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Contents

Law Society GazetteDecember 2004

1

Regulars

News 2

Tech trends 28

Book reviews 35

Briefing 39

Council report 39

Committeereport 40

Practice note 40

Legislation update 41

Personal injury judgment 42

SolicitorsDisciplinary Tribunal 43

FirstLaw update 44

Eurlegal 47

Parchmentceremonies 2004 49

People and places 57

Professional information 58

Bell, book and candleCanon law is the basic law of the Catholic Church and has come toprominence in recent times in relation to child-abuse cases. But can ittake precedence over civil law? Henry Murdoch straps on his dog collar

8

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

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

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

Volume 98, number 10Subscriptions: €57.15

Cover Story

GazetteLawSociety

No such thing as badpublicity?Bad publicity can harm the share priceof listed companies, but a novel attemptto recover compensation for such a lossrecently failed in the English High Court.Pamela Cassidy inspects the damage

15

Copyrights and wrongsNew technology has made copying and distributing copyright worksmuch easier. In the digital age, the law is running to catch up withthese developments, argues Paul Lambert

22

Fingerprint fileJust when you were beginning to feel comfortable with the notion ofdigital signatures, biometrics is now the flavour of the month, writeEamonn Keenan and Tony Bradley

27

Ten years afterA decade ago, civil war convulsed Bosnia and Herzegovina, but nowthings are looking up. Solicitor Lynn Sheehan reports on the workbeing carried out to reform public administration there, includingoverhauling the judiciary

18

The quiet manDon’t expect any table-thumping from the LawSociety’s new president. There will be no‘Binchy manifesto’. The man is just here todo his job, he tells Conal O’Boyle

12

COVER PIC: [email protected]

FREE WITH THIS ISSUE!

Your Gazette

legal planner 2005

News


2

■ LEITRIMRural renewalGood news from Leitrim. Partlydue to the rural renewal taxrelief scheme, which expires on31 December, solicitors haveseldom been busier. The schemeappears to have been verysuccessful, according to MichaelKeane Jnr of the Leitrim BarAssociation. It has meant a verybusy time for builders and theirtradesmen and suppliers, as wellas for professionals such assolicitors.

Under the scheme,introduced by the minister forfinance in the 1998 Finance Act,owner-occupiers of houses canbenefit from tax reliefs,including setting constructioncosts or refurbishment costsagainst rental income incurredon certain residential premises.For investors, relief is availableagainst all rental income for100% of the expenditureincurred on the conversion orrefurbishment of certainbuildings into rental residentialaccommodation.

Solicitors are under hugepressure now in conveyancingfor these qualifying propertiessince the end-Decemberdeadline is fast approaching,according to Michael Keane Jnr.

District Court newsMeanwhile, Leitrim litigationsolicitors are also smiling andadjusting to District Court judgeGeoffrey Browne, formerly aGalway practitioner, who wasdescribed by one practitioner asan excellent judge and making abig impression.

■ MIDLANDSLocation, location, locationThe Midland Bar Association, inconjunction with the LawSociety, has been holding anumber of continuingprofessional developmentcourses, which have evenattracted people from outside

the immediate area, according toCaren Farrell, outgoingpresident of the association.

The Midlands is a goodvenue and well located in thecentre of the country, with easyaccess, she noted. The barassociation had also receivedgreat support from the LawSociety, and its recent seminarin Athlone on costs was bothvery important and wellattended.

Solicitors must keep up-to-date both for their clients and intheir own interests. The coursesbeing organised are a great wayof maintaining our professionalstandards, she added.

■ DROGHEDACourt accommodation – againAt the end of January 2005,solicitors practising in DroghedaDistrict Court will at last havesome form of reasonable courtconditions, according to theDrogheda Bar Association’sFergus Minogue.

Their conditions in recentyears had been a cause of seriousupset and were a disgrace to thejudicial process. Solicitors had

even staged a walk out of thecourt in Drogheda in Septemberof last year in protest at theappalling conditions.

The new court facility, on thetown’s Dyer Street, will be for athree-to-five-year period. ‘Weare delighted’, said Minogue.‘We were in a bingo hall for tenyears and it is not hard toimprove on that’.

The association is confidentthat the new premises will onlybe temporary, as has beenindicated. The lease by theCourts Service is short termonly.

So they expect that the sittingjudge, officials, solicitors, gardaíand all users of the court,including the people whom theyall serve, will then have acourthouse and courtroom withall of the modern facilities thatpeople have come to expect incourt and that will last for futuregenerations.

■ KERRYJudicial retirementThe retirement of a DistrictCourt judge is not alwayssignificant news. But it is if theretiring judge has served acommunity well for 25 years.

Judge Humphrey Kelleherwas a very significant figurehere. He was able to size up asituation before him both veryquickly and very well. Hisjudgments were fair andconsistent, according to PatSheehan, secretary of the KerryLaw Society.

To mark his retirement, 70local solicitors attended aretirement function at whichtributes were paid to JudgeKelleher’s contribution to thelocal community, to the judicialprocess in the Kingdom and tothe state over a quarter of acentury.

■ DUBLINResidential tenanciesA revised draft residential

tenancies agreement will belaunched in January by theDublin Solicitors’ BarAssociation’s conveyancingcommittee, chaired byGeraldine Kelly.‘Since the enactment of the

Residential Tenancies Act, 2004 inSeptember, we have beeninundated with calls fromcolleagues on how to approachdrafting of tenancy agreements’,noted Kevin O’Higgins,secretary of the DSBA.

‘Since the act came into force,we have been in a state of limboand so the launch of the reviseddraft agreement for memberswill be widely welcomed’, hefelt. A committee, includinghimself, Marjorie Murphy,Christine Scott, Brian Gallagherand assisted by Aine Ryall ofUCC, was now working on thedraft agreement.

Discovery by e-mailThe DSBA has urged colleaguesto note that Dublin CircuitCourt has asked solicitors, whenlodging motions for discovery,to e-mail a copy of the motionand affidavits to enable them tocopy and paste the details ontothe order.

‘Discovery orders are oftenlong and take a long time totype, which is one of the reasonsthat they take longer to produce.Often the details are alreadycontained in the motion and weare merely duplicating what hasalready been typed by thesolicitor. If we could copy andpaste this into the orders, itwould mean that all orderswould be produced morequickly’, according to KevinFidgeon, deputy chief clerk ofthe Dublin Circuit Court.

However, it is still notpossible to lodge motion papersby e-mail.

Nationwide is compiled by PatIgoe, principal of the Dublin lawfirm Patrick Igoe & Co.

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NATIONWIDE

News from around the country

Outgoing DSBA president JohnO’Connor hands over the chain of

office to his successor, OrlaCoyne, outside the DSBA’s new

Hatch Street headquarters

News


3

The Law Society haslaunched judicial review

proceedings against theCompetition Authority, seekingto quash the authority’sdecision to issue a notice thatpurports to reserve to theauthority the power to veto thechoice of lawyer made by aparty to a CompetitionAuthority investigation. Thesociety is seeking declarationsfrom the High Court that theauthority’s notice, which waspublished on 4 August 2004, isultra vires the authority’spowers, null and void and of nolegal force or effect.

In his affidavit grounding

Society judicially reviewsCompetition Authority

the motion, the society’spresident, Owen Binchy, saidthat the society ‘was extremelyalarmed at the decision and, inparticular, at the authority’sattempt to restrict the freedomof persons to choose the lawyerrepresenting them before theauthority’.

The society took the viewthat the right to be representedby a lawyer of one’s choice is abasic and fundamental tenet ofany free and democraticsociety.

As the Gazette went to press,the society was awaiting areplying affidavit from theauthority.

Law Society directorgeneral Ken Murphy has

been elected to anunprecedented fourth term aschairman of CEEBA, theorganisation of chiefexecutives of European barassociations.

At CEEBA’s recent annualmeeting in London,Murphy’s peers from acrossEurope chose him to leadtheir network for anotheryear. The organisation,collectively representingmore than 300,000 lawyers, isa network enabling regularexchange of information andideas on the regulation,

Vote of confidence in Murphy

education and representationof the legal profession acrossEurope. It seeks to develop

better responses to thechallenges facing theprofession.

In addition, Murphy wasrecently elected as a memberof the board of IILACE, theInternational Institute of LawAssociation Chief Executives,which organises chiefexecutives on a worldwidebasis. He says he finds itparticularly valuable to learnand discuss how legalprofessions in otherjurisdictions have dealt withsuch issues as review bycompetition regulators andgovernment reforms of theirlitigation systems.

The Law Society is seekingleave to make written and

oral submissions to the HighCourt as amicus curiae orintervener in a case whichchallenges the PersonalInjuries Assessment Board’spolicy of refusing tocorrespond exclusively with asolicitor for a claimant where itis the claimant’s wish that PIABshould do so.

At issue is whether PIAB’sgeneral policy of disregardingapplicants’ writtenauthorisations in this regardmay violate the claimant’srights under the constitutionand the European convention onhuman rights.

The society views the judicialreview proceedings, brought byan applicant named DeclanO’Brien, as highlighting issuesof fundamental importance tothe right of people to takeindependent legal advice and toentrust to their solicitor theconduct of a claim for personalinjuries.

Societysupportschallengeto PIAB

Murphy: fourth term

President Owen Binchy

GAZETTE CHRISTMASPUBLICATIONAs usual, the Gazette will betaking a break over the Christmasperiod, so there will be no issue inJanuary. Normal publication willresume with a joint January/February issue, due out in earlyFebruary.

CourtMeet at the Four Courts

FOR BOOKINGS CONTACT MARY BISSETT OR PADDY CAULFIELD TEL: 668 1806

LAW SOCIETY ROOMSat the Four Courts

ONE TO WATCH: NEW LEGISLATION

News


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Criminal Justice (TemporaryRelease of Prisoners) Act, 2003Prior to this act, the legislativebasis for temporary release wasthe Criminal Justice Act, 1960,section 2, which simply providedthat the minister could makeregulations in relation totemporary release from prisonsand St Patrick’s Institution. The2003 act replaces section 2 witha new section, which sets out theground rules for temporaryrelease. It came into effect on 12

November 2004 (SI 679/04).The purposes for which

temporary release may be orderedby the minister are (a) to assessthe prisoner’s ability to reintegrateinto society, (b) to prepare him forrelease, and (c) to assist theGarda Síochána. There also maybe circumstances justifyingtemporary release (health,humanitarian grounds); or thetemporary release may benecessary or expedient, in theminister’s opinion, to ensure good

government of the prison ormaintain good order, humane andjust management; or if theminister believes the person hasbeen rehabilitated and is capableof reintegrating into society.

The minister must have regardto certain considerations beforegiving a direction:• The nature and gravity of the

offence• The sentence imposed and any

remarks by the court• The period served

• The potential threat tomembers of the public

• Other previous convictions• The risk of not returning to

prison• The conduct of the prisoner

while in custody• Any reports by the prison

governor, gardaí, probationofficer, or anyone else theminister considers would be ofassistance

• The risk of offending while ontemporary release

RETIREMENT TRUST SCHEME

Unit prices: 1 November 2004

Managed fund: €4.42768

All-equity fund: €1.03390

Cash fund: €2.57198

Long-bond fund: €1.20081

PRIZE BOND WINNERS 2004

The winners of the Law Society’s

prize bond draw were: Brian M

Gallagher, Dublin 2; Andrew

Smyth, Dublin; Caroline Preston,

Dublin; John C Reidy and Patrick

J Reidy, Co Kildare; William

McGuire, Co Wicklow; Mary P

Nowlan, Co Dublin; Patrick T

Moran, Co Mayo; Leo and Kevin

Loftus, Co Mayo; Thomas

O’Halloran, Co Kerry; Dermot M

Murphy, Dundalk; Patrick G

Colfer (decd), Dublin.

JOYCE’S LEGAL DUBLIN

Brian McMahon, author of an

article on James Joyce’s legal

Dublin published in the October

issue of the Gazette, will be

giving a talk on the article at

8pm on 20 January at 15

Usher’s Island, Dublin 8

(Joyce’s ‘House of the Dead’).

All are welcome to attend.

CONSULTATION ROOM FEES

The fees being charged by the

Law Society for use of the

consultation rooms in the Four

Courts are being increased

from 1 January 2005 as

follows: one hour – €40 (up

from €35); two hours – €55

(up from €50); full day – €170

(up from €155). The room rate

has not been increased since

January 2003.

The Courts Service has saidthat the series of security

measures that are due to comeinto effect early in the new year‘will substantially improvesecurity in and around the FourCourts complex’. The measuresinclude the provision of‘security pavilions withscanning equipment’ at theentrances and the restriction ofvehicle access to the judges’ carpark in Chancery Place.

Solicitors, barristers, judgesand other professional groups,such as courts staff and courtreporters, will be exemptedfrom going through the newsecurity arrangements. Instead,they will be issued withidentification cards, byarrangement. According to theCourts Service, the newsecurity measures are ‘aresponse to an ever-changingsecurity climate’.

‘There is no question ofrestricting public access to thecourts’, it says, ‘but oforganising this access so as tobetter ensure safety andsecurity for all who use thebuilding’.

The main features of thenew arrangements include:• From January 2005, there

will be no access available toanybody through either thefront door of the main Four

New security arrangementsin the Four Courts

Courts building or the frontdoor of Áras Uí Dhálaigh

• Public entrances will belocated at Morgan Place(between Áras Uí Dhálaighand the main Four Courtsbuilding) and the front doorof the Circuit Courthouse inChancery Place

• Those with ID cards will beable to gain access throughspecially erected turnstiles atthe entrances to MorganPlace, Chancery Street, thejudges’ car park at ChanceryPlace and the CircuitCourthouse at Chancery Place

• Cars authorised to park inthe Morgan Place/Áras UíDhálaigh car parks will beissued with permits that mustbe displayed on thewindscreens.

However, it appears thatsolicitors may not find it easyto get their hands on access/IDcards for the Four Courts. TheCourts Service has informedthe Law Society that ‘somegarda stations are not preparedto stamp application forms andphotographs’ for solicitors,trainees and solicitors’ clerks.

‘We have consulted with thegarda commissioner’s officeregarding this matter’, it says,‘and have been advised thatsolicitors should arrange withmembers of the GardaSíochána who are well knownto them to have theirapplication forms stampedrather than seek to have theforms stamped at a gardastation where the applicant isnot known’.

News


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• The risk of failure to complywith any conditions attaching tothe release

• The likelihood that the releasemight accelerate the prisoner’sreintegration or improve hisprospects of employment.

Some prisoners are excluded,including those servingmandatory sentences undercertain legislation (such as underthe 1977 and 1999 Misuse ofDrugs Acts or that dealing with

treason and murders of prisonofficers and gardaí in section 5of the Criminal Justice Act,1990).

SI 680/04 contains thePrisoners (temporary release)rules 2004, which also came intoeffect on 12 November 2004. Therules automatically include defaultconditions for release of aprisoner:• That the person shall keep the

peace and be of goodbehaviour during release and

• That the person be of soberhabits during that period.

The regulations include a form tobe signed by the governor and theperson granted temporary release,which list the default conditions,and on which others may beincluded. The form is to bewitnessed, so that it amounts to acontract between the prisonauthorities and the candidate fortemporary release.

Will it make any difference? No

significant difference isanticipated, but the act doesmake the whole process moretransparent. In that way, thegranting or refusal of temporaryrelease complies more closelywith the fair proceduresrequirement in article 6 of theEuropean convention on humanrights.

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

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The Irish Women Lawyers’ Association is holding a half-day seminaron Saturday 22 January on Law and the elderly: an emergingpractice. Topics will include incapacity, enduring powers of attorney,the rights of the elderly under the European convention on humanrights, elder abuse, and the ethics of medical treatment of theelderly. The venue and other details will be notified on www.iwla.ie.

The Law Society has a newCouncil and a new officer

team, with Owen Binchy takingover as president for the nextyear. Binchy was deemedelected to the post after servingas senior vice-president lastyear, while Michael Irvine waselected senior vice-presidentfor 2004/05, with BrianSheridan as junior vice-president.

The following memberswere elected to the LawSociety Council in the recentballot, with the number ofvotes appearing after theirnames:1. Michael G Irvine 1,6472. Donald Binchy 1,5263. James B McCourt 1,4024. Gerard F Griffin 1,4015. Fiona Twomey 1,3366. Anne Colley 1,3197. Gerard J Doherty 1,3148. John P Shaw 1,3079. Simon J Murphy 1,30010. Orla Coyne 1,29211. Michael Quinlan 1,27512. James MacGuill 1,26313. Michelle Ní Longáin 1,24614. Philip M Joyce 1,18615. Daniel E O’Connor 1,10816. Colin Daly 921

The following candidates werenot elected and the number ofvotes received by them appearsafter their names:17. Marie Quirke 90818. Peter M Allen 89319. John P O’Malley 872

New officer team in place

20. Edward C Hughes 86421. TC Gerard O’Mahony 330

As there was only onecandidate nominated for eachof the two relevant provinces(Leinster and Ulster), therewas no election and thecandidate nominated in eachinstance was returnedunopposed, as follows: Leinster– Andrew J Cody; Ulster –Margaret M Mulrine.

Council members are electedfor a two-year term. The sittingCouncil members who wereelected last year are: BrianSheridan, Geraldine Clarke,Owen Binchy, John O’Connor,John D Shaw, Kevin O’Higgins,Michele O’Boyle, StuartGilhooly, James Cahill, MoyaQuinlan, Patrick Dorgan, JohnDillon-Leetch, John Costello,Thomas Murran, and JarlathMcInerney.

IRISH WOMEN LAWYERS’ ASSOCIATION

New president Owen Binchy with (from left) junior vice-president Brian Sheridan and senior vice-president Michael Irvine

Leading land law expertProfessor John Wylie has

called for the abolition of landlegislation dating back to theMiddle Ages. Addressing arecent conference onreforming land law andconveyancing, organised by theLaw Reform Commission,Wylie said that ‘it is staggeringthat there remains in force somuch legislation stemmingfrom the feudal age, and it istime that an independent state,which has been in existence forover 80 years, jettisoned thishistorical baggage’.

And he added: ‘Thepurchase of a home is atransaction of supremeimportance to most people.The day is surely approachingwhen members of the publicwill not understand why, in theage of the computer, aconveyancing transactionseems bedevilled withuncertainties, involves a hugepaper chase and seems to takean extraordinary time tocomplete’.

The conference focused onthe proposals outlined in theLRC’s recent consultationpaper on the subject.

Abolish‘feudalland law’,says Wylie

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Following the story on Cork’sdistrict courts in last month’s

issue, Cork district judge ConO’Leary has issued a statementto the Gazette on the effects oflate sittings in his court on hischildcare list. In it, he confirmsthe substantial increase in childcases coming before him andthe pressures this has caused.But he does not back the call bysome Cork practitioners for anadditional district judge to beappointed to Cork, suggestinginstead the possibleappointment of a regionalfamily judge.

O’Leary says that there were37 sittings after 5pm in his courtin 2002, 48 in 2003, and 32 inthe first six months of this year.There were nine sittings after6pm in 2002, 19 in 2003, and 11in the first six months of 2004.

And he adds: ‘These figuresdo not fully reflect the pressure.Sittings have commenced at9.30am or 10am. Criminal andcivil business have beencancelled or delayed to givepriority to childcare business …These late sittings areunacceptable and unfair to theparties, the advocates, the judge,and most of all to the children.They must affect the quality ofthe work by the advocates andthe judge, and of the evidencegiven by witnesses’.

Nature of the workThe judge points to the natureof childcare proceedings as oneof the factors in the problem.‘The nature of the work,including the potentialconsequences of the order,whichever way it goes, thevulnerabilities of the children,the apparent discrepancy ofresources and the creation of aperception of the court as aforum which is fair andresponsive requires facilitationof the most rigorous testing ofthe evidence’, he argues. ‘I am

Cork’s family law court problems: district judge O’Leary speaks out

aware that some people wouldhave the view that I createunnecessary work by regularreviews of troublesome cases. Iwill not make a care order andthen walk away and blame thehealth board for not delivering.Frequently, plans made by thehealth board run intobureaucratic or resourcedifficulties, or the child needsencouragement to takeadvantage of the resources that

total of 60 hours in court. Iestimate that it accounted for all11 sittings after 6pm in Octoberto December 2003, and eight ofthe 11 such sittings in Januaryto June 2004.

‘Sixty hours is about 14 daysin court time. This was on topof all the day-to-day work. Itwas, and felt, as if I had donemy day-to-day work to the endof July, and then sat for threeweeks in August to hear the

had medical commitments andcould not be replaced.

‘I do not see a solution to thedifficulties in hearing childcarecases in an additional permanentappointment to Cork oradditional service by a moveablejudge on a regular basis, aspresently in the Family Court,as being necessary. It may alsobe that unless the number ofjudges is increased, unexpectedlydramatically, the president mayfind that other districts havebigger problems and theproblems must be solved usingsuch personnel as are presentlyassigned to Cork.

‘One possible alternativewould be a permanentlyassigned regional family judge.This judge would do all thefamily work in districts 17, 18,19 and 20 and could organise histime according to need. I am notfamiliar with the demands ofdistricts 17, 18 or 20, so myreference to the grouping ispurely speculation’.

Interim solutionThe judge concludes bysuggesting an interim solutionto this on-going problem.‘I am giving thought to givingall childcare matters priority toall other business’, he says. ‘Theexample would be that I wouldcommence hearing a childcarecase on a Wednesday afternoon,and simply adjourn all scheduledbusiness on every day followingcommencement of hearing foras long as it takes, which may beup to a week, until the case isfinished. I would plan to sit until5pm to do this.

‘This may mean that otherbusiness has to wait oreventually be struck out, but Iwill not inhibit cross-examination (which is the slowpart) of witnesses who giveevidence in support of anapplication to remove a childfrom its parents’. G

are made available. The courthas put the child, usually with atraumatic history, in apotentially challenging situation,and to take no further interestin the child would beirresponsible’.

Extreme examplesAccording to O’Leary, adisproportionate number of latesittings after 6pm arise from avery limited number of cases.

‘The extreme example is thecase which ran from October2003 to April 2004. It took a

case, and then came back towork after a week. Previousyears had similar events, where aminuscule number of casescaused unacceptable latesittings.

‘The difficulty arises from thecombination of theunpredictability of such anexcessively long case, and theunavailability of moveablejudges to deputise at short (twoto four weeks) notice. Iunderstand that courts werecancelled in districts 16, 18 and20 in September, where judges

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Homosexual relationships donot fall within the scope of

‘family life’ under article 8 of theECHR, and the EuropeanCourt of Human Rights(ECtHR) has held that ‘the rightto marry guaranteed by article12 refers to the traditionalmarriage between persons of theopposite biological sex’ (S v UK,47 DR 274 [1986], ECtHR; Reesv UK [1986] EHRR 56). Thisinterpretation does not preventstates from extending marriageto members of the same sex orfrom instituting a civilpartnership scheme for same-sexcouples that may mimic therights and obligations ofmarriage in most respects. Civilpartnership is now available tomany gay couples throughoutEurope and in other parts of theworld and is expected to arrivein the UK and Northern Irelandin the course of 2005 with theenactment of the CivilPartnership Bill 2004.

Decriminalisation anddiscriminationHowever, the ECtHR hasaccorded respect for sexualorientation and identity short ofofficial recognition of same sexunions. Following Dudgeon v UK([1981] 4 EHRR 149, ECtHR),the law criminalising consensualhomosexual activity was declaredto be contrary to the conventionin Norris v Ireland ([1988] 13EHRR 186, ECtHR). TheStrasbourg court held that theprohibition of private,consensual homosexual conductwas an interference with a mostintimate aspect of private life,which was not necessary in ademocratic society. Thisreasoning was applied to the banon homosexuals serving in theUK armed forces, and both theinvestigations to identifyhomosexuals and the procedures

to dismiss them were held to beserious violations of article 8(Smith & Grady v UK, [1999] 29EHRR 493). The age of consentfor homosexual activity (18) wasreduced to equate with the ageof consent for heterosexualactivity (16) in the UK as aresult of Sutherland v UK.

Parenting and adoptionIn Salgueiro Da Silva Mouta vPortugal ([1999] 31 EHRR 47),the applicant was the father of adaughter born during hismarriage. He left the marriageand cohabited with a man andhis parental responsibility wasrevoked and given to his ex-wife.The court ordered that heshould disguise the fact that hewas living in a homosexualrelationship during contact withthe girl. The ECtHR found aviolation of both article 8(family life) and article 14(discrimination), and held thatdiscrimination on the basis ofsexual orientation was notpermissible under article 14.However, in Frette v France([2003] 2 FLR 9), the refusal bythe authorities to allow theapplicant to adopt a child washeld by the ECtHR, by amajority of four to three, to bewithin the member state’smargin of appreciation, in theinterests of adoptable children.The applicant alleged that the

refusal to allow him to adoptwas based on his sexualorientation and violated articles6, 8 and 14. Though it narrowlyrejected his application, thecourt made it clear thatparticularly weighty reasonswere needed to justify adifference in treatment ongrounds of sexual orientation.

Tenancy rightsThe issue of housing arose inKarner v Austria (24 July 2003).The applicant was thehomosexual partner of thetenant of the apartment wherethey cohabited for over fouryears, and, on his death, thetenant designated Mr Karner ashis heir. He applied to succeedto the tenancy under thedomestic law that permitted thisfor ‘life companions’, but theAustrian court held that this wasintended to apply only toheterosexual couples. TheECtHR held that he qualified asa life companion except for hissexual orientation and that thedefendant state did not offersufficiently convincing orweighty reasons to justifydifferentiating between differentsex and same-sex couples. Itfound a violation of articles 8and 14.

This case was followed by theHouse of Lords in Ghaidan vGodin-Mendoza ([2004] UKHL

30; [2004] 3 WLR 113), usingthe interpretative powers of theHuman Rights Act 1998 to extendthe protection afforded toheterosexual cohabiting couplesunder the Rent Act 1977 tosame-sex couples. They heldthat succession under the RentAct 1977 came within article 8,respect for a person’s home.They considered whetherdifference in treatment could bejustified on the basis that itpursued a legitimate aim and themeans employed to achieve thataim was proportionate to theaim, and concluded it could not.Rather than make a declarationof incompatibility under theHRA, they held that it waspossible to interpret the legisla-tion to include same-sex couples.

Despite the decision inKarner v Austria, the IrishResidential Tenancies Act, 2004does not include a same-sexcohabitee in the list of personseligible to elect to take over atenancy on the death of thetenant (section 39). However, anIrish court may follow theGhaidan decision in interpretingthe legislation to be compatiblewith the ECHR case law.

Protection for other rightsThe jurisprudence of theECtHR stresses that theprotection of rights must notdepend on formal status, such asmarriage, but must be effectivenonetheless to recognise therealities of the people’s lives,including families outsidemarriage and private livesinvolving homosexualrelationships. How far thedomestic law must go toaccommodate these realities is aquestion to be explored.

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

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HUMAN RIGHTS WATCH

Gay marriage is not a convention rightAlma Clissmann reports on developments in relation to the practical application of theEuropean convention on human rights

Cover story


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Canon law is the basic law of the Catholic Church and has come to prominence in recent times

in relation to child-abuse cases. But does it take precedence over civil law? Henry Murdoch

gets a belt of the crozier

The archbishop emeritus of Dublin,Cardinal Desmond Connell, is reportedas having said that canon law ‘enjoys thesame status in Ireland as foreign law’(Irish Times, 31 May 2004). However,

justice minister Michael McDowell is reported ashaving said on 20 October 2002 that canon law isviewed by the civil law of the state ‘as equivalent tothe laws of, say, the Presbyterian Church or theinternal rules of a sporting organisation’.

Speaking at a mass on 30 May to mark 160 yearsof the St Vincent de Paul Society in Ireland,Cardinal Connell said: ‘I note that the idea has gotaround that in Ireland the law of the church has thestanding of the rules of a private association. But asearly as 1925, the Supreme Court decided that inour jurisdiction the canon law enjoys the status offoreign law. It is recognised, therefore, as lawenacted by a sovereign independent authority. Thatsovereign authority resides in the Holy See’.

The views of the cardinal and the minister appearto be diametrically opposed, one indicating a highand important status for canon law and the otherindicating a lower and limited status. Who is right,or are they both right or both wrong?

Church and stateCanon law has had an important impact on thedevelopment of civil law, particularly in relation tomarriage, where the law of nullity developedhistorically from the principles of canon law. Whenthe Church of Ireland was disestablished, jurisdictionin matrimonial matters was transferred to the civilcourts. Indeed, the Matrimonial Causes and MarriageLaw (Ireland) Amendment Act 1870 required the civilcourts to adopt the rules and principles that theecclesiastical courts had followed.

However, the civil courts have over the yearsdeparted from those principles in the light ofadvances in psychiatry and psychology. Indeed, by

1887, the courts held that ‘the law of Ireland andEngland is not the same as the canon law on thesubject of impotence’ (A v A sued as B, 19 LR Ir403). The civil courts have accepted that the 1870act did not fossilise the law – ‘courts must recognisethat the great advances made in psychologicalmedicine since 1870 make it necessary to frame newrules which reflect these’ (Kenny J in S v S, SupremeCourt, unreported, 1 July 1976, cited in F(P) vO’M(G) [2001] 3 IR 1).

Canon law and civil law can be quite different,sometimes one socially ahead of its time andsometimes behind. For example, canon lawconferred legitimate status on an otherwiseillegitimate child whose parents marriedsubsequently, provided they were free to marry eachother at the time of the child’s birth. That principlewas not accepted by the civil law in Ireland until1931 in the Legitimacy Act.

On the other hand, in civil law, the distinctionbetween a void and a voidable marriage has workedwell in practice, whereas under canon law all invalidmarriages are void. A void marriage is one that neverhad legal effect and consequently is void ab initio –for example, where a party does not have the legalcapacity to marry. The validity of the marriage maybe challenged by any person with a sufficientinterest, even after the death of the parties. Avoidable marriage is one that is valid until it isannulled by a decree of nullity – for example, wherethe marriage has not been consummated. Thevalidity of such a marriage may be challenged onlyby one of the parties to the marriage during thelifetime of both.

And, of course, the difference between canon lawand civil law over recent years is probably bestexemplified by the decrees of nullity of marriage byan ecclesiastical court of the Catholic Church, whichhave no legal effect in the state. The Law ReformCommission declined in 1984 to recommend that

• Relationshipof canon lawto civil law

• O’Callaghan vO’Sullivan(1925)

• Canon law as‘foreign law’M

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Law Society Gazette

these decrees be given legal recognition, although itdid note that the grounds for annulment in the civilcourts ‘differ far less radically from those recognised

by the ecclesiastical courts of the Catholic Churchthan is perhaps generally appreciated’ (LRC 9,1984).

The red and the blackIn the 1925 case to which the cardinal referred,the Supreme Court held that canon law is foreignlaw, which must be proved as a fact and by thetestimony of expert witnesses according to thewell-settled rules as to the proof of foreign law(O’Callaghan v O’Sullivan [1925] 1 IR 90). So thecardinal is right. Well, partly.

The case arose from the removal of a parishpriest by the bishop of Kerry (see panel, nextpage). Importantly, both partiesin this case accepted that

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the relationship between the priest and the bishopwas subject to canon law. This is similar to twoparties to a contract accepting that their contract wassubject to Latvian law. In a subsequent Irish courtaction in relation to that contract, Latvian law wouldnormally be recognised by the court as the lawgoverning the contract and as foreign law that would

have to be proved by expert evidence as a fact. The cardinal is right in that, if a relationship at

issue is clearly subject to canon law, the courts willgive effect to it. Particularly if a line can be drawnaround the relationship between, say, a bishop and acurate in canon law that does not adversely affectany other party, the courts will probably give effectto the canon law, as it did in the 1925 case. TheHigh Court in Northern Ireland also did so in 1991in the legal battle between Bishop Cathal Daly andhis curate (now bishop) Pat Buckley (Buckley v Daly[1991] ITLR).

The minister is probably also right in hisassertion, as the laws of the state will frequentlyoverride private arrangements between parties thathave the objective or effect of avoiding therequirements of domestic or European legislation orindeed of the Irish constitution. Just by assertingthat your relationship is based on a particular lawdoes not render you immune from these

The 1925 case referred to by Cardinal Connell is a bizarre story of avery public conflict between a parish priest and his bishop, the likesof which we have not seen in recent times. Amazingly, the caseinvolved the High and Supreme Courts in Ireland, an appeal to Rome,and a petition to the English king.

Eyeries is a small village in the Beara Peninsula in West Cork. FrO’Callaghan was appointed parish priest there in 1904. By 1919, hewas in deep trouble with his parishioners, his curates and hisbishop. He accused his parishioners of being ‘exceedingly mean’, heclaimed to be entitled to a ‘better parish than Eyeries’, and he failedto provide for his two curates and would not let them reside in theparochial house.

He was constantly in battle with his curates over who would saymass and who would officiate at funerals and baptisms. He accusedone curate of abusing him ‘in scandalous language in the presenceof witnesses’. At one stage, he wrote to the bishop: ‘both, especiallyFr Dennehy, used their best energies to deprive me of all authority asparish priest, to deprive me of my living by depriving me of my rightto perform in person duties I am bound to perform in person and tosecure contingent emoluments, to spread contempt and fomenthatred against me in every part of the parish, to foster the hope thatrebellion against me would drive me out of the parish and that thevacancy thus made might be filled by Fr Dennehy’.

While his letters to Bishop O’Sullivan usually ended respectfullywith ‘I beg to remain, my lord, your lordship’s humble servant’, therewas nothing servile in the language he used: ‘I warn you that shouldyou go on and find a verdict against me, I will hold you as conspiringwith my enemies to beggar me by driving me out of the parish’.

A hearing took place at the bishop’s palace in Killarney on 11 July1919, following which a decree was made against Fr O’Callaghan bythe synodial judges requiring him to pay £45 and £59 to his curatesin respect of board and lodging denied to them. On the same day,the bishop wrote to Fr O’Callaghan and invited him to resign for tworeasons: ‘1) the hatred or deep-rooted dislike which your people, or aconsiderable number of them, have conceived towards you, andwhich cannot but render your ministry in the parish useless, if notharmful; 2) your maladministration of the temporalities of yourparish’.

Fr O’Callaghan would not resign and would not comply with thedecree: ‘I will bring against your decree not the doped evidence ofone witness; I will bring the whole parish. Pocket your decree orbetter burn it; you and your consultors have disgraced yourselves byissuing it’.

The bishop issued a decree of removal on 15 November 1919,which was subsequently confirmed on 6 January 1920, removing FrO’Callaghan from the office of parish priest. The decree said that theregrettable state of things in the parish ‘makes it incumbent on us totake remedial action in discharge of our obligation to provide for thegood of souls’.

He was granted a pension of £80 a year and reminded of hisindebtedness to his two curates.

Fr O’Callaghan sought to have the decree of removal declared bythe High Court to be illegal, unauthorised, ultra vires and void. Hefailed, and appealed to the Supreme Court. That court noted thatboth Fr O’Callaghan and his bishop accepted that ‘the laws,ordinances and canon laws’ of the church regulated their sacredoffices and their relations with each other. This was crucial to thesubsequent decision that canon law governed their relationship andthat, as ‘foreign law’, it was required to be proven as a fact by thetestimony of expert witnesses.

The Supreme Court held that: ‘We are not dealing with a foreigncontract. The contract is the appointment of the plaintiff as parishpriest – a contract made in Ireland between two Irish parties. It is aterm of that contract that the parties are to be bound by a foreignlaw regulating their respective offices’. The court held that the bishophad correctly followed canon law in removing the parish priest fromoffice.

Fr O’Callaghan took an appeal to Rome in July 1921, but this alsofailed. His last attempt was a petition in 1925 for special leave toappeal in forma pauperis (as a pauper) to the English king. This wasrejected by the Privy Council.

If Fr O’Callaghan were taking his case today, he could argue that,while his contractual relationship was indeed governed by canon law,he was entitled to procedures that comply with the now highstandards of natural justice and the European convention on humanrights.

BEATING THE BISHOP: O’CALLAGHAN v O’SULLIVAN

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Cover story


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One would expect that the oath in law, with its appeal to supernatural sanctions,was derived from canon law. Not so. Originally it was believed that any person whoswore falsely could expect the swift and certain vengeance of an omnipotent God,bound to intervene on the side of truth. And a sworn witness who remainedunharmed after testifying was presumed to have been adjudged by God to havespoken the truth (LRC 34, 1990, Report on oaths and affirmations). However,canon law was initially hostile to the reception of oaths, preferring to base itsdecisions on documentary and testimonial evidence (Silving, Essays on criminalprocedure [1964]).

requirements. You may agree to be bound by theinternal rules of the local sporting club, but thoseinternal rules cannot deny you your civil rights, suchas your right to natural justice.

This is particularly the case where other parties areinvolved. This has been acknowledged by the bishopof Killaloe, Dr Willie Walsh, who is reported assaying that confidentiality in the relationship betweenpriest and bishop, though protected by canon law,does not take precedence over civil law (Irish Times, 6September 2002).

Where canon law clearly governs a relationship,the courts will generally apply the canon law, as it didin Connolly v Byrne ([1997] IEHC 195). In thiswidely-publicised case, the court refused injunctiverelief to parishioners who sought to restrain thebishop from altering the sanctuary of CarlowCathedral. The defendants successfully contendedthat the property was held subject to canon law andthat they had the right under canon law to carry outthe alterations.

Curate’s eggIt is correct to say that canon law is recognised as‘foreign law’ by the Irish courts where it governs arelationship that is at issue. It would not be correct toimply that this gives canon law precedence over civillaw. If the relationship at issue is clearly governed bycanon law, it will generally be applied, as in Connelly vByrne. If no third party is affected, it may well be

applied, as in O’Callaghan v O’Sullivan. If a thirdparty is affected, it might not be applied. Dependingon the circumstances, canon law may have asignificant status and govern a relationship, as in the1925 case. In other circumstances, it may have nostatus and civil law may rule supreme, as is the casein ecclesiastical decrees of nullity of marriage. Thesame could be said in certain circumstances aboutthe laws of, say, the Presbyterian Church or theinternal rules of a sporting organisation.

So the cardinal and the minister for justice areboth correct – in part. A genuine curate’s egg.

Henry Murdoch is a barrister and author of the recentlypublished Murdoch’s dictionary of Irish law (2004),4th edition, and the CD-ROM and internet productMurdoch’s Irish legal companion (2004).

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SOWING WILD OATHS

Interview


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Owen Binchy is a man who knows howto keep his own counsel. In fact, that’swhat landed him in the spot he’s intoday. Many years ago (18 to beprecise), the president of the then

North and East Cork Bar Association, Tim Lucey,dispatched Binchy to Blackhall Place as a barassociation nominee to the Law Society’sConveyancing Committee, with the words: ‘Owen,now you’d be a good fellow to keep your mouthshut. Go up and see what they’re doing in Dublin’.So he did. The following year he was a Corknominee to the Law Society Council. And two yearslater, in 1989, he stood for Council in his own right.He’s been elected every year since.

The Law Society’s new president is managingpartner of the law firm James Binchy & Son, basedin Charleville, Co Cork. He is the fourthgeneration of Binchy to practise in the firm set upby his great-grandfather, and admits that there wasnever any question of him studying anything butthe law.

‘I didn’t have much of a choice’, he says almostwistfully. ‘If I didn’t become a lawyer, I would have

THE QUIE

Don’t expect any table-thumping from the Law

Society’s new president, Owen Binchy. There will be no

fuss, no ‘Binchy manifesto’. The man is just here to do

his job, he tells Conal O’Boyle

become a teacher or an engineer’. Binchy finished third in his class at UCD in

1970, behind distinguished solicitors MaryRedmond and former Law Society presidentLaurence K Shields. During the time he wasstudying for his BCL, he was apprenticed to the

family firm, qualifying in 1971 aged 21. He hasstayed with the firm ever since.

Binchy is probably unique among solicitors thesedays in that he actually admits to enjoyingconveyancing. ‘I am quite happy doing conveyancing’,he says. ‘I do a lot of family conveyancing. In family

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IET MANconveyancing, you are only dealing with the familyand you can do it at your own pace’.

He has been a regular CLE lecturer onconveyancing and other topics, and is one of theauthors of the Law School textbook onconveyancing, published by Blackstones. He has also

chaired the society’s Conveyancing Committee (aswell as registrar’s, education and finance), andreckons that at a push he could probably reciteverbatim the various clauses in the standard contractfor sale.

‘I enjoy law’, says Binchy, ‘which is maybe different

Interview


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from enjoying working at it, but the intricacies of itdon’t phase me. I love doing CLE lectures, standingup in front of a group of solicitors and seeing if I cantalk for a couple of hours. Then you get yourevaluation at the end and you see whether you havepassed or you have failed.

‘Otherwise, I turn up for my work on Mondaymorning and I go home on a Friday evening. Mybetter half says that I live for the law, but I don’t seeit’.

Certainly, the modern aspects of practising lawhold little appeal for the new president, who isrefreshingly blunt about the bane of his working life –the telephone. ‘Before the telephone, people used towrite to you or turn up at your office’, he says. ‘Nowyou have e-mail and fax, and people are sitting athome or in their cars in traffic jams and they knowthey can pick up the phone and reach you. Now, youmight be in the thick of a particular file whensomeone rings you, and you have to switch from thefile in front of you to their file, and when you’refinished with them, you have to switch back. It is themental gymnastics this requires that I think makes itmuch harder these days’.

In Binchy’s view, if the solicitors’ profession candeal with modern technology, it will have no problemdealing with the challenges posed by the PersonalInjuries Assessment Board and the CompetitionAuthority. ‘I think we are resilient’, he explains. ‘Wewill be able to deal with them all. I think that we haveto be able to deal with change, and I think we will.PIAB is just something that will be there. It will be anextra hurdle’.

And the possibility of licensed conveyancers? ‘Noproblem. First of all, they don’t have a compensationfund. Secondly, they have to be qualified.Conveyancing is highly complicated, and if you wantto train people, you need to train them up to ourstandard’.

Nor is he worried about what the CompetitionAuthority might recommend. ‘I don’t think we haveanything to fear. Genuinely, I think that we are highlycompetitive. I think that people can get cheap law,

they can get bad law, they can get good law – you getwhat you pay for. The competition is there alreadyand we have nothing to fear’.

In the face of all of these upcoming challenges,Binchy is confident about the future of the solicitors’profession. ‘I would say we are the oil in themachinery’, he argues. ‘If we work and we gel, thewhole system works. You may have differentmachinery over the years, but at each stage we havebeen the oil that enables it to work’.

As president, Binchy says he will be doing his bestto inform the profession of the efforts that the LawSociety is making on their behalf in the face of whatcan sometimes seem to be an unrelenting pressurefrom outside forces. However, he is realistic enoughto recognise that there are limits to what can beachieved.

‘Sometimes it seems that the profession has aperception that we can somehow change the law, thatwe can stop the tide coming – but if the governmentdecides to change the law, that’s it. We can put ourpoint of view across, and we can ask our members toput the point across, but if the government has amajority in the Dáil and decides to do something, wemust be prepared to accept it.

‘There is no point in making noise if you don’thave to, and I certainly wouldn’t. To quote solicitorand former Law Society Council member HughO’Neill’s great catchphrase, You catch more bees withhoney than with vinegar’.

This is almost certainly going to be a tough year tobe president of the Law Society of Ireland, but OwenBinchy will tackle it in his characteristically quiet andunderstated way.

‘I’m going to give it my best shot’, he says. ‘It’s achallenge. As president, you don’t change the world.I’m here to do the job’. G

Occupation: Solicitor (admitted to roll of solicitors in 1971). Managing partner ofthe law firm James Binchy & Son, based in Charleville, Co Cork. Three partners inthe firm, including wife Eimear, and six support staff.Education: Nuns and Christian Brothers, Charleville; Clongowes; third level:University College Dublin (BCL and LLM).Family: Married to Eimear, a solicitor. Three sons – James, Kieran and Michael –and a daughter, Deirdre.Law Society career: SLA nominee to Council in 1987. First elected to Council in1989. Junior vice-president 1999, senior vice-president 2003, president of theLaw Society of Ireland 2004/05. Has chaired the following Law Societycommittees: conveyancing, registrar’s, education and finance.Hobbies and interests: Golf (when his back holds up), hill walking, local history,bridge and archaeology.

FACT FILEOWEN BINCHY

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A£230 million claim for special damagesagainst the publishers of the FinancialTimes, based on a collapse in shareprice at Collins Stewart plc, was struckout as unsustainable in October. The

decision was greeted with relief not just by theFinancial Times, but by the media in general, fearfulof the chilling effect of large libel awards.

The background to the FT article is dramatic: inmid-summer 2003, James Middleweek, an analystwith CS Ltd, prepared a draft report to theFinancial Services Authority alleging regulatorybreaches by Collins Stewart Group. CS plc is afinancial services group listed on the London StockExchange. Its main trading group is CS Ltd, ‘one ofthe leading independent UK stockbrokers’. Whathappened next is disputed: CS says that JM’s adviserssuggested that he would suppress the draft report inreturn for settlement of an employment claim – theyconsidered this a blackmail attempt, dismissed JMimmediately and reported the matter forinvestigation by the police. They also reported theallegations to the FSA, which instituted a formalinvestigation, and they asked a law firm to conductan independent investigation.

Middleweek denied blackmail. His advisers, hesaid, had indicated that he would not lodge the draftreport provided an internal investigation into hisconcerns was made, and as part of the settlement ofhis employment claim. He instituted employmentproceedings and annexed a copy of the report to the

No such thing as

Bad publicity can harm the share price of listed companies, but a novel

attempt to recover compensation for such a loss recently failed in the

English High Court. Pamela Cassidy inspects the damage

Financial Times: FTCollins Stewart Tullet plc: CS plcCollins Stewart Ltd: CS LtdCollins Stewart Group: CSJames Middleweek: JM

FSA to his claim form.The FT was just one of many papers to pick up the

story. On 27 August, in an article entitled ‘Reputationson the line at Collins Stewart’, the paper reported theallegations of regulatory failure by JM, who wasdescribed as ‘not ... a rank outsider but an analyst whohas been with the firm for seven years, coveringCollins Stewart’s core area of smaller companies andwho never missed receiving his annual performancebonus’. The paper also reported the CS claim ofattempted blackmail and that it had been cleared ofwrongdoing by an independent investigation.

The share price of CS collapsed in the four daysfollowing publication, dropping 15% ‘against abroadly positive market’, a drop that equated to areduction in CS plc’s market capitalisation ‘ofapproximately £128 million’. CS hit back hard andfast: their solicitors wrote to the FT on 31 Augustdemanding an apology and compensation for the dropin share price. The following day, CS issued a libelwrit and posted the solicitors’ letter on their websitewith an accompanying statement categorically denyingwrongdoing and publicising the threat of proceedings

• Damages indefamation

• Company lawactions

• Marketcapitalisation

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and the £128 million claim.By August 2004, the CS estimate of market

capitalisation loss was £230 million. This was coupledwith an additional special damage claim for £38million.

All of which makes the £1.5-million libel awardagainst Tolstoy Miloslavsky, which fell foul of theEuropean Court of Human Rights in 1995, lookpaltry. No wonder the fourth estate was collectivelybiting its nails.

Remote viewingA claim for special damages is rare in libel actions, andin previous cases reliance on a fall in share price wasallowed only as an indication of a general loss ofgoodwill underlying a claim for general damages.Special damages are confined to actual financial lossthat is not too remote and which can be quantified.General damages are awarded for distress (notapplicable in this case, as corporations cannot recoverfor injury to feelings), harm to reputation and as ameasure of vindication. The current ceiling for generaldamages in England is £200,000 (Reed & Anor vNewcastle Borough Council [2002] EW HC 1600 (QB),paras 1547-1551).

The FT applied to the High Court to strike outpart of the CS claim in special damages. That claimwas in two parts: first, a claim for reduction in marketcapitalisation estimated at £230 million and, second, aclaim for direct loss of a more usual kind, includingidentifiable lost revenues and payments to PR agentsto mitigate the effects of the damaging publicity, thetotal estimated at £38 million and continuing. Thestrike-out application was confined to the marketcapitalisation claim.

The strike-out application was heard in the EnglishHigh Court in October 2004. As with much litigation,the landscape had changed considerably since the firstangry words were fired across the bows of the FT,which is the Pearson Group flagship. The policedecided not to pursue the blackmail allegation againstJames Middleweek, the FSA closed its inquiry, sayingno action would be taken, and Collins Stewart Groupreached a compromise with him, each sidewithdrawing its claims.

English law on special damages in defamationactions can be simply stated: special damages that arenot remote must be capable of being quantified.Human rights jurisprudence has added two

requirements: the method of assessing damages mustbe certain and the award must be proportionate (Tolstoyv UK [1995] 20 EHRR 442).

With these considerations in mind, the judgeassessed the pleaded case on market capitalisation,which was this: ‘Measured against the stock-market performance of two closecompetitors, CS plc’s share price should have risen by24.65% (being the mean of the percentage rise of thecompetitor’s share prices over the period) rather than fallenby 2.8%. Accordingly, in order to keep pace with these closecomparators, CS plc’s share price should have risen by27.45%, making its share price 567p at the close of businesson 26 March 2004. (For the avoidance of doubt, CS plc’sshare price had tracked those of the competitors over theprevious year to a correlation figure of .9334 and .9595respectively.) This represents a loss in CS plc’s potentialmarket capitalisation since 26 August 2003 ofapproximately 122p per share, or £230,526,320, calculatedon an issued share capital of 188,956,000 shares. This, theyclaimed, is the direct measure of the change in the market’sassessment of the net present value (NVP) of future earningsof the company. The figure is arrived at by analysts andinvestors estimating the future earnings of CS plc and thendiscounting those figures at CS plc’s estimated weightedaverage cost of capital (WACC) to produce an NPV. Thetheory and methodology involved is well recognised’.

CalculationsThe judge, however, was not persuaded that the NPVmethodology had actually been applied, and even if ithad, that there could be a ‘certain’ mathematicallycorrect method of assessing the basis for share pricemovement:‘Nowhere in the present statements of the claimants’ case issuch a calculation made in relation to CS plc or either of thecomparators. And it is clear that whatever interpretation

Common law: special damage in defamation is defined as any material loss that isnot too remote and is capable of being estimated in financial terms. Where theplaintiff wishes to claim special damages, he must be able to give particulars ofhis loss or he will not be permitted to lead evidence of such loss – Ratcliffe vEvans ([1892] 2QB 524).

Court of Human Rights: legal rules concerning damages for libel must beformulated with sufficient precision and awards must bear a reasonablerelationship of proportionality to the injury to reputation suffered – Tolstoy v UK([1995] 20 EHRR 442).

DAMAGES IN DEFAMATION

‘The judge

decided that

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Defamation


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may be put upon share prices published by the London StockExchange’s Historic Price Service, those prices are not saidby the claimants to be arrived at, as a matter of fact, bysuch a mathematical calculation. Thus there is no answer tothe defendant’s question 4.7. That question was: “Of ... themarket’s assessment of the net present value (NPV) offuture earnings of the company. Please provideparticulars of how the NPV ... is calculated, estimatedand/or arrived at”. There could be no answer. The marketassesses figures only metaphorically. So far as the claimants’pleading is concerned, the reasons why a share is traded at aparticular price in any given deal are unknown, or, at best,matters of conjecture … in general, I take it that a marketprice is the product of numerous decisions by people whocannot be asked what their reasons were for trading, or,which may be just as important, for deciding not to trade.

‘I accept that market capitalisation calculated in thatway is a concept which is very well recognised and has manyuses. The question is whether it can be used in anassessment of damages, and in that context it has achievedvery little recognition, as the cases show ... When theclaimants plead that the alleged shortfall between CS plc’sactual market capitalisation on 26 March 2004 comparedwith its potential market capitalisation on that date, ie£230.5m, “is the best available reflection of the loss infuture revenues which the second claimant has suffered and

will suffer”, that is a proposition which the court is invitedsimply to take on trust. No indication is given that therewill be any evidence or authority to establish it. Moreover,that proposition it is not a statement of fact. This is acceptedimpliedly by the claimants when they say that it is a matterfor expert evidence. Rather, it seems to me that theclaimants’ proposition as to the shortfall in marketcapitalisation is, if anything, a proposition of law.

‘The court can do no more than speculate as to thefactors which have influenced the fluctuations in the marketcapitalisation in CS plc since August 2003. Whatever thosefactors may be, it is plain that they are not confined to thepublication of the words complained of’.

He concluded that the suggested measure ofdamages was far too uncertain to be acceptable as alegal basis for assessing damages: ‘The suggested measure of damages would involveinvestigation of the business of not only the claimants, butalso of the two comparators, for a period commencing sometime before the publication complained of until the date ofassessment of damages, which is unlikely to be for at leastanother year. And in the pre-publication period, the shareprice was fluctuating widely’.

Share and share alikeThis was not the only difficulty faced by the two CScompanies. Apart from the problem of establishingwhich company (if not both) had been libelled (thepaper denied that the article referred to CS plc), theyalso faced the complex reflective loss principle, which(simply stated) prevents a shareholder from suing inhis capacity as shareholder in respect of a loss to thecompany and conversely prevents a company fromsuing for loss caused to the shareholder. If the losssustained by the shareholder is merely a reflection ofthe loss sustained by the company, the shareholdercannot recover. The complexity was compounded inthis case by the fact that shares in CS plc are not anasset of that company, and neither are they an asset ofCS Ltd. The principles of reflective loss are broadlysimilar in Ireland (being derived from the rule in Fossv Harbottle), and the main case relied on by theEnglish High Court (Prudential Assurance Co Ltd vNewman Industries Ltd (No 2) [1982]) was approved bythe Supreme Court in O’Neill v Ryan ([1993] ILRM557 at 570).

In striking out the claim for share price collapse,the judge decided that not only was marketcapitalisation too uncertain a tool to become a legalbasis for assessing damages, but that it had noapplication to the facts because ‘each claimant isasking the court to measure damages suffered by itselfby reference to a change in the value of property, thatis its shares, which is owned by neither of them’. Theremaining live issues in the case will be tried in April2005. These issues are, first, the viability of thenewspaper’s defence of privilege, second, (if privilegefails) the remaining special damages claim of £38million and, third, general damages.

Pamela Cassidy is a partner in the Dublin law firmBCM Hanby Wallace.

G

FT editor Andrew Gowers welcomed the ruling, describing the claims as ‘manifestnonsense and untenable in law’. He added: ‘It would be a very dark day forjournalism and for a free press if publishers were to be held liable for a drop inshare price following publication of an article reporting on company events’.A spokesman for Collins Stewart Tullet said the decision would ‘have no bearingon our determination to pursue our claim’. He said that there remained a claim of£38 million, which represented the quantifiable amount of lost business andprofits from the article.

WAR OF WORDS

Less than ten years ago, the Dayton peaceagreement signaled the end of the war inBosnia and Herzegovina (BiH) and dividedthe country into two entities: theFederation of Bosnia and Herzegovina and

the Republika Srpska. Since the war, the federationhas principally been populated by Bosnian Muslims(Bosniaks) and Croats, while the Republika Srpskahas principally been populated by Serbs. Tocomplicate matters further, there is one small part ofthe country that does not fall within either entity,namely Brcko District. Under the final award of theBrcko Arbitral Tribunal for the Dispute over theInter-Entity Boundary Line of 1999, this part of thecountry is autonomous and it is to be held ‘incondominium’ but not under the authority of eitherentity.

The Bosnia and Herzegovina parliament consistsof two houses, the House of Peoples and the Houseof Representatives. The House of Peoples has 15

TEN YEARSA decade ago, civil war convulsed Bosnia and Herzegovina, but now things

are looking up for that beleaguered country as it prepares for a future in

Europe. Lynn Sheehan reports on the work being carried out to reform public

administration there, including an overhaul of the judiciary

• Post-conflictreconstruction

• Reform of thejudiciary

• Possibleaccession tothe EU

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delegates – five Serbs, five Croats and five Bosniaks.The House of Representatives has 42 members, two-thirds of whom are elected from the federation andone-third from the Republika Srpska. Their role is toadopt the state/BiH budget, to elect the governmenton the proposal of the presidency and to adopt lawswithin their competence.

The state/BiH presidency consists of three peopleelected by direct election for a four-year term. TheSerb member of the presidency is elected from theRepublika Srpska and the Croat and Bosniakmembers from the federation. They rotate everyeight months based on their ethnicity. Similar to thestate/BiH level, the two entities each have abicameral parliament and a president.

Such a complex political structure does notfacilitate speedy and efficient decision-making, whichsometimes leads to negative effects on the economy.BiH is going through a transition process from acentrally-planned economy to a market economy, a

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It seems impossible to understand the situation inBosnia and Herzegovina without a grasp of theacronyms. These are the main ones: • BiH: Bosnia and Herzegovina• OHR: Office of the High Representative (the chief

civilian peace implementation agency in the country).The high representative is currently Paddy Ashdown

• PIC: Peace Implementation Council, a group of 55countries and organisations sponsoring the peaceprocess

• IJC: Independent Judicial Commission, the leadagency for judicial reform in the country

• ICTY: International Criminal Tribunal for the FormerYugoslavia

• HJPC: High Judicial and Prosecutorial Council,responsible for the appointment of judges andprosecutors and also for disciplinary proceduresagainst the judiciary

• SAA: stabilisation and association agreement withthe European Union

• SFOR: NATO’s military stabilisation force in theregion

• EUSR: EU special representative (currently PaddyAshdown).

process that started prior to the 1992-1995 war. Theunemployment rate for the whole of BiH is over40%. However, it is widely believed that there isquite an active grey economy and that the number ofpeople who are actually not working is probably lessthan this.

Tumbling diceThe reform of the judiciary in any country intransition is not an easy task. Under thesocialist/communist regime, there was little or noneed for judges to be independent decision-makers.This led to a situation where the public at large hadlittle faith in the judiciary and suspected thatmembers of the judiciary were corrupt. This mistrustcontinued even after the regime ended. In addition,this mistrust was compounded in the post-war period,as the public often believed that judges wereappointed on ethnic or political grounds, or, to put itanother way, appointed on the basis of how muchthey could be trusted to be loyal to their own ethnicgroup. The reform process, therefore, was not simplyabout actual structural reforms but also aboutchanging the public’s perceptions of the judiciary.

professional training for judges and prosecutors.The laws in relation to judicial training centers wereimposed by the high representative in May 2002 inaccordance with ‘the Bonn powers’ (see paneloverleaf).

New laws were also prepared by the IJC in relationto the legal profession in each entity and, again, wereimposed by the high representative in May 2002.These laws define the practice of law and set out thegeneral obligations of lawyers towards their clients.They also set out the overall principles to be coveredin the codes of ethics to be adopted by the barassociations (there are two in BiH, one in each entity)and they provide that a lawyer registered in eitherentity may practise before the courts in each entity.

In 2002, the IJC proposed a reinvigorated strategyin relation to strengthening the judiciary and thisstrategy was accepted by the Peace ImplementationCouncil (PIC) steering board in February 2002. Thenew strategy involved the setting up of High Judicialand Prosecutorial Councils (HJPCs), one in eachentity and one at state/BiH level, which would beresponsible for the appointment of judges andprosecutors and also for disciplinary procedures

Since the signing of the peace agreement, asignificant number of reforms have been introducedto strengthen the judiciary and change its publicperception. In 2001, the Independent JudicialCommission (IJC) was granted its first mandate bythe high representative and was established as thelead agency for judicial reform in BiH. The IJC wasinvolved, in particular, in the drafting of new codesof civil and enforcement procedures and inpreparing the laws creating judicial traininginstitutes in each entity in order to provide

ALPHABET SOUP

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RS AFTERLynnSheehan,with MostarBridge in thebackground

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against the judiciary. The strategy also involved a re-selection process for all judges (excluding MinorOffence Court judges) and prosecutors, which wascarried out by the HJPCs, assisted by the IJC.

This meant that all judicial positions were re-advertised and all sitting judges and prosecutors wereforced to re-apply for their existing positions. Priorto the re-selection process, the IJC carried out areform of the court structure that led to a significantreduction in the number of courts and judgesthroughout BiH. In June 2004, once the re-selectionprocess had been finalised, the three HJPCs weremerged into a single HJPC at state/BiH level.Currently, the HJPC is comprised primarily of

national members with a number of internationalmembers and advisors.

Round and aroundThe restructuring of the courts undertaken by theIndependent Judicial Commission was quite acomplicated process because of the different courtstructures at each of the different levels. There aretwo courts at state/BiH level – the ConstitutionalCourt and the Court of BiH. At an entity level, thelowest level of courts are Municipal Courts in thefederation and Basic Courts in the Republika Srpska.The Cantonal Courts in the federation and theDistrict Courts in the Republika Srpska form themiddle tier, and at the top level in each entity is aSupreme Court. Both entities also have aConstitutional Court. In Brcko, there are twocourts, the Brcko Basic Court, which has all first-instance jurisdiction, and the Brcko Appellate Court,which hears all appeals. The Court of BiH was givenappellate jurisdiction over cases arising from Brcko.

It is, at times, quite difficult to work out thejurisdiction of the various courts, not least becausethe jurisdiction of each of the entity courts does notmirror the other. For example, the federationSupreme Court was given limited first-instancecriminal jurisdiction in 1999, but this was never thecase in the Republika Srpska. In addition, contraryto what is commonly perceived, the Court of BiH isnot at the pinnacle of the BiH judicial hierarchy. Ithas administrative jurisdiction over decisions ofstate/BiH-level institutions and jurisdiction overcrimes defined by BiH-level legislation. It also hasappellate jurisdiction over its own decisions. It doesnot have appellate jurisdiction over decisions of theentity courts.

Exile on Main StreetThe political climate in BiH appears to be changingand there is more of an emphasis on Europe andmembership of the EU as opposed to theimplementation of the Dayton peace agreement. Thisis clearly illustrated by a number of events in thepast year.

In late 2003, the European Commission publishedits feasibility study for BiH (www.delbih.cec.eu.int/en/index.htm). The study outlined 16 areas in whichBiH has to make significant and rapid progress in2004, including co-operation with the InternationalCriminal Tribunal for the Former Yugoslavia, theestablishment of a more effective publicadministration and judiciary, the proper functioningof a directorate for European integration, thedevelopment of a single BiH space as opposed totwo separate economic spaces, and theimplementation of laws in relation to competition,public procurement and public broadcasting.

In the course of the feasibility study, it was notedthat the existence of ‘the Bonn powers’ do not makeit impossible for Bosnia and Herzegovina to enterinto stabilisation and association agreement (SAA)negotiations. However, according to the study, the

The Dayton peace agreement provided for the establishment of the Office of the HighRepresentative (OHR), which is the chief civilian peace implementation agency in BiH.The mandate of the high representative, currently Paddy Ashdown, is to act as thefinal authority to interpret the peace agreement, although his mandate has beenfurther elaborated upon by the Peace Implementation Council (PIC). This is a group of55 countries and international organisations that sponsor and direct the peaceimplementation process. The OHR is funded by the PIC. Its budget for 2004 was€21.1 million. In addition to being the high representative, Paddy Ashdown is also theEU’s special representative to Bosnia and Herzegovina.

The high representative has the authority to impose laws at state/BiH and entitylevel under certain circumstances and in certain conditions. He also has the authorityto remove officials at all levels from office, again under certain circumstances and incertain conditions. These powers were granted to the high representative during ameeting of the PIC in December 1997 and are referred to as ‘the Bonn powers’.

Paddy Ashdown recently made use of these powers when, earlier this year, heremoved 60 people from office. Among those removed were members of the SDS, thepolitical party co-founded by wanted war criminal Radovan Karadzic. This action was inresponse to a communiqué issued by NATO in June, which stated that NATO wasconcerned that BiH, and particularly ‘obstructionist elements’ in the RepublikaSrpska, had failed to live up to their obligation to co-operate fully with theInternational Criminal Tribunal for the Former Yugoslavia, including the arrest andtransfer to the tribunal’s jurisdiction of war crime indictees, a fundamentalrequirement for the country to join the Partnership for Peace. At the NATO summit,BiH was denied membership of the PfP.

GIMME SHELTER

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country will have to be in a position to show that thepowers are generally declining in relevance and thattheir use occurs less within core SAA areas (such astrade, the single market, and justice and home affairs)in order for it to be able to enter into SAAnegotiations. In other words, it must be in a positionto demonstrate that ‘the Bonn powers’ are becomingredundant and that the high representative isbecoming at most a facilitator and mediator.

Waiting on a friendAnother interesting development is NATO’s decisionto pull the stabilisation force (SFOR) out at the endof this year. This is because NATO believes that thesecurity situation in the country has evolvedpositively. The EU is to provide a follow-on forcecalled EUFOR from this month on. The EU-ledforce will have a robust mandate and resourcessimilar to those of the departing SFOR. It will takeover the Dayton mandate of providing a safe andsecure environment in BiH. EUFOR will also assistin the country’s integration into Europe and help theBiH authorities fight organised crime.

Finally, in terms of recent events that illustrate anew departure for Bosnia and Herzegovina, the highrepresentative appears to be placing more and moreemphasis on his role as special EU representative(EUSR) as opposed to his role as high representative.In July of this year, Ashdown launched the new EUspecial representative website, which can be accessed

at www.eusrbih.org. At the launch of the new website,he stated that: ‘BiH’s destiny lies in Europe, as a member,one day, of the European Union. As we move away fromthe era of Dayton and into the era of Brussels, the EU’sengagement in BiH is growing more and more significant.My role as EUSR is evolving at the same time’.

The recent developments are positive moves forBosnia as it prepares for a future in Europe andleaves behind its status as a post-conflict country. Asit proceeds along the course to Europe, it isanticipated that it will attract foreign investment aspotential investors leave behind certainmisconceptions about it and begin to view thecountry as an exciting and interesting place to invest.As the EU membership negotiations proceed, itshould also be easier for its citizens to travel toEurope, where new opportunities are likely toemerge and, hopefully, where valuable alliances andassociations can be created and maintained.

It is only ten years since there was armed conflictin Bosnia and Herzegovina and the future lookedincredibly bleak. Ten years on, the future is lookingincredibly better.

Lynn Sheehan is a solicitor with the Cork law firm RonanDaly Jermyn, who is currently working at the secretariatto the High Judicial and Prosecutorial Council inSarajevo. Any views expressed are the author’s own andshould not be interpreted as representing the views of theHJPC or any other body or organisation.

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Technology


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We are all aware of how the historyof mechanical printing led to thefirst copyright laws. Copyrightlaws continue to operate as aresponse to developments in

technology. The 1710 Statute of Anne, the firstmodern copyright law, both provided a legalprotection for rights owners and was aimed at ‘theencouragement of learning’, a point reflected in manycurrent copyright laws. This point is particularlyinteresting in terms of new digital libraries and newacademic electronic publishing models.

The traditional copyright chainNew technologies, such as new copying machines anddevices, digital and electronic content, and theinternet, have made copying and the instantaneousdistribution of copyright works much easier. Moderncopies can be as good as the original. The internet hasbeen described as the biggest copying machine in theworld, and it is getting bigger. The law continues torespond to the rapid technological developments ofthe digital age. There have been varying reactions tothese new technologies and how they have broken thetraditional copyright chain, thus exposing rightsowners (see panel, page 24).

One reaction is new copyright laws encompassingexplicit protection for new copyright distributionmodels such as on-line and wireless methods.Examples of the legal reaction to the breaking of thetraditional copyright chain include the WIPO treaties,the EU Copyright directive and the Digital MillenniumCopyright Act (DMCA) in the United States. Thereare also new and expanding definitions contained inmany of the modern copyright laws.

New technologies are also coming to the aid ofrights owners, most particularly in the form ofrecognising technologies assisting the identification ofcopyright works, terms and conditions of distributionand use, as well as separate technologies that canpackage copyright content and restrict its use to lawfulusers. New copyright laws provide legal protection fornew digital rights management (DRM) technologies.These are specifically rights management information(RMI) and technology protection measures (TPM). Inaddition to new laws and new technologies, there arealso new collection or collective management societies

New technologies have made the copying and

instantaneous distribution of copyright works much

easier, and the law continues to respond to these

digital-age developments, writes Paul Lambert

COPYRIGHTS A

(CMS), such as reprographic collection societies, thataim to protect rights-owners.

Electronic publishingClearly the digital and on-line environments presentanother great challenge for the publishing industry(like many other industries, such as music). Arguably,the electronic publishing industry has been slow toaccept these technological changes and thecommercial roll-out of electronic publishing has beenslower than had been originally predicted. One reasonrelates to the traditional copyright chain. Electronicpublishers share the same concerns as the music andfilm industries as regards protecting their published

• Protection ofcopyright

• Electronicpublishing

• Legislativereactions

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S AND WRONGS

content and intellectual property rights. Thetraditional print or publication chain is now beingredefined by different electronic distribution andmediation chains. These are a reaction to howpublishers were previously exposed by the breakdownof the traditional copyright chain.

Some of the many issues that arise with these newmodels include:• Access to cultural heritage and current information• Newspaper and TV on-line models • On-line publishing of books, journals, articles• Electronic databases• Libraries, museums and art galleries and electronic

publishing• Digital libraries and electronic copies and

electronic publishing• Journalists (and others) circumventing editors as

intermediaries (for example, blogs). The samepoint is made about many new indie music bandswho can distribute their music more easily and incompetition to the multinational record labels

• Tracking and DRM.

Electronic publishers also need to obtain a licenceand/or assignment to begin publishing workselectronically. Such permissions will need to be moreexpansive than heretofore, given the new andextended use of the copyright works.

Many modern published works can also bedescribed as multimedia works that contain a bundleof rights. Text, images, moving images, spokenwords, music, and so on, include many forms ofcopyright as well as many forms of intellectualproperty rights. This increases the complexity oflicensing, assignments and rights clearing. It alsomeans that other issues need to be considered, suchas trademarks, electronic contracts, requirementsregarding information society services and priorinformation requirements when providing electronicand on-line services. Electronic publishers shouldalso be aware of the possibility of business methodand software patents.

New modelsThere are growing numbers of e-books and e-journals available in the marketplace. There arenumerous electronic newspaper models. Thesenewspaper models have now successfully expanded tothe mobile phone environment, particularly in placessuch as Japan.

In the developing electronic field, we seeexperiments with different licence and fee models.Consumers are also changing their habits – anexample is the ability to purchase smallerpersonalised amounts of data or information,sometimes directly from the author.

One of the issues affecting the electronicpublishing industry, as well as industrial copyrightusers and CMS, is the fact that developingtechnologies permit new and unenvisaged uses forcopyright works. For example, does a traditionalpublisher have permission to use existing publishedcontent in new digital formats? This is an area that isbeginning to be litigated. Similar issues have alsobeen litigated previously. In Australia, for example, aphotographer was able to sue for a commissionedphoto when it was used for a new uncommissionedmagazine issue (the ACP case). Overlapping withthese arguments are issues in relation to implied

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licences, such as the ability of the customer orcompany to make (or have made) amendments to acommissioned tourist brochure (the Pasterfield andBord Fáilte cases, for example). In terms of electronicpublishing, we see how in Tasini (freelance journalists)an original licence did not permit a new electronic use.Therefore, a new agreement (and negotiations foradditional payments) may be necessary. Equally,freelance photographers were able to prevent laterunenvisaged uses in Ryan v Carl Corp. Electronicpublishers must grapple with these contract andlicensing issues.

Technical protectionCopyright and technical security protections arecrucial to the continued development of electronicpublishing. (So too are software programs that enablee-commerce transactions and payments.) One of thereactions to the breakdown of the traditional copyrightchain includes technologies and laws enabling rightsmanagement information (RMI) and technicalprotection measures (TPM). RMI can be definedbriefly as electronic fingerprints or data, while TPMcan be referred to as technical use and use-preventionmeasures. A more technical definition of RMI comesin article 12 of the WIPO copyright treaty (WCT),which states that RMI is information that identifies thework, author, owner of any right in a work and canalso identify terms and conditions of use.

The origins of RMI and TPM can be traced back tothe 1996 WIPO treaties, the EU Copyright directive andthe Digital Millenium Copyright Act in the US. Thedeployment of RMI and TPM while protectingcopyright content also permits new copyrightdistribution and payment models, including electronicpublishing. Some examples of TPM (some of whichcan be used by electronic publishing) include anti-copydevices, access control devices, electronic envelopes,proprietary viewer software, encryption codes,passwords, watermarking, fingerprinting (userauthentication), metering, monitoring/tracking usageand payment systems.

However, there are some continuing issues in termsof a broader roll-out of commercially successful DRMsolutions, such as international standard(s) agreementand standards setting organisations, technicalcircumvention of TPM, the problem of equipmentmanufacturer adoption, and related calls for mandatingequipment laws (for example, the Hollings Act and themore recent draft Inducing Infringement of CopyrightsAct, both in the US). Other issues relate tointeroperability and the forms of metadata uses in theDRM products. A recent example is how the new

copy-protected CD of the US band Velvet Revolvercannot be used on the iPod.

However, some commentators make the point thatelectronic publishers do not face the same file-sharingthreats as the music and film industry because of theway in which their works are used – at least not yet.However, when they have to rely on DRM, the samedoubts exist as face the music industry followingElcomsoft and the DeCSS case in the Netherlands andthe file-sharing case (under appeal) in Canada, wherethe music industry lost. There is also the more recentcase in the US where the music industry lost a caseagainst an ISP-type entity. The court felt that it wouldbe an extension of copyright laws to fix liability onISPs for activities that were beyond their control,namely file sharing by end-users. Clearly, the legaland practical success of DRM is not yet assured.

Wired and wirelessIn considering new technologies, electronicpublishing and the electronic distribution of copyrightworks, we must now think in terms of the wiredinternet and wireless internet. There are predictionsthat soon 50% of electronic-commerce typetransactions will occur through the wireless internet.The i-mode mobile service has over 43 millionsubscribers and 80,000 content sites. Newtechnologies permit new forms of electronicpublishing and exploitation, which in turn permitsnew business models and new payment and billingmodels. In addition to the copyright and intellectualproperty rights issues, there are significanttransactional legal requirements in the new electronicpublishing world. Some of these are already present inthe wired e-commerce world, such as priorinformation requirements placed upon serviceproviders, including electronic publishers. In addition,issues surround models, security, wireless spam,privacy, shut-off and blocking, liability,evidence/retention, health, competition, wirelesscontracts, content regulation, terms and conditions,and consumer information. There are many examplesin on-line obligations contained in e-commerceregulations, such as:• When an information society service (ISS) can be

provided• General ISS prior-information requirements• Commercial ISS prior-information requirements• Information requirements regarding cancelling

contracts, and• Information on procedures for placing electronic

orders.

There are also separate internet service provider (ISP)defences, namely, mere conduit, caching and hosting,which need to be considered and which will berelevant to some electronic publishers.

Digital librariesThe topic of digital libraries is new and applies toacademic libraries and public lending libraries alike.Some of the issues and considerations surrounding

The main functions of a CMS are to protect rights owners, facilitate lawful access andcollect and distribute fees to authors and creators. They also have increasinglyexpanding roles in setting appropriate-use restrictions and implementing usemonitoring. In terms of electronic publishing, companies may have to obtain licencesfrom CMS. CMS are diversifying their service/product range as new uses evolve.

REACTIONS• New copyright laws• New wider and

expandeddefinitions ofcopyright

• Longer copyrightterms

• New technologies,for example DRM

• New collectionsocieties or CMS

• New business andlicensing models,for example, iPod.

COLLECTIVE MANAGEMENT SOCIETIES

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digital libraries include:• Definitions of what a digital library is• How will it be used?• How to track usage• How to compensate authors. Are they paid already?

Are there new uses that need to be licensed?• How to organise information and databases• The role of libraries and publishers• How to ensure that the works it copies and lends

are legal• Public lending rights• On-line access• The issue of copyright and temporary copies• Should the first-sale doctrine apply to digital works

and digital libraries?• Should universities have to pay twice for academic

content through funding research and then to apublisher?

• How can libraries and universities reduce storagecosts and save on journal subscriptions? Canlibraries become the new electronic publishers?

Another interesting development in the digital librarydebate is the report of the UK House of CommonsScience and Technology Committee (July 2004). Itrecommended that universities should establish theirown repositories for the works they and their staffcreate, particularly research and scientific works. Thisis in recognition of the fact that universities areincreasingly being pressured by the financial cost ofmaintaining up-to-date libraries of current scientificpublished works, both in terms of the upwardly risingcosts of published scientific literature and the increasein official scientific publications. The report alsosuggests that government or officially funded researchshould only be funded on the condition or mandatethat the research produced is deposited in a universityor digital library of some sort. An even morecontentious suggestion in the report is that authors infuture should have to pay to have their workspublished or made available through the university ordigital library. This is also advocated by others, suchas those responsible for the new Journal of insect science(see www.insectscience.org).

Trends in technologyThe ultimate success of electronic publishing may seeacademic electronic publications concentrated insmaller niche, specialist, and customisation markets,with the commercial publishers concentrating onmore mass-market or popular publishing. Hence,traditional and developing commercial subscriptionmodels may co-exist with the new academic models.

Issues remain, however, in terms of rolling outuser-friendly technology solutions and applications forelectronic publishing. Success may also depend on theactual successful delivery of digital technologyprotections, which has been a problem to date.

E-learning and info-literacy need to be consideredin their own right, as well as issues surrounding accessto and preservation of literature and cultural heritage.

While electronic copies and electronic publishing

have been suggested as an end to paper, this is farfrom the truth. Looking at the horizon critically, itremains to be seen how broad the market and uptakeof electronic publishing will be. Apart from a fewcompanies, it seems that most efforts are aimed at theniche or library/university markets and not thebroader public and novel markets. BBC news on-linecarried a story in June 2004 that indicated that e-books, while becoming popular in the United States,are largely ignored in the UK. One problem is thatthe technology and devices for reading e-books arenot yet user friendly. However, in these non-publicmarkets such as distance learning, academic andresearch works and archiving, there appears to be abright future. In terms of more commercial andpopular publishing, we need to wait and see. Muchwill also depend on new technologies and userfriendliness, as well as how web rating systems listelectronic publishing sites. However, there are anincreasing number of successful commercial casestudies in the e-newspapers and e-magazines area,even in the mobile world.

It is fair to say, however, that we have not yetwitnessed a revolution, but just possibly a storm isbrewing ahead.

Paul Lambert is an IP and IT lawyer with Dublin lawfirm Merrion Legal and is a director of the CopyrightAssociation of Ireland and a member of the Legal WorkingGroup of the Irish Internet Association. This article isbased on a presentation entitled Legal and copyrightissues affecting the publishing industry, in particularelectronic publishing to the 2004 Beijing InternationalConference on Publication, Education andPublication Industry Development.

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Biometrics


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The Law Society’s Technology Committeehas been keeping the question ofelectronic signatures under review forsome time. There is little demand forthem now, but the situation is being

monitored to ensure that we are reasonably ready forthe day when it becomes live. When developments ofthis kind take off, they are inclined to do so widelyand quickly – and when that day comes, everyone willwant (and need) to have one ‘now’.

Recent trendsDigital signatures as a way of identifying a signatoryto a document are not as secure as might be thought.The most obvious weakness is the reliance upon keys,codes and passwords, frequently written down (andlet out to others for convenience’s sake) and thenavailable for misuse.

Security issues, and particularly political securityconcerns, have sent the world moving in the direction

FingerprintJust when you were beginning to feel comfortable with the notion of digital

signatures, biometrics is now the flavour of the month, write Eamonn Keenan

and Tony Bradley

• By linking biometric identifiers with digital signatures, we can have secure andverifiable electronic exchange of contracts and documents between solicitors

• Electronic filing of documents in court and other offices. If all solicitors had thesame system, then we would be nearer the day when all public bodies wouldsee the potential benefits of full electronic filing

• Perhaps the electronic completion and signing of the annual application forpractising certificates

• And, at its most basic, a valuable aid in data protection: a simple fingerprintcheck-in would mean that only an authorised person could gain access to a PCor to an area within a PC or to a network.

USES OF BIOMETRICS IN A LEGAL CONTEXT

of biometric identifiers. Most commonly this meansthe electronic matching of fingerprints, but there areother more complex (and expensive) methods, suchas iris pattern matching as an even more certainmeans of identification in high-security situations.

Whereas the promotion of digital signatures wasan industry-driven process, the pressure forbiometric security is from governments and thereforemore likely to be brought into everyday operation.Governments are putting large amounts of moneyinto securing systems on a large scale (for example,air passenger movements and border controls), farbeyond the comparatively easy matter of theverification of electronically-executed documents thatis our simple need.

Current position Biometrics is a technology whose time appears tohave arrived. The Technology Committee has not asyet located a supplier who might be recommended tothe profession when the time for action comes, butthe watching brief continues to be held on yourbehalf. As with all technology, if we move early it willcost us more, but as the technology becomescommonplace the price will drop. So in ourexplorations, we have to try to achieve a balancebetween losing money by being at the cutting edgeor losing face by being left behind. It is still a case of‘watch this space’.

Eamonn Keenan and Tony Bradley are members of theLaw Society’s Technology Committee. Keep in touch withtechnology developments through our area of the society’swebsite – www.lawsociety.ie, ‘committees’, ‘technology’.

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FILEFingerprintFILE• Biometric

identifiers• Systems

security• Uses in a

legal context

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People like flip-openphones (known as

‘clamshells’ in the trade).Nokia is just about the

last major company togo down this route

but has finallybowed to pressure

and launched itsNokia 6260

smartphone. This is a clamshellwith a difference. The handsetcan be folded to act as a PDA ortwisted to use as a camcorder,taking still or video images. Itboasts the latest in mobileapplications, including push totalk, e-mail, internet browser,document and

expect from apocket PC –64Mb of RAM,an Intel PXA 255300MHzprocessor, the

Gadgets


28

These days, if you’re in thebusiness of making pocket

PCs, you’re going to want tomake damn sure that yourproduct stands out from thecrowd. The award-winning

The core of the issueIt’s only a few years ago that a

bold sense of design and theintroduction of the iMac savedApple from certain death. Nowthe company has launched itslatest version, the Apple iMacG5. In a wonderful leap of theimagination, the entirecomputer – including a G5-based logic board, slot-loadingoptical drive, hard drive,speakers, and even the powersupply – are located inside thetwo-inch thin visual displayunit. To all intents andpurposes, the computer hasdisappeared: now you are leftwith just the keyboard and thescreen. Needless to say, thenew iMac can handle incredible

amounts of information andgraphics without breaking asweat. If you’re a saucy ITmonkey, then you’ll probablywant to know that the G5 comeswith either a 1.8GHz PowerPCprocessor and a DVD burner ora 1.6GHz processor and aDVD/CD-RW drive, withmemory expandable up to twogigabytes. It also comes with abuilt-in modem and five USBports. But more importantly, itjust looks great on your desk.The iMac G5 starts ataround €1,350 plus VAT,depending on the specs youwant. For more information, visitwww.apple.com or call AppleIreland on 021 428 4000.

Where do you want to go today?Evesham Mio 168 Co-PilotLive V5 may be a mouthful butapparently it’s the first pocketPC to sport a built-in satellitenavigation system. The Co-Pilot has everything you’d

Windows-basedPocketPC 2003operating system, anSDIO compatibleSD/MMC slot, 240 x320 pixel 65k colourscreen – but it’s inthe GPS arena

where the Co-Pilot reallyscores. Unlike many othermodels, the Co-Pilot can bemoved easily between vehicles.Just key in your destination andthe device will give you door-to-door directions, includingvoice instructions, using thefastest and shortest routes. Italso comes preloaded with UKand Irish street maps. You’dhave to go a long way to find amore versatile or moreaffordable GPS device.The Evesham Mio 168 Co-PilotLive V5 costs around €800 and isavailable from 3D Logistics, Unit66, Park West Enterprise Centre,Dublin 12 (www.3dlogistics.ie).

Nokia looks for a new angle

Tech trends

presentation viewer, Bluetoothconnectivity, an FM radio and anMP3 player. It also featuresswappable multimedia memorycards on which you can save youre-mail attachments, images, videoclips and texts. Some critics areunhappy with its size, which (at102 x 49 x 23mm, and weighing130g) is, frankly, larger than youwould expect from such a phone.But when you consider what’scrammed into it, maybe it isn’t sobig after all.The Nokia 6260 costs around €400and is available from phone retailersnationwide.

Gadgets


29

Spying on people is not bigand it’s not clever, but it’s

suddenly got a whole lot easierwith this tiny wireless videocamera that transmits live videofootage back to your TV –where, of course, you canrecord it for posterity. Or asevidence against you in yourcriminal prosecution,

Sneakier than a ginger weaselwhichever comes first.According to themanufacturers, this is theworld’s smallest colour wirelessvideocam, boasting atransmission range of 300 feet.Powered by a nine-volt battery,the micro camera can transmitfor hours on end, or untilyou’re caught. The signal is

sent directly to your TV orVCR, if you prefer. ‘Now youcan conduct surveillance justlike the pros!’, screams theadvert. Or just be sneakier thana sneaky ginger weasel.The micro wireless video camera isavailable over the internet for€99. Visit www.newageoffers.com/shop/gadgets/spycam.

Sites to see

Movie database (www.imdb.com). A solution to that perennialproblem of remembering all of Spencer Tracy’s films inchronological order. ‘The biggest, best, most award-winningmovie site on the planet’, even if they do say so themselves,offers a search facility that gives you any actor’s filmography, aswell as plot summaries. All this, plus reviews, news and releasedates. But you’ll probably just use it to impress your mates withyour suddenly-acquired encyclopaedic knowledge of film.

Law reform (www.lawreform.ie). The Law ReformCommission’s site has over 100 reports and consultationpapers, all of which can be viewed on-line or downloaded, andit provides the papers from the 25 November conference onModernising Irish land and conveyancing law. There is alsoinformation on how to make a submission to the LRC and onthe programme for law reform that will form the basis for thecommission’s work until 2007. All in all, worth a look.

Road to nowhere (www.nra.ie). Keep tabs on the progress ofthe Tara-destroying M3 or make bets with yourself about thedifference between a road’s proposed and actual cost andcompletion dates. The site also offers a nifty facility wherebyyou can check out how the weather is affecting conditions onthe roads, through a network of weather monitoring stationsand road sensors, and offers information on public/privatepartnerships, tenders and more.

What’s in a name? (http://indigo.ie/~kfinlay/Dublin%20Streets/dubindex.htm). Duke Lane used to be called BadgerLane. I’ll bet you didn’t know that. A historical curiosity,perhaps, but droll with it – the author says that Bachelor’s Walkprobably got its name from ‘an owner of property here namedBatchelor’ and adds ‘this derivation seems more probable thanthat which would describe the quay as a promenade forbachelors’. Or indeed badgers.

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Jardine Lloyd Thompson IrelandLimited

A N N U A L C O N F E R E N C E

S P O N S O R S :

Law Society of Ireland

Solicitors’ MutualDefence Fund Limited

3 0 M a r c h – 3 A p r i l , 2 0 0 5

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AC

OW

2005

Message from thePresident

Dear Colleague,

I have pleasure in inviting you to

join me at the Society’s Annual

Conference in Kracow on 30

March – 3 April, 2005.

This year the theme of the

Conference will be East meets

West and you cannot fail to be

impressed by the panel of

distinguished speakers who will

address a wide range of topics.

We are most grateful to our sponsors - Bank of

Ireland, Jardine Lloyd Thompson Ireland Limited and

Solicitors’ Mutual Defence Fund for their continued

support of the Law Society’s Conference and I would

ask you to give them your favourable consideration in

return.

I thank all of you who have made advance

bookings and I hope those who have not yet booked

will now do so. We look forward to a memorable

conference which we hope will be enjoyed by all.

Owen Binchy

President

Full details of all speakers will be provided at a later date.

Speakers

Business session: East meets West

KR

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2005

PACKAGE ABASED ON CHARTER FLIGHTSCost: €1,195.00 approx per person sharing

The cost includes return flights, taxes, transfers, four nights’ bedand breakfast at the Sheraton Hotel, Welcome Reception,Conference Seminar and Gala Banquet. Surcharges could apply inrespect of changes in air fares or increases in insurance premi-ums or VAT/tax rates in respect of the hotel.

CHARTER FLIGHTS• 30 March, 2005 departure from Dublin – morning flight –

times to be confirmed• 3 April, 2005 departure from Kracow – afternoon flight – times

to be confirmed (Times are subject to Air Traffic Control restrictions. However, weare endeavouring to secure morning departure and afternoonreturn flight times so that we may facilitate those wishing to travel from Cork, Shannon, etc. Exact times will be detailed in yourbooking confirmations. The charter flight will be allocated strictlyin order of bookings received.)

Those delegates not allocated to the Charter flights will be accom-modated on scheduled flights which will incur a supplementalcharge and transfer charges.

Note: Connecting flights from Cork, Shannon etc. can be arrangedby Sadlier Travel. Please complete relevant section on the reser-vation form.

PACKAGE BBASED ON SCHEDULED FLIGHTS

Delegates travelling on scheduled flights will travel via variousEuropean cities and will have the option of extending their staysubject to airline and hotel availability.

Price will be based on the charter package but will not include air-port transfers and may incur airline and hotel surcharges.

Delegates intending to travel on scheduled flights should return acompleted reservation form as soon as possible with details oftheir preferred travel arrangements.

REGISTRATION FEE

Payable by delegates only and not accompanying persons –€100

BOOKING ARRANGEMENTS

The closing date for receipt of bookings is 20 February 2005. Please complete the reservation form and return with deposit of€450.00 per person travelling.

CONTACT DETAILS

If you would like any further information please contact any mem-ber of the Organising Team:Evelyn O’Sullivan (Law Society) Tel: 01 672 4823

Email: [email protected] James McCourt (Chairman) Tel: 01 660 6543Gerard Griffin Tel: 01 490 1185Simon Murphy Tel: 021 427 3305Mary Keane Tel: 01 672 4800

For information on extending your stay please contact the conference travel agent:Alan Benson/Angela O’BrienSadlier TravelFleet Chambers8-9 Westmoreland St.Dublin 2.Tel: (01) 670 4880Fax: (01) 670 4883Email: [email protected]

BOOKING/CANCELLATIONTERMS AND CONDITIONS

1. Notification of all cancellations must be sent in writing toEvelyn O’Sullivan, Law Society of Ireland, Blackhall Place,Dublin 7. DX79.

2. Balance payments must be received by 20 February 2005.Thereafter, 100% cancellation fees apply.

3. Substitute participation will be accepted. 4. Travel insurance will be automatically invoiced at approximate-

ly €26.00 per person unless delegates indicate on the reser-vation form that they have their own insurance and providethe name of the company with whom they are insured.

5. No contract shall arise until a full deposit has been receivedand a Booking Form (which will be sent with written confirma-tion of acceptance of the reservation) has been signed andreturned.

6. Travel agent reserves the right to allocate all bookings onflights.

7. Please note a supplement will be charged for all single roomoccupancy.

Social programme

AccommodationAll delegates will be accommodated in the Sheraton Hotel*****. This is the first five star hotel in the historical capital of Poland. Thismodern structure is perfectly located – at the footsteps of the Royal Wawel Hill, overlooking the Royal Cathedral and the Vistula River,just ten minutes walk from the heart of the historical part of Kracow - Old Town Square. All bedrooms are spacious, elegant and mod-ern and the hotel boasts a sauna/fitness centre and swimming pool.

The conference will open on Wednesday evening with aWelcome Reception for all participants at the Cloth Hallin the Old Town Square. Delegates will be taken on a guid-ed walk through historical Kanonicza and Grodzka streetsto reach the Old Town Square

ON THURSDAY AN OPTIONAL FULL-DAY VISIT TOAUSCHWITZ CONCENTRATION CAMP

ON FRIDAY AFTERNOON A HALF-DAY OPTIONAL TOURTO THE WIELICZKA SALT MINE

A visit to the Wieliczka Salt Mine – a world class tourist attraction.Over 700 years, many generations of Polish miners created theunderground world, exceptional in its beauty, with the rich interi-or decoration of the chapels – including the most beautiful ofBlessed Kings, the original linings of the galleries and workings,and the underground salt lakes. We can see up to 20 excavatedchambers on three levels - of those the main one is located 130meters below ground level. The chambers are decorated withbeautiful statues sculpted in salt with an all-year-round tempera-ture of 18 degrees Celsius. The Wieliczka Salt Mine is on theUNESCO list of the World Cultural and Natural Heritage.

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

ON SATURDAY WE WILL HAVE A HALF DAY CITY ANDWAWEL CASTLE OPTIONAL TOUR

Wawel Castle is the most popular and the richest museum inPoland. In its 71 magnificent rooms, several thousand works ofart of great value are on display. Through a tall vaulted gate weenter the Renaissance arcades of the castle courtyard. This iswhere colorful pageants, knights’ tournaments and entertain-ments were held. Today, open-air performances and concerts aregiven in the courtyard.

The most valuable of all the works of art in the Wawel collectionare the Arras tapestries. This great art legacy is due to KingSigismund Augustus, who commissioned the work with the bestFlemish weavers, and supervised its progress over twenty years.Wawel Cathedral used to be the scene of coronations and is theeternal resting place of the kings of Poland.

Books


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Personal Injuries Assessment Board Act, 2003: implications for the legal practicePaul Quigley and William Binchy (eds). FirstLaw (2004), Merchant’s Court, Merchant’s Quay, Dublin 8. ISBN: 1-904480-24-1. Price: €65 (hardback) plus €5 p&p.

This is a very informativebook. More importantly for

practitioners, it is also a veryuseful book.

First up is the contributionby the two editors, lawresearcher and Trinity CollegeRegius professor of lawsrespectively. Their ‘Navigatingthe PIAB procedure’ is ageneral 12-page introduction tothe new regime for pract-itioners.

We are reminded that thenew procedure does not affectthe freedom to arrangesettlements. But if settlementcannot be reached, then ofcourse the claimant must go thePIAB route. We are directed toGuide to the Personal InjuriesAssessment Board, 2004 of theDepartment of Enterprise,Trade and Employment and towww.piab.ie for downloadingthe forms.

The procedures laid downby the act are outlined fromwhere a claim must be referredto PIAB with a €50 fee,assessment by a PIAB assessorwho contacts the respondent‘as soon as practicable afterreceipt of an application’,through to completion of theassessment within nine monthsof the respondent’s consent to

the assessment. The procedure must be

completed within a further sixmonths, even if the respondentdoes not so consent. If not,then PIAB must issue theclaimant with an authorisationto proceed to court, unless theclaimant agrees to continue thePIAB assessment. The follow-on time limits are outlined,including that the claimant has28 days to accept or reject theassessment. If it is rejected,again PIAB must issue anauthorisation enabling theclaimant to proceed to court.

The possibility of the actbeing unconstitutional isexamined by Paul Quigley in aseparate chapter. He mainlyfocuses on the doctrine ofseparation of powers and theright of citizens to have accessto the courts. He concludesthat if a claimant is deniedjustice ‘due to an overwhelmingPIAB procedure’, it is possiblethat a remedy might lie inconstitutional justice. But hesuggests that ‘while its [PIAB’s]decisions, actions andprocedures will be subject toconstitutional scrutiny … theact that established the newboard seems constitutionallysound’.

The background to theestablishment of PIAB iscovered comprehensively, andindeed adversarially, in articlesby the Law Society’s KenMurphy, the Bar Council’sConor Maguire and PIAB chairDorothea Dowling, whosebackground is in litigationdefence. PIAB’s establishmenthas been a triumph for defenceinterests, particularly those ofthe powerful business andinsurance lobbies, over those ofvictims, according to Murphy.On the other hand, Dowlingargues that PIAB is a win-winsituation for both victims anddefendants.

The eighth and final chapteris an impressive tour de force ofthe implications of the act fortort law and practice. ProfessorBinchy, co-author of the

seminal book and case book onIrish tort law, places the act inits legislative and case-lawcontext. He also notes that ‘it isunfortunate that the veryworthwhile goals of the PersonalInjuries Assessment Board Act,2003 have, to a limited degree,been blurred by the desire tokeep lawyers out of theassessment process even to thepoint that the board may notcorrespond with them directly’.

He outlines the fourcategories of civil actions towhich the act applies, beingemployers’ liability claims, roadaccident claims, occupiers’liability claims and a fourthgeneral category that includessuch headings as productliability, nuisance, dog bites andeven defamation. Of course,claims relating to healthservices are excluded from theprovisions of the act.

The appendices helpfullyinclude a copy of the 2003 act,the rules of PIAB and an earlybook of quantum compiled onbehalf of PIAB by independentconsultants. Litigants andlitigation lawyers would benefitfrom this book.

Pat Igoe is principal of the Dublinlaw firm Patrick Igoe & Co.

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Book reviews

It is illustrative of the centralposition that environmental

law has come to occupy in thework of an Irish legalpractitioner that the Law

Society’s series of professionalpractice guides now includesEnvironmental law. Thepublication of a concise volumelooking at the practical

implications of Irishenvironmental law is to bewelcomed, not only by legalpractitioners and trainees butalso by all students of Irish

environmental law. Theseimplications are felt in a host ofareas of activity, ranging fromtransactions in land toworkplace health and safety and

Environmental law: professional practice guideAnne-Marie Mooney Cotter (ed). Cavendish Publishing (2004), The Glass House, Wharton St, London WC1X 9PX, England. ISBN: 1-859419-01-1.Price: stg£40.

Books


37

from the licensing of industrialoperators to the obtaining ofplanning permission for certaintypes of development projects.

In general, the layout of thebook is appropriate, coveringthe key substantive areas whereenvironmental rules, or the lackof them, are likely to have animpact on the work of thepractitioner. The book includesvery clear and informativechapters on integratedpollution control,environmental impactassessment, water pollution,waste management, natureconservation, and one on therelated areas of air pollution,noise pollution and toxic torts.Indeed, it is a little unfortunatethat each chapter is not fullyreferenced by means offootnotes or endnotes, as itcould then serve as an excellentstarting point for the readerwho wished to delve a littlemore deeply into any particulararea.

Though it is certainlyappropriate that such a volumewould give over some space toa discussion of the structuresand roles of the key Irishregulatory and policy-makingagencies for the environment –the Environmental ProtectionAgency (chapter 4) and theDepartment of theEnvironment, Heritage andLocal Government (chapter 5)– the brief chapter on theUnited Nations environmentprogramme (chapter 2) and themore substantial chapter on theEuropean Environment Agency(chapter 3) appear somewhatsuperfluous and out of place.Also, the chapter onenvironmental businessconcerns does not fit very wellinto this text, involving littlemore than a restatement of theenvironmental policypreferences (and grievances) ofindustry.

These arguments are madearticulately, though not alwaysaccurately. For example, theauthor claims that Ireland wasthe first EU member state to

introduce integrated pollution-control licensing under the1992 Environmental Protection(Agency) Act, taking no accountof the UK regime introducedunder the 1990 EnvironmentalProtection Act on which theIrish regime is largelymodelled.

Of much greatersignificance, however, in avolume intended for use bygraduates studying for aprofessional legal career, is theomission of dedicated chapterson toxic torts, contaminatedland and on selected areas ofplanning law and procedure.Though Deborah Spencebriefly outlines the topic oftoxic torts in her excellentchapter on air pollution, noisepollution and toxic torts, onecan argue that this importanttopic requires a morecomprehensive treatmentwhere there would be scope tolook, for example, at importantEnglish case law, such as therecent House of Lords decisionin Fairchild.

Similarly, though MargaretAustin alludes to the issue ofhistorically contaminated landin her very thorough andcomprehensive chapter onwaste management, one mightexpect that this commercially-sensitive topic would be wortha chapter setting out, amongother things, the nature of theproblem and the rapidly-evolving practice in relation tocontractual warranties and

indemnities. Though planninglaw might at first glance appearto be beyond the scope of thiswork, a brief chapter settingout the operation of relevantaspects of the planning codewould have been useful insetting the scene for theexcellent chapters contributedby Rachel Minch onenvironmental impactassessment and on habitats,wildlife and natural heritage.However, I’m mindful of thefact that, in the case of anedited volume, the topicscovered may depend on thecontributions available.

However, probably the mostpuzzling chapter in the entirevolume is that contributed byits editor – ‘Internationalenvironmental law: the globalvillage’. This chapter appearsto lack any coherent structureor focus. For example, it isdifficult to understand why the1987 Montreal protocol (itselfmerely one of a series ofincrementally more stringentinstruments on the phasing outof ozone-depleting substances,including the ground-breaking1985 Vienna convention for theprotection of the ozone layer andthe 1990 and 1992 agreementsamending the Montreal protocol)is singled out for discussion asone of the ‘initial’ agreementsin the area of internationalenvironmental law.International environmentallaw was already quite highlydeveloped by 1987. Similarly, itis unclear why the 1992 Climatechange convention (which,incidentally, is not synonymouswith the 1997 Kyoto protocol) issingled out for attention fromamong other key treatyinstruments, some of whichalso flowed from the Rioprocess, such as the 1992Convention on biological diversity.

One might reasonably arguethat the true practical relevanceof developments in publicinternational law relating to theenvironment for practisingsolicitors lies in therelationship between the

myriad sets of standards,guidelines and codes ofconduct that set the standardsof ‘due diligence’ requiredunder general international lawand often inform the standardsof fault and reasonablenessapplied in our domestic courts.One has only to think of thepersuasive character of WorldHealth Organisation standards,for example, particularly in theabsence of any correspondingstandards in Irish or EC law orin the law of a comparablejurisdiction, such as the UK.Also, recent developments ininternational environmentallaw have done much to ensurefreedom of access of nationalsfrom adversely affected statesto the courts of source statesand/or to ensure theenforceability of judgmentshanded down in affected stateswithin source states.

Clearly, these are issues ofpotentially immensesignificance for practitioners.However, by approaching thissubject from a global policy-making perspective, theopportunity is missed here tohighlight these importantinterconnections between theinternational and national legalsystems.

As it is always much easier topoint to the limitations of abook such as this than tohighlight its strengths, I shouldemphasise that this volumemakes a significant and verywelcome addition to thelimited literature on Irishenvironmental law. The vastmajority of contributions areaccurate, clear and to the point,betraying the wealth ofpractical experience of thecontributors and their feelingfor their discipline. I have nodoubt that this guide will bewell received by its intendedreadership, though also that itwill be widely read beyond theranks of trainee and practisingsolicitors.

Owen McIntyre is a law lecturerat University College Cork.

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Dermot McNamara BL, aftersix years at the bar, is

concerned that the rocket tofame and fortune is not quite asturbo-propelled as he hadhoped. His only success to datewas for a client who got alcoholpoisoning and sued theinnkeeper who served him thedrink. It was just as well thatDermot’s wife Rachel had athriving matrimonial practice.

Actor Des Keogh plays allthe characters who impact onDermot’s legal career, involvinghilarious accounts of courtroomdramas with surprising results.Dermot is usually instructed byArnold O’Reilly, solicitor, whostirs his coffee with a pencil andbelieves the fax should be

linked to the shredder. In the first court hearing,

Dermot is opposed by Handy,whose nickname rhymed withhis surname. O’Brien, thejudge, unlike some of hiscolleagues, concentrates on thetask in hand. The cross-examination involves the

evidence of many diversewitnesses, including the femaleplaintiff, but Des Keogh canplay them all, male or female,old or young, with the requiredaccent, tone, exasperation,incredulity or sarcasm to meetthe occasion.

In another case, JudgeBradley, with a reputation forlengthening cases far beyondtheir normal forensic life,presides over the action. Theplaintiff is a retired Englishshowjumper and one of thewitnesses is a French Poirotcharacter. None of the requiredaccents phase the indomitableDes Keogh one bit.

Finally, there is a report ofDermot’s Bar Golf Society

debut in Milltown Golf Club,with uproarious results. Indeed,it is worth buying the CD forthis golf outing alone.

Lawyers and non-lawyerswill revel in the hilariousanecdotes recounted superblyin dramatic fashion by DesKeogh. This is the perfectChristmas present for anyonelooking for light relief over theholiday period. Hopefully, thiswill not be the last we hear ofDermot McNamara BL, ifHenry Murphy can bepersuaded to continue with hisfluent and comical writing.

John Costello is a solicitor with theDublin law firm Eugene FCollins.

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Brief cases (three CDs read by Des Keogh) Henry Murphy SC. Ashfield Press, 27 Carysfort Avenue, Blackrock, Co Dublin. ISBN: 1-901658-42-2. Price: €24.95.

For further information, application form and form A1 see our

website www.lawsociety.ie or contact us directly by

e-mail: [email protected] or

tel (01) 6724914/6 or fax (01) 6724915

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companies every year for over 300 solicitors’ firms.

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Briefing


39

Report of Law Society Council meeting held on 8 October 2004Motion: Money-LaunderingReporting Committee‘That this Council approves theestablishment of a Money-Laundering Reporting Committeeand that the functions of the societyset out in section 57 of the CriminalJustice Act, 1994 be delegated tothat committee with an obligationto report to the Council on theirexercise (on a no-names basis) andthat the regulations of the Councilbe amended accordingly’.Proposed: Simon MurphySeconded: James McCourt

Simon Murphy explained that,under section 57 of the CriminalJustice Act, 1994, the society hadan obligation to make reports tothe Garda Síochána and theRevenue Commissioners where itsuspected that money-launderingoffences had been, or were being,committed by its members. Thesociety’s obligations in this regardhad been delegated to theCompensation Fund Committee.However, it was now proposed toestablish a stand-alone commit-tee with the sole function of mak-ing such reports. The member-ship of the committee would con-sist of the two most recent pastchairmen of the CompensationFund Committee and the regis-trar of solicitors. The Councilapproved the motion, as notified,and the consequent amendmentsto the Council regulations.

Motion: Code of conduct forCouncil members ‘That this Council approves the codeof conduct for Council members andthe Council members’ handbook’.Proposed: Anthony H EnsorSeconded: Stuart Gilhooly

The Council approved the codeof conduct for Council membersand the Council members’ hand-book, both of which had beencirculated in advance.

Personal Injuries Assessment BoardWard McEllin reported in rela-tion to an application for judicialreview sought by a firm of solic-itors against PIAB’s refusal todeal with a claimant’s solicitor.The application for judicialreview had been granted and thematter was likely to be heardbefore Christmas.

Legal costs reviewThe Council discussed therecent announcement by theminister for justice, equalityand law reform of the establish-ment of a working group toidentify ways of reducing legalcosts and noted a letter fromthe president to the ministerexpressing the society’s dissatis-faction with the exclusion ofsolicitors in private practicefrom membership of the work-ing group.

Decision no N/04/001 of theCompetition AuthorityThe Council considered legaladvice received in relation todecision no N/04/001 of theCompetition Authority, whichdecision purported to restrictthe choice of legal representa-tion available to persons beinginvestigated by the authority.The Council agreed that theauthority should be asked towithdraw the notice in recogni-tion of the fact that it waswrong in principle and wrong inlaw, failing which the officerswere authorised to issue judicialreview proceedings against theauthority.

Trainee solicitors’ salariesDonald Binchy briefed theCouncil in relation to a decisionby the Education Committee toincrease the level of salariespaid to trainee solicitors and thenumber of hours that traineeswere requested to work perweek.

No review of trainee salarieshad been carried out sinceSeptember 2000 and it had beenagreed to give trainees anincrease of 7% (in line with thenational pay agreement) witheffect from 1 January 2005.Trainee salaries would bereviewed annually from thisdate onwards. In addition, ithad been agreed to increase the

recommended levels of pay fortrainees working in the officepre-PPCI by 7.5%. Again, thiswas in line with the national payagreement. In addition, thenumber of hours that traineesolicitors were required to workhad been increased from 35 to36 hours per week.

Pre-budget submissionThe Council considered, andapproved, the society’s pre-budget submission, which hadbeen prepared by the Probate,Administration and TaxationCommittee.

CCBEJohn Fish reported that theBelgian Bar had decided tobring proceedings to have theMoney-laundering directivedeclared null and void to theextent that it obliged lawyers toreport suspicions to the author-ities. Accordingly, the matterwould ultimately be determinedby the European Court ofJustice.

Departure of long-standingCouncil membersThe president paid tribute toJohn Fish, Ward McEllin,Anthony Ensor and LaurenceShields, who were departing theCouncil after many years’ dis-tinguished service on behalf ofthe profession. G

2 Arran Quay 7. Tel: 872 2833. Fax: 872 4486

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Briefing


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Committee report

Practice note

CRIMINAL LAW

Criminal justice (legal aid)scheme: introduction of newformat of claim form (LA1)Some time ago, the society’sCriminal Law Committee init-iated discussions with theDepartment of Justice, Equalityand Law Reform and the CourtsService regarding the possibilityof revising the current LA1 claim

form to a shorter, more user-friendly version. The committeeis pleased to announce that, asfrom 1 January 2005, a simplifiedformat of the LA1 claim form willbe introduced. The new form willrequire solicitors to complete onepage only. It is hoped that thereduction in time spent filling outthe form will be of great assis-tance to busy practitioners.

From 1 January 2005, stocks

of the new-format claim formwill be available from the CourtsPolicy Division, Department ofJustice, Equality and LawReform, Old Faculty Building,Shelbourne Road, Dublin 4 andwill appear on the Department ofJustice website, www.justice.ie. Asample will also appear on thehomepage of the members’ areaof the Law Society websitewww.lawsociety.ie.

The ‘old’ form will not beavailable from 1 January 2005,but solicitors who have stocks ofthe old form may still submitthose forms after 1 January 2005.

The committee wishes tothank all those in the CourtsPolicy Division of theDepartment of Justice and thosein the Courts Service who assist-ed in the revision of the form.

Criminal Law Committee

PRACTISING CERTIFICATES, 2005: NOTICE TO ALL PRACTISING SOLICITORSWhy you need a practising certificateIt is misconduct and a criminaloffence for a solicitor (other than asolicitor in the full-time service ofthe state) to practise as a solicitorwithout a practising certificate. Anysolicitor found to be practisingwithout a practising certificate isliable to be referred to theSolicitors Disciplinary Tribunal.

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 a legal requirement for apractising solicitor to deliver orcause to be delivered to the reg-istrar of solicitors at the society’spremises at Blackhall Place,Dublin 7, on or before 1 February2005, an application in the pre-scribed form duly completed andsigned by the solicitor personally.The onus is on each solicitor toensure that his or her applicationform is delivered by Tuesday 1February 2005.

What happens if you do not apply on time?Any applications for practising cer-

tificates which are received after1 February 2005 will result in thepractising certificates being datedthe date of actual receipt by theregistrar of solicitors, rather than1 January 2005. There is no legalpower to allow any period of graceunder any circumstances whatso-ever.

Please note that, during 2004,125 solicitors went to the trou-ble and expense of making anapplication to the High Court fortheir practising certificate to bebackdated to 1 January becausetheir practising certificate appli-cation was received late.

There will be a special meetingof the Compensation FundCommittee (which is the commit-tee of the society with responsi-bility for supervising compliancewith practising certificate require-ments) on 10 February 2005 toconsider any late or unresolvedapplications for practising certifi-cates. At this meeting, any prac-tising solicitors who have notapplied by then for a practisingcertificate will be considered forreferral forthwith to the SolicitorsDisciplinary Tribunal and will beinformed that, if they do not applyin due form within a further seven-day period, the society will takeproceedings for an order undersection 18 of the Solicitors

(Amendment) Act, 2002 to prohib-it them from practising illegally.

What you need to do about professional indemnity insuranceIf confirmation of mandatory pro-fessional indemnity insurancecover is not received, the registrarof solicitors is precluded by lawfrom issuing a practising certifi-cate. All solicitors who arerequired to have professionalindemnity insurance cover areasked to ensure that either theyor their broker furnishes the soci-ety with confirmation of cover assoon as cover is renewed.

If you are an employed solicitor Solicitors who are employedshould note that it is the statutoryobligation of every solicitor whorequires a practising certificate toensure that he or she has a prac-tising certificate. Employed solici-tors cannot absolve themselvesfrom this responsibility by relyingon their employers to procure theirpractising certificates. However, itis the society’s recommendationthat all employers should pay forthe practising certificate of solici-tors employed by them.

If you are ceasing practiceSolicitors who are intending tocease practice in the coming year

are requested to notify the soc-iety accordingly.

Some of your details are alreadyon the application formThis year, for the first time, thepractising certificate applicationform will be issued with certaininformation relating to each solici-tor’s practice already completed.

What can you access on the website?Also for the first time, the practis-ing certificate application form willbe available on the society's web-site, www.lawsociety.ie. By answer-ing the questions on-line, there willbe no need to complete the formby hand, thus making the comple-tion of the form less time consum-ing. When the on-line form is com-plete, it must be printed, signedand returned to the registrar ofsolicitors. Alternatively, the formcan be printed out and completedby hand.

The on-line form can be acces-sed by following the link under the‘Current news’ section on the web-site and logging on using the solic-itor’s surname and solicitor num-ber (stated on page 1 of the appli-cation form which will be sent toeach solicitor by post).

John Elliot, registrar of solicitorsand director of regulation

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LEGISLATION UPDATE: 20 OCTOBER – 15 NOVEMBER 2004Details of all bills, acts and statu-tory instruments since 1997 areon the library catalogue –www.lawsociety.ie (members’ andstudents’ areas) – with updatedinformation on the current stage abill has reached and the com-mencement date(s) of each act.

ACTS PASSEDDumping at Sea (Amendment)Act, 2004Number: 35/2004Contents note: Amends andextends the Dumping at Sea Act,1996 in relation to applicationsfor dumping at sea permitsDate enacted: 3/11/2004Commencement date: 3/11/2004

Ombudsman (Defence Forces)Act, 2004Number: 36/2004Contents note: Establishes theoffice of ombudsman for thedefence forces; provides for theappointment, functions and staffof the ombudsman and amendsthe Defence Act, 1954Date enacted: 10/11/2004Commencement date: Com-mencement order(s) to be made(per section 19(2) of the act)

SELECTED STATUTORY INSTRUMENTSAdoptive Leave Act, 1995(extension of periods of leave)order 2004Number: SI 667/2004Contents note: Extends the peri-ods of adoptive leave under theAdoptive Leave Act, 1995Commencement date: 19/11/2004 with saver

Courts and Court Officers Act,2002 (section 46) (commence-

ment) order 2004 Number: SI 712/2004 Contents note: Appoints 31/3/2005 as the commencement datefor section 46 of the act, whichprovides that the Courts Serviceshall establish and maintain a reg-ister of reserved judgments of theSupreme Court, the High Court,the Circuit Court and the DistrictCourt in any civil proceedings

Criminal Justice (TemporaryRelease of Prisoners) Act, 2003(commencement) order 2004Number: SI 679/2004Contents note: Appoints 12/11/2004 as the commencement datefor the Criminal Justice(Temporary Release of Prisoners)Act, 2003

Prisoners (temporary release)rules 2004Number: SI 680/2004Contents note: Provide for thetemporary release of persons

from prisons, from St Patrick’sInstitution and from places provid-ed under section 2 of the PrisonsAct, 1970Commencement date: 12/11/2004

Private Security Services Act,2004 (commencement) order2004Number: SI 685/2004Contents note: Appoints 28/10/2004 as the commencement datefor: (a) part 1 (sections 1-5); (b)sections 6, 7, 8, 9, 10, 11, 12,17, 18, 19 and 20; and (c) sched-ule 1 of the act

Protection of employees(employers’ insolvency) (variation of limit) regulations2004Number: SI 696/2004 Contents note: Increase the max-imum amount of weekly pay thatmay be used for the purposes ofcalculating employee entitlements

under the Protection of Employees(Employers’ Insolvency) Act, 1984

Redundancy payments (lumpsum) regulations 2004Number: SI 695/2004Contents note: Raise the ceilingon annual reckonable earnings tobe taken into account in the cal-culation of a statutory redundancylump-sum paymentCommencement date: 1/1/2005

Social welfare (consolidated payments provisions) (amend-ment) (no 4) (maternity benefit)regulations 2004Number: SI 660/2004Contents note: Provide, for thepurposes of the maternity benefitscheme, for the amended provi-sions governing maternity leavecontained in the MaternityProtection (Amendment) Act,2004. Reduce the minimum peri-od of leave that must be availed ofprior to the expected date of birthfrom four weeks to two weeks,and provide that where maternitybenefit has been in payment for aminimum period of 14 weeks, pay-ment may be postponed in theevent of the hospitalisation of thechild, and provide for related mat-tersCommencement date: 18/10/2004

Social Welfare (MiscellaneousProvisions) Act, 2004 (section 8)(commencement) order 2004Number: SI 658/2004Contents note: Appoints 18/10/2004 as the commencement datefor section 8 (amendments to thematernity benefit scheme) of theact

Prepared by the Law Society Library

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District Court (children) (no 2) Rules 2004Number: SI 666/2004Contents note: Amend order 37 of the District Court Rules 1997 (SI93/1997) to prescribe procedures for orders directing the probationand welfare service to arrange for the convening of a family conferenceand for orders directing a child to comply with an action plan pursuantto sections 78(1), 79, 82(1)(b), 82(2)(a), 83 and 84 of the ChildrenAct, 2001Commencement date: 3/11/2004

District Court (food safety) Rules 2004Number: SI 700/2004 Contents note: Amend the District Court Rules 1997 (SI 93/1997) bythe insertion in order 34 of a new rule 16 ‘warrant – under the FoodSafety Authority of Ireland Act, 1998’ and by the insertion of a neworder 96A ‘food safety’. These amendments prescribe procedures forapplications under the Food Safety Authority of Ireland Act, 1998 inrelation to information required by the authority to exercise its func-tions and in relation to non-compliance with ‘improvement orders’Commencement date: 14/11/ 2004

www.lawsociety.ieHave you accessed the Law Society website yet?

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Personal injury judgment

Frances Quinlisk v Ross Kearney, John Kearney and Bernadette Kearney, High Court, judgment of Mr Justice Roderick Murphy delivered on 10 June 2004.

Dangerous animals – control of dogs – dog injured a woman on her way home – onus on owner or occupier to provethat they are not the owners of a dog – whether this onus had been discharged

THE FACTS

THE JUDGMENT

CASE

Some time after 11.30pm ona summer’s evening on 7

June 1999, Frances Quinlisk wasreturning from a meeting ofMuintir na Tíre in Roscrea. Shewas left by her friend at theentrance to an estate where sheand the Kearneys lived.

Mrs Quinlisk, having left herfriend some 200 yards from herhouse, felt a tug on her left legand saw a small, medium-brown-coloured dog growling.The dog pulled so hard that sheturned around, lost her balanceand fell. The dog had come upfrom behind her as she walkedon the path of the green with

her back to the Kearneys’ houseand going towards her ownhouse. She lay on the ground fora quarter of an hour with severepain in her right-hand side. Shesubsequently reached her housebut spent two days in bed in alot of pain.

Two days later, her husbandbrought her by car to see hermedical doctor. Two days later,Mrs Quinlisk was sent toTullamore Hospital; she was x-rayed and given painkillers.There was no bed available andshe returned home, where shespent six weeks in bed in pain,having to be carried to the bath-

room. In evidence in court, MrsQuinlisk stated that she was oncrutches until January 2001,some seven months later.

Mrs Quinlisk had sufferedpreviously. Two discs had beenremoved in 1982 or 1983 andshe had experienced intermit-tent problems since then. Sheexperienced the pain that shehad had before the incident withthe dog. She went back to workin May 2001, some sevenmonths later.

In evidence, Mrs Quinliskstated that she had developedrheumatoid arthritis byChristmas 2001. At that stage,

she was advised by her medicaldoctor to retire or else shewould undo everything he wasdoing for her. She alleged thatin mid-August she had seen thedog in question going into MrKearney’s home. She went overon her crutches and asked MrKearney if he owned the browndog that was at Mr Kearney’sdoor. There was evidence thathe replied that it was one of hisson’s dogs. The son was RossKearney (the first-named defen-dant).

Mrs Quinlisk sued RossKearney and his father andmother.

Mr Justice Roderick Murphydelivered judgment on 10

June 2004 and set out the facts ofthe case, as above.

The judge referred to theControl of Dogs Act, 1986 andquoted the various sections inrelation to liability of persons inrelation to dogs. Section (9)(1)of the 1986 act provides:

‘[T]he owner or any person incharge of a dog shall not permit thedog to be in any place other than (a)the premises of the owner, or (b) thepremises of such other person incharge of the dog, or (c) the premis-es of any other person, without theconsent of that person unless suchowner or such other person incharge of the dog accompanies it andkeeps it under effectual control’.

The owner of a dog is definedin the 1986 act as including theoccupier of any premises where adog is kept or permitted to live

or remain at any particular time(unless such occupier proves tothe contrary).

Section 21(1) of the 1986 actprovides that the owner of a dogshall be liable for damage causedin an attack on any person by thedog. Section 21(1) of the 1986act provides that it shall not benecessary for the person seekingsuch damages to show a previous‘mischievous’ propensity in thedog, or the owners’ knowledgeof such propensity, or to showthat such injury or damage wasattributable to neglect on thepart of the owner.

The judge noted that MrsQuinlisk had stated that therewas no point in her reportingthe matter to the relevantauthorities until she knew whoowned the dog. When she con-sidered she knew who ownedthe dog, she telephoned the dog

warden. A solicitor’s letter wassent to the Kearneys inNovember 2000.

The judge observed that MrsQuinlisk had stated in evidencethat Mr Kearney’s daughter hadanswered the door on one occa-sion and that Mr Kearney hadadmitted that his son Rossowned the brown dog.

Mr Justice Roderick Murphyreferred to the medical condi-tion of Mrs Quinlisk. The fall inrelation to the dog had aggravat-ed pain in her lower back. Shewas distressed. A doctor, whohad given evidence, was of theopinion that stress after such anaccident with a dog could lead torheumatoid arthritis, althoughthis could not be proved scientif-ically. The symptoms com-plained of by Mrs Quinlisk wereas a result of her lower-backinjury, but exacerbated by the

fall. She had made good progressand the pain would tend to sub-side with time.

Mr Justice Roderick Murphystated that the Control of DogsAct, 1986 was a radical piece oflegislation for a country wheredogs proliferated. The very titleof the act emphasised controlrather than registration, whichhad been a requirement underprevious legislation. The judgeobserved that the presumptionof ownership was one of thoseradical elements in the legisla-tion that deemed ownership onoccupiers of any premiseswhere not alone the dog waskept but permitted to live orremain at any particular time.The onus of proof was on theoccupier to prove to the con-trary. The issue of ownership inthe particular case under ques-tion was critical.

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The court had to be satisfied(according to the judge) on thebalance of probabilities from theevidence of the Kearneys thatnone of them kept a dog or per-mitted a dog to live or remainfor any particular time on theirpremises. According to thejudge, there was no disputeregarding a small medium-brown dog tugging at MrsQuinlisk, causing her to lose herbalance and fall, causing her aninjury which exacerbated a pre-vious complaint.

In relation to the ownershipof the dog, Mrs Quinlisk statedthat in mid-August she had seena dog going into the Kearneys’premises; she proceeded oncrutches to the Kearneys’ houseand spoke to one of theKearneys, who said that the dogwas the son’s, Ross Kearney. Thedog was at the door. The judgenoted that, unfortunately, RossKearney did not give evidence inrelation to whether or not hewas in the family home in June1999. His testimony would havebeen of assistance to the court inrelation to whether or not hehad a dog or hunted or not.

The judge noted that the onus

was on the Kearneys to dischargethe presumption that they werethe owners of the dog. It was upto them to prove that they did notkeep dogs or allow them toremain in their premises.

Given the radical nature ofthe legislation, the judge statedthat it would seem that the sim-plest way of rebutting the pre-sumption was to tell MrsQuinlisk at the time she met oneof the Kearneys that not only didthe Kearneys not own dogs, butthat they did not permit dogs tolive or remain on their premises.The evidence of a neighbourwas, according to the judge,compelling with regard to thepresence of dogs in and aroundthe premises of the Kearneys.The judge did accept the evi-dence of Mr and Mrs Kearneythat they did not have or own adog. That evidence had been

corroborated. However, as wasclear from the definition sectionof the 1986 act, ‘ownership’ wasdefined very widely indeed toinclude the occupier of premises.

The judge noted that, even ifdogs were strays, then theKearneys should have beenaware of the risk of liability oncethey were kept or allowed toremain on the premises.

The judge referred to section13 of the 1986 act, which statedthat any person who finds andtakes possession of a stray dog isobliged to return the dog to itsowner, deliver it to a dog wardenor detain the dog and give noticein writing to the member incharge of the nearest garda sta-tion or to a dog warden. In sucha case, the occupier would not bedeemed to be the owner untilone year had passed.

The court, on the balance of

probabilities, found in the cir-cumstances that the Kearneysdid own the dog in question inthat they, as occupier or occu-piers (one or more of them), per-mitted the dog to live andremain at his, her or their prem-ises. None of the Kearneys hadproved, on the balance of proba-bilities, that they were not theowners of the dog that hadattacked and caused MrsQuinlisk the injury she had suf-fered. It followed that theKearneys were liable for thedamage caused. In terms of lia-bility, the Kearneys were jointlyand severally liable.

In relation to the medical evi-dence, the judge considered thetwo reports of the medical doc-tors, including the reports of theorthopaedic surgeon. The sur-geon had found a fracture to thepelvis requiring hospitalisation.Mrs Quinlisk was on crutchesfor seven-and-a-half weeks. Shehad previous spinal surgery for aprolapsed disc in 1982. She hadsome intermittent pain sincethen.

This judgment was summarised bysolicitor Dr Eamonn Hall.

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THE

AWAR

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Mr Justice Roderick Murphy awarded Mrs Quinlisk damagesas follows:• Special damages in relation to Mrs Quinlisk being out of

part-time work which had been agreed – €1,600• General damages – €16,000

Total: €17,600

SOLICITORS DISCIPLINARY TRIBUNALIn the matter of John B Harte,solicitor, practising under thestyle and title of James Harte& Son, 39 Parliament Street,Kilkenny, and in the matter ofan application by the LawSociety of Ireland to theSolicitors Disciplinary Trib-unal and in the matter of theSolicitors Acts, 1954 to 2002[2259/DT398] Law Society of Ireland(applicant)John B Harte(respondent solicitor)

On 28 September 2004, the Soli-citors Disciplinary Tribunal foundthe respondent solicitor guilty ofmisconduct in that he had:a) Failed to comply with an

undertaking given to a namedsolicitor’s firm on 22 October1996 to have a defunct publicright of way to a well removedas a burden from a LandRegistry folio in a timely man-ner or at all

b) Failed to respond to 13 lettersfrom the complainants to himprior to their making a com-

plaint to the societyc) Failed to respond to corre-

spondence from the society inthe investigation of the com-plaint in a timely manner or atall, and in particular failed toreply to letters from the socie-ty dated 12 April 2002, 24April 2002, 7 May 2002, 22May 2002, 26 June 2002, 3July 2002, 15 July 2002, 25July 2002, 7 November 2002,13 February 2003

d) Failed to attend at Registrar’sCommittee meetings despite

being requested to do so andin particular the meetings of11 June 2002, 24 September2002 and 5 November 2002.

The tribunal ordered that therespondent solicitor: a) Do stand censuredb) Pay a sum of €5,000 to the

compensation fundc) Pay the whole of the costs of

the Law Society of Ireland astaxed by a taxing master of theHigh Court in default ofagreement.

This report of the outcome of a Solicitors Disciplinary Tribunal inquiry is published by the Law Society of Ireland as provided for insection 23 (as amended by section 17 of the Solicitors (Amendment) Act, 2002) of the Solicitors (Amendment) Act, 1994

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UpdateNews from Ireland’s on-line legal awareness serviceCompiled by Flore Bouhey for FirstLaw

CHILDREN AND YOUNGPERSONS

Child abuse Family law – children – child abuse– statutory instrument –commission of inquiry – functionsand powers – whether additionalfunctions sought to be conferred oncommission by statutory instrumentconnected with functions and powersof commission – whether statutoryinstrument ultra vires –Commission to Inquire intoChild Abuse Act, 2000, section 4– Commission to Inquire into ChildAbuse Act, 2000 (additionalfunctions) order 2001 – Rules ofthe Superior Courts 1986, order15, rule 13The third respondent wasestablished by the Commission toInquire into Child Abuse Act,2000. Its role was defined insection 4 of the 2000 act as beingto inquire into the abuse ofchildren in institutions. ‘Abuse’for the purposes of the act wasdefined in section 1 as ‘the …infliction of physical injury on,or failure to prevent such injuryto the child, the use of the childby a person for sexual arousal or… gratification … failure to carefor the child … [or any other actor omission towards the child]which results in seriousimpairment of the physical ormental health or development ofthe child or serious adverseaffects on his behaviour orwelfare’. The applicant was aparticipant in vaccine trialsconducted on children in stateinstitutions in the 1960s.Following a report prepared bythe chief medical officer of thefirst respondent’s departmentinto those trials, the Commissionto Inquire into Child Abuse Act,2000 (additional functions)order 2001 was passed by theOireachtas, which purported to

confer additional functions onthe third respondent to enable itto investigate those trials. Shesought a declaration that theorder of 2001 made by thegovernment was ultra vires theprovisions of the 2000 act, and,in particular, section 4(4)thereof.

Ó Caoimh J declared that theorder of 2001 was made ultravires section 4(4) of the 2000 act,holding that, in the absence ofadditional evidence being putbefore the court, the vires of theorder had to be judged byreference to the terms of theorder itself and the report of thechief medical officer mentionedtherein, which disclosed nothingsuggesting that the conduct ofthe vaccine trials, the subject ofthe report, was such as toamount to abuse as defined inthe 2000 act. The essential issueraised by that report was one ofmedical ethics and was not onesuggestive of abuse as defined inthe 2000 act. There had to besome real connection betweenthe functions sought to beconferred by the order of 2001and the functions and powers ofthe Commission to Inquire intoChild Abuse before such anorder could be made by thegovernment, and the mere factthat the persons the subject ofthe vaccine trials werevulnerable children in stateinstitutions did not amount toany connection of substanceenabling the making of theorder. The approval of the orderof 2001 by the Oireachtas wasnot such as to validate themaking of the order itself, whichcould only have been madewithin the limits of section 4(4)of the 2000 act.Irene Hillary v Minister forEducation and Science,Attorney General and

Commission to Inquire intoChild Abuse, High Court, MrJustice Ó Caoimh, 11/6/2004[FL9705]

Adoption, delay Family law – adoption – consent –children – refusal to consent toadoption – medical evidence –fostering – abandonment – delay inbringing proceedings – whetherparental rights abandoned –whether appropriate to makeadoption order – Adoption Act,1988, section 3The proceedings concerned anapplication by the foster parentsof a child seeking to have thechild adopted. Since the child(L) was three weeks old, she hadbeen placed with her presentfoster parents. The applicationwas opposed by the parents of Land her natural sister. Themother of L had been convictedof manslaughter in respect of thedeath of a sister of L. A brotherof L had also been taken intocare. The mother of L opposedthe application on the groundsthat there had not been anyfailure of parental duty and/orabandonment and also that itwas not in the child’s bestinterest. A fit persons order hadbeen made in respect of Lapproximately two months aftershe was born. Evidence was alsogiven by L that she would like tobe adopted. A natural sister of Lopposed the adoption on thebasis that she would lose contactwith L. It was also submittedthat the delay in the case wassuch that the court should refuseto make the order sought.

O’Higgins made the order ofadoption, holding that there hada total failure of parental dutyand, in the circumstances, thisamounted to abandonment inthe legal sense. L’s mother hadacquiesced to the present

arrangements in which L hadbecome, in a practical sense, amember of the applicants’family. The evidence wasoverwhelming that it was in L’sbest interests to make theadoption order sought and theinitiative for the adoption hadcome from L herself. The fosterparents had fared excellently inraising L and were extremelysuitable people to adopt her. Itwas unlikely that there would bea loss of contact between L andher sister once the adoptionorder was made. Although thedelay that had occurred duringthe proceedings was regrettable,the position of the parties hadnot been prejudiced.B(WH) and S(W) and S(E) vAn Bord Uchtála, High Court,Mr Justice O’Higgins,27/5/2004 [FL9628]

CONSTITUTIONAL

Sexual offences, order ofprohibitionJudicial review – order ofprohibition – constitutional law –criminal law – sexual offences –delay – issue of dominion –psychological evidence – role ofdirector of public prosecutions –whether real or serious risk ofunfair trial – whether orderprohibiting trial should be granted– Bunreacht na hÉireann 1937,article 38.1The applicant had been arrestedand charged with sexual offencesallegedly committed some yearspreviously. The applicantbrought an application seekingto prohibit his trial fromproceeding. The applicantclaimed that the lapse of timebetween the commission of thealleged offences and the date oftrial was so great that it gave riseto an unavoidable and incurable

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presumption of prejudiceagainst him and breached hisright to trial with dueexpedition. Furthermore, it wasclaimed that the delay haddeprived the applicant ofprospective witnesses. Theapplicant had been granted leaveto bring judicial reviewproceedings by McKechnie Jand now sought declarationsand/or orders of prohibitionpreventing his trial fromproceeding. The complainantssubmitted that the applicant wasa respected family member andthe close family ties were afactor in the delay in making thecomplaints to An GardaSíochána. Counsel on behalf ofthe applicant submitted that theposition the applicant held as arespected family member didnot justify the unconscionableand excessive delay in makingthe complaints by the allegedvictims.

Ó Caoimh J refused the reliefsought, holding that thecomplainants’ delay in comingforward had been explained andmust be attributed to theconduct of the applicant in thefirst place. It could not be saidthat the death of certain personshad resulted in a situation ofclear prejudice for the applicant.A number of persons, includingthe applicant’s wife, were aliveand could be called as witnessesby the applicant. The applicanthad failed to establish prejudiceas to warrant a finding that a fairtrial was no longer possible.Chambers v DPP, High Court,Mr Justice Ó Caoimh,9/7/2004 [FL9673]

CRIMINAL

Appeal, conviction Charge to jury – erroneous chargeon issue of provocation – whethererroneous charge automaticallyrenders conviction unsafe – whetherconviction unsafe – whether leaveto appeal should be grantedThe applicant was convicted ofmurder by a jury that hadrejected his defences of self-defence and provocation. On

application for leave to appealthat conviction, he submittedthat the trial judge should havewithdrawn the issue of murderfrom the jury, leaving them onlyto consider whether theapplicant was guilty ofmanslaughter, and that the trialjudge misdirected the jury inrelation to the defence ofprovocation and the evidence onthat issue.

The Court of CriminalAppeal refused the applicationfor leave to appeal, holding thatit was for the jury to determinewhether the actions of theapplicant were capable of beingcommitted in pursuance of self-defence. While the defence hadto satisfy a test of the existenceof a body of credible evidence tojustify leaving the issue ofprovocation to the jury, once theissue was left to them by the trialjudge, it was subject to theorthodox rule regarding theburden of proof, whichremained with the prosecution.As there was no sufficient case ofprovocation to justify a findingof manslaughter rather thanmurder, there was nomiscarriage of justice as a resultof the trial judge’s erroneouscharge to the jury on the issue ofprovocation. The People (Director of PublicProsecutions) v Ismet Ceka,Court of Criminal Appeal,28/7/2004 [FL9627]

Extradition Corresponding offence – cheatingpublic revenue – whether theoffence of cheating the publicrevenue exists in IrelandThe applicant appealed from thejudgment and order of the HighCourt granting an order for therendition of the applicant toEngland on the basis that therewas no corresponding offence inIreland of cheating the publicrevenue. Peart J in the HighCourt held that thecorresponding offence to theoffence contained in the warrantfrom the jurisdiction of Englandand Wales was the common-lawoffence of cheating the publicrevenue.

The Supreme Court (Den-ham, McGuinness, HardimanJJ) allowed the appeal, holdingthat: 1) The fact that section 3(2) of

the Criminal Justice (Theft andFraud Offences) Act, 2001abolished the offence ofcheating except in relation tothe public revenue did notmean that the offence ofcheating the public revenueexisted in Ireland. The statutewas non-committal as towhether the offence existedand accordingly the referenceto the exception did notcreate or revive the offence,which had not been used inprosecutions over theprevious 100 years

2) The law was so uncertain andvague as to lead to the onlypossible conclusion beingthat no Irish common-lawoffence of cheating the publicrevenue exists.

The Attorney General vAnthony Karl Frank BairdHilton, Supreme Court,30/7/2004 [FL9699]

Jurisdiction, practice andprocedure Service of book of evidence –extension of time for doing so –jurisdiction – president of DistrictCourt granted adjournment andextension of time for service of bookof evidence on ‘peremptory’ basis –whether order of president precludesanother judge of equal jurisdictionfrom further extending time –whether first respondent hasjurisdiction to extend time forservice of book of evidence – wordsand phrases – ‘peremptory’ –Criminal Procedure Act, 1967,section 4(b)(3)The applicant had been chargedwith various offences by thesecond respondent. At variousappearances before the DistrictCourt, the proceedings hadbeen adjourned withappropriate extensions of timefor the service of a book ofevidence until 28 August 2003.On that date, the president ofthe District Court extended thetime for the service of a book ofevidence for a further two weeks

and expressed that extension oftime and adjournment to be‘peremptory’. On 3 September2003, the applicant was furthercharged with another offenceand when all of the offencescame on before the DistrictCourt, the first respondentgranted a further extension oftime for the service of the bookof evidence. The applicantcontended that by expressing hisorder to be ‘peremptory’, thepresident had created a final andabsolute order that could not bealtered by a judge of equaljurisdiction except inexceptional circumstances. Theapplicant was granted leave toapply for an order of certiorariby way of application for judicialreview of the order of the firstrespondent granting anextension of time.

O’Neill J refused the reliefclaimed, holding that theimpugned order of the firstrespondent had been madewithin jurisdiction, as it was notwithin the jurisdiction of thepresident of the District Courtto make an order that wouldfetter the exercise of anotherjudge of the District Courtdealing with an application toextend time from the expiry ofthe extension of time granted bythe former judge for the serviceof a book of evidence, as thatwould have the effect ofrendering nugatory the judicialdiscretion necessarily implied inthe exercise of discretionprovided for in section 4(b)(3)of the Criminal Procedure Act,1967 and would offend thefundamental principle that ajudge could not bind anotherjudge of equal jurisdiction tomake a particular order in amatter in which the latter judgehad full jurisdiction and seisinof the matter in question. Theuse of the adjective‘peremptory’ or adverb‘peremptorily’ as used in thecontext at issue did not have adefined legal effect and did notoust the jurisdiction of the firstrespondent to hear anddetermine the application for anextension of time and for that

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purpose to exercise his judicialdiscretion to consider whetheror not there were good groundsfor extending time and whetherit would be in the interests ofjustice to do so. Smith v Judge O’Donnell,High Court, Mr JusticeO’Neill, 27/4/2004 [FL9690]

Sexual offences, delayFair procedures – right toexpeditious trial – application fororder of prohibition – sexual offences– whether prosecutorial delayaffected constitutional rights ofapplicant to fair and expeditioustrial – whether delay prejudicial –whether risk of unfair trial shouldprosecution continueThe applicant was prosecutedfor various sexual assaults onchildren in the 1960s. Thecomplainants first made theircomplaints in 1995. Theapplicant was first interviewedby the gardaí in 1997 andcharged in 1999. In 2000, thebook of evidence was served.The applicant complained ofboth complainant andprosecutorial delay and soughtan order of prohibitionrestraining his furtherprosecution for the variousalleged assaults. The HighCourt refused to grant the ordersought. The applicant appealedto the Supreme Court.

The Supreme Court allowedthe appeal and granted the orderof prohibition sought, holdingthat for complainant delay to beexcused it had to be not onlyexplained but the reasons for thedelay had to be attributable atleast in part to the actions of theabuser and for that purpose thecourt had to assume that thecomplaints made by thecomplainant were true.Prosecutorial delay could beexcusable if it did not affect theapplicant’s constitutional rights.Reasons that could affect a fairtrial and cause prejudice to theapplicant due to delay were: thetotality of the delays in question,inconsistencies in the complain-ant’s statements, whether therewas a danger of recollectionbeing influenced by other

complainants, the level ofidentification given bycomplainants, and the absence ofrecords. While delay in itselfmay not be sufficientlyblameworthy to prohibit a trial,when that delay was consideredin conjunction with the abovereasons, there was a real risk thatthe applicant’s right to a fair trialwould be in jeopardy.M(J) v Director of PublicProsecutions, Supreme Court,28/7/2004 [FL9724]

ENVIRONMENTAL

Planning, waste management Planning and environment law –waste management – judicialreview – leave – substantialgrounds – whether EPA exceeded itspowers in attaching conditions towaste licence without consultingplanning authority – WasteManagement Act, 1996, sections43, 54The applicant applied for leaveto apply for judicial review of thedecision of the EnvironmentalProtection Agency (EPA). Theapplicant sought declarationsthat conditions of the wastelicence granted by the EPA wereultra vires the powers of the EPAand irrational and an order ofmandamus directing the EPA togrant a waste licence to theapplicant with the conditionsdeleted. The applicant claimedthat the EPA acted in breach ofsection 54(4) of the WasteManagement Act, 1996 andexceeded its powers in attachingconditions without consultingthe planning authority.

Ó Caoimh J refused theapplicant leave, holding that theapplicant had not demonstratedsubstantial grounds as requiredby section 43 of the WasteManagement Act, 1996. Incircumstances where noplanning permission had beengranted and no application forplanning permission waspending, there was no reasonwhy the EPA should consultwith the planning authority. The applicant’s case had asuperficial air to it which was

devoid of reality.Yellow Bins (Waste Disposal)Ltd v Environmental ProtectionAgency, High Court, MrJustice Ó Caoimh, 9/7/2004[FL9679]

FAMILY

Judicial separation, trusts Property adjustment order – properprovision – trusts – discretionarytrust – whether court of trial canhave regard to asset subject ofdiscretionary trust when consideringproper provision – statutoryinterpretation – words and phrases– ‘settlement’ – whether word to begiven liberal and wide meaning –whether nuptial element present –whether ‘post-nuptial settlement’ –Family Law Act, 1995, sections 9and 40Section 9(1)(c) of the Family LawAct, 1995 provides that: ‘Ongranting a decree of judicialseparation, the court may makean order providing for thevariation for the benefit of eitherof the spouses and [/or] of anydependant … of any ante-nuptialor post-nuptial settlement’. Theapplicant applied for an order ofjudicial separation and ancillaryrelief, including propertyadjustment orders, specifically inrespect of land known as theBarne estate, which was thesubject of a discretionary trust.During the course of thathearing, the trial judge directedthat the issue as to whether theBarne estate could be consideredwhen determining what properprovision should be made foreach spouse under the provisionsof the 1995 act be determined.Accordingly, the applicant issueda notice of motion seeking anorder amending the summons toinclude a claim pursuant tosection 9(1)(c) of the 1995 actvarying the terms of the trust,arguing that it was a post-nuptialsettlement made by therespondent. It was accepted byall parties that the notice partyhad full discretion to nominatepersons to be beneficiaries forthe purposes of the trust. It wasaccepted that the trustsettlement was legitimately

entered into and that,accordingly, the provisions ofsection 35 of the Family Law Act,1995 did not apply.

McKechnie J ruled that theinstrument of trust was asettlement within section 9(1)(c)of the 1995 act and directed thatthe trustees thereof remain asnotice parties to the action,holding that:• On or after the granting of a

decree of juridical separation,the court had wide rangingand extensive statutorypowers in order to achieve orattain the result which bystatute it had to endeavour toso achieve

• Where the term ‘settlement’is used in family legislation, ithad a different meaning,derived from a broad andpurposeful approach foundedupon the aims and objectivesof family legislation, than itsuse in a trust or tax lawcontext

• An arrangement such as thetrust under considerationcould still be a settlementeven if the interest of theclaimant was not absolute butonly contingent

• Once arrangements such asthe trust under considerationconferred a benefit on thespouses or either of them intheir capacity as husband orwife and was provided for,with and by reference to theirmarriage status, then it shouldbe treated as a settlementwithin the statutoryprovisions pertaining tofamily law.

FJW T-M v CNRT-M and bycourt order Trustcorp ServicesLtd, High Court, Mr JusticeMcKechnie, 22/6/2004[FL9714]

The information contained here is taken from FirstLaw’s LegalCurrent Awareness Service, published every day on the internetat www.firstlaw.ie. For moreinformation, contact [email protected] or FirstLaw, Merchant’sCourt, Merchant’s Quay, Dublin8, tel: 01 679 0370, fax: 01 6790057.

G

Briefing


47

EMPLOYMENT LAW

Working timeJoined cases C-397/01 to C-401/01, Bernhard Pfeiffer andOthers v Deutsches Rotes Kreuz,Kreisverbank Waldshut eV, 5October 2004. The applicantsare emergency workersemployed by the German RedCross. It operates a land-basedrescue service using ambulancesand emergency medical vehicles.A collective agreement providedthat the employees’ averageweekly working time extendedfrom 38.5 hours to 49 hours. Partof this working time was ‘dutytime’. During these periods, theemergency workers had to makethemselves available to theiremployer at the place of employ-ment and remain continuouslyattentive to be able to act imme-diately should the need arise.The applicants commenced pro-ceedings in the German courtsarguing that their average work-ing time should not exceed the48-hour limit laid down in theWorking time directive (directive93/104/EC). The matter wasreferred to the ECJ. It held thatthe directive applied to the activ-ities of emergency workers suchas these. None of the exceptionsin the directive were relevant.The cases did not involve servic-es essential for the protection ofpublic health, safety and order incase of exceptional gravity andscale that by their nature do notlend themselves to planning asregards working time. Anyextension of the 48-hour maxi-mum weekly working timerequires each worker individuallyto give his consent, expressly andfreely. It is not sufficient for theemployment contract to refer to

a collective agreement permit-ting such an extension. In calcu-lating the period of workingtime, periods of duty time mustbe taken into account.

FREE MOVEMENT OF PERSONS

Case C-209-03, The Queen vLondon Borough of Ealing andSecretary of State for Education, exparte Dany Bidar, opinion ofAdvocate General Geelhoed, 11November 2004. In the UK, stu-dents received a student loanfrom the state to assist them withtheir living costs. The loan isoffered at a rate linked to infla-tion and students begin to payback the loan only once they startearning above a certain amount.A national of a member state isentitled to receive this loan if heis ‘settled’ in the UK and hasbeen resident there for threeyears before commencing hiscourse. In order to be ‘settled’, aperson has to have lived in theUK for four years for a purposeother than that of receiving full-time education. Bidar is a Frenchnational who moved to the UKin August 1998 and completedhis final three years of secondaryeducation in London. In 2001,he enrolled on a course inUniversity College London andapplied to the London Boroughof Ealing for funding. He wasgranted assistance with tuitionfees but refused a maintenanceloan on the basis that he was not‘settled’ in the UK. He chal-lenged this decision, arguing thatthe residence requirementamounted to discrimination ongrounds of nationality. AdvocateGeneral Geelhoed noted thatassistance with maintenance

costs had been held in previouscases to fall outside the substan-tive scope of the EC treaty.However, the Treaty of Maastrichtcontained provisions bringingeducation within the scope ofcommunity action. This indi-cates that the subject of assis-tance with maintenance costscould now come within the scopeof the treaty. The advocate gen-eral felt that in the light of theintroduction of EU citizenshipand the ECJ’s case law in thisarea, assistance with maintenancecosts falls within the scope ofcommunity law. The advocategeneral examined the UK eligi-bility criteria to determinewhether they were objectivelyjustifiable and independent ofnationality. He observed thatwere eligibility conditions morecumbersome for EU citizens res-ident in the host member statethan for nationals, this wouldconstitute prima facie indirectdiscrimination on grounds ofnationality, contrary to thetreaty. Such discrimination maybe valid if it were justified by andproportionate to a legitimateaim. He conceded that memberstates had a legitimate interest inpreventing abuse of student sup-port schemes and in preventing‘benefit tourism’. However, themanner in which this interest isensured should not underminethe fundamental rights of EUcitizens. Member states mayimpose conditions that ensurethat the applicant has a real linkwith the national education sys-tem and society, but these condi-tions must be appropriate andnot go beyond what is necessaryfor achieving that aim. In previ-ous cases, it had been acceptedthat a residence requirement is

an appropriate way of ascertain-ing whether this connectionexists. If such a requirementexcludes a person who candemonstrate a genuine link withthe national education systemfrom the enjoyment of mainte-nance assistance, the resultwould be disproportionate.Thus, where a person has fol-lowed his secondary education ina member state that is moreadapted to preparing him forentry into a third-level institu-tion in that member state thanelsewhere, his link with the edu-cational system of that state isevident. The advocate generalaccepted that this decision was anew and unforeseen develop-ment in community law of whichthe UK government would nothave been aware at the time ofdrafting its legislation. He alsonoted the financial implicationsof a judgment in favour of theapplicant. Therefore, he suggest-ed that it would be justified tolimit the temporal effect of ajudgment to legal relationshipsestablished from the date ofjudgment, except where legalproceedings had been initiatedbefore that date.

FREEDOM TO PROVIDESERVICES

Case C-36/02, Omega Spielhall-en-und Automatenaufstellungs-GmbH v Oberbürgermeisterin derBundesstadt Bonn, 14 October2004. Omega is a German com-pany that operates a centre formock warfare using laser guntargeting devices. Omega used aform of the game developed andmarketed by a company estab-lished in the United Kingdomand had a franchising agreement

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

Recent developments in European law

Briefing


48

with that company. In 1994, theBonn police prohibited Omegafrom allowing at its ‘laserdrome’games that involved firing athuman targets (games whichinvolved playing at killing peo-ple). The prohibition was intro-duced for public policy reasons.Acts of simulated homicide wereseen as trivialising violence andthus being contrary to funda-mental values prevalent in publicopinion. Omega challenged theprohibition before the Germancourts and the matter wasreferred to the ECJ. The ECJwas asked to consider whetherthe prohibition was compatiblewith the fundamental freedomsguaranteed by the EC treaty,such as the freedom to provideservices and the free movementof goods. It had to considerwhether the restriction of funda-mental freedoms had to be basedon a conception of law commonto all the member states. TheECJ held that the freedom toprovide services had beenrestricted. Among the reasonsjustifying a derogation from thisfundamental freedom is that ofpublic policy. Public policy canonly be invoked if there is a gen-uine and sufficiently seriousthreat to a fundamental interestof society. Member states cannotdetermine public policy unilat-erally but they have a discretionas to the specific circumstancesin which recourse to the conceptof public policy is admissible.The community legal orderseeks to ensure respect forhuman dignity as a general prin-ciple of law. Protection of such afundamental right is a legitimateinterest that is in principle capa-

ble of justifying a restriction onthe freedom to provide services.It is not indispensable for anational measure to correspondto a conception shared by allmember states as regards themethod of protecting the funda-mental right or legitimate inter-est in question. This prohibitioncorresponds to the protection ofhuman dignity guaranteed bythe German constitution andconcerns only laser games, theobject of which is to fire onhuman targets. Thus, the prohi-bition had not gone beyondwhat is necessary to attain theobjective pursued by theGerman authorities and couldnot be regarded as a measurethat unjustifiably underminesthe freedom to provide services.

INTELLECTUAL PROPERTY

Cases T-396/02 and T-402/02,August Storck KG v Office forHarmonisation in the InternalMarket (OHIM), 10 November2004. In 1998, the applicantapplied to OHIM for registra-tion of two EC trademarks relat-ing to the Werther’s Originalsweet. The first concerned athree-dimensional shape repre-senting a light brown colouredsweet. The second concernedthe representation in perspectiveof a twisted wrapper shape. TheOHIM examiner rejected thoseapplications on the ground thatthe marks applied for weredevoid of distinctive characterand had not acquired such char-acter through use. Storckbrought two actions before theCFI seeking to have these deci-

sions annulled. The threedimensional shape is not signifi-cantly different from certainbasic shapes for sweets. Thismark does not therefore enablethe consumer to distinguishimmediately and with certaintythe applicant’s sweets from thoseof a different commercial origin.The twisted wrapper shape wasnot sufficiently removed fromthose of basic sweet wrappersand not likely to be rememberedby consumers as indicators ofcommercial origin. In addition,Storck has produced no evidenceof use of the trademarks asapplied for in advertising or salescampaigns. OHIM surveysshowed that awareness of thesweet in question was estab-lished not on the basis of itsshape or wrapper but on thebasis of its name. The CFI heldthat the marks had been rightlyrefused registration.

JURISDICTION

King v Lewis and Others, EnglishCourt of Appeal, 19 October2004. The case concerned twodefamatory statements thatappeared on websites stored inCalifornia and were downloadedin England. The websites gave adetailed account of complaintsmade by the defendants in pro-ceedings issued in New York. Inthese complaints, it was allegedthat the claimant had engaged ina campaign of bribery, lies anddeath threats to convince themnot to enter into an agreement.The parties accepted that theinternet text was published at theplace where it was downloaded.Thus, the claimant may have

been libelled in England. TheCourt of Appeal had to decidewhich was the appropriate forumto hear the action – England orCalifornia. In its judgment, theCourt of Appeal derived fourpoints of guidance as to theappropriate factors for consider-ing in deciding forum conveniensfrom earlier cases. First, there isan initial presumption that thenatural or appropriate forum fortrial would be the courts of theplace where the tort was com-mitted. In a defamation casewhere leave to serve on defen-dants out of the jurisdiction hadbeen obtained on the basis ofpublication there, this would beEngland. The more tenuous theclaimant’s connection withEngland and the more substan-tial any publication abroad, theweaker that connectionbecomes. The court held thateach publication constitutes aseparate tort. This means that ina case of libel on the internet,the publisher is open to multipleactions in different jurisdictions.The place where the tort wascommitted could cease to be apotential limiting factor. Thecourt said that it must bear inmind that the internet publish-er’s choice of such a ubiquitousmedium suggested a robustapproach to the question offorum. In an internet case, thecourt’s discretion would tend tobe more open-textured than oth-erwise. That was the means bywhich the court could give effectto the publisher’s choice of aglobal medium. However, thecourt emphasised that each casewould depend on its own cir-cumstances. G

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Parchment ceremonies

P A R C H M E N TC E R E M O N I E S

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Brian

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Aud

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ecke

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Fide

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55


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56


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2004

People and places


57

The three retiring former presidents, pictured in ‘crouch and hold’position: (from left) Tony Ensor, Ward McEllin and Laurence K Shields

Between the three of them,they have 22 rugby

international caps for Ireland.In addition, all three haveserved an annual term aspresident of the Law Society.

Laurence K Shields, TonyEnsor and Ward McEllin havenow retired from the Councilafter no less than 67 years,collectively, as Councilmembers.

It was a special and ratheremotional few moments at theend of the October Councilmeeting when immediate past-president Gerard Griffin paid a

Distinguished front row retireswarm tribute to each of themand they, in turn, said their fare-wells. Each had given unstint-ingly of his time and talent overmany years, working tirelesslyand effectively in the service ofthe profession and the public.

In addition to beingpresident, each over the yearshad chaired the society’s mostsenior committees. They willbe missed.

In relation to the 22 rugbyinternational caps they havebetween them – of course,neither Ward nor Laurenceever played for Ireland!

Where the heart isGerard Griffin, outgoing presidentof the Law Society, and Patrick

Dorgan, outgoing chairman of thesociety’s Conveyancing

Committee, launching thecommittee’s new client-careleaflet, Moving home, last

month. A sample of the leaflet isenclosed with this issue of the

Gazette

How about abolishing income tax for solicitors?Law Society director general Ken Murphy, solicitor and finance minister

Brian Cowen, society president Owen Binchy and immediate past-president Gerard Griffin at a recent dinner in Blackhall Place to honour

the newly-appointed minister

Yes indeedyPictured at the recent CPD seminar on the drafting of deeds are(from left) the Law Society’s Barbara Joyce, Miss Justice Mary

Laffoy, and Brian Gallagher of Gallagher Shatter, Solicitors

Ursula Kreher of the Goethe Institute with the recipients of theDiploma in legal German

Diplomas in legal French and German

Pictured with the recipients of the Diploma in legal French inNovember is Alan Dukes, chef du comité, Alliance Française

SOLICITORS’HELPLINE

01 284 8484THE SERVICE IS COMPLETELYCONFIDENTIAL AND TOTALLY INDEPENDENT OF THE LAWSOCIETY

The Solicitors’Helpline is availableto assist everymember of theprofession with anyproblem, whetherpersonal orprofessional


58

Professionalinformation

ADVERTISING RATES

All advertisements must be paid for prior to publication. Deadline for Jan/Feb2005 Gazette: 21 January 2005. For further information, contact CatherineKearney or Valerie Farrell on tel: 01 672 4828 (fax: 01 672 4877)

• Lost land certificates – €46.50 (incl VAT at 21%)• Wills – €77.50 (incl VAT at 21%)• Lost title deeds – €77.50 (incl VAT at 21%)• Employment miscellaneous – €46.50 (incl VAT at 21%)

HIGHLIGHT YOUR ADVERTISEMENT BY PUTTING A BOX AROUND IT – €30 EXTRA

Advertising rates in the Professional information section are as follows:

GazetteLawSociety

LOST LANDCERTIFICATES

Registration of Title Act, 1964An application has been received fromthe registered owners mentioned inthe schedule hereto for the issue of aland certificate as stated to have beenlost or inadvertently destroyed. A newcertificate will be issued unless notifi-cation is received in the registry with-in 28 days from the date of publicationof this notice that the original certifi-cate is in existence and in the custodyof some person other than the regis-tered owner. Any such notificationshould state the grounds on which thecertificate is being held.(Register of Titles), Central Office, LandRegistry, Chancery Street, Dublin (Published 10 December 2004)

Regd owner: Elizabeth and Mary JDonohoe, Killalis, Shercock, CoCavan; folio: 23783; lands: Killaliss;Co Cavan

Regd owner: Francis Flood,Carraweelis, Cavan, Co Cavan; folio:1949; lands: Corraweelis; area:3.7433 hectares; Co Cavan

Regd owner: Mary Kangley, Rakeevan,Bailieboro, Co Cavan; folio: 2463;lands: Rakeevan; area: 4.1581hectares; Co Cavan

Regd owner: Patrick Bleach; folio:9078; lands: townland ofCaherhurley and barony of TullaUpper; Co Clare

Regd owner: Alan Cummins; folio:26326F; lands: townland of Liffordand barony of Islands; Co Clare

Regd owner: John Joseph Dooley;folio: 296; lands: townland ofCraggaknock West and barony ofIbricken; area: 13 acres, 3 roods, 23perches; Co Clare

Regd owner: the county council of thecounty of Clare; folio: 19466; lands:townland of Drumline and barony ofBunratty Lower; area: 0.5058hectares; Co Clare

Regd owner: Frederick Penny; folio:11773F; lands: plots of ground beingpart of the townland ofBritfieldstown in the barony ofKinalea and county of Cork; CoCork

Regd owner: Seamus Rochford; folio:34197F; lands: plots of groundknown as 31 Mount Sion Road inthe parish of St Nicholas and in thecounty borough of Cork; Co Cork

Regd owner: Helen Hayes; folio:4558L; lands: plots of ground beingpart of the townland of CarrigalineWest in the barony of Kerrycurrihyand county of Cork; Co Cork

Regd owner: Anthony Jordan; folio:48659; lands: plots of ground beingpart of the townland of Ballymurphyin the barony of Kinalea and countyof Cork; Co Cork

Regd owner: Robert Meara; folio:13496; lands: plots of ground beingpart of the townland of Dromdrasdil

in the barony of Carberry East(West Division) and county ofCork; Co Cork

Regd owner: James Nunan; folio:39779; lands: plots of ground beingpart of the townland of Lisnacon inthe barony of Dunhallow and coun-ty of Cork; Co Cork

Regd owner: Michael O’Brien; folio:29544; lands: plots of ground beingpart of the townland of Kilmoney inthe barony of Kerrycurrihy andcounty of Cork; Co Cork

Regd owner: Patrick Rea; folio: 7680;lands: plots of ground being part ofthe townland of Gortroe in thebarony of Condons and Clangibbonand county of Cork; Co Cork

Regd owner: Rev James Joseph Roche,Rev Richard Joseph Ronayne, RevDaniel Murphy; folio: 9188; lands:plots of ground being part of thetownland of Garranenagappul inthe barony of Muskerry West andcounty of Cork; Co Cork

Regd owner: John Byrne, Corlea,Killygordon, Co Donegal; folio:17840; lands: Mullaghaneary; area:5.6175; Co Donegal

Regd owner: Bridget McLaughlin,Meenacarn, Lettermacaward, CoDonegal; folio: 14524; lands:Meenacarn; area: 2.3699 hectaresand 2.1144 hectares; Co Donegal

Regd owner: Colm and Ann Butler;folio: DN13809L; lands: propertysituate to the east of Appollo Walkin the parish of Coolock, district ofCoolock West; Co Dublin

Regd owner: Clare Feeney; folio:DN4893F; lands: a plot of groundshown as 113 Ardilaun, situate inthe townland of Carrickhill andbarony of Coolock, shown as plan451; Co Dublin

Regd owner: Stephen and GrainneKennedy; folio: DN34893L; lands:property situate to the east ofAppollo Walk in the parish ofCoolock, district of Coolock West;Co Dublin

Regd owner: Julie Kennedy; folio:DN97235L; lands: property beingan apartment known as no 30 on thesecond floor of Block 2, HeatherCourt, Stepaside Park, being part ofthe townland of Kilgobbin andbarony of Rathdown; Co Dublin

Regd owner: Joseph and YvonneWaldron; folio: 32467F; lands: 40Derry Park, Crumlin, Dublin 12;Co Dublin

Regd owner: Noeleen Cahill; folio:DN80503L; lands: property situatein the townland of Templeogue andbarony of Uppercross, known as 10Cypress Grove South; Co Dublin

Regd owner: James Joseph (Shane)Redmond and Mary Redmond;folio: DN27800L; lands: propertysituate in the townland of Burrowand barony of Coolock; Co Dublin

Regd owner: Fiona Sammon; folio:DN92109F; lands: property situatein the town and parish of

Clondalkin; Co Dublin Regd owner: Ann Wogan; folio:

DN34190F; lands: property situatein the townland of Johnstown andbarony of Uppercross; Co Dublin

Regd owner: Michael Hanlon; folio:42151; lands: townland of Belviewor Lissareaghaun and barony ofLongford; area: 54 acres, 3 roods,14 perches; Co Galway

Regd owner: Patrick O’Halloran;folio: 50139; lands: townland ofPorridgerown East and barony ofMoycullen; area: (1) 16 acres, 2roods, 21 perches; (2) 42 acres, 2roods, 15 perches (six undivided 59th

parts); Co GalwayRegd owner: Shawn McMahon, c/o St

Joseph’s National School, Kinvara,Co Galway; folio: 24938F; lands:townland of Kinvara and barony ofKiltartan; area: 0.5590 hectares; CoGalway

Regd owner: Mary O’Reilly(deceased); folio: 12073; lands:townland (1) Woodford, (2) Bolagand barony of (1) and (2) Leitrim;area: (1) 1.5880 hectares; CoGalway

Regd owner: Emir Shanahan; folio:3388F; lands: townland ofTooreenealagh and barony ofIveragh; Co Kerry

Regd owner: Owen and Mary J Walsh;folio: 1475F; lands: townland ofGreenagh and barony of Magunihy;Co Kerry

Regd owner: Mary Curley; folio:7147F; lands: townlands ofBarrettstown and Lattensbog andbaronies of Connell; Co Kildare

Regd owner: Patricia Mellott; folio:38299F; lands: townland ofNewtown and barony of North Salt;Co Kildare

Regd owner: Patrick and CarmelO’Shea; folio: 3380F; lands: town-land of Coolane and barony ofKilkea and Moone; Co Kildare

Regd owner: Myrtle and ArthurStanley; folio: 17306; lands: Srahand barony of Clarmallagh; CoLaois

Regd owner: William and MaryBolton; folio: 8344F; lands:

Kilbride, Portarlington, Co Laois;Co Laois

Regd owner: John Ramsbottom(deceased); folio: 1538; lands:Ballinclough and barony ofCullenagh; Co Laois

Regd owner: Thomas Hicker; folio:5039; lands: townland ofCahercorney and barony ofSmallcounty; Co Limerick

Regd owner: James O’Brien; folio:1382F; lands: townland of Caherassand barony of Coshma; CoLimerick

Regd owner: Jeremiah and MaureenO’Shea; folio: 4916; lands: townlandof Stookeens and barony ofCoshlea; Co Limerick

Regd owner: Alice Brady (deceased),Fardrumman, Ballinamuck, CoLongford; folio: 1171F; lands:Fardrumman; area: 0.0202 hectares;Co Longford

Regd owner: Mark McQuillan, 7Platten Road, Drogheda, Co Louth;folio: 3812L; lands: no 7 PlattenRoad; Co Louth

Regd owner: Mary Winifred Magee,64 Muirhevna, Dundalk Road,Dundalk, Co Louth; folio: 3417F;lands: Marshes Upper; Co Louth

Regd owner: the county council of thecounty of Mayo; folio: 18268F;lands: townland of Belmullet andbarony of Erris; Co Mayo

Regd owner: Gerry and MaureenCallaghan, Boyerstown, Navan, CoMeath; folio: 19065F; lands:Haggard Street; area: 0.0380hectares; Co Meath

Regd owner: Michael and BredaConneely, Curraghdoo, Summer-hill, Co Meath; folio: 23950F; lands:Curaghdoo; Co Meath

Regd owner: Bridget Crolly,Rodanstown, Kilcock, Co Meath;folio: 26015; lands: Rodanstown;area: 0.2124 hectares; Co Meath

Regd owner: Kathleen Lynch,Fordrath, Athboy, Co Meath; folio:22758; lands: Fordrath; Co Meath

Regd owner: Claire McCormack andMargaret Gallagher, 15 Flower Hill,Navan, Co Meath; folio: 4603F;lands: Abbeyland; Co Meath


59

Regd owner: Noel and PatriciaBrowne: folio: 6295F; lands:Clonmore and barony of Geashill;Co Offaly

Regd owner: Joan and BrendanO’Brien; folio: 12522F; lands: town-land of Beagh (Brabazon) andbarony of Moycarn; area: 0.186hectares; Co Roscommon

Regd owner: Thomas GerardShanagher; folio: 16633; lands:townland of (1) Corbally, (2)Moheedian and barony of (1) and (2)Frenchpark; area: (1) 12.9170hectares and (2) 0.3439 hectares; CoRoscommon

Regd owner: Bernard A Boyle(deceased); folio: 22320; lands:townland of Tonaphubble andbarony of Carbury; area: 1 rood, 3perches; Co Sligo

Regd owner: Robert Alexander; folio:15773F; lands: townland of Lackaand barony of Lower Ormond; CoTipperary

Regd owner: Francis John and HelenPhilomena Wyatt; folio: 22263;lands: townland of Jossestown andbarony of Middlethird; CoTipperary

Regd owner: Thomas Keating; folio:(1) 1845, (2) 1846, (3) 1854, (4) 3254,and (5) 6231; lands: townland of (1),(2), (3) and (5) Coxtown East, (4)Dunmore and barony of (1), (2), (3),(4) and (5) Gaultiere; area: (1) 1.3884hectares; (2) 3 acres, 10 perches; (3)3 acres, 1 rood, 11 perches; (4) 6acres, 2 roods, 15 perches; (5) 13acres, 18 perches; Co Waterford

Regd owner: Patrick Nugent; folio:1543; lands: plots of ground beingpart of the townland ofKilmacomma in the barony ofGlenhiry and county of Waterford;Co Waterford

Regd owner: John Hall (deceased);folio: 3771; lands: Barnadown Lowerand barony of Gorey; Co Wexford

Regd owner: Fiach McDonagh; folio:21706; lands: Norrismount andbarony of Scarawalsh; Co Wexford

Regd owner: Kevin McPhillips; folio:28216F; lands: Kilhile and barony of

Shelburne; Co WexfordRegd owner: Bridget and Arthur

O’Leary; folio: 4779 and 11890;lands: Clonee Upper and barony ofScarawalsh; Co Wexford

Regd owner: Matthew George andLaura Power; folio: 20114; lands:Haggard and Blackhall and baronyof Bargy; Co Wexford

Regd owner: Oliver Plunkett Behan;folio: 5139; lands: townlands ofCronroe and Milltown North andbaronies of Newcastle; Co Wicklow

Regd owner: Michael Joseph Healy ofToor, Hollywood, Co Wicklow;folio: 11921; lands: land situate inthe townland of Toor in the baronyof Talbotstown Lower in the countyof Wicklow; Co Wicklow

Regd owner: Joseph Healy (otherwiseJoe), otherwise Michael Joseph;folio: 7317; lands: townland ofGranabeg Upper and barony ofTalbotstown Lower; Co Wicklow

Regd owner: Johanna Kinsella; folio:9790; lands: townland of RathdownLower and barony of Rathdown; CoWicklow

Regd owner: Brendan and MargaretO’Toole; folio: 9175; lands: town-land of Kilcoole and barony ofNewcastle; Co Wicklow

WILLS

Byrne, Joseph P (deceased), late of 82St Declan’s Road, Marino, Dublin 3.Would any person having knowledge ofa will made by the above nameddeceased, who died on 29 October1996, please contact Gaffney Halligan& Co, Solicitors, 413 Howth Road,Raheny, Dublin 5

Craine, James (deceased), late of 27Croghan Heights, Emoclew, Arklow,Co Wicklow. Would any person havingknowledge of a will executed by theabove named deceased, who is pre-sumed to have died on 7 May 1997,please contact WR Joyce & Company,Solicitors, 18 Main Street, Arklow, CoWicklow

Hickey, James (widower) (deceased),late of Cloughaleigh, Golden, CoTipperary. Would any person havingknowledge of a will made by the abovenamed deceased, who died on 10October 2004 or thereabouts at his res-idence at Cloughaleigh, Golden, CoTipperary and formerly havingaddresses as Athassal Abbey, Golden,Co Tipperary and Rathclogheen,Golden, Co Tipperary respectively,please contact English Leahy Donovan,Solicitors, 8 St Michael Street,Tipperary town

Meehan, Michael (deceased), late of77 Casino Road, Marino, Dublin 3.Would any person having knowledge ofa will made by the above nameddeceased, who died on 11 April 2004,please contact Dundon Callanan,Solicitors, 17 The Crescent, Limerick;tel: 061 411 022, fax: 061 411 027

Tarpey, Daniel (deceased), late ofCarrowkeel, Ballyhaunis, Co Mayo.Would any person having knowledge ofa will executed by the above nameddeceased, who died on 15 October2004, please contact John F Mitchell &Co, Solicitors, Main Street, Headford,Co Galway; tel: 093 36622

MISCELLANEOUS

Northern Ireland solicitors providingan efficient and comprehensive legalservice in all contentious/non-con-tentious matters. Dublin-based consul-tations and elsewhere. Fee apportion-ment. ML White, Solicitors, 43-45Monaghan Street, Newry, Co Down;tel: 080 1693 68144, fax: 080 169360966

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

England and Wales solicitors willprovide comprehensive advice andundertake contentious matters.Offices in London, Birmingham,Cambridge and Cardiff. ContactLevenes Solicitors at Ashley House,235-239 High Road, Wood Green,London 8H; tel: 0044 2088 17777,fax: 0044 2088 896395

London solicitors will be pleased toadvise on UK matters and undertakeagency work. We handle probate, liti-gation, property and company/com-mercial. Parfitt Cresswell, 567/569Fulham Road, London SW6 1EU; DX83800 Fulham Broadway; tel: 00442073 818311, fax: 0044 2073 816723,e-mail: arobbins@ parfitts.co.uk

Wanted: seven-day on licence.Details to Kevin P Kilraine & Co,Solicitors, Mohill, Co Leitrim; tel: 071963 1170, fax: 071 963 1558

DISTRICT COURTPRACTITIONERS

Road traffic offences(in particular)

Are you unsure whether yourclient was summoned to appear

in the correct District Courtjurisdiction?

I can supply definitive proof ofDistrict Court boundaries, using

the digitally processed cartographicdata used in my District Court

map, but with far greater resolution (to within a few metres).

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fax: 091 592 614; DX 4543Galway, Mary St for details

Need typing in a hurry? Experiencedtypist available to work from own home– dictaphone typing, reports, computa-tion, thesis, reports, and so on, wel-come. Regular or once-off assignmentsaccepted. Confidential service withquick turnover at competitive rates.Please contact 087 631 9469

Galway agent – qualified solicitoravailable to act in civil and criminalmatters in all courts throughoutGalway city and county. Also townagent service for issuing and service ofcourt documents. Contact JamesSeymour of Seymour & Co, 97 ManorCourt, Knocknacarra, Galway; tel: 086815 2932, fax: 091 510 897

TITLE DEEDS

In the estate of Andrew E O’Reilly(deceased) and in the estate ofAndrew H O’Reilly (deceased).Property comprising a site atRoundwood in the parish ofDerrylossory, barony of BallincorNorth in the county of Wicklow.Anybody with any information regard-ing the whereabouts of the title docu-ments relating to the above propertypurchased by Andrew E O’Reilly on orabout 18 April 1975, please contactO’Regan Little, Solicitors, 179Church Street, Dublin 7 (referencePL/BN/McD024)

In the matter of the Landlord andTenant (Ground Rent) Acts, 1967-1994: an application by EoghainKelly, David Kelly, John Kelly,Aoibhlinn Kelly, Barry Kelly andPatricia Kelly: notice of intention toacquire fee simple (section 4)Take notice that any person having anyinterest in the freehold estate of the fol-

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lowing property: all that and those thedwellinghouse and shop situate atMain Street in the town of Castlebarwith the appurtenant thereto belong-ing, which said premises were former-ly held as a yearly tenant from oneMary Anne Gallagher at the yearlyrent of thirty pounds (£30) and theyare now held under the George Ellisestate at the yearly rent of thirty-sevenpounds, ten shillings and zero pence(£37.10s.00d), situate in the barony ofCarra and county of Mayo.

Take notice that Eoghain Kelly,David Kelly, John Kelly, AoibhlinnKelly, Barry Kelly and Patricia Kellyintend to submit an application to thecounty registrar for the county ofMayo for the acquisition of the free-hold interest in the aforesaid property,and any party ascertaining that theyhold a superior interest in the aforesaidpremises are called upon to furnishevidence of title to the aforementionedpremises to the below named within21 days of the date of this notice.

In default of such notice beingreceived, Eoghain Kelly, David Kelly,John Kelly, Aoibhlinn Kelly, BarryKelly and Patricia Kelly intend to pro-ceed with the application before thecounty registrar at the end of 21 daysfrom the date of this notice and willapply to the county registrar for thecounty of Mayo for direction as maybe appropriate on the basis that theperson or persons beneficially entitledto the superior interest including thefreehold reversion in the aforemen-tioned premises are unknown orunascertained, which said applicationshall be heard on Monday 21November at 11am at the Courthouse,Castlebar, in the county of Mayo, incourt no 4 or the earliest opportunitythereafter.

Date: 10 December 2004Signed: Thomas J Walsh (solicitor for theapplicants), 1 Mill Lane, Main Street,Castlebar, Co Mayo

In the matter of the Landlord andTenant Acts, 1967-1994 and in thematter of the Landlord and Tenant(Ground Rents) (No 2) Act, 1978: anapplication by Alhdof LimitedTake notice that any person having aninterest in the freehold estate of the fol-lowing property: all that and those thefactory premises situate at BrookfieldRoad, Kilmainham in the city ofDublin, being the premises held undera lease dated 1 August 1967 and madebetween Thomas O’Reilly of the onepart and Terence Francis Saunders andJames P Dawson of the other part forthe term of 132 years from 1November 1965 at a yearly rent of £50.

Take notice that Alhdof Limitedintends to submit an application to thecounty registrar for the city of Dublinfor the acquisition of the freeholdinterest in the aforesaid property, andany party or parties asserting that theyhold a superior interest in the aforesaidpremises are called upon to furnish evi-dence of title to the aforementionedpremises to the below named within 21days from the date of this notice.

In default of any such notice beingreceived, Alhdof Limited intends toproceed with the application before thecounty registrar at the end of 21 daysfrom the date of this notice and willapply to the county registrar for 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 premises areunknown or unascertained.Date: 10 December 2004Signed: McEvoy Partners (solicitors for theapplicant), Canada House, 65-68 StStephen’s Green, 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: anapplication by Mary O’BoyTake notice that any person having aninterest in the freehold estate in the fol-lowing property: all that and those thepremises known as number 75Summerhill in the parish of SaintGeorge and city of Dublin, being partof the premises comprised in anddemised by the indenture of lease of 8August 1878 between the HonourableCharles Spencer of the one part andJohn Thompson of the other part.

Take notice that Mary O’Boyintends to submit an application to thecounty registrar for the county of thecity of Dublin for the acquisition of thefee simple interest in the aforesaidproperty, and any party asserting thatthey hold a superior interest in theaforesaid property is called upon to fur-

nish evidence of title to the aforemen-tioned property to the below namedwithin 21 days from the date of thisnotice.

In default of any such notice beingreceived, the applicant, Mary O’Boy,intends to proceed with the applica-tion before the county registrar at theend of the 21 days from the date of thisnotice and will apply to the countyregistrar for the county of the city ofDublin for directions as may be appro-priate on the basis that the person orpersons beneficially entitled to thesuperior interest including the free-hold reversion in the aforesaid proper-ty are unknown or unascertained.Date: 10 December 2004Signed: Reddy Charleton & McKnight,12 Fitzwilliam Place, 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: anapplication by Patrick MorrisseyLimitedTake notice that any person having aninterest in the freehold estate of theproperty known as all that and thosethe premises known as 147 UpperLeeson Street in the city of Dublin,held under an indenture of lease dated4 March 1899 and made betweenAgnes Augusta Chambers of the firstpart, the Reverend Charles JohnRidgeway and Henry George Baily ofthe second part, Catherine Mary Bailyof the third part and Thomas Saul ofthe fourth part for the residue of aterm of 200 years from 14 December1840 at a peppercorn rent and thecovenants on the part of the lessee tobe performed and conditions thereincontained.

Take notice that Patrick MorrisseyLimited has submitted an applicationto the county registrar for the countyof the city of Dublin for the acquisi-tion of the freehold interest in theaforesaid property, and any partyasserting that they hold a superiorinterest in the aforesaid premises arecalled upon to furnish evidence of titleto the aforementioned premises to thebelow named within 21 days from thedate of this notice.

In default of any such notice beingreceived, the said Patrick MorrisseyLimited intends to proceed with theapplication before the county registrarfor the county of the city of Dublin atthe end of 21 days from the date of thisnotice and will apply to the countyregistrar for directions as may beappropriate on the basis that the per-son or persons beneficially entitled tothe superior interest including thefreehold reversion in the property areunknown or unascertained.Date: 10 December 2004Signed: Ross Hayes, Solicitors (solicitorsfor the applicant), 25 Mespil Road,Dublin 4

In the matter of the Landlord andTenant Acts, 1967-1994 and in thematter of the Landlord and Tenant(Ground Rents) (No 2) Act, 1978: anapplication by Fusano PropertiesLimitedTake notice that any person having aninterest in the freehold estate of the fol-lowing properties: all that and those theproperties known as 32, 33 and 34Queen Street and formerly known asnumbers 32, 33, 33A, 34 and 34AQueen Street, situate in the parish of StPaul and city of Dublin, together withthe yards, outbuildings and appurte-nances forming part thereof, being theland originally demised by the leasedated 1 November 1821 made betweenWilliam John Curtis of the one partand Thomas Gorman of the other partfor the term of 999 years from 1November 1821, subject to the yearlyrent of £26.0s.0d thereby reserved andthe covenants and conditions thereincontained.

Take notice that Fusano PropertiesLimited intends to submit an applica-tion to the county registrar for the cityof Dublin for the acquisition of thefreehold interest in the aforesaid prop-erties, and any party asserting that theyhold a superior interest in the aforesaidproperties are called upon to furnishevidence of title to the aforementionedproperties to the below named within21 days from this notice.

In default of such notice beingreceived, the applicant intends to pro-ceed with the application before thecounty registrar at the end of 21 daysfrom the date of this notice and willapply to the county registrar for 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 above properties areunknown or unascertained.Date: 10 December 2004Signed: Beauchamps Solicitors (solicitorsfor the applicant), Dollard House,Wellington Quay, Dublin 2

In the matter of the Landlord andTenant Acts, 1967-1994 and in thematter of the Landlord and Tenant(Ground Rents) (No 2) Act, 1978: anapplication by George Sothernrelating to no 37 Dublin Street,CarlowAny person having an interest in thefreehold estate or any superior or inter-mediate interest in the property knownas no 37 Dublin Street, Carlow, whichis comprised in folio 1438L, Co Carlowand is held along with other propertyunder lease dated 18 December 1852 atthe yearly rent of £25.

Take notice that the applicant,George Sothern, intends to apply tothe county registrar for the county ofCarlow for the acquisition of the free-hold interest and all intermediate inter-ests in the above property. Any party

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asserting that they hold an interestsuperior to the applicants in the saidproperty is called upon to furnish evi-dence of title to same to the undermen-tioned solicitors within 21 days fromthe date hereof.

In default of any such notice beingreceived, the applicant intends to pro-ceed with the application before thecounty registrar at the nearest opportu-nity after the end of 21 days from thedate of this notice and will apply to thesaid county registrar for the said countyfor such direction as may be appropri-ate on the basis that the person or per-sons beneficially entitled to such free-hold interest or intermediate interest insaid property is unknown or unascer-tained.

Date: 10 December 2004Signed: William Fry (solicitors for theapplicant), Fitzwilton House, Wilton Place,Dublin (reference: 00267.0019. NBC)

In the matter of the Landlord andTenant (Ground Rents) Acts, 1967-1994 and in the matter of theLandlord and Tenant (Ground Rents)(No 2) Act, 1978: an application byThe Liffey Trust LimitedTake notice that any person having aninterest in the next superior interest orfreehold estate of the property knownas 117-126 (both inclusive) UpperSheriff Street in the city of Dublin,being a portion of the property heldunder indenture of lease dated 1 March1867 between William Harte andNewton Williams of the first part,Edward Arthur Carolin of the secondpart, Charles Henry Carolin, GeorgeWilliam Carolin, Amelia IsmenaCarolin and Susanna Adeliza Carolin ofthe third part and Richard Martin of thefourth part for the term of 999 years.

Take notice that The Liffey TrustLimited intends to submit an applica-tion to the county registrar for the cityof Dublin for the acquisition of thefreehold interest in the aforesaid prop-erty and that any party asserting thatthey 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, The Liffey Trust Limitedintends to proceed with the applicationbefore the county registrar at the end of21 days from the date of this notice andwill obliged to the county registrar forthe city of Dublin for directions as maybe appropriate on the basis that thesome of the person or persons benefi-cially entitled to the superior interestsincluding the freehold reversion in theaforesaid property are unknown orunascertained.Date: 10 December 2004

NORTHERNIRELAND

SOLICITORSWe will engage in,

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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.

SPANISH LAWYERS

RAFAEL BERDAGUER ABOGADOS

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

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PROFILE:

Spanish Lawyers Firm focusedon serving the need of the for-

eign investors, whether in compa-ny or property transactions and allattendant legalities such as ques-tions of inheritance, taxation,accounting and bookkeeping,planning, land use and litigation inall Courts.

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UNITED STATES LAWYERS

Contact Michael Kleeman, Esq., at (toll free) 00-800-221-56970 or bye-mail at [email protected]

For more information about our law firm visitour website at www.kleemanlawfirm.com

Kleeman, Abloeser & DiGiovanni, P.C. is a prominent U.S. law firm that specializes in providing the followinglegal services in the United States:

1 Travel law: Representing foreign visitors seriously injured in the United States

2 Personal injury litigation in the United States


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Signed: O’Donnell Sweeney (solicitors forthe applicant), One Earlsfort Centre,Earlsfort Terrace, 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: anapplication by Mary WalshTake notice that any person having anyinterest in the freehold estate of the fol-lowing property: premises consisting ofa former ground-floor shop premiseswith stores and flat overhead, situated atBridge Street in the village ofKnocklong in the barony of Coshleaand county of Limerick, the site ofwhich is shown outlined in red on themap lodged with the application here-after referred to.

Take notice that Mary Walsh intendsto submit an application to the countyregistrar for the county and county bor-ough of Limerick for the acquisition ofthe freehold interest in the aforesaidproperty and that any party assertingthat they hold a superior interest in theaforesaid property (or any of them) arecalled upon to furnish evidence of titleto the aforementioned premises to thebelow named within 21 days from thedate of this notice.

In default of any such notice beingreceived, Mary Walsh intends to pro-ceed with the application before thecounty registrar at the end of 21 daysfrom the date of this notice and willapply to the county registrar for thecounty of Limerick for directions as maybe appropriate on the basis that the per-son or persons beneficially entitled tothe superior interest including the free-hold reversion in the said premises areunknown or unascertained.Date: 10 December 2004Signed: Kennedy Frewen O’Sullivan (solic-itor for the applicant), St Michael Street,Tipperary Town

RECRUITMENT

Apprenticeship required: all areasconsidered. Personable, pragmatic andhard-working individual with over tenyears’ work experience seeks apprentice-ship from May 2005. Strong academicbackground, including honours businessdegree and MBA, currently studying on2004 PPC1 course; tel: 086 367 8731

Assignment of traineeship required:seeking general practice in Dublin/Kildare. Prior in-office experience incommercial conveyancing and litigation.Highly motivated and detail oriented.Passed PPC1 and will pay own PPC2fees. Excellent references. Available forimmediate start; tel: 087 205 7486

Assistant solicitor required for smallpractice approximately 15 miles fromGalway city. Conveyancing experienceessential. May suit part-time solicitor.Applications treated in the strictest con-fidence. Please reply to box no 100/04

Experienced legal executive/locumsolicitor for residential conveyancing.Three to four years’ experiencerequired, Dublin 2 area. Flexiblearrangements; tel: 662 7969

Full-time/part-time solicitor requir-ed for general practice in medium-sizedbusy firm in Waterford city. Experiencepreferred but not essential. Applicationswith CV to Newell Quinn Gillen, SouthParade, Waterford

Locum solicitor required: Mullingar,general practice, four/six months, startJanuary 2005, experience required; con-tact Sally-Ann O’Donnell or PaddyCrowley at 044 408 87/8 or send CV toJJ Macken, Bishopsgate Street,Mullingar, Co Westmeath

Locum solicitor required from begin-ning of February for three to fourmonths. General practice experiencerequired. Please apply to PatriciaHolohan & Co, Solicitors, 57 FlowerHill, Navan, Co Meath; e-mail: [email protected]

Locum solicitor required, generalpractice experience, from February toJune/July 2005. Full time or part time.Excellent conditions. Please contact:Farrell McDonnell Sweeney & Co,Solicitors, Abbey Street, Roscommon;tel: 090 662 6102, fax: 090 662 5394, e-mail: [email protected]

Solicitor available for full-timeemployment in Tipperary or Limerickarea. Experience in conveyancing andprobate. Reply to box no 101/04

Solicitor required for conveyancingand probate. Please reply with CV tobox no 102/04

Solicitor required for legal practice inCork city. Must have conveyancingexperience. Excellent salary and work-ing conditions for a suitable applicant.May suit part-time applicant.Immediate start. Please reply with CVto box no 103/04

Solicitor with two years’ PQE in gener-al practice seeks similar role inMeath/Louth area. Role involving crim-inal law particularly desired. Pleasereply to box no 104/04

Traineeship required: hard-working,ambitious, self-motivated and enthusias-tic, with strong academic background,extensive in-office experience in litiga-tion/district court/probate/ insolvency.Excellent communication and IT skills.Will finish PPC1 in April 2005. Anylocation considered. Please reply to boxno 105/04

Vacancy for trainee solicitor in busygeneral country practice. Apply to JamesP Sweeney & Company, Solicitors,Falcarragh, Co Donegal; fax: 074 9135121, e-mail: [email protected]

Recruirment

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View our website for further roles available www.meghengroup.comYour details will not be forwarded to any third party without your prior consent

Contact Clare Reed on T: (01) 433 9022 F: (01) 433 9090E: [email protected]

97 Lower Baggot Street Dublin 2 T: (01) 433 9000 www.meghengroup.com

■ PRIVATE PRACTICE

Commercial Top tier firm is looking for a senior commercial lawyer with strong M&Atransaction experience. Working with an impressive client base this rolewill offer excellent career progression for the right person. 3-5 years’PQE Ref: CR1523

Commercial ContractsThis reputable and growing boutique practice with a strong internationalreputation requires contract specialists with excellent drafting and nego-tiation skills for domestic and international clients. 2-4 years’ PQE. Ref:CR1327

Banking and FinanceTop tier firm requires an experienced solicitor with knowledge of syndi-cated lending and project finance transactions. 2-4 years’ PQE. Ref: CR1333

PPP/Project FinanceOpportunity to join this leading team. Incorporating a wide variety of dif-ferent areas of structured finance including in particular PPP and PFItransactions. 3-4 years’ PQE. Ref: CR1349

FundsTop tier firm requires fund expertise with multi jurisdictional experienceand wide product knowledge to advise fund promoters. Knowledge ofIrish Investment fund law essential. 4 years’ + PQE. Ref: CR1311

Medical NegligenceTop tier practice seeks an experienced plaintiff litigation lawyer withstrong medical negligence experience. 3-4 years PQE. Ref: CR1534

Tax SupportTop tier firm is seeking a tax specialist to join their professional supportteam to support the tax practice and other groups. Development of knowl-edge systems would be useful. 5 years’ PQE. Ref: CR1472

PensionsThis prestigious firm seeks employment, pensions and benefits expertiseto advise their corporate clients. Strong knowledge of domestic pensionlaw is required. 3-5 years’ PQE. Ref: CR1477

Employment – Top TierThis reputable and stable practice has a rare opportunity to join their busyfirm. Working with contentious employment cases you will have stronglitigation experience and ETA experience. 3-5years’ PQE. Ref: CR1479

Product Liability – Top TierThis large and reputable practice seeks a product liability solicitor.Handling claims on behalf of both domestic and global insurance clientsand others the claims involve food, pharmaceutical and manufacturing. 2yrs PQE. Ref: CR1480

Snr. Commercial Property/Construction A chance to progress your career in this highly respected boutique com-mercial practice. Experience with large developments and constructionessential. 5+ years’ PQE. Ref: CR1323

Commercial PropertyTop tier practice is looking for a strong commercial property solicitor withestablished bank relationships. You will be used to working on high valueproperty deals and be looking to progress your career. 2-3 years’ + PQE.Ref: CR1319

Commercial Property – Mid SizeStrong mid size firm is seeking a commercial property solicitor with atleast 3 years PQE. Career advancement and great environment. 3 years’+ PQE. Ref: CR1320

Private ClientThis medium sized general practice seeks a strong private client solicitorwith good relevant experience. 5 years’ PQE. Ref: CR1530

Cork – LitigationThis Cork based firm requires an experienced defence litigation solicitorfor their insurance clients. 2-3 years PQE. Ref: CR1529

■ IN-HOUSE

Funds/Hedge FundsA leading investment company is looking for a strong and successfulfunds lawyer with significant Hedge Fund knowledge. 3-5 years’ PQE.Ref: CR1618

Legal SpecialistThis global IT company is seeking an experienced commercial lawyer fortheir legal team. Working with commercial issues, contracts, employ-ment, consumer, data protection and regulatory law. This is a fantasticopportunity to get into an in-house role. 1+yrs PQE Ref: CR5590

Company SecretaryGlobal leader is looking for an experienced company secretary for itsclient relationship team. 5 years experience at a senior level is required+ full ICSA accreditation. Ref: CR1294

■ PARTNERS

With recent success in partner placements we are able to give an inform-ative and discreet consultation for partners considering their future.

■ LONDON

Our strong reciprocal relationship with a leading London Legal Recruiterensures we can assist you in your London search. We are particularlyable to assist those with experience in: Corporate/Commercial, Funds,IT/IP, and Commercial Litigation.

Meghen Group offers a tailored service, which meets the specific, and often subtle, demands of the legal industry. Ourclient relationships have developed and matured over the years and we are entrusted with a number of positions on asole agency basis. Meghen Group’s commitment to your job search ensures you have access to decision makers in lawfirms, confidentiality, effective introductions and control of negotiations.

“The greatest secret of success in life is for a person to be ready when their

opportunity comes”Benjamin Disraeli

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