Contents Gazette LawSociety · course, as Aidan McGrath explains 22 28. ONE TO WATCH: NEW...

Contents

Law Society GazetteSeptember 2002

1

Regulars

News 2

Letters 5

Viewpoint 6

Book reviews 31

Tech trends 34

Stockwatch 36

Briefing 37

Committee report 37

Practice note 37

Legislation update 37

Personal injuryjudgments 38

FirstLaw update 41

Eurlegal 45

People and places 49

Apprentices’ page 51

Professional information 52

A pain in the neckWhiplash has almost entered the mythology of personalinjury claims associated with road traffic accidents. Butwhat is whiplash, what causes it and how should it betreated? Dr Aideen Henry tells you all you need to know

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,Kylie Ross. Advertising: Seán Ó hOisín, 10 Arran Road, Dublin 9, tel: 837 5018, fax: 884 4626, mobile: 086 8117116, e-mail:[email protected]. Printing: Turners Printing Company Ltd, Longford. Editorial Board: Pat Igoe (Chairman), Conal O’Boyle (Secretary),Eamonn Hall, Mary Keane, Ken Murphy, Michael V O’Mahony, Michael Peart, Keith Walsh

Volume 96, number 7Subscriptions: €57.15

Cover Story

GazetteLawSociety

A level playing field?The Equal Status Act, 2000 hasgiven rise to some recentcontroversial decisions. Are theequality officers getting it right, orare their decisions only as good asthe legislation under which theyoperate? asks Mary Redmond

Building confidenceEveryone knows that the constructionindustry is a dangerous place to work, butthe new Safety, Health and Welfare at Work(Construction) Regulations 2001 may helpto make building sites safer. GeoffreyShannon outlines their main points

18

Net gains The Internet is a rich source of legal information for the busypractitioner. John Furlong looks at the growth of on-line legalresources and lists some of the most useful law-related sites onthe web

14

Executive actionLegal executives play animportant role in the workof busy law firms and nowtheir value looks set to rise,with the introduction of anew education and trainingcourse, as Aidan McGrathexplains

22

28

ONE TO WATCH: NEW LEGISLATION

News


2

NEW LAW SOCIETYBROCHURESThe Law Society’s Probate,Administration and TaxationCommittee has produced twonew publications, Making awill and Administering anestate. A sample of eachbrochure is included in thisissue of the Gazette. Thebrochures are aimed at thelayman and have a ‘plainEnglish’ format, using as littlelegal jargon as possible. Thebrochures will be launchedlater this month and can bebought in packs of 50. Toplace an order, contactMaureen O’Grady at the LawSociety on tel: 01 672 4800,fax: 01 672 4801.

LAW SCHOOL LANGUAGECLASSES Following the success ofprevious years, the LawSchool is to run anotherprogramme of languageclasses this autumn. Classeswill be held in the newEducation Centre at BlackhallPlace and courses begin inOctober. Each course will lasteight weeks and run from5.30-7pm. Courses on offerinclude French (intermediatelevel), Japanese (beginners’level) and sign language(beginners’ level). For furtherdetails, contact the LawSchool’s Deirdre Healy on tel:01 672 4802.

The Competition Act, 2002Most of the Competition Act,2002 was brought into force on 1July 2002, and nearly the entireremainder (part 3 on mergers andacquisitions) will come into effecton 1 January 2003 (SI 199/02).The act repeals and replaces thethree main statutes which dealwith merger control andcompetition generally in the state.These are the Mergers, Takeoversand Monopolies (Control) Act,1978, the Competition Act, 1991,and the Competition (Amendment)Act, 1996. It implements many ofthe recommendations of theCompetition and Mergers Review

Group, which reported in May2000, and was drafted withregard to the proposed revision ofthe enforcement of EUcompetition law contained in adraft council regulation currentlyunder discussion. It consolidatesand updates the existinglegislation, and the changes toexisting legislation are set out inthe explanatory memorandum withthe Competition Bill, 2001, whichcan be viewed on the Oireachtaswebsite www.irlgov.ie/oireachtasunder Legislative information.

Part 2 sets out competitionrules and enforcement, and is themain subject of this report. Part

3, which comes into effect in thenew year, deals with mergers andacquisitions. Part 4 continues theexistence of the CompetitionAuthority and widens its functions,strengthens its independence andprovides a statutory framework forpractical co-operation between theauthority and the sectoralregulators listed in the firstschedule. Part 5 provides formiscellaneous matters such asrepeals, expenses and saving andtransitional provisions.

Part 2: competition rules andenforcementSection 4 prohibits anti-compet-

itive agreements, decisions and concerted practices and thesection gives a non-exhaustivelist. The more serious ‘hard core’anti-competitive activities includeprice fixing, market sharing andbid rigging. The less seriousoffences include applying differentconditions to equivalenttransactions with different tradingpartners or attaching extraneousconditions. Exemptions arepermitted if they come withincategories declared by theCompetition Authority in writing to comply with sub-section (5)(such declarations being subjectto an appeal to the High Court in

Dubliners signing books of condolence for Holly Wells and JessicaChapman outside the GPO

Media coverage of thearrest of the two suspects

in the Holly Wells and JessicaChapman murders in Englandhas highlighted the very realrisk that pre-trial publicityposes to the interests of justice,Director General Ken Murphyrecently told RTÉ Radio 1’sToday programme.

He said that the relentlessand sensational mediareporting, clearly derived fromoff-the-record briefings fromthe police, was based on whatcould only be described as ‘arelentless presumption of guilt’.There were two risks to thistype of media coverage,Murphy said. ‘One risk is thepotential, as has been the casein America recently, that peoplewho are the subject ofunrestrained media speculationabout criminal involvement andwho turn out to be totallyinnocent still have theirreputations destroyed forever.The second risk is of creatingserious difficulty in securing afair trial for the accusedpersons at a later stage’.

It had to be recognised thatthe police were under intensepressure in certain sensationalcases where enormous publicanger and emotion demandedquick results. The real questionwas whether the police and

Pre-trial publicity warning

media were crossingboundaries which should notbe crossed in the interests ofjustice, said Murphy.

In Ireland, he pointed out,the Supreme Court has saidthat the test is whether or notthere would be ‘an unavoidablerisk of unfairness’ in theholding of a trial, which couldnot be overcome by warningsfrom the judge to the jury. Thedecision of the Circuit Courttwo years ago, subsequently

upheld by the High Court, topostpone the trial of formertaoiseach Charles Haughey inrelation to alleged obstructionof the McCracken Tribunalillustrated this. That trial waspostponed and has not yettaken place. However, he addedthat the court recognises whatis referred to in the judgmentsas ‘the fade factor’, whereby thepassage of time will reducepublic prejudice to a levelwhere a fair trial can be held.

The Irish journal Competition has praised the Law Society’sBusiness Law Committee in its latest edition, saying that ‘this smallbody of solicitors was the most influential of all lobbying groups’making submissions on the Competition Act, 2002. The journal alsonotes that while the Law Society ‘succeeded in getting a largenumber of amendments passed, most of these were in the publicinterest rather than in its members’ interest’.

PRAISE FOR BUSINESS LAW COMMITTEE

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NEW BOOKLET TO EXPLAINCOURT SYSTEMThe Law Society, in associationwith the Courts Service andthe Bar Council, is working onan explanatory booklet todemystify the structure andoperation of the Irish courtsystem for the general public.It’s hoped that the booklet willofficially be launched in earlyOctober, and solicitors’ firmswill be able to obtain multiplecopies to give to their clientsor potential clients.

WHERE THERE’S A WILLProbate specialists Fallon &Stephenson Solicitors will behosting a seminar on draftingwills on Friday 11 October inDublin’s Westbury Hotel. The all-day seminar costs€350 including lunch. Forfurther information, contactFallon & Stephenson on tel: 01 275 6759 or e-mail:[email protected].

PRACTICE MANAGEMENTSEMINARMarketing, IT and maximisingprofitability will be some of thetopics covered in a practicemanagement seminar to beheld in the Law Society onThursday 24 October. Forfurther information, contactOutsource on tel: 01 678 8490or e-mail: [email protected].

accordance with section 15).Sub-section (5) allows ofexceptions if the dubiousagreement, decision or concertedpractice complies with ‘efficiencyconditions’ – that is, contributesto improving the result(production, distribution, servicesor promotion of technical oreconomic progress), whilesharing the benefits with theconsumer, and is no morerestrictive than is necessary anddoes not permit the substantialelimination of competition. It isno longer necessary to notifysuch agreements.

Section 5 prohibits abuse of a

dominant position, and givesexamples that are not exhaustive.

Sections 6 and 7 provide thatan undertaking which is involvedin any prohibited activity undersection 4 or article 81(1) of thetreaty establishing the EC (whichprohibits anti-competitive activity)or section 5(1) or article 82(abuse of a dominant position)shall be guilty of an offence. Thismakes these articles of the treatydirectly applicable law. Section 6creates a presumption that anyagreement between competitorsor decision made by anassociation of competitors orconcerted practice engaged in by

competitors which is to fix prices,limit output or sales, or sharemarkets or customers (the moreserious anti-competitive activities)has an anti-competitive intention,and the onus of proving otherwiseis on the defendant. Any actundertaken by an employee is tobe regarded as an act of theundertaking for the purposes ofdetermining liability for anoffence. Certain defences areprovided, if, for example,exemptions have been granted tothat category of agreement by theCompetition Authority or acommission exemption was inforce at the material time, or the

acts concerned were donepursuant to a determination madeor direction given by a statutorybody (a list of four regulatorybodies is set out in the firstschedule).

Section 8 deals with penalties.The more serious anti-competitiveoffences warrant, on summaryconviction, a fine of up to €3,000or, if the undertaking is anindividual, up to six months’imprisonment and/or a fine, and€300 a day for continuingoffences. On conviction onindictment, up to the greater of €4 million or 10% of the turnoverof the previous financial year or, if

The European Communities(Late Payments in

Commercial Transactions)Regulations 2002 (SI 388/02)came into effect on Tuesday7 August 2002, writes MichaelV O’Mahony. Their mainthrust is that (unless thecontract includes differentterms as to credit period andinterest on overdue accounts,and which are fair) anycommercial purchaser ofgoods or services becomesliable to pay interest at

New late payment regulations issued10.25% (plus a fixed amountof compensation depending onthe size of the debt) onaccounts to suppliersoutstanding for over 30 days.

In acting for a plaintiff inrespect of a claim for paymenton a commercial contract forgoods or services, where thegoods or services weredelivered or the invoice wasdelivered after 7 August 2002,a solicitor should ensure that,in demands or pleadings(unless the contract provides

otherwise), there is a claim inaddition to the amount owedfor both interest pursuant toregulation 4 and compensationpursuant to regulation 9 ofthese regulations.

The regulations seem toapply (as an alternative to thepossibility under section 22 ofthe Courts Acts, 1981) inrespect of pre-judgmentinterest in such cases, thoughthe existing Courts Act interestpost-judgment would continueto apply.

The Competition Authority istrying to complete – earlier

than expected – its study ofcompetition in seven professions,including the two branches of thelegal profession. Indecon, theconsultants retained by theauthority, have been asked tocomplete and submit their reportby the end of this month.

On 28 August, the society hadthe second and last of itsmeetings with economists fromIndecon. The society was toldthat its 220-page submission wasthe most comprehensive that hadbeen received and that Indeconwas also very pleased with thetotal co-operation that thesociety had given.

Early report on competition?Director General Ken Murphysaid: ‘I am a great believer incompetition law and it isperfectly right that the legalprofession should be reviewed inaccordance with its principles toensure that the inevitabletension between regulation andfree and fair competition isproperly maintained’. Whererestrictions on competition exist,they must be ‘both necessary andproportionate’, he added.

The Law Society believedthat both it and the solicitors’profession had ‘a good story totell’ on the subject of competi-tion and it was ‘delighted to havethe opportunity to tell it’, saidMurphy.

Interviewed on the subject ofthe study last month by UK-based journal The lawyer,

Ken Murphy: the profession has a‘good story to tell’

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4

the undertaking is an individual,the same fine and/or five years’imprisonment. Continuing offencesincur a penalty of up to €40,000 aday. The provision for a five-yearmaximum penalty of imprisonmentautomatically allows for a power ofarrest under the Criminal JusticeAct, 1984. Trials on indictment areto be heard in the Central CriminalCourt (section 11).

For the lesser of the anti-competition offences and forabuse of a dominant position, thepenalty on summary conviction isa fine of up to €3,000 (€300 aday for continuing offences) and,on indictment, a fine of up to the

greater of €4 million or 10% ofturnover (€40,000 a day forcontinuing offences). There is noimprisonment for these ‘lesser’offences.

Individuals (directors, managersand people in positions of powerand responsibility) concerned inthe commission of anti-competitive offences may beprosecuted and penalised in thesame way as undertakings, andsub-section 7 provides for apresumption of consent to thecommission of the offence.Summary proceedings may bebrought by the CompetitionAuthority.

Sections 12 and 13 createpresumptions in relation todocuments (who created them,who saw them) and makes themadmissible in evidence. Thecontent of documents may also beadmissible as evidence of thefacts stated in them, and thereare safeguards to protect thepeople concerned and thirdparties.

Section 14 gives a right ofaction to people or undertakingsadversely affected by anti-competitive activity against theundertakings or peopleconcerned. The CompetitionAuthority also has a right of

action, and proceedings may bebrought in the Circuit or HighCourt, and provision is made forinjunctive relief. In cases of abuseof a dominant position, the courtis empowered to order thedominant position to bediscontinued by sale of assets orotherwise, or its exercise subjectto conditions. There is apresumption that people inpositions of power andresponsibility consented to anyanti-competitive acts.

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

G

The Law Society’s CLEdepartment has introduced

a number of courses to helpsolicitors develop their ITskills.

The courses take place in theIT room in the society’sEducation Centre.

The three-hour workshop onLegal research on the Internetheld in June elicited an over-whelming response, and theworkshop is being held again inOctober and in November.This course is run by JohnFurlong, director of legal

CLE takes on information technologyresources and education inMatheson Ormsby Prenticeand chairman of the society’sTechnology Committee. Theworkshop begins with a shortpresentation explaining thelegal research tools available onthe Internet, particularly thefree resources, followed by ahands-on training session thatincludes a number of practicalexercises designed to giveparticipants confidence andknowledge.

This month also sees thelaunch of a 12-week series of

IT workshops, during whichMark Hainbach will helppractitioners with little or noknowledge of PCs to masterthe core computer skills. Thesyllabus will include MicrosoftWord, Outlook and InternetExplorer, and the format willbe highly interactive.

Practitioners interested inthese courses should registerimmediately, as places arelimited and demand is expectedto be high.(See also Net gains in thismonth’s issue, page 14.)

The Social Welfare (RentAllowance) (Amendment)

(No 1) Regulations 2002 (SI354/02) were signed on 10 Julyand came into effect on 26 July2002, writes Alma Clissmann.They are a response to theexpiry of the 20-yearprotection period for certainsuccessor tenants under the1982 Housing Act, and theycontinue the entitlement to arent allowance (which was dueto expire) where the amount ofrent applicable up to 25 Julycontinues to apply or wherethe rent has been set by theCircuit Court under theLandlord and Tenant

Rent allowances for protected tenants€200 band is docked, and overthat amount €1 per euro ofincome is docked. The figuresfor unmarried people arebetween €147 and €347.

In reality, it will be sometime before applications fornew tenancies with new market

rents or repossession cases willcome up for hearing in theCircuit Court and, when theydo, the rent allowance schemeshould ensure that qualifyinglow-income tenants will not bemade homeless because ofinability to pay a market rent.

John Furlong: June workshop hadoverwhelming response

The Solicitors’ Benevolent Association has benefited tothe tune of over €20,000 as a result of proceeds fromthe Law Society Gazette Yearbook and Diary. The2003 Gazette Yearbook and Diary will be availablefrom November, and your continued support is verymuch appreciated. For further information, pleasesee the order form inserted in this month’s issue.

YEARBOOK AND DIARY

2003

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(Amendment) Act, 1980. Therent allowance scheme basesthe allowance on the rentincrease, so that evensignificant increases to marketrents should be covered forqualifying tenants. Theregulations also make themeans test more generous,making the allowance availableto a wider band of tenants bytapering-off eligibility moreslowly. The maximumallowance is available to amarried person with a weeklyincome of up to €261. For anymarried person with an incomebetween €261 and €461, 50cof each euro of income in that

Letters


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Letters

From: Dr Eamonn Hall, Eircom plc

We have all heardcomplaints that the

courts are too slow; proceduresare more complicated thanthey should be, and litigantsare bewildered and sometimestraumatised by theirexperiences in court. It is in thenature of mankind to complainabout the authorities. Asignificant number of litigantsmust, by virtue of theadversarial system, go awayfrom court disappointed. Noteveryone can win.

There has been criticism inthe past that there has beenlittle reliable quantitative dataabout use of the courts bylitigants. It is only when figuresand statistics are available thatsound policies and decision-making can be formulated. Thecompilation of statistics by theCourts Service is welcomed.

In 2001, there were 361appeals lodged in the SupremeCourt. The court dealt with243 appeals. Of these, 107were dismissed and 76 allowed.The remainder were eitherstruck-out or withdrawn withconsent to be dealt with inother ways. At the end of 2001,all cases certified as ready forhearing were given dates forhearing between January andApril 2002. According to theCourts Service, there are nodelays in receiving dates forhearing in the Supreme Court.

In the High Court, 21,602summonses were issued lastyear – up from 16,868 in 2000.The Office of the High Court

dealt with 82,391 pre-hearingmatters, which can bedescribed as affidavits,appearances, motions settingdown for trial and relatedissues.

According to the CourtsService, there are no unduedelays or extended periods ofwaiting for personal injury,judicial review, Circuit Court

appeals, family law, asylum ornon-jury actions coming beforethe High Court in the FourCourts. Cases certified as readyfor hearing were given dates inthe current or coming term.Outside of Dublin, the HighCourt hears 71% of caseswithin six months of theirbeing set down as ready forhearing.

The modernisation of theadministration of justice by theCourts Service is welcomedand is obviously having abeneficial effect.

Overall, there is an increaseof 38% in the number oforders issued by the superiorcourts last year. Undoubtedly,the Irish have a propensity tosue. Are we unique?

From: James Cahill, president,Mayo Solicitors’ Bar Association

The new Castlebar areatelephone directory contains

over 15,000 telephone numbers.It also contains a very simplecommunity-based advertisement,agreed to by all of the Castlebar

Castlebar area telephone directory

Have we become too litigious as a nation?

solicitors. The advertisement isstrategically placed in thedirectory and the colour schemeadopted is quite pleasing.

The cost of theadvertisement worked out atjust under €50 per office. Thelocal area telephone directory,

From: Patrick O’Connor, P O’Connor & Son, Swinford, Co Mayo

W ith tongue in cheek,may I suggest that a

new award be established inIreland, to be entitled TheStella awards. This might beparticularly appropriate in thecurrent frenzied climate ofattacks upon lawyers forallegedly encouragingpersonal injury claims. Itwould be given each year tothe person awarded thebiggest amount of damages inwhat might be misconstruedas a frivolous lawsuit!

Bemused?The Stella awards would be

Stupid is as stupid doesnamed in honour of the 81-year-old Stella Liebeck, whowas awarded US$2.9 millionfor spilling a cup ofMcDonald’s coffee on herself.

I understand that the latestcandidate for the award isKathleen Robertson of Austin,Texas, USA, who was awardeda sum of US$780,000 by a juryfor breaking her ankle aftertripping over a toddler whichran amok in a furniture store.The store owners weresurprised by the verdict, giventhat the toddler was MrsRobertson’s own son!

A thought for your worthyand award-winningpublication!

sponsored by the Chamber ofCommerce, is reproduced everysix or eight years and ends up inalmost every household. Theconcept is one which might beof interest to solicitors in othertowns and bar association areasin the country.

Viewpoint


6

S ignificant changes aretaking place in one of the

most important institutions inthe state. The Supreme Court,located between the Court ofCriminal Appeal and HighCourt no 5 in the Four Courtsbuilding, is not the sleepybackwater that it may look toclients and visitors.

We are now more than twoyears into what we may callthe Keane Supreme Court.There are a further two yearsto go before Mr Justice Keaneis due to retire on reaching 72 years of age. Its success can hardly be measured ifthere is not a yardstick. So,how to judge the judges?What do we want of theSupreme Court?

It is now commonplace fornon-private-sector bodies tohave a ‘mission statement’. Onhis appointment, Mr JusticeKeane did not publicly set outhis objectives. If he had,though, he might haveincluded: • Greater efficiency in the

courts, with fewer anomaliesand delays, and an end tosome faintly ridiculousDickensian practices

• Careful monitoring of thevarious branches ofgovernment to ensure thatthe government did notcross into the judicial roleand vice versa

• Disabusing individuals ofthe belief that if somebodyhas a problem ormisfortune, somebody elsehas to pay for it, and

• A gearing of the SupremeCourt to meet the on-coming challenges as thecountry sheds itscomfortable and protectedpast for the complexities of

What should we expect from a

a heterogeneous and open –if not always contented –society.

Wheels of justiceThe appointment of Mr JusticeRonan Keane as chief justice inJanuary 2000 was a popularone. Often reportedly seen onthe DART travelling to hishome in Monkstown, he hasspoken strongly and publiclyabout how our courts system isin need of repair.

Earlier this year, a newworking group headed by MrJustice Nial Fennelly wasestablished to examine thejurisdictions of the Irish courts.At its launch, the chief justicesaid it would have a ‘a root andbranch’ remit. He had earliersignalled his view of the needfor a radical review of thecourts in a speech in Cork lastyear (see Gazette, April 2001,p11).

In his Cork speech, MrJustice Keane suggested that aradical restructuring of thecourts might be necessary,pointing to such anomalies as

both the Circuit Court and theHigh Court having concurrentjurisdictions to hear family lawcases, such as divorce,separation and nullity. The newworking group is charged withexamining how the courts herehave operated since theirestablishment in 1924.

Unlike the government orthe Oireachtas of the day, theSupreme Court does not have afixed lifespan. Like privatecompanies, it has a continuingexistence. Only the personnelchange. Yet a court can beattributed an ethos according tothe views and philosophies of itsincumbents. So it is with theKeane Supreme Court.

Young at heartThis is a young court witheclectic talent. Mr JusticesHardiman, Fennelly andGeoghegan were appointed in2000, as were Ms JusticesMcGuinness and Denham. MsJustice McGuinness and MrJustice Hardiman wereappointed to the court on thesame day as Ronan Keane wasnamed chief justice. Mr JusticeMurray was appointed in 1999.The eighth member of thecourt, Mr Justice Frank Murphy,was appointed in 1996 and isdue to retire in a few months.

The government’sexpectations or ambitions – if ithas any – in terms of the ethosor philosophy of the court havenot been, and would notnormally be, disclosed. Callsboth for greater openness in theappointment of judges and forpublic discussion on whereindividual candidates for judicialoffice stand on social andeconomic issues have yielded noresults as yet.

Yet, whether by chance or

design, the members of theSupreme Court have a widerange of legal knowledge,experience and life views. Theyinclude Ms Justice Denham, asignificant figure in themovement towards fundamentalreform of the courts system; MrJustice Hardiman, formerly asuccessful senior counsel and anearly figure in the ProgressiveDemocrats; and Ms JusticeMcGuinness, a distinguishedfamily law judge who wasrapidly promoted from theCircuit and High Courts.

Their backgrounds suggestthat they sit on the liberal wingof the court, though perhapsnot to the point of the late MrJustice Niall McCarthy, whowas once described by acommentator as sitting on thebench to the left of the chiefjustice, like a little independentrepublic. Their contributionsare complemented by theEuropean experience of bothMr Justice Murray and MrJustice Fennelly, respectively aformer judge of the EuropeanCourt of Justice and the firstIrish advocate general to theEU. Mr Justice Geoghegan andMr Justice Murphy havewidespread experience, both atthe bar and on the bench.Presiding over them is thegenial figure of the chief justice.Their collective views anddecisions influence the dailylives of ordinary citizens in farmore ways than we may realise.

Last December, by a four-to-one majority, the SupremeCourt overturned the HighCourt decision of Mr JusticePeter Kelly, which directed thegovernment to adhere to itsown timetable in providing forchildren at risk. This decisionput down a significant marker

The current Supreme Court is packed with eclectic talent, writes Pat Igoe, but does it have adistinctive ethos or world view? And if so, what is it?

Mr Justice Ronan Keane: hasspoken strongly and publicly abouthow our courts system is in needof repair

Viewpoint


7

modern Supreme Court?

in the relationship between thecourts and the government. ‘Ifcitizens are taught to look tothe courts for remedies formatters within the legislative orexecutive remit, they willprogressively seek furtherremedies there, andprogressively cease to look tothe political arm ofgovernment’, said Mr JusticeAdrian Hardiman. This often-quoted extract from hisjudgment in the case perhapsserved as one summary of thecourt’s opinion.

Different directionsThe Keane-led court has beencompared, probablyinappropriately, with theSupreme Court of the 1960s,led by Chief Justice CearbhaillO’Dhálaigh, with Mr JusticeBrian Walsh contributingsignificant intellectual ballast.But the exciting and frontier-breaking constitutionaldecisions of the O’Dhálaighcourt do not easily lendthemselves to repetition.O’Dhálaigh’s famous dictumthat ‘we have a constitution butno-one knows what it means’no longer has the same urgency.The Keane court is looking indifferent directions.

Protection for democracy,even at the courts’ own expense,is one trend that is emergingfrom the Four Courts. Inoverturning the O’Kellydecision in the High Court, andpreviously in its decision in theSinnott case that thegovernment was not obliged toprovide free education beyond18 years of age, the court’smessage seems to be ‘renderunto Caesar …’. Ironically, MrJustice Keane was the soledissenting judgment in Sinnott,

arguing that the government inthis case was obliged to providefree education for Jamie Sinnott‘for as long as he is capable ofbenefiting from it’.

In the year before hisappointment as chief justice, MrJustice Keane delivered theSupreme Court judgment whichdeclared that part of the AliensAct was unconstitutional. TheOireachtas could not assign itspolicy-making role to theminister for justice. ‘Theincreasing recourse to delegatedlegislation throughout thiscentury has given rise to anunderstandable concern thatparliamentary democracy isbeing steadily subverted andcrucial decision-making powersvested in unelected officials’, hesaid at the time.

Coming of ageMaintaining a vigil to ensurethat democracy is exercised,while redefining the word inaccordance with Irish society asit develops beyond the dawn ofthe 21st century, seems to be oneof the Keane Supreme Court’smost significant roles.

The importance to the chiefjustice of proper respect for the

institutions of the state washighlighted in his contributionto a collection on leading lawcases (Leading cases of the 20th

century, published in 2000 andedited by Eoin O’Dell).Choosing the Sinn Fein Fundscase (Buckley v Attorney General[1950]), he made somesignificant comments on thegovernment of the day’sattempt to order the HighCourt how to decide a case.The decision of the courtundoubtedly came as a severejolt to politicians who were notaccustomed to taking theconstitution seriously intoaccount, he wrote.

In 1942, Sinn Fein hadsought possession of the sum of£24,000 lodged in the HighCourt to the trust of Sinn Feinin 1924. The Sinn Fein FundsAct, 1947 sought to require thecourt to dismiss the action. Thechief justice applauded MrJustice Gavan Duffy’s witheringdismissal of the government’sattempt to interfere in thejudicial process. Duffy’sjudgment had included thestatement that ‘I am solemnlyasked in this court, sitting as acourt of justice, independent in

the exercise of its functions ... tomake a summary orderdismissing the pending actionout of court without hearing theplaintiffs on the merits of theirclaim’.

The act remains on the statutebook, unused and redundant, anembarrassing reminder tosuccessive governments of theconstitutional separation ofpowers and the independence ofthe courts. Its choice by the chiefjustice was not insignificant.

A timely reminderThe Supreme Court’s decision tooverturn Mr Justice Kelly’sdecision on the obligations of thestate may also have heralded agrowing hesitation by the courtsto fortify the individual at thecost of society. Media commentsin recent years have questionedwhether the judicial function hadnow spread too widely throughIrish society and had, as onecommentator put it, ‘come to beseen as a referee of first resort,instead of last’. Whether we havea negligence culture or acompensation culture, or both,perhaps a reminder is timely thatwe still have to takeresponsibility for ourselves.

Most jurists would agree thatthe Keane Supreme Court is acourt for our time. Greateroperational efficiency, clarity inthe functions of the differentcourts, clearer understanding ofthe roles of the differentbranches of government in thestate, and easier access to thecourts for deserving litigantswould be an enviable legacy. Amid-term report must pointconfidently to the future.

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

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An eclectic mix of talent: Adrian Hardiman and Susan Denham

Cover story


8

The term soft tissue refers to any structurein the body apart from bone. Thisusually refers to structures concernedwith movement – themusculoligamentous structures – and

does not normally include organs such as the liver,brain and heart (see panel page 10).

Whiplash is an injury to the soft tissues of theneck due to an acceleration-deceleration collision-type force, commonly due to a head-on or rear-endcollision motor accident. In a head-on collision, theimpact causes the neck to suddenly whip intoforward bending (flexion) and then into backwardbending (extension). In a rear-end collision, the neckis suddenly whipped into backward bending followedby forward bending.

What gets injured in a whiplash case?The neck consists of seven bones (cervicalvertebrae), C1-C7, held together by muscles andligaments with intervertebral discs forming a shock-absorbing cushion between each pair of vertebrae.The joints between the vertebrae allow a great dealof neck movement, and nerves pass from the spinalcord to exit between the vertebrae and travel to botharms.

A mild whiplash often involves a mildmicroscopic injury, which causes pain but nomovement restriction. A moderate whiplash injuryinvolves a sprain to the cervical ligaments, facetjoints, intervertebral joints and joint capsule, andinjury to the tendons and muscles, greatly restrictingneck movements. A severe whiplash injury involvesa similar pattern of damage as occurs in a moderatewhiplash and also includes some damage to the nerveroots, which exit between the vertebrae, causingweakness, tingling and numbness in the arms.

Most symptoms develop within 48 hours oftrauma and include:

• Neck pain and/or stiffness• Shoulder and upper-back pain (especially between

the shoulder blades)• Headaches and/or dizziness• Numbness, tingling, weakness or pins and

Whiplash has almost entered the mythology of personal injury claims

associated with road traffic accidents. Here, Dr Aideen Henry explains what

whiplash is, what causes it and how it should be treated

INpainA

Cover story

9

N THE

neckM

AIN

POIN

TS • Soft tissueinjuries

• Diagnosingand treatingwhiplash

• Getting thebest medicalreport


Cover story


10

needles in the arms and upper or low-back pain• It may include difficulty swallowing (dysphagia),

ringing in the ears (tinnitus), memory disturbance,jaw pain on chewing (tempero-mandibular jointpain), visual disturbance, and giddiness or a senseof spinning (vertigo).

Getting the full pictureA diagnosis of whiplash is based on the full clinicalpicture: the patient’s description of the accident andhis symptoms, the clinical examination findings, and

results of investigations or special tests. A clinicalexamination involves: • Inspection: an assessment of gait when the

patient is walking and posture when the patient isstanding, sitting, talking, dressing and undressing.This gives some information about pain level andmovement restrictions. Protective muscle spasmoften greatly restricts all movements and makesthese activities painful and restricted

• Range of motion: the range of motion of theneck and the degree of pain experienced in all sixdirections of movement is assessed. Range ofmovement is expressed as a percentage of normalrange for that patient’s age group. Neck range ofmovement naturally decreases as we get older, asthe joints wear and the soft tissues lose someelasticity. The six movements are flexion (forward bending), extension (backward bending), rotation to right, rotation to left,lateral flexion (side tilting) to right and lateralflexion to left

• Palpation: this tests the tenderness to touch –light pressure is applied to all the relevant bonesand soft tissues to detect tenderness and musclespasm

• Upper limb neurological assessment: testingthe nerve supply from the arm skin and to the armmuscles establishes whether any damage hasoccurred to the nerves to the arms. Specific testsfor muscle weakness, loss of feeling to light touch(loss of sensation) and loss of tendon jerks(reflexes) may indicate nerve damage.

Other special tests or investigations that can becarried out include x-ray, CAT scan, MRI and nerveconduction studies.

Degrees of whiplashWhiplash can be graded into mild, moderate andsevere according to the following criteria:• Mild – pain with normal examination. The

patient’s symptoms include neck pain and stiffness.A clinical examination will look for the normal,full range of movement, movement that is painfree, an absence of tenderness, and normal arm-neurology testing

• Moderate – pain with restricted movement.Patient symptoms include neck pain and stiffness.The clinical examination will look for a reducedand painful range of movement, some tendernessto touch, and normal arm-neurology testing

• Severe – pain with restricted movement andnerve compression. Patient symptoms includeneck pain and stiffness, in addition to armweakness/tingling/numbness or pins and needles.The clinical examination will look for a reducedpainful range of movement, tenderness to touch,and abnormal neurological tests on the arms.

Treating whiplashThere are many treatment options available, and thechoice of treatment will depend on the patient’s

Common usage of the term softtissues usually includes the following:• Skin• Subcutaneous fat: the normal layer

of fat found under the skin • Nerve: specialised tissue that acts

as a two-way cable to carrymessages to and from the brain.For example, touching a hot objectcarries the message of excess heatto the brain and immediately thebrain signals the muscles toactivate, to pull the hand away fromthe heat

• Muscle: contractile structure whichby shortening and lengthening itsattachment to bones is responsiblefor body movement

• Tendon: tough non-contractile bandsthat link muscle to bone

• Cartilage: gristle-like substance thatcoats the ends of bones in jointsand also forms the soft, pliable part

of the nose and ear• Joint: where two bones join to allow

movement, normally containingsynovial fluid and cartilage

• Capsule: the tough lining of the joint at the edges of the bones thathelps hold synovial fluid in placeand stabilise the joint

• Ligament: tough band with aconsistency of masking tape thatjoins bone to bone and supports thejoint capsule to stabilise a joint

• Bursa: fluid-filled sack normallyfound between bone and tendon

• Disc: tough cartilage structurefound between the bones(vertebrae) in the spine, composedof a soft pulpy centre (nucleuspulposus) and an onion-skinsurround (annulus fibrosis) whichcan wear (degenerate) and rip,causing the centre to slip out(prolapsed disc).

SOFT, STRONG LONGAND VERY

Neck movement upon impact – large arrows indicate thedirection of impact

Cover story


11

grade of whiplash. The most common treatmentoptions include:• Medication – anti-inflammatory tablets and gels

(Voltarol, Brufen), muscle relaxants (Diazepam)• Heat• Cervical collar• Neck mobilisation• Neck mobility exercises• Neck traction• Injection of trigger points and of facet joints• Surgery, particularly if a nerve is trapped.

When injured, soft tissues pass through four stages of healing before reachingfull recovery:• Acute inflammatory stage: this starts within minutes of the injury and lasts

one to two days and is painful. Local chemicals are released by inflammatorycells, which are attracted to the area of injury, to release further chemicals.Blood flow to the injured area increases to cause swelling and sometimesbleeding.Treatment: the general approach to follow is termed ‘RICE’– rest, ice,compress and elevate – to minimise swelling and accelerate recovery. Anti-inflammatory tablets should reduce the pain

• Proliferative stage: this starts within days and involves the manufacture ofnew tissue to replace the injured soft tissue.Treatment: gentle pain-free exercise to increase range of movement is carriedout, normally supervised by a qualified professional, such as an orthopaedicdoctor or a chartered physiotherapist

• Remodelling stage: The new scar matures and strengthens over weeks andmonths. This lasts at least six months in many soft tissues.Treatment: specific and general exercises to strengthen and stretch the scarwill help accelerate recovery at this stage. Immobilisation is detrimental torecovery

• Full healing: this is reached when the soft tissue that was injured is pain freeand has regained full strength and flexibility. The time required to reach fullhealing differs greatly between different soft tissues.

The optimal conditions required for soft tissue healing differ from those requiredfor bone healing. To optimise soft tissue healing, a programme of graduatedexercises increasing to full range of movement and strength will accelerate therecovery process. Immobility or total rest is detrimental to soft tissue healing. Afractured or broken bone, on the other hand, requires immobility for optimalhealing because movement prevents bone healing.

When the neck is injured, the neck muscles often go into a protective spasm,which is a contraction that is not released. This prolonged contraction restrictsneck movements and causes further pain. When the neck has recovered,hyperirritable areas often remain within neck muscles and can reactivate the neckpain, particularly if the neck is moved forcibly or quickly or held in one position fortoo long.

Trigger point treatment involves heat, stretching and sometimes soft-tissueinjection.

TREATING SOFT TISSUE INJURIES

How long does it take to recover?Most people fully recover from mild or moderatewhiplash injury. One study assessing whiplashpatients six months after their injury showed thefollowing results: 55% were pain free, 22% still hadmild nuisance-level discomfort, 16% still hadintrusive symptoms and 7% were disabled fromworking because of persistent problems.

There are a number of factors associated with aless favourable prognosis:• Lack of awareness of impending impact. Car

occupants who are aware of an impending impactare less likely to have prolonged symptoms thanthose who are taken by surprise

T a k e F r i d a y o f f !

73 Bachelors Walk Dublin 1 Ireland • Tel 01 872 8881 • Fax 01 872 8979 • Email [email protected]

Cover story


12

• Pain distributed to the trapezii muscles,shoulders and between the shoulder blades(interscapular area). Patients with pain radiating tothe shoulders and interscapular area and trapezehave more prolonged symptoms than thosepatients whose pain is located in the neck

Idiopathic Disease of unknown originBenign Not malignant, non-recurrent,

favourable for recoveryAetiology The cause of a diseasePathology The study of body changes

caused by diseasePrognosis Forecast of probable outcome

of diseaseSomatic Pertaining to the bodyDiaphysis Shaft of a long bone, which is

the slender portion betweenthe two wider ends

Epiphysis Ends of a long boneAcute Recent onset – indicates

time, not severityChronic Long-standing – for example,

days, weeks, months, yearsAtrophy WastingHypertrophy Excessive developmentSymptoms What the patient describes,

for example, pain, swelling,stiffness, numbness ortingling

Clinical signs What the doctor finds oncarrying out clinicalexamination, for example,reduced range of movement,tenderness, loss of feeling(sensation), muscle spasm orreduced muscle power

Flexibility The degree of stretch within a

structure before reachingbreaking point. All muscles,tendons and ligaments have acertain amount of normalflexibility in them

Effusion Excess synovial fluid within ajoint, indicates some injury ordisease within a joint

Fracture A break or crack in thecontinuity of a bone

Palpation Applying pressure to an areawith the finger to detect anytenderness or otherabnormality

Paraesthesia Pins-and-needles feelingdescribed by the patient.

HIDDEN MEANINGSSometimes doctors use expressions thathave a specific meaning to other doctors butmay be quite different to what a laypersonmight expect. Here are a few examples:• Non-organic: if a patient is suffering

symptoms from an organic source, thenthe problem is due to some diseaseprocess within the body. The term non-organic suggests that the source of patientsymptoms is not from a body diseaseprocess, but from the mind. This may beconscious or unconscious

• Supra-tentorial: the tentorium cerebelli

separates the conscious brain (cerebralhemispheres) from the unconscious brain(cerebellum and brain stem). If a patient’ssymptoms are described as‘supratentorial’, then this suggests thatthey are from the mind rather than from adisease process in the body

• Illness behaviour: illness behaviour is whatpeople say and do to express orcommunicate their perception of theirillness. In most patients, illness behaviouris in proportion to their physical problem.In a small number of patients, illnessbehaviour gets out of proportion andreflects mental and psychological eventsmore than the underlying physical disorder.Illness behaviour may then aggravate andperpetuate pain, suffering and disability. Itbecomes part of the continuing problem.Illness behaviour is associated with chronicpain and disability, the amount of failedtreatments, and the duration of work. If apatient displays illness behaviour (forexample, rubbing, grimacing or sighingduring examination, a particular pattern ofsymptoms and clinical tests), this indicateschronic pain and a behavioural reaction toit, but does not exclude physical injury ordisease. ‘Psychological overlay’ is a termcommonly used interchangeably withillness behaviour.

MEDICAL TERMINOLOGY

• Previous whiplash injury. In general, necksymptoms are more prolonged after the secondimpact, even if the patient has recovered fullyfrom the first impact

• Pre-existing cervical spondylosis. Cervicalspondylosis is diagnosis made on x-ray whichshows wear and tear in the cervical spine. It isconsidered a normal part of ageing. Patients withpre-existing cervical spondylosis before theirwhiplash injury continue to have neck symptomslonger than those patients with normal neck x-rays before their whiplash injury

• Abnormal neurological signs. Patients withabnormal neurological signs suffering a trappedcervical nerve are more likely to have pain in thelong term than those who have normalneurological assessment

• Front-seat passengers have a greater risk ofpersisting symptoms than rear-seat passengers

• Rear-end collision. The risk of persistingsymptoms from a rear-end collision is greaterthan front-on or side-on collision

• Pain timing and severity. The earlier thesymptoms come on and the greater the severity,the more likely the patient will suffer persistingsymptoms

Cover story


13

• Age. People over 50 years of age are at greaterrisk of developing persistent symptoms thanyounger people.

Getting the best from medical reportsFinally, there are some things that members of thelegal profession can do to ensure that they receivethe best medical reports they can. First of all,doctors like friendly letters. You should rememberthat the medical world is not adversarial: make surethe tone of your letters to doctors is warm and nottoo formal.

Another crucial point is to tell doctors what youneed. Be clear on what you want dealt with in themedical report. For example, if you require diagnosis,general prognosis and specific prognosis with regardto occupational disability, then you should specificallyrequest these in your letter to the doctor.

If you require a report on a case involving medicalnegligence, it is important to first establish whetherthe doctor is prepared to deal with this issue in thereport. Many doctors are not happy to deal withmedical negligence issues, and their report will oftenomit comment on the issue of medical negligencealtogether.

If you are looking for a prompt medical report,there is a simple but effective way to get it: pay thedoctor. The greatest difficulty doctors have withmedico-legal reports is the issue of not getting paid.If you need a report quickly, it is worthwhile payingfor it up front at the time of requesting it. This willput the doctor under pressure to get the report outto you quickly. If there is any delay, then you can,with justification, put pressure on the doctor’ssecretary to put your report at the top of the pile.

In conclusion, lawyers should ensure that theychoose the best expert witness. Use the mostappropriate expert to prepare medico-legal reports inorder to get the most accurate and best-informedopinion. Thus, you should select an orthopaedicsurgeon for multiple fractures and major trauma, aneurologist for fits or blackouts after head injury, apsychiatrist for psychological symptoms secondary toa personal injury, a respiratory physician for chestcomplaints in relation to toxic gas inhalation orexposure, or an orthopaedic physician/surgeon forsoft tissue injuries.

Dr Aideen Henry is a consultant orthopaedic physician atthe Campus Innovation Centre in Galway and theCharlemont Clinic in Dublin.

G

Abduction

Adduction

Superior (cranialor cephalad)

Inferior (caudal)

Anterior (ventral)

Posterior (dorsal)

Medial

Lateral

Proximal

Distal

Superficial

Deep

Moving away fromthe midline of the body

Moving toward themidline of the body

Toward the head end or upper part of a structure or the body;above

Away from the head end or toward the lower part of a structure or the body; below

Toward or at the frontof the body; in front of

Toward or at the back-side of the body; behind

Toward or at the mid-line of the body; on theinner side of

Away from the mid-line of the body; on the outer side of

Close to the origin ofthe body part or the point of attachment of a limb to the body trunk

Farther from the origin of a body part or the point of attachment of alimb to the body trunk

Toward or at the body surface

Away from the body surface; more internal

The hips abduct when theknees are opened apart

The hips adduct when the knees are closed together

The forehead is superior tothe nose

The navel is inferior to the spine

The breastbone is anteriorto the spine

The heart is posterior to thebreastbone

The heart is medial to the arm

The arms are lateral to thechest

The elbow is proximal to thewrist (meaning that the elbow is closer to theshoulder or attachment pointof the arm than the wrist is)

The knee is distal to thethigh

The skin is superficial tothe skeleton

The lungs are deep to theribcage

GLOSSARY OF USEFUL MEDICAL TERMSTERM DEFINITION EXAMPLE

CourtMeet at the Four CourtsFOR BOOKINGS CONTACT MARY BISSETT OR PADDY CAULFIELD TEL: 668 1806

LAW SOCIETY ROOMSat the Four Courts

Technology


14

Over the past decade, there has been aremarkable growth in the availabilityand use of Irish legal materials inelectronic form (principally throughthe Internet). It is now possible to get

on-line access to the full text of legislation,judgments, explanatory codes and memoranda,details of administrative procedures, Dáil debates,certain secondary legislation, guidance notes andstatements of practice.

What has led to this remarkable transformation?What are the principal factors that have encouragedthe continuing free flow of official legal materialsonto the Internet?

At government level, there has been a cleardecision to promote and develop the availability ofinformation in electronic form. The establishment ofthe Information Society Commission (www.isc.ie) in1997 underlined the desire to promote ‘a society andan economy that makes the best possible use of newinformation and communications technologies’.Various legislative changes (most notably theenactment of the Electronic Commerce Act, 2000) haveemphasised a commitment to facilitate the conductof business in electronic form. The subsequentlaunch of on-line facilities such as the BASIS andOASIS portals referred to later and the developmentof the electronic tenders website (www.etenders.gov.ie)also emphasise the way in which the public sectorhas embraced the Internet as a way of doingbusiness.

Any review of this area must acknowledge the leadrole of the Attorney General’s Office when itlaunched the Irish statutes in electronic form in1997. The publication, first on CD-ROM andsubsequently on the Internet, of all acts of theOireachtas from 1922 in full text, together with allsecondary legislation, was a highly ambitious projectwhich has provided a significant impetus to the on-going development of access to legislative materials.

On another public policy level, the Freedom ofInformation Act, 1997 has encouraged a more openapproach to the provision of materials andinformation at all levels within the public sector. Theact requires government departments and agencies,together with a wide range of public sector bodies, topublish details of their administrative procedures. Asmost have chosen to do this in electronic form, asubstantial number of guidance notes and manualson the application of law and administrativeregulations are now freely available on the Internet.A further effect of the 1997 act has been to develop amore open policy in terms of publishing and making

The Internet has become a particularly rich source of legal information for the busy practitioner.

John Furlong looks at the growth of on-line legal materials and lists some of the more useful

law-related sites to be found on the web

Net

available official information, including primary andsecondary legislation.

A basic recognition that electronic publication onthe Internet is simple and cheap has also promotedthe free availability of material. Giving access tomaterial through a website pushes the costs of accessand printing onto the user. It also means thatmaterial is available with a degree of immediacy thatwould be impossible with a traditional paper format.Finally, the growth of Internet use at domestic andbusiness level has increased the demand of users forelectronic services.

The result of all this is that substantial andauthoritative primary legal material that is of directrelevance to Irish legal practitioners is now availablefree of charge. For example, it is possible to obtain,

GAelectronically and free of charge, the text of any actof the Oireachtas and the full text of most of therecent written judgments of the superior courts. Interms of background research, the full text ofOireachtas debates from 1922 can be accessed toprovide detailed background information on thereasoning or thought behind a particular piece oflegislation. Many departments and governmentagencies have taken the further step of providingaccess to the text of secondary legislation for whichthey are responsible. What follows is a brief look atthe key features of some of the top Irish websitesthat are relevant to Irish lawyers.

Irish government (www.gov.ie). This is the mainportal site for connection to a range of governmentbodies and agencies, local authorities and healthboards.

It provides a starting point for access to theindividual websites of 50 central governmentdepartments and agencies as well as over 20commercial semi-state organisations. Theseindividual websites contain details of structure andorganisation as well as information on areas ofresponsibility. More importantly, they provide easyaccess to press releases, publications, guidancematerials and practice notes. A small number of

Technology


15

MAIN

POI

NTS

• Easy access to on-line legalinformation

• Public sectorleading the way

• Useful websitesto visit

AINS

BASIS (www.basis.ie), which focuses on therequirements of business users. BASIS includes asection giving access to a wide range of official formsrequired for business purposes, including taxationforms and companies forms.

The attorney general’s website provides direct on-line access to all of the acts of the Oireachtas andstatutory instruments from 1922 to 1998, togetherwith the chronological tables to the statutes.

The Government Information Service section ofthe Department of An Taoiseach’s site includes thecurrent list of proposed and planned legislation bythe Chief Whip’s Office at the start of eachparliamentary session.

The Revenue Commissioners’ site (which can alsobe accessed at www.revenue.ie) is a good example of amajor public service making substantial use of theInternet. The site contains a vast amount of detailedmaterial that is freely downloadable. This includes awide range of interesting materials relevant to taxpractice, including statements of practice, chiefinspectors’ guidance notes, precedents in use, detailsof double-taxation treaties and access to all forms inuse by the Revenue Commissioners.

Houses of the Oireachtas (www.gov.ie/oireachtas). The houses of the Oireachtas web pageshave full text proceedings of select and specialcommittees and a searchable archive of allparliamentary debates from 1922. These areparticularly useful for tracking any changes to billsas they progress through the Oireachtas. By far themost useful service for practitioners is the Legislativeinformation section, which provides listings of billsconsidered before either house of the Oireachtas foreach year from 1997. In most cases, the text of thebills as published at each stage will also be availablein downloadable pdf format. The section alsoincludes the text of statutes enacted by theOireachtas since 1997 in downloadable pdf format.

In effect, this service provides a continuation(from an official source) for electronic access toprimary legislative material subsequent to the periodcovered by the electronic Irish statute book (which ismaintained and published by the Office of theAttorney General).

BAILII (www.bailii.org). This is an on-goingambitious project to establish a British and IrishLegal Information Institute providing free on-lineaccess to legal materials. The system is modelled onthe successful AUSTLII database (www.austlii.org).The material is presented in a standardised basicpresentation format and can be searched globally orby category. The site also contains a selection of

departments and government agencies also host thefull text of selected primary and secondary legislation(such as the Department of Finance, the Departmentof Transport, the Office of the Director of CorporateLaw Enforcement, and the Office of the Director ofTelecommunications Regulation).

Much of the material on the site can also beaccessed through two e-government portals: OASIS(www.oasis.gov.ie), aimed at the general public, and

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Technology


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High Court and Supreme Court judgments. In manyjudgments, hyperlinks within the text will providelinks from statutory references arising in case law tothe relevant section of the statute. The site alsoincludes all Irish statutes and statutory instrumentsfrom 1919 to 1998. In addition, as the site is multi-jurisdictional, it includes a substantial amount ofNorthern Irish material, including the statutes from1495 (which will include some statutes still extant inthis jurisdiction).

IRLII (www.irlii.org). A further development hasbeen the establishment of the Irish LegalInformation Initiative (IRLII) by the law faculty atUniversity College Cork. The initiative supplementsthe involvement of UCC in the provision of Irishlegal materials to BAILII. The IRLII websitecontains material that will eventually be posted toBAILII, including unreported judgments and recentstatutes. It includes a listing of leading Irish cases bysubject and alphabetically.

Irish law page (www.irish-law.org). One of thefirst dedicated Irish law sites, this portal site providesa wide range of links listed by subject or sector forsources of Irish law, and it is a useful starting pointfor relevant Irish sites in the areas of both politicsand law. The Irish law page also hosts a substantialdiscussion list on law-related topics.

Other good Irish portal sites providing structuredlists of links to relevant law-related websites areLegal Eagle (www.legaleaglelinks.com), Legal Island(www.legal-island.com), which has a particular focuson employment law, and a more recent entrantE@RL (which can be found at www.lawcat.com/earl).It is also worth noting that the Library section of theLaw Society’s website (www.lawsociety.ie) provides asubstantial list of links to Irish and international lawsites.

Murdoch’s Irish legal companion. This is anelectronic product that comes in CD-ROM formatas well as on-line (milc.lendac.ie). The Irish legalcompanion incorporates a dictionary of Irish law andthe full text of any cited Irish acts or statutoryinstruments up to the year 2000. This important (ifnot essential) reference source includes over 6,500legal definitions relevant to the practice of Irish law,together with a comprehensive bibliography. Twosignificant aspects of the product are its low cost andease of use. The dictionary definition for a particularword or term includes hyper-links to any relevantstatutory material, together with citation of relevantcase law and texts.

FirstLaw (www.firstlaw.ie). This is acommercially-run website which provides access,currently at low cost, to a wide range of usefulmaterials. The site includes a current awarenessservice in relation to Irish legal developments and asearch facility. FirstLaw claims to have all writtenjudgments of the superior courts from 1999onwards, together with Revenue AppealCommissioner decisions and selected EmploymentTribunal determinations. The site also contains thefull text of acts of the Oireachtas from 1999. An

extremely useful feature of the site is the provision ofaccess to the text of all statutory instruments from1999. This means it is the only comprehensivesource of full-text secondary legislation after 1998.

Courts Service (www.courts.ie). The CourtsService website contains a great deal of usefulreference information, including the Legal diary (insearchable form), the rules of courts (superior,circuit and district) as originally published, withsubsequent amendments displayed separately, detailsof all court fees, dates and sittings of all courts, andsubstantial details on the workings of all courtoffices.

Companies Registration Office (www.cro.ie).Direct access to the CRO allows free on-line ‘publicsearching’ against a limited amount of detail and full‘account/chargeable’ access to the CRO database.The chargeable access option also allows scanneddocuments to be ordered on-line for despatch by e-mail or fax. The site also has a number of outlines ofCRO procedures involved in the formation of acompany, filing of annual returns and other post-incorporation requirements. All of the CRO formscan be downloaded from the site.

Land Registry (www.landregistry.ie). The LandRegistry Electronic Access Service (EAS), whichoperates on a pre-payment subscription basis, allowsauthorised users to conduct on-line searches of theelectronically available register by reference to oneor more criteria, including name of registered owner,plan number and so on. Located folios can beprinted off. Authorised users can also check for‘dealings pending’ on a particular folio. The recordswill show a summary set of details about the natureof applications pending, who lodged them and whenthey were lodged. The Land Registry is completingtwo major projects to enhance the EAS service – oneto extend the service to all folios throughout thecountry and another to allow for electronic filing ofthe form 17 (see Technology Committee report,Gazette, May 2002, page 32). Applications can alsobe made on-line for certified copies of availablefolios, folios with copy maps and copy maps showingspecial features (appurtenant rights, rights of way).The site also contains copies of Land Registrypractice notes covering all aspects of registryprocedures.

Delia Venables (www.venables.co.uk). DeliaVenables is a noted UK authority on legaltechnology and information and maintains thiscomprehensive portal site with a range of links tolegal sites and resources, on-line services availablefrom legal publishers and free legal currentawareness and information. Although this is a UK-based site, it has a substantial amount of Irishmaterial and useful links (each with an explanatoryoverview) to Irish law websites. It also has acomprehensive listing of Irish law firms that have apresence on the web.

John Furlong is director of legal resources and educationat the Dublin law firm Matheson Ormsby Prentice.

G

Equality


18

The Equal Status Act, 2000 has provoked agood deal of controversy during the twoyears since its enactment. The act putsIreland in a lead position in anti-discrimination law. Among the ‘ground-

breaking’ decisions under the act is the absurdfinding by an equality officer that it is discriminatoryon grounds of family status for the proprietor of alicensed premises to refuse to serve a customeraccompanied by a young child.

Before the scope of the act is expanded (as hasbeen mooted) and expense incurred appealingdecisions under the Equal Status Act to the superiorcourts, certain issues require consideration. We needa debate on at least two fronts: one broad, the othertechnical.

On a broad front, it is questionable whether, withhindsight, one statute can adequately capture thenuances for claimants in the context of nine forms ofdiscrimination, let alone for ‘proprietors’ in theseveral goods and services covered by the act. Theissues are not homogenous. Ireland’s equalityprinciple in article 40.1 of the constitution does notenvisage a ‘one-stop-shop’ approach. On the contrary,after proclaiming that ‘all citizens shall, as human

A level plaSome recent

controversial

decisions made

under the Equal

Status Act,

2000 have

raised a number

of important

issues. Are the

equality officers

getting it right,

or are their

decisions only as

good as the

legislation under

which they

operate? asks

Mary Redmond

persons, be held equal before the law’, it says that‘this shall not be held to mean that the state shall notin its enactments have due regard to differences ofcapacity, physical and moral, and of social function’.

For example, refusing to sell mood-alteringsubstances that can be consumed over several hoursis not the same as refusing to sell soft beverages in ashop. Where there are urgent underlying socialconcerns, as in the case of alcohol abuse amongyoung people, further refinement of the Equal StatusAct – if not separate legislation reflecting theseconcerns – deserves consideration.

Among the technical issues that merit discussionunder the act are the comparator issue, therespondent’s defence and the burden of proof. Thefocus in this article will be on these issues in thecontext of direct discrimination. To set theirimportance in context, it is useful to recall theelements usually found in a non-discriminationstatute (see panel below).

Compare and contrastThe Equal Status Act is unclear on the comparator –a serious deficiency, as the comparator sets thenorm. The act does not make explicit that the

There are two main legal models of rights protection:the substantive rights model and the anti-discriminationmodel. The essential difference between them is thatthe former broad category concerns fundamental rightsthat stand alone and are defended by the courts (manyconstitutions are founded on this model), whereas thelatter category concerns procedural justice and isdefined by the political process. The Equal Status Actbelongs here.

Anti-discrimination legislation generally contains thefollowing five characteristics:• A negative obligation on one party not to

discriminate on prohibited grounds • A correlative (negative) right of the other party not to

be discriminated against on those grounds• Difference in treatment is judged on the basis of

comparison between the treatment of the allegedvictim and that of a third party, actual or hypothetical

• Comparison is with someone in the same, or notmaterially different, circumstances

• To constitute discrimination, the effective cause ofthe difference in treatment must have been on thebasis of one or more of the prohibited grounds.

Justice in the anti-discrimination model is procedural. Inother words, when determining whether discriminationhas occurred, the adjudicator is under no obligation orpositive duty to remove the social disadvantageconcerned. His function is to examine the evidence andmake his decision on it.

Within the anti-discrimination model, there are othersub-categories (described and analysed by Bolger andKimber in their excellent book Sex discrimination law).The 2000 act is based on an anti-discrimination modelwhich is formal and mathematical, requiring strictlyidentical treatment (like the Employment Equality Act,1998). At its heart lies the Aristotelian principle thatlike must be treated alike if there is no morally relevantdifference between them. It is based on respect for theparties’ common humanity.

MAIN ELEMENTS INANTI-DISCRIMINATION LEGISLATION

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ying field?comparison must be such that the relevantcircumstances in the one case are the same or notmaterially different (or were, or would be, the sameor not materially different) in the other.

When the Equal Status Act was enacted in 2000,two ‘precedent’ acts in the UK prohibiteddiscrimination in relation to the provision of goods,services and facilities to the public on the grounds ofgender, marital status and race (the Sex DiscriminationAct 1975 and the Race Relations Act 1976). Theyprovide that a comparison of cases must be such thatthe relevant circumstances in the one case are thesame, or not materially different, in the other.

Lack of clarityThe consequences of a lack of clarity regarding thecomparator are evident when the question ‘who isthe comparator?’ is asked in the case of a customerwho arrives at a pub with a child and is refusedservice. There are at least three possibilities.

First, if the relevant circumstances in the case ofthe comparator are required to be the same or notmaterially different from those of the claimant, itcould be argued that the customer also arrives with achild. If the latter is not refused service, there wouldbe a compelling case to refute. But if he is refused,there would be no discrimination, as like cases wouldbe treated alike. (Occasionally, equality officers referto the circumstances of a case, but not becauserequired to do so by the statute.)

If the circumstances are not relevant, a secondpossibility involves comparison between a child-accompanied customer and a customer who arriveswithout his child. To sustain a claim ofdiscrimination on family status, it would have to beestablished that the publican treated a parent whosought service with his child less favourably than hewould a customer who left his child elsewhere. Thereal difference in this case, however, would not befamily status: it would be the respective exercise bythe two men of their parental responsibilities (andsome would question whether the claimant in such acase was exercising parental responsibility at all).

Third, one might consider comparison not withanother male parent who has left his child elsewhere,but with a childless male. The claimant would allegethat the publican treated him, a child-accompaniedcustomer, less favourably than a childless malecustomer on the ground of family status. But thepublican is most unlikely to treat one customerdifferently because he has responsibility for a child

and another does not. He has several customers withresponsibility for children and he serves them all,unless in the exercise of their parental responsibilitythey bring their children to the pub.

It is incidental whether an adult who arrives witha child is the parent of the child, in loco parentis to it,or otherwise. In all probability, the publican willneither know nor care about the status of the child,nor be imprudent enough to ask questions about itsparentage.

In sum, the publican refuses service on the basisthat the customer is accompanied by a child,irrespective of the customer’s family status inrelation to that child, and for no other reason. If thatwere not the case, it would follow that customersarriving with children to whom they bore noparental relationship, actual or in loco, would be

MAI

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• How doequalityofficers reachtheir decisions?

• Burden of proofin equal statuscases

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outside the act. (The fact that it is not unlawful for alicensee to allow a child to be in the bar if that childis accompanied by his parent or guardian is legallyneither here nor there for equal status legislation –there is no legal obligation on a publican to do so.)

The comparator in decided casesIn some decided cases, there is no reference to acomparator at all. Only exceptionally does theclaimant refer to a comparator, and then it is mostlyin general terms. In most cases, the equality officertakes up the issue of the comparator whenconsidering whether a prima facie case has been madeout. At some stage in the decision, the equalityofficer usually describes ‘three key elements’ whichneed to be established to show that a prima facie caseexists, and lists as the third element ‘evidence thatthe treatment received by the complainant was lessfavourable than the treatment someone, not coveredby the ground, would have received in similarcircumstances’.

What the equality officer does next is arguablynot permitted. In decisions where it is manifest thatno evidence whatsoever has been adduced by thecomplainant as to a comparator, the equality officeris apt to conclude with a formula such as: ‘I amsatisfied that the complainant was treated lessfavourably than [say] a non-Traveller would havebeen in the same circumstances’. On what evidence?A fundamental principle of anti-discrimination law isthat the equality officer may not ‘pick’, still lessassume without evidence, who the comparator is forthe person bringing the claim. The equality officer isnot advocate and judge: his function is to adjudicateon the evidence before him.

Early employment equality law confined theclaimant to an actual comparator. Primarily becausethis meant that women in segregated employmentwere therefore unable to claim, the notion of a‘hypothetical’ comparator was introduced. Thehypothetical comparator is not arguably an alternative

to an actual comparator. He is a fiction of law wherean injustice would result to a claimant because anactual comparator is not capable of being found.

In equal status cases, once again it is the equalityofficer who introduces the hypothetical comparatorinto the decision. Typically, he says ‘in order toproperly evaluate the complainant’s case, I believe,therefore, that it is necessary to introduce ahypothetical comparator at this stage’. If no actualcomparator exists, however, it is for the claimant andnot the equality officer to introduce a hypotheticalcomparator as part of the evidence.

The respondent’s defenceIn the usual anti-discrimination model, wherediscrimination is prohibited on various grounds andjudgment is made on a comparative basis, therespondent (once a prima facie case of discriminationis established) bears the onus of proving that thedifference in treatment was for some other non-discriminatory ground. He or she will attempt toestablish that the difference was not effectivelycaused by a prohibited ground.

The Employment Equality Act of 1998, whendealing with equality relating to gender, uses thewords, in reference to an employer’s defence, ‘if theemployer proves that the difference is genuinelybased on grounds other than the gender ground’.Again relating to non-gender issues, the 1998 actrefers to an employer proving ‘that the difference isgenuinely based on grounds which are not amongthose specified [as prohibited in the act]’. Similarwording is not found in the 2000 act. It isregrettable that there is no overt reference to thepossibility of a respondent proving that theimpugned difference is genuinely based on a groundwhich is other than a prohibited ground.

It would be reasonable to argue that such adefence is impliedly available to a service provider(as some decisions recognise). If it is discriminationwithin the 2000 act to treat a person less favourablythan another person is, has been, or would betreated on any of the discriminatory groundsspecified in the act, then it logically follows that ifthe difference in treatment is proved to be on anyground other than those specified, it is not caught bythe act. However, two sub-sections in the samesection of the act respectively support and refute thisproposition.

The supportive sub-section is s15(2), whichprovides that action taken ‘in good faith’ by a licenseefor the sole purpose of ensuring compliance with theprovisions of the Licensing Acts 1833 to 1999 shall notconstitute discrimination (contrast the latinised bonafide in the context of positive discrimination in thepreceding section; an example of sloppy drafting). Itis sometimes erroneously suggested that this sub-section authorises discrimination by publicans. InIrish current statutes annotated (2000), for example, it isobserved that ‘this subjective approach seems to grantimmunity to the publican who believes him or herselfto be acting reasonably, regardless of whether it is

A publican’s mainobligation is to conductthe premises in apeaceable and orderlymanner

Equality


21

objectively the case’. A publican’s main obligation is to conduct the

premises in a peaceable and orderly manner. He isliable to penalty if ‘he permits drunkenness or anyviolent, quarrelsome or riotous conduct to takeplace on his premises, or sells any intoxicatingliquor to any drunken person’ (Licensing Act 1872,s13).

Section 15(2) uses the words ‘to ensure’compliance. Where a publican acts honestly (ingood faith), motivated by ensuring compliance withthe licensing laws, his actions must have to do solelywith prevention of drunkenness or violent,quarrelsome or riotous conduct to come withins15(2). In consequence, he may treat peopledifferently but his actions are not discriminatory –that is, on prohibited grounds within the act.Section 15(2) is impliedly akin to the defence in theEmployment Equality Act of 1998 where therespondent proves that the difference is genuinelybased on grounds other than the prohibitedgrounds.

The ‘non-supportive’ sub-section is s15(1). Quitewhy it was drafted as it stands is puzzling. The sub-section ironically begins with the words ‘for greatercertainty’ and provides that nothing in the act shallbe construed as requiring a person to dispose ofgoods or services to a customer in circumstancesthat would lead an individual ‘having theresponsibility, knowledge and experience of theperson to the belief’, on grounds other thandiscriminatory grounds (the only place the phraseoccurs in the act and where it is arguably otiose),that the provision of goods or services to thecustomer would produce ‘a substantial risk ofcriminal or disorderly conduct or behaviour ordamage to property at or in the vicinity of the place’where the goods or services are sought .

This is quite different from providing that arespondent may prove that the difference intreatment is genuinely based on grounds other thanthe prohibited ground. The risk must be‘substantial’. Case law on ‘substantial grounds’ inother contexts is helpful, in that it illustrates that‘substantial’ means something more than‘reasonable’. If a service provider treats someonedifferently because she reasonably foresees a risk ofcriminal or disorderly conduct resulting from thatperson’s presence on her premises, that is notenough. Yet, as against the negative rights andobligations in the act, she has substantiveconstitutional rights, among them the rights to earna livelihood and to property.

The burden of proofThe complainant is ‘a person who claims thatprohibited conduct has been directed against him orher’ (s21). This contrasts with the phrasing normallyfound in anti-discrimination statutes – see theEmployment Equality Act, 1998, where s77 describesthe complainant as a ‘person who claims to havebeen discriminated against by another in

contravention of this act’. The 2000 act could haveused such words, but by not doing so presumably‘raised the bar’.

The term ‘directed’ in a statutory context is notdefined, and there are no available sources of law toassist. Black’s dictionary defines ‘to direct’ as ‘1) to aim(something or someone), 2) to cause (something orsomeone), 3) to guide (something or someone) or togovern, 4) to instruct (someone) with authority, 5) toaddress (something or someone)’.

The mental elementIt is arguable that to ‘direct’ or to aim prohibitedconduct against someone requires evidence of mensrea or a mental element on the part of therespondent. This is in marked contrast to other areasof anti-discrimination law, where the intention of theperson allegedly in contravention is not relevant incases of alleged direct discrimination.

If so, a complainant bears a heavy burden of primafacie evidence. He or she must establish sufficientevidence of conduct on a discriminatory ground, andof differential treatment on a comparative basis, butalso that such prohibited conduct was ‘directed’against them. In their decisions under the 2000 act,equality officers have applied the standards of theBurden of proof directive (council directive 97/80/EC),even though it is not directly applicable to equalstatus cases. To date, the significance of a claimant assomeone against whom prohibited conduct has beendirected has not been explored. Arguably the wordshould be excised.

The objective of anti-discrimination laws shouldbe fairness to both sides. Equality officers are to becommended for the painstaking way in which theyhave approached this new act. It is no fault of theirsif the legislation has not clearly identified the mainissues for decision. In cases under equal pay andemployment equality laws (forerunners of theEmployment Equality Act, 1998), judgments of thesuperior courts emphasised the importance ofprimary findings of fact and the avoidance of dealingwith cases on supposition or assumed facts. In onecase, a judge of the Supreme Court said: ‘I feel Ishould express a view that it seems to me that thisunderlines very strongly the necessity for analteration in the procedures of both the equalityofficer and the Labour Court so as to provideunequivocal findings of fact made referable to theevidence upon which they have been founded inorder to permit, in the event of an appeal to theHigh Court, of the proper determination of thatappeal’. The court went on to criticise as ‘highlyundesirable’ that all the relevant questions of factshould be treated ‘in the manner in which they weredealt with, namely assertions without any proof’.

The likelihood of the superior courts similarlycriticising decisions under the Equal Status Actshould – and can – be avoided.

Mary Redmond is a solicitor and a consultant at theDublin law firm Arthur Cox.

G

‘It is

questionable

whether, with

hindsight, one

statute can

adequately

capture the

nuances for

claimants in

the context of

nine forms of

discrimination’

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The Safety, Health and Welfare at Work(Construction) Regulations 2001 came intoforce in January and revoke the 1995regulations (SI no 138 of 1995). Thesubstantive changes are to be found in

parts I, II and III of the 2001 regulations, whichaddress the management of safety, health and welfareon construction projects (see the Health and SafetyAuthority’s Guidelines to the Safety, Health andWelfare at Work (Construction) Regulations 2001).The 2001 regulations implement EC councildirective 92/57/EEC on the minimum safety andhealth requirements at temporary or mobileconstruction sites. The regulations came into forceon 1 January 2002, though certain requirements donot take full effect until 1 June 2003 (see regulation 1of SI no 481 of 2001 and appendix 1 of the HSA’sguidelines for the 2001 regulations).

Certified trainingThe 2001 regulations prescribe the principalrequirements for the protection of the safety, healthand welfare of persons on construction sites andbuilding projects. In light of the large number ofdeaths on construction sites, the new regulationsrequire that training for construction workers becertified as per regulations 6, 9 and 14 and the eighthschedule of the 2001 rules.

BUILDING CO

The course content for the Safe pass training isspecified in the eighth schedule to the regulations. Inaddition, workers who are obliged to carry outspecified critical safety duties are required to be inpossession of a construction skills certification schemeregistration card, indicating that they havesuccessfully completed training approved by thescheme (see panel on page 25).

The project supervisor for the construction stage isresponsible, jointly with the contractors, for ensuringthat a site worker has a valid Safe pass registration cardor, where required, a valid skills certificate.Surprisingly, there is no set renewal interval for thespecified health and safety courses under theregulations. That said, there is a refresherrequirement.

Construction work‘Construction work’ and ‘structure’ are very broadlydefined in the 2001 regulations. Construction workincludes site clearance, excavation and the erection ofa new structure, the demolition and removal ofstructures, as well as extensions to, and themaintenance of, existing buildings (regulation 2).Window cleaning, painting and decorating projects,as well as routine maintenance works are all, to somedegree, affected by these regulations. The erection of a single private dwelling, a development akin to the

The construction industry has always been a dangerous place to work, but

that may change with the introduction of the new Safety, Health and Welfare

at Work (Construction) Regulations 2001. Geoffrey Shannon outlines

their main points

MA

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TS • New health andsafetyregulations forconstructionindustry

• Duties ofclients, projectsupervisors,designers andcontractors

• Site safetyrepresentatives

The regulations impose a mandatory requirementthat each construction worker receive a basic healthand safety course under the FÁS Safe pass trainingprogramme and is in possession of a registration card.Safe pass is mandatory for all craft and generalconstruction workers, drivers of vehicles deliveringbuilding materials on construction sites, and on-sitesecurity personnel. While site-office staff, visitingarchitects or engineers and visiting inspectors are notspecifically required under the regulations to receiveSafe pass training, it is strongly recommended thatthey do so. The Safe pass training is, in summary, aqualification required by workers to be admitted to aconstruction project site and is to be phased in asspecified in regulation 1 of the 2001 regulations (seeappendix 1 of the HSA’s 2001 guidelines).

International Financial Services Centre in Dublin, andall construction sites in between fall within theparameters of the regulations. It should be noted thatregulation 2(e) provides that construction work ‘doesnot include drilling and extraction in the extractiveindustries’.

Duties and responsibilitiesParts 2 and 3 of the regulations specify the duties ofthe client (regulation 3), the project supervisor for thedesign stage (regulation 4), designers (regulation 5),the project supervisor for the construction stage (reg-ulations 6, 7 and 8) and the contractor (regulation 9).

Clients. Regulation 2 defines a ‘client’ as ‘anyperson, engaged in trade, business or otherundertaking, who commissions or procures the

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ONFIDENCEcarrying out of a project or who undertakes a projectdirectly for the purpose of such trade, business orundertaking’.

In summary, the client is, in fact, the consumer.Regulation 3 requires the client to appoint a projectsupervisor for the design stage and construction stageof every project. One person may hold both positionsif suitably qualified (regulation 3[2]). Specific dutiesare imposed on both the design and projectsupervisors. Regulation 3(4) requires the client tokeep available any safety file prepared (by the projectsupervisor for the construction stage) underregulation 6 for inspection by any person who mayneed information in the file, in order to comply withany of the statutory duties imposed. (The safety file isdiscussed further below.)

Different duties are imposed at the design andconstruction stages of a construction project.Regulation 2 defines the ‘construction stage’ asmeaning the period of time starting ‘whenpreparation of the construction site begins, includingthe design of temporary works to facilitate theconstruction of the project, and ending whenconstruction work on the project is completed’.

Project supervisor (design stage). Regulation 4specifies the duties of the project supervisor for thedesign stage, the most significant of which are to:• Ensure sufficient time is allocated in the project

timetable to complete the project in a safe manner(regulation 4(1)a)

• Prepare a preliminary safety and health plan and topass this on in sufficient time to the project

The new Luas bridgein Dundrum

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supervisor for the construction phase (regulation4(1)b and 4(1)c). A safety and health plan isrequired for those projects that are either notifiable(regulation 8) or that involve a particular risk(second schedule of regulations), such as workinvolving the assembly or dismantling of heavyprefabricated components (regulation 4[2]).Regulation 4(1)b specifies that a preliminary safetyand health plan must include:a) a general description of the project and an

estimate of the period of time required forcompletion of the project

b) appropriate information on any other workactivities taking place on the site

c) where appropriate, work related to the projectthat will involve particular risks to the safety andhealth of persons at work, as detailed in thesecond schedule to the regulations

• Co-ordinate the activities of the design team inrelation to safety, taking into account the generalprinciples of prevention detailed in the Safety,Health and Welfare at Work (General Application)Regulations 1993 (regulation 4(1)a).

The project supervisor for the design stage maydelegate duties to an appointed health and safety co-ordinator (regulation 4[3]).

Designers. Designers, namely engineers andarchitects, translate, by means of drawings andspecifications, the requirements of the client inrespect of the finished product. Regulation 2 providesa very wide definition of ‘design’, to include not onlythe preparation of drawings or specifications for theend product but also any other ‘expressions ofpurpose, according to which a project, or any part orcomponent of a project, is to be executed’. Regulation5 places duties on designers, of which the mostsignificant is to ‘take account of the general principlesof prevention as specified in the first schedule of theprincipal regulations’. The general principles ofprevention are a generic hierarchy of risk controlmeasures applicable to all places of work.

Consideration of health and safety should form an

integral part of the design process. To this end,designers are required to assess the design at thevarious stages as the project progresses. If anysignificant hazard is identified, the design should bealtered to eliminate the risk where ‘reasonablypracticable’, or otherwise to reduce the risk to anacceptable level.

The Health and Safety Authority guidelines to the1995 and 2001 regulations provide designers with thefollowing advice on risk assessment: ‘The degree ofdetail involved in the risk assessment need only beproportionate to the nature of the project. For manyprojects, a simple intuitive assessment will normallybe appropriate. For unusual features, an explicit riskassessment procedure – possibly requiring expertadvice – may be appropriate’.

Regulation 5(2)a requires designers to co-operatewith the project supervisor for the design stage. TheHSA guidelines provide that ‘where a design featureelicits different risk assessments from differentdesigners, the project supervisor for the design stagemust weigh up the various advices and, whereappropriate, issue a direction to be taken into accountby the designers’.

Significantly, the 2001 regulations do not expresslydefine whose safety is to be considered by thedesigner. It should be noted that the duties ofdesigners under the regulations are in addition tothose arising under section 11 of the Safety, Healthand Welfare at Work Act, 1989.

Project supervisor (construction stage). Theproject supervisor for the construction stage hasresponsibility for the management of safety on thesite. This applies to all aspects of safety, includingtraining, access to and within the construction site,the protection of visitors to the site and the wearingof personal protective equipment (for example, hardhats, safety boots, high visibility jackets and, whererequired, eye, hand and ear protection, respiratoryequipment, and fall, arrest and safety harnessequipment: see also parts IV, V and VI of the 1993regulations).

Safety and health plan. Regulation 6(1) requires

The InternationalFinancial ServicesCentre: no job is toobig or small where theregulations are concerned

‘Control of

the site and of

the risks on the

site are the

responsibility of

the contractor’

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the project supervisor for the construction stage toprepare a safety and health plan, using the planprepared on a preliminary basis by the projectsupervisor for the design stage and taking intoaccount the requirements of section 12 of the 1989act, which imposes an obligation on every employer toprepare or cause to be prepared a safety statement.This statement specifies the manner in which safety,health and welfare shall be secured in the workplace.

Regulation 4(2) provides that a safety and healthplan is required in the following situations:• Where the work is planned to last longer than 30

working days or the volume of work is scheduled toexceed 500 man-days (regulation 8[1]), or

• Where the construction work concerned involves aparticular risk (second schedule of the 2001regulations).

The safety and health plan should address, amongother things, discrete site-safety issues and operationswith significant hazard potential. Specific riskassessments should be undertaken to control the risksidentified in the preparation of the safety and healthplan. The plan should include a process by whichsafety and health concerns can be communicated tosite management, and, as such, is a safety managementdocument (see the 2001 HSA guidelines). For largersites, the safety and health plan should include aformal traffic safety procedure. The life span of theplan is the duration of the construction project.

Safety file. The project supervisor for theconstruction stage is required, by virtue of regulation6(2)a, to prepare a safety file where more than onecontractor is engaged in a construction project. Asafety file is a file containing pertinent health andsafety information about the building, to be taken intoaccount during any subsequent construction workfollowing completion of the project. It will contain,for example, electrical circuit diagrams and structuralload calculations. On completion of the constructionproject, the project supervisor for the constructionstage should hand over the safety file to the client.This file is to be made available for inspection by anyperson requiring such information for safety reasons(regulation 3). The file should be passed on to anyperson that acquires an interest in the property. Theforegoing duties do not appear to apply to the averagehouseholder, though the courts have not yetadjudicated upon the matter (See Gazette, November1999 issue, page 33).

The project supervisor’s other duties at theconstruction stage are to:• Co-ordinate the activities of the construction team

in relation to safety, taking into account the generalprinciples of prevention (see regulation 6(2)c of the2001 regulations and the first schedule of theSafety, Health and Welfare at Work (GeneralApplication) Regulations 1993). On the personalcriminal liability of the project supervisor for theconstruction stage, where a court finds that therehas been inadequate co-ordination of safety, healthand welfare on a construction project, see National

Authority for Occupational Safety and Health vInchagoill Contractors (Salthill) Ltd and ChristopherCrehan (District Court, 2001), cited in Byrne’sSafety, health and welfare at work in Ireland: a guide,p132

• Organise the implementation of regulation 6 of theSafety, Health and Welfare at Work (GeneralApplication) Regulations 1993, which provides thatevery employer and every self-employed personsharing a place of work shall co-operate with eachother and co-ordinate their activities ‘in particularin relation to the provision of information’ to eachother and their respective employees or safetyrepresentatives or both. See also sections 7 and 8 ofthe Safety, Health and Welfare at Work Act, 1989

• Maintain records relating to notifiable accidentsand incidents occurring on the site (regulation6(2)e)

• Co-ordinate arrangements for the provision andmaintenance of site welfare facilities for all peopleat work on the construction site (regulation 6(4)and schedules 4 and 5)

• Co-ordinate arrangements ensuring that persons atwork on the site have a valid FÁS Safe passregistration card, or, where required, a valid skillscertificate, and keep records of these available forinspection (regulation 6(5), (6) and (7) of the 2001regulations).

The project supervisor for the construction stage maydelegate duties to a health and safety co-ordinator(regulation 6[3]).

Site safety representativeRegulation 7 and the tenth schedule to the 2001regulations provide that the project supervisor for theconstruction stage must facilitate the election of a sitesafety representative where 20 or more people arelikely to be working on the site. The projectsupervisor for the construction stage is also requiredto facilitate the site safety representative in carryingout his duties, including notifying him when a healthand safety inspector is undertaking an inspection(regulation 7(1)[c]). Furthermore, the projectsupervisor for the construction stage must takeaccount of representations made by the site safetyrepresentative (regulation 7[3]). A construction sitesafety representative has the same rights as with otherplaces of work (although these rights are defined inregulation 7[2]). It is to be noted that the role of thesite safety representative is distinct from, and inaddition to, that of any safety representativesappointed by employers of individual contractors.The project supervisor for the construction stageassumes the role of an employer (on a constructionsite there can be numerous employers), with theworkplace being the construction site.

Notification of projectsA project is notifiable in writing to the HSA by theproject supervisor for the construction stage if it has aplanned duration of more than 30 days or a total

The critical dutiesidentified in the ninthschedule to the 2001regulations are asfollows:• Scaffolding – basic• Scaffolding –

advanced• Tower crane operation• Slinging/signalling• Telescopic handler

operation• Tractor/dozer

operation• Mobile crane

operation• Crawler crane

operation• Articulated dumper

operation• Site dumper operation• 180o excavator

operation• 360o excavator

operation• Roof and wall

cladding/sheeting,and

• Build-up roof felting.

CRITICALSAFETYDUTIES

Health and safety


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work volume greater than 500 man-days. This noticeshould be in the form of the notice detailed in thefirst schedule of the 2001 regulations (see form CR1,the first schedule and regulation 8). It is to be notedthat the first schedule now requires the notification tothe HSA to include the dates on which thepreliminary and developed safety and health planwere prepared. A copy of the notice should bedisplayed on the site (regulation 8[3]).

Contractor’s dutiesRegulation 2 defines a ‘contractor’ as meaning ‘acontractor or an employer whose employeesundertake, carry out or manage construction work, orany person who carries out or manages constructionwork for a fixed or other sum and who supplies thematerials and labour (whether his own labour or thatof another) to carry out such work or supplies thelabour only’.

The contractor decides, among other things, onthe method of construction, the number of workersto be employed, the management and supervisoryprocedures for the construction operations, the plantand equipment to be used, the layout of the building

site, and the sequence and programme of the workstages. The contractor, therefore, takes possession of,and has total control of, the construction site. He isresponsible for ensuring the day-to-day safety, healthand welfare of his employees and/or those whom hesupplies as labour to a construction project. As thecontractor is in control of the workplace, he mustcarry out a risk assessment and implement thenecessary safety controls and precautions. Insummary, control of the site and of the risks on thesite are the responsibility of the contractor.

Regulation 9 imposes a number of obligations oncontractors, the more important of which are to:• Provide the project supervisor for the construction

stage, without delay, with any information which islikely to affect the health or safety of any person atwork on the project or which might justify a reviewof the safety and health plan (regulation 9(1)c)

• Co-operate with the project supervisor for theconstruction stage in relation to compliance withthe pertinent statutory provisions and notificationof accidents and dangerous occurrences (regula-tions 6 and 9(1)e)

• Ensure the site complies with the minimumrequirements as specified in the Safety, Health andWelfare at Work (Construction) Regulations 2001(regulation 9[2]).

• Ensure that everyone under their direct control istrained and holds a valid registration card and,where required, a skills certificate and providewritten evidence of this to the project supervisorfor the construction stage (regulation 9(3), (4) and(5), and schedules 8 and 9).

Any contractor who normally has more than 20people under his direct control at any one time on anyone site is obliged under regulation 10 to appoint aqualified safety officer. This figure includes sub-contractors, the self-employed and direct employees.Where the contractor employs more than 30 peoplein construction work, a safety officer should also beappointed by the contractor to facilitate compliancewith the 2001 regulations (regulation 10[1]).

Particular provision is made in regulation 11(b) inrespect of the erection, installation and modificationof plant and equipment, and, in particular, scaffolding.(See the HSA’s 1999 Code of practice for access andworking on scaffolds for comprehensive guidance on therequisite standards for scaffolding and access work.)The duties imposed under regulation 11 apply toevery contractor. He must ensure that scaffolding iserected, installed and modified by competentscaffolding contractors. Scaffolding should beinspected on a weekly basis or as required.

Contractors are required to provide safetyinformation to employees and safety representatives,and are obliged to ensure that such information iscomprehensible (regulation 12). Regulation 13provides that contractors must also ensure properconsultation with their staff and/or their safetyrepresentatives.

Employees must co-operate with the employer in

Asquith LJ classically defined the ‘reasonably practicable’ standard in Edwards vNational Coal Board ([1949] 1 AER 743 [CA]) in the following manner: ‘Reasonablypracticable is a narrower term than physically possible and seems to me to imply thata computation must be made by the owner in which the quantum of risk is placed onone scale and the sacrifice involved in the measures necessary for averting the risk(whether in money, time or trouble) is placed in the other, and that, if it be shown thatthere is a gross disproportion between them – the risk being insignificant in relationto the sacrifice – the defendants discharge the onus on them. Moreover, thiscomputation falls to be made by the owner at a point of time anterior to the accident’.

In Daly v Avonmore Creameries Limited ([1984] IR 131), McCarthy J in theSupreme Court considered ‘reasonably practicable’ at page 131: ‘I am not to betaken as supporting a view that, where lives are at stake, considerations of expenseare any more than vaguely material’. (See also Kirwan v Bray UDC [unreported,Supreme Court, 30 July 1969].)

The Supreme Court reinforced this view in Boyle v Marathon Petroleum IrelandLimited (unreported, Supreme Court, 12 January 1999). In that case, O’Flaherty Jaffirmed the view of the High Court (unreported, High Court, McCracken J, 1November 1995) that the burden of proof was on the defendant to show that it wasnot ‘reasonably practicable’ to do more than was done to discharge his statutory dutyunder the health and safety legislation: ‘I am ... of the opinion that this duty is moreextensive than the common law duty which devolves on employers to exercisereasonable care in various aspects as regards their employees. It is an obligation totake all practical steps. That seems to me to involve more than that they shouldrespond that they, as employers, did all that was reasonably to be expected of themin a particular situation. An employer might sometimes be able to say that what hedid by way of exercising reasonable care was done in the “agony of the moment”, forexample, but that might not be enough to discharge his statutory duty under thesection in question’.

See also the Scottish case of Mains v Uniroyal ([1995] IRLR 544), heard in theCourt of Session before Lords Wylie, Sutherland and Johnston. For the designers’duties under the analogous British Construction (Design and Management)Regulations 1994, see R v Paul Wurth SA (Court of Appeal, 2000), cited in R Byrne’sSafety, health and welfare at work in Ireland: a guide (Dublin: NIFAST, 2001), p126.

WHAT DOES ‘REASONABLYPRACTICABLE’ MEAN?

Health and safety


27

matters affecting health and safety, report defects inplant and equipment, and make proper use of theprotective equipment provided (regulation 14). Tocomply with the 2001 regulations, employees arerequired to undertake training in relation to Safe passand construction skills certification without loss of pay(regulation 14[c]) and to produce Safe pass and relevantCSCS cards when requested to do so by the projectsupervisor for the construction stage or by theiremployer (regulation 14[d]).

Miscellaneous mattersRegulations 15 to 129 are concerned with health andsafety requirements relating to the construction siteitself, and to specific risks such as the use of liftingequipment or demolition work. These requirementswill, in general, be the responsibility of the contractor(regulation 9(1)a). Part 9 of the 2001 regulations isworthy of particular mention, in that it requires thatwhere a person is to be exposed to an unhealthyatmosphere, appropriate preventative measures shouldbe taken against such exposure. It makes specificreference to the disposal of waste and the use ofinternal combustion engines.

In common with all regulations made under section28 of the Safety, Health and Welfare at Work Act, 1989,unless the regulations specifically provide otherwise,civil and criminal sanctions attach for failure tocomply with the 2001 regulations. Obviously, inrespect of civil actions, there must be a causalconnection between the breach of the duty alleged andthe loss or injury sustained.

It should be noted that the provisions of the Safety,Health and Welfare at Work (Construction) Regulations2001 are in addition to the provisions of the Safety,Health and Welfare at Work Act, 1989, and the Safety,Health and Welfare at Work (General Application)Regulations 1993.

The Safety, Health and Welfare at Work (Construction)Regulations 2001 represent a powerful movementtowards greater protection of the safety, health andwelfare of employees on construction sites. It isprobable that further regulations, affecting all aspectsof construction work and all those people connectedwith it, will be introduced pursuant to section 28 ofthe Safety, Health and Welfare at Work Act, 1989. Theseregulations will, no doubt, impose more extensiveobligations on those involved in the design andconstruction stages of a construction project. The costof complying with these regulations will also increase.

With the passage of time, regulations will improvethe health and safety standards that employees enjoyon the construction site. This should result in feweraccidents. Consequently, the number and cost ofclaims should fall. This increased protection may raisethe expectations of society as a whole in so far assafety, health and welfare on the construction site areconcerned. It may serve, in time, to impact upon thecommon-law duty of care. In other words, what isreasonable now may not be deemed reasonable in thefuture. In summary, the greater protection afforded bystatute may become no more than merely declaratory

of the common-law position. Society and the courts are already reflecting this

increased awareness of health and safety. Theinitiation of manslaughter charges in 1999 by thedirector of public prosecutions against the managingdirector of a company, arising from the death of twoemployees on a construction site, was hailed as amilestone. It signposted the fact that construction sitedeaths can no longer be discounted as a minor matterfor the District Court. The case resulted in fines ofalmost a quarter of a million pounds being imposed;moreover, a sub-contractor with the companyreceived an 18-month suspended prison sentenceafter he pleaded guilty to a charge of recklessendangerment under the Non-Fatal Offences Againstthe Person Act, 1997 (Naas Circuit Criminal Court, 21November 2001). Mr Tom Beegan, director generalof the HSA, commented: ‘The message which mustgo out to employers in all sectors, and not just theconstruction industry, is that they have a statutoryobligation to proactively manage safety in theworkplace, including the preparation of an adequatesafety statement’.

In the future, it is likely that individual members ofthe construction project will face criminal chargesarising out of deaths and injuries on construction siteswhere it is possible to connect their individual failureswith the construction project. It is interesting to notethat Jack Straw, the former British home secretary,mooted the introduction of a new offence of‘corporate killing’ in the UK. This offence wouldfacilitate the prosecution of those in control ofconstruction projects and render them liable forunlimited fines and imprisonment in circumstanceswhere they are found to have neglected the healthand safety of those affected by their activities. Such anoffence was proposed in the UK by the LawCommission in 1996 (Law Com no 237, Legislatingthe criminal code: involuntary manslaughter, HMSO,1996).

It may not be long before a similar approach isadopted in this jurisdiction.

Geoffrey Shannon is the Law Society’s deputy director ofeducation and the author of the forthcoming book Healthand safety: law and practice (Round Hall, 2002).

G

The new regulations are‘a powerful movementtowards greater protectionof employees’

‘Construction

site deaths can

no longer be

discounted as

a minor matter

for the District

Court’

Legal executives


28

The role of the legal executive has grownrapidly over the last few years. What wasonce a small role in a legal practice hasdeveloped into a pivotal and essentialpart of a great number of practices

around the country. There are many varying rolesfor legal executives, who are required to carry outtheir tasks in a professional and diligent mannerunder the supervision and guidance of a qualifiedsolicitor.

It is essential that there is a properly maintainedregister of legal executives and that the quality andexperience of those holding themselves out to belegal executives is maintained at the higheststandard, as with all other areas of the profession.This not only protects the clients and the employee,but also the reputation of the institute and of thelegal profession as a whole.

Over the last number of years, the institute hasseen increasing support from members of thejudiciary and the legal profession in general.

Legal executives play an important role in the work of busy law firms around the country. Now

their value looks set to increase even further with the introduction of a new education and

training course, as Aidan McGrath explains

When I was appointed education officer, Iundertook the task of formulating an educationpolicy document. We decided to create our owncourse with its own objectives and this becameparamount to our education policy, though itproved far more complex than even we hadimagined. As the institute is the focal point for alllegal executives in Ireland, we had to ensure thatall areas of law were covered. We were aware thatthis course naturally had to cover the academicstudy of the law but, in addition, we felt it neededto include the practical elements necessary to workin the law. We had to be certain that our coursehad all the necessary ingredients to ensure thatthose who undertook the course would leave withsufficient legal knowledge and practical skills totake up their roles as legal executives.

New era for legal executivesIn order to ensure that the course was everythingthat the institute required and that it was suitablefor implementation, the institutejoined forces with Philip Burke,head of professional lawprogrammes at Griffith CollegeDublin, to complete the venture.

The Legal executive professionallegal studies course marks a newera for the formal education andtraining of legal executives inIreland. Essentially, the course isa certificate and diploma inprofessional legal studiesspecifically aimed at theeducation and training of legalexecutives.

Prior to the implementation ofthis course, there was no singlecourse in Ireland specificallycatering for the education andtraining needs of those wishingto become legal executives. Now,

MAI

N P

OIN

TS • Changing roleof legalexecutives

• Work of theIrish Instituteof LegalExecutives

• Content ofnew trainingcourse

The Irish Institute of Legal Executives was formed in 1987 and incorporated as acompany limited by guarantee in 1992. The institute is a body of members andrepresents all enrolled legal executives in Ireland. Its aim is to provide arecognised professional qualification for those carrying on the role of legalexecutive. The institute’s members are generally employed in private practice, thelegal departments of banks and public or local authorities.

The objectives of the institute are set out in the memorandum and articles ofassociation and the code of rules. The primary purpose is to represent, promoteand encourage people identified as legal executives practising in all legal areas ofemployment. Our ultimate educational goal is to provide a system of qualificationand training. The institute also aims to further the highest standards of workingpractice by its members in all areas.

A council comprising of 15 members, elected at the annual general meeting,directs the affairs of the institute. Each newly-elected council appoints thepresident of the institute and its officers.

THE IRISH INSTITUTE OF LEGAL EXECUTIVES?

Executive

WHAT IS

Legal executives


29

for the first time, there is a course that willprovide an academic and practical base in law forthose who wish to enter this career. Our memberswill no longer be required to obtain the necessarylevel of education and training through differentcourses and experience. This is the mostsignificant educational development within thelegal executive profession in Ireland to date.

The course should also prove beneficial toemployers, as it will allow a graduate to enter theoffice of a law firm with a reasonableunderstanding not only of the law but also of thepractice and procedures used in legal offices. Thisshould considerably speed up the new employee’sability to settle into an office and reduce theamount of in-house training needed in each case.

The Legal executive professional legal studiescourse is comprised of the following topics:

Stage one• The Irish legal system • Foundations in the law of tort • Foundations in contract law • Civil litigation, procedure and case management • Criminal law, the constitution and judicial review.

On completion of stage one, students will attempta two-hour examination in each module.

Stage two• Legal research, writing and communication skills • The law of real property, conveyancing and

succession • Business law • Elements of family law and procedure*• Criminal procedure and litigation*(*denotes electives).

On completion of stage two, students will attemptone three-hour examination in each moduleundertaken.

WHAT DOES THE

actionINVOLVE?NEW COURSE

Legal executives


30

The course syllabus has been devised to meetthe rather specific educational requirements oftoday’s legal executive. On successful completionof the first year, candidates will be awarded aCertificate in professional legal studies. A Diploma inprofessional legal studies will be awarded uponsuccessful completion of the second year.

Diploma graduates will be eligible forenrolment as associate members. Then, afterobtaining sufficient practical experience, they canbe admitted as full members of the institute. Allthose enrolled on the course are eligible to becomestudent members.

Everyone involved in this initiative believes thatthe correct balance has been struck betweenacademic and practical subjects. The aim is toprovide students with an academic grounding in

the traditional core law subjects, while alsofocusing on the practical application of those legalprinciples in the work environment. The study oflegal practice and procedure is undertakenspecifically with the role, duties andresponsibilities of the legal executive in mind.

While there are many objectives yet to beattained by the institute, this is probably the mostimportant. I believe that the current membershipof the institute represents about 10% of the totalnumber of legal executives employed in Ireland.

The institute maintains and publishes adirectory of all registered legal executives inIreland and their area of expertise and contactdetails. In addition, it publishes a quarterlynewsletter to help keep our members up-to-dateon developments in the law and general matters ofinterest to the profession.

We hope to increase our membership over thecoming years, and we urge you to encourage youremployees to considering enrolling on the newLegal executive professional legal studies course and tobecome members of the institute.

Aidan McGrath is the education officer at the IrishInstitute of Legal Executives.

G

FURTHER INFORMATIONAnyone interested in learning more about the Irish Institute of Legal Executivesshould visit its website at www.irishinstituteoflegalexecutives.com. Alternatively,you can contact the institute at 22/24 Lower Mount Street, Dublin 2 (tel/fax: 01890 4278, e-mail: [email protected]).

‘This is the

most significant

educational

development

within the legal

executive

profession in

Ireland to date’


31

Books

Book reviews

Lord Justice Harman oncedescribed accountants as

‘the witch doctors of themodern world’ (Miles v Clarke[1953] 1WLR 537 at 539).This dictum is in fact referredto by the authors in theirpreface.

A healthy tension existsbetween the profession ofsolicitor and accountant. In thepast, a mild degree of mutualsuspicion has sometimes beenexhibited. Some solicitorsconsidered that accountantshad ‘trespassed’ into the legaldomain, with the consequencethat solicitors may have lostwork to accountants. Thisreviewer considers that, of allthe disciplines that he wouldhave benefited from greaterexposure to at a formativestage, finance and accounting-related matters are high on thatlist. The accountancy

profession has developedstrongly in recent times, andaccountants have made theirmark in many disciplines.

Mr Justice Ronan Keane,the chief justice, notes in hisforeword to the book that thegreatly increased role ofaccountants as witnesses ‘isamply demonstrated by theremarkable scope of thisadmirable book’. He notes therole of accountants in personalinjury actions dealing withdifficult questions of loss ofearnings and profits, the roleof the accountant in family lawand employment cases, and incommercial disputes whereaccountants give evidence as tothe estimation of damages.These themes are consideredin the 1,015 pages of thisbook.

Among the other themesconsidered in the book are

fraud and forensic accountingand the forensic accountinginvestigation, civil litigationaffecting individuals in thecontext of personal injuries,loss of earnings cases and fatalaccidents, employment law(unfair and wrongfuldismissals), and matrimonialdisputes – all of interest tolawyers. Breach of contractdisputes, breach of warranty,public liability, intellectualproperty rights andcompetition law are also topicsthat are considered in somedepth by the authors. The lawon damages is a most usefulchapter, together with therelated chapter on interest,discount and the time value ofmoney.

Niamh Brennan is theMichael MacCormackprofessor of management atUniversity College Dublin and

a chartered accountant, and isthe author/co-author of anumber of books on financialreporting. John Hennessy is apractising barrister, havingspent 18 years with ArthurAndersen, including six yearsas a partner in the firm’sworldwide partnership.

Forensic accounting is anauthoritative account of animportant and developing areain the context of criminal andcivil litigation, companyinvestigations, tribunals ofinquiry and alternative disputeresolution. It is a valuable workof reference, combiningacademic research with theinsights of practice. There is awealth of information in thisbook, which is written in anengaging style.

Dr Eamonn Hall is chief legalofficer of Eircom plc.

G

Forensic accountingNiamh Brennan and John Hennessy. Round Hall Sweet & Maxwell (2001), 43 Fitzwilliam Place,Dublin 2. ISBN: 1-85800-203-6. Price: €235.

This is an intimidating book.It has 570 pages with a

nine-page index. My firstinstinct on picking it up was toput it back down again.

My second instinct was totake the time to give a seriouswork fair consideration. Theresult: this is a book thatdeserves to be read byinsurance practitioners,litigation solicitors and indeedgeneral practitioners.

Basics first. The book coverssignificantly more than just thelaw of insurance. As even a

glance through the contentspages will show, AustinBuckley’s work arguablycomplements McMahon &Binchy’s seminal volume on thelaw of torts in Ireland.

There are many relevant andinteresting case extracts. Justone such is that of formersolicitor, Circuit Court JudgeBryan McMahon (ofMcMahon & Binchy fame) inCurran v Cadbury (Ireland)Limited (17 December 1999).The case involved an employeeat Cadbury’s factory in

Coolock who claimed that shesuffered serious psychiatricillness due to the negligence,breach of duty and breach ofstatutory duty of Cadbury.

A fitter was in a machine outof her sight when she re-started it after an unscheduledstop. She was a participant, andnot merely an observer, in theaccident which caused hernervous shock.

The extract of McMahon J’sjudgment should be requiredreading for all litigationlawyers. It provides a succinct

summary of the up-to-date lawand its provenance.

The judgment refers toMullally v Bus Éireann ([1992]ILRM 722) and also Kelly vHennessy ([1995] 3 IR 253).McMahon J’s four reasons forfinding for the plaintiff areworth quoting:1) She is owed a general duty

of care on proximity andneighbourhood principlesand there has been a breachof that duty which causedthe plaintiff reasonablyforeseeable psychiatric harm;

Insurance law in Ireland, vol 2 Austin J Buckley. Oak Tree Press (2002), 19 Rutland Street, Cork. ISBN: 1-86076-233-6 (hardback), 1-86076-235-2 (paperback).Price: €95 (hardback), €60 (paperback).

‘

Books


33

further, there are no goodpolicy reasons in her casewhich should deny the dutyof care

2) She complies with the fiveconditions laid down byHamilton CJ in Kelly vHennessy on nervous shock

3) She was an “involuntaryparticipant” due to thedefendant’s negligence, and

4) The defendant was in breachof a statutory duty whichresulted in “an impairmentof (the plaintiff’s) physical ormental condition”.’

On insurance law specifically,the development of the law oninsurance companiesrepudiating liability is veryclearly and well explained, withreferences to up-to-date caselaw. The decision of theSupreme Court in theSuperwood case (SuperwoodHoldings plc v Sun Alliance andLondon Insurance plc [1995] 3 IR303) to set aside the finding offraud by the High Courtsuggested that exaggeration ofa claim was not conclusiveevidence of fraud.

The author also providesextracts from anothersignificant Supreme Courtcase, Michael Fagan v GeneralAccident Fire and Life AssuranceCorporation plc (unreported,Supreme Court, 14 October1998). Michael Fagan claimed

that the contents of hisdwellinghouse and premises atKilkerley, Co Louth, weredestroyed or stolen during aburglary and fire on the nightof 11 March 1989. He claimed£46,585 on his insurancepolicy with General Accident.In the Supreme Court appealby Mr Fagan, Lynch J said thatan ‘insurer can hardly beexpected to spoon-feed aninsured as to whose honestyand reliability the insurer hasdoubts’. Lynch J went on tosay that ‘insofar as theappellant (Mr Fagan) relies onthe Superwood case, it seems tome that it does not extend thatfar’.

It was no longer necessaryfor the insurance company toprove fraudulent intent on thepart of the insured for it tosuccessfully repudiate liability.The requirement of MrsJustice Denham in Superwoodwas overturned.

The duties of insurancebrokers, the meaning of‘utmost good faith’, andgeneral principles of insurance(including insurable interestand subrogation by insurers)are clearly explained andupdated in this book. Thereare helpful extracts from caseson policy terms and conditions.

The book will also benefit abroader audience, as the authorwrites on professional liability,

employers’ liability and motorinsurance. Long sentences areusually worth wading through:‘In Ireland, in a recent HighCourt decision (Rothwell vMIBI, unreported, 6 July 2001),Mr Justice McCracken heldthat a small isolated patch ofpetrol or diesel fuel oil on aroad, alleged to have caused amotorist to skid into the pathof an on-coming vehicle,entitled the claimant to bring aclaim for compensation underclause 6 of the MIBIagreement, as the source of theoil on the road was unknownand if it came from anothervehicle the identity of thatvehicle was also unknown’.

Solicitors reading the bookwill view chapter 12, onprofessional liability, withparticular interest, not to sayconcern. We are reminded thatan action against a professionaladvisor may remain viable intort long after it is statute-barred in contract. We are toldthat, while the duty of care intort may sometimes be lessonerous than that imposed bycontract, such duty may bewider (Holt v Payne Skillingtonand Anor, unreported, Court ofAppeal, 18 December 1995).

In the foreword, Presidentof the High Court Mr JusticeFinnegan notes that thissecond volume provides ahighly valuable source of

information on the most up-to-date insurance law conceptsand ‘will be of great interest tothose within the insuranceindustry, law students and legalpractitioners alike’.

This is a very worthwhilework that should be read. Butreading through it is not anunmixed blessing. There is asense that some of the caseextracts are excessively long.Comments made by the authorare usually, but not always, wellmade and helpful. A seriouswork deserves careful editing,so that simple typing errorssuch as ‘subroagtion’ (sic) orsub-editing errors like ‘thereare can be a breach’ should berare to non-existent. Whenreading it, remember that justbecause the pilot’s overheadlight is blinking does not meanthat the engines are going tofall off at 40,000 feet.

There is a lot of material. Alarge volume is inevitably abook of reference. It should beeasy to find a point. But thenine-page index hardly reflectsthe breadth of just-off-the-presses information within thecovers. So, if you are lookingfor a point and don’t find itimmediately, persevere. It’sworth it.

Patrick Igoe is principal of theDublin law firm Patrick Igoe andCompany.

G

Abuse of processDesmond ShielsFirstLaw Electronic Publishing(2002).ISBN: 1-902354-07-9. Price: €50

Cassidy on the Licensing Acts,2nd editionConstance Cassidy SCRound Hall Sweet & Maxwell(2001), 43 Fitzwilliam Place,Dublin 2.ISBN: 1-85800-229-X (loose-leaf and CD-ROM set).Price: €500

The construction of willsAlbert KeatingRound Hall Sweet & Maxwell(2001), 43 Fitzwilliam Place,Dublin 2.ISBN: 1-85800-231-1.Price: €110

Criminal justice in IrelandEdited by Paul O’MahonyInstitute of Public Administration(2002), 57-61 LandsdowneRoad, Dublin 4.ISBN: 1-902448-67-7(paperback).Price: €30

The Irish health and safetyhandbook (updated 2nd edition)Thomas N GaravanOak Tree Press (2001), 19Rutland Street, Cork.ISBN: 1-86076-189-5.Price: €110

Wildlife legislation: 1976-2000Henry ComerfordRound Hall Sweet & Maxwell(2001), 43 Fitzwilliam Place,Dublin 2.ISBN: 1-85800-261-3.Price: €105

Practitioners’ court guide 2002Agnes McKenzie BL (2001), Law Library, Four Courts, Dublin 7.Price: €19

Social inclusion and the legal system: public interest law in IrelandGerry WhyteInstitute of Public Administration(2002), 57-61 LandsdowneRoad, Dublin 4.ISBN: 1-902448-66-9.Price: €45

BOOKS PUBLISHED

presentations at work. If you’reinterested, the technicalspecifications include 1,440 x720dpi resolution, 6plultra-microdot for finerresolution and USBconnectivity withWindows andMacintosh programs.At €95, it’s a smallprice to pay to keepthe loveable littlerascals locked up in their rooms ’til tea-time.Availablefromcomputer storesnationwide.

Gadgets


34

Now that the kids are outfrom under your feet and

back to school, this might bethe right time to invest in anentry-level printer for them.After all, they’re bound to gethigher marks if their teacherdoesn’t have to read theirappalling handwriting. Epson’snew Stylus C42 might just fitthe bill. This four-colour inkjetprinter is aimed at the first-time user and produces fast,high-quality colour pages (five-and-a-half per minute, 11 if youprint in black and white). Thisis ideal for projects, essays andhomework, but you wouldn’twant to rely on it for important

The kids are all write

P icture the scene. Youstumble across an illegal

monkey knife-fight and want totake a picture of the simianswordplay to use asevidence in a futurecourt case. But howcan you get awaywith it without theorganisers goingape on you?Simple. Use yournew wristwatchcamera from Casio.This quite unnecessaryinvention actually doesfunction as a wristwatch andstopwatch as well, but also takesnifty colour photographs. TheWQV-10D2 holds up to 100

Help stop this evil craze!colour images at a time in its1MB memory, and these can beviewed on your watch ordownloaded to your computer in

JPEG format. A text editorallows you to add notes to thepictures. The camera has azoom facility, three lightingsettings to choose from –indoors, outdoors and dusk– and can also be set ontimer delay to give yourself

a chance to run for your life.The Casio WQV-10D2 maybe of little practical benefit,

but it will help you feel big andclever if you’ve got more monkeythan sense.Available from www.gizmos-uk.com for stg£249.99.

Tech trends

Relief for chubby-fingered technophiles

No-one knows how long thecurrent fad will last for

PDAs (that’s ‘personal digitalassistants’, thank you forasking), but one thing’s for sure:if they get any smaller, you’llneed fingers thin as twigsbefore you can operate them.Now help is at hand for all

chubby-fingered freaks, thanksto Whitelite, a technologycompany based in Carlow, whichhas produced a lightweight,flexible PDA keyboard that canbe rolled up and carried aroundin your pocket. The FX100 hasthe full 64-button QWERTYkeyboard, including shortcutkeys, and is compatible withmost pocket computers. Itswater-resistant sealed-siliconedesign means that it’s solidenough that you feel as if you’re

typing on a proper keyboard.And, even better, it doesn’trequire any batteries to use. Ifyou’re going to stick with yourPDA, then the FX100 seems

like a much better idea thanputting your fingers on a diet. Available from MCI (tel: 021 4975020) and computer outlets, price€89.95.

Gadgets


35

Sites to see

‘Never judge a man untilyou’ve walked a mile in

his shoes’, the Duke ofWellington was prone to say,‘because then you’re a mileaway, you have his shoes andyou can say whatever the hellyou want’. Of course, the goodduke would never have lost thebattle of Trafalgar if he’d hadthe new Nokia GPS module to

tell him where he was. Thisclever little device uses globalpositioning software to turnyour Nokia phone into acolour map and route planner.You can call up every street ina city and even find theshortest route to take to getthere. You may never have tomiss an appointment again.That’s a big enough drawback

in itself: an even bigger one isthat the GPS module onlyworks with the Nokia 9210Communicator (that’s thedelightfully expensive mobilephone that flips open to double as a pocket computer).For more information visit the Nokia website atwww.nokia.com.

A nod in the right direction

Power Phillips, Attorneys (www.ppbfh.com). Possibly the mostentertaining law firm website in the world. Powers Phillips couldeven teach Alanis Morissette what ‘ironic’ means. Take thisnugget: ‘Prospective clients should be assured that the woman-controlled nature of the firm in no way lowers the quality oflegal services’. This site is a gem. Irish firms, look and learn!

Movie news (www.cinescape.com). This website for Cinescapemagazine is packed full of news and reviews of forthcomingfilms, television series, books, comics and games. Tell your bossyou’re investigating intellectual property rights, then spend theafternoon downloading the first pictures from The two towers. Agreat place to visit if you’re a sci-fi fan or movie buff.

Spoof newspaper (www.framleyexaminer.com). If you’re fed upreading the serious newspapers and can’t take one more po-faced editorial from the Irish Times, then try the Framleyexaminer. This spoof local newspaper is addictive and a farbetter read than anything currently coming out of eitherD’Olier Street or Middle Abbey Street.

Golden Pages (www.goldenpages.ie). Let your fingers do thewalking but avoid the paper cuts. This easy-to-navigate site letsyou search for products and services nationwide or in specificareas much quicker than you could do by flicking through thedirectory. You can also do searches for residential phonenumbers, if you’re in a stalking frame of mind.

Stockwatch


36

Brian Weber: hedge funds arereally only suited to the highnet-worth investor

Hedge funds are often portrayed as risky investments, but this isnot necessarily true, argues Brian Weber

Hedging your betsIt is becoming a very strong

probability that global equitymarkets will end the year innegative territory. In light ofthis, many investors are activelylooking elsewhere. A conseq-uence of this has been anincrease in the popularity ofhedge funds.

Hedge funds are collectiveinvestment schemes thatencompass a wide range ofinvestment strategies, styles,techniques and assets. Theywere born out of the desire toobtain real, absolute or positivereturns regardless of how aninvestment benchmarkperforms. This means thatregardless of which way marketsare going, the aim of a hedge-fund manager is to alwaysproduce a positive return ratherthan to outperform a chosenindex, which is the aim of mosttraditional fund managers.

Media stories relating to thehedge-fund industry havecreated an inaccurate picture.Those that received extensivenegative media coverage includeGeorge Soros’ currency bets inthe early 1990s, particularly onsterling’s exit from the exchangerate mechanism, and thecollapse and subsequent bail-outof Long Term CapitalManagement in 1998/89 withlosses of more than $3 billion.

But hedge funds are notnecessarily the risky investmentsthe press frequently portraysthem to be.

Many hedge funds are run byconservative managers aimingto produce steady, absolutereturns with low volatility – inother words, equity-type returnsfor bond-type risk. A diversifiedfund of hedge funds cansignificantly enhance a client’sportfolio, if it is evaluated andemployed in the correct way.

Sourcing hedge-fund talentrequires a proactive effort.

Access to funds, due diligenceand on-going portfolio riskmanagement are the key alphagenerators for a fund of funds.As a result, the supply of goodfund managers to meet thegrowing demand from investorswill become a more relevantissue as time goes on.

The hedge-fund industry ingeneral generated positivereturns throughout the 1990s.But it was primarily fundinflows rather than organicgrowth that drove expansion.There are three principalreasons for this:• Strong growth in the number

of high net-worth individualsand sophisticated privateclient investors

• Empirical and academicevidence that hedge funds

categories/styles of hedge fundsrange from equity short bias tofixed-income arbitrage, andglobal macro to convertiblearbitrage and event-drivenhedge funds.

To explain the different typesand styles of hedge fundsavailable would require morethan one article. However, forthe purpose of this month’spiece, we’ll use an equity shortbias to demonstrate how hedgefunds work.

A hedge-fund manager whothinks shares in company X willfall will borrow shares from abroker. For this, the broker willcharge a lending fee. The fundmanager then sells company X’sshares in the market. Ifcompany X’s share price falls,the hedge-fund manager buys

increased diversification acrosscategories and styles and thereduced volatility they can offer(although the cost of reducedvolatility is a reduction inreturns).

Managers of funds of fundswill use complementary stylesor categories to optimise therisk/reward of the constituentfunds. The main objective is tomaximise returns whileminimising risk throughprofessional selection,monitoring and on-goingportfolio management. A fundof funds should comprise atleast 15-20 different types ofhedge fund to providediversification.

Funds of funds offer value byfinding new talent early,constructing portfolios usingdifferent styles to optimisereturns, and completing duediligence and risk control.

Investors who place moneywith hedge-fund managersrequire a high level ofinvestment. Typically, an initialinvestment minimum of€125,000 is required. As aweighting within a portfolio,hedge funds usually make upapproximately 5-10%, so theyare really only suited to thehigh net-worth investor.

Brian Weber is a portfoliomanager with Davy Stockbrokers’private clients unit.

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• Alignment of hedge-fund managers’ and investors’ interests, as the managers are often also investors in the fund

• Management are incentivised through performance – bonus management fees for outperformance

• Historic superior risk/reward profile – a higher ratio of return torisk

• Adding hedge funds to stock and bond portfolios increasesreturns for the same amount of risk

• Can be used to protect against market volatility.

ADVANTAGES OF HEDGE-FUND INVESTMENT

can offer superior returnswhile displaying a lowcorrelation to other assetclasses

• Increased respectability andacceptance of alternativeinvestment vehicles –including hedge funds,private equity and venturecapital – as a recognised andseparate asset class.

Principal fund categoriesThere are a number of differentstyles or categories of hedgefund. Each fund manager useshis expertise within eachcategory to try to achieveabsolute returns for investors.

Examples of different

back the shares and makes aprofit on the difference betweenthe selling price and thepurchase price. However, if theshare price rises instead of falls,or remains unchanged, the fundmanager will make a loss.

A fund of fundsAn increasingly popular way ofinvesting in hedge funds hasbeen the development of fundsof funds. These are singleinvestments with a unifiedstructure and simplifiedreporting and administrationthat invest in a number ofdifferent types of hedge funds.

The benefits of investing in afund of hedge funds are

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SELECTED STATUTORYINSTRUMENTSCourts and Court Officers Act,2002 Sections 19 to 21(Commencement) Order 2002Number: SI 407/2002Contents note: Appoints 1/10/2002 as the commencement datefor the following sections of theCourts and Court Officers Act,2002: section 19 (extension ofjurisdiction of Circuit Court andDistrict Court under s21A of theFamily Law (Maintenance ofSpouses and Children) Act,1976), section 20 (extension ofjurisdiction of Circuit Court andDistrict Court under s23 of theFamily Law (Maintenance ofSpouses and Children) Act, 1976)and section 21 (extension of juris-diction of the Circuit Court andDistrict Cour t under theGuardianship of Infants Act,1964)

European Communities (LatePayment in Commercial

Transactions) Regulations 2002Number: SI 388/2002Contents note: Implement direc-tive 2000/35/EC on late paymentin commercial transactions inboth the public and private sec-tors and amend the PromptPayment of Accounts Act, 1997.‘Commercial transactions’ aredefined as transactions betweenundertakings or between under-takings and public authorities forthe purposes of providing goodsor services for remuneration.Provide that interest shall bepayable in respect of a late pay-ment after 30 days have elapsedunless an alternative paymentperiod is specified in an agreedcontract. Provide that compensa-tion may be claimed for debtrecovery costs, that the use ofterms that are grossly unfair maybe unenforceable and that suchterms may be challenged in court,and that grossly unfair terms mayalso be challenged by organisa-tions representing small and

medium-sized enterprisesCommencement date: 7/8/2002

Health (In-Patient Charges)(Amendment) Regulations 2002Number: SI 367/2002Contents note: Amend the Health(In-Patient Charges) Regulations1987 and 2001 by increasing thedaily charge for in-patient servicesfrom €33 to €36 and by increas-ing the maximum amount payablein any period of 12 consecutivemonths from €330 to €360.Exemptions for medical card hold-ers and hardship provision contin-ue to applyCommencement date: 1/8/2002

Health (Out-Patient Charges)(Amendment) Regulations 2002Number: SI 366/2002Contents note: Amend theHealth (Out-Patient Charges)(Amendment) Regulations 2001by increasing from €31.70 to€40 the charge in respect ofattendance at accident and emer-

gency or casualty departments,where the person concerned hasnot been referred by a medicalpractitioner. The charge shall notapply where such attendanceresults in hospital admission.Exemptions for medical card hold-ers and hardship provision con-tinue to applyCommencement date: 1/8/2002

Motor Insurance (Provision ofInformation) (Renewal of Policyof Insurance) Regulations 2002Number: SI 389/2002Contents note: Require insurersto give motor insurance policy-holders: a) 15 working days’notice in writing of the renewal ofthe policy and the terms of therenewal, and b) a no-claims bonuscertificate as a separate docu-ment in addition to the renewalnotification Commencement date: 31/10/2002.

Prepared by the Law Society Library

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LEGISLATION UPDATE: 23 JULY – 19 AUGUST 2002

Certain portions of the ChildrenAct, 2001 were brought into

effect by way of a commencementorder (SI 151 of 2002). A sectionwhich is of particular relevance tothose practitioners dealing withchildcare is section 267(1)(a). This

section amends section 17(2) ofthe Child Care Act, 1991, whichonly authorised the District Courtto make or extend an interim careorder for more than eight days withparental consent.

Section 267(1)(a) states that

the District Court can now make aninterim care order or extend thatorder for a period of 28 days in theabsence of parental consent.

It is of note that in theChildren’s Court in Dublin, theCourt Services Board, on the

basis that this amendment shouldreduce the frequency with whichapplications need to be renewed,has withdrawn the second healthboard day every second week.

Family Law and Civil Legal Aid Committee

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PRACTICE NOTE

Health board days in Children’s Court

BUSINESS LAW

European Communities (LatePayment in CommercialTransactions) Regulations2002 (SI no 388 of 2002) These regulations came intoeffect on 7 August 2002, givingeffect to directive no2000/35/EC. Their purpose isto combat late payment incommercial transactions byimposing an interest penalty

Committee reportequal to the European CentralBank rate plus seven points,where payment is not madewithin a period specified in acontract or, where no period isspecified, within 30 days ofreceipt of the invoice or thegoods or services. If a purchaserpurports to waive or vary theseregulations and the supplierconsiders it grossly unfair, thesupplier may apply to theCircuit Court or to an

arbitrator for an order to thateffect or that the terms areunenforceable or substitutingthem with the provisions ofthese regulations or directingpayment of compensation, costsand expenses. A similarapplication may be made by arepresentative body, being anorganisation having a legitimateinterest in representing smalland medium-sized enterprisesgenerally or in a specific sector

of the economy or geographicalarea. The regulations do notapply to consumer contracts.The Prompt Payment of AccountsAct, 1997 (no 31 of 1997),which had provided forpayment of statutory interest inthe event of payments not beingmade by public bodies within45 days of the due date ofpayment, has been amended bythese regulations.

Business Law CommitteeG

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Personal injury judgment

CASE Theresa Furey v Hans Otto Suckau, High Court, judgment of Ó Caoimh J; Supreme Court, Murphy, Hardiman and Geoghegan JJ,judgment of Hardiman J for the court of 26 April 2002.

Road traffic accident – collision between car and camper van – fatal injury of driver of car – issue of liability – dis-pute among engineers – negligence of both drivers – apportionment of liability – appeal to the Supreme Court –role of appellate court – observations of Supreme Court concerning written submissions in personal injury casesthat were not straightforward – importance of preserving all photographs and sketches which were before the trialcourt – question of whether there should be a retrial

THE FACTSOn 8 May 2000, James Furey

was driving his almost newAstra motor car at Barrymore,Kiltoom, Athlone. This is on themain road between Athlone andRoscommon, about five milesfrom Athlone. Mr Furey hadbeen driving towards Athlone. Asergeant in the Defence Forces,he was returning with two col-

leagues to his home in Corkfrom Donegal, where he hadparticipated in the All-ArmyOrienteering Championships.

At a junction of the main roadwith the road leading to theHodson Bay Hotel, where thewidth of the road is about 23 feet,Mr Furey’s car collided with acamper van driven by Hans Otto

Suckau. Mr Suckau had been forsome weeks on a touring holidayin Britain and Ireland. He haddriven from Athlone and intend-ed to turn right into the HodsonBay complex. Mr Furey died as aresult of the collision of the twovehicles. The two passengers inMr Furey’s car had no recollec-tion of the events and there were

no witnesses at the scene of theaccident. The only eyewitnesstestimony of the accident inwhich Mr Furey died came fromMr Suckau and his wife.

Theresa Furey institutedHigh Court action on her ownbehalf and on behalf of otherdependants of her husbandagainst Mr Suckau.

The case came before ÓCaoimh J in the High

Court. In the High Court, MrSuckau testified that he drovealong the road from Athloneand saw the sign for the HodsonBay complex, where he plannedto go. He testified that heapproached the centre line ofthe road and, while doing so,applied his brake. He put thevehicle into neutral and kept hisfoot on the brake because therewere two or three on-comingcars, which he let pass. MrSuckau testified that the campervan was at an angle to the centreline of the road because thevehicle was very large and onecould not ‘go parallel’ when onehad to come across at an angle.

THE HIGH COURT JUDGMENTIn evidence, Mr Suckau stat-

ed that he saw Mr Furey’s carwhen it was about 50 metresaway from the junction. It wastravelling at a very high speed,which he estimated was about85 miles an hour. The car droveat his vehicle without stopping,slowing down or swerving andstruck it, according to MrSuckau. Subsequently, the sameaccount was given by MrSuckau’s wife.

Ó Caoimh J in the HighCourt held:a) A major contributing factor

to the accident was the exces-sive speed of the car beingdriven by Mr Furey

b) The camper van was station-ary at impact ‘very much atan angle to the road centreand not parallel to the whiteline in the middle of the road’

c) The portion of the vehicle onthe passenger side of the

Damages on the basis of full liability had been agreed in the amountof £247,000. The High Court granted Mrs Furey a decree against MrSuckau in the sum of £49,400 to include the statutory sum payablein respect of mental distress.

THE AWARD IN THE HIGH COURT

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road would have been overthe white line at the centre ofthe road and occupying aposition of at least three feet on the carriageway inwhich the vehicle being driven by Mr Furey was trav-elling, and

d) The debris was carried for-ward after impact and did notindicate the point of impact.

Ó Caoimh J held that the prin-cipal liability for the accidentrested with Mr Furey. The HighCourt held that both Mr Suckauand Mr Furey had been negli-gent and that the degrees atfault were apportioned at 20%against Mr Suckau and 80%against Mr Furey.

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Mrs Furey appealed thedecision of the High

Court, claiming that the trialjudge in the High Court hadmisconstrued the evidence oftwo of the garda witnesses andtwo experts. In particular, thenotice of appeal challenged thefinding that the camper van wasstationary at the time of theaccident, that the accident hap-pened near the centre of theroad, that the camper van wasoccupying a portion of onlyabout three feet of the othercarriageway and that theabsence of debris in the centreof the road was not material.

It was claimed on appeal thatthe alleged finding that the acci-dent did not occur on MrFurey’s side of the road was con-trary to the weight of evidence.The apportionment of liabilitywas also challenged.

The appeal came before theSupreme Court, composed ofMurphy, Hardiman andGeoghegan JJ. Hardiman J

THE SUPREME COURT JUDGMENTdelivered the judgment of thecourt on 26 April 2002. Theappeal related solely to thequestion of liability.

Hardiman J set out the factsof the case as above and said itwas an unfortunate aspect of thecase that in cross-examinationno specific version of the acci-dent had been put to MrSuckau. He noted that it was, ofcourse, essential that the plain-tiff’s case be put to the defen-dant so that the defendant couldcomment on it. Hardiman Jstated that there was clearlyscope for considerable com-ment on a suggestion made toMrs Suckau in the witness boxin the High Court that her hus-band had made a mistake andhad driven across the road infront of Mr Furey’s car when itwas very close to the campervan and in fact he (Mr Suckau)caused the crash. The judgenoted that no particular point ofimpact was ever suggested toMr Suckau or Mrs Suckau. He

noted the omission was signifi-cant, having regard to the cir-cumstantial evidence.

The judge then referred tothe circumstantial evidencewhich was established by mem-bers of the Garda Síochána whoattended the scene and whogave details as to the location ofboth vehicles, where the glassand debris were found, the loca-tion of the scrape marks on theroad and the nature of the dam-age to the two vehicles. He alsoconsidered where the point ofimpact appeared to be, based onthe evidence of the gardaí.Hardiman J stated that theplaintiff naturally bears the bur-den of proof and in this caseMrs Furey had a manifest diffi-culty arising from the absenceof direct evidence on her side.Confronted with the evidenceof two witnesses whose veracitywas not in doubt, her casedepended on a view of the cir-cumstantial evidence.

In approaching the appeal,

the Supreme Court must applythe principles set out in Hay vO’Grady ([1992] IR 210). Therole of an appellate court wasset out in the Hay case. In thecontext of the role of theSupreme Court in a case onappeal from a judge sittingwithout a jury, the role of theSupreme Court was stated asfollows:a) An appellate court did not

enjoy the opportunity of see-ing and hearing witnesses orobserving the manner inwhich the evidence was givenor the demeanour of thosegiving it

b) If the findings of fact madeby the trial judge were sup-ported by credible evidence,the Supreme Court wasbound by them, howevervoluminous and weighty thetestimony against them

c) An appellate court should beslow to substitute its owninference of fact where thisdepends on oral evidence or

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EXCELLENCE IN REPORTINGSINCE 1954

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recollection of fact and a dif-ferent inference has beendrawn by the trial judge. Butin the drawing of inferencesfrom circumstantial evidence,an appellate tribunal was in asgood a position as the trialjudge

d) As regards the conclusion oflaw to be drawn from thecombination of primary factand inference if, on the factsfound and either on the infer-ences drawn by the trial judgeor the inferences drawn bythe appellate court in accor-dance with the principlesalready set out, it was estab-lished to the satisfaction ofthe appellate court that theconclusion of a trial judgewas erroneous, the order ofthe trial judge would be var-ied accordingly

e) Accordingly, it was importantthat the judge should make aclear statement of his or herfindings of primary fact, theinference to be drawn fromthem and the conclusion thatfollowed.

In his conclusions, Hardiman Jstated that the High Courtjudge’s findings in relation tothe excessive speed of MrFurey’s vehicle were rationallyopen to him on the evidenceand he was of the same view inrelation to the findings aboutthe camper van being stationaryand about the debris. HardimanJ would not upset this aspect ofthe judgment. However, he stat-ed that he was more dubiousabout the findings in relation to

the point of impact.The Supreme Court referred

to evidence which had beengiven on behalf of Mrs Furey.This was to the effect that thepost-accident position of thevehicles, and particularly thecamper van, was uniquely con-sistent with the point of impactmuch further on Mr Furey’s sideof the road than might other-wise be thought. This conclu-sion was hotly disputed by anengineer called on behalf of MrSuckau. Hardiman J stated thatthe evidence on each side of thisimportant issue was somewhatvague. He said it was particular-ly difficult to appreciate on atranscript, because the engi-neers in the High Court allengaged in illustration by handmovements, the making ofsketches which had not beenpreserved for the SupremeCourt, and the moving ofobjects about on the courtroomtable, which was equally inac-cessible to the Supreme Court.

Mrs Furey’s expert’s coreposition was that a vehicle in theposition as described in MrSuckau’s evidence, if struck inthe manner alleged, would havebeen propelled directly back-wards and not spun around to180 degrees and moved acrossthe road. This was stated to beobvious to anyone with aschoolboy appreciation ofphysics. However, Mr Suckau’sengineer said this simply failedto take a number of factors intoaccount, including the fact thatthe two vehicles merged witheach other, the car being at one

point under the front of thecamper van, causing the latter torotate on its back wheels. Thejudge noted that one of theengineers expressed the confi-dent view that computer simula-tion would support his positionon this issue, but neither he noranyone else had attempted any-thing of the sort.

The position of the HighCourt judge was not helped,according to Hardiman J, whenthe judge of the High Courtasked counsel whether theywished to make any submis-sions, only to be told: ‘It is anissue of fact for your lordship todecide’. Hardiman J stated thatthe Supreme Court had already,in at least two written judg-ments, expressed the opinionthat in personal injuries actionswhich are not straightforward,the court should be assisted bybrief submissions from each sideand that opinion was reiteratedin this present case. Hardiman Jsaid it was also essential that alldocuments, including photo-graphs and sketches which werebefore the trial court, should beavailable to the Supreme Courton the hearing of an appeal.That did not occur in the pres-ent case. The court was initiallygiven only one set of photo-graphs. During the hearing,more were produced but thecourt never saw all that hadbeen before the High Court.Still worse, there were missingmaps, including three which hadbeen marked by witnesses dur-ing the hearing. Hardiman Jstated it was obviously essential

that all exhibits be preserved foran appeal.

Hardiman J said that on aperusal of the judgment of theHigh Court, it appeared thatcertain issues pertaining to adispute between the engineersand the issue relating to thescrape or gouge mark on theroad were not considered. Sinceon the expert evidence for MrsFurey these might, if accepted,be regarded as establishing theproposition that the impact tookplace much further into MrFurey’s carriageway than theother evidence suggested, thiswas a matter of importance.Hardiman J said he was veryconscious of the force of thepoint made by the High Courtjudge that, had the impactoccurred close to the yellowlines, one would expect thedamage to the camper van to beon its left side. The significanceof this depends on how oneresolves the ambiguity in thePSV inspector’s evidence. Thisdid not appear to have beenaddressed and indeed was easyto miss. This issue, combinedwith the unresolved disputebetween the engineers, ledHardiman J to propose settingaside the order of the HighCourt and to remit the matterfor retrial. He noted, however,that this may not lead to a dif-ferent result, but, in fairness toMrs Furey, it was important thatall relevant issues be properlyconsidered.

This judgment was summarised bysolicitor Dr Eamonn Hall.

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UpdateNews from Ireland’s on-line legal awareness serviceCompiled by Karen Holmes for FirstLaw

CHILDREN AND YOUNGPERSONS

Health board powersFamily law – powers and duties ofhealth boards – functions of DistrictCourt – whether health board canauthorise placement of child intoresidential care outside the state –Child Care Act, 1991, sections36, 47The proceedings concerned theplacement of a child in residen-tial care outside the jurisdictionby a health board.

Finnegan J held that therewas nothing in section 47 or inthe statute as a whole to distin-guish a child who is the subjectof a care order being sent abroadto a relative and/or foster par-ents from such a child being sentabroad into residential care.Accordingly, following theSupreme Court decision inWestern Health Board v KM[FL5016], the health board wasnot entitled to place a child intoresidential care outside the stateunder section 36. The powerscontained in section 47 includedthe power for the District Courtto direct the placement of achild into residential care out-side the state and the period forwhich the child is placed in aresidential unit could be unlim-ited or limited.East Coast Area Health Board vMM, High Court, Mr JusticeFinnegan, 5/2/2002 [FL5543]

Family law, adoptionConsent – children – refusal to con-sent to adoption – medical evidence– fostering – medical health of nat-ural mother – whether parentalrights abandoned – whether appro-priate to make adoption order –Adoption Act, 1988, section 3The proceedings concerned anapplication by the foster parentsof a child (‘J’) seeking to have

the child adopted. The applica-tion was opposed by the mother(‘P’). Evidence was given by anumber of medical specialists asto the health of P. She had a his-tory of depression and had beendiagnosed as being mildly men-tally handicapped. Evidencewas also given that P had verypoor self-care skills. From theage of nine months, J had beenplaced with the present fosterparents. J had been diagnosed assuffering from cerebral palsyand had received specialist care.J was now leading a normalchildhood. P opposed the pro-posed adoption on the groundsthat this would curtail her rightto visit J. It was also contendedby P that she was happy that Jremain in foster care and that ifshe got her full health back shecould look after J. The healthboard supported the applicationof the foster parents. Evidencewas also given by J that shewould like to be adopted.

Mr Justice Herbert made theorder of adoption. The appli-cants had to discharge theonus, on the balance of proba-bilities, of satisfying the courtthat the natural parents of Jwould not resume the dis-charge of parental dutiesbefore the child was 18 yearsold. There was no evidencethat J had been physicallyabandoned by her mother.However, the weight of evi-dence obliged the court to findthat P, for physical reasons, hadfailed in her duty towards J.This did not involve a findingof blameworthiness but wasdue to mental illness, severedepression and impairment ofmental function. On the bal-ance of probability, there wasno likelihood of P resumingher parental duty towards Jbefore J reached 18. P’s princi-

pal reasons for not consentingto the adoption were due to afear that she would not be per-mitted to see J. P had given con-trol of J’s life to the foster par-ents for a period of almost 12years. The conduct of Pamounted to an ‘abandonment’of J in its special legal sense.The foster parents had providedJ with a loving, caring and stablehome in which she had thrivedin every possible way. It hadbeen unequivocally establishedthat it was in the interests of Jthat an order be made authoris-ing the adoption of J in favour ofthe foster parents. It was unlike-ly that the foster parents wouldchange their attitude to visits byP to see J, as they had encour-aged this in the past.Area Health Board v An BordUchtála, High Court, MrJustice Herbert, 3/5/2002[FL5734]

COMPANY

Agency, defamation Landlord and tenant – companylaw – agency – negligent misstate-ment – defamation – telecommu-nications – claim for possession ofpremises – relief against forfeiture– litigation – expiry of lease –claim of defamatory phone calls –whether agent of company liablefor telephone calls made – whetherdamages should be awarded –whether company vicariously liablefor the actions of employeeThe plaintiff, as landlord, hadoriginally sought an order ofpossession against the defen-dant in relation to the lease of ahotel. A previous court orderhad determined that the defen-dant should discharge gales ofrent as they fell due and pay acertain sum by way of an inter-est payment per month on the

outstanding balance due. Theplaintiff sought an order forsummary judgment for a sum of£588,605. The defendant hadcounterclaimed that the plain-tiff had made defamatory phonecalls concerning the defendantto UK authorities. The defen-dant sought relief against forfei-ture of the lease and damagesfor the alleged defamatoryphone calls. In the High Court,McCracken J dismissed thedefendant’s claim concerningthe phone calls. The court wassatisfied that a named party whoworked for the plaintiff comp-any had made the telephonecalls, despite her denials to thecontrary. This person was adirector of the plaintiff compa-ny at the time of the making ofthe calls. A company could beheld vicariously liable forwrongs committed by its ser-vants or agents. However, itcould not be said that her alle-gations contained in the phonecalls were made as agent for theplaintiff company for the pur-pose of damaging the defendantcompany. The defendantsappealed against the orderregarding the responsibility forthe phone calls.

The Supreme Court (MurrayJ delivering judgment, HardimanJ and Geoghegan J agreeing)allowed the appeal and remittedthe matter to the High Court.The only proper inferences to bedrawn from the actions of theparty making the phone calls wasthat this was done in furtheranceof the interests of the plaintiffcompany. The finding of theHigh Court judge on the coun-terclaim would be set aside onthe grounds that the plaintiffcompany must bear responsibili-ty for the telephone calls andtheir contents. The order forpossession would be set aside,

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which would fall to be deter-mined in the High Court. A staywould also be put on theamount ordered to be recoveredby the plaintiff company fromthe defendant company.Crofter Properties Ltd vGenport Ltd, Supreme Court,9/7/2002 [FL5781]

Duties of receiverSale of assets – duties of receivers –power of sale – credit and security –conflict of interest – confidentiality– valuation of assets – fair marketvalue – current market value –whether court should approve saleof assets of company – whetherassets of company undervalued –whether bidding process flawed –Companies Act, 1963The proceedings concerned thesale of the main assets, an orebody, of a company (Bula)which was in receivership. Thereceiver of the companybrought an application pursuantto section 316A of the

Companies Act, 1963 seekingcourt approval for the sale of theore body for the sum of £27.5million to a neighbouring com-pany (Tara Mines). The applica-tion was opposed by the direc-tors of Bula on a number ofgrounds. The directors con-tended that the receiver had aconflict of interest in acting asreceiver. In addition, it wasclaimed that the assets of thecompany were grossly underval-ued and that the value of the orebody was over £60 million. Itwas submitted that the receivershould sell the shares of Bulaand not the assets. Furthermore,it was claimed that the receivershould await the final resolutionof related litigation. It wasargued that the receiver’s bar-gaining position was all thegreater given that the prospec-tive purchaser, Tara Mines, wasa neighbour.

Mr Justice Murphy approvedthe sale. The receiver’s duty was

to sell on the open market. Therole of the court was to examinewhether the receiver had exer-cised all reasonable care to getthe best price reasonably obtain-able. The receiver had a power,of sale and was entitled to exer-cise that power. The courtscould not fetter that powerwhich arose out of contract.There was no evidence beforethe courts that would indicate aconflict of interest. The receiverwas not the receiver of theshares of the company and wasnot obliged to consider a sale ofthe shares. A receiver was notobliged to wait for a rising mar-ket before selling. The out-standing litigation was capableof being evaluated. There wasno statutory requirement for anindependent valuation nor tohave more than one buyer.Section 316 dealt with price andnot value. The value to a pur-chaser was immaterial.Ultimately, one realistic bid had

emerged from an adjoiningowner (Tara Mines). There hadbeen no breach by the receiverof his duty owed under section316 and the court would accord-ingly allow the receiver’s appli-cation.Bula (in receivership), SupremeCourt, 3/7/2002 [FL5840]

CONSTITUTIONAL

Medicine, mental health Administrative law – practice andprocedure – mental health – locusstandi – amendment of proceedings– whether detention in hospitalunlawful and unconstitutional –whether premises properly desig-nated to receive temporary patients– whether substantial grounds forcontending that defendants acted inbad faith or without reasonablecare – Mental Treatment Act,1945, sections 185, 260 – MentalTreatment Act, 1953, section 5The applicant sought leave

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under section 260 of the MentalTreatment Act, 1945 to instituteproceedings in relation to beingdetained in a psychiatric hospi-tal. The applicant sought anumber of declarations andclaimed that proper procedureshad not been followed in rela-tion to the procurement of anorder for his detention. Theapplicant also contended thatthe institution in question hadnot been properly designated toreceive temporary patients asrequired under the relevant leg-islation. O’Sullivan J held thatthe applicant had failed toadduce substantial grounds inrelation to his complaints anddismissed the application. Theapplicant appealed to theSupreme Court. The applicantalso sought to raise the constitu-tionality of section 260 of theMental Treatment Act, 1945.

The Supreme Court(McGuinness J delivering judg-ment, Denham J andGeoghegan J agreeing) dis-missed the appeal. As no excep-tional circumstances existed, thecourt would not consider issuesrelating to the constitutionalityof the 1945 act. The applicanthad been detained in accordancewith the procedures set out inthe legislation. The grounds ofappeal adduced by the applicanthad not been made out and theappeal would be dismissed. Theapplicant’s challenge to the con-stitutionality of the 1945 actmust first be fully argued in theHigh Court. The applicant’sprima facie right of access to thecourt had been affected by theoperation of the section in ques-tion and he was in a position toargue that he had locus standi tomaintain constitutional pro-ceedings.Blehein v St John of GodHospital and the AttorneyGeneral, Supreme Court,31/5/2002 [FL5522]

CONTRACT

Conveyancing, property Property – conveyancing – solicitors– practice and procedure – time

limits – failure to furnish titledeeds – service of completion notice– whether purchaser entitled torescind contractThe plaintiff had entered into acontract with the defendants forthe purchase of a premises. Theplaintiff, in the course of thenegotiations, indicated dissatis-faction with the details of titlefurnished. The vendors served acompletion notice on the plain-tiff, calling on the plaintiff tocomplete the sale within 28days. The plaintiff refused tocomplete the contract andsought the return of the depositpaid, together with interest andcosts. The defendants repliedthat previously missing deedshad been located. The defen-dants asserted that the vendorwas at all times ready, willingand able to assert title in accor-dance with the contract.

Mr Justice Smyth found infavour of the plaintiff. A partyserving a completion noticemust be ready to fulfil its ownoutstanding obligations underthe contract. There were toomany inconsistencies in thedocuments proffered by thedefendants to oblige a purchas-er to accept the title. The plain-tiff was entitled to terminate thecontract because of the failureby the defendants to make goodtitle and also their inability tocomplete the contract. Theright to rescind the contract wasexercised promptly. At the dateof the service of the completionnotice, the vendors were notready, willing and able to com-ply with their obligations. Thepurchaser unequivocally exer-cised the right of election torescind. The plaintiff was enti-tled to recover the deposittogether with interest.Tyndarius Ltd v O’Mahony,High Court, Mr JusticeSmith, 25/6/2002 [FL5715]

CONVEYANCING

Injunction, land law Injunction – interlocutory –whether serious issue to be tried –conveyance – whether damages an

alternative remedy – balance ofconvenience – land law – restrictivecovenant – Conveyancing Act1882, section 3(1)The plaintiff sought to rely on arestrictive covenant containedin a deed of conveyance toobtain an injunction to preventa building on certain lands. Thecovenant was made between thevendor of the lands and theplaintiff in 1954. The plaintiffwas an artist and required goodlight and calm to do his paint-ings, and therefore it was impor-tant to him that the lands sur-rounding the property which hebought would not be built on. In1968, the vendor conveyed thesterilised land to his son and in1991 the son conveyed part ofthis land to the defendant. InMarch 2001, the defendantapplied for planning permissionfor the construction of a houseand the plaintiff objected, butpermission was granted inJanuary 2002. Work had com-menced by March 2002 and theplaintiff had viewed the work.His application before the courtwas to seek a declaration that hewas entitled to rely on therestrictive covenant against thedefendant, a third party to thecovenant.

Mr Justice Kelly held that inan application for an interlocu-tory injunction, on the basis oftraditional interlocutory injunc-tion principles, it must be con-sidered whether there was aserious issue to be tried,whether damages would be anadequate remedy and whetherthe balance of convenience layin favour of the grant ratherthan the refusal of the injunc-tion. The application before thecourt was not the trial of theaction and the court was pre-cluded from making any final orbinding determinations ofeither fact or law. However, onthe application before the court,Mr Justice Kelly granted theinterlocutory injunction andcertified the case as fit for earlytrial. Carrick v Morton, HighCourt, Mr Justice Kelly,13/6/2002 [FL5779]

COSTS

Practice and procedure, taxation Application to dismiss for want ofprosecution – jurisdiction– whetherdefendants acquiesced in delay –whether defendants estopped fromapplication In a long-running case, thedefendants had received anorder of the High Court in1992 for costs when taxed andascertained against the plaintiff.The plaintiff objected to thetaxation, claiming there wereerrors, and had applied to theHigh Court for a review. Delayscaused this not to occur until1997. The applicant solicitorapplied in June 1997 to comeoff the record and the proceed-ings were adjourned generallywith liberty to re-enter. As thecase was not re-entered, theapplication before the court wasto strike out, for want of prose-cution, the plaintiff’s case forcontesting the taxation of costs.

Mr Justice Ó Caoimh heldthat the balance of justice didnot favour the defendants in granting the relief they soughtand the plaintiff was given threemonths to re-enter his review ofthe taxation of costs. The courtheld that it had jurisdiction tohear the matter by virtue ofPrimar plc v Stokes KennedyCrowley ([1996] 2 IR 459).There was delay by the plaintiffin pursuing his case, but thiswas acquiesced in by the defen-dants in that they did not pursueany action when knowing theplaintiff was pursuing an appli-cation to the European Court ofHuman Rights. McMullen v Farrell, HighCourt, Mr Justice Ó Caoimh,5/7/2002 [FL5682]

CRIMINAL

Dismissal of chargesCase stated – road traffic offence –drink-driving charge – dangerousdriving – amendment of summons– direction sought at conclusion ofprosecution’s case – oral warning –registration of vehicle incorrect –

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whether relevant – SummaryJurisdiction Act 1857, section 2 –Courts Supplemental Provis-ions) Act, 1961, section 51 A District Court dismissed ondirections charges in relation todriving prosecutions where nowarning had been given ornotice served on the defendantand the vehicle’s registrationnumber was incorrect. Theopinion of the High Court wassought by the DPP as towhether the District Courtjudge was correct in law in dis-missing the charges. The DPPargued that the absence of anoral warning and of notice ofappeal in relation to the drink-driving charge was not neces-sary under amended legislation.

Mr Justice Murphy held thatthis matter had been dealt withby the legislature and theDistrict Court rules in Gannon vConlon (20 December 2001) andhaving regard to the failure toservice notice on the respon-dent, which had not been con-tested, the court ruled it had nojurisdiction to deal with the casestated.DPP v McMahon, HighCourt, Mr Justice Murphy,27/6/2002 [FL5578]

Delay, judicial review Right to expeditious trial – sexualoffences – prejudice – dominance –stress and anxiety caused to accused– whether order of prohibitionshould be granted – whether realrisk of unfair trialThe applicant sought an orderof prohibition to prevent a trialfor sexual offences from pro-ceeding. The charges related tooffences allegedly committedagainst a family member. Theapplicant claimed that there hadbeen excessive delay in the pros-ecution of the offences. In theHigh Court, Ms Justice Carrollheld that no risk of an unfairtrial had been shown and theapplication would be refused.The applicant appealed thejudgment, arguing that the delaybetween the dates of the allegedoffences and the dates of thecharges was excessive andunconscionable. In addition, it

was contended that there was noevidence that the complainanthad been psychologically inhib-ited from making a complaint.The delay in making a com-plaint to the gardaí was due tothe anticipation of problems thatwould arise within the family.Furthermore, there was noquestion of dominance betweenthe applicant and complainantwhich would have explained thedelay in making the complaint.On behalf of the respondent, itwas contended that the applicanthad not shown that there was areal risk that he could not obtaina fair trial. The alleged prosecu-torial delay subsequent to thelaying of charges was not so sig-nificant as to warrant the stayingof the trial.

The Supreme Court (KeaneCJ delivering judgment,McGuinness J and Hardiman Jagreeing) allowed the appeal,holding that it was not the delayin bringing a person to trial thatwas crucial, it was the effect ofthat delay. In this case, there wasno significant disparity in agebetween the complainant andthe applicant and no question ofdominion had arisen. The soleground advanced for deferringthe complaint was the com-plainant’s concern that it mightcause problems within the fami-ly. This was not an appropriateground for denying the appli-cant the right to a reasonablyexpeditious trial. In determiningwhether to grant an order ofprohibition, a court was entitledto not only to take into accountthe delay that had arisen subse-quent to the laying of chargesbut also the delay that hadoccurred prior to beingcharged. A period of inordinatedelay had occurred between thereport of the social worker andthe subsequent arrest of theapplicant. The unnecessary andinordinate delay had caused theapplicant unnecessary stress andanxiety. The constitutional rightof the applicant to a reasonablyexpeditious trial outweighedany conceivable public interestthere might be in the prosecu-tion of the alleged offences. The

order of prohibition soughtwould be granted.M(P) v Malone, SupremeCourt, 7/6/2002 [FL5767]

Money laundering Appeal against conviction –whether two different and distinctoffences disclosed on indictment –whether conviction bad on its facefor duplicity – Criminal JusticeAct, 1994, section 31The applicant was convicted onsix counts of money launderingcontrary to section 31 of theCriminal Justice Act, 1994.Counts 1, 3 and 5 related tomoney laundering contrary tosection 31(2) and counts 2, 4 and6 related to charges of moneylaundering contrary to section31(3) of the act of 1994. Theprosecution case was that themoney was derived from illegaltobacco importation up to 1995and thereafter derived from drugdealing. The applicant appliedfor leave to appeal his convic-tions on the ground that theconviction was bad on its face forduplicity, as two different anddistinct offences were disclosedon the indictment and did notrelate to different ways of com-mitting the single offence ofmoney laundering.

The Court of CriminalAppeal held that the question asto where the line lay between asingle offence committed in dif-ferent ways and the creation oftwo different offences often fellto be decided on a case-by-casebasis. An examination of the def-initions and provisions of the actof 1994 as amended was neces-sary in order to determinewhether the relevant sub-sec-tions of section 31 created twodifferent offences or merelydescribed the commission of onein two different ways. Numerousprovisions of the act of 1994maintained the distinctionbetween proceeds of drug traf-ficking and proceeds of othercrimes. A conviction based onthe count containing the twoalternatives of drug traffickingand other criminal activity wastherefore not merely uncertainand unworkable from the point

of view of the administration ofthe act but was patently unjust,in that the applicant should haverecorded against him a convic-tion comprising of a reference todrug trafficking when the trialcourt was not satisfied as to theexistence of evidence againsthim on that issue. Accordingly,the conviction on all counts wasquashed.People (DPP) v Meehan, Courtof Criminal Appeal, 27/6/2002[FL5591]

DAMAGES

Liability, medical negligence Personal injuries – liability – dam-ages – whether defendant surgeonnegligent – whether breach of dutyof care occurredThe plaintiff had undergone sur-gery which the defendant, a car-diothoracic surgeon, had carriedout. The plaintiff alleged thatthe defendant had caused a bleedwhich had exposed the plaintiffto post-thoracotomy pain syn-drome. The claim of negligencerelated solely to the positioningof surgical ports by the defen-dant.

In awarding damages to theplaintiff, Johnson J held that thecourt did not accept the defen-dant’s evidence in relation to anyof the disputed facts. The defen-dant was negligent in placing thesecond port where he did. Theplaintiff was exposed to a dangerof pain that she should not havebeen exposed to. The pain suf-fered was as a result of the negli-gence of the defendant. A totalof €311,953.39 in damages wasawarded.Carroll v Lynch, High Court,Mr Justice Johnson,16/5/2002 [FL5554]

The information contained here is taken from FirstLaw’s LegalCurrent Awareness Service, pub-lished every day on the Internet atwww.firstlaw.ie. For more infor-mation, contact [email protected] or FirstLaw, MerchantsCourt, Merchants Quay, Dublin8, tel: 01 679 0370, fax: 01 6790057.

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

The transposition of the Electronic commerce directive into Irish law

The Electronic commerce direc-tive (2000/31/EC) is anoth-

er piece of EU legislation thataims to regulate certain aspectsof electronic commerce in theEU. At the outset, it is impor-tant to distinguish between thisdirective and the Electronic sig-natures directive (1999/93/EC),which has already been trans-posed into Irish law by theElectronic Commerce Act, 2000.It is unfortunate and slightlyconfusing that the domesticlegislation which incorporatesthe Electronic signatures directiveinto Irish law is not named theElectronic Signatures Act, butrather is named after anotherdirective, most of which has notbeen implemented into Irishlaw.

The Electronic commerce direc-tive is quite broad in scope andtackles a number of differentaspects of on-line and electron-ic commerce. This directiveshould have been implementedinto Irish law prior to 17January 2002, but has not as yetbeen implemented.

The directive relates to andregulates ‘information societyservices’, which includes anyservice normally provided forremuneration, at a distance, bymeans of electronic equipmentand at the individual request ofa recipient of a service. Therecitals to the directive showthat this includes most on-lineactivities, including the on-lineselling of goods.

The objective of the direc-tive is to create a legal frame-work to ensure the free move-ment of information societyservices between member statesof the European Union. It aims

to provide a favourable legalframework for electronic com-merce while ensuring that con-sumers are protected whentransacting on-line.

One of the key features ofthe directive is that a providerof information society services,once established in one mem-ber state of the EuropeanUnion, is entitled to provideservices into any other memberstate. This principle, which isembodied in article 8 of thedirective, affirms the singlemarket principle and overridespossible national barriers totrade that could potentiallyinhibit the growth of electroniccommerce.

In August 2001, theDepartment of Enterprise,Trade and Employment pub-lished a document containingthe government’s proposal forimplementing this directiveinto Irish law. While this docu-ment is described as a discus-sion document, it contains adraft of the regulations whichthe department hopes to ulti-mately implement in order totranspose the directive intoIrish law. It has been indicatedthat the draft regulations (asamended as a result of the con-sultation procedure) should besigned into law in or aroundSeptember or October 2002. Itis important to stress that, sincethe draft regulations are part ofan on-going drafting process,they may be amended prior tofinal implementation.

The draft regulations pro-pose to create a series of newobligations for businesses trad-ing on-line and for Internetservice providers.

Certain parts of the Electroniccommerce directive have alreadybeen implemented into Irishlaw. In particular, article 9 ofthe directive, which obligesmember states to provide forthe electronic conclusion ofcontracts, has been implement-ed in the Electronic CommerceAct, 2000. However, the bulk ofthe directive has yet to beimplemented.

At this juncture, it might alsobe noted that neither theElectronic commerce directive northe draft regulations aim toharmonise member states’ lawsin relation to the formation ofcontracts.

Country-of-origin principleThe directive aims to solve theproblem of the multitude ofapplicable rules by the adoptionin the directive of the so-called‘country-of-origin rule’. Thisprinciple is embodied in article3 of the directive and providesthat (subject to certain excep-tions) information society serv-ice providers and their serviceswill only have to comply withthe rules of the country inwhich those service providersare established and from wherethe services therefore ‘origi-nate’.

Information prior to contractOne of the fundamental princi-ples of the directive and thedraft regulations is transparen-cy in Internet dealings. Draftregulation 10 proposes toimplement article 5 of thedirective. This draft provisionproposes to introduce require-ments for businesses operatingon-line to provide important

information to users of theirwebsites.

Draft regulation 10 containsa list of information that busi-nesses operating on-line willhave to provide ‘in a mannerwhich is easily, directly and per-manently accessible’. It mightbe noted that concluding aonce-off contract by e-mailcorrespondence would seem tofall outside these requirements.

The following informationmust be provided by ‘serviceproviders’ under draft regula-tion 10:a) The name of the service

providerb) The geographic address at

which the service provider isestablished

c) The details of the serviceprovider, including his elec-tronic mail address

d) Details of how natural per-sons can register their choiceregarding unsolicited com-mercial communications.This information should beprominently displayed oneach page of a serviceprovider’s website

e) Where the service provideris registered in a trade orsimilar public register, thetrade register in which theservice provider is enteredand his registration number,or equivalent means of iden-tification, in that register

f) Where the activity is subjectto an authorisation scheme,the particulars of the rele-vant supervisory authority

g) Where the service provideris a member of a regulatedprofession, information inrelation to the relevant pro-fessional body is required

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h) VAT numberi) Where the service provider

refers to prices, these are tobe indicated clearly andunambiguously and, in par-ticular, must indicatewhether they are inclusive oftax and delivery costs.

‘Service providers’ are definedin the draft regulations as ‘per-sons providing an informationsociety service’.

Of particular note is item (d)above, dealing with unsolicitedcommercial communications,as there is no mention of thisrequirement in article 5 of thedirective and this requirementis being included in the draftregulations as a requirementover and above those set out inthe directive. This requirementseems to be particularly oner-ous and impractical, since itrequires a notice in relation tounsolicited commercial com-munications to appear ‘on eachpage of a service provider’swebsite’. This requirementbecomes even more problemat-ic when one bears in mind thatany failure to adhere to theseinformation requirements shallbe a criminal offence.

Thus, in the event of thesedraft regulations being imple-mented in their current form,on-line service providers estab-lished in Ireland will have toconduct legal audits of theirwebsites in order to ensure thatthey are complying with theseprovisions. Most websites willneed to be revised by theirowners in order to comply withthese requirements and toensure that they are not com-mitting any offence. It remainsto be seen whether this provi-sion will survive the consulta-tion and drafting process lead-ing up to implementation.

Unsolicited commercial communicationsDraft regulations 11 and 12attempt to address the issue ofunsolicited commercial com-munications (UCCs), which arecolloquially referred to as‘spam’ (although direct market-

ing companies will argue thatthere is a distinct differencebetween spam and UCCs).

The draft regulations define‘commercial communications’as meaning any form of com-munication designed to pro-mote – directly or indirectly –the goods, services or images ofa company, organisation or per-son pursuing a commercial,industry or craft activity orexercising a regulated profes-sion. The definition is subjectto certain exceptions. Thus, e-mails sent for promotional ormarketing purposes and pagesof websites devoted to promot-

ing or marketing a companywould be caught by this defini-tion. Draft regulation 11 goeson to provide that commercialcommunications that are partof an information society serv-ice shall comply with, at least,the following conditions: • The commercial communi-

cation shall be clearly identi-fied as such

• The natural or legal personon whose behalf the com-mercial communication ismade shall be clearly identi-fiable

• Details of how natural per-sons can register their choiceregarding unsolicited com-

mercial communicationsshall be prominently dis-played on each web page ofthe commercial communica-tion

• Promotional offers, such asdiscounts, premiums andgifts, shall be clearly identifi-able as such, shall complywith existing legislation cov-ering such activities, and theconditions which are to bemet to qualify for them shallbe easily accessible and bepresented clearly and unam-biguously, and

• Promotional competitions orgames, where permitted

under law, shall be clearlyidentifiable as such, and theconditions for participationshall be easily accessible andbe presented clearly andunambiguously.

Draft regulation 11 aims toensure a high level of trans-parency in relation to e-mailsthat contain or offer promo-tional services. As in the casewith draft regulation 10, thisdraft regulation goes beyondwhat was required by article 6of the directive that it imple-ments.

This new draft regulationcreates a further hurdle that

on-line businesses will have toovercome in order to carry outon-line promotional activities.Again, any failure to complywith this draft regulation shallresult in an offence being com-mitted.

Draft regulation 12 containsfurther provisions in relation toUCCs. It requires every on-lineservice provider to establish aregister known as an ‘opt-outregister’ to record the electron-ic mail address or addresses ofnatural persons not wishing toreceive unsolicited commercialcommunications.

Draft regulation 12 alsorequires that all UCCs sent byon-line service providers basedin Ireland shall be identifiedclearly and unambiguously assuch as soon as they arereceived by the recipient. Thedraft regulation also requiresservice providers to confirm by e-mail to the relevant per-son who has opted to join theregister that they will notreceive any further unwantede-mails.

Any failure to comply withthese provisions will result in acriminal offence being commit-ted.

This draft regulation, ifimplemented, will constitute animportant step in tackling thegrowing problem of unwantedspam communications beingsent to individuals. However,individuals arguably have thisright already under section 2(7)of the Data Protection Act, 1988,which permits an individual torequest that personal dataabout him kept for the purpos-es of direct marketing shouldnot be used for that purpose.Notwithstanding this, the cre-ation of a criminal offence forfailing to operate an opt-outregister should represent a wel-come step in the task of tack-ling unwanted spam. However,since most spam received byindividuals based in Ireland issent from outside the state, andoften outside the EU, furthermeasures will have to be adopt-ed in order to tackle this problem.

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Special rules for regulatedprofessionsDraft regulation 13 containsspecific rules in relation to theuse of commercial communi-cations by members of a regu-lated profession. It providesthat such communicationsmust be subject to the profes-sional rules of that professionin relation to independence,dignity and honour of the pro-fession, professional secrecy,and fairness towards clientsand other members of the pro-fession.

Again, failure to complywith this new draft regulationrule will result in a criminaloffence being committed.

Additional informationrequirementsDraft regulation 15 containsfurther information require-ments in relation to consumercontracts concluded on-line.This draft regulation providesthat, prior to the conclusion ofany consumer contract on-line, the on-line serviceprovider must provide the fol-lowing information clearly,comprehensively and unam-biguously:• The different technical

steps to follow to concludethe contract

• Whether or not the con-cluded contract will be filedby the service provider andwhether it will be accessible

• The technical means foridentifying and correctinginput errors prior to theplacing of the order, and

• The languages offered forthe conclusion of the con-tract.

This draft regulation goes onto create yet further informa-tion requirements which theon-line service provider mustadhere to on entering intocontracts on-line. For exam-ple, this draft regulation pro-vides that the terms and condi-tions of an on-line serviceprovider must be made avail-able to recipients of the servicein a way that will allow them to

store and reproduce them.It should be noted that the

provisions mentioned abovewould not apply to contractsconcluded exclusively byexchange of e-mail.

Again, any failure to adhereto the provisions of this newdraft regulation will result in acriminal offence being com-mitted.

Contracting with consumerson-lineDraft regulation 16 providesthat where a consumer of on-line services places his orderover the Internet, the follow-ing principles shall apply:• The service provider has to

acknowledge the receipt ofthe order of the recipient ofthe service without unduedelay and by electronicmeans

• The order and the acknowl-edgement of receipt aredeemed to be received whenthe parties to whom they areaddressed are able to accessthem.

This provision will serve toincrease consumer confidencein on-line trading by ensuringthat the consumer will receivean acknowledgement afterentering into an on-line trans-action.

Again, failure to complywith the provisions of this draftregulation results in a criminaloffence being committed.Undoubtedly, all serviceproviders will need to carefullyreview their procedures for on-line commerce when thesedraft regulations are adopted,to ensure compliance.

Liability of Internet serviceprovidersThe draft regulations refer toInternet service providers(ISPs) as ‘intermediary serviceproviders’. Draft regulations17, 18 and 19 propose to trans-pose articles 12, 13 and 14 ofthe directive. These provisionsattempt to define the statusand the limits of liability ofISPs. Generally, these provi-

sions provide that where theISP can be shown to have actedas a ‘mere conduit,’ it will beexempt from liability.However, it is first necessary toestablish that the ISP is actingas a ‘mere conduit’. Draft reg-ulation 17 defines this concept:it provides that an ISP will bedeemed to be a mere conduitwhere it did not initiate atransmission, it did not selectthe receiver of the transmis-sion and where it did not selector modify the informationcontained in the transmission.

Draft regulation 17 goes onto provide that where an ISP isacting as a mere conduit, thenit shall not be liable for theinformation that it transmits aspart of its service. In thisregard, it is critical that the ISPacts as a passive transmitter ofthe information only.

Draft regulation 18 goes onto deal with a common practiceof ISPs known as ‘caching’information. Caching can bedescribed as the automatic,intermediate and temporarystorage of information by ISPsfor the purposes of makingtheir operations more efficientand expedient. Draft regula-tion 18 provides that ISPs can-not be liable for the automatic,intermediate and temporarystorage (caching) of informa-tion provided that the sole pur-pose of such caching is to makethe ISP’s network more effi-cient.

Again, this exemption fromliability will only apply wherethe ISP does not modify the

information and where certainother conditions are met.

Draft regulation 18 goes onto provide that the ISP shallonly benefit from this exemp-tion of liability where it actsexpeditiously to remove anddisable access to informationthat it has stored in cache uponobtaining knowledge of the factthat the information at the ini-tial source of the transmissionhas been removed from thenetwork, or access to it has been disabled, or that acourt or an administrativeauthority has ordered suchremoval or disablement.

Draft regulation 19 extendsthis exemption of ISP liabilityto the hosting of informationby ISPs on behalf of third par-ties. This is a critical exemptionfrom liability, since one of theprincipal activities of ISPs isthe hosting of websites and webcontent on the Internet onbehalf of third parties.

Again, this exemption fromliability is subject to certainconditions. For example, anISP will not benefit from thisexemption from liability wherethe ISP has actual knowledgethat the information beinghosted by it concerns illegalactivities.

Finally, draft regulation 20should be mentioned, as it cre-ates an important obligation onISPs to report any illegal activ-ities that they become aware ofto the relevant authorities.

These exemptions of liabilityfor ISPs are hugely importantin the context of expanding andcontinuing the operation of theInternet. For example, ISPswill take comfort and beassured that they may not besued for copyright infringe-ment where they cache infor-mation which is the subject of athird-party copyright. Theywill also be exempt from liabil-ity where they transmit infor-mation which infringes copy-right.

Philip Nolan is a solicitor with theDublin law firm Mason Hayes andCurran.

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CREDIT WHERE IT’S DUE

Anna Molony, a trainee solici-tor with the Dublin law firmLK Shields, assisted with thewriting of the two-piece arti-cle on Procurement law as itapplies to public/privatepartnerships, which appearedin Eurlegal in the June andJuly/August issues of theGazette.

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Recent developments in European lawCOMPETITION

Case C-218/00 Cisal di BattistelloVenanzio & C Sas v IstitutoNazionale per l’Assicurazione con-tro gli Infortuni sul Lavoro (INAIL),22 January 2002. Mr Battistello isan Italian crafts worker. UnderItalian law, he was required tohave insurance against accidentsat work with INAIL. He failed to paysubscriptions between 1992 and1996 and INAIL sued his companyfor these unpaid contributions. Heargued that he had been insuredagainst work accidents with a pri-vate insurance company since1986. He further argued thatobliging him to take out insurancewith INAIL created a monopoly forit and induced it to abuse its dom-inant position. This breached arti-cles 90 and 86 of the treaty. TheItalian court asked whether a bodyentrusted by law with the manage-ment of a scheme providing insur-ance against accidents at workand occupational diseases is to betreated as an undertaking withinthe scope of EU competition law.The ECJ held that the concept ofan undertaking covers any entityengaged in economic activity,regardless of its legal status orthe way it is financed. Any activityconsisting in offering goods andservices on a market is an eco-nomic activity. EU law does notaffect the power of member statesto organise their social securitysystems. However, the social aimof an insurance scheme is not initself sufficient to preclude theactivity being classified as an eco-nomic one. However, in this casethere were a number of elementsthat indicated that INAIL was dis-charging a purely social function.The scheme it administered didnot have any direct link betweenthe contributions paid and the ben-efits granted. This ensured soli-darity between better-paid workersand lower-paid workers who wouldbe deprived of proper social coverif such a link existed. In addition,INAIL is subject to supervision bythe state and the amount of bene-

fits and contributions are, in thelast resort, set by the state. Giventhat the activity of INAIL was noteconomic, it could not be consid-ered as an undertaking within themeaning of articles 81 and 82 ofthe treaty.

EMPLOYMENT

Transfer of undertakingsCase C-51/00 Temco ServiceIndustries SA v Samir Imzilyen,Mimoune Belfarh AbdesselamAfia-Aroussi, Khalil Lakhdar, 24January 2002. The respondentshad worked for GMC, a companywith the cleaning contract for theVolkswagen plants in Brussels. Itscleaning contract was terminated.They argued that their employmentcontracts were automaticallytransferred to Temco, which nowheld the cleaning contract for theplants. GMC had discharged itsentire staff except for these fouremployees, who were retained onfoot of a collective labour agree-ment. When Temco took over thecleaning contract, it wrote to GMCindicating that it was taking thisover and asking for a list of staffassigned to that contract. Whenthe list was forwarded, Temco re-engaged some of the staff. At thesame time, GMC tried to dismissthe respondents using Belgian lawprocedures. The ECJ first consid-ered whether article 1(1) of theTransfer of undertakings directiveapplied to a case such as this. Forarticle 1 to apply, three conditionsmust be met. The transfer mustresult in a change of employer; itmust concern an undertaking,business or part of a business;and it must be the result of a con-tract. To consider whether the cri-teria for the transfer of an eco-nomic entity are met, the factscharacterising the transactionhave to be examined. In certainlabour-intensive sectors, a groupof workers engaged in joint activityon a permanent basis can consti-tute an economic entity. This enti-ty can maintain its identity after atransfer, where a new employer

does not merely pursue the sameactivity but also takes over a majorpart, in terms of numbers andskills of the employees speciallyassigned by his predecessor tothat task. The fact that the staffwere dismissed a few days beforethe employees were taken onagain by the transferee, and it wasindicated that the reason for thedismissal was the transfer, doesnot deprive them of their right tohave their contact of employmentmaintained by the transferee. Inthose circumstances, such staffare regarded as still in the employof the undertaking on the date ofthe transfer. The directive providesthat the transfer can concernmerely part of a business. Temcohad argued that there had notbeen a legal transfer as there wasno contractual relationshipbetween the transferor and trans-feree. The ECJ held that theabsence of a contractual link didnot preclude a transfer within themeaning of the directive.

ESTABLISHMENT

Case C-31/00 Conseil National del’Ordre des Architectes v NicolasDreessen, 22 January 2002.Dreessen is a Belgian nationalwho holds a diploma in engineer-ing, which had been awarded inGermany in 1966. He worked inBelgium for 24 years for variousfirms of architects. The last com-pany that employed him waswound up. He applied for his nameto be entered on the register ofthe local association of architectsso that he could practice as anarchitect on a self-employedbasis. This application was reject-ed on the ground that his diplomadid not correspond to one award-ed by an architecture department.Thus, he could not avail of direc-tive 85/384 on the mutual recog-nition of diplomas. The case wasultimately referred to the ECJ. Itheld that the diploma in questionis not entitled to the automaticrecognition that would be accord-ed to diplomas in architecture

under directive 85/384. However,it then moved on to considerwhether his qualifications could berecognised on the basis of article43 of the EC treaty. It held thatwhen national authorities are con-sidering an application from an EUnational to be authorised to prac-tice a profession, they must takeinto consideration all of the diplo-mas, certificates and other qualifi-cations into account, together withrelevant experience. This must becompared with the knowledge andqualifications required by nationallegislation. This process must beundergone even if the qualificationis subject to the directive andordinarily a qualifying diplomawould be required. The ECJ reliedon article 43 of the treaty asunderpinning this ruling. Thus,directive 85/384 was of no rele-vance.

FREE MOVEMENT OFGOODS

Case C-302/00 Commission vFrench Republic, 27 February2002. France imposes highertaxes on light tobacco cigarettesthan dark tobacco cigarettes. Lighttobacco cigarettes are almostexclusively imported and darktobacco cigarettes are almostexclusively home produced. Thecommission took the view thatthese measures were discrimina-tory in nature and contrary to EUlaw. It took an infringement action against France. The ECJheld that France was in breach ofits treaty obligations. The treatyprohibits a system of taxation thatfavours domestic products oversimilar imported ones. Memberstates cannot protect their domes-tic production to the detriment ofother member states. The ECJexamined whether the two kinds ofcigarette possess similar charac-teristics and whether their usageis similar. It concluded that theywere similar and did have thesame intended use. This is evi-denced by their identical tax treat-ment in EU law. G

People and places


49

Here comes the summerPaul O’Connor, dean of UCD’s law faculty, Justice Sandra Day O’Connorof the US Supreme Court, Law Society President Elma Lynch, and HighCourt judge Mella Carroll pictured at a dinner in UCD’s Newman House

to mark Justice O’Connor’s participation in the second Fordham SummerLaw School, which is run in conjunction with the law schools at UCD and

Queen’s University Belfast

Index linkedMs Justice Susan Denham, judge of the Supreme Court, launched the

Law Reform Commission’s A report on the indexation of fines: review ofdevelopments since 1991. The report calls for the introduction of a

standard fines system to keep pace with inflation. Pictured at the launchare (from left) the LRC’s Patricia Rickard-Clarke, Mr Justice Declan Budd,president of the LRC, Ms Justice Susan Denham, and Professor David

Gwynn Morgan, the LRC’s director of research

Brought to accountPatrick Dorgan (centre), president of the Southern Law Association andpartner in the Cork law firm Coakley Moloney Solicitors, officially opensthe new offices of forensic accountants James Hyland and Company at

5 Union Quay, Cork. The company is one of the leading forensicaccountancy firms in Ireland, providing expertise and a range of litigationsupport services. Also pictured at the opening are (from left) companydirectors Paul Murray, David Hyland, Peter Johnson and James Hyland

Brightest and bestRecruitment specialist

BrightWater Selection has addedSharon Swan to its legal

recruitment team. BrightWaterspecialises in recruitment in the

areas of legal, executive,taxation, accountancy and

finance, banking, sales andmarketing, and human resources.Pictured above are (from left) new

consultant Sharon Swan,manager Brian Carroll, consultant

Michael Grenham and directorWendy Hodgson

Home runThe final tally for this year’s Calcutta Run for the homeless was

€190,000, bringing the amount raised over four years to €600,000.GOAL – specifically its orphanage in Calcutta – and Fr Peter McVerry’sArrupe Society, which runs projects for homeless boys in Dublin, eachbenefited to the tune of €85,000 from this year’s event, thanks to theparticipation and contributions of so many solicitors and firms and the

support of the event’s main sponsor, Vodaphone. Pictured at thepresentation of the cheque are (from left) GOAL’s Lisa O’Shea, Eoin

MacNeill of A&L Goodbody, snooker star Ken Doherty, Vodaphone’s NiallO’Sullivan, Law Society Director of Finance and Administration Cillian

MacDomhnaill, and Fr Peter McVerry

Have a chairMichael Greene (pictured above, with

managing partner Paul Carroll onleft) has been appointed chairman

of the Dublin law firm A&LGoodbody. A commerce law

specialist, Greene joined the firm in 1979. He became a partner in

1983 and managed the firm’s NewYork office for three years

Faith, hope and charityLaw Society President Elma Lynch with members of the society’s LawReform Committee and charity law sub-committee at the launch of the

committee’s recent report on charity law (see July/August Gazette, p5).From left: committee member Philip Smith, committee secretary Alma

Clissmann, sub-committee member Oonagh Breen, president ElmaLynch, committee chair John Costello, and sub-committee member

Nicola Keogh

TRUSTEES

SO ARE WE.For almost 160 years, St. Vincent de Paul volunteers have served the community all around Ireland.

Using the money and resources provided by a generous public. To tackle real need in the most effective way.

Working today with families, children, homeless, elderly, marginalised -through a growing range of personaland community services.

Including hostels, social housing, educational supports, “good-as-new” shops, youth clubs - as well as cash assistance and food!

We’re trusted to use funds wisely.

Charity Registration No. CHY6892. Tax Relief No. CHY8

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SOCIETY OFST. VINCENT DE PAUL8 New Cabra Road, Dublin 7.Tel: 01.8384164 www.svp.iee-mail: [email protected]

we trust

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NANNIES • PARENT HELP • AU PAIRS • FREELANCERS

Job Options Bureau specialises in the introduction of Aupairs, Nannies and Parent Help for families throughoutIreland since 1988. We offer a wide range of childcareprofessionals and experienced staff to suit your specificneeds.

Director Kathy O’ Dwyer is a founding member of TheInternational Au Pair Association (IAPA).

PLEASE CONTACT US TO DISCUSS YOUR CHILDCARE REQUIREMENTS

DUBLIN CORK55 South William St, Tourist House,Dublin 2 40/41 Grand Parade,Tel: 00353-1-6727577 CorkFax: 00353-1-6728107 Tel: [email protected] Fax: 00353-21-4274829Website: www.nanniesireland.com [email protected]

CHILDCARE RECRUITMENT SPECIALISTS

R E C R U I T M E N T

EST.1988

Apprentices’ page


51

Come dancingSADSISolicitors Apprentices Debating

Society of Ireland

After much speculation, notto say agonising, as to

where this year’s SADSI ballshould be held, we are nowvery pleased to announce thatit will be held on Saturday 2November in the ConradHotel, Earlsfort Terrace,Dublin. Julie Brennan, easternrepresentative, is the event co-ordinator. We look forward to

Wild, wildwestAll those in need of goodcompany and a bit of crackare invited to join theircolleagues in Galway fordrinks on Friday 20September in Tí na nÓg,Middle Street, at 8pm. Asalways, all are welcome, andSADSI would like toparticularly welcome thoseof you who will be attendingthe October PPC1. Hope tosee you all there.

Dawn Carney, western rep

SOUTHERNCOMFORTCork trainees may beinterested to hear that onTuesday 10 September, at5pm in courtroom 1 in theCork District Court, there willbe an introductory talk byJudge Uinsin MacGruairc.

Judge MacGruairc willoutline the variousprocedures and rightsafforded to trainee solicitorsin the Cork District Court. Thetalk should take about 30minutes and should provemost beneficial to all inattendance.

Details of SADSI socialevents for southern traineesare currently being confirmed,and I hope to make anannouncement in relation tothis in the near future.

Ken Hegarty, southern rep

Trainees in the eastern regionhave had very active social

calendars recently. A secondeastern regional event tookplace in the Q Bar onO’Connell Bridge on 15August. There was a greatturnout and the night was a

Solicitors v traineesGaelic football challengeWe are currently in the

process of arranging the2002 fixture of the solicitorsversus trainees Gaelic footballchallenge match. Last year’sevent was a great success andwas thoroughly enjoyed by thelarge number who attended thematch itself and, of course, the

Another boozing story

sending out invitations in mid-September.

For those of you who werehoping to combine the ballwith a weekend away, fear not!Please drop a line [email protected] – if the demandis strong enough, we willorganise a SADSI weekendtrip.

Martin Hayes, auditor

post-match reception. Wehope to build upon the successof previous years, and, withthis in mind, we are compilinga list of those who would beprepared to put theirreputations on the line byrepresenting the trainees’team. All those interested inplaying for, or indeedsupporting, the team, pleasecontact [email protected]. Oncesuitable numbers are recruited,we can begin finalising a dateand venue. Further details willfollow.

Noel Devins, sports officer

success. The PPC1 examresults party was held in thesame venue on Friday 23August. Many thanks to themanagement and staff of the Q Bar, who looked after us sowell.

Julie Brennan, eastern rep

THE LAW SOCIETY’S COMPANY SERVICE, BLACKHALL PLACE, DUBLIN 7FAST • FRIENDLY • EFFICIENT • COMPETITIVE PRICES • MEMBERS OF EXPRESS SERVICE

LEAVE IT TO THE EXPERTS!

PHONE CARMEL OR RITA ON 01 672 4914/6, (FAX: 672 4915)

or e-mail: [email protected]

COMPANY FORMATIONCOMPANY FORMATION

• Private limited company – ten days, €278

• Guarantee company – ten days, from €215

• Single member company – ten days, €278

• New companies, using complete nominees – five days, €330

SADSI eastern rep Christian Victory, Johnnie McCoy, vice-chairmanof the Chartered Institute of Arbitrators (Irish Branch), solicitorJames MacGuill, Michael Benson of Benson Legal Recruitment,

SADSI auditor Martin Hayes, SADSI vice-auditor Áine Matthews, andRonan Feehily, SADSI’s debate co-ordinator, pictured at the event

SADSI career development day

Professionalinformation


52

ADVERTISING RATES

All advertisements must be paid for prior to publication. Deadline forSeptember Gazette: 20 September 2002. For further information, contactCatherine Kearney 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 in theschedule hereto for the issue of a landcertificate as stated to have been lost orinadvertently destroyed. A new certifi-cate will be issued unless notification isreceived in the registry within 28 daysfrom the date of publication of thisnotice that the original certificate is inexistence and in the custody of someperson other than the registeredowner. Any such notification shouldstate the grounds on which the certifi-cate is being held.(Register of Titles), Central Office, LandRegistry, Chancery Street, Dublin(Published 6 September 2002)

Regd owner: Bridie Holland andPatrick Oliver; folio: 13399F; lands:Moanavoth and barony of Rathvilly;Co Carlow

Regd owner: Sean Smyth; folio: 16725;lands: Lecks; area: 19.3642 hectares;Co Cavan

Regd owner: Kenneth W James; folio:51049; lands: a plot of ground situ-ate in the townland of Goleen andbarony of Carbery West; Co Cork

Regd owner: Kenneth W James; folio:51050; lands: a plot of ground situ-ate in the townland of Goleen andbarony of Carbery West; Co Cork

Regd owner: Colm and ChristinaMacBride; folio: 26423; lands:Convoy Townparks; area: 0.17199hectares; Co Donegal

Regd owner: Aileen Kavanagh; folio:DN86183F; lands: property situatein the townland of Clonsilla andbarony of Castleknock; Co Dublin

Regd owner: Michael Costello; folio:DN113288F; lands: property situatein the townland of Farranboley andbarony of Rathdown; Co Dublin

Regd owner: Paul and Susan Ryan;folio: DN7585F; lands: property sit-uate in the townland ofHaroldsgrange and barony ofRathdown; Co Dublin

Regd owner: Frances Shrage andJoseph Lewis; folio: DN2673; lands:the property known as no 9 CapelStreet situate on the east side of thesaid street in the city of Dublin andin the north central district; CoDublin

Regd owner: Des Farren; folio:DN26398F; lands: property knownas 48 Griffith Avenue situate in theparish of Clonturk and district ofClontarf; Co Dublin

Regd owner: Margaret Barron andHenry Patrick Barron; folio:DN18972; lands: a plot of groundsituate on the east side of LambayRoad in the parish and district ofGlasnevin and city of Dublin; CoDublin

Regd owner: Lena Burke; folio: 7418F;lands: townland of Carrowroe Westand barony of Moycullen; area:2.023 hectares; Co Galway

Regd owner: Peter and PhilomenaMurrayhill; folio: 12797; lands:townland of Alasty and barony ofSouth Salt; Co Kildare

Regd owner: Norman and ElaineFoley; folio: 29196F; lands: town-land of Monread South and baronyof Naas North; Co Kildare

Regd owner: John T Duffy; folio: 9443;lands: townland of Clogheen andbarony of Offaly West; Co Kildare

Regd owner: Brendan O’Connell;folios: 6134, 6135, 6142 and 6143;lands: townlands of Kilcullenbridgeand baronies of Naas South; CoKildare

Regd owner: Leonard O’Connell,Edward Doyle, Noel Lyons, EdwardIrwin and Irene F Mogg; folio: 7675;lands: townlands of Stratford Lodgeand Baltinglass and baronies ofTalbotstown Upper; Co Kildare

Regd owner: Elaine Hickey andDamian McGowran; folio: 12395F;lands: Borris Little and barony ofMaryborough East; Co Laois

Regd owner: James Peter Sweeney;folio: 17691; lands: Moneybally-tyrrell and barony of MaryboroughEast; Co Laois

Regd owner: Michael McNulty,Hillside Road, Greystones, CoWicklow; folio: 6800; lands:Cornabarrack; area: 5.3039 hectares;Co Leitrim

Regd owner: Michael McTeigue,Moher, Aughnasheelin PO, CoLeitrim; folio: 10727; lands: Moher;area: 11.988 hectares; Co Leitrim

Regd owner: Ellen Carey; folio: 4289F;lands: townland of Ardnamoher andbarony of Coshlea; Co Limerick

Regd owner: Cox Plant Hire Limited;folio: 15974; lands: townland ofSingland and barony of Clanwilliam;Co Limerick

Regd owner: Michael Ahern; folio:21442; lands: townland of Tuoghand barony of Kenry; Co Limerick

Regd owner: James Keenan, Croshea,Edgeworthstown, Co Longford;folio: 6116; lands: Crossea South;area: 7.0718 hectares; Co Longford

Regd owner: Francis McKiernan,Ardnacassa, Longford, CoLongford; folio: 8527; lands:Ardnacassagh; area: 3.8445 hectares;Co Longford

Regd owner: Declan Gibson, PointRoad, Dundalk, Co Louth; folio:9411; lands: Point; area: 0.2175hectares; Co Louth

Regd owner: Rose Traynor of Sicily,Duleek, Co Meath and JohnTraynor of Brownstown, Navan, CoMeath; folio: 6186F; lands: Sicily;Co Meath

Regd owner: Ann and Francis O’Reilly,29 Laurence Street, Drogheda, Co

Louth; folio: 6285F; lands: Platin;Co Meath

Regd owner: Michael Murtagh, Tusker,Laragh, Castleblayney, CoMonaghan; folio: 2270; lands:Tusker; area: 7.2337 hectares; CoMonaghan

Regd owner: John McKenna,Carrowhatta, Scotstown, CoMonaghan; folio: 20381; lands:Carrowhatta; area: 2.819 acres; CoMonaghan

Regd owner: IDA (Ireland); folio:2327L; lands: townland ofGortnafleur and barony of Iffa andOffa East; Co Tipperary

Regd owner: John Hayden; folio:22750; lands: townland of MilltownSt John and barony of Middlethird;Co Tipperary

Regd owner: Patrick James Flood,Corlanna, Lismacaffrey, CoWestmeath; folio: 4010, 4011; lands:Corralanna; area: 6.096 hectares,1.113 hectares; Co Westmeath

Regd owner: Leonard O’Connell,Edward Doyle, Noel Lyons, EdwardIrwin and Irene F Mogg; folio: 7675;lands: townland of Stratford Lodgeand Baltinglass and baronies ofTalbotstown Upper; Co Wicklow

WILLS

Cassells, Peter (deceased), late of 17Simmons Place, North Circular Road(also referred to as ‘off Summerhill’),Dublin 1. Would any person havingany knowledge of a will executed by theabove named deceased who died on 22March 2001, please contact LawlorO’Reilly Solicitors, 43 Upper GardinerStreet, Dublin 1, tel: 878 7255 or fax:836 3203

Early, Patrick John Mary (retiredgarda, Blackrock Station) and late of 35Woodlawn Park Grove, Firhouse,Dublin 24. Would any person havingknowledge of a will executed by theabove named Patrick John Mary Earlywho died on 22 July 2002, please con-

tact O’Driscoll and Company,Solicitors, 7 Argyle Square,Morehampton Road, Donnybrook,Dublin 4

Fitzgerald, Kevin (otherwise knownas Thomas or Thomas Kevin) andPatricia, his spouse (both deceased),both late of 14 Marian Place, Glin, CoLimerick. Would any person havingknowledge of wills made by the abovenamed deceased who died on 29 April2002 and 2 May 2002 respectively,please contact Philip J Culhane & Co,Solicitors, The Mall, Glin, CoLimerick, tel: 068 34444 or fax: 06834022

McDonnell, John, late ofCarrowmore, Barnatra, Ballina, CoMayo. Would any person havingknowledge of a will made by the abovenamed who died on 4 April 2002,please contact Durcan Solicitors,Castlebar, Co Mayo; DX: 33 011, fax:094 23780, tel: 094 21655; referenceC/JD/11763

Maguire, James, 6 Main Street,Julianstown, County Meath. Wouldany person with information concern-ing the next of kin of James Maguire,labourer, deceased, late of 6 MainStreet, Julianstown, County Meathwho died on 13 December 1999 (aged72), and/or his mother RosemaryMaguire (née Quinn), widow,deceased, also of 6 Main Street,Julianstown, Co Meath who died on 18April 1987 (aged 97), and/or his fatherBernard Maguire, retired serviceman,deceased, also of 6 Main Street,Julianstown, Co Meath who died on 19February 1933 (aged 43), please con-tact McKeever Taylor, Solicitors, 34/35Laurence Street, Drogheda, Co Louth

Nolan, Joseph (deceased), late ofGortaboy, Kinvara, Co Galway. Wouldany firm of solicitors holding a will orhaving knowledge of a will made by theabove named deceased who died on 24March 1988, please contact Colman

www.benasso.com

The Irish Legal Recruitment Specialists

Carmichael House, 60 Lower Baggot Street, Dublin 2, IrelandT +353 (0) 1 670 3997 F +353 (0) 1 670 3998 E [email protected]

For information on the services we provide as well ascurrent vacancies, please visit our website or contactMichael Benson (BCL) or Annaleen Sharkey (LLB)in strictest confidence, at:

Benson & Associates is a nicheconsultancy, specialising in therecruitment of high calibre lawyersfor private practice, commerceand industry

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53

Sherry, Solicitors, The Square, Gort,Co Galway, tel: 091 631383 or fax: 091631993

O’Reilly, Gertrude (deceased), late ofO’Connell Court Nursing Home,Cork. Would any person having anyknowledge of a will made by the abovenamed deceased who died on 6November 2001, please contact EamonMurray & Company, Solicitors, 6Sheares Street, Cork, tel: 021 427 6163,fax: 021 427 4801

Tangney, Robert (Bob) (Joseph)(deceased), late of Lahard, Beaufort,Killarney, Co Kerry. Would any personhaving knowledge of a will being madeby the above named deceased who diedon 1 June 2002, please contact PadraigJ O’Connell, Solicitors, Glebe Lane,Killarney, Co Kerry, tel: 064 33278 orfax: 064 34286

EMPLOYMENT

Assistant solicitor required forMallow, Co Cork office. Please reply tobox no 90

Recently-qualified solicitor requiredfor busy practice in Limerick area.Please reply to box no 91

Practising solicitor, who has acted forreputable establishments, licensed ginjoints and sold spirit stores, available foremployment. Conveyancing/divorce,in North West, preferred; tel: 07458274

Experienced solicitor required for ashort-term contract to work with the

Legal Aid Board. Reply with curricu-lum vitae to Mary Cuffe, managingsolicitor, Ennis Law Centre, Unit 6A,Merchants Square, Ennis, Co Clare ore-mail at [email protected]

Conveyancing and probate solicitorrequired for Wexford-based firm. Oneto two years’ PQE preferable. Apply inwriting to James P Coghlan andCompany, Solicitors, 2 Donovan’sWharf, Crescent Quay, Wexford

Newly Irish-registered Englishsolicitor, wide experience in legal anddrafting work and of political, charita-ble and environmental operations, seekstemporary or part-time work. ContactDavid Pedley, Farnaharpy, Skreen,County Sligo, tel: 00 44 7985 378172

Solicitor required for busy, well-established Cavan practice. Minimumof three years’ general experience.Excellent terms and prospects for rightcandidate. Contact Thomas McDwyer,PJF McDwyer and Company,Solicitors, Belturbet, Co Cavan, tel:049 952 2178

Solicitor required for busy, well-estab-lished Longford practice. PQE desir-able but not essential. Excellent termsand prospects for the right candidate.Contact Catherine Corcoran, HR man-ager, Ryan Glennon & Co, CharteredAccountants, Trinity House,Charleston Road, Ranelagh, Dublin 6,

e-mail: [email protected],tel: 01 496 5388

Busy Monaghan town firm seeksnewly-qualified solicitor. Experiencepreferable but not essential. Apply inwriting to Barry Healy & Company,Solicitors, ‘Laurel Lodge’, Hillside,Monaghan, Co Monaghan

Solicitor with over six years’ experiencein general practice, particularly litiga-tion and conveyancing, seeks part-timeposition in Dublin city or southsideoffice. Three days per week or fivemornings preferred. Reply to box no92

Litigation/commercial/family spe-cialist seeks partnership; Dublin south-side. Reply to box no 93

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, CountyDown, tel: 080 1693 68144, fax: 0801693 60966

Northern Ireland agents for all con-tentious and non-contentious matters.Consultation in Dublin if required. Fee

AT MARY B CREMINLEGAL DIVISON

21 years of excellence

Banking Solicitor, IFSC €60KLarge corporate Bank seeks asolicitor with 5/6 years PQE.Must have a sound knowledge ofconveyancing, banking, companylaw and insolvency. Excellentremuneration package.

Solicitor, D2 €38KBusy practice seek a newly quali-fied or 1 year’s PQE in commer-cial experience and a strongapprenticeship in conveyancingand litigation. Excellent careerprospects.

Solicitor, D2 €38K Excellent opportunity for newlyqualified or 1 year’s PQE in con-veyancing. Position will suit can-didate seeking to progress topartnership level.

Corporate Lawyer €50K+City centre practice require solici-tor with 5 years PQE in corpo-rate/commercial law. Excellentbenefits.

Call Clara now for an appt.Tel: 01 663 5901Fax: 01 662 8662

[email protected]

MORE EXCELLENT JOB OPPORTUNITIES AT

www.marybremin.ie

CALDWELLMEGHEN

DUBLIN’S LEGAL RECRUITMENTSPECIALISTS

We have a number ofSolicitor and Legal Executivevacancies currently available

with leading Firms in allpractice areas.

Excellent salary packages

For further informationplease contact

Paula Williams on 01-4339016 or email your c.v

to [email protected]

For a list of our currentvacancies please visit

www.cmcareers.com

ROSEMARY CONNOLLY, SOLICITORS

EMPLOYMENT AND EQUALITY LAW SPECIALISTSThis progressive four Solicitor practiceestablished in 1995 is centrally based inattractive modern premises at 2 TheSquare, Warrenpoint, Co. Down BT34 3JT.The practice is fully computerised andclient enquiries by e-mail are welcomed andassured of a speedy response.

The Principal, Rosemary Connolly is aformer Director of Legal Services with theFair Employment Commission for NorthernIreland.

We have an extensive client portfoliowith a mix of business, public sector andindividual clients. As well as a full range ofgeneral legal services the practice offers aSpecialist Consultancy in Employment andEquality law.

Our location close to the Border pro-vides convenient access for clients locatedin Northern Ireland and in the Republic ofIreland. Agency work for colleagues in theRepublic of Ireland is handled professional-ly and efficiently at attractive rates.

www.solicitorsni.nete-mail:

[email protected]

WHERE THERE’S A WILLTHIS IS THE WAY…

5 Northumberland Road, Dublin 4. Tel: (01) 231 050015 Bridge Street, Cork. Tel: (021) 4509 918 Web: www.cancer.ie

When a client makes a will in favour of the Society, it wouldbe appreciated if the bequest were stated in the following words:

“I give, devise and bequeath the sum of X euros to the IrishCancer Society Limited to be applied by it for any of itscharitable objects, as it, at its absolute discretion, may decide.”

All monies received by the Society are expended within theRepublic of Ireland.

“Conquer Cancer Campaign” is a Registered Business Nameand is used by the Society forsome fund-raising purposes. The“Cancer Research AdvancementBoard” allocates all ResearchGrants on behalf of the Society.

Director: Sheila Kavanagh

Experts in Overnight Transcripts

Specialists in

Court Reporting

Medical Cases / Arbitrations

Conferences / Board Meetings

Contact:Hillcrest House,

Dargle Valley, Bray, Co. Wicklow.

Telephone/Fax: (01) 286 2184or

4b Arran Square, Dublin 7

Telephone: (01) 873 2378

IrishStenographers

Ltd

LAW AGENCY SERVICESE N G L A N D & WA L E S

S O L I C I T O R SEstablished 1825

• Fearon & Co specialise in acting for Irish residents in

the fields of probate, property and litigation

• Each solicitor is available by direct line, fax or e-mail.

Conferences can be easily arranged

• Fearon & Co is committed to the use of information

technology to help improve both the quality and

speed of service for the benefits of all clients both at

home and abroad

• The firm’s offices are within half an hour of London

Waterloo station and within a short travel from both

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• No win, no fee arrangements are available in

appropriate cases

PHONE NOW FOR A BROCHUREWestminster House

12 The Broadway, Woking, Surrey GU21 5AU England

Fax: +44 (0)1483 725807

Email: [email protected] www.fearonlaw.com

PROPERTYJohn Phillips

Tel: +44 (0)1483 747250

LITIGATIONMartin Williams

Tel: +44 (0)1483 776539

PROBATEFrancesca Nash

Tel: +44 (0)1483 765634

SPANISH LAWYERS

RAFAEL BERDAGUER ABOGADOS

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

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

PROFILE:

Spanish Lawyers Firm focussedon serving the need of the for-

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

FIELD OF PRACTICES:

General Practice, Administra-tive Law, Civil and Commercial

Law, Company Law, Banking andForeign Investments in Spain,Arbitration, Taxation, Family Law,International Law, Immigrationand Naturalisation, Litigation in allCourts.

AM

EMBER OF

INTERNATIONAL PRACTIC

EG

ROU

P



55

sharing envisaged. Offices in Belfast,Newry and Carrickfergus. ContactNorville Connolly, D&E Fisher,Solicitors, 8 Trevor Hill, Newry; tel:080 1693 61616, fax: 080 1693 67712

London solicitors will advise on UKmatters and undertake agency work. Allareas. Corporate/private clients. Ellis &Fairbairn, 26 Old Brompton Road,South Kensington, London SW7 3DL,tel: 0044 171 589 0141, fax: 0044 171225 3935

Northern Ireland solicitors. Willadvise and undertake NI-related mat-ters. All areas corporate/private.Agency or full referral of cases as pre-ferred. Consultations in Dublin or else-where if required. Fee sharing envis-aged. Donnelly Neary & Donnelly, 1Downshire Road, Newry, Co Down,tel: 080 1693 64611, fax: 080 169367000. Contact KJ Neary

EYE INJURIES ANDOPHTHALMOLOGICAL

NEGLIGENCE

Mr Louis Clearkin ChM, FRCS, FRCOphth, DO, MAI, MEWI

Consultant Ophthalmic Surgeon

Experienced expert witness inophthalmological personal

injury, medical negligence and civil litigation

Renuntiabo, 8 Rose Mount, Oxton, Wirral, Merseyside,

L43 5SWsecretary: +44 (0) 151 6047047

fax: +44 (0) 151 6047152e-mail: [email protected]

Personal injury claims, employment,family, criminal and property law spe-cialists in England and Wales. Officesin London (Wood Green, CamdenTown and Stratford), Birmingham andCardiff. ‘No win, no fee’ available foraccident and employment claims, legalaid for family and criminal cases.Contact Levenes Solicitors at AshleyHouse, 235-239 High Road, WoodGreen, London N22 8HF, tel: 0044 208881 7777. Alternatively, e-mail us [email protected] or visit our websiteat www.levenes.co.uk

Wanted: ordinary seven-day publican’slicence. Please contact James PSweeney and Company, Solicitors,Falcarragh, Co Donegal; ref:RX0049/BJT, tel: 074 35121 and fax:074 35704

City centre: Merchants Quay (oppFour Courts). Merchant’s Court. Excel-lent modern ground-floor office suite inthree rooms; 81 sq m. Available imme-

diately. Short term. Rent: €22,855.29pa. Fully fitted, heating, air cond etc.Four car spaces. Full details fromNorth’s Estate Agents, tel: 01 433 2222

Would you like a change ofscenery? How about a new life in thesunny South West? If you are quali-fied over four years and are competentin the fields of probate, taxation andconveyancing, we would like to meetwith you. We are a young, expandingfirm and we are prepared to offer afull partnership to the suitable candi-date after a brief trial period.Applications in writing with CV to:Timothy Coughlan & Co, CharteredAccountants, Rossa Street, Clonakilty,Co Cork

TITLE DEEDS

Cassells, Peter (deceased). Wouldany person knowing the whereaboutsof deeds to the property of the latePeter Cassells at 17 Simmons Place,North Circular Road, Dublin 1,please contact Lawlor O’ReillySolicitors, 43 Upper Gardiner Street,Dublin 1, tel: 878 7255 or fax: 8363203

In the matter of the Landlord andTenant (Ground Rents) Acts, 1967-1994 and in the matter of theLandlord and Tenant (GroundRents) No 2 Act, 1978: an applica-tion by Nora Field-CorbettTake notice that any person havingany interest in the freehold estate ofthe following property: 22 Pine ValleyAvenue, Grange Road, Rathfarnham,Dublin.

Take notice that Nora Field-Corbett intends to submit an applica-tion to the county registrar for thecity of Dublin for the acquisition ofthe freehold interest in the aforesaidproperties, and any party assertingthat they hold a superior interest inthe aforesaid premises (or any ofthem) are called upon to furnish evi-dence of title to the aforementionedpremises to the below named within21 days from the date of this notice.

In default of any such notice beingreceived, Nora Field-Corbett intendsto proceed with the application beforethe county registrar at the end of 21days from the date of this notice andwill apply to the county registrar forthe city of Dublin for directions asmay be appropriate on the basis thatthe person or persons beneficiallyentitled to the superior interestincluding the freehold reversion inthe aforesaid premises are unknownor unascertained.Date: 30 July 2002Signed: Eoin O’Connor and Company,Solicitors, 16 South Main Street, Naas,Co Kildare

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 byAnn Marie LeamyTake notice that any person having anyinterest in the freehold estate of the fol-lowing property: all that and those thehereditaments and premises known asnumber 66 Barrack Street (now KenyonStreet) in the town of Nenagh, barony ofLower Ormond and county ofTipperary, formally held on a yearly ten-ancy at the yearly rent (£18) on the expi-ration of a lease dated 29 April 1958 andmade between Patrick Cleary of the onepart and Katherine Boland of the otherpart for a term of 100 years from 29April 1858 at the yearly rent of £18 andthe applicant is the successor entitled tothe leasee’s interest therein.

Take notice that Ann Marie Leamyintends to submit an application to thecounty registrar for the county ofTipperary for the acquisition of the free-hold interest and any intermediate inter-est in the aforementioned premises, andany parties asserting that they hold asuperior interest in the property or anyof them are called upon to furnish evi-dence of title to the aforementionedproperty or to the below named within21 days from the date of this notice.

In default of any such notice beingreceived, the applicant intends to pro-ceed with the application before thecounty registrar for Tipperary at a hear-ing at the county registrar’s office, CourtHouse, Clonmel, on 7 October 2002 at2.15pm for directions as may be appro-priate on the basis that the person orpersons beneficially entitled to the supe-rior interest including the freeholdreversion on the property are unknownand unascertained.Date: 23 August 2002Signed: Flanagan and Company Solicitors(solicitors for the applicant), 5 O’RahillyStreet, Nenagh, Co Tipperary

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 and in the matter ofpremises known as 88 Summerhill,Dublin 1: an application by TimMartin of 66 Grosvenor Lane,Rathmines, Dublin 6Take notice that any person having aninterest in the freehold estate or of theleasehold estate or the superior interestin the premises: all that and those thelands and premises and house known as88 Summerhill, parish of St George,Dublin 1, city of the county of Dublinand which premises in consideration ofthe sum of £270 are held under a leasedated 12 July 1898 and made betweenCatherine Whelan of the one part andMargaret Bridgeman of the other partfor a term of 125 years from 12 July

1898 subject to a yearly rent of£4.17s.6d.

Take notice that the applicant, TimMartin, being the person under sections9 and 10 of the Landlord and Tenant(Ground Rents) (No 2) Act, 1978, intendsto submit an application to the countyregistrar for the county and city ofDublin for the acquisition of the free-hold interest and any intermediate inter-ests in the aforesaid properties, and anyparty asserting that they hold a superiorinterest in the aforesaid property 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, Tim Martin intends to proceedwith the application before the countyregistrar for the city of Dublin for direc-tions as may be appropriate on the basisthat the person or persons beneficiallyentitled to the superior interest includ-ing the freehold reversion in the afore-said premises is unknown or unascer-tained. Date: 23 August 2002Signed: Leo Buckley and Company (solicitorfor the applicant), 78 Merrion Square,Dublin 2

In the matter of the Landlord andTenant (Ground Rents) Acts, 1967-1994 and in the matter of theLandlord and Tenant (Ground Rents)Act, 1967: an application by MichaelEganTake notice that any person having anyinterest in the freehold estate of the fol-lowing properties: all that and those thehereditaments and premises formerlyknown as number 76 Harold’s CrossRoad aforesaid in the barony of UpperCross and parish of St Peter in the cityof Dublin and now known as 210Harold’s Cross Road being part of thepremises described in the lease dated 18May 1871 made between John H Parkerof the one part and John Byrne of theother part and then described as ‘all thatand those the plot of ground on the westside of road at “Harold’s Cross” leadingfrom Dublin to Roundtown containingin front to Harold’s Cross 60 feet in therear alike number of feet in depth fromfront to rear of Harold’s Cross Terracesituate in the barony of Upper Cross ofSt Peter and county of Dublin be thesaid several admeasurements more orless’ and held for term of 190 years andsubject to the yearly rent of £12 and sub-ject to the covenants on the part of thelessee to be performed in conditionstherein contained.

Take notice that Michael Eganintends to submit an application to thecounty registrar for the county of thecity of Dublin for the acquisition of thefreehold interest in the aforesaid proper-ties, and any party asserting that theyhold a superior interest in the aforesaidpremises (or any of them) are called



56

DUBLIN SOLICITORS’PRACTICE OFFERS

AGENCY WORK IN NORTHERN

IRELAND

* All legal work undertaken on an agency basis

* All communications to clients through instructing solicitors

* Consultations in Dublin if required

Contact: Séamus ConnollyMoran & Ryan, Solicitors,

Arran House,35/36 Arran Quay, Dublin 7.

Tel: (01) 872 5622 Fax: (01) 872 5404

e-mail: [email protected] Bank Building, Hill Street

Newry, County Down.

Tel: (0801693) 65311Fax: (0801693) 62096E-mail: [email protected]

NORTHERNIRELAND

SOLICITORS

We will engage in, and advise on,

all Northern Ireland- related matters,

particularly personalinjury litigation.

Consultations whereconvenient.Fee sharing envisaged.

OLIVER M LOUGHRAN & COMPANY

9 HOLMVIEW TERRACE,OMAGH, CO TYRONE

Phone (004428) 8224 1530Fax: (004428) 8224 9865

e-mail:[email protected]

J. DAVID O’BRIENATTORNEY AT LAW

20 Vesey St, Suite 700 New York, NY, 10007

Tel: 001212-571-6111Fax: 001212-571-6166

Email: [email protected]

PERSONAL INJURY ACCIDENT

CASES

CONSTRUCTION

RAILROAD

MARITIME

AVIATION

CAR/BUS/TRUCK

MEMBER AMERICAN AND NEW

YORK STATE TRIAL LAWYERS

ASSOCIATIONS

Enrolled as Solicitor in Rep of Ireland, England

& Wales

for the acquisition of the freehold inter-est and any intermediate interests in theaforesaid properties and any partiesasserting that they hold a superior inter-est in the aforesaid premises or any ofthem are called upon to furnish evidenceof title to the aforementioned premisesto the below within 21 days from thedate of this notice.

In default of any such notice beingreceived, Hi-Tech Dry Cleaners Ltdintends to proceed with the applicationbefore the county registrar at the end of21 days from the date of this notice andwill apply to the county registrar for thecounty and city of Limerick for direc-tions as may be appropriate on the basisthat the person or persons beneficiallyentitled to the superior interest includingthe freehold reversion in the aforesaidpremises are unknown or unascertained.Date: 6 September 2002Signed: Thornton Solicitors (solicitors for theapplicant), 52 O’Connell Street, Limerick

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 byVerney Investments LimitedTake notice that any person having anyinterest in the freehold estate of the fol-lowing properties: all that and those theyard being part of the premises known asnumber 1A Carlingford Road,Drumcondra, Dublin 9, situate in theparish of St George, barony of Coolockand city of Dublin, held under indentureof lease dated 16 March 1917 and madebetween Samuel Smith Sherlock of theone part and Frances Allen of the otherpart for a term of 100 years and subjectto the yearly rent of £3 and thecovenants on the part of the lessee to beperformed and conditions therein con-tained.

Take notice that Verney InvestmentsLimited intend to submit an applicationto the county registrar for the county ofthe city of Dublin for the acquisition ofthe freehold interest in the aforesaidproperties, and any party asserting thatthey hold a superior interest in the afore-said premises (or any of them) are calledupon to furnish evidence of title to theaforementioned premises to the belownamed within 21 days from the date ofthis notice.

In default of any such notice beingreceived, the applicant intends to pro-ceed with the application before thecounty registrar for the county and cityof Dublin for directions as may beappropriate on the basis that the personor persons beneficially entitled to thesuperior interest including the freeholdreversion in the aforesaid premises isunknown or unascertained. Date: 19 August 2002Signed: Michael O’Shea & Company,Solicitors, 291 Templeogue Road, Dublin6W

upon to furnish evidence of title to theaforementioned premises to the belownamed within 21 days from the date ofthis notice.

In default of any such notice beingreceived, the applicant intends to pro-ceed with the application before thecounty registrar for the county and cityof Dublin for directions as may beappropriate on the basis that the personor persons beneficially entitled to thesuperior interest including the freeholdreversion in the aforesaid premises inunknown or unascertained. Date: 23 August 2002Signed: Kent Carty Solicitors, 47/48Parnell Square, Dublin 1

In the matter of the Landlord andTenant (Ground Rents) Acts, 1967-1984: an application by ReginaPower and Mary Curran, administra-tors in the estate of Annie Wallace(deceased)Take notice that any person having aninterest in the freehold estate as succes-sors in title to Michael J McDonnell,deceased, of 88 Bridge Street, Dundalkor otherwise in all that and those theshop and premises situate at CornMarket Square, in the parish ofDundalk, barony of Upper Dundalk andcounty of Louth, held under an inden-ture of lease dated 10 August 1901 andmade between John William Horan ofthe one part and MacArdle Moore &Company of the other part for the termof 99 years from 1 May 1901 subject tothe yearly rent of £10.15s.4d and subse-quently be re-apportioned to £3 and to

the covenants on the part of the lesseeto be performed and conditions thereincontained.

Take notice that Regina Power andMary Curran have made an applicationto the county registrar for the county ofLouth for the acquisition of the free-hold interest in the aforesaid property,and any party asserting that they hold asuperior interest in the aforesaid prop-erty is called upon to furnish evidenceof title of the aforementioned propertyto the below named within 21 daysfrom the date of this notice.

In default of any such notice beingreceived, the applicants intend to pro-ceed with the application before thecounty registrar at the end of 21 daysfrom the date of this notice and willapply to the county registrar for thecounty of Louth for direction as may beappropriate on the basis that the personor persons beneficially entitled to thesuperior interest including the freeholdreversion in the property are unknownand unascertained.Date: 15 August 2002Signed: Mason Hayes & Curran (solicitorfor the applicants), 6 Fitzwilliam Square,Dublin 2; ref: SR

In the matter of the Landlord andTenant Acts, 1967-1994 and in thematter of the Landlord and Tenant(Ground Rents) (No 2) Act, 1978 andin the matter of premises known asnos 4 and 5 Glentworth Street,Limerick, now forming part of thepremises known as Hanratty’sHotel, Glentworth Street, Limerick:

an application by Hi-Tech DryCleaners LtdTake notice any person having anyinterest in the freehold estate of or thesuperior interest in the followingpremises: firstly, all that and those thelands, premises and hereditaments for-mally known as no 4 GlentworthStreet, Limerick, in the parish of StMichael in the city of Limerick nowforming part of the premises known asHanratty’s Hotel, Glentworth Street,Limerick, held under a lease dated 22July 1947 and made between AgnesKM Lady Nash of the one part andHanora Cregan of the other part for aterm of 99 years from 1 November1946, subject to the yearly rent of £65,and secondly all that and those thelands, premises and hereditamentsconsisting of the premises formallyknown as no 5 Glentworth Street inthe parish of St Michael in the city ofLimerick now forming part of thepremises known as Hanratty’s Hotel,Glentworth Street, Limerick, heldunder a lease dated 22 July 1947 andmade between Agnes KM Lady Nashof the one part and Edward Creganand Hanora Cregan of the other partfor a term of 99 years from 1November 1946, subject to the yearlyrent of £105.

Take notice that the applicant, Hi-Tech Dry Cleaners Limited, being theperson entitled under sections 9 and 10of the Landlord and Tenant (GroundRents) (No 2) Act, 1978, intends to sub-mit an application to the county regis-trar for the county and city of Limerick

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