. It was noted that alegal profession sub-group hadbeen established and three dif-ferent work streams had beenidentified, comprising (a) a lia-bility risk initiative, (b) a pro bonoinitiative, and (c) an individualparticipation initiative, with spe-cific working groups focusing oneach strand.

Tributes and thanksThe president paid tribute toPatrick O’Connor, past presi-dent, who was retiring from theCouncil after 28 years of service.He also paid tribute to AnneColley, Orla Coyne, SineadBehan and Jerome O’Sullivan,who were not seeking re-elec-tion to the Council. On behalf ofthe Council, he thanked each ofthem for their contribution tothe work of the Council and itscommittees over many years.

Report of Law Society Council meeting held on 3 November 2006

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committee report

Liens under section 73 of Reg-istration Of Deeds And TitleAct 2006, agenda item 56/06The Conveyancing Committeewould like to bring to the noticeof the profession the fact thatsection 73 of the Registration ofDeeds and Title Act 2006 willcome into operation on 1January 2007. Thereafter, undersection 73(3)(b), any personholding a lien on registered landor a registered charge throughdeposit or possession of landcertificates or certificates ofcharge may apply to the newProperty Registration Authority

for registration of the lien as aburden on the folio.

The Land Registry has indi-cated that, in assessing applica-tions for registration of suchliens as burdens, they will dis-tinguish between situationswhere there is a lien over theproperty and situations wherethere is merely a lien over thetitle deeds. It has been indicatedthat, for example, where anequitable deposit of title deedswas completed by a client with abank or other lending institu-tion as security for a loan, theLand Registry will accept thatthis creates a lien over the land.However, for example, a solici-

tor’s common-law lien over aclient’s title deeds in respect ofunpaid fees will be treated bythe Land Registry as merely alien over the documents them-selves (for example, the landcertificate) and not as a lien onthe property. It has been indi-cated that it is the intention ofthe Land Registry that the lattertype of lien would not be capa-ble of being registered undersection 73 of the Registration ofDeeds and Title Act 2006.

Under section 73 of theabove act, the land certificate orcertificate of charge will cease tohave any legal status or effectafter three years from 1 January

2007 and the property can bedealt with without the need toproduce such certificates to theLand Registry.

Practitioners should there-fore note that, in respect of anycases where they are holdingliens over land certificates orcertificates of charge for unpaidfees, they should now consideridentifying such liens with aview to having a legal chargeexecuted by the client, thus cre-ating a legal charge capable ofregistration to replace the lien.In the alternative, solicitors maywish to identify such liens with aview to taking alternative stepsto secure any sums due. G

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practice notes

I t is misconduct and a criminaloffence for a solicitor (other

than a solicitor in the full-timeservice of the state) to practisewithout a practising certificate.Any solicitor found to be prac-tising without a practising cer-tificate is liable to be referredto the Solicitors DisciplinaryTribunal.

When you must applyA practising certificate must beapplied for on or before 1February in each year in order tobe dated 1 January of that yearand thereby operate as a qualifi-cation to practise from the com-mencement of the year. It is alegal requirement for a practis-ing solicitor to deliver or causeto be delivered to the Registrarof Solicitors at the Society’spremises at Blackhall Place,Dublin 7, on or before 1February 2007, an application inthe prescribed form, duly com-pleted and signed by the appli-cant solicitor personally. Theonus is on each solicitor toensure that his or her applica-tion form is delivered byThursday 1 February 2007, withthe appropriate fee.

Section D of the applicationformEach year, a considerable num-ber of application forms arereturned to solicitors who omitto complete section D, whichrelates to investment businessservices or investment advice. Itis necessary for either part I orpart II of this section to be com-pleted in order for the Society toprocess your application.

What happens if you apply lateAny applications for practisingcertificates that are receivedafter 1 February 2007 will resultin the practising cer tificatesbeing dated the date of actualreceipt by the Registrar ofSolicitors, rather than 1 January2007. There is no legal power toallow any period of grace underany circumstances whatsoever.

Please note that, again during2006, some solicitors went tothe trouble and expense of mak-ing an application to the HighCourt for their practising certifi-cate to be backdated to 1January because their practisingcer tificate application wasreceived after 1 February.

The Regulation of PracticeCommittee is the committee ofthe Society that has responsibili-ty for supervising compliancewith practising certificate require-ments. A special meeting of thiscommittee will be held on 8February 2007 to consider anylate or unresolved applicationsfor practising certificates. At thismeeting, any practising solicitorswho have not applied by then fora practising certificate will beconsidered for referral forthwithto the Solicitors DisciplinaryTribunal and will be informed thatthe Society reserves the right totake proceedings for an orderunder section 18 of the Solicitors(Amendment) Act 2002 to prohib-it them from practising illegally.

What you need to do about pro-fessional indemnity insuranceIf confirmation of mandatory pro-fessional indemnity insurancecover is not received, the

Registrar of Solicitors is preclud-ed by law from issuing a practis-ing certificate. All solicitors whoare required to have profession-al indemnity insurance cover areasked to ensure that either theyor their insurer or broker furnish-es the Society with confirmationof cover as soon as cover isrenewed.

If mandatory professionalindemnity insurance is not inplace on 1 January 2007 andcover commences from a dateafter 1 January 2007, the prac-tising certificate will issue witheffect from the date of the com-mencement of cover. It is notpossible in such circumstances,even by application to the HighCourt, to have a practising cer-tificate made effective from 1January.

Compliance partnerSection B, part I of the applica-tion form includes a require-ment for partners to state thename of their firm’s compliancepar tner. The Solicitors’Accounts (Amendment) Regula-tions 2005 require a solicitorwho is a partner in a solicitors’practice, on making applicationfor a practising certificate, tofurnish the name of the partnerin the firm who has been nominated as the compliancepartner.

If you are an employed solicitorSolicitors who are employedshould note that it is the statu-tory obligation of every solicitorwho requires a practising certifi-cate to ensure that he or she has a practising certificate

in force. Employed solicitorscannot absolve themselvesfrom this responsibility by rely-ing on their employers to pro-cure their practising cer tifi-cates. However, it is theSociety’s recommendation thatall employers should pay for thepractising certificate of solici-tors employed by them.

Some of your details arealready on the application formThe practising certificate appli-cation form will be issued withcertain information relating toeach solicitor’s practice alreadycompleted.

What can you access on thewebsite (www.lawsociety.ie)The application form for a prac-tising certificate will be availableon the Society’s website. Youcan print out a blank form or,alternatively, complete the formon-screen and print out the formfor signing and returning to theSociety. The form can beaccessed in the members’ areaof the website using the solici-tor’s surname and referencenumber. Alternatively, you mayrequest a form to be emailed toyou by phoning the Society at 01672 4800.

If you are ceasing practiceIf you are intending to ceasepractice in the coming year,please notify the Society accord-ingly in writing on or before 1 February 2007.

John Elliot, Registrar of Solicitors

and Director of Regulation

PRACTISING CERTIFICATES 2007: NOTICE TO ALL PRACTISING SOLICITORS

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Apractitioner has brought itto the attention of the com-

mittee that, on recently closingthe purchase of a new dwellingregistered with the PremierGuarantee scheme, the builderpurported to close the sale ofthe property before the insur-ance certificate (formerly calledthe final certificate) under thePremier Guarantee scheme hadbeen issued. An undertakingwas offered by the builder to theeffect that the final inspectionwould be carried out and thatthe final certificate would beissued in due course.

It is the view of the Convey-ancing Committee that theabove does not represent cor-rect conveyancing practice.Under the rules of the Premier

Guarantee scheme, it is thecase that the structural insur-ance protection under PremierGuarantee commences whenthe surveyor carries out a finalinspection of the insured prop-erty and issues a certificate ofapproval to Premier Guarantee.The insurer then issues theinsurance cer tificate to thedeveloper, which is the evi-dence that the structural coveris in place. It is therefore rec-ommended that solicitorsshould neither give nor acceptundertakings for production ofthe insurance certificate underthe Premier Guaranteescheme, as the issue of sameis not within the control or pro-curement of either solicitor.

Conveyancing Committee

Since Tax Briefing 61, thetax treatment of the single

farm payment entitlementshas been changed by theFinance Act 2006.

Section 12 (amending sec-tion 664 TCA 1997) increasesthe tax exemption for incomefor medium-term land leasesand extends the relief toinclude income from the leas-ing of single farm paymententitlements together withland with ef fect from 1January 2006. The limits are€15,000 where the qualifyinglease or qualifying leases is orare for a definite period ofseven years or more. In allother cases, the limit is€12,000.

Section 70 (amending sections 598 and 599 TCA1997) allows retirement relief from CGT to apply inrespect of single farm payment entitlements wherethey are disposed of at thesame time and to the sameperson as land, to the extentthat the land would support a claim to payment in respectof those single farm payment

entitlements.Section 109 exempts con-

sideration for single farm pay-ment entitlements from stampduty. If the total considerationcomprises consideration forland as well as for the single farm payment entitle-ment, the consideration is to be apportioned as is justand reasonable.

Section 118 (amendingsection 89 CATCA 2003)extends the definition of ‘agri-cultural property’ for CAT pur-poses to include single farmpayment entitlements.

Practitioners should alsobe careful of the VAT implica-tions on transfers of singlefarm payment entitlements. Itis anticipated, at this stage,that the lease of the singlepayment entitlement may betreated in the same manneras a lease of a milk quota.However, this is not certain,and practitioners must checkfor their relevant clients theproper treatment of such leas-es with the clients’ inspectorof taxes.


Practitioners are reminded that all Revenue practice directionson stamp duty, including first-time buyers’ relief, Finance Act

certificates required in deeds, and so on, are readily available forinspection on Revenue’s website, www.revenue.ie.


PREMIER GUARANTEE SCHEME –INSURANCE (FINAL) CERTIFICATE

SINGLE FARM PAYMENT

STAMP DUTY – FIRST-TIME BUYERS:REVENUE PRACTICE DIRECTIONS

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In recent months, theConveyancing Committee has

received an increasing numberof queries from solicitors actingfor purchasers who are beingoffered contracts for the sale ofthe sites, which are not basedon the ideal situation where thebuilder is the owner of the landand in a position to execute anassurance of the sites to thepurchasers of the houses. Anexample was:Title furnished was a con-veyance of unregistered land toAB, a third party. One specialcondition was: “The vendorswarrant that they have suffi-cient interest under a licenceand option agreement with ABto enter into this contract forsale. The purchaser shallaccept same and not call forthe vendor to be registered asowner of the site or for AB tojoin in this agreement. The pur-chaser shall not call for or befurnished with a copy of thelicence and option agreement.”

While these other arrange-

ments vary in detail, their basisis that the builder has an enti-tlement to call upon thelandowner to execute an assur-ance of the site to the purchas-er, as a nominee of the builder,at the builder’s request.Difficulties may arise if thebuilder is seeking stage pay-ments and the arrangementwith the landowner only entitlesthe builder to call for an assur-ance of the sites when thehouses have been completed.While the Law Society is totallyopposed to stage paymentsand has lobbied for legislationto outlaw it, the practice stillsurvives outside the Dublinarea.

Historically, the landownerentered into licences with thebuilders, entitling them to go inon the owner’s land and buildhouses. The builders enteredinto contracts with the pur-chasers to build houses on theland. When the houses weresatisfactorily completed, thebuilders were entitled to call on

the owner to execute assur-ances of the land on which thehouses had been built to thepurchasers. In some of thecases that have been broughtto the notice of the committee,the builder is declining to fur-nish any evidence of thearrangements that the builderhas with the landowner. In theabsence of such evidence, arequirement for stage paymentsplaces the purchaser’s solicitorin considerable difficulties.

While the ConveyancingCommittee is unhappy withsome of these arrangements, itis satisfied that, in certain cir-cumstances, they are justabout acceptable. As long asdeposits are of such a levelthat they are protected by theHomebond or Premierschemes, or are held by thebuilder’s solicitors on trust oras stakeholder, and as long aspurchaser’s solicitors are enti-tled to obtain assurances of thesite as soon as the first of anystage payments are made, then

the purchasers do have a mini-mum level of protection.

Members have expressedconcern about their position inrelation to the provision ofundertakings and certificatesof title to lending institutions.This should not present a diffi-culty as long as the purchaser’ssolicitor gets a transfer of thetitle on payment of the firststage payment, and the title isotherwise in order. A solicitorshould not, of course, pay anystage payment without gettingthe transfer of title. Membersare reminded of the need toensure that any necessary floorarea compliance cer tificatesare available before acceptingan assurance of the property.

As far as the closing of thetransaction is concerned, aslong as the purchaser’s solici-tor is presented with a validassurance from the landowner,that will be sufficient to groundthe solicitor’s undertaking andcertificate of title.


It has been brought to the atten-tion of the Conveyancing

Committee that certain lendinginstitutions that may be sub-sidiary companies of companiesbased outside the jurisdiction areissuing loan cheques to borrow-ers drawn on their businessaccounts within the jurisdiction.Practitioners have inquired as towhether there is any agreementbetween such lending institu-tions and the Law Society thatloan cheques may be issued bysuch lending institutions, ratherthan issuing a borrower’s loanfunds by means of a bank draft.The committee confirms thatthere are no agreements in placebetween the Law Society and anylending institution as to how loanfunds are issued. Such mattersare business matters for the

lending institutions concernedand the Law Society does nothave any remit in specifying howlending institutions should issueloan funds.

Practitioners will be awarethat, over several decades, it hasbecome accepted conveyancingpractice for a purchaser to fur-nish (as part of the balancemonies due to complete) theloan cheque issued by the pur-chaser’s lending institution, suchloan cheque to be endorsed bythe purchaser in favour of thevendor’s solicitor. In somecases, the purchaser’s loancheque is lodged by the purchas-er’s own solicitor, who thendraws a bank draft against thelodged funds when they havebeen cleared.

In the former case, a pur-

chaser’s solicitor should ensurethat any loan cheque to be ten-dered and/or endorsed by thepurchaser at closing will beacceptable to the solicitor actingfor the vendor.

A question may arise as towhether or not a vendor’s solici-tor’s bank (or a purchaser’s solic-itor’s bank, if the purchaser’sloan cheque is lodged to the pur-chaser’s solicitor’s account priorto completion) will treat such aloan cheque as uncleared funds,and these are banking mattersthat the relevant solicitor shouldclarify with their own banks.

It is the view of the committeethat it does not have any functionin distinguishing between lendinginstitutions that are based in thejurisdiction from lending institu-tions that are based outside the

jurisdiction or who have their par-ent company trading or basedoutside the jurisdiction.

Practitioners should bear inmind that, while some lendinginstitutions may be ‘prescribedcredit institutions’ for the purpos-es of the Consumer Credit Act1995, this does not necessarilymean that such lending institu-tions are regulated by theFinancial Regulator. Being a ‘pre-scribed credit institution’ maysimply mean that the lendinginstitution concerned is obligedto notify the Financial Regulatorof certain matters, such as theircustomer charges, and that theircredit agreements must complywith provisions laid out in theConsumer Credit Act 1995 orother legislation.


LOAN CHEQUES

TITLE CONTRACTED FOR NEW HOUSES

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18 October – 17 November 2006

legislation update

Details of all bills, acts andstatutory instruments since1997 are on the library cata-logue – www.lawsociety.ie(members’ and students’ area)– with updated informationon the current stage a bill hasreached and the commence-ment date(s) of each act.

ACTS PASSEDInternational Criminal CourtAct 2006Number: 30/2006Contents note: Provides forthe punishment by courts in thestate and by courts-martial ofICC offences – genocide, crimesagainst humanity, war crimesand other offences within thejurisdiction of the InternationalCriminal Court, which wasestablished under the RomeStatute of the InternationalCriminal Court, done at Rome,17/7/1998; enables effect to begiven to requests by that courtfor assistance in the investiga-tion or prosecution of thoseoffences, including requests toarrest and surrender persons, tofreeze assets and to enforce anyfines or forfeitures imposed byit; makes provision in relation toany sittings of the court thatmay be held in the state; andprovides for related matters,Date enacted: 31/10/2006Commencement date: 31/10/2006

Sea Pollution (MiscellaneousProvisions) Act 2006Number: 29/2006Contents note: Gives effect toa number of instruments thatwere agreed at the InternationalMaritime Organisation relatingto the protection of the marineenvironment: (1) the Inter-national Convention on CivilLiability for Bunker Oil Pollution

Damage 2001 (BunkersConvention); (2) Protocol onPreparedness, Response and Co-operation to Pollution Incidents byHazardous and Noxious Substances2000; (3) the InternationalConvention on the Control ofHarmful Anti-Fouling Systems2001; and (4) annex VI as addedto the International Conventionon the Prevention of Pollution fromShips (MARPOL) by the 1997protocol to the convention. Alsomakes provision for mattersrelating to regulation (EC)44/2001 on jurisdiction and therecognition and enforcement ofjudgments in civil and commer-cial matters insofar as it relatesto the Bunkers Convention.Amends the Sea Pollution Acts1991 to 1999, amends theHarbours Act 1996, inserts a newsection 28A, ‘Power of Ministerto make regulations to giveeffect to acts of the EuropeanCommunities’, in the SeaPollution Act 1991, and providesfor related matters.Date enacted: 31/10/2006Commencement date:Commencement order(s) to bemade (per s1(2) of the act)

SELECTED STATUTORYINSTRUMENTSCriminal Justice Act 2006(Commencement) (No 2)Order 2006Number: SI 529/2006Contents note: Appoints16/10/2006 as the commence-ment date for the followingprovisions of the act – all relat-ing to amendments to theChildren Act 2001: (a) sections120, 121(a), 128, 129 and 130;(b) section 158 and schedule 4,insofar as they relate to theamendment of the provision ofthe Children Act 2001 specifiedat reference number 5 of thatschedule.

Criminal Justice (Illicit Traffic by Sea) Act 2003(Commencement) Order 2006Number: SI 539/2006Contents note: Appoints 1/11/2006 as the commencementdate for all sections of the act.

Finance Act 2006(Commencement of Sections93(1), 97(1)(b) and 99(1)(a))Order 2006 Number: SI 549/2006

Contents note: Appoints 1/11/2006 as the commencementdate for the above sections,which amend the Value AddedTax Act 1972.

Finance Act 2006(Commencement of Section122(1)) Order 2006Number: SI 520/2006Contents note: Appoints 5/10/2006 as the commencementdate for section 122(1) of the act(amendment of section 1003A,Taxes Consolidation Act 1997, inrelation to payment of tax bymeans of donation of heritageproperty to an Irish heritagetrust).

Mental Health Act 2001(Approved Centres)Regulations 2006Number: SI 551/2006Contents note: Prescribe theminimum standards required inapproved centres, that is, hospi-tals or other in-patient facilitiesfor the care and treatment ofpersons suffering from mentalillness or mental disorder thatare registered with the MentalHealth Commission, and theproper conduct of such centres.Commencement date: 1/11/2006

Mental Health Act 2001(Authorised Officer)Regulations 2006Number: SI 550/2006Contents note: Prescribe theofficers of the Health ServiceExecutive who may apply tohave a person (other than achild) involuntarily admitted forcare and treatment in a psychi-atric hospital or unit under sec-tion 9 of the Mental Health Act2001.Commencement date: 1/11/2006

Circuit Court Rules (NationalMinimum Wage Act) 2006Number: SI 531/2006Contents note: Insert a new‘Rule 10 – National MinimumWage Act 2000’ in order 57 ofthe Circuit Court Rules 2001 (SI510/2001) to prescribe proce-dures for applications broughtunder the National MinimumWage Act 2000.Commencement date: 14/11/2006

Circuit Court Rules (Protectionof Employees (Fixed-Term

Work)) 2006Number: SI 532/2006Contents note: Insert a new‘Rule 9 – Protection of Employ-ees (Fixed-Term Work) Act 2003’in order 57 of the Circuit CourtRules 2001 (SI 510/2001) toprescribe procedures for appli-cations to the Circuit Courtunder section 16 of theProtection of Employees (Fixed-Term Work) Act 2003 in relationto enforcement of determina-tions of the Labour Court.Commencement date: 14/11/2006

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Planning and Development(Strategic Infrastructure) Act2006 (Commencement)Order 2006Number: SI 525/2006Contents note: Appoints17/10/2006 as the commence-ment date for sections 1, 2, 6(a),7 to 10 inclusive, 11, 13, 21, 24,26, 28, 31, 43 to 46 inclusive,and 48 of the act. Apart fromsections 1 and 2, these sectionsall amend the Planning andDevelopment Act 2000.

Planning and Development(Strategic Infrastructure) Act2006 (Commencement) (No2) Order 2006Number: SI 553/2006Contents note: Appoints 5/11/2006 as the commencementdate for sections 14, 15 and 16of the act. These sections relateto the appointment of the mem-

bers of An Bord Pleanála andamend sections 104, 106 and108 of the Planning andDevelopment Act 2000.

Road Traffic (Licensing ofDrivers) Regulations 2006Number: SI 537/2006

Contents note: Revoke andrestate, with amendments, theRoad Traffic (Licensing of Drivers)Regulations 1999 (SI 352/1999),as amended.Leg-implemented: Dir 91/439 as amended by dir 94/72,dir 96/47, dir 97/26 and dir2000/56Commencement date: 21/10/2006

Value-Added Tax Regulations 2006Number: SI 548/2006Contents note: Revoke andrestate or update as necessary allthe VAT regulations madeunder the Value Added Tax Act1972.Commencement order: 1/11/2006

Prepared by the Law Society Library

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District Court (Probation ofOffenders) Rules 2006Number: SI 544/2006Contents note: Insert new rules6, 7 and 8 in order 28 of theDistrict Court Rules 1997 (SI93/1997) to provide proceduresand forms for variation and dis-charge of probation bonds.Commencement date: 20/11/2006

District Court (Public Order)Rules 2006

Number: SI 545/2006Contents note: Insert a newrule 13 in order 23, prescribingthe form and procedures for theissue of the court order undersection 3 of the Criminal Justice(Public Order) Act 2003, andinsert a new ‘Order 96B –Closure Orders under theCriminal Justice (Public Order)Act 2003’ in the District CourtRules 1997 (SI 93/1997).Commencement date: 20/11/2006

Land Registration Rules 2006Number: SI 558/2006Contents note: Amend theLand Registration Rules 1972-2005.Commencement date: 4/11/2006

IN AID OF THE

SOLICITORS’ BENEVOLENT ASSOCIATIONThis is an opportunity to support the work of the Solicitors’ Benevolent

Association, whose needs are particularly acute at Christmas time

GREETING PRINTEDINSIDE EACH CARD:

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I enclose cheque for € payable to Santry Printing Ltd.

CHRISTMAS CARDS

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Solicitors Disciplinary TribunalThis report of the outcome of a Solicitors Disciplinary Tribunal inquiry is published by the Law Society ofIreland as provided for in section 23 (as amended by section 17 of the Solicitors (Amendment) Act2002) of the Solicitors (Amendment) Act 1994

THE HIGH COURTRECORD NO: 2006 NO 44SAFriday 27 October 2006Before the PresidentIn the matter of Rosalyn Kelly, a solicitor.In the matter of the Solicitors Acts 1954-2002.

Law Society of Ireland (applicant)Rosalyn Kelly(respondent)On 27 October 2006, the President of theHigh Court made an order, inter alia, that

no bank shall, without leave of the court,make any payment out of an account in thename of the respondent or her firm.

The president further ordered that thepractising certificate of the respondentsolicitor be suspended.

In the matter of SeanMcGlynn, a solicitor, ofChurch Street House,Letterkenny, Co Donegal,and in the matter of anapplication by the LawSociety of Ireland to theSolicitors Disciplinary Trib-unal and in the matter of theSolicitors Acts 1954-2002[5520/DT78 /05] Law Society of Ireland(applicant)

Sean McGlynn(respondent solicitor)

On 28 September 2006, theSolicitors Disciplinary Tribunalfound the respondent solicitorguilty of misconduct in his prac-tice as a solicitor in that he: a) Failed to ensure there was

furnished to the Society areporting accountant’s reportfor the year ended 31 August2004 within six months of his

accounting date, as requiredby regulation 21(1) of theSolicitors’ Accounts Regulations2001;

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

Regulations for the protectionof clients and the public.

The tribunal ordered that therespondent solicitor:i) Do stand censured,ii) Pay a sum of €5,500 to the

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

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

A NEW ADDITION to the Law Society of

Ireland series, this manual has been writ-

ten to give trainee solicitors and practition-

ers a clear and thorough understanding of

current practice and procedure in the area

of wills, trusts, probate, and the administra-

tion of estates. It outlines the basic ele-

ments of a will and familiarises trainees

with the common law and statutory back-

ground, so that they are able to draft docu-

mentation exactly in accordance with their

clients’ informed instructions and statutory

requirements.

The manual deals fully with how to

extract an appropriate grant of representa-

tion; grant of probate where the deceased

has left a will and an executor who is will-

ing to act; grant of administration intestate,

where the deceased has left no will; and

grant of administration with will annexed,

where the deceased has left a will but there

is no executor able or willing to act. The

text goes on to outline those less frequent

occasions where a further type of grant is

necessary, whether a second or subse-

quent grant, or a grant limited as to pur-

pose or duration.

This practical and user-friendly book

also covers in full how to advise the per-

sonal representative of their responsibilities

and duties to beneficiaries, family mem-

bers, creditors, and the State in terms of

any taxation liability either outstanding or

arising.

Wills, Probate & Estates provides suc-

cinct and practical advice, tackling ques-

tions of practice and procedure that are of

central importance, not only to students on

the Society’s professional practice course,

but also to practitioners who deal with any

area of wills, trusts or probate.

WILLS, PROBATE & ESTATES

Volume editor and authors: Padraic Courtney, (solicitor, Law Society of Ireland) is both the editor and an author. Other authors: Nuala Casey

(solicitor, Daly, Lynch, Crowe & Morris), Anne McKenna (solicitor, FJ Irvine & Co), Annette O'Connell (BL, probate officer), and Anne Stephenson

(solicitor, Stephenson & Co). All the authors tutor and lecture on the Law Society, PPC I and PPC II in wills, trusts, probate and administration, and to

the profession in CPD, STEP, and the various diplomas run by the Law Society of Ireland.

The Law Society is now selling Wills, Probate & Estates, published by the Law Society of Ireland/Oxford University Press. Price: €70. Contact Julianne Ward: email: [email protected] or phone: 01 672 4942 if you wish to order a copy.

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

firstlaw update

DetentionBarring order – damages – falseimprisonment – whether theplaintiff was entitled to damagesfor breach of constitutional rightsand false imprisonment.The plaintiff’s wife sought andobtained an interim barringorder against the plaintiff inNovember 1998. As a result ofa breach of that order, theplaintiff spent two days ingarda custody. Subsequently, in2002, the Supreme Courtdetermined that the DistrictCourt order making the interim barring order wasunconstitutional, that is to say,the legislation enabling themaking of such an order washeld to be unconstitutional.Consequently, the plaintiffsought damages for breach ofhis constitutional rights and forfalse imprisonment arisingfrom the making of the interimbarring order.

Abbott J awarded the plain-tiff damages, holding that theplaintiff was entitled to anaward in the amount of€214,000 compensating himfor loss of rent; loss of conven-ience of housing; false impris-onment; loss of amenitythrough work activities;breach of his constitutionalright to the enjoyment of pri-vacy; marital privacy, includ-ing access to his children andhis house; loss of his goodname; and psychological andemotional suffering resultingfrom the making of the uncon-stitutional barring order andhis arrest and detention fol-lowing a breach of that order.K(D) v Judge Timothy Crow-ley, High Court, Mr JusticeAbbott, 29/7/2005 [FL12854]

DelayFair procedures – impending pros-ecution for murder – right toexpeditious trial –whether appli-cant must prove prejudice causedby delay – whether delay excessive– whether applicant’s constitution-al rights infringed – adverse pre-trial publicity – whether real riskof unfair trial – whether such riskcan be avoided by rulings anddirections of trial judge – whetherfurther prosecution of offencesshould be restrained.The applicant was chargedwith murder in 2003, morethan two years after the allegedoffence. That charge wasstruck out for failure to pro-duce a book of evidence withinthe time limited for doing so.The applicant was re-chargedalmost two years later. In theinterim, a newspaper articlehad been published identifyingthe applicant as the leader of agang involved in the allegedmurder. He sought the prohi-bition of the continuance of theprosecution on the grounds,among other things, that thedelay in the institution andprosecution of the proceedingshad been excessive and violatedhis right to trial with reason-able expedition, and that thedelay prejudiced his chances ofobtaining a fair trial in that ithindered the preparation of hisdefence by reason, amongother things, of the consequen-tial unavailability of witnesses.He also sought the relief on thebasis of adverse pre-trial pub-licity due to the newspaperarticle, which he alleged wouldprejudice potential jurors.

O’Higgins J refused therelief sought, holding thatthere had been a culpable and

unjustified delay on the part ofthe prosecution, but that theapplicant had not established areal risk of an unfair trial thatcould not be avoided by appro-priate rulings and directions onthe part of the trial judge byreason of those circumstances,which was the appropriatestandard of proof to be met bythe applicant. While the rightof an accused to a fair trialcould be prejudiced by pre-trialpublicity that could, in certaincircumstances, lead to a trialbeing prohibited, it was neces-sary to balance the applicant’srights in that respect with thecommunity’s right to havecriminal offences prosecuted.Where, however, there was areal risk of an unfair trial,which could not be avoided byappropriate rulings and direc-tions by the trial judge, such abalancing exercise did notarise. Rattigan v DPP, High Court,Mr Justice O’Higgins, 30/6/2006 [FL12817]

CustodyRecognition and enforcement ofresidence and contact order –habitual residence – whether resi-dence and contact order of Englishcourt recognised and enforceable inIrish courts – Child Abductionand Enforcement of CustodyOrders Act 1991 – Luxem-bourg Convention.In 2004, an English court madean order in respect of residenceand contact, as to the non-mar-ital children of the applicantand respondent, that permittedthe respondent to remove thechildren permanently toIreland and for them to residewith her, while providing for

the applicant to have specifiedcontact. The applicant soughtan order pursuant to article 7 ofthe Luxembourg Convention forthe recognition and enforce-ment of the residence and con-tact order. The respondentcontended, among otherthings, that the court shouldrefuse the order, as the childrenwere habitually resident inIreland prior to 2004, and thatthe order was no longer in thewelfare of the children.

Finlay Geoghegan J heldthat the court was bound, pur-suant to article 7 of theLuxembourg Convention, tomake an order for recognitionand enforcement of the 2004order. The court was not satis-fied that the 2004 order wasmanifestly no longer in theinterests of the children. As thechildren were now habituallyresident in the jurisdiction, itwas desirable that future courtapplications in relation toaccess were made within thisjurisdiction. The court alsomade provisions as to access.RGHR v LMG, High Court,Miss Justice Finlay Geogh-egan, 19/7/2006 [FL12908]

Judicial separation Family Law Act 1995 – whetherthe court could consider the familyhome and the respondent’s compa-ny as part of the assets available inorder to make proper provision forthe parties.The High Court granted adecree of judicial separationand made resulting orders,including an order that theapplicant transfer to therespondent her legal and bene-ficial interest in the shares andshare holdings of the W groupof companies in considerationfor a number of lump-sum pay-

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ments to be made by therespondent within certain timelimits. Following an appeal bythe respondent, the SupremeCourt remitted the matter tothe High Court for re-hearingon certain issues, namely, whatmechanism could be used forextracting from the companythe funds ordered to be paid tothe applicant and, further, thetax effects on the company orthe respondent of the extrac-tion of the relevant funds.

McKechnie J held that thecourt had jurisdiction over allthe assets of both the applicantand respondent, including thefamily home and those held bythe latter through the mediumof a limited company, andcould make proper use of themin the most appropriate man-ner feasible, so as to makeproper provision for the par-ties. The company and therespondent could be fully asso-ciated together and treated asone. Having considered theevidence, the funds could beextracted by way of remunera-tion or dividend, and the taxliability in the case of the for-mer would be 39.4% and in thecase of the latter 47%. It wasnot appropriate to avail of anyshare adjustment scheme in thecircumstances.D(B) v D(J), High Court, MrJustice McKechnie, 2/12/2005 [FL12865]

Abuse of processApplication to strike out proceed-ings on basis of being vexatiousand abuse of process – applicationto restrict plaintiff from furtherapplication without seeking priorleave of court – criteria for mak-ing of order – whether proceedingsshould be struck out.The plaintiff brought plenaryproceedings claiming negli-gence and for the wrongfulbirth of five children againstthe defendants. All of the issueshad been the subject of numer-

ous prior actions brought bythe plaintiff, all of which hadbeen dismissed. The defen-dants brought a motion seekingto have the proceedings struckout on the basis that they dis-closed no reasonable cause ofaction, were vexatious and anabuse of process. They alsosought an order restraining theplaintiff from bringing furtherapplications without the priorleave of the court.

Mr Justice Murphy dis-missed the proceedings andmade an order restraining theplaintiff from making any fur-ther application without seek-ing the prior leave of the court,holding that an application tostrike out proceedings couldonly succeed where the factswere not reasonably in dispute.Insofar as there was a conflictof fact, it had to be resolved infavour of the party againstwhom the application to strikeout had been brought. A claimwould only be struck outwhere, on admitted facts orundisputed evidence, it wasclearly unsustainable or boundto fail. The criteria character-ising vexatious litigation – suchas the bringing up of one ormore actions to determine anissue that had already beendetermined by a court of com-

petent jurisdiction; where itwas obvious that an actioncould not succeed; where theaction was brought for animproper purpose; whereissues tended to be rolled for-ward into subsequent actionsand repeated and supplement-ed, often with actions broughtagainst the lawyers who hadacted for or against the litigantin earlier proceedings andwhere the person institutingthe proceedings had failed topay the costs of unsuccessfulproceedings – were all presentin the plaintiff’s action. McCabe v Minister for Justice,High Court, Mr JusticeMurphy, 29/6/2006 [FL12830]

EvidencePractice and procedure – rockband memorabilia – appeal by re-hearing from Circuit Court – con-flict of evidence – whether proper-ty gifted to appellant – whetherauction of property could berestrained.In Circuit Court proceedings,the respondent rock band hadsought, among other things, torestrain the appellant, their for-mer personal stylist, from auc-tioning personal memorabiliarelated to their rock band. The

appellant sought to appeal byway of rehearing the adversedecision of the President of theCircuit Court, claiming that thememorabilia had been gifted toher and that she had alreadyreturned a significant amountof memorabilia to the band.

Peart J affirmed the CircuitCourt order, holding that thecase had to be determined byway of credibility of witnessesonly. The appellant had notadduced any witness to supportor corroborate her account ofownership and lacked credibili-ty. No motive of ill will couldbe attributed to the respon-dents by their actions. Theappellant had not establishedownership as a matter of prob-ability.Clayton, Evans, Hewson,Mullen (a firm trading as U2)v Cashman, High Court, MrJustice Peart, 15/11/2006[FL12964]

The information contained here is taken from FirstLaw’s LegalCurrent Awareness Service, published every day on the internetat www.firstlaw.ie. For more information, contact [email protected] or FirstLaw, Merchant’sCourt, Merchant’s Quay, Dublin 8,tel: 01 679 0370, fax: 01 6790057.

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PROPERTY LAW

PRACTICE ANDPROCEDURE

SOLICITORS’HELPLINE

THE SERVICE IS COMPLETELY CONFIDENTIAL ANDTOTALLY INDEPENDENT OF THE LAW SOCIETY

The Solicitors’ Helpline is available toassist every member of the professionwith any problem, whether personal orprofessional

01 284 8484

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eurlegal

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

Recent developments in European lawCases C-317/04 and C-318/04,European Parliament v Council ofthe European Union andEuropean Parliament vCommission of the EuropeanCommunities, 30 May 2006. TheUSA introduced legislationrequiring air carriers operatingflights to, from or across USterritory to provide US author-ities with electronic access tothe data contained in theirreservation and departure con-trol systems. This data is called‘passenger name records’ orPNR. The commission consid-ered that this legislation couldconflict with EC data protec-tion legislation. It started nego-tiations with the US authorities.Following these negotiations,the commission took a decisionfinding that the US Bureau ofCustoms and Border Protection(CBP) ensured an adequatelevel of protection for PNR datatransferred from the EU. InMay 2004, the council approveda decision approving the con-clusion of an agreementbetween the EC and the USAon the processing and transferof PNR data by air carriersestablished in the EC to the USCBP. The agreement wassigned in Washington on 28May 2004 and entered intoforce on the same day. TheEuropean Parliament applied tothe ECJ for annulment of thecouncil and commission deci-sions. It contended that thedecision on adequacy was ultravires, that article 95 was not anadequate legal basis for the deci-sion approving the conclusionof the agreement and that, inboth cases, fundamental rights

were infringed. The EuropeanData Protection Supervisorintervened in support of theparliament. The ECJ annulledboth decisions. It examinedwhether the commission couldadopt the decision on adequacyon the basis of the DataProtection Directive (directive95/47/EC). Article 3(2) of thedirective excludes from its scopethe processing of personal datain the course of an activity thatfalls outside the scope of EC lawand processing operations con-cerning public security, defence,state security and the activitiesof the state in criminal law. Thetransfer of PNR data to the USCBP constitutes processingoperations concerning publicsecurity and the activities of thestate in criminal law. The deci-sion did not concern data pro-cessing necessary for a supply ofservices, but data processingregarded as necessary for safe-guarding public security and forlaw enforcement purposes. Thetransfer of the PNR data fallswithin a framework establishedby the public authorities thatrelates to public security. Thedecision on adequacy thus doesnot fall within the scope of thedirective. The court went on tofind that article 95 of the treaty,read in conjunction with article25 of the directive, cannot justi-fy EC competence to concludethe agreement with the US.The agreement relates to thesame transfer of data as thedecision on adequacy and there-fore relates to data-processingoperations that are excludedfrom the scope of the directive.Thus, the court annulled thecouncil decision approving theconclusion of the agreement.

Cases C-131/04 and C-257/04,CD Robinson-Steele v RD RetailServices Ltd, Michael Jason Clarkev Frank Staddon Ltd, JC Caulfieldand Others v Hanson ClayProducts, formerly Marshalls ClayProducts Ltd, 16 March 2006.The Working Time Directive(93/104/EC) provides thatmember states must take themeasures necessary to ensurethat every worker is entitled topaid annual leave of at least fourweeks. This minimum period ofleave cannot be replaced by anallowance in lieu. Under theBritish regulations transposingthe directive, any contractualremuneration paid to a workerin respect of a period of leavegoes towards discharging anyliability of the employer to makepayments under the regulationin respect of that period. Theapplicants are employees of therespondents. They were paid forannual leave in the form of apayment included in the hourlyremuneration, rather than paidfor a specific period of leave.This system is known as ‘rolled-up holiday pay’. The applicantsapplied to the LeedsEmployment Tribunal claimingpayment for annual leave. Thecase was appealed to the Courtof Appeal. It asked the ECJwhether the system of rolled-upholiday pay is compatible withthe Working Time Directive. Thecourt found that the entitlementof every worker to paid annualleave is an important principleof EC social law from whichthere can be no derogation.Holiday pay is intended toenable the worker to actuallytake the leave to which he is

entitled. The term ‘paid annualleave’ means that remunerationmust be maintained for theduration of the leave and thatworkers must receive their nor-mal remuneration for that peri-od of rest. The directive pre-cludes part of the remunerationfrom being attributed to pay-ment for annual leave withoutthe worker receiving a paymentadditional to that for work done.There can be no derogationfrom that entitlement by con-tractual arrangement. There isno provision in the directiveexpressly providing when pay-ment for annual leave must bemade. However, the purpose ofthe requirement of payment forthat leave is to put the worker,during such leave, in a positionthat is comparable to periods ofwork as regards remuneration.Accordingly, the point at whichpayment for annual leave ismade must, as a rule, be fixed insuch a way that, during thatleave, the worker is put in aposition comparable to periodof work as regards remunera-tion. Furthermore, a regime ofrolled-up holiday pay may leadto situations in which the mini-mum period of paid annual leaveis, in effect, replaced by anallowance in lieu. The directiveprohibits this (except where theemployment relationship is ter-minated) in order to ensure thata worker is normally entitled toactual rest. Thus, the court heldthat payment for minimumannual leave through a system ofrolled-up holiday pay is contraryto the directive. The court con-sidered that sums already paid inrespect of leave through this sys-tem can be set off against thepayments for specific leave.

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Such payments must have beentransparent and comprehensible.The burden of proof of this is onthe employer. The court pointedout that member states arerequired to take the measuresappropriate to ensure that prac-tices incompatible with the pro-visions of the directive relative toannual leave are not continued.

Case C-124/05, FederatieNederlandse Vakbeweging v Staatder Nederlanden, 6 April 2006.The Dutch Ministry of SocialAffairs and Employment pub-lished a brochure indicating thatan employer and employeecould agree in writing that if anemployee did not use his mini-mum leave entitlement in a year,financial compensation could bepaid in the following year. Theapplicant brought an actionseeking a declaration that thisstatement was inconsistent withthe Working Time Directive. Thematter was referred to the ECJ.The court noted that the enti-tlement to paid annual leave isan important principle of ECsocial law. Workers are entitledto actual rest to ensure effectiveprotection of their health andsafety. It is only when theemployment relationship is ter-minated that payment of anallowance in lieu of paid annualleave is permitted. The courtsaid that the positive effect thatleave has for health and safety isdeployed fully if the leave istaken in the prescribed year.The significance of the restperiod for the protection of theworkers remains if it is takenduring a later period. The possi-bility of financial compensation,in respect of the minimum peri-od of annual leave carried over,would create an incentive,incompatible with the objectivesof the directive, not to take leaveor to encourage employees notto do so. Consequently, thecourt held that the directive pre-cludes the replacement by anallowance in lieu of the mini-mum period of paid annualleave, where that leave is carried

over to a subsequent year. It isimmaterial whether financialcompensation for paid annualleave is or is not based on a con-tractual arrangement.

Case C-451/03, Servizi AusiliariDottori Commercialisti Srl vGiuseppe Calafiori, 30 March2006. The provision of certainkinds of tax advice and assis-tance is reserved by Italian lawto tax advice centres. Thisadvice and assistance includesactivities relating to the annualdeclaration of the income ofemployees. These centres canonly be established by certainbodies, such as trade unions oremployers’ associations. Theycarry on their business underauthorisation from the Ministryof Finance. They receive a pay-ment from state funds for eachdeclaration completed and filedwith the tax authorities. In 2003,the tax advice centre in Milanadopted new statutes to takeaccount of the fact that it wasalso providing tax assistance forundertakings, workers and pen-sioners. The notary responsiblefor taking the minutes of themeeting adopting the newstatutes (the respondent)refused to file that decision inthe companies’ registry. Hebelieved that the amendment tothe statutes was contrary to theItalian legislation on tax advicecentres. The Milan centrebrought proceedings in theItalian courts against the refusalof the registration sought. TheCourt of Appeal in Milanrequested a preliminary rulingfrom the ECJ on the compati-bility of the Italian legislationwith the EC rules on the free-dom to provide services, thefreedom of establishment andstate aid. The court found thatthe legislation was incompatiblewith EC rules on the freedom ofprovide services. The legislationreserves certain advice and assis-tance activities to some centres

and thus completely preventsaccess to the market for thoseservices by economic operatorsestablished in other memberstates. The legislation was alsofound to be incompatible withthe freedom of establishment.The legislation restricted theright to form such advice cen-tres to certain bodies meetingstrict conditions. These restric-tions completely prevent ormake it more difficult for opera-tors from other member statesestablishing themselves in Italyto provide these services. TheECJ did not find a justificationfor the Italian restrictions.There is no public interest justi-fication, as the bodies autho-rised to set up these centres donot offer any guarantee of par-ticular professional abilities.The court said that it was for thenational court to determinewhether the payment made tothe centres from state fundsconstituted state aid within themeaning of the treaty.

Case C-341/04, Eurofood IFSCLtd, 2 May 2006. Eurofood is anIrish company with its regis-tered office in Dublin. It is awholly owned subsidiary of anItalian company, Parmalat Spa.On 24 December 2003,Parmalat was placed underextraordinary administration inItaly with an administrator, MrBondi. Bank of America NAapplied to the Irish High Courtseeking the liquidation ofEurofood on account of itsdebts. On 27 January 2004, theHigh Court appointed MrFarrell as provisional liquidatorof Eurofood. He was given pow-ers to take possession ofEurofood’s assets, manage itsaffairs, open a bank account inits name and instruct lawyers onits behalf. On 9 February 2004,Eurofood was placed under theextraordinary administration inItaly of Mr Bondi. The DistrictCourt of Parma scheduled ahearing for 17 February 2004 on

an application for a declarationof Eurofood’s insolvency. MrFarrell was informed on 13February. On 20 February 2004,the court in Parma determinedthat it had international jurisdic-tion to determine whether ornot Eurofood was insolvent, asEurofood’s centre of main inter-ests was in Italy. On 23 March2004, the High Court held thatthe insolvency proceedingsagainst Eurofood had beenopened in Ireland on the date ofthe application by the Bank ofAmerica. It held that the Irishproceedings were the main pro-ceedings, as the centre ofEurofood’s interests was inIreland. The High Court foundEurofood insolvent, ordered itsliquidation and appointed MrFarrell as liquidator. Mr Bondichallenged that judgment in theIrish courts. The SupremeCourt referred several questionsto the ECJ on the interpretationof regulation 1346/2000. Itwished to determine, in particu-lar, which court had jurisdictionto liquidate Eurofood. The reg-ulation provides that the courtwith jurisdiction to open themain insolvency proceedings,applying to the debtor’s assetssituated in all member states, isthe court of the state where thecentre of the debtor’s maininterests is situated. The ECJlooked to article 3(1) of the reg-ulation, which provides that thecentre of the main interests of adebtor company is presumed tobe the place of the registeredoffice where the debtor regular-ly administers its interests. Thispresumption can be rebuttedonly if factors that are objectiveand ascertainable by third par-ties enable it to be establishedthat an actual situation existsthat is different from that whichlocates it at the registered office.An instance of this would be acompany not carrying on anybusiness in the territory of themember state where its regis-tered office is situated. Where acompany carried on its businessin the territory of the member

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state where its registered officeis situated, the fact that its eco-nomic choices are or can becontrolled by a parent companyin another member state is notenough to rebut the presump-tion linked to the place of theregistered office. The court thenturned to consider the questionof recognition of the decision toopen main insolvency proceed-ings by the courts of othermember states. Article 16(1)provides that insolvency pro-ceedings opened in one memberstate are to be recognised in allthe member states from the timethat they produce their effects inthe state of opening. This isknown as the rule of priority.The principle of mutual trustrequires that the courts of theother member states recognisethe decision opening the maininsolvency proceedings, withoutbeing able to review the jurisdic-tion of the court of the statewhere proceedings wereopened. This could be seriouslydisrupted if the courts of mem-ber states, hearing applicationsbased on a debtor’s insolvency atthe same time, could claim con-current jurisdiction over anextended period. To ensure theeffectiveness of the system, thecourt held a that decision hand-ed down by a court of a memberstate, based on the debtor’sinsolvency and seeking theopening of the procedures in theregulation involving divestmentof the debtor and the appoint-ment of a liquidator, constitutesa decision opening insolvencyproceedings. Such divestmentinvolves the debtor losing thepowers of management that hehas over his assets. The groundsto refuse to recognise insolven-cy proceedings opened inanother member state set out inarticle 26 are where such recog-nition would produce effectsclearly contrary to its publicpolicy, its fundamental princi-ple, or the constitutional rightsand liberties of the individual. Inthe context of insolvency, therights of creditors or their rep-

resentatives to participate inaccordance with the equality ofarms principle is of particularimportance. Thus, a memberstate may refuse to recogniseinsolvency proceedings openedin another member state wherethe decision to open the pro-ceedings was taken in flagrantbreach of the fundamental rightto be heard, which a personconcerned by such proceedingsenjoys.

Case T-322/03, Telefon & BuchVerlagsgesellschaft mbH v Officefor Harmonisation in the InternalMarket (Trade Marks andDesigns) (OHIM) – HeroldBusiness Data GmbH & Co KG,16 March 2006. In 1996, theapplicant applied to OHIM foran EC trademark in respect of‘WEISSE SEITEN’ to covervarious goods, including ITgoods and printed matter, refer-ence works and classified direc-tories. The mark was registeredin 1999. Herold Business Datathen sought cancellation of theregistration. In 2003, the Boardof Appeal of OHIM cancelledthe mark, as ‘weiße Seiten’ was acustomary term for telephonedirectories for private individu-als. The applicants challengedthe Board of Appeal’s decisionbefore the Court of FirstInstance. It argued that the basisof the board’s decision wasincorrect. The CFI held that theterm ‘weiße Seiten’ had becomegeneric in Germany for tele-phone directories for privateindividuals. Given that theapplicants had not drawn anydistinction within the category“printed matter, referenceworks, classified directories” towhich telephone directories inpaper form belong, the markhad to be declared invalid forthe whole of that category. Thecourt noted that telephonedirectories for private individu-als are available not only onpaper but also in electronic form

on the internet or on CD-ROM.Therefore the term ‘weißeSeiten’ must also be consideredas a customary term for elec-tronic directories. As the appli-cants had not drawn any distinc-tion between the goods withinthe category “magnetic data car-riers and recorded storagemedia for data processing instal-lations and equipment, in partic-ular tapes, discs, CD-ROMs”,the mark had to be cancelled inrespect of all those goods. Sincethe term has become a synonymin German for telephone direc-tories for private individuals, itmay also be considered to bedescriptive of the products forwhich it is regarded as being acustomary term. As publishingservices and editing of writtentexts concern the creation anddrawing-up of those products,the term ‘weiße Seiten’ may alsobe regarded as descriptive ofthose services, as it describestheir intended purpose. Thelink between the mark and thecharacteristics of all the goodsand services in dispute is so closethat the mark, being descriptive,should not have been registered.

Case C-234/04, RosmarieKapferer v Schlank & SchickGmbH, 16 March 2006. Theapplicant lives in Austria andreceived advertising materialperiodically from Schlank, acompany established underGerman law. Schlank operates amail-order business in Austriaand other countries. MsKapferer received a letter fromSchlank informing her that a

prize of €3,906.16 was waitingfor her. The award of the prizewas subject to a test order with-out obligation. She returned anorder form to Schlank but it wasnot possible to establish whethershe placed an order. She did notreceive the prize she believedthat she had won. She claimedthat prize on the basis ofAustrian consumer protectionlaw. She sought an order fromher local court for the prizeamount, together with interest.Schlank argued that theAustrian courts lacked jurisdic-tion on foot of regulation44/2001. The Austrian courtrejected this argument. On themerits of the claim, the courtrejected all Ms Kapferer’sclaims. She appealed to anappellate court. Schlank did notchallenge the lower court’s deci-sion on jurisdiction and thusthat decision became final. TheAppellate Court asked the ECJwhether it had an obligationunder the EC Treaty to reopenand set aside a final and conclu-sive judgment on jurisdiction ifthat judgment were proved to becontrary to EC law. The courtreferred to the importance ofthe principle of res judicata. Inorder to ensure both the stabili-ty of the law and legal relationsand the sound administration ofjustice, it is important that judi-cial decisions that have becomefinal can no longer be called intoquestion. Thus, EC law doesnot require a national court todisapply its internal rules of pro-cedure in order to review andreopen a final judicial decision ifthat decision should be contraryto EC law. G

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Registration of Title Act 1964An application has been received fromthe registered owners mentioned in theschedule hereto for the issue of a landcertificate in substitution for the originalland certificate issued in respect of thelands specified in the schedule, whichoriginal land certificate is stated to havebeen lost or inadvertently destroyed. Anew certificate will be issued unless noti-fication is received in the registry within28 days from the date of publication ofthis notice that the original certificate isin existence and in the custody of someperson other than the registered owner.Any such notification should state thegrounds on which the certificate is beingheld.(Register of Titles), Central Office, LandRegistry, Chancery Street, Dublin(Published 8 December 2006)

Regd owner: Elaine Fitzgerald andDerek Byrne; folio: 16635F; lands:Moneybeg and barony of Idrone East;Co Carlow

Regd owner: John Condren (deceased);folio: 321; lands: Rathedan andbarony of Idrone East; Co Carlow

Regd owner: Alan and Neville Moore;folio: 9012F; lands: Carlow andbarony of Carlow; Co Carlow

Regd owner: Alan and Neville Moore;folio: 8976F; lands: south side ofBrownhill Road and barony ofCarlow; Co Carlow

Regd owner: Brian Mackey andElizabeth Mackey, Keelagh,Ballyjamesduff, Co Cavan; folio:2860F; lands: Keelagh Glebe; area:0.2655 hectares; Co Cavan

Regd owner: Michael O’Reilly andCatherine O’Reilly, Drumalee,Cavan, Co Cavan; folio: 16513F;lands: Drumroragh; area: 0.2650hectares; Co Cavan

Regd owner: James Cleary; folio: 3296Fand 6017F; lands: townland ofCappaduff and barony of Leitrim; CoClare

Regd owner: Anthony Hayes and MaryHayes; folio: 15694; lands: townlandof Feakle and Coolreagh; area:44.0626 hectares and 0.3490 hectaresand barony of Tulla Upper; Co Clare

Regd owner: Michael Coughlan; folio:17812; lands: townland of Croaghaun(Inchiquin By) and barony ofInchiquin; area: 8.2353 hectares; CoClare

Regd owner: Roy O’Donnell; folio:4163F; lands: townland ofCratloekeel and barony of BunrattyLower; area: (1) 7.4211 hectares, (2)2.0392 hectares; Co Clare

Regd owner: Tadgh O’Callaghan; folio:22160F; lands: plot of ground situatein the townland of Gooseberryhill in

LOST LAND CERTIFICATES

the barony of Duhallow and thecounty of Cork; Co Cork

Regd owner: Wesco AluminiumLimited; folio: 3630F; lands: plot ofground situate in the townland ofShinagh, in the barony ofKinalmeaky and the county of Cork;Co Cork

Regd owner: Elizabeth Ann Mahony;folio: 10180; lands: townland ofBallyanly and barony of MuskerryEast; area: 5.4590 hectares; Co Cork

Regd owner: John McCarthy(deceased); folio: 14962F; lands: plotof ground situate in the townland ofGortgarriff, in the barony of Bearand the county of Cork; Co Cork

Regd owner: Nancy Harrington andBernard Harrington (deceased);folio: 9855F; lands: plot of groundsituate in the townland ofCappyaughna in the barony of Bearand the county of Cork; Co Cork

Regd owner: Michael J Cronin(deceased); folio: 21963; lands: plot ofground situate in the townland ofBallydesmond in the barony ofDuhallow and in the county of Cork;Co Cork

Regd owner: Don Browne, Ballyarrell,Killygordon, Co Donegal; folio;12261; lands: Ballyarrell; area:15.3907 hectares; Co Donegal

Regd owner: Hugh Gerard Boyle andCharles Doherty, c/o BeleemLimited, Gweedore Road, Dungloe,Co Donegal; folio: 9709F; lands:Meenmore; area: 0.2379 hectares;Co Donegal

Regd owner: Hugh Gerard Boyle andCharles Doherty, c/o BeleemLimited, Gweedore Road, Dungloe,Co Donegal; folio: 17726F; lands:Meenmore; area: 0.2170 hectares;Co Donegal

Regd owner: Howard Green, c/o WTMcMenamin and Son, Solicitors,Ballybofey, Co Donegal; folio:43532; lands: Saintjohnstown; area:0.5994 hectares; Co Donegal

Regd owner: John Gerard Doherty andMarian Doherty, Gortin, Ballyloskey,Carndonagh, Co Donegal; folio:43402; lands: Ballyloskey; area:37.975 acres, 5.500 acres, 5.500 acres,30.038 acres, 7.938 acres, 2.625 acresand 5.250 acres; Co Donegal

Regd owner: Patricia Branagan, 25Dun-an-Oir, Old Bawn, Tallaght, CoDublin; folio: 2934F; lands:Dunglow; area: 0.825; Co Donegal

Regd owner: Patrick McLoughlin,Fabmore, Gleneely, Lifford PO, CoDonegal; folio: 14130; lands:Leitrim; area: 16.686 hectares and1.6187 hectares; Co Donegal

Regd owner: Anita Preston and TonyPreston; folio: DN123902F; lands:property situate in the townland ofArtane West and barony of Coolock;Co Dublin

Regd owner: Christopher O’Keeffe and

Alice O’Keeffe; folio: DN55850L;lands: property known as 36Seagrange Drive, situate in the parishand district of Baldoyle; Co Dublin

Regd owner: Michael Hogan; folio:DN3084L; lands: property known asSt Catherine’s Brookville, situate onthe west side of the Malahide Roadand property situate in the townlandof Coolock and barony of Coolock;Co Dublin

Regd owner: Seamus Cannon; folio:DN12528; lands: property situate inthe townland of Ballymastone andbarony of Nethercross; Co Dublin

Regd owner: David Mangan and LouiseMangan; folio: DN98366F; lands:property situate in the townland ofMurphystown and barony ofRathdown; Co Dublin

Regd owner: Patrick Junior Weldon;folio: DN3339F; lands: property situ-ate in the townland of Rush andbarony of Balrothery East, part of theproperty situate to the east side ofSkerries road, in the parish of Luskand town of Rush; Co Dublin

Regd owner: Kevin Murtagh andAmanda Murtagh; folio:DN106262L; lands: property beingan apartment known as duplex unit no20, first floor, block 2, cluster 1,Waterville Row, Waterville, Snug-borough Road, Blanchardstown,being part of the townland of Corduffand barony of Castleknock; CoDublin

Regd owner: Vincent Thomas and JeanThomas; folio: 45889L; lands: 26Glensdown Lawns in the townland ofTempleogue and barony ofUppercross and county of Dublin;area: 0.028 hectares; Co Dublin

Regd owner: Joseph O’Rahilly Sealy;folio: DN12820L; lands: property sit-uate in the townland of Whitehall andbarony of Uppercross; Co Dublin

Regd owner: James Manning; folio:DN14885; lands: a plot of ground sit-uate on the north side of LorcanGrove, in the parish of Santry, districtand city of Dublin; Co Dublin

Regd owner: Valerie Shortland; folio:DN69126F; lands: property situate inthe townland of Johnstown andbarony of Rathdown, known as 14Granitefield, Rochestown Avenue;Co Dublin

Regd owner: Michael Byrne andKathleen Byrne, folio: DN54009F;lands: property situate in the town-land of Tymon South and barony ofUppercross; Co Dublin

Regd owner: Oliver McNamee; folio:DN20601L; lands: property situate tothe south of Collins Avenue in theparish of Artane and district ofClonturk; Co Dublin

Regd owner: Donal Lynch and NiamhO’Regan; folio: DN161093F; lands:property known as 37 St Canice’sCourt, Cappagh Green, Finglas, situ-

ate in the townland of Cardiffscastleand barony of Castleknock; CoDublin

Regd owner: John Cooney and MariaCooney; folio: DN38380F; lands: theproperty known as 22 ClanmoyleRoad, situate in the parish ofClonturk and district of Clontarf; CoDublin

Regd owner: Philip Cushen and KarenEllis; folio: DN94758F; lands: prop-erty situate to the west ofYellowmeadows Road in the townand parish of Clondalkin; Co Dublin

Regd owner: Shane Russell andKatherine O’Shea; folio: DN97036L;lands: an apartment known as no 9,second floor, block 2, Annaly Grove,Ongar Lodge, Ongar, in the town-land of Hanfield or Phibblestown andbarony of Castleknock; Co Dublin

Regd owner: Marie O’Gara; folio:DN89342F; lands: property knownas site no 134 Carysfort Park, situatein the parish of Stillorgan and bor-ough of Dun Laoghaire; Co Dublin

Regd owner: Anthony Cummins; folio:25749; lands: townland of (1)Lackabaun (Leitrim By), (2)Cloonlee, (3) and (4) Coppanagh(Loughrea By); area: (1) 10.7646hectares, (2) 1.2014 hectares, (3)0.4755 hectares, (4) 0.2655 hectares;Co Galway

Regd owner: Gerard Regan; folio:28108F; lands: townland of Rinmoreand barony of Galway; Co Galway

Regd owner: Sean Murphy; folio:4688F; lands: townland (1), (4), (5),(7), (8) Cornamucklagh; (2), (6), (9)Castlegar East; (3) Weston, (10), (11)Kilglass and barony of (1), (3), (4), (5), (6), (7), (8), (10), (11) Clon-macnowen; (2), (6), (9) Killian; area:(1) 6.3160 hectares, (2) 13.9590hectares, (3) 6.3430 hectares, (4)2.0560 hectares, (5) 4.2360 hectares,(6) 13.9590 hectares, (7) 1.3830hectares, (8) 4.2360 hectares, (9)13.9590 hectares, (10) 2.8870hectares, (11) 2.1240 hectares; CoGalway

Regd owner: Louis Perrugia; folio:17368F; lands: townland of Boolardand barony of Ballynahinch; area:0.1367 hectares; Co Galway

Regd owner: Patrick J Noonan; folio:31944; lands: townland of Deerpark(Clonmacnowen By) and barony ofClonmachowen; area: 0.1340hectares; Co Galway

Regd owner: Thomas Greally; folio:9867F; lands: townland ofBallymanagh and barony ofDunkellin; area: 0.1493 hectares; CoGalway

Regd owner: Ellen Kenny; folio: 718F;lands: townland of Rinmore andbarony of Galway; area: 0.0404hectares; Co Galway

Regd owner: Roderick Mullion; folio:14613; lands: townland of Inishlackan


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69www.lawsociety.ie

• Lost land certificates – €132 (incl VAT at 21%)• Wills – €132 (incl VAT at 21%)• Title deeds – €132 per deed (incl VAT at 21%)• Employment/miscellaneous – €132 (incl VAT at 21%)

HIGHLIGHT YOUR NOTICE BY PUTTING A BOX AROUND IT – €31.50 EXTRA

RATES IN THE PROFESSIONAL NOTICE SECTION ARE AS FOLLOWS:PROFESSIONAL NOTICE RATES

All notices must be paid for prior to publication. CHEQUES SHOULD BE MADE PAYABLETO LAW SOCIETY OF IRELAND. Deadline for Jan/Feb Gazette: 18 January 2007. For further information, contact Catherine Kearney or Valerie Farrell on tel: 01 672 4828 (fax: 01 672 4877)

GazetteGazetteL A W S O C I E T Yand barony of Ballynahinch; CoGalway

Regd owner: Patrick Kearns; folio:31252; lands: townland of Headfordand barony of Clare; area: 2.2230hectares; Co Galway

Regd owner: Mary O’Connor; folio:12918; lands: townland ofShanaknock (ED O’Brennan) andbarony of Trughanacmy; Co Kerry

Regd owner: John and MargaretO’Sullivan; folio: 18382; lands: town-land of Cloonalour and barony ofTrughanacmy; Co Kerry

Regd owner: Edmond Murphy; folio:6380F; lands: Kilkeasy and barony ofKnocktopher; Co Kilkenny

Regd owner: Kevin Hamill; folio:6382L; lands: townland of Clane andbarony of Clane; Co Kildare

Regd owner: Breda O’Reilly (deceased);folio: 1819F; lands: Mountrath andbarony of Maryborough West; CoLaois

Regd owner: James McDermott,Leckaun, Leckaun PO; folio: 4183F;lands: Leckaun and Fawnarry; area:9.5482 hectares and 2.5418 hectares;Co Leitrim

Regd owner: Thomas Geoghegan,Annaghselherney, Kilnagross,Carrick-on-Shannon, Co Leitrim;folio: 494; lands: Annaghselherny;area: 12.1431 hectares; Co Leitrim

Regd owner: Thomas Lenihan; folio:78; lands: townland of Shanid Lowerand barony of Shanid, Co Limerick

Regd owner: Francis O’Connor;Rathcor, Riverstown, Dundalk, CoLouth; folio: 8855; lands: Rathcor;area: 8.7336 hectares; Co Louth

Regd owner: Alexander Charles Smart;folio: 12812F; lands: townland ofChurchfield Lower and barony ofRoss; area: 0.1962 hectares; CoMayo

Regd owner: Michael Quirke and MaryDaly; folio: 4422F; lands:Knockanillaun and barony ofTirawley; area: 0.1998; Co Mayo

Regd owner: James Flanagan; folio:13543; lands: townland ofGortaphuill (parts) and barony ofCarra; area: 28 acres; Co Mayo

Regd owner: Anthony Gill (deceased);folio: 34613; lands: townland ofCartrongolbert and barony ofTirawley; area: 0.0632 hectares; CoMayo

Regd owner: Vincent McEvitt and IreneMcEvitt, Main Street, Clonee, CoMeath; folio: 9388F; lands: Clonee;area: 0.1416 hectares; Co Meath

Regd owner: Joseph Duignan andDoreen Duignan, Pagestown,Kilcloone, Co Meath; folio: 20001F;lands: Pagestown; area: 1.945hectares; Co Meath

Regd owner: John McGee; folio:MH26627; lands: property situate inthe townland of Dunmoe and baronyof Navan Lower; Co Meath

Regd owner: Betty Steenson,Terrygreehan, Doohamlet PO,Castleblaney, Co Monaghan; folio:6309, 6285; lands: Terrygreeghan andDrumgrole; area: 7.1850 hectares and6.2470 hectares; Co Monaghan

Regd owner: Paul Hannigan,Lisdrumturk, Carrickmacross, CoMonaghan; folio: 19486; lands:Lisdrumturk; area: 3.2140 hectares;Co Monaghan

Regd owner: Geraldine and PatrickMcCooey; folio: 2657F; lands:Drumacoon, Newbliss; area: 0.750acres; Co Monaghan

Regd owner: Joseph Patrick Connolly;folio: 11918; lands: townland ofFairymount and barony ofBallintober South; area: 4.7828hectares; Co Roscommon

Regd owner: Patrick O’Connor; folio:18676; lands: townland of Bellahyand barony of Leyny; area: 2.3961hectares; Co Sligo

Regd owner: Robert Bourke; folio:24641; lands: townland ofMoanmore (ED Emly) and barony ofClanwilliam; Co Tipperary

Regd owner: Ben Lyons; folio: 13126;lands: townland of Kilmakill andbarony of Eliogarty; Co Tipperary

Regd owner: Daniel and BernadetteCleary; folio: 24924F; lands: town-land of Spafield and barony ofMiddlethird; Co Tipperary

Regd owner: Anthony Wixted; folio:32306; lands: townland of Birdhilland Annaholty and barony of Owneyand Arra; Co Tipperary

Regd owner: Maurice Lenihan; folio:12603; lands: plot of ground beingpart of the townland ofParkeennaglogh in the barony ofDecies without Drum and the coun-ty of Waterford; Co Waterford

Regd owner: Peter Reilly, Togher,Castletown-Finea; folio: 15978;lands: Togher, Clareisland orDerrymacegan, Moneybag; CoWestmeath

Regd owner: Martin and Ann Marshall,Knockmore, Ballingore, CoWestmeath; folio: 13207 and 8682;lands: Knockycosker; area: 8.4984hectares; Co Westmeath

Regd owner: Alex Bethal and ChristinaBethal, 19 Crestfield, Whitehall,Dublin 9; folio: 17028; lands:Ballyharney; Co Westmeath

Regd owner: Health Service Exec-utive; folio: 2512; lands: Enniscorthyand barony of Scarawalsh; CoWexford

Regd owner: John and KathleenMernagh; folio: 4621; lands:Jacketstown and Killane and baronyof Forth; Co Wexford

Regd owner: Robert Murphy; folio: 43F;lands: Ballinaberney and barony ofScarawalsh; Co Wexford

Regd owner: Nicholas Murphy(deceased); folio: 4200F; lands:Ballinrooaun (ED Ardcolm) andbarony of Ballaghkeen; Co Wexford

Regd owner: Ballygarrett/Realt na MaraGAA Club; folio: 12232F; lands:Ballinagam Lower and barony ofBallinagam North; Co Wexford

Regd owner: I and S English; folio:22239; lands: Ferns Upper andbarony of Scarawalsh; Co Wexford

Regd owner: John Kelly (deceased);folio: 12399; lands: Monasootaghand barony of Scarawalsh; CoWexford

Condron, Michael Joseph (deceased),late of Blackwood, Screggan, Tullamore,Co Offaly. Would any person havingknowledge of the whereabouts of anywill made by the above-named deceased,who died on 16 September 1994, pleasecontact Brian P Adams & Company,Solicitors, Cormac Street, Tullamore,Co Offaly; tel: 057 932 1866, fax: 057935 1443

WILLS

Daffy, Maura (deceased), late of 40West Priory, Navan Road, Dublin 7.Would any person having knowledge ofthe whereabouts of any will made by theabove-named deceased, who died on 14August 2005, please contact Hanrahan& Associates, Solicitors, First Floor, 61O’Connell Street, Ennis, Co Clare; tel:065 684 1569, fax: 065 684 2349, email:[email protected]

Doyle, John (Jack) (deceased), late of270 Galtymore Road, Drimnagh,Dublin 12. Would any person havingknowledge of the whereabouts of a willexecuted by the above-named deceased,who died on 15 October 2006, pleasecontact Michael Doyle of 4 WellmountCourt, Finglas, Dublin; tel: 01 864 0769

Garvey, Mary (deceased), late ofCahir, Kiltimagh, Co Mayo, and for-merly Shanvaghera, Knock, Co Mayo,who died on 15 September 2006. Wouldany person having knowledge of thewhereabouts of a will executed by theabove-named deceased, who died on 15September 2006, please contactGilmartin & Murphy, Solicitors, MainStreet, Kiltimagh, Co Mayo; tel: 094938 1204 or fax: 094 938 1226

Kavane, Daniel (deceased), late ofBallyristeen, Dingle, Co Kerry; date ofdeath in or about 30 September 2006.Would any person having knowledge ofany will executed by the deceased pleasecontact Edmund Butler, LK Shields,Solicitors, 39/40 Upper Mount Street,Dublin 2; tel: 01 661 0 866, fax: 01 6610 883, email: [email protected]

Keeley, Annie (deceased), late of 23Larkfield Gardens, Kimmage, Dublin 6.Would any person with knowledge of awill executed by the above-nameddeceased, who died on 28 October 1988at St James Hospital, Dublin, pleasecontact Anthony Diamond of ATDiamond & Co, Solicitors, 217 Clontarf

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TD Fitzpatrick CERTIFIED PUBLICACCOUNTANTS &

REGISTEREDAUDITORS

Specialists in SolicitorBookkeeping and

Accountants Reports

For Enquiries regardingour Solicitor services,please contact us at:

7 Argus House,Greenmount Office Park,

Harold’s Cross, Dublin 6W.

Phone: 01 4737455Email: [email protected]

Road, Clontarf, Dublin 3; tel: 01 8333792, fax: 01 833 4126, email:[email protected]

McKenzie, Maureen (née Donkin)(deceased), late of Cork Hill, Clara, CoOffaly. Would any person having knowl-edge of a will executed by the above-named deceased, who died on 5December 2004, please contact CSSO,State Property Division, OsmondHouse, Little Ship Street, Dublin 8; ref:DCH; tel: 01 417 6250

Mulvany, Brendan (deceased), late ofProudstown Road, Navan, Co Meath.Would any person having knowledge ofa will executed by the above-nameddeceased, who died on 25 March 2006 atSt Joseph’s Hospital, Trim, Co Meath,please contact Oliver Shanley & Co,Solicitors, 62-63 Bridge Street, Navan,Co Meath; tel: 046 909 3200, fax: 046902 9937

Walsh, Edward (deceased), late of 6Canal Court, Canal Road, and formerlyof Headford, Co Galway. Would anysolicitor holding or having knowledge ofa will made by the above-nameddeceased, who died on 30 September2006, please contact William B Glynn,Solicitors, Aengus House, Long Walk,Galway; tel: 091 594 777, fax: 091 567316

London solicitors will be pleased toadvise on UK matters and undertakeagency work. We handle probate, litiga-tion, property and company/commer-cial. Parfitt Cresswell, 567/569 FulhamRoad, London SW6 1EU; DX 83800

MISCELLANEOUS

Fulham Broadway; tel: 0044 2073818311, fax: 0044 2073 814044, email:[email protected]

In the matter of the Landlord andTenant Acts 1967-1994 and in the mat-ter of the Landlord and Tenant(Ground Rents) No 2 Act 1978: anapplication by Oakstead LimitedTake notice that any person having aninterest in the freehold estate of the landat Pigeon House Road, situate in theparish of St Mary, Donnybrook, baronyof Dublin, being part of the land andpremises held under a lease dated 30January 1964 and made betweenSouthern Properties Limited of the onepart and Irish Paints Limited of the otherpart for the term of 300 years from 1January 1964, indemnified against thepayment of £53, being portion of theentire yearly rent of £78.

Take notice that Oakstead Limitedintends to submit an application to thecounty registrar for the city of Dublin forthe acquisition of the freehold interest inthe aforesaid property, and any party orparties asserting that they hold a superiorinterest in the aforesaid premises arecalled upon to furnish evidence of title tothe aforementioned property to thebelow named within 21 days from thedate of this notice.

In default of any such notice beingreceived, Oakstead Limited intends toproceed with the application before thecounty registrar at the end of 21 daysfrom the date of this notice and will applyto the county registrar for the city ofDublin for directions as may be appropri-ate on the basis that the persons or per-sons beneficially entitled to the superiorinterest including the freehold reversionin the aforesaid premises are unknown orunascertained.Date: 8 December 2006Signed: McEvoy Partners (solicitors for theapplicant), Canada House, 65-68 StStephens Green, Dublin 2

In the matter of an application for areversionary lease pursuant to part IIIof the Landlord and Tenant(Amendment) Act 1980 and in the mat-ter of proceedings entitled John JO’Donoghue and MargaretO’Donoghue (plaintiffs) and the repre-sentatives of Elizabeth Leader Lucas andJohn Thomas R Lucas (defendants)Take notice that any person having inter-est in the freehold estate of the followingproperty: that portion of 35 Main Street,Killarney, Co Kerry, abutting BohereenCaol, off Main Street in the town, parishand urban district of Killarney, barony ofMagunihy and county of Kerry, beingportion of the property comprised in anddemised by an indenture of lease dated 6

TITLE DEEDS

October 1888 and made betweenElizabeth Leader Lucas and others of theone part and John Curran of the otherpart for the term of 100 years.

Take notice that John J O’Donoghueand Margaret O’Donoghue (the plain-tiffs) intend to submit an application tothe Circuit Court for a reversionary leasein the aforesaid premises, and any partyasserting that they hold a superior inter-est in the aforesaid premises are calledupon to furnish evidence of the title tothe aforementioned premises to thebelow named within 21 days from thedate of this notice.

In default of any such notice beingreceived, the applicants intend to pro-ceed with the application before theCircuit Court at the end of 21 days fromthe date of this notice and will apply tothe Circuit Court for directions as maybe appropriate on the basis that the per-son or persons beneficially entitled to thesuperior interest including the freeholdreversion in the aforementioned proper-ty are unknown or unascertained.Date: 8 December 2006Signed: Niall Brosnan & Co (solicitors for theapplicants), 5 St Anthony’s Place, CollegeStreet, Killarney, Co Kerry

In the matter of the Landlord andTenant Acts 1967-2005 and in the mat-ter of the Landlord and Tenant(Ground Rents) No 2 Act 1978, and inthe matter of an application byTimothy O’Driscoll, DanielO’Connell and Martin TwomeyTake notice that any person having aninterest in the freehold estate or anysuperior interest in the property knownas: all that and those the hereditamentsand premises known as 376 BlarneyStreet in the parish of Saint MaryShandon, city of Cork, being a portion ofthe hereditaments and premises com-prised in and demised by an indenture ofsurrender and lease dated 28 April 1937made between Harry Franks of the onepart and Elizabeth Murphy of the otherpart held for the term of 100 years from29 September 1936, subject to the yearlyrent of 12 pounds and to the covenantsand conditions on the part of the lesseetherein contained.

Take notice that Timothy O’Driscoll,Daniel O’Connell and Martin Twomeyintend to submit an application to thecounty registrar for the city of Cork forthe acquisition of the freehold interestand any intermediate interest in theaforesaid property, and any party or par-ties asserting that they hold a superiorinterest in the aforesaid property arecalled upon to furnish evidence of title inthe aforementioned property to thebelow named within 21 days from thedate of this notice.

In default of any such notice beingreceived, Timothy O’Driscoll, DanielO’Connell and Martin Twomey intendto proceed with the application before

the county registrar at the end of 21 daysfrom the date of this notice and will applyto the county registrar for the city ofDublin for directions as may be appro-priate on the basis that the persons orpersons beneficially entitled to the supe-rior interest including the freehold rever-sion in the aforesaid premises areunknown or unascertained.Date: 8 December 2006Signed: HV O’Donoghue Solicitors (solicitorsfor the applicants), 8 South Mall, Cork

In the matter of the Landlord andTenant Acts 1967-1994 and in thematter of the Landlord and Tenant(Ground Rents) No 2 Act 1978, and inthe matter of an application by BoylanBros LimitedTake notice that any person having afreehold estate or any intermediate inter-est in all that and those the messuagehouse or tenement situate at and former-ly known as 15A Bishop Street and 41Lower Kevin Street in the city of Dublin,now known as 15/15A Bishop Street and40/41 Lower Kevin Street in the city ofDublin, more particularly described in alease dated 21 May 1777 between RobertByrne of the one part and John Connellyand Alexander Gordon of the other partand a lease dated 12 October 1914 madebetween John White and James Davis ofthe one part and the Moravian Union(Incorporated) of the other part.

Take notice that Boylan Bros Limitedintends to submit an application to thecounty registrar for the city of Dublin forthe acquisition of the freehold interest inthe aforesaid properties, and any partyasserting that they hold a superior inter-est in the aforesaid premises (or any ofthem) 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 notice beingreceived, Boylan Bros Limited intends toproceed with the application before thecounty registrar at the end of 21 daysfrom the date of this notice and will applyto the county registrar for the city ofDublin for directions as may be appro-priate on the basis that the persons orpersons beneficially entitled to the supe-rior interest including the freehold rever-sion in each of the aforesaid premises areunknown or unascertained.Date: 8 November 2006Signed: Creagh Joy and Company (solicitorsfor the applicant), 2 Prince of Wales Terrace,Bray, Co Wicklow

In the matter of the Landlord andTenant Acts 1967-2005 and in thematter of an application under thesection 17 of the Landlord and Tenant(Ground Rents) Act 1967, betweenNavoro Limited (applicant) andGreen Estate (first respondent) andChristmas Estate (second respon-dent) and Villiers Stuart Estate (third


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

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respondent) and Friel Estate (fourthrespondent) and Ford Estate (fifthrespondent) and unknown or unascer-tained person (sixth respondent): anapplication by Navoro LimitedAny person having any interest in thefreehold estate of the property ParnellHouse, situate at Parnell Street and JohnStreet in the parish of Saint John’s withinthe city of Waterford.

Take notice that Navoro Limitedintends to submit an application to thecounty register for county of the city ofWaterford for the acquisition of the free-hold interest of the aforesaid premises,and any party asserting that they hold asuperior interest in the aforesaid premis-es (or any of them) are called upon to fur-nish evidence of the title to the afore-mentioned premises to the below namedwithin 42 days from the date of the pub-lication of this notice.

In default of any such notice beingreceived, Navoro Limited intends to pro-ceed with the application before thecounty register at the end of 42 days fromthe date of the publication of this noticeand will apply to the county registrar forthe county of the city of Waterford fordirections as may be appropriate on thebasis that the persons beneficially entitledto a superior interest including the free-hold reversion in the aforesaid premisesare unknown or unascertained.Date: 8 December 2006

Signed: Peter O’Connor and Sons (solicitorsfor the applicant), Wyse House, AdelphiQuay, Waterford

In the matter of the Landlord andTenant Acts 1967-1994 and in thematter of the Landlord and Tenant(Ground Rents) (No 2) Act 1978, and inthe matter of the lands with buildingserected thereon at Braemor Road,Churchtown, Dublin 14: an applica-tion by LDB Developments Limited,having its registered office at unit 68Western Parkway Business Park,Lower Ballymount, Dublin 12Take notice that any person having inter-est in the freehold estate or any interme-diate interests in the following property:all that and those the premises demisedby indenture of lease dated 5 April 1957and made between Jane Egan of‘Corona’, Sutton, in the county of thecity of Dublin of the one part and JosephSamuel Deane of 1 Clare Street in thecity of Dublin of the other part, andtherein described as “all that part of thelands of Little Newtown situate in theparish of Rathfarnham, barony ofRathdown and county of the city ofDublin, which are more particularlydelineated on the map or plan thereofhereon endorsed and thereon edged witha red verge line” (which premises waspreviously known as Braemor RoadService Station, Braemor Road,

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Churchtown, Dublin 14) for a term of500 years from 1 July 1951, subject tothe yearly rent of one shilling therebyreserved and the covenants on the partof the lessee and conditions therein con-tained.

Take notice that LDB DevelopmentsLimited intends to submit an applica-tion to the county register for the city ofDublin at Áras Uí Dhálaigh, Inns Quay,Dublin 7, 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 the furnish evi-dence of title to the below named with-in 21 days from the date of this notice.

In default of any such notice beingreceived, LDB Developments Limitedintends to proceed with the applicationbefore the county registrar at the end of21 days from the day of this notice andwill apply to the county registrar for thecity of Dublin for directions as may beappropriate on the basis that the personor persons beneficially entitled to thesuperior interest including the freeholdreversion in the aforesaid property areunknown or unascertained. Date: 8 December 2006Signed: PJ Walsh and Company (solicitorsfor the applicant), 12 Upper FitzwilliamStreet, Dublin 2

In the matter of the Landlord andTenant Acts 1967-1994 and in thematter of the Landlord and Tenant(Ground Rents) (No 2) Act 1978 and inthe matter of the purchase of thefreehold estate of property situate at7 Thompson Cottages, NorthCircular Road, Dublin 1: an applica-

tion by Adrian Graham andGenevieve MaidenTake notice that any person having aninterest in the freehold estate of theproperty known as 7 ThompsonCottages, North Circular Road, Dublin1, being portion of the property heldunder:1) An indenture of lease dated 8 August

1878 and made between theHonourable Charles SpencerCowper of the one part and JohnThompson of the other part for theterm of 200 years from 1 May 1878,subject to the yearly rent of £40 andthe covenants and conditions thereincontained and

2) An indenture of lease dated 11January 1878 and made betweenLuke Reilly of the one part and JohnThompson of the other part for theterm of 91 years from 1 November1877, subject to the yearly rent of £65and the covenants and conditionstherein contained and

being all of the property held under:3) An indenture of assignment and con-

veyance dated 1 June 1984 and madebetween William Terence O’ Dea ofthe one part and Thomas O’Connorof the other part for the unexpiredresidue of the terms of the leasesdated 8 August 1878 and 11 January1878, subject to the covenants andconditions therein contained andassigned and conveyed to AdrianGraham and Genevieve Maiden bydeed of assignment and conveyancedated 1 September 2006.

Take notice that Adrian Graham andGenevieve Maiden intend to submit anapplication to the county registrar forthe city of Dublin at Áras Uí Dhálaigh,Inns Quay, Dublin 7, for the acquisitionof the freehold interest in the aforesaidproperty and that any party assertingthat they hold a superior interest in theaforesaid property are called upon tofurnish evidence of title to the belownamed within 21 days from the date ofthis notice.

In default of any such notice beingreceived, Adrian Graham andGenevieve Maiden intend 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 city of Dublinfor directions as may be appropriate onthe basis that the person or persons ben-eficially entitled to the superior interestincluding the freehold reversion in theaforesaid property are unknown orunascertained.Date: 8 December 2006 Signed: Porter Morris & Company (solici-tors for the applicant), 10 Clare Street,Dublin 2

In the matter of the Landlord andTenant Acts 1967-1994 and in thematter of the Landlord and Tenant

(Ground Rents) (No 2) Act 1978 andin the matter of the lands with build-ings erected thereon previouslyknown as 141 Townsend Street and20A Mark Street, Dublin 2, and nowcontained within the developmentknown as Hyde Court, TownsendStreet, Dublin 2: an application byRambler Properties Limited, havingits registered office at Castle House,Citywest Business Campus, NaasRoad, Dublin 24Take notice that any person having aninterest in any intermediate leaseholdestate of the following property: all thatand those the premises demised byindenture of lease dated 13 October1824 and made between GeorgeDonovan of the one part and JohnFerrall of the other part and thereindescribed as “all that dwellinghouse,messuage or tenement now known asnumber 141 situate, lying and being inTownsend Street at the corner of MarkStreet as formerly in the possession oroccupation of John Daly, merchant,and as lately in the possession andoccupation of Richard Oulton, gentle-man, or his under tenants, said premis-es being bounded on the east by MarkStreet aforesaid, on the west by thehouse now or formerly in the posses-sion of Nathaniel Corrigan, on thesouth by the house now or formerly inthe possession of Mrs Kelly, widow, andon the north by Townsend Street afore-said” (which premises was previouslyknown as 141 Townsend Street and20A Mark Street, Dublin 2, and is nowcontained within the developmentknown as Hyde Court, TownsendStreet, Dublin 2) for a term of 950years from 13 October 1824, subject tothe yearly rent of £34.2.6 sterlingthereby reserved and the covenants onthe part of the lessee and the conditionstherein contained.

Take notice that Rambler PropertiesLimited intends to submit an applica-tion to the county registrar for the cityof Dublin at Áras Uí Dhálaigh, InnsQuay, Dublin 7, for the acquisition ofany intermediate leasehold interests inthe aforesaid property and that any partyasserting that they hold a superior inter-est in the aforesaid property are calledupon to furnish evidence of title to thebelow named within 21 days from thedate of this notice.

In default of any such notice beingreceived, Rambler Properties Limitedintends to proceed with the applicationbefore the county registrar at the end of21 days from the date of this notice andwill apply to the county registrar for thecity of Dublin for directions as may beappropriate on the basis that the personor persons beneficially entitled to thesuperior intermediate leasehold interestsin the aforesaid property are unknownor unascertained.Date: 8 December 2006

Signed: PJ Walsh & Company (solicitors forthe applicant), 12 Upper Fitzwilliam Street,Dublin 2

In the matter of the Landlord andTenant Acts 1967-1994 and in thematter of the Landlord and Tenant(Ground Rents) (No 2) Act 1978 and inthe matter of the lands with buildingserected thereon previously known as144 Townsend Street, Dublin 2, andnow contained within the develop-ment known as Hyde Court,Townsend Street, Dublin 2: an appli-cation by Rambler PropertiesLimited, having its registered officeat Castle House, Citywest BusinessCampus, Naas Road, Dublin 24Take notice that any person havinginterest in the freehold interest of thefollowing property: all that and thosethe premises demised by indenture oflease dated 15 October 1885 and madebetween Thomas Christian Scott,Margaret Scott, Mary Smith andEleanor Smith of the one part andWilliam White of the other part andtherein described as “all that and thosethe dwellinghouse known as NorthTownsend Street in the parish of StMark and county of the city of Dublin”(previously more commonly known as144 Townsend Street, Dublin 2, andnow forming part of the development atHyde Court, Townsend Street, Dublin2) for a term of 500 years from 25 March1885, subject to the yearly rent of £6sterling and the covenants on the part ofthe lessee and the conditions thereincontained.

Take notice that Rambler PropertiesLimited intends to submit an applica-tion to the county registrar for the cityof Dublin at Áras Uí Dhálaigh, InnsQuay, Dublin 7, for the acquisition ofthe freehold interest in the aforesaidproperty and that any party assertingthat they hold a superior interest in theaforesaid property are called upon tofurnish evidence of title to the belownamed within 21 days from the date ofthis notice.

In default of any such notice beingreceived, Rambler Properties Limitedintends to proceed with the applicationbefore the county registrar at the end of21 days from the date of this notice andwill apply to the county registrar for thecity of Dublin for directions as may beappropriate on the basis that the personor persons beneficially entitled to thesuperior interest including the freeholdreversion in the aforesaid property areunknown or unascertained.Date: 8 December 2006Signed: PJ Walsh & Company (solicitors forthe applicant), 12 Upper Fitzwilliam Street,Dublin 2

In the matter of the Landlord andTenant Acts 1967-1994 and in thematter of the Landlord and Tenant

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(Ground Rents) (No 2) Act 1978: anapplication by William OwensTake notice that any person having inter-est in the freehold estate of the propertyknown as 3 Thompson’s Cottages, NorthCircular Road, Dublin 1, being portionof the property held under an indentureof lease dated 8 August 1878 and madebetween the Honourable CharlesSpencer Cowper of the one part and JohnThompson of the other part for the termof 200 years from 1 May 1878, subject tothe yearly rent of IR£40 and thecovenants and conditions therein con-tained, and an indenture of lease dated 11January 1878 and made between LukeReilly of the one part and JohnThompson of the other part for a term of91 years from 1 November 1877, subjectto the yearly rent of IR£65 and thecovenants and conditions therein con-tained and being all of the property thesubject of a deed of assignment dated 24July 2000 between Francis O’Neill andShirley Fagan of the one part andWilliam Owens of the other part.

Take notice that William Owensintends to submit an application to thecounty registrar for the county of Dublinat Áras Uí Dhálaigh, Inns Quay, Dublin7, for the acquisition of the freeholdinterest in the aforesaid property and thatany party asserting that they hold superi-or interest in the aforesaid property arecalled upon to furnish evidence of title tothe below named within 21 days from thedate of this notice.

In default of any such notice beingreceived, William Owens intends to pro-

ceed with the application before thecounty registrar at the end of 21 daysfrom the date of this notice and will applyto the county registrar for the city ofDublin for directions as may be appropri-ate on the basis that the person or per-sons beneficially entitled to the superiorinterest including the freehold reversionin the aforesaid property are unknown orunascertained.Date: 8 December 2006Signed: O’Scannaill & Co (solicitors for theapplicant), 41 Main Street, Swords, CoDublin

Co Louth: two experienced solicitorsrequired for young, busy, medium-sizeddynamic practice; firstly, family law andconveyancing solicitor, secondly, con-veyancing housing estate development,commercial property and possibly somecompany law. Immediate start. Excellentsalary. Apply in writing to principal ofCatherine Allison & Co, 6 Roden Place,Dundalk, Co Louth; tel: 042 932 0854 ordirect email: [email protected]

Wanted: general practice position.UK-qualified solicitor with broad experi-ence, mainly civil property litigation,looking for work in the Limerick, NorthCork, North Kerry and West Tipperaryareas. On roll with Irish Law Society. Fulltime and part time considered. Reply tobox no 100/06

Due to restructuring, FB Keating &Company, Limerick, require a litigationsolicitor. Excellent career propects.Apply with CV to: [email protected]

Solicitor required for busy generalpractice. Good general experience pre-ferred. Reply to Liam Keane &Company, Solicitors, The Old TollHouse, Dunshaughlin, Co Meath; email:[email protected]

Assistant solicitor required for a busyprogressive solicitors’ practice inCootehill, Co Cavan. The applicant musthave a good background of experience inconveyancing, probate, capital taxation,with some District Court experience anadvantage. The applicant must also becomputer literate. Pleasant workingatmosphere with support staff and col-leagues. Salary negotiable with experi-

ence. Apply in strictest confidence withcurriculum vitae to Brendan O’ReillyEsq, O’Reilly Solicitors, Market Street,Cootehill, Co Cavan

Solicitor’s practice for saleWell-managed, long-establishedgeneral practice for sale. SouthDublin suburbs. Principal retiringbut willing to work part-time atoutset if required. Large will cabi-net, good turnover. Would suit apartnership, branch office or solepractitioner. Ref: ST/2091.Contact: Sonya Tighe, MooreStephens Caplin Meehan,Chartered Accountants, BlackhallGreen, Blackhall Place, Dublin 7;tel: 01 646 9000 or email:[email protected].

RECRUITMENT

NOTICE TO THOSE PLACING RECRUITMENT ADVERTISEMENTS IN THE

LAW SOCIETY GAZETTEPlease note that, as and from the August/September 2006 issueof the Law Society Gazette, NO recruitment advertisements willbe published that include references to years of post-qualification experience (PQE).

The Gazette Editorial Board has taken this decision based onlegal advice, which indicates that such references may be inbreach of the Employment Equality Acts 1998 and 2004.

■ €45 for one hour if payment on the

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RECRUITMENT LAW SOCIETY GAZETTE DECEMBER 2006

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AT STELFOX LEGAL WE PRIDEOURSELVES IN THE FACT THATWE ARE A LEGAL RECRUITMENTAGENCY RUN BY LEGAL PEOPLEFOR LEGAL PEOPLE. A DIVISIONRUN BY SOMEONE WITH SIXYEARS LEGAL EXPERIENCE WEKNOW THE DEMANDS OF BOTHTHE INDUSTRY AND THE PEOPLEWHO WORK IN IT. WE CANNOTSTRESS ENOUGH HOWSERIOUSLY WE RESPECT BOTHCANDIDATES AND CLIENTSCONFIDENTIALITY. AS ALWAYS,WITH STELFOX LEGAL, YOU'RE INTHE DRIVING SEAT.

If you are interested in finding the right position in the right firm with an agency who genuinely respects your need for confidentiality contact Stephen Kelly B.A., LL.B. at Stelfox Legal on (01) 679 3182

or email your CV to [email protected]

Log on to our new website for a list of more opportunities

www.stelfox.ie

■ Corporate Lawyer – Prestigious mid tier firm.Dublin city centre – €80,000+Lawyer with excellent corporate experiencerequired for prestigious law firm in the Dublin2 area. Must have sound knowledge ofcorporate transactions, be able to work in apressurised but friendly environment and haveexceptional client management skills.

■ Investment Funds Lawyer – Top Tier firm.Dublin City Centre – €85,000+Lawyer with experience both advising on andestablishing investment funds is required by thehugely successful department of a Top 5 firm inDublin city centre. Enviable client portfolio,friendly working atmosphere and excellent careerprogression for the right candidate.

CURRENT OPPORTUNITIES INCLUDE:

We would like to take this opportunity to wish all our candidates and clients a merry Christmas and a happy and prosperous 2007



EMPLOYMENT LAWYER – DUBLIN CITY CENTRE €60K+Our client, a leading commercial law firm, is now recruiting an employment lawyer. The successful lawyer will be

drafting and advising on employment contracts and employee policies, creating and implementing employee

programs for its clients, advising on terms and conditions of employment, post-termination restrictive covenants and

implementing redundancy programs as well as involved in transfer of undertaking issues in corporate sales and

takeovers.

SENIOR PROPERTY SOLICITOR – DUBLIN CITY CENTRE €90K +A leading commercial law firm in Dublin are now seeking a solicitor with experience in commercial conveyancing. The

successful candidate will have experience in large deal commercial transactions advising investors, developers and

financial institutions and investigating title as well as good working knowledge of landlord and tenant issues.

CONSTRUCTION LAWYER (NON-CONTENTIOUS) – DUBLIN 2 €60-80KTop 5 law firm requires a solicitor for its construction department. The firm advises a range of public and local

authorities, private sector developers, contractors and designers in relation to all aspects of construction and

engineering. The successful candidate will have experience in construction and planning.

IN-HOUSE COMPETITION & REGULATORY LAWYER – DUBLIN €60K+Our client based in Dublin is a leading company which is now seeking a legal advisor to take responsibility for

the provision of competition law. Its remit will also require that the successful candidate assist with its corporate

governance procedures and adhere to regulatory requirements.

CONVEYANCING SOLICITOR – MONAGHAN €50-60KThis is an opportunity to join a thriving and expanding law firm. As a result of this development, our client is now

looking for a conveyancing solicitor to join its team. An interest in cross-border legal practice would be beneficial.

Strong partnership potential for ambitious solicitor.

COMMERCIAL SOLICITOR – CORK €70K +Our client, based in Cork has experienced exceptional growth in its commercial department in the last year. Due to

this growth it is now seeking a good company/corporate solicitor to join its team.

For information on these vacanciesor to discuss other career opportunities,please contact John CroninSolicitor.

PRC RecruitmentLimited, 11 HumeStreet, Dublin 2.Tel: 01-6381020 or e-mail [email protected]

RECRUITMENT LAW SOCIETY GAZETTE DECEMBER 2006

77www.lawsociety.ie

It’s all about

LaurenceSimons

L O N D O N H O N G K O N G P A R I S D U B L I N S Y D N E Y A M S T E R D A M D U B A I B R U S S E L S

Sharon Swan Tel: +353 (0) 1 477 3066 email: [email protected] White Tel: +353 (0) 1 477 3063 email: [email protected]

Harcourt Centre, Harcourt Road, Dublin. 2Tel: +353 (0) 1 402 9400 Fax: +353 (0) 1 402 9590

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Financial Services LawyerDublin €Excellent terms on offerMajor international investment bank requires a junior lawyerto join its in-house team. As one of the global leaders incorporate banking/securities and asset management, thebank provides financial solutions for demanding clients. Thesuccessful candidate will have a background in one of thefollowing areas: general banking, structured finance,securitisation. Ref: 13222. Please contact Portia White.

Corporate/Commercial LawyerCork €65k plusOur client a leading Cork firm, requires a junior lawyer to joina busy corporate commercial department. You will have theability to assess and identify commercial and financing issuesand apply legal reasoning to how these issues are addressed.You will have high quality transactional experience withexposure to asset and share purchase agreements and otherrelated commercial agreements. Drafting and negotiationskills a must. Ref:13762. Please contact Portia White.

Pensions LawyerDublin €70KOur client requires an investment/pensions lawyer to join itslegal team based in the city centre. You will provide legaladvice to the large client base in the areas of pensions,employment and trust law, as well as drafting ancillary legaldocumentation. Relevant experience in pensions andemployment law, gained either in-house or in private practice,is highly desirable. Ref:11184. Please contact Portia White.

Newly Qualified Corporate /BankingDublin €Excellent terms on offerOur client, a leading firm with a strong domestic andinternational focus, is looking to recruit commercial andbanking lawyers. You will have strong academics and haveapprenticed in a mid-sized or leading firm. Most importantlyyou will have a desire to develop your career within a leadingcorporate. Ref: 14840. Please contact Sharon Swan.

Corporate LawyerDublin €ExcellentOur client is a boutique firm with an excellent reputationamong its clients and is looking to recruit a commerciallawyer at associate level for a team based role. You will haveexperience in one or more of the following: mergers andacquisitions, venture capital, joint ventures, privatisations andflotation’s. Ref: 12667. Please contact Sharon Swan.

Construction LawyerDublin €90kSmall, but expanding, practice based in the city centre isseeking to appoint a construction lawyer at associate level.You will preferably have experience in non contentiousconstruction work, but candidates with contentiousbackgrounds will also be considered. This is an excellentopportunity to develop your career within a highlyautonomous role. Ref: 14428. Please contact Sharon Swan.

Commercial Property LawyerCork €65kLeading firm in Cork require a junior lawyer to join anexpanding and progressive team. You will have experience incommercial property transactions with regard to acquisitions,disposals, letting of property and other property relatedmatters. Experience of acting for landlords, tenants anddevelopers with a view to expanding this commercial activityis essential. The successful candidate will have the ability totake responsibility and act in a fast paced environment.Ref 13454. Please contact Portia White.

Junior Financial Services LawyerDublin base with international travel €60kThe European headquarters of this leading provider of financialservices is looking to recruit a junior lawyer. You will have gainedexcellent training and now wish to develop your career in-house.Excellent basic and bonus are offered, as well as internationaltravel to other global financial centres, including New York andHong Kong. Ref: 6432. Please contact Sharon Swan.

Corporate/Trust LawyersOff-shore Cayman Is, Guernsey, Jersey €ExcellentLeading off-shore law firm is seeking lawyers for its internationaloffices. You will have gained experience in a leading firm andnow want to consider making a move off-shore. Lawyers at alllevels will be considered. City of London salaries are offered andexcellent tax rates will apply. Relocation assistance will also beoffered. Ref: 14568. Please contact Sharon Swan.

Junior Corporate LawyerLondon €100k+We are representing a number of Magic Circle and secondtier firms based in London. Our clients are looking forcorporate lawyers at all levels and offer the opportunityto work on high profile corporate transactions.Ref: 12354. Please contact Sharon Swan.

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