April 2013

Law SocietyheaRd BUt nOt seen:The rules on admittinghearsay evidence werecentral to a recent casetake it tO the tOp:Solicitor Billy Glynnon being head honchoat the IRFUthe inside man:In-house lawyers mayhave to wear manydifferent hatsGazette€4.00 april 2013Ceci n ‘ est pas un boeuf:The surreal world of food fraud

Law Society Gazette www.gazette.ie April 2013 PRESIDENT’S MESSAGE1courts mustbe resourceDSince I wrote last month, there have been a number ofsignificant announcements made by the Minister forJustice, Equality and Defence, Alan Shatter. At a seminarin Blackhall Place on 2 March, the minister announced theGovernment’s intention to hold a referendum to enable theestablishment of a Court of Appeal. This announcementwas very well received. I, too, warmly welcome it. This issomething that the Law Society has been calling for, for manyyears. The referendum is scheduled for the autumn, and I hopeit will be seen by the people as the introduction of a vital pieceof courts infrastructure in the public interest.At the seminar in Blackhall Place, Chief Justice Denhamreported the startling news that an appeal from the HighCourt to the Supreme Court is now taking up to four yearsto be heard unless certified as urgent. This is completelyunacceptable. The new Court of Appeal must be introducedto deliver justice on a timely basis. As director general KenMurphy, who served as a member of the Chief Justice’sWorking Group on a Court of Appeal, stated on behalf ofthe Society when he addressed the seminar: “The necessaryreferendum cannot come quickly enough.”Jurisdiction changesLater in March, the minister published a bill to increasethe jurisdictional limit of the District Court from €6,384to €15,000, and that of the Circuit Court, from €38,092 to€75,000, with the ceiling for personal injury claims to belimited to €60,000. Given that it is more than two decadessince the jurisdictions were last amended, a review is certainlywarranted.However, the Society has a serious concern that the DistrictCourt and the Circuit Court will not have enough resources todeal with the pressure that, inevitably, will be placed on themby the dramatically increased workload.More judges and court staff will unquestionably be requiredin order to avoid increases in the delays that already exist inboth courts, and which will be greatly exacerbated by thismove. Accordingly, the Society calls on the Government toprovide the resources necessary to make these changes injurisdiction work.In relation to the proposed change to the in camera rule, theSociety welcomes this. The Society’s Law Reform Committee,over a decade ago, called for a modification of the in camerarule along the lines proposed in the bill.While all of the foregoing can be received as welcome andgood news by the profession, we must not lose sight of theneed to ensure that adequate and appropriate resources arefound, somehow, to provide forthe delivery of an efficient andspeedy justice system, in thepublic interest.Taxation of costsIn late February, I wrote todraw the attention of MinisterShatter to an impending crisisin the High Court taxation ofcosts system. Due to a variety ofcontributory factors, for whichno one is to blame, seriousdelays are now arising that arecausing huge difficulties forpractitioners and, by extension,businesses around the country.For solicitors’ firms, as fortheir clients, cash-flow can be amatter of survival or failure in“The Society callson the Governmentto providethe resourcesnecessary to makethese changes injurisdiction work”the current economic environment. The worst is not over. Infact, it hasn’t even begun. Two tribunals of inquiry will shortlyenter the process and will potentially see the taxation systemgrind to a halt. In addition, when the Legal Services RegulationBill is passed, new pressures will emerge from the larger, moreonerous requirements made by the costs provisions in the bill.The obvious and urgent solution, it seems to the Society, isto appoint at least one more taxing master. While we appreciatethe immense pressure on the exchequer at this time, we believeit would be effectively self-financing. As is well known, 8%stamp duty is placed on taxations, so traditionally the officesof the taxing master have paid for themselves. More taxationswould take place, thereby increasing revenue. In addition,the State would reduce the very real prospect of a EuropeanCourt challenge due to delays in the process, which has alreadycreated problems in other areas of the judicial system.These issues, and more, will be considered at the Society’sannual conference, which will take place at the Europe Hoteland Resort in Killarney on 10 and 11 May 2013. I am pleasedthat Minister Shatter has agreed to be the keynote speaker atthe conference on the theme ‘Reform of the courts’. In additionto hearing and questioning the minister on these issues,practitioners will be afforded a much-needed opportunity toengage with colleagues and will accrue CPD points.It is my fervent hope that a sizeable number of you will joinme in Killarney in May in the interests of maintaining ourcollegiate spirit. I look forward to meeting you there. GJames McCourtPresident

4 newsLaw Society Gazette www.gazette.ie April 2013NationwideCompiled by Kevin O’HigginsGALWAYwexfordKevin O’Higginshas been aCouncil memberof the LawSociety since1998Sign up forCPD soonThe delivery of the CPDprogramme is in full swingthroughout the county, with threehours of well-attended seminarsin February.At the seminar on HolyThursday, Brendan Glynn BLupdated participants on thePersonal Insolvency Act. KevinDineen BL spoke on personalinjury law, Alan Ledwith BL onemployment law, while Michael JClancy BL enlightened all presenton the topic of ‘Are the banksrunning scared? An update onrepossession law in Ireland’.James Seymour says: “Ifyou have not paid your annualsubscription of €50 per solicitor,please do so by sending acheque to treasurer, CairbreO’Donnell (c/o John C O’Donnell& Son, Solicitors, Atlanta House,Prospect Hill, Galway; DX 4502).We plan to hold up to 28 hours offree CPD during 2013, and yoursubscription helps to financethese events.”Property taxCPD eventHelen Dawson tells methat the next CPD event ison 12 April at the NationalHeritage Park, with accountantDavid Dowling speaking onregulatory matters and the newproperty tax, Rory O’Donnellon new developments inproperty law, and otherspeakers to be confirmed.Danske Bank Irish Law AwardsdublinThe finalists for the DanskeBank Irish Law Awards 2013have been announced across 22categories from over 100 lawfirms throughout Ireland. Thisyear saw almost 300 nominations,in categories such as ‘regionallaw firm of the year’, ‘solepractitioner of the year’, and‘lifetime achievement’. ThereLooking southsouthern law associationOlder colleagues in particularwill have beensaddened at the recentpassing of Enda, aconsummate lawyer,proud Mayo man and aconsiderable enhancerof public and civic lifethroughout his long anddistinguished legal career– perhaps best epitomisedby the fact that formerPresident McAleese invitedhim to serve on her Councilof State.Our commiserations goto Enda’s son Paul, whocontinues to manage thefamily firm of Marren & Co,and to the family.were more than 25 firms/lawyersnominated for both ‘law firm ofthe year’ and ‘law firm innovationof the year’, but the most popularcategory for 2013 was the newlyintroduced ‘pro bono and publicinterest team/lawyer of the year’,with 31 nominations making ithard work for the elite panel ofjudges.At the annual dinner of the Southern Law Association on 22 February wereAoife McCann, Emma Comyn, Karen Tobin and Fionnuala CullinaneENDA MARRENRIPRaising aparting glasswaterfordPic: Dee BaumannJohn Goff Senior has retired afterover 50 years in practice. John setthe standard for the legal professionin Waterford for many years andthe Waterford Law Society wisheshim well in his retirement.The death took place on 23February of former District CourtJudge Keenan Johnson in Sligo.The late judge had been assignedto District Number 22, whichincluded Waterford for many years,and was also closely associatedwith Children’s Group Link,based in Waterford. We extendour sympathies to the Johnsonfamily and, in particular, to hisson Keenan Johnson and daughterHelen who is a member of the Bar.You can find a full list offinalists on www.irishlawawards.ie. The awards event itselfwill take place on Friday 3May at a gala luncheon in theFour Seasons Hotel, Dublin 4,and will be hosted by MiriamO’Callaghan. The event was soldout in 2012, so make sure youbook your tables early.CPD newsdonegalThe next CPD seminar will beheld on Friday 17 May 2013 atthe Radisson Hotel, Letterkenny,Co Donegal, 9.30am to 1pm. Thespeakers will be Padraic Courtneyof the Law Society and AnneStephenson on agricultural relief,capacity issues when drafting wills,and enduring power of attorneys forclients. The fee for attending is €80and colleagues are asked to returntheir forms to Alison Parke.FREE LAWCARESEMINARSFOR BARASSOCIATIONSLawCare’s coordinator forIreland, Mary Jackson, hasbeen given the go-ahead toprovide a second round offree LawCare seminars tobar associations, with thebacking of the Law Society.With 26 presentations underher belt over the past threeyears, she’s extremely soughtafter.Since she has to travelfrom Britain, ideally sheprefers to do two or threeseminars at a time. She workspart-time but, with enoughnotice, can be flexible interms of dates and times.For more information, email:mary@lawcare.ie or tel: 00441398 341 790.

Law Society Gazette www.gazette.ie April 2013 newsPerrinconvictedof falseaccountingFormer District Court judge HeatherPerrin, who is currently serving atwo-and-a-half-year jail sentencefor deception, has had another twoyears added to her sentence for falseaccounting. Perrin, however, is notexpected to serve any extra time inprison for the new offence.The former judge was found guiltyearlier this year of inducing anelderly client and lifelong friend toleave half of his million-euro estateto her two children when he was aclient of her solicitors’ firm.On 13 March, at a sitting ofthe Dublin Circuit Criminal Court,Judge Mary Ellen Ring sentencedPerrin to an additional two years forfalsifying the account of an estatewith the intention of making a gainbetween May 2004 and February2009.“It’s a breach of trust betweensolicitor and clients,” Judge Ringsaid. “It’s a fundamental breach.”Perrin was the first member of thejudiciary in the history of the State tobe convicted of a serious crime. Sheretired from the District Court benchdays before she was jailed last year.In News this month...7 Taking advantage of e-payments7 Minister Shatter to addressSociety’s annual conference8 Diploma Programme offers freeiPad clinics and discountsThe Department of Justice dealtwith 147 new cases of childabduction in 2012 – five morethan the previous year. As 129cases were carried over from 2011,the department dealt with a totalof 276 cases last year.In all, 192 children are involvedin the 147 new cases. Applicationsfrom the State to other countriesnumbered 83, while applicationsinto the State from othercountries were 64.Of the 147 new applicationsreceived by the Irish CentralAuthority (see www.justice.ie formore information), the highestnumber involved Britain (68),followed by Poland (14), Latvia(12), other European countries(36), and other contracting states(17). Of the 129 cases still activefrom 2011, 69 were outgoingwhile 60 were incoming.9 Put a ‘PIP’ in your step!10 Celebrating women as ADRleaders11 Statutory obligations on personalrepresentatives of estatesChild abduction cases riseMinister for Justice AlanShatter said: “Parental childabduction continues to be aworrying problem. Mediationremains the best way for estrangedparents and spouses to resolvetheir differences and reach lastingagreements that work in the bestinterests of the children involved.”Youngbloods calltime on BarA total of 179 barristers – manyof them “struggling to survive atthe Bar” – left the Law Library in2012. Just 77 barristers left duringthe 2009/10 legal year, revealingan increase of 132% in thenumbers of those leaving.Chairman of the Bar Council,David Nolan SC says: “The Barhas always been competitive,even in the good times. But nowbarristers, many with up to tenyears’ professional experience,are leaving because they cannotsurvive.”Junior barristers say the figurescould be much higher, adding thatmany colleagues might have leftbut retained their membershipto avoid the stigma of no longerbeing active members. The numberof practising barristers rose from1,112 in 1998 to almost 2,500during the boom years.Lady golfers tee-up for spring5Transfer regulation in IrelandThe Employment Law Associationof Ireland (ELAI) is holding ameeting at 6.30pm on Tuesday16 April 2013 at the RadissonBlu Hotel, Golden Lane, Dublin 8,on the current application of thetransfer regulations in Ireland.Professor John McMullen,the acclaimed British guru onTUPE (Transfer of Undertakings(Protection of Employment)Regulations 2006) is the guestspeaker.The meeting is open tomembers of ELAI. Non-memberswho wish to attend shouldcontact Carol Fawsitt (chairof ELAI) at cfawsitt@hayessolicitors.ieor Lauren Tennyson(membership secretary) atlaurentennyson@gmail.com forfurther information.This year’s Lady Solicitors’ GolfSociety spring outing takes placeat The Heritage Golf and SpaResort, Killenard, Co Laois, onFriday 17 May. The event is opento all lady solicitors and theirguests. It will comprise an 18-holecompetition with a separate guest’sprize. The Lady Captain, MaryO’Connor, is encouraging youngercolleagues to join the society andto take part in this year’s event,alongside its regular supporters.A very attractive package is onoffer from The Heritage: golfonly – €40 per person; golf anddinner – €65 per person; golf,dinner, bed and breakfast – €145per person sharing. A limitednumber of rooms are available.Participants should contactthe Heritage at tel: 057 8645500, fax: 057 869 5037, email:reservations@theheritage.com.The Lady Captain asks thatparticipants would inform herso that she can keep track ofnumbers, by emailing: mary.oconnor@carrollkellyoconnor.com.

SpeakerSPaula Fallon: Cross-Border Legal IssuesAnn Williams: Cross-Border Taxation IssuesRichard Frimston: EU Succession RegulationGráinne Duggan B.L.: Bequeathing Digital AssetsTeresa Pilkington S.C.: Litigation UpdateGerry Durkan S.C.: Family Law UpdateDo you want to gain a comprehensive qualification in Tax?Specifically designed for qualified accounting& legal professionals the CTax qualificationgives participants an advanced understandingof Tax legislation.• Gain a detailed understanding of tax acrossall tax heads• Upskill as you work – Classes take placeon Saturdays only• Learn from the best – Lecturers includesome of Ireland’s leading tax expertsCertifiedTax Adviser (CTax)2013 Course – Enrolling Now!www.cpaireland.iekmolloy@cpaireland.ie01 425 1000CTA_187*123mm ad_FA.indd 1 21/03/2013 13:55:09

Law Society Gazette www.gazette.ie April 2013 newsElectronic payments set to grease the wheels of commerce7Solicitors have, for a number ofyears, faced negative reactionsfrom clients for the delay inreceiving funds. When paymentis made by cheque, it can take tenworking days before a bank willgive access to funds. This delaycan be doubled when solicitorsact as intermediaries in the flowof money to a client, and it isoften the solicitor who is blamedfor this delay. The slow clearingtime is not unique to Ireland, andarises for two main reasons. First,cheques are a physical instrumentand need to be physicallytransported and processed.Second, a cheque, once written,can be repudiated, leading to adelay in the time a bank is willingto give value for these funds.While the problems of the legalprofession in this regard are notunique, the Irish legal professionis a particularly intensive user ofcheques. While the professiononly accounts for around 1%of employment, it accountsfor around 8% of all chequesShatter to address Society’s annual conferenceMinister Alan Shatter will be thekeynote speaker at the 2013Law Society annual conference,on Friday 10 and Saturday11 May in Killarney. MícheálÓ Muircheartaigh has alsobeen confirmed for the 2013conference.The theme of the conferenceis ‘Firming up for the future:building legal agility and a positiveperspective’. It will take placein the Europe Hotel and Resort,Killarney.Minister Shatter will speak oncourts reform and the PersonalInsolvency Act 2012, while MrÓ Muircheartaigh will encouragedelegates to ‘Move up the fieldand face the ball – exercising apositive perspective’.The following speakers havealso been confirmed:· Simon Murphy (Barry M O’Meara& Son Solicitors)· Richard Hammond (HammondGood Solicitors)· Paul Keane (Reddy Charltonissued. The efficiency of the legalprofession could be improvedby making more use of secureand efficient electronic paymentmethods, leading to a reduction inthe reliance on cheques.While the time taken to getaccess to funds after a cheque hasbeen lodged is at the discretion ofthe banks, the requirement on thebank to make funds available thatSolicitors)· Chris Callan (Callan TanseySolicitors)· Sonia McEntee (McEnteeSolicitors).For more information onconference packages, please visitare transferred by electronic fundstransfer (EFT) is guaranteed bylaw. Under the Payments ServicesDirective, beneficiaries of EFTpayments are entitled to value for,and access to, the funds no laterthan close of the business dayfollowing the date of the paymentbeing initiated. In almost all cases,the money is visible and availableto beneficiaries at the start of thethe ‘Events’ area of the Society’swebsite.To ensure your place at theconference, you can book onlineat www.lawsociety.ie. Queriesabout bookings should be emailedto the conference organisers at:lawsociety@ovation.ie.following working day, that is,the next working day after thetransfer has been initiated.To make the ‘next-workingday-value-cycle’,transfers mustbe made by the ‘shut-off’ timefor the sending bank. This isgenerally mid-afternoon, typicallybetween 3pm and 4pm, but thiscan vary from bank to bank.Payment instructions receivedafter this daily shut-off time willbe processed on the next businessday. Solicitors should contacttheir bank to find out the precise‘shut-off’ time that applies tothem.While the regulation setsthe latest valuation times forpayments, there is nothing toprevent banks and other paymentinstitutions from offering fastersettlement times than theregulated minimum. Already, atleast one of the main Irish banksis running intra-day cycles, whichcan result in earlier availabilityof funds for beneficiaries. It isexpected that this will becomemore available, generally, in thecoming years.In most cases where bothsender and beneficiary are withthe same bank, the funds willbe immediately available to thebeneficiary once the transfer ismade.In the coming weeks, theCentral Bank will publish theNational Payments Plan, whichaims to modernise the waywe make payments in Ireland.Ireland is one of only four majorEuropean countries where chequeusage is widespread, and one ofthe major goals of the plan will beto greatly reduce this usage.The plan presents a strategicroadmap for transformingpayments in Ireland, and a visionof Ireland joining those countriesthat are at the forefront ofpayments in Europe. However,the realisation of this vision willrequire the full commitment of allareas of the economy, includingthe legal sector.Solicitors interested in learningmore about how to take fulladvantage of electronic paymentsshould contact their bank.

8 newsLaw Society Gazette www.gazette.ie April 2013Avail of free iPad clinics and discountsThe Diploma Programme hasannounced that it will be providingfree iPad clinics, in conjunctionwith Apple retailer Compu b, atthe Education Centre, BlackhallPlace, in the coming months.In addition, Compu b willbe offering discounts to allDiploma Programme students onaccessories and devices.These free iPad clinics arecarefully designed around themesand content that will reveal howto get the best out of your tabletusing the most apt software.Clinics• Thursday 9 May (6pm to7.30pm) – Introduction to iPad(advanced): topics and appsinclude organise my iPad, emailmanagement, note management,GoodReader, Pages, and more.• Wednesday 5 June at 6pm to7.30pm – Using the iPad as awork tool in practice: topics andapps include iAnnote, LogmeIn,Dragon Dictate, TrialPad,Scanner, Notebook, Penultimate,VAT app, and more.Compu b will introduce theiPad set up, iTunes and thedownloading of relevantapplications. Specialised ITDACBeachcroftexpandsThe Dublin office of internationallaw firm DAC Beachcroft hasannounced that it will beexpanding soon “in response toincreasing client demand”. Theexpansion is expected to createup to ten new jobs.The firm, which is basedat Fleming Court, Dublin 4,recently increased the numberof staff serving its employmentlaw section, bringing the firm’snumber of employees from 29 to39, including 12 partners. TheDublin office opened in March2009, with just one partner.personnel will be available toanswer queries and help insetting up iPads to operate asa personal and professionalinformation manager.Attendance is free to DiplomaProgramme students, butpre-registration to secure aplace is essential. Email theDiploma Team at diplomateam@lawsociety.ie. Regular clinics willfollow over the coming months –further dates will be released onthe website.DiscountsIn addition, Diploma Programmestudents can claim certaindiscounts from Compu b, asfollows:· 10% off all non-ApplePut a ‘PIP’ in your step!The recent introduction ofthe Personal Insolvency Act 2012has led to major reform in thisarea of practice. In order toprovide practitioners with thekey skills required to become apersonal insolvency practitioner,the Law Society’s DiplomaProgramme has launch its newPersonal Insolvency PractitionerCertificate.The course begins in Apriland comprises four full days oflectures and workshops spreadover two weekend sessions(Friday and Saturday). Lecturesmay be accessed by webcast, butattendance at workshop sessionsis mandatory.Full details, including theapplication form and dates, areavailable on our website, www.products in Compu b· 5% off all Apple accessories· 3% off all devices to DiplomaProgramme students andlecturers.To avail of these offers, simplyemail: diplomateam@lawsociety.ie. The team will supply a letterto Diploma Programme students,which should be presented toCompu b in order to receive thediscounts.The Gazette will publish aniPad article by solicitor DorothyWalsh in the May issue. She willgive key tips on getting the bestout of the iPad – and the softwareshe finds most useful in meetingthe demands of being a busylawyer.lawsociety.ie/diplomas.Please note that, in the opinionof the Insolvency Service ofIreland, an individual whocompletes this course of studyand passes the exam will havemet relevant knowledge criteriafor submitting an applicationfor authorisation as a personalinsolvency practitioner.Spotlighton EUstructuralfunds‘Community living for all’is the title of a forthcomingconference on the future role ofthe European Union structuralfunds in advancing communityliving for older people andpeople with disabilities.The conference is being runin association with the IrishPresidency of the Council ofthe EU and will take place onFriday 3 May 2013 at ÁrasMoyola, National University ofIreland, Galway from 9am to5.30pm.The event is timely, giventhat new regulations governingstructural funds are due tobe concluded in 2013. Theconference will be co-directedby Prof Gerard Quinn (NUIGalway) and Senator KatherineZappone (Seanad Éireann).Speakers will be drawnfrom a variety of EU-levelinstitutions, including theEuropean Commission, EUFundamental Rights Agency,European Group of NationalHuman Rights Institutionsand the United States FederalAdministration for CommunityLiving.European-level civilsociety groups and the UnitedNations Office of the HighCommissioner for HumanRights (European Region) willbe represented. The growingrole of European philanthropyin community living will berepresented by the EuropeanFoundation Centre.The conference, open toall, will cost €40. All queriesshould be addressed to SuzanneDoyle, Centre for Disability Lawand Policy, National Universityof Ireland, Galway, by email:suzanne.doyle@nuigalway.ie,tel: 091 494 273. Registrationcan be made at www.conference.ie/Conferences/index.asp?Conference=215.

Law Society Gazette www.gazette.ie April 2013 NEWS11Statutory obligations on personal representatives of estatesThere are a number of statutoryobligations on legal personalrepresentatives – whetherexecutors or administrators– to notify particular bodiesor persons of the death of adeceased and/or to furnishinformation regarding the estateor entitlements to the estate.The Society’s Probate,Administration and TrustsCommittee has put togetherthe following checklist, whichis intended to be a guide to theobligations. It does not purportto be a conclusive guide to allrequirements. Appropriateregard should be had to thelegislation regarding the matter.1) Executor’s year: executorshave, in general, a yearfrom the date of death ofthe deceased within whichthey cannot be compelled todistribute an estate (section62 of the Succession Act 1965).There are exceptions to therule, which may extend orreduce the period.2) Social welfare payments:a) The legal personalrepresentative must furnish acopy of the schedule of assets(sometimes referred to asthe CA24 or Inland Revenueaffidavit) to the Departmentof Social, Community andFamily Affairs where adeceased was in receipt ofsocial welfare assistance. Thisobligation arises where thedeceased was in receipt of anysocial welfare assistance at anytime (section 339 of the SocialWelfare (Consolidation) Act2005).b) The legal personalrepresentative must notify theMinister for Social Protectionof their intention to distributethe assets of an estate threemonths before commencingthe distribution in thecircumstances at (a) above.c) Once notified, the ministeris obliged within this periodof three months to notify thelegal personal representativethat a sum of money is dueto the department. If sucha notification is received,then the legal personalrepresentative must retainassets sufficient to dischargethis liability.d) If a legal personalrepresentative fails in hisduty to notify, then the legalpersonal representative canbe held personally liable forany such payment due (section339(3)).e) A statutory notice tocreditors will not provideprotection to the legal personalrepresentative from theirobligations under section 339.3) Nursing Home Support Scheme‘Fair Deal’: the legal personalrepresentative is obliged tonotify the HSE not less thanthree months in advance oftheir intention to distributethe estate (section 27 of theNursing Home Support Act2009). Note that this is inaddition to the obligationto notify the Department ofSocial Protection. It ariseswhere the deceased was inreceipt of ancillary Statesupport. In addition, pleasenote that there is an obligationon the personal representativeto furnish them with a copy ofthe Inland Revenue affidavitalso.4) Capital Acquisitions Tax:since 14 June 2010, the legalpersonal representative nolonger has any secondaryliability for the dischargeof CAT on an estate, savewhere they have beennotified by Revenue of suchobligation. The legal personalrepresentative, however,retains this secondary liabilityin the case of non-residentbeneficiaries. This liabilitycan extend to solicitorsacting for the estate. Theobligation of the legalpersonal representative in suchcircumstances is limited to theassets of the estate under theircontrol (see section 45 AA CATConsolidation Act 2003). Thereis provision to afford someprotection to the legal personalrepresentative in circumstanceswhere the legal personalrepresentative notifies Revenuein advance of an intentionto distribute the assets of anestate (the ‘one-month’ letter.Note, however, that same canonly be sought and relied uponwhen “reasonable enquiries”are made and the solicitor/legal personal representative“makes a reasonable effortto ascertain the extent of theproperty”). Further, note thatthe Revenue will not thenseek to enforce secondaryliability except to the extentof any property remainingunder the solicitor’s control.Therefore, these provisionsare limited and care shouldbe taken when dealing witha non-resident beneficiary orlegal personal representativeor acting as the agent for suchperson.5) Spouse’s/civil partner’s legalright share: the legal personalrepresentative must notify thespouse/civil partner in writingof their right of election undersection 115(4) of the SuccessionAct 1965. The spouse/civilpartner then has six monthsfrom such notification, orone year from the date ofextraction of the first grant ofrepresentation to so elect.6) Spouse’s/civil partner’s rightof appropriation: the legalpersonal representative mustnotify the spouse/civil partnerin writing of their right toappropriate the dwellinghouse under section 56 of theSuccession Act 1965.7) Ex spouses/civil partners: thelegal personal representativehas certain obligations inrespect of divorced couplesand those who have obtaineda judicial separation. Undersection 18(6) of the FamilyLaw (Divorce) Act 1996 “thepersonal representative of adeceased spouse in respectof whom a decree of divorcehas been granted shall make areasonable attempt to ensurethat notice of his or her deathis brought to the attention ofthe other spouse concerned”.Similar provisions exist undersection 15A(6) of the Family LawAct 1995 in relation to spouseswho are judicially separated, andunder section 127(7) of the CivilPartnership and Certain Rights ofCohabitants Act 2010.

12 analysisLaw Society Gazette www.gazette.ie April 2013professioNal privilege notextended to noN-lawyersA recent English Supreme Court decision highlights the importance of clients instructing lawyers when obtaininglegal advice if they wish to claim privilege in subsequent proceedings, write Liam Kennedy and Davinia BrennanLiam Kennedyis a partner inA&L Goodbody,specialising inlitigation and is aLaw Society CouncilmemberDavinia Brennanis a professionalsupport lawyer inA&L Goodbody,specialising inlitigationVarious non-lawyers andconsultants offer quasilegaland regulatory advicein areas such as property, bankingand employment. Clients shouldbe aware that advice from andcommunications with non-lawyerswill generally not be privileged andmay be discoverable in any civil orregulatory litigation. If an issue islikely to be contentious, lawyersshould be involvedas early as possibleto ensure that theclient’s position is notprejudiced.ImplicationsIn R (on the applicationof Prudential plc andanother) v SpecialCommissioner of IncomeTax and Another (23January 2013), theEnglish SupremeCourt refused toextend the scope oflegal advice privilegeto tax advice givenby accountants(as opposed tolegal advice byqualified lawyers on tax issues).The accountants’ advice hadto be disclosed to the RevenueCommissioners. The decisionconfirms the common law position:legal advice privilege only appliesto confidential lawyer/clientcommunications. The ruling isconsistent with Irish common law.‘Lawyers’ in this context includessolicitors, barristers, foreign lawyers,and in-house counsel. However,the position of in-house counselis complicated when dealing withEU competition law issues. TheAkzo Nobel decision confirmed that“Avoid givinglegal andbusiness advicein the samecommunication,which will callinto questionwhether thedominant purposewas of a kindthat would attractprivilege”communications within a companywith in-house counsel are notprivileged in European Commissioncompetition investigations.Accordingly, confidential legaladvice from in-house counsel isgenerally considered privileged inthe context of Irish domestic law,but not under EU competition law.Although the common lawposition in Ireland and England issimilar (legal adviceprivilege does notcover communicationsbetween clientsand non-lawyers),Prudential would stillhave been decideddifferently in Ireland.The statutory rightof the RevenueCommissioners todisclosure is subject todifferent exceptionsin Ireland. Undersections 900-905 ofthe Taxes ConsolidationAct 1997 (as amendedby the Finance (No2) Act 2008, section92), the client is notrequired to discloseinformation if a claim to legalprofessional privilege could bemaintained in legal proceedings. Asimilar exemption applies in Britain.However, in Ireland, there isanother, broader, exemption. Thelegislation also exempts fromdisclosure confidential professionaladvice given to a client (other thanas part of a dishonest, fraudulent,or criminal purpose). Accordingly,in Ireland – unlike Britain –confidential tax advice from anaccountant would be exemptfrom disclosure to the RevenueCommissioners under the 1997 act(as amended). However, as suchconfidential professional adviceis not protected by legal adviceprivilege, it may be discoverable inother legal contexts.Prudential concerned legal advicealone. A non-lawyer’s work productmay be protected by litigationprivilege if it was prepared for thedominant purpose of preparing foractual or contemplated litigation.It would be better for such advice tobe commissioned by and renderedthrough lawyers in the context of thelitigation, in order to show that suchwork product was in fact preparedfor the dominant purposes of thelitigation.The appealThe specific issue was whetherPrudential could refuse to disclosedocuments in response to astatutory notice to producedocuments in connection withits tax affairs, on the groundsthat they were covered by legaladvice privilege. The legaladvice was given by accountantsPricewaterhouseCoopers in relationto a tax-avoidance scheme. Thisraised the question as to whetherlegal advice privilege should beextended to legal advice given bya non-lawyer. Litigation privilegedid not apply, as the advice was inrelation to a non-contentious issue.The Supreme Court dismissedPrudential’s appeal by a majorityof five to two. Lord Neubergerconcluded that legal advice privilegeshould not be extended to coveradvice by professionals other thanlawyers, even where that advice islegal advice that the professional isqualified to give. He reached thisconclusion for three reasons:• Legal advice privilege currently

Law Society Gazette www.gazette.ie April 2013analysis13The English Supreme Court: only lawyers’ advice is privilegedhas clearly defined limits.To declare that legaladvice privilege shouldbe determined not by theprofession to which theadviser belongs but by thefunction he is performing(that is, advising on law)would carry an unacceptablerisk of uncertainty and lossof clarity.• The question whether legaladvice privilege should beextended to legal adviceby non-lawyers raisespublic policy questions forparliament.• Parliament legislated onthe assumption that legaladvice privilege only appliesto advice by lawyers, and itwould be inappropriate forthe court to extend the law.Tips for preserving privilegeThe decision is a salutaryreminder of the need for clientsto instruct qualified lawyerswhen seeking legal adviceif they wish to claim legaladvice privilege in subsequentlitigation. Practical tips forpreserving legal advice privilegeinclude:• Involve lawyers as earlyas possible to reduce thelikelihood of any prejudicialcommunications beingsubject to disclosure.• Identify the ‘client team’within a company whoserole it is to request andreceive legal advice fromlawyers and limit thedissemination of the legaladvice beyond this group asmuch as possible.• Label any request for legaladvice ‘privileged andconfidential’ or ‘for thepurposes of legal advice’.The presence or absenceof such terminology is notconclusive, however.• Ensure legal advice is notforwarded unnecessarily toany third parties and thatany such provision to thirdparties is on a basis thatdoes not lead to a waiver ofprivilege.• Avoid giving legal andbusiness advice in the samecommunication, which willcall into question whetherthe dominant purpose wasof a kind that would attractprivilege. G

14 analysisLaw Society Gazette www.gazette.ie April 2013unsustainable, untenable,indefensibleChief Justice Susan Denham pulled no punches at a recent Department of Justice seminar on the establishmentof a Court of Appeal. Lorcan Roche reportsLorcan Roche isan award-winningwriter andjournalistSpeeches by attorneys generaland chief justices to members ofthe legal profession tend to berestrained. If and when the Minister forJustice is in attendance, the speechestend to acquire an achingly diplomaticnote. Phrases such as “systemic failure”and “things are getting worse” tendnot to be uttered. The speeches aregenerally not described afterwards as“powerful” or “impressive”. The pressreleases that follow are rarely headlinedin one word. Rarely, if ever, is that oneheadline delivered in bold.But, in a radical departure fromreceived protocol, the speech by ChiefJustice Susan Denham to, amongothers, Minister for Justice AlanShatter and assorted members of theprofession at Blackhall Place (at the 2March seminar on the establishmentof a Court of Appeal), was headlined‘Unsustainable’ – and it was far fromrestrained.“The current situation in theSupreme Court and the Court ofCriminal Appeal,” she stated in heropening salvo, pausing to granteach word maximum effect, “isunsustainable, untenable, and simplycannot be defended.”She continued: “Anappeal, certified asready yesterday, is indanger of not getting adate for hearing in theSupreme Court untilmid 2017.”The Chief Justiceexplained that a“striking feature” ofthe 2012 SupremeCourt workload wasthe increased numberof varied motions thatthe court had had todeal with: “There hasbeen an increasingtrend in recent yearsfor applications forstays, which are time consuming todeal with. This has an impact onThe speakers gathering immediately before the seminar were (l to r): Chief Justice Susan Denham, Attorney General MáireWhelan SC, Bar Council Chairman David Nolan SC, Advisor to the Minister Thomas Cooney, the chairman Professor GerryWhyte, Law Society Director General Ken Murphy and Minister for Justice, Equality and Defence, Alan Shatter TD“The Chief Justicepulled absolutelyno punches asshe describedthe effect on theeconomy, andon our society,of the delays,in particularwith regard tocommercialdisputes”the waiting time for appeals. Theprevious practice of listing shorterappeals on a Friday has, very largely,had to be discontinued as a resultof the burden of theincreased motion list.”Then, inwonderfullyunrestrained language,the Chief Justice said:“The structure ofthe superior courtsin Ireland was simplynot designed to copewith the volume andcomplexity of thelitigation comingbefore the courts inthe 21st century.”Effective rule oflaw, she explained,was being thwarted bydelays, lack of reform,bottlenecks and overallsystemic failure.Denham, who was chair of the2009 Working Group on a Court ofAppeal, noted how there had beenincreases in the volume of cases, inthe number of High Courts and thenumber of judges, but, incredibly, noparallel increase at the appellate level.“This creates a bottleneck … thestark reality is that the SupremeCourt does not have the capacity toprocess promptly the volume of civilcases appealed from the High Court.”The complexity of cases, shesaid, was also a “significant factor”when considering the work laidbefore the Supreme Court. Casescommonly raised complex issuesunder Irish statutory, regulatoryand constitutional law. Often, theyfurther raised “complicated issues”of EU law. Also, the court wasreferred “frequently” to the EuropeanConvention on Human Rights, the

Law Society Gazette www.gazette.ie April 2013 analysis15jurisprudence from Strasbourgand relevant law in otherjurisdictions. “Consequently,while a case may be listed forsome days of oral argument,the significant volume of worktakes place before and after thehearing. The work in open courtthus reflects an ‘iceberg principle’– the vast volume of work ishidden.”Certain initiatives havebeen introduced to address theproblems, including:• Micro-management (wherebycases are listed before a judgeat 9.30am and are managedwith the assistance of counsel),• Arbitration/mediation,• Case management, and• Increased and wider use of IT.minister reiterates court of appeal commitmentSpeaking before the Chief Justicetook to the podium, Minister forJustice Alan Shatter reiteratedthe Government’s commitmentto take the necessary steps tocreate a Court of Appeal (as wellas to introduce a constitutionalamendment to allow for theestablishment of a distinct andseparate system of family courts).He said he was working on atimeframe that envisaged puttingsuch issues before the people inthe autumn.He, too, underlined the cost tosociety, and to business, of nothaving an efficient court system:But, as a consequence of whatthe Chief Justice describedas the “limited structure”of the appeals system, therewere “very serious delays”.Currently in the SupremeCourt there are 543 cases thatare certified and ready to beheard on appeal, of which71 have priority listing. Butgeneral delays now run to fouryears for an ordinary appeal –number of appeals filed2012 6052011 4992010 4662009 4992008 443“Leaving aside the obvious costsfaced by parties directly concerned,there is a cost to our reputation asa developed modern democracy.”The minister stated that the2009 Working Group on the Courtof Appeal had provided, in theirpublished report, an “excellenttemplate” for any discussion on theestablishment of a Court of Appeal.“I have no desire,” he said, “topre-judge our deliberations on theshape of that court, but I should saythat the intention is that there willbe one court, with both criminaland civil jurisdiction. Outside ofthat, I have an open mind.”“Effective ruleof law propelsprosperity. Therule of lawis, therefore,an importantconsiderationfor businesspeople andinvestors whendeciding to dobusiness in acountry”and nine monthsfor priority listing.“Withoutreform, there willbe further delays,”said the ChiefJustice, “and thesituation is gettingworse. Last year,there was a 21.2%increase in thenumber of appealsfiled.”The ChiefJustice’s mannerwas calm, very reasoned. Hervoice betrayed little or noemotion. She will never bedescribed as a ‘drama queen’. Butshe pulled absolutely no punchesas she described the effect of thedelays on the economy and onour society, in particular, withregard to commercial disputes:“Speedy resolution of disputesis important in a successfuleconomy … a failure to addressthe problems posed may bedamaging to Irish society and theeconomy.”She continued: “Effectiverule of law propels prosperity.Stronger rule of law boostsforeign investment and lowersunemployment. The rule oflaw is, therefore, an importantconsideration for business peopleand investors when deciding todo business in a country.”The rule of law, she added,is also a key indicator ofcompetitiveness, as outlined bythe World EconomicForum (Davos) in itsGlobal CompetitivenessReport 2011-13. Thatreport, she said, notesthat governancestructures, suchas an independentjudiciary and a strongrule of law, enhancebusiness confidence.Economic freedom,she said, rests onthe empowermentof the individual,non-discrimination, and opencompetition: “But none of theserequirements can exist in asociety that lacks effective ruleof law.”She pointed to a finding ofthe European Court of HumanRights, which did not considera delay of over three years to bejustified in holding an appealhearing. And she reminded thehushed (and to a degree, mildlyastonished) assembly, that theestablishment of a permanentCourt of Appeal – which wouldhave several divisions to hearappeals in civil and criminal cases– should happen forthwith.She concluded: “All the othercommon law countries have aCourt of Appeal in their legalsystem, placed between theHigh Court and the SupremeCourt. The new Court ofAppeal should be establishedin law and provided for in theConstitution.” G

gala dinners@ Blackhall PlaceSophisticated, elegant andglamorous, The Law Society atBlackhall place is a unique venuefor your gala dinner.Whether it’s a corporate event, a productlaunch or an awards ceremony, our eventsteam here at Blackhall can facilitate your everyneed. Our services are designed to allow youto choose how best we can help to stage yourevent from conception to completion.For further details contact ourEvents Team on (01) 672 4918or email: events@lawsociety.ie

Law Society Gazette www.gazette.ie April 2013 lettersNeed for appropriate inflation index in PPO casesFrom: Joice Carthy, solicitor,Augustus Cullen Law, 7Wentworth Place, WicklowIrefer to the article ‘Payingthe piper’, published in yourMarch 2013 issue (p20).In her article, Mary Hough,when dealing with the issue ofperiodic payment orders (PPOs),comments that such paymentsare to be “linked to an inflationindex” and notes how PPOshave operated in Britain. MsHough rightly highlights thatonly following the landmarkCourt of Appeal decision inThompstone did PPOs becomepopular in Britain. This isbecause that decision effectivelylinked the index to inflation incare costs and not the generalConsumer Price Index.I feel that it is crucial toemphasise at this stage that thereport of the Working Groupon Medical Negligence andPeriodic Payments, dated 29October 2010 and referred toby Ms Hough, addressed theissue of an appropriate index indetail, both in the report itselfand in the executive summary.In that respect, at chapter 2,paragraph 2(v), it recommendsas follows: “Provision withinthe legislation must be madefor adequate and appropriateindexation of periodicpayments as an essentialprerequisite for theirintroduction as an appropriateform of compensation.“In particular, the grouprecommends the introductionof earnings and costs-relatedindices, which will allowperiodic payments to be indexlinkedto the level of earningsof treatment and care personneland to changes in costs ofmedical and assistive aids andappliances. This will ensure thatplaintiffs will be able to affordthe cost of treatment and careinto the future.”I feel it is of the utmostRhetorical question?From: Richard E McDonnell,Richard H McDonnell Solicitors,Ardee, Co LouthHere’s a rhetorical questionfor our rulers, in view of therecent sentencing (again)of Mrs Perrin: will the Governmentimportance to emphasise thatthe appropriate inflation indexmust be linked to inflation in carecosts and not the general CPI,which historically runs at a muchlower level, in order to ensureadequate compensation for theinjured plaintiffs.As a solicitor who deals witha large number of medicalnegligence claims, many ofwhich involve catastrophicnow finally relinquish control ofjudicial appointments and allowthe Judicial Appointments Board tohave the exclusive right to decideon such appointments and dropthe pretence (designed to fool theelectorate) that the process is freeinjuries and are currentlyawaiting the introduction ofPPO legislation, in the absenceof such an appropriate index,I would be strongly advisingthose clients not to participate inperiodic payment arrangements.To do otherwise, would, in myview, be to condone and indeedinstitutionalise under-provisionfor the injured party on anannual basis into the future.from political influence?Answer: of course not! This isIreland! (The land Chris Huhnemay consider moving to after hehas been released from prison inEngland for fiddling his penaltypoints.) G17PIETA HOUSESuicide Crisis Centre5k Walk / Runsupported by:4.00am Saturday 11th May, 2013Cavan TownDublin CityEnnisGalway CityKerryKildareKilkennyLaoisLimerickMayoMeathNorth Co.DublinRoscommonSligoTipperaryWaterfordWestmeathWexfordWicklowUniversity CollegeCork“different to anything I’ve ever been to!”dil.pieta.iePh: Dublin 01 6282111 Ph: Limerick 061 484444www.pieta.ie | Pieta House CHY 16913DIL Ad 187x61.indd 1 28/03/2013 09:19

18 viewpointLaw Society Gazette www.gazette.ie April 2013is possession nine-tenthsof the law?Large numbers of Irish families are in unsustainable mortgage debt, but the Government is refusing to doanything to avert an impending economic and social crisis to rival the Great Hunger, says Julie SadlierJulie Sadlier isa solicitor withmany years ofpractice experiencein commercial andproperty law. Inrecent times, she hasbeen applying herskills as a solicitor/mediator, assistingclients of PhoenixProject Ireland.She also lectures onthe Law Society’sDiploma Courseon Insolvencyand CorporateRestructuringThe greatest fears of many Irishpeople at present includelosing their family homes andtheir livelihoods. Not surprisingly,this is causing real stress for thoseaffected by unsustainable mortgageand commercial debt. Patrick O’ReillySC, in an article in The Irish Timeson Friday 8 March, pointed out thatsustainability needs to be defined bythe Central Bank, based on data easilyavailable to it from the banks.From what it sees on the ground,Phoenix Project Ireland is of the viewthat, if the data were analysed on the150,000 home loans now in arrears,they would show a very large numberof long-term unsustainable loans.Phoenix Project Ireland is a notfor-profitregistered charity andindependent law centre that providesadvice and support to holders ofdistressed home mortgages andcommercial loans from all overIreland. The people Phoenix seeshave so much mortgage and otherdebt that there is no possibilityof resolution without substantialwrite-down or repossession. To date,the Government’s policy appears,ultimately, to favour repossession.central bank and government proposalsPhoenix says that the proposalsannounced by the Central Bank andGovernment on 14 March 2013continue to fail to provide for thebasic requirements of distressedborrowers, such as:• Full independent legal andfinancial advice,• Measurable definition ofsustainability,• Prescribed detailed andtransparent resolution options,andThis is a choice that the Governmentand regulator are making, whichwill have very significant social andeconomic consequences.Many home loans that arecurrently sustainable will becomeunsustainable when shortfalls fromthe sale of ‘buy-to-lets’and other commercialloans are attachedto these properties.It would appear thatregulators are trying toget out of this problemthe same way we gotinto it – deferringto financial marketswithout regard tothe consumer or theeconomy.MARP my wordsThe Central Bank’sCode of Conduct onMortgage Arrears hasintroduced the Mortgage ArrearsResolution Process (MARP), whichbanks must use when dealing withdistressed home loans. Its onlyeffect at present, however, is to deferrepossessions.• Prescribed bank obligations tomitigate losses.Alarmingly, these proposals areremoving sometimes life-savingrestrictions (a concession introducedin the Central Bank’s Code of Conducton Mortgage Arrears 2010) on thenumber of contacts banks can makewith them. Central Bank codes areissued under section 117 of theCentral Bank Act 1989 and can befound on the Central Bank website.“If the data wereanalysed on the150,000 homeloans now inarrears, theywould show avery large numberof long-termunsustainableloans”MARP consists of the followingsteps:1) Communication with borrowers,2) Financial information,3) Assessment,4) Resolution, and5) Appeals.The MARP codeprovides that, if adistressed homeborrower engageswith their bank,repossessionproceedings areeffectively stayedfor 12 months, andif banks continueto enter intoagreements withthem, this continuesthe forbearance onrepossession.The Central Bank’sCode of Conduct forBusiness Lending to Small and MediumEnterprises 2012 and Consumer Code2012 provide some protection forcommercial and buy-to-let borrowersin their dealings with banks.Mixed messagesMARP, personal insolvencylegislation – and now Central Banktargets and a proposed updatedMARP code – are all being heldout as part of the Government’scommitment to save family homes.All of these measures fall far short ofproviding any improvement on thecurrent stalemate. The IMF worldeconomic outlook report 2012 (seechapter 3, which deals with householddebt) shows, through studies ofother countries, the negative impactof household debt on economicrecovery and the glaring need forclear prescriptive state intervention

Law Society Gazette www.gazette.ie April 2013 viewpoint 19Ireland could soon be seeing mass evictions on the scale of The Great Famineto resolve a problem of thismagnitude.In recent months, clients(whose reduced payments wereaccepted up until then) are beingdeemed unsustainable withoutreason or explanation – despiteMARP – and are put underpressure (usuallyby phone) to sellor voluntarilysurrender theirhomes, orthreatened withrepossessionproceedings.Banks showno interest inmitigating loss(ultimately borneby borrowers)related torepossession,maintenanceand sale of theseproperties. Banks seem unableto restructure either sustainableor unsustainable loans for longerthan 12 months, despite fiveyears of trying.“Banks seemunable torestructure eithersustainable orunsustainableloans for longerthan 12 months,despite five yearsof trying”The Personal Insolvency Act2012 is not yet operationalbut, as banks have a veto on allproposals, it is unlikely to assistwith the vast numbersof unsustainable loans thatPhoenix sees.The Start Mortgages v Gunndecision is creditedwith slowingdown the rate ofrepossessions, butthe legislative flaw itrelies on is expectedto be rectified, andit is likely that manymore cases will ariseunder the Land andConveyancing LawReform Act 2009.SpringboardMortgages v Fitzell,which was dealt within great detail inan article by DavidO’Neill (see Gazette, May 2012,p42) and, more recently, ILP vDuff, provide that repossessionorders will not be granted forfamily homes if banks fail toPhoenix is currently compilinga panel of solicitors andbarristers around the countryto whom it can refer clients foradvice. (Such a referral panel iscomply with MARP. This area oflaw is likely to develop.Distressed unsustainableborrowers are severely prejudicedwithout access to independentlegal advice in respect of theirproperty rights, as they arefaced with either ‘go quietly’voluntary surrender requestsor undefended repossessionPhoenix Project Ireland wasfounded in 2008 in direct responseto the debt crisis by a group ofconcerned professionals.Professional advice isavailable on aspects as diverseas legal, financial, accounting,phoenix panel of solicitors and barristersalready in place for counsellorswhere clients need ongoingpsychological support.) Anybodyinterested should email: support@phoenixproject.ie.proceedings, without resolution– as promised but not deliveredby MARP. Their only remainingexercisable right appears to beto seek every opportunity todefend repossession proceedingsand/or await sheriff executionof possession orders in the hopethat case law or, more desirably,the Government catches up. Grising from the ashespsychological, social welfare andtax concerns at its premises just offthe M7, near Portlaoise.The service is free of chargeand it is funded mostly from privatedonations. More information atwww.phoenixproject.ie.

20 viewpointLaw Society Gazette www.gazette.ie April 2013the script to pulling offa perfect inside jobAs an in-house lawyer, there are times when your client will want an objective that seems fraught withregulatory obstacles. At these times, you need to be creative. Patrick Ambrose draws the curtainsPatrick Ambrose isa solicitor at Bankof Ireland and amember of the LawSociety’s In-houseand Public SectorCommittee. Anyviews expressed hereare personal to theauthorAt the beginning of the filmOcean’s Eleven, Danny (playedby George Clooney) and Rusty(Brad Pitt) discuss the personnel theywill need for the elaborate heist. Rustysays: “Off the top of my head, I’dsay you’re looking at a Boesky, a JimBrown, a Miss Daisy, two Jethros anda Leon Spinks, not to mention thebiggest Ella Fitzgerald ever.”The referencesbecome clear wheneach conspirator’srole is revealed. Forexample, a ‘Miss Daisy’refers to a getawayvehicle, a ‘Leon Spinks’to a boxing matchupset (caused in themovie by a powerblackout), and an ‘EllaFitzgerald’ turns outto be a recording ofthe fake bank vault, in a referenceto the jazz singer’s famous USaudiotape commercials in the 1970s,in which a mere recording of her highnotes was enough to shatter a glass,prompting the slogan “Is it live, or is itMemorex?”.In much the same way, being aneffective in-house counsel involvesmany different but interconnectedformal functions and informal roles,each requiring a particular set of skills.Off the top of my head, I’d say you’relooking at a Bogey, a Jim Branigan,a Miss Frizzle, a Madiba and anAtticus, not to mention the best MaryFitzgerald ever.BogeyAt the core of the in-house counselrole is the investigator – or ‘Bogey’,in honour of Humphrey Bogart’sportrayal of fictional investigatorsSam Spade and Philip Marlowe.Although valiant investigators of the“New legalobligations strewthe ever-changingregulatorylandscape likeautumn leaves inVallombrosa”film noir genre often succeed becauseof their uncanny ability to unearththe critical facts that ensure thatjustice is done, the reality for in-housecounsel is less glamorous. However,reputational damage to, or officialsanction against, the client can beprevented by asking open, probingquestions about suspect actions, andwhen issues arise that have potentiallegal consequences,it is often the Bogeywho will persuade keydecision makers topursue the matter. LikeKipling, a Bogey hassix honest serving men:“What and Why andWhen and How andWhere and Who.”Jim BraniganAlthough an inhousecounsel must be a teamplayer working towards the overallobjective, he or she must be preparedto function as policeman of a client’sconduct. Here, reference is made towell-known member of An GardaSíochána and urban legend Jim ‘Lugs’Branigan (although a less physicalstyle than that allegedly favoured byGarda Branigan is recommended).Neither a ‘yes man’ nor a ‘naysayer’,a Jim Branigan must operate witha strong degree of independence,slowing decisions down until facts areclarified and, on occasion, saying ‘no’if no legitimate actions are possible.Miss Frizzle‘Miss Frizzle’ refers to theenthusiastic teacher made famousby the Magic School Bus series ofchildren’s books and is used hereto refer to the in-house counsel’srole as educator. In this role, inhousecounsel has a responsibility toinform decision makers about keylegal developments and introduceprogrammes to educate employeesat all levels about what they can andcannot lawfully do in pursuit of theentity’s objectives. This function isparticularly important now, whennew legal obligations strew the everchangingregulatory landscape likeautumn leaves in Vallombrosa. It isin this role that in-house counsel canencourage debate about the directionthe entity is taking and guide ittoward the adoption and consistentimplementation of best practices.MadibaAlthough an in-house counsel’sultimate duty is to the company orpublic sector body it is employedby, and not to the decision makerswithin it, an honest and candidrelationship with these decisionmakers is essential. In a broadsense, in-house counsel have arole as counsellor, often referredto as the ‘lawyer-statesman’ role,that involves not just technicalproficiency in legal matters, butpractical wisdom: sound judgmentbased on an understanding of thehistory, culture and ethos of theentity, and the ability to understandboth short-term advantage andlong-term implications. Who better,then, to epitomise the role of lawyerstatesmanthan Nelson Mandela,often affectionately referred to bythe name of his Xhosa tribe, Madiba.AtticusAtticus Finch, the protagonist ofHarper Lee’s Pulitzer Prize-winningnovel To Kill a Mockingbird, hasserved both as a moral hero for manyreaders of the book and as a modelof integrity for lawyers. But it is forhis courage, conviction and empathy

Law Society Gazette www.gazette.ie April 2013 viewpoint21in acting for hisclient that werefer to him here.In particular,his advice – that“You never reallyunderstand aperson until youconsider thingsfrom his point ofview, until you climb inside ofhis skin and walk around in it” –could be adopted as the motto ofin-house counsel in dealing withtheir clients. Whatever the adviceyou give, in-house counsel musthave the emotional intelligence“Off the top ofmy head, I’d sayyou’re looking ata Bogey, a JimBranigan, a MissFrizzle, a Madibaand an Atticus,not to mentionthe best MaryFitzgerald ever”Pulling off the inside job is ultimately measured by how successfulyou are at keeping your client from falling foul of the authoritiesto know what itis that the clientactually needs, andto strive to meetthat requirementin a way thatbrings clarity andcertainty.Mary FitzgeraldWhether you are employed bya corporate or public sectorentity, there are times when yourclient will want to achieve anobjective that seems fraught withlegal or regulatory obstacles. Itis at these times that your clientneeds in-house counsel to be acreative problem solver. Someonelike RTÉ’s Mary Fitzgerald:the Montrose MacGyver whocould fashion anything fromrockets to dollhouses from theresources available, often anempty washing-up liquid bottleor a discarded toilet roll. Because,ultimately, that’s why in-housecounsel is there: to provide thebest practical solutions to achievethe desired objective within theconstraints that are presentedbefore it. In this role, in-housecounsel can add real value bygiving decision makers a range oflegitimate options with differentdegrees of risk, explaining theadvantages and disadvantages ofeach and, after careful analysis,making recommendations.Just like the heist in Ocean’sEleven, pulling off the inside jobis ultimately measured by howsuccessful you are at keepingyour client from falling foul ofthe authorities. And while it isnever possible to be all thingsto all clients, adopting theseessential roles in a dependableand professional way will helpyou keep your client one stepahead of the law. G

22 cover storyLaw Society Gazette www.gazette.ie April 2013Where’s theBEEF?The recent ‘horse burger’ scandal has thrust food fraud into the media spotlight and causedEurope’s food producers and safety regulators to undertake a radical review of how theprocessed food supply chain is policed. John McCarthy saddles upJohn McCarthyis a partner withMcCarthy &Co, Solicitors,Clonakilty, Co Cork(www.mccarthy.ie)with a particularinterest in the areaof food lawfraud’ is the deliberate andintentional substitution, addition,tampering, or misrepresentationof food, food ingredients, or foodpackaging, or the use of false or‘Foodmisleading statements about a foodproduct for economic gain.Apart from good old-fashionedcounterfeiting, some of the more commonploys relied upon to dupe consumers are:• Species swapping (such as farmed salmonbeing sold as wild),• Simulation (such as diluting a premiumproduct with a cheaper ingredient),• Ethical deception (such as purportingthat battery-reared animals have beenorganically produced), and• Origin fraud (such as holding out produceimported from other countries as being ofIrish provenance).Such practices are nothing new, withprosecutions for the adulteration of wine recorded inannals from ancient Greece and Rome. In Britain in the19th century, the practice became so widespread, andthe substances used so harmful to human health, thatnumerous acts, such as the Sale of Food and Drugs Act 1875(which, incidentally, still remains on our statute books)were passed to proscribe activities such as the adulteration“Perpetratorsof food fraudare also liableto infringe theprovisions ofsection 43 ofthe ConsumerProtection Act2007”of bread with alum and chalk, beer with strychnine, andboiled sweets with lead, copper or mercury salts.In more recent times, there has been a worrying rise inthe phenomenon, due mainly to the globalisation of foodproduction and the willingness of opulent western societiesto pay a premium for foodstuffs that are perceived to behealth inducing or of a superlative quality –whether gustatory or ethical.One estimate, based on a survey carriedout by Britain’s Food Standards Agency,suggests that 10% of the food productspresently sold to consumers in thatjurisdiction have colourable attributes,and the United States PharmacopeialConvention, an independent scientific nonprofitorganisation, recently announced thatits updated database showed that incidencesof food fraud increased dramatically in 2011and 2012.Horse d’oeuvreIn an effort to tackle the rise in these illicitpractices, the Food Safety Authority of Ireland (FSAI)last year established a Food Fraud Task Force, which ismade up of representatives from a number of enforcementagencies, including the gardaí, the Customs and ExciseService, the Revenue Commissioners, the Departmentof Agriculture, the Food Standards Agency of NorthernIreland, the Health Service Executive, the Irish Medicines

Law Society Gazette www.gazette.ie April 2013 cover story 23>>> Food safety regulators will be takingFast facts> Deliberate adulteration and crossspeciescontamination present significantchallenges for European regulatory andscientific authoritiesa much more aggressive approach inattempting to identify and extirpate foodfraud from food supply chains at alllevels> Food business operators must carry outsuch due diligence as is necessary toensure that both they themselves andtheir suppliers are in full compliance withall existing labelling rules and consumerprotection codesCeci n ‘ est pas un boeuf:

24 cover storyBoard, local authorities and the Sea-FisheriesProtection Authority. The stated aim of thetask force is to act as a communications,coordination and networking group whereintelligence and research can be shared at bothnational and international levels.The consumer protection food-relatedlegislation that has been developed by theEuropean Union breaks down into two distinctcategories: those provisions aimed at theprotection of human health by proscribing theuse of ingredients that are physically harmful,and those intended to facilitate choice andprevent deception by imposing an obligationon food producers to provide informationregarding the attributes of the products offeredfor sale.The principal manner in which thislatter objective is achieved is by meansof a comprehensive labelling system.While there are a raft of individual, highlyfocused provisions regulating the labellingrequirements of certain specific categories offoods, the main piece of legislation governingthe labelling of foodstuffs in the EuropeanCommunities is EU Directive No 2000/13/EC on the approximation of the laws ofthe member states relating to the labelling,presentation and advertising of foodstuffs.The directive, which has been the subject ofseveral amendments since its original passing– and which will be repealed and supersededby Regulation (EU) No 1169/2011 as from13 December 2014 – was first transposedinto Irish law by the European Communities(Labelling, Presentation and Advertising ofFoodstuffs) Regulations 2000. These weresubsequently revoked and replaced by theEuropean Communities (Labelling, Presentationand Advertising of Foodstuffs) Regulations 2002 (asamended).Pigs in a blanketWhile the labelling obligations laid down bythe directive are quite wide ranging, in thecontext of the recent equine DNA scandal,article 6, which sets down the rules relatingto the listing of ingredients, is particularlyrelevant. Article 6(4)(a) defines an ‘ingredient’as meaning any substance, including additivesLaw Society Gazette www.gazette.ie April 2013and enzymes, used in the manufacture orpreparation of a foodstuff and still present inthe finished product, even if in altered form.Article 6(5) goes on to provide that the list ofingredients contained on a food products labelshall appear preceded by a suitable headingthat includes the word ‘ingredients’ and shallinclude all the ingredients of the foodstuff,in descending order of weight, as recorded atthe time of their use in the manufacture of thefoodstuff.Regulation 4 of the regulations provides thatany person who sells, presents or advertisesfoodstuffs in a manner that does not complywith the directive and the regulations is guiltyof an offence. Regulation 19 provides thatthe maximum tariff for any offence under theregulations is a fine not exceeding €3,000 ora term of imprisonment not exceeding threemonths, or both.Unwitting resellers of prepackagedfoodstuffs that are mislabelled may takecomfort from regulation 20(1)(a), whichprovides that, in any proceedings for an offenceunder the regulations, it shall be a defence fora person to show that he or she received thefoodstuffs as being in compliance with thedirective and the regulations, together witha written warranty to that effect. Regulation20(2)(a) goes on to provide that a statementby the manufacturer, importer or seller offoodstuffs in an invoice, or on a label attachedto the foodstuffs, or on the packet or containerin which the foodstuffs are sold, that thefoodstuffs comply with the directive and theregulations shall be deemed to be a warrantyfor this purpose.Amuse-bouchePerpetrators of food fraud are also liable toinfringe the provisions of section 43 of theConsumer Protection Act 2007, which providesthat a commercial practice is misleading if itincludes the provision of false information inrelation to any matter set out in subsection 3,and that information would be likely to causethe average consumer to make a transactionaldecision that the average consumer wouldnot otherwise make. In the context of foodfraud, those matters set out in section 43(3)that are particularly germane are certain of themain characteristics of a product, includingits geographical origin, the risks it presents toconsumers, its ingredients, and the grade orstandard of the product.Section 47 provides that a trader whoengages in any unlawfully misleadingcommercial practice commits an offence, andsection 79 sets out the possible penalties onboth summary conviction and conviction onindictment, with the latter being a fine notexceeding €60,000 or imprisonment for a termnot exceeding 18 months or both. On anysubsequent conviction on indictment for the

Law Society Gazette www.gazette.ie April 2013 cover storysame offence or any other offence under theact, the penalties rise to a fine not exceeding€100,000 or imprisonment for a term notexceeding 24 months or both.Depending on the scale and perceivedperniciousness of the fraud (bearing in mindthat the European authorities are suggestingthat organised crime gangs are at the centreof the horsemeat contamination that has beendetected), a charge could also potentially beproffered under section 6 of the CriminalJustice (Theft and Fraud Offences) Act 2001.This provides that a person who dishonestly,with the intention of making a gain for himselfor herself or another, or of causing loss toanother, by any deceptioninduces another to do or refrainfrom doing an act, is guiltyof an offence and is liable onconviction on indictment to afine or imprisonment for a termnot exceeding five years or both.And what of the remediesopen to the unwitting consumerwhose rights have beentrampled? Thus far, the equineDNA saga would appear to beconfined to the ‘yuck factor’,with no evidence to date thatthere is any risk posed tohuman health. In the absenceof personal injury, section 74of the 2007 act provides that aconsumer who is aggrieved byan act or practice prohibitedunder the act shall have a rightof action for relief by way ofdamages, including exemplarydamages, against the offendingtrader. In the event that it werelater to transpire that humanhealth had been compromised (by, for example,the contraction of a serious blood disorderassociated with the veterinary medicinephenylbutazone, which is used in horses butbanned in humans), recourse could be hadto the provisions of the Liability for DefectiveProducts Act 1991, which assigns responsibilitywithout fault to the producer of a defectiveproduct (see Gazette, Aug/Sept 2011, p24).Porky pieOn a practical level, having regard to theserious blow to consumer confidence that hasbeen wrought by the horsemeat adulterationdebacle, there is little doubt that the FSAIand other European food safety regulatorswill take a much more aggressive approachin attempting to identify and extirpate foodfraud from food supply chains at all levels.It therefore behoves – or, as our Americancousins would say, behooves – all food businessoperators to carry out such due diligence as isnecessary to ensure that both they themselves“Article 6(4)(a)defines an‘ingredient’ asmeaning anysubstance,includingadditives andenzymes,used in themanufacture orpreparation ofa foodstuff andstill presentin the finishedproduct, even ifin altered form”Maurice was distraught that the funding for the china shop franchise had been deniedand their suppliers are in fullcompliance with all existinglabelling rules and consumerprotection codes.At a policy level, this recentcontroversy has shown us that both deliberateadulteration and cross-species contaminationpresent significant challenges for Europeanregulatory and scientific authorities in termsof standardisation and accreditation of testmethods and discriminatory detection limits.It is likely that the existing legislation relatingto the labelling of foodstuffs will have to berevised to take account of relevant standardsfor cultural, religious and ethical purposes,with confirmation as to whether or not foodsare compliant with religious dietary guidelinesbeing an obvious possible future inclusionarising out of the controversy surrounding thesupply of British Muslim prisoners with foodproducts that purported to be Halal but which,in fact, contained traces of pork.In unearthing the pan-Europeanadulteration of beef products with horsemeat,the FSAI has taken the lead initiative on foodchain security and, through transparencyand accountability, has vindicated consumerprotection interests. However, as theapplication of the DNA-based testingmethods necessary to guarantee theauthenticity of multiple-species compositeproducts would present an additionaleconomic burden on the food-processingsector, the requirement to provide suchinformation to consumers would have tobe imposed by European Union law for thesystem to be meaningful and effective. GLook it upLegislation:• Consumer Protection Act 2007• Criminal Justice (Theft and FraudOffences) Act 2001• EU Directive No 2000/13/EC• European Communities (Labelling,Presentation and Advertising of Foodstuffs)Regulations 2000 (SI 92 of 2000)• European Communities (Labelling,Presentation and Advertising of Foodstuffs)Regulations 2002 (SI 483 of 2002)• Liability for Defective Products Act 1991• Regulation (EU) No 1169/2011• Sale of Food and Drugs Act 187525

26 profileLaw Society Gazette www.gazette.ie April 2013Good KingBillySolicitor Billy Glynn is currently the 125th president of the IRFU. He talks about his luckless – yet lucky –injuries that ended his promising rugby and athletics careers and about being Irish rugby supremo.Maggie Armstrong puts inMaggie Armstrongis a journalist.Her articles canbe read at www.farmstrong.ieWhen he was 24, at a time whenmost wingers are in their prime,Billy Glynn suffered a shakenspinal chord that stunnedhis whole body and endedhis rugby playing career. Hehad togged out for his local club, Galwegians, againstBlackrock. It was “a simple tackle”, he says.“I was knocked down. I was conscious. ButI was paralysed from the neck down, totallyparalysed for 48 hours.”He doesn’t recall feeling distressedor afraid in his hospital room in DunLaoghaire. “You’re in shock, so you just sitthere. You’re absolutely confident you’regoing to be okay.”He describes how the doctor came in,lifted his hands onto a sheet of timber andasked him to move two fingers. A littlemovement happened and he was told hewas going to be fine. “I was lucky, thespinal chord wasn’t severed. A couple ofdays later, I was walking around perfectlynormally. But then, you couldn’t ever playrugby football again.”He reveals no emotion at these words, though givenhis reputation for modesty, it’s possible that Billy Glynnis downplaying the effect the event had on him. Only theyear before, he had been selected for a final Irish trialand was chosen to represent his country on an under-23fifteens. Before that, he had won the Leinster SeniorCup with University College Dublin RFC – and 15“I was lucky, thespinal cord wasn’tsevered. A coupleof days later,I was walkingaround perfectlynormally. Butthen, you couldn’tever play rugbyfootball again”caps for Connaught. “Always and ever a winger”, at 5ft7 inches he was small but fast, having also been a serialathletics champion.Less glamorous roleAfter the accident, Glynn returned to a less glamorousrole in rugby – coaching. During this time, he sustaineda neck injury that, at one stage, threateneda brain tumour and which still gives himheadaches. But he refuses to mope, sayingwith the pragmatism that has marked hisdouble career as a solicitor and a rugbyadministrator: “It’s not significant, it’s justlearning to live with these things.”It’s often said that Glynn is synonymouswith Connaught rugby, whose squads hehas mentored, organised and promoted.In the year 2000, he was elected to thecommittee of the Irish Rugby FootballUnion and has since been chairman of theMedical Committee and the DisciplinaryCommittee. Today, unsurprisingly –though he does seem surprised – he holdsthe highest office in Irish rugby football,as the 125th president of the IRFU for2012/13.Despite, and perhaps by virtue of, his long-lastingaffair with rugby, Glynn has had a distinguished legalcareer. But he wasn’t always going to do either. He wasborn in 1942 to a solicitor father, James, in the Gaelicfootball heartland of Tuam where there was no rugby.He was introduced to rugby and athletics at his boarding

Law Society Gazette www.gazette.ie April 2013profile27pic: courtesy IRFU>>organised and promotedFast facts> At the age of 24, a rugby-induced spinalinjury put an end to his rugby career> Glynn is synonymous with Connaughtrugby, whose squads he has mentored,> In 2000, he was elected to thecommittee of the Irish Rugby FootballUnion and has served as chairman of theMedical Committee and the DisciplinaryCommittee> Today, he holds the highest office in Irishrugby football, as the 125th president ofthe IRFU for 2012/13

28 profileLaw Society Gazette www.gazette.ie April 2013school, Garbally Park College.When he went to UCD to study law in1961, it wasn’t his choice. “In my youngdays you did what you were told to do,” hereflects. “There were six of us in the familyand my father was a solicitor, so he said, well,you’re going to be a solicitor. That was mycareer guidance. But I actually enjoyed law. Idid it and I loved it.”After qualifying at Blackhall Place, heworked for his father at James P Glynn inTuam.Child bridegroomWhile succession might have been theobvious outcome, in 1967 – the yearhe married Margaret, whom he metwhile studying at UCD (“I was a childbridegroom!” he jokes) – he moved toGalway and opened his own practice, WilliamB Glynn.“I hired a girl and put up my name-plateand sat there waiting for the first clientto come in,” he says. Thanks to his rugbyconnections and an acute networking ability,business quickly progressed.“Rugby people are very loyal … I had agood ability to get clients and hold on tothem,” he says. These included UniversityCollege Galway (now NUI Galway), theHealth Board, a number of insurancecompanies and the cream of local business.Over 40 years, he built up the largest firm inGalway along with two other partners.What he does not tell me, and I learnelsewhere, is that William B Glynn was aremarkably modern, high-tech operationin its time. They bought their first twocomputers in 1977 and, as early as 1982, eachmember of staff had their own computer.Roddy Bourke of McCann FitzGerald, whoslice of life• Are you in good physical health?I go to the gym regularly and keep fit. That’sabsolutely cardinal in my life. And I playgolf.• Is it true you tackled Tony O’Reilly when youwere 18?[Uproarious laughter.] I did actually. I wasplaying for the first time for Connaughtagainst Leinster in Lansdowne Road. I wasconfronted by this man – Tony O’Reilly. Hewas physically a very big man, and therewas a significant tackle on the halfway line.• What is the most exciting city you havevisited as president of the IRFU?Paris. I’m not a big traveller.• What class did you fly?Ordinary. When you’ve small legs like I haveyou don’t have any difficulty.• Where are you going to be watching thedid his apprenticeship there, remembersa “production line” of secretaries tappingaway as you came through the corridor, andthe elegant lobby space, carefully stockedlibrary and conference room that put clientsat ease. He says Glynn’s “shrewdness” lay inhis ability to judge character and weigh upsituations: “Anything he touched, he appliedbusiness principles to.”In 2007, Glynn took some advice froman 82-year-old solicitor friend, FlorenceMcCarthy, at his retirement party: “Don’tmake the mistake I made. Get out now!” Hehad also realised the firmcould no longer competefor a tender against largerfirms outside Galway.They decided to mergewith Ronan Daly Jermyn,forming RDJ Glynn inGalway. “They had a veryfine firm,” he says, addingself-deprecatingly andperhaps rashly: “They hadan array of young solicitors,better lawyers than we were,better prepared to meetthe challenges facing theprofession.”For RDJ, it was anopportunity to expandoutside Cork. For Glynn,it was an exit strategy at aprecarious time. “And, of course, then we hitthe downturn, so I was skipping down thestreet!”CombativeNow, at age 70, Glynn is robust, affableand razor sharp. He is as much a raconteuras he is a serious strategist. He is neverFrench game?From the touchline.• Do you use Twitter?My nearest thing to technology is a phonein which I have my diary and all my emails.I’m not a Twitter person. Twitter gets you intotrouble!• What are you reading at the moment?Robert Hughes: The Fatal Shore, about thetransportation of Irish and British convictsto Australia in the late 18th and early 19thcenturies.• Are you religious?I go to Mass every Sunday, though I missed oneor two there with the rugby weekends. I wouldn’tthink I’m a particularly religious person.• What is your favourite dish?Tagliatelle carbonara. Because I’m ableto cook it myself.“I was playingfor the first timefor Connaughtagainst Leinster inLansdowne Road.I was confrontedby this man – TonyO’Reilly. He wasphysically a very bigman, and there wasa significant tackleon the halfway line”pessimistic, but he does seem a littledisillusioned with the legal profession.Although he remained for five years as aconsultant at RDJ Glynn and still checks inevery day, he says: “I’m glad I’m out of it[the law]. It’s much more competitive now.You have to work twice as hard, for half themoney, and ten times the responsibility.”When one of his two sons began studyinglaw, he “talked him out of it”, saying thatthere were easier ways of making a living,with a better quality of life.Although he says he “wouldn’t have beenanything else” other thana solicitor, the sportsmanadmits to enjoying themore combative aspectsof handling cases. Glynnretired as Revenue Sherifflast summer, an officehe held for 26 years intotal. “I was largely alitigation lawyer all my life.Litigation involved quitea bit of confrontation, andthis ability to deal withconfrontation equippedme well for the position ofRevenue Sherriff.”Irish rugby is in its 16thyear in the professional era,and Billy Glynn agrees ithas been an interesting one.“We’re having a bit of an up-and-downseason as you can see. However, I can’tinfluence that – only the players can. Welack … consistency … that’s the word.”Talking tacticsIt is the eve of the Six Nations matchagainst France when we meet, but before weget onto tactical matters, he wants to talkabout the long-term. Finance is the biggestchallenge in the IRFU, and Glynn is veryanimated about the big structural changesthat will take place.Irish rugby is split like the layers of anonion between national (professional),provincial (professional) and club(domestic). The next IRFU strategicplan will provide for the greaterprofessionalisation of the overseeing ofthe provincial game, and the running andmanagement of the game at national level.The IRFU hopes to appoint a director ofthe professional game – “a rugby person… a really high-powered individual – and anew board for the professional game, to dothe work that volunteers have been doing”.Glynn hopes to see an embargo on payingplayers in the domestic game, as it gives riseto “peer pressure to pay” within the clubsand costs the clubs about €4 million a year.Such an embargo will allow clubs to put

Law Society Gazette www.gazette.ie April 2013 profile 29“The next IRFUstrategic planwill providefor the greaterprofessionalisationof the overseeing ofthe provincial game,and the running andmanagement of thegame at nationallevel”pic: lensmen photographic studiothe money towards improving facilities andpaying coaches to make rugby coaching aviable employment opportunity.So what are the big highlights of his yearin office? For Glynn, they are less the headyclashes of the international spectacles thanthe ordinary, untelevised experiences. “Whatit did give me was a great opportunity togo around the country to the small clubs,”he explains. “It’s fantastic, the enthusiasmwith which they’re playing, the effortthey’re putting into recruiting players, andnurturing them.”When asked what he will do after hestands down in July 2014 (he must serve ayear as immediate past-president), he sayswith characteristic precision: “I’ll go back tomy club then. My club is my first love, afterMargaret and my sons Barry and Richard.I’m looking forward to that. I love clubrugby because club rugby is the heart ofIrish rugby.”I ask him what his most memorablesporting moment is. It is a modest event, onethat pre-dated his injury, and one that gives asense of his dynamism and utter drive.“I had an experience once that was veryinteresting,” he begins. “I was 21 and I gotup one Sunday morning, had my breakfastand went to Mass. I went to the golf cluband played 18 holes of golf. I won thecompetition. I then had a quick lunch andmy father drove me to Castlebar. I competedin the heats for the 100 yards and the final;the heats for the 220 yards and final; thelong jump, qualifying and jump-off; and thetriple jump, qualifying and jump-off. And Iwon all four. I then came home, went to thegolf club and played mixed foursomes, nineholes with a lady – and we won that.• Will Declan Kidney see his contract renewed?Declan is a great coach. He’s been verysuccessful. He has served his province andcountry well and has a lot more to contributeto the game.• Is Brian O’Driscoll about to retire?He’ll decide that. But after 14 years, Isuppose we couldn’t blame him if hedecided to take a rest. I don’t know whetherthere’ll ever be a player like him again. He’snot just a good guy on the field. He has ahuge impact and influence on all aroundhim off the field.• What younger players are showing promise?A young fellow from Belfast called IanHenderson. I think he’s probably the bigrising star in Irish rugby.• What would you say of violence in rugby?One thing we have in the game is greatdiscipline. You do get the odd incident, arush of blood to the head. That will happen,and they pay the penalty.• Can Ireland host a World Cup?I’ll be bitterly disappointed if it doesn’thappen. I’m very optimistic that we’re goingto mount a very strong tender.“Then, at ten o’clock, I went for a run andran six miles. I ran way out into the country onthe road and there was nobody around. It waspitch dark, and I just ran and ran and ran andran. I’d say I could have kept running…” Grugby quiz• What do you make of drink sponsorship forsporting events?That’s becoming a bit of a live issue. The wayI look at it is that sport needs support. It’s notthe sponsorship of sport that’s causing bingedrinking. It’s a very poor substitute to properlegislation for drinking to say: “We’ll do it bygetting rid of drink sponsorship.”• Is the women’s team as good as the men’s?We are punching way above our weight.They’re a great bunch of girls, quite a fewex-Gaelic footballers on the team. We’replanning to have a sevens squad that willgo to the Olympic Games and we’re going toinvest very big money in ladies’ rugby.• Can we make the sport less treacherous?I do not accept it is treacherous, but if itwere seen to be, then it could be dealt withby changing the rules – but you have to becareful you don’t change the character of thegame. When you consider the training thatthe players get, it prepares them for that levelof combat.• What values must rugby promote?A spirit of participation, togetherness andcamaraderie.

30 litigationLaw Society Gazette www.gazette.ie April 2013I heard it through thegrapEvineA recent High Court judgment in a case that hinged on the admissibility of hearsay evidencemay have significant repercussions for banks, especially those that have outsourced themanagement of their loan portfolios. Seán Groeger asks: ‘What’s going on?’Seán Groegeris a solicitor inthe Banking andFinancial ServicesGroup of LavelleColeman, Dublin 2Mr Justice Michael Peart’s judgment inBank of Scotland Plc v Julia Stapletonhas highlighted the significance ofthe rule against hearsay evidencein the context of repossessionproceedings. Justice Peart held that,in the circumstances, evidence of a debt was required froman officer or partner of the financial institution concerned.Hearsay is evidence of a statement made otherwisethan in court, which is offered as proof of its content. Inthe narrow and commonly understood sense, a witnessmay not generally relay that which another person said onanother occasion as evidence of the truth ofwhat that latter person said. This evidenceis hearsay and is usually inadmissible.In this case, the plaintiff had obtaineda judgment in the Circuit Court against thedefendant for possession of a dwellinghouseafter the borrower had fallen into mortgagearrears. The borrower had granted amortgage over the relevant property toBank of Scotland Ireland Limited (BOSI).However, all assets and liabilities ofBOSI, including the mortgage, had beentransferred to Bank of Scotland (BOS) with effect from31 December 2010. BOS was substituted as the plaintiff on22 March 2011. The matter was appealed from the CircuitCourt to the High Court.Can I get a witness?The main issue before the court related to the applicationof the Bankers’ Books Evidence Acts 1879-1959 to BOS’soutsourced service company. BOS had no physicalpresence in Ireland following the transfer of the assetsand liabilities of BOSI to BOS. BOS outsourced themanagement of its loans portfolio to an independentservice company, namely Certus.“It is interestingto note that therule of hearsayhas largely beenabolished in otherjurisdictions”An employee of the service company gave evidence inrelation to the existence of the debt on behalf of BOS.This was in accordance with a letter from BOS, dated 12November 2012, whereby the bank purported to give theCertus employee authority to give evidence on behalf ofBOS.The issue before the court was whether this letterof authority was sufficient to render the employee acompetent witness as to the arrears of the defendant’smortgage account, or whether her evidence in that regardwas inadmissible as hearsay.The defendant relied on certain provisions of theBankers’ Books Evidence Act. The actwas designed to allow the admission ofevidence on behalf of banks that wouldotherwise constitute hearsay. This easesthe burden of proving matters recorded inroutine bank accounts and records. Therecords themselves are hearsay evidence,in that they are an assertion of the debtand the state of the account by the personwho made the manual or data entry of therecord.Section 3 of the act provides that “acopy of any entry in a banker’s book shall in all legalproceedings be received as prima facie evidence of suchentry, and the matters, transactions and accounts thereofrecorded”. Further, for an entry to be admissible, sections4 and 5 of the act require that it must be proved that:• The book was, at the time of the making of the entry,one of the ordinary books of the bank,• The entry was made in the usual and ordinary course ofbusiness,• The book is in the custody or control of the bank, and• The copy has been examined with the original entry andis correct, such proof to be given by the person who hasexamined both copy and original entry.

Law Society Gazette www.gazette.ie April 2013 litigation31It was noted that the person who examinesthe copy document need not be a “partner”or “officer” of the bank; however, the actualproof of the entries in the book itself must beby a partner or office of the bank.Let’s get it onThe plaintiff had sought to rely on MooreDevelopments v First Active Plc. In Moore, asubmission was made that an official fromFirst Active Plc could not give evidence aboutaspects of the bank’s dealings with the plaintiffgroup of companies where he was not directlyor personally involved. This submission wasrejected by Justice Clarke.Justice Peart distinguished the two casesand noted that the circumstances werematerially different. In particular, he notedthat the witness in Moore was an employeeof First Active Plc. He was not, as JusticePeart noted, “an employee of some companyto whom the bank had outsourced itsmanagement of borrower’s loans”.During cross-examination, the employeeof the service company accepted that she wasneither a partner nor an officer of the plaintiffbank. Further, she accepted that she was notan employee of the plaintiff bank.>>testimony of the amount that is due by aFast facts> Hearsay is evidence of a statement madeotherwise than in court, which is offeredas proof of its content> Where a bank needs to provide sworndefendant customer, that evidence mustbe provided by an officer or partner of thebank> It is not sufficient for an employee of anindependent service company to whomthe task of collecting the debt has beenoutsourced to give evidence of the debt

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Law Society Gazette www.gazette.ie April 2013Justice Peart held that “theBankers’ Books Evidence Acts1879-1959 are of no assistanceto the plaintiff in this case.There is nothing within thatlegislation which relieves abank from the strictures ofthe rule against hearsay. Thepurpose of that legislation wasto relieve a bank of the burdenwhich would otherwise existif it was required to producethe original banker’s books incourt each time evidence as totheir contents was required tobe given.”He noted that, “while itprovides in section 3 that a copyof an entry shall be receivedas prima facie evidence, section 4 makes itabundantly clear that this is permissible onlywhere it has first been proved, and that thisproof must be provided by a partner or officerof the bank. That function cannot be delegatedto an employee of some other company“The issue beforethe court waswhether this letterof authority wassufficient to renderthe employee acompetent witnessas to the arrearsof the defendant’smortgage account,or whether herevidence inthat regard wasinadmissible ashearsay”to which the bank has outsourced, interalia, its debt collection, even where thatcompany has direct access to the plaintiff’scomputerised banking records.”Banks cannot simply delegate the task ofgiving evidence to some other person whois apprised of the relevant facts. The bank’spartners or officers must do so. There isno exception to the hearsay rules under theBankers’ Book Evidence Acts unless the termsof the acts are strictly complied with.Justice Peart found that the evidenceof the employee was necessarily hearsayand inadmissible. He also added that “thefact that it is inconvenient [for a bank]cannot absolve the bank from complyingwith the normal rules of evidence”. Toallow otherwise would, asJustice Peart noted, “be akinto a foreign bank engaginga solicitor here to collectthe debt, and that solicitorcoming to court and givingevidence as to the amountdue to the bank, having beenauthorised to do so by thebank. This is necessarilyhearsay.”Wherever I lay my hatThis judgment has significantrepercussions for banks.This is especially so wherea bank has outsourced themanagement of some or allof its loan portfolio to anindependent service company.The judgment emphasisesthat strict compliance withthe acts is necessary in orderto come within these terms.Where a bank needs to provide sworntestimony of the amount that is due by thedefendant customer, that evidence mustbe provided by an officer or partner of thebank. It is not sufficient for an employeeof an independent service company tolitigationwhom the task of collecting the debt hasbeen outsourced to give evidence of thedebt. Such evidence is hearsay and is notadmissible.At present, banks are subject to the acts.However, they date back to 1879, and therehave been significant developments in thebanking world since then. The languageused in the acts is out of date and needsto be modernised so as to take account ofmodern developments. Further, there aremany new forms of lender who are not banksin the strict sense.It is interesting to note that the rule aboutthe inadmissability of hearsay has largelybeen abolished in other jurisdictions, such asNorthern Ireland and England and Wales.In those jurisdictions, subject to certainnotices and protections, hearsay is generallyadmissible.The Law Reform Commission hasrecommended that the rule be abolished,but that judges should have discretion toexclude statements made other than incourt. As in Northern Ireland, England andWales, it was proposed that the law would bereformed to provide notices of the proposalto offer hearsay evidence. However, as ofyet, these recommendations have not beenimplemented. GLook it upCases:• Bank of Scotland Plc v Julia Stapleton[2012] IEHC 549• Moore Developments Limited & Othersv First Active Plc & Others (unreported,High Court, 9 July 2010)• R v Albutt [1911] 6 Cr App R 55Legislation:• Bankers’ Books Evidence Act 1879• Bankers’ Book Evidence (Amendment) Act195933Are you getting your e-zine?departmentThe Law Society’s e-zine is the legalnewsletter of the solicitors’ profession.The e-zine issues once every twomonths and brings news and informationdirectly to your computer screen in abrief and easily-digestible manner. Ifyou’re not receiving the e-zine, or haveopted out previously and would like tostart receiving it again, you can signup by visiting the members’ sectionon the Law Society’s website at www.lawsociety.ie. Click on the ‘e-zine ande-bulletins’ section in the left-hand menubar and follow the instructions. You willneed your solicitor’s number, which is onyour 2010 practising certificate and canalso be obtained by emailing the recordsat: l.dolan@lawsociety.ie.

34 discoveryLaw Society Gazette www.gazette.ie April 2013Kickedinto touchSean Nolan andLouise Millington-Roberts are partnersin the respectiveDublin and Londonoffices of Kerman &Co. Sean Nolan is amember of the LawSociety’s BusinessLaw CommitteeAn English Supreme Court ruling has required an online ticket exchange to disclose theidentity of sellers who had breached English Rugby Football Union ticket-sale terms.Sean Nolan and Louise Millington-Roberts collapse the maulAlandmark ruling in the English SupremeCourt last November upheld NorwichPharmacal discovery orders against anonline ticket exchange, requiring it todisclose the identity of sellers who hadcontravened the terms under whichEnglish Rugby Football Union tickets were originallysold. What implications does this decisionhave for the sports and events industry inIreland?As with many sporting organisations andrights holders in the events industry, theEnglish Rugby Football Union (RFU) hasbeen fighting a war of attrition with thosetouting – selling and facilitating the sale oftickets to its fixtures on the black market.Historically, the advertising andresale of tickets to sporting and similarevents on the black market occurredthough conventional fora, such as privateadvertisement in newspapers, street-basedticket touts, and via unofficial hospitalityservice providers. However, since theadvent of the internet, many sales of ticketsto sporting and similar events now occuranonymously through online ticket exchanges.Some sporting organisations have responded bydevoting significant resources to curb the existenceof a secondary online market in the sale of tickets totheir highly coveted sporting events. Measures includeensuring that the terms of sale prohibit the onward sale“The EnglishRugby FootballUnion has beenfighting a warof attrition withthose touting,selling andfacilitating thesale of tickets toits fixtures on theblack market”and subsequent transfer of tickets, and the vigorousenforcement of their terms of sale by policing and takinglegal action against identified ticket resellers, ticket toutsand those operating in the unauthorised pirate hospitalitysector.The proliferation of online platforms that offera facility for ticket holders to sell anonymously haspresented challenges to the sporting sectorthat, until recently, many consideredinsurmountable. However, the playingfield has been levelled, at least in Britain.One-way ticketThe landmark ruling by the English HighCourt in 2011 in Rugby Football Union vViagogo Limited represented a significantvictory for sporting organisations andrights holders who require a means todiscover the identity of an anonymousticket seller who offers for sale or sells aticket on a ticket exchange, in breach ofthe terms under which it was issued.Following subsequent appeals beforethe English Court of Appeal and theEnglish Supreme Court, those rightshave been upheld. As a result, the sporting organisationsand rights holders now have the ability to secureNorwich Pharmacal disclosure orders compelling websiteexchanges to disclose the identity of hithertoanonymous sellers, thereby paving the way to theeffective enforcement of their ticket-sale policy by

Law Society Gazette www.gazette.ie April 2013 discovery35legal action against the online sellers.In this case, the RFU sought a disclosureorder to secure the identity of thoseindividuals who had breached its terms andconditions of ticket sales by advertisingand onselling their tickets through thedefendant’s ticket exchange.The application was brought under theNorwich Pharmacal principles, which werefirst established in 1973 in the House ofLords decision in Norwich Pharmacal Companyand others v Customs & Excise Commissioners.In that case, the court stated that, if a person– through no fault of his own – gets mixed upin the tortious acts of others so as to facilitatetheir wrongdoing, he may come under a dutyto assist the person who has been wronged bygiving him full information and disclosing theidentity of the wrongdoers. Those principleshave since been accepted as forming partof the law in a number of common lawjurisdictions, including Ireland.Norwich Pharmacal orders have beensuccessfully used in various cases to obtaindisclosure of, for example, the identityof persons who have posted defamatorycomments on websites, who have mademusic available for illegal download, andthose who have been involved in peer-topeerfile sharing. In Megaleasing UK Limitedv Barrett, Chief Justice Finlay (at p504)summarised the circumstances where such aNorwich Pharmacal order should be grantedin Ireland in the following terms: “Theremedy should be confined to cases wherevery clear proof of a wrongdoing exists andpossibly, so far as it applies to an action fordiscovery alone prior to the institution ofany other proceedings, to cases where whatis really sought is the names and identity>>Fast facts> An online ticket exchange has beenforced to disclose the identity of sellerswho contravened the terms under whichEnglish Rugby Football Union tickets wereoriginally sold> The landmark ruling by the English HighCourt in 2011 in Rugby Football Union vViagogo Limited represented a significantvictory for sporting organisations andrights holders who wished to discoverthe identity of anonymous ticket sellersin breach of the original terms-of-sale oftickets> Subsequent appeals before the EnglishCourt of Appeal and the English SupremeCourt have upheld the rights of sportingorganisations and rights holders fordiscovery

36 discoveryLaw Society Gazette www.gazette.ie April 2013redress and that it was appropriate for thecourt to exercise its discretion in favour ofthe RFU.of the wrongdoers rather than the factualinformation concerning the commission ofthe wrong.”Norwich Pharmacal orders were granted inIreland in the above case and in EMI Records(Ireland) Ltd & Ors v Eircom Ltd & Anor,Duhan v Radius Television Production Limitedand Ors, Ryanair Limited v Unister GmbH andAeruni GmbH, and also featured in the recentcase of Anglo Irish Bank Corporation Limited vQuinn Investments Sweden AB and Ors.Seeking a conversionThe application by the RFU for a NorwichPharmacal disclosure order against thedefendant ticket exchange was held by theHigh Court to be both proportionate andnecessary. Of importance to the High Courtwere the following:(a) That the original purchaser and thesubsequent reseller were in breach of thecontract of sale under which the ticketwas sold,(b) That under the terms and conditionsof sale all title and rights in a ticket areextinguished in the event of a breach ofcontract taking place, and(c) That the terms and conditions of saleprovided that, in the event of a breach ofthe terms, the ticket becomes void.The High Court also foundthat, in such circumstances,the ticket reseller possiblycommits the tort ofconversion by purporting tosell on a ticket to which hehas no title. Importance wasalso placed on the fact that,under the terms of sale, entryto the event is unauthorisedwhere entry is made by aperson on foot of an invalidticket.The High Court held thatthe RFU had established agood arguable case that those individualswho had purchased tickets from the RFUand had resold those tickets (invariably at ahigher price) were in breach of contract and,as noted above, had possibly committed thetort of conversion.It also held that those purchasers whoentered the stadium having purchasedan invalid ticket in contravention of theRFU’s terms and conditions of sale weretrespassers. Accordingly, it was ordered thatthe information sought by the RFU fromthe defendant’s website as to the identityof those individuals was necessary andproportionate in order for the RFU to obtain“The proliferationof onlineplatforms thatoffer a facility forticket holders tosell anonymouslyhas presentedchallenges tothe sportingsector which,until recently,many consideredinsurmountable.However, theplaying field hasbeen levelled, atleast in Britain”Blitz defenceIn Viagogo, before the English Court ofAppeal, the defendant raised a new defencethat the granting of the Norwich Pharmacalorder would constitute an unnecessary anddisproportionate interference with therights of the alleged wrongdoers underarticles 7 and 8 of the Charter of FundamentalRights of the European Union. This guaranteesthe protection of personal data and privacyand the wrongdoer’s personal rights underthe provisions of the (British) Data ProtectionAct 1998. (By virtue of the Lisbon Treaty(Treaty on the Functioning of the EuropeanUnion) and the European Union Act 2009,articles 7 and 8 of the Charter ofFundamental Rights of the European Unionare incorporated into Irish law.)The provisions of the BritishData Protection Act 1998 atissue before the English Courtof Appeal are substantiallysimilar to those applicable inIreland under its Data ProtectionAct 1988 and Data Protection(Amendment) Act 2003. Thedata protection legislation inboth Britain and Ireland arederived from the relevant EUdirective 95/46/EC and are,therefore, subject to ultimateinterpretation having regard tothe charter.Article 8 of the charterenshrines the principle thateveryone has the right to theprotection of personal dataconcerning them and that suchdata must be processed fairlyfor specified purposes and onthe basis of the consent of thepersons concerned, or someother legitimate basis laiddown by law. The charter alsoupholds the principle that suchrights can be limited subject to the principleof proportionality.The Court of Appeal considered whetherit was proportionate to grant the NorwichPharmacal order, thereby requiring thedisclosure of the wrongdoers’ personal data.In determining proportionality, it was notedthat the RFU had established an arguable caseagainst the wrongdoers, that it intended toseek redress against the wrongdoers, and thatthe granting of an order was necessary, as theRFU had no other means of discovering theidentity of the wrongdoers.In the words of Longmore LJ: “There canbe no reasonable expectation of privacy in

Law Society Gazette www.gazette.ie April 2013 discoveryrespect of data which reveals such arguablewrongs and [the defendant’s] own conditionsof business point out to their customers thatthere may be circumstances in which theirpersonal data will be passed on to others.”The English Court of Appeal, therefore,upheld the original High Court decision anddismissed the defendant’s appeal.InterceptionThe defendant appealed the English Courtof Appeal decision to the English SupremeCourt, principally on the grounds that thelower courts had applied the wrong test inassessing the proportionality as to whether ornot to make a Norwich Pharmacal order.The defendant argued that this required abalancing of the impact that the making of thedisclosure order would have on the allegedwrongdoer, against the value to the plaintiffthat would be obtained concerning theparticular wrongdoer.The defendant sought to exclude anyanalysis of the wider implications of makingan order, such as the deterrent value that suchan order would provide to other purchasersengaging in selling their tickets on the blackmarket.The Supreme Court found that thenotion of excluding the widerimplications of the disclosureorder to be “somewhatartificial, not to say contrived”and that “it is unrealistic to failto have regard to the overallaim of the RFU in seeking thisinformation”.The Supreme Courtconcluded that the value ofthe disclosure in the widercontext must be consideredand that the deterrent valuewas a legitimate interest to befactored into the considerationof proportionality. Inconcluding that the making ofan order was both necessaryand proportionate, theSupreme Court considered thefollowing factors:· Whether or not alternativecourses of action wereavailable to the rights holder(of which there were none inthis case),· Whether the defendant knew or oughtto have known that it was facilitating anarguable wrong by the ticket holder (thedefendant had such knowledge in this case),· Whether the information could be obtainedby the RFU from alternative sources (nosuch alternative sources were available inthis case), and· The privacy rights of the wrongdoer (the“It is likely thatthe decision willdeter a significantnumber of sellersfrom engagingin sales on theblack marketthrough exchangewebsites, sinceit will now bepossible that theiridentity will bedisclosed, therebyenabling legalaction to be takenagainst them”Many sporting organisations strive to ensure thatthe price of tickets for admission to the majorityof sporting fixtures is kept to a minimum. Theability to maintain reasonable prices can onlybe achieved by applying measures to restrict theonward sale of tickets and to restrict those whocan use a ticket and gain entry to the event.Naturally, the existence of a black market withhigher ticket prices ultimately has the potentialto damage the reputational standing of thosesporting organisations that aspire to maintainticket prices at an affordable level. As the blackmarket developed and moved into cyberspace,it has become increasingly difficult for sportingwrongdoer was specifically put on notice bythe defendant under its website terms thatdisclosure of personal data may be required).Spear tackleIt would be naïve to conclude that the abovedecision will eradicate the black market forthe resale of tickets to major sporting andsimilar events. Given that the jurisdiction ofthe courts to grant a Norwich Pharmacal orderis discretionary and involvesa weighing up and balancingbetween the rights of the rightsholder and the privacy rightsof the alleged wrongdoer, itis submitted that relief willmore readily be available tothose sporting organisationsthat can demonstrate they havesufficient measures in place tocontrol the sale and distributionof tickets to their fixtures(including effective terms andconditions of sale and a policyof strict enforcement of itsrights).In this case, the RFU wasable to establish that it hadapplied a consistent policy ofenforcing its terms againstticket touts and unlicensedoperators, that it had takendisciplinary action against anymember club for any onsale oftickets allocated to the club,that it had engaged in positivemonitoring of sales via websites, and thatwhere the identity of wrongdoers had beenobtained, cease-and-desist letters had beensent accordingly.Naturally, the English Supreme Courtdecision is not binding on the Irish courts.However, given the similarity in the relevantjurisprudence and issues, it is likely that asimilar outcome would arise under Irish law.all black marketorganisations to identify those involved inselling and promoting the online sale of ticketson the black market.It is in this context that measures have beenestablished by some rights holders to ensurethat they can take adequate action againstthose involved in selling and facilitating thesale of tickets in the black market. Thosemeasures have included a contractual provisionin the terms and conditions of ticket sales thatprohibits the resale, transfer or advertisementfor sale, and the automatic voiding of thecontract in the event of breach of the terms andconditions of sale.It is likely that the decision will deter asignificant number of sellers from engaging insales on the black market through exchangewebsites, since it will now be possible thattheir identity will be disclosed, therebyenabling legal action to be taken against them.Whether it will deter the proliferation ofexchange websites remains to be seen. GLook it upCases:• Anglo Irish Bank Corporation Limited vQuinn Investments Sweden AB and Ors[2012] IEHC 379• Duhan v Radius Television ProductionLimited and Ors [2007] IEHC 292• EMI Records (Ireland) Ltd & Ors v EircomLtd & Anor [2005] IEHC 233• Megaleasing UK Limited v Barrett [1993]IRLM 497• Norwich Pharmacal Company and others vCustoms & Excise Commissioners [1974]AC 133• Rugby Football Union v Viagogo Limited[2011] EWHC 764 (QB); [2011] EWCACiv 1585; 2012] UKSC 55• Ryanair Limited v Unister GmbH andAeruni GmbH [2011] IEHC 167Legislation:• Charter of Fundamental Rights of theEuropean Union (7 December 2000)• Data Protection Act 1988• Data Protection Act 1998 (Britain)• Data Protection (Amendment) Act 2003• Directive 95/46/EC on the protection ofindividuals with regard to the processing ofpersonal data and on the free movement ofdata• European Union Act 2009• Lisbon Treaty (Treaty on the Functioning ofthe European Union) of 1 December 200937

38 the constitutionLaw Society Gazette www.gazette.ie April 2013Houseof a different colourAbolishing the Seanad would compound the stranglehold that the executive branch, and the Cabinet inparticular, already has on our parliamentary process. Reform is the way forward, argues Noel WhelanNoel Whelanis a barristerand politicalcommentatorIreland doesn’t do political reform well. Indeed,we don’t do much of it at all. What our politicalsystem does is engage periodically in bouts ofintensive talk about the need for redesign or repairof our constitutional infrastructure – only to stalland fail to follow through on implementation.It remains to be seen if the current spurt of discussionabout reform hosted in the Constitutional Conventionultimately leads to any significant change. The initialagenda for its deliberations, focusingas it does on constitutional trivia likethe voting age and the length of thepresidential term, does not augur well.It is curious in this context, therefore,that the largest proposal to emerge inrecent years about our political system– the suggestion that Seanad Éireannshould be abolished – is to be put tothe people in a referendum withoutany reference to the ConstitutionalConvention.On 17 October 2009, Fine Gael leaderEnda Kenny told his party’s presidentialdinner that, if elected to government, it would abolishthe Seanad. Kenny’s address surprised many, including,it seems, many of his own party’s leading politicians,who had not had an opportunity to discuss it in advance.Only four months earlier, at the MacGill Summer Schoolin Donegal, Kenny had defended Seanad Éireann andadvanced proposals for its reform. The case he made forabolishing it at the Fine Gael dinner, and in follow-upmedia interviews, was not framed in constitutional theory“Although itscontribution hasbeen substantial,Seanad Éireannhas only scratchedthe surface of itspotential”or plans for parliamentary improvement, but rather heavilycouched in the more populist language of saving moneyand reducing the number of politicians.The proposal to abolish the Seanad is certainly achange of some magnitude – but it is not political reform.Abolishing the second chamber would do no more thancompound the stranglehold the executive branch ingeneral, and the Cabinet in particular, already has on ourparliamentary process.Initial designThe initial design for our current Seanademerged quickly after de Valera abolishedthe Free State Seanad on 29 May 1936.Just two weeks later, de Valera establisheda commission, chaired by the then ChiefJustice Hugh Kennedy, “to consider andmake recommendations as to what shouldbe the functions and powers of the secondchamber of the legislature in the eventof it being decided to make provision forsuch [in the new Constitution]”.The Kennedy Commission reportedwithin four months and recommended that no billshould be enacted by Dáil Éireann until it had first beensent to the second house for consideration. However, itrecommended that the second house should not have apower of veto, but only the effect of delaying the bill’spassage by three months. Kennedy and his colleaguesalso recommended that the second house would have thepower to initiate any bill, other than a money bill. Theseproposals were inspired by the type of powers that the

Law Society Gazette www.gazette.ie April 2013 the constitution 39Free State Seanad had enjoyed and weredesigned to restore the situation where therewould be at least some restraint on what wouldotherwise be the Dáil’s absolute parliamentarypower. The Kennedy Commission’s proposalson the Seanad’s role in the legislative processwere largely adopted in the provisions relatingto Seanad Éireann in thenew Constitution.“The proposal toabolish SeanadÉireann is certainlya change of somemagnitude, but it isnot political reform”The KennedyCommission was alsoasked, however, to makerecommendations onhow the second chamber“should be constituted asregard number of members,their qualifications, methodof selection and periodof office”. Its proposalsin this regard reflected a desire to broadenparticipation in the legislature, to ensurerepresentation for particular minorities, andto provide an additional dimension to lawmakingby including those with particularknowledge and experience in specific policyareas and vocational fields.They proposed that one-third of theSeanad should be nominated by the head ofGovernment and that the remainder shouldbe “selected from a panel of persons who thenare, or have been actively concerned in publicinterests or services”. They recommendedthat these members of the second houseshould be elected by a college of electors,to consist of each person who had been acandidate at the immediately preceding Dáilelection, each getting one vote for each 1,000first preferences”. They also, interestingly,recommended that “some members ofthe second house should bewomen” and that a portionof those nominated shouldbe competent in the Irishlanguage.When finalised, de Valera’sconstitution provided that theTaoiseach would nominate 11members to Seanad Éireann. Italso provided that six memberswould be elected by universitygraduates, three from TrinityCollege and three from what is now theNational University of Ireland. This movewas designed to compensate for the abolitionof the Dáil university constituencies in thenew Constitution. The new Constitutionalso provided that the remaining 43 senatorsbe elected as persons “having knowledgeand experience” of one of five designatedvocational areas.Having obtained popular approval forthe existence of a second house through thereferendum adopting the Constitution,de Valera then left it to legislation to determine>>Fast facts> Seanad Éireann has managed to performa significant function in providingan opportunity for reflection in thelegislative process and a second opinionon legislation> However, the narrow and politicisedcomposition of the Seanad electoratehas inevitably made it weaker and morecompliant than might otherwise havebeen> Significant Seanad reform could bedone by means of legislative change: aconstitutional referendum would not berequiredhow these 43 vocational senators would beelected. Legislation subsequently enactedprovided for vocational bodies in each area tonominate candidates, but provided for a narrowelectoral college of politicians, currentlycomposed of all county and city councillors,outgoing senators and incoming TDs.Weak mandateThis narrow and politicised composition ofthe Seanad electorate has inevitably resultedin a Seanad composed primarily of partypolitical candidates. It has led, also, to aweaker and more compliant Seanad thanmight otherwise have emerged to exertits position within the Irish constitutionalframework.Notwithstanding this weakness in itsmandate, Seanad Éireann has, over thecourse of its 75-year history, managed toperform a significant function in providingan opportunity for reflection in the legislative

40 the constitutionLaw Society Gazette www.gazette.ie April 2013process and a second opinion on legislation.Seanad Éireann has often been a forum fordebate of a different order and quality thanthe lower house, as well as a useful meansof both legislative restraint and legislativeinitiative.It is no accident thatone-time controversial legalinnovations, such as enablingthe general availability ofcontraception, had their firstairing in the upper house,most notably in bills coauthoredby Mary Robinsonin the 1970s. In recentdecades, a raft of substantiallaw reform, including someinitiated by Government,has first been introduced inthe upper house and had amore extensive exposition as a result. TheDefamation Act 2009 is a case in point.The contribution of Seanad Éireann tothe legislative process during its currentterm has included legislation designed toensure that sub-contractors are paid, in theform of Senator Feargal Quinn’s ConstructionContracts Bill, and amendments to the CivilLaw (Miscellaneous Provisions) Act 2011successfully introduced by Senator KatherineZappone, designed to ensure that non-Irishcivil partners of Irish people do not have towait two years longer than non-Irish marriedspouses in order to be eligible for citizenship.Reform via legislationAlthough its contribution has beensubstantial, Seanad Éireann has only scratchedthe surface of its potential. If the Seanad wastransformed and given a direct democraticmandate different from that of the Dáil, itsimpact would be further enhanced. What isnot sufficiently appreciated, even in legal andpolitical circles, is that this could be done bymeans of legislative change. A constitutional“If Seanad Éireannwas transformedand given a directdemocratic mandatedifferent from thatof Dáil Éireann, itsimpact would befurther enhanced”referendum would not be required.Reforming the electoral system for SeanadÉireann would be a means of ensuring morediverse representation in the Oireachtas.Provision could be made for gender quotas,true representation ofvocational interestscould be achieved, and arepresentation of citizensliving in Northern Irelandand outside the island ofIreland could happen. Allof which could be achievedwithout the need forconstitutional change.In the coming months,the Seanad Reform Groupwill publish a detailed SeanadReform Bill designed totransform the membershipof Seanad Éireann by a dramatic extensionof its electorate on the basis of ‘one person,one vote’. The Seanad Reform Bill 2013 willbe initiated in the Seanad itself by SenatorsSeanad Éireann has, even in its weakenedform, provided a forum for many significantvoices and those with particular expertisewho might not otherwise have been ableto contribute to our parliamentary debateand law-making. The more prominentliving examples have included formersenior civil servant TK Whittaker, historianJoe Lee, lawyer and later Supreme Courtjustice Catherine McGuinness, andplaywright Brian Friel. Seanad Éireannhas also hosted a diverse range of voicesfrom Northern Ireland, including the NewIreland group founder John Robb, SeamusMallon (then deputy leader of the SDLP),and the late Gordon Wilson, a campaignerfor reconciliation whose daughter MarieZappone and Quinn, and it is expected toattract support from most, if not all, of theother independents and, it is hoped, membersof various party groupings. The process ofhaving Seanad Éireann adopt a legislativescheme for its own overhaul will serve toemphasise its significance and potential, aswell as illustrating the extent to which theGovernment-dominated Dáil has sought toensure that the Seanad stays weak.A reformed Seanad, with an enhancedmandate, could and should perform asignificant range of functions. These includecloser monitoring of statutory instruments,more proactive input to the making ofEuropean legislation and its impact in Ireland,and comprehensive reviewing of the impact ofpreviously enacted legislation.If a transformed Seanad was achievedby legislation then, having gained generalacceptance, the provisions for this reformedSeanad could later be put to the people forinclusion in the Constitution. That would bereal political reform. Gother voiceswas killed in the Enniskillen bombing. Therecently deceased Éamon de Buitléar wasalso a significant contributor to the Seanad –and not just on issues relating to the naturalenvironment.Seanad Éireann also provided anintroduction to parliamentary life for manywho later went on to play leading roles inthe lower house, including Mary Harney andGarret FitzGerald. It has also provided a basefor some senior party political figures unableor disinclined to compete for Dáil seats, yetwishing to contribute to national life. Fine Gaelsenator and one-time minister Jim Dooge andthe Fianna Fáil businessman Eoin Ryan, a sonof former finance and health minister Dr JamesRyan, being two examples in point.Easy faxing anywhere TM1800 882 231www.efax.ie/lawsocTHE VERDICT IS IN: Top Law Firms Choose eFax ®Why law firms are turning to eFax ® as a cheaper alternative to fax machinesEase: Send and receive faxes quickly and easily by email.Privacy: Maintain client confidentiality with files delivered securely to your computer.Efficiency: Solicitors, barristers and secretaries can share faxes instantaneously 24/7.Savings: Eliminate hardware, software costs; as well as fax machine supplies.Productivity: Easy document management and organization.Accessibility: Access your faxes with your desktop, laptop, tablet or mobile.Contact us at 1800 882 231 and mention “LAWSOC” for a 30-day trial.

Law Society Gazette www.gazette.ie April 2013roscommon bar associationpeople and places41The annual general meeting of the Roscommon Bar Association was held in the Abbey Hotel, Roscommon, recently. Attending were: (front, l to r): Alan Gannon,Bríd Miller, Mary Rose McNally (CPD officer), Ken Murphy (director general), Marie Conway (incoming president, Roscommon Bar Association), Donald Binchy(then Law Society President), Christopher Callan (outgoing president, Roscommon Bar Association), Brian O’Connor (secretary), Harry Wynne, Gerard F Gannon andTracy McDermott. (Middle, l to r): Ailbhe Hanmore, Ivan Moran, John Duggan (treasurer), Shane O’Dowd, David Kelly, Aishling McGowan, Marita Dockery, RebeccaFinnerty, Niamh Mahon, Dermot Neilan, Michael O’Dowd and Padraig Kelly (PRO). (Back, l to r): Donal Keigher, Thomas Queally, Dara Callaghan, William Henry,Jonathan Wynne, Sean Mahon, Terry O’Keeffe, Conleth Harlow, Declan O’Callaghan and John SweeneyPic: Eoin Hennessy’Appy daysKilkenny solicitor John G Lanigan celebrated 50 years in practice at Michaelmas 2012. John is a partner, with his daughterSonya, in John Lanigan & Nolan, Dean Street, Kilkenny. To mark the occasion, the Kilkenny Solicitors’ Association convenedwith family and friends at Zuni Restaurant, Kilkenny, on 21 December 2012. John received an engraved crystal vase tomark the event. (Front, l to r): Michael Buggy, Roz Lanigan, John G Lanigan and his daughter Sonya Lanigan. (Back, l to r):Frank Lanigan, Martin O’Carroll, Martin Crotty, Julie Bermingham, John G Harte, Nicholas Harte, David Dunne, Emer Foley,Anthony Canny, Maeve Meaney, Laurence Grace, Michael Lanigan, Owen Sweeney, Kieran Boland and Timothy KielyAt the seminar in Blackhall Place on 2 March 2013 on the proposal for a Court of Appeal were (l to r): Inge Clissman SC,chairman of the Bar Council David Nolan SC, Chief Justice Susan Denham and director general Ken MurphyA&L Goodbody has launchedIreland’s first dedicated dataprivacy law app. It shouldprove to be a useful resourcefor senior management,privacy law professionalsand in-house lawyers whoneed to respond to increasingdata protection and securityrequirements. The app is freeto download to iPhone andiPad at the iTunes App Store.It includes an index of privacylaw terms, as well as links torelevant acts and regulations.This latest app is partof a suite of online toolsdeveloped by the firm overthe past year, including ‘IrishHR Law A-Z’, which providesaccessible information onemployment law facts andregulations.

42 people and placesLaw Society Gazette www.gazette.ie April 2013Putting onthe ritzThe annual dinner of the SouthernLaw Association (SLA) was heldin the Maryborough House Hotel,Cork, on 22 February. Specialguests included members of thejudiciary, Law Society PresidentJames McCourt and Ken Murphy(director general).All pics: Dee Baumann(From l to r): Judge James McNulty (District Court),Jonathan Lynch (president, SLA) and his father TomLynch(From l to r): Ken Murphy (director general), JonathanLynch (president, SLA) and James McCourt (Law SocietyPresident)(From l to r): Niamh O’Connor,Amy Murphy and Aoife Byrne(From l to r): Kevin Hickey, Tom Coughlan, Colleen Spalding-O’Riordan, Joyce Good, Brian Leahy and David WilliamsMembers of the Southern Law Association Council 2012/13, including (front, l to r): Daniel F Murphy, Joan Byrne, Jonathan Lynch (president, SLA), CatherineO’Callaghan and Fiona Twomey. (Back, l to r): Fergus Long, Terry O’Sullivan, Richard Hammond, Patrick Dorgan, Eamon Murray, Kieran Moran, Brendan Cunningham,Pat Mullins, Peter Groarke and Robert Barker

Law Society Gazette www.gazette.ie April 2013The beautiful southSouthside solicitors from Dublin gathered at theRoyal St George Yacht Club in Dun Laoghaire for the28th annual dinner on 1 February 2013. The dinner,dedicated to the memory of Dominic Dowling,who practised in Dalkey, was attended by 78 localcolleagues, friends from the Bar, judiciary and guests.people and places43All pix: Dermot Byrne photographerWilliam Prentice, Sam Clarke, Aongus O Brolcháin SC andOwen McNallyJudge John O’Connor, Ken Murphy (director general),Kevin O’Higgins, Barbara Cotter, James McCourt (LawSociety President) and Justin McKennaSharonMcElligottand MaeveCarneyJustin McKenna, Stephanie O’Meara, Carina Davidson, Andrew Vallely,Rory O’Riordan, Aimee Dillon, Susan Gray, Cillian McKenna and NicolaHennessy (all Partners at Law)Josepha Madigan and Finbarr HayesMartin Sills, Geraldine Kelly and KevinO’HigginsJudge Paul Gilligan, John Miller and MaryGeraldine Miller BL

44 people and placesLaw Society Gazette www.gazette.ie April 2013Calcutta Run aims to move up a gear in 2013On 20 March, Law SocietyPresident James McCourt held areception to launch an exciting newphase for the Calcutta Run, writesEoin MacNeill (A&L Goodbody).Managing and senior partners fromover 50 firms attended to hearthe president outline the aim toestablish the Calcutta Run as theannual collective corporate socialresponsibility/charity fundraisinginitiative for the entire legalprofession.The Calcutta Run has hadgreat support from within theprofession over its 15-year history.The hope is that this support canbe taken to a new level by havingmember firms sign up as ‘CalcuttaRun Supporters’ and promotefundraising efforts within theirfirms.To date, over 40 solicitors’ firmsas well as members of the Bar, havesigned up to support Calcutta Run2013. Many different fundraisingefforts are planned across theprofession. This level of supportCalcutta Run sponsors (from l to r): Fiona Counihan, Susan Kavanagh, Sarah Kelly (The Panel), Helen Leahy (Bank of Ireland),Joanne Lindsay Martin (Peter McVerry Trust), Barry Andrew (GOAL), Law Society President James McCourt, Carmel Drumgoole(GOAL), Paul D’Alton (Cagney Contract Cleaning) and Frank White (Pearl Audio Visual)bodes well for the initiative, andthe hope is that many more firmswill sign up as Calcutta Runsupporters in the coming weeks.This year’s Calcutta Run eventtakes place on Saturday 25 May.Sign up now at www.calcuttarun.com.Pontoon piscatorial paradiseWashington DC beckons forLaw Society victorsJohn Purcell (solicitor with Barry M O’Meara & Son, Cork), Jack Mellette(boatman) and Cyril Kelly (Dublin) at the May 2012 eventThis Easter, the Law Society’sJessup team travelled toWashington DC to compete inthe international rounds of thePhilip C Jessup International LawMoot Court Competition. Attime of going to press, they werepitted against the cream of 550 lawschools from 80 countries in theworld’s largest moot court event.The Law Society’s teamqualified for the internationalrounds by winning the nationalchampionship against teamsfrom the King’s Inns, Trinity andUniversity College Cork. It alsoachieved best written memorials.The Law Society’s James Rocheand Barry Connolly were rankedfirst and second in the oralistrankings.The team members are:Gillian Beechinor (Ronan,Daly Jermyn), Barry Connolly(Flynn O’Driscoll), RosemaryHennigan (McCann FitzGerald),James Roche (ByrneWallace)and Rebecca Walsh (McCannFitzGerald). The team is coachedby Colette Reid.The annual lawyers’ fishing triphas been running for many years,writes Marc Bairead. It’s a greatopportunity to meet like-mindedcolleagues and to catch up withold friends. Many lawyers fromBritain and Northern Ireland alsojoin us.Last May, we headed forPontoon, on the shores of LoughConn, for the fishing periodknown as ‘duffers fortnight’ – orthe Mayfly season. As it happens,lady luck was on our side andmost of the lawyers that took tothe water that weekend caughtfish. The headlines and topprize, however, went to an upand-comingCork solicitor, JohnJermyn, who had been absentfrom the Lawyers’ Fishing Clubevent for 15 years. Over thecourse of the weekend, 60 troutwere caught and many more bigones proved too slippery, beinghooked – and lost.This year’s event is takingplace on Friday and Saturday10 and 11 May at the CroverHouse Hotel on the banks ofLough Sheelin, Co Cavan. A verycompetitive rate is available fromCrover House Hotel for a threenightstay. Anyone interestedin joining us or obtaining moredetails should email MarcBairead at marc@nossolicitors.com.

Law Society Gazette www.gazette.ie April 2013 obituary45brian kingsbury overend1930 – 2013Brian Overend, for many yearsA&L Goodbody’s senior partner,passed away on 16 January 2013,just two months short of his 83rdbirthday.Brian was the last survivingOverend to have been part of A&LGoodbody. The Overend familyshaped and moulded the firm fromthe early 1910s – taking the batonin the early 1920s from Alfred andLewis Goodbody, who establishedthe firm. Brian’s son Rodney wasa corporate lawyer with the firmfor a number of years before hisuntimely death in 1995.Throughout his career Brian– or ‘BKO’ as he was known tomany – was greatly regardedand admired, particularly forhis sound advice, his greathumanity, his elegance and goodhumour. Only behind the wheelof the family car did he everexperience an occasional lapse oftemperament. Brian was positivelyintergenerational, and he washugely respected by solicitors,both young and old. Anyone whomet him quickly came to knowthat they would always see fairplay from a gentleman of the legalprofession.Brian was educated at CastlePark School, St Columba’s College(where he was a noteworthyhockey player and cricketer) andTrinity College, Dublin. In 1949,he became apprenticed to hisfather, Acheson Overend (Achie)at A&L Goodbody. Brian qualifiedin 1953 and shortly afterwardsbecame the fifth partner in the firmalongside his father, his brotherGeorge, and Rowan Blakeney andSynge Millington.His area of practice was propertyand private client work. Brian actedfor many of the merchant familiesof Dublin, not just on property,trusts and estate planning, but alsoas the source of wise counsel on arange of matters. In particular, hewas involved in the assembly of theSetanta development site betweenDublin’s Molesworth Street andNassau Street in the late 1960sand 1970s, and its later sale to theBritish Coal Board Pension Fund.This was one of the largest propertytransactions by value in Ireland upto that time.He was a director of theSolicitors’ Benevolent Associationfrom June 1963 until December2012 (he attended his last meetingof the association on 10 December2012). He also made time forseveral voluntary committees andboards and was a governor of theRotunda Hospital for many years.A keen sportsman, he representedLeinster in badminton andplayed tennis on the first team atDonnybrook LTC. He played golffor over 50 years off scratch or lowsingle figures and was a prominentmember of Carrickmines GolfClub, where he was also a wellknownbridge player.While Brian retired after over40 years in practice, his links withA&L Goodbody never ended; evenuntil the end of last year, he wasa familiar and welcome visitor tothe firm. He will be particularlyremembered by many who workedin the private client area of practice.A&L Goodbody greatly values thelong association with Brian and hisfamily.Brian married Mary (Palmer)in 1956, who passed awayunexpectedly after a short illnessin 2010. He is survived by hisdaughters, Jenny and Rosie,together with their families, andhis son Rodney’s wife Maggie andgrandson Scott.PDWconsult a colleague01 284 8484The Consult a Colleague helpline is available to assist every memberof the profession with any problem, whether personal or professionalThe service is completely confidential and totally independent of the Law Society

46 obituaryLaw Society Gazette www.gazette.ie April 2013louis dockery1928 – 2013The most important eventin Louis Dockery’s long lifewas the occurrence in 1963of a sharp pain that requiredhis admittance to the MaterHospital, where he was nursedback to full health by thegirl who thereupon becameand forever remained thecentrepoint of his earthlyexistence. His courtship ofNóirín was, by all accounts,typical of the man we cameto know – patient, thorough,determined and completelysuccessful. It was the templateof his career.Louis, who died recently,was born in Elphin, CoRoscommon, and he rarelymissed an opportunity toremind people of his birthplace.After attending primaryschool there, he went on toSummerhill College, Sligo,where, inter alia (as he mightsay), he excelled in Latin andGreek, inspiring his lifelonginsistence on the correctand precise use of language,especially the English language.He studied law at UCD andthe Law Society, graduatingwith a BA and LLB, and wasadmitted as a solicitor in 1953.After practising in Co Cavan,he joined the Office of theChief State Solicitor in 1956,where he showed exceptionalability in discharging the manyfacetedduties of that office. Hewas patient and courteous withall who had dealings with him.Those of us who knew hiswork there also knew thathis eventual appointment asChief State Solicitor would beinevitable; he served from1978 to 1993.There was much more toLouis than his achievementsas a senior legal officer of theState. Nóirín, each of theirfive children, Desmond, John,Louis, Liam and Mairéadand, later, each of their sevengrandchildren, were dearly lovedby him and they took precedenceover everything else.He had, however, other lovesand passions. His interest,amounting almost to obsession,in military history and militarymatters was legendary. Itoriginated in his youthfulfascination with the storiesof veterans of the Boer Warand of World War I whom heknew, and it later resulted inhis becoming an accomplishedmilitary historian. He had aspecial interest in the ConnaughtRangers and in the battlefields ofthe Great War, which he visited.He had a great admiration forthe Irish Defence Forces andwas a very popular and respectedmember of the Defence ForcesLegal Service Club, whosefunctions and outings he loyallyattended. He was a member ofthe Military History Societyof Ireland and a subscriber toits journal, The Irish Sword.The extent of his knowledgeof military history generally,but especially of Irish militaryhistory, was quite extraordinary.On an equal footing stoodhis love of the GAA. Louisinsisted that he had been onlyan indifferent footballer but,whatever the truth of that, hisloyalty to the association wasundoubted. His brother, the late(Fr) Desmond, was a most giftedRoscommon senior countyfootballer. He was a walkingencyclopaedia of GAA lore, andnone who knew him would befoolish enough to challenge anyof his assertions in that area.Louis was first and last acommitted Roscommon man.His love of that beautifulcounty and many of hiseclectic interests are evidencedby his contributions to theRoscommon Association Dublinyearbooks. They includefolklore, local lore and storiesof the paranormal from aroundElphin, a vivid descriptionof a 1940s student’s lot inSummerhill, experiences ofWorld War I veterans, as wellas details of Irish regiments,battlefields and cemeteries and,poignantly, an account of theenforced end of his lifelong loveaffair with the pipe. He was thequintessential pipe smoker –calm and reflective.Louis was a religious andgenuinely moral man. He wasalso a most lovable man. He willbe greatly missed.EMB

Law Society Gazette www.gazette.ie April 2013Companies Acts 1963 –2012Lyndon MacCann and Thomas B Courtney (eds). BloomsburyProfessional (2012), www.bloomsburyprofessional.com.ISBN: 978-1-78043-134-5. Price: €165.Company law has become extraordinarilycomplex. No less than 18 acts of theOireachtas, dozens of statutory instruments,and directly applicable EU regulationsconstitute the huge and confoundingcorpus of legislative activity in this area.Companies Acts is not merely a consolidationof these enactments (invaluable in itself),but a treasure trove of commentary, analysisof relevant case law and reference to theequivalent English provisions.The last edition of this work was in 2010.No fundamental legislative initiative hastaken place in the interim, but there havebeen a host of smaller changes and, ofcourse, important cases, which have beenincorporated into the text.Presumably this will be the last version ofthis work before the Companies Bill, publishedat the end of last year, is enacted. That billis a complete restatement and reform ofcompany law and derives from the researchPease and Chitty’s Law ofMarkets and Fairs (6th ed)and reports ofthe CompanyLaw ReviewGroup overa number ofyears. Its 2,000 pages will formthe basis of our law for some time to come.Dr Tom Courtney is, with Lyndon McCannSC, one of the general editors of CompaniesActs and of course has been chairman ofthe CLRG throughout the process. Oneof the contributors is Paul Egan, who alsotook a leading role in the CLRG. Theseprinces of our profession have done the Stateconsiderable service in the modernisationof our company law and have, with otherauthors, done practitioners invaluable servicein the production of this book.Paul Keane is managing partner at ReddyCharlton, Solicitors, and is chairman of theBusiness Law Committee of the Law Society.Edward F Cousins. Bloomsbury Professional (2012), www.bloomsburyprofessional.com.ISBN: 978-1-84766-742-7. Price: stg£125.book reviewsTHOMSON REUTERSROUND HALLTMONLINE LEGALRESEARCHTRANSFORMEDA NEW, IMPROVEDAND MOREPOWERFULONLINE LEGALRESEARCHEXPERIENCEIS HEREWESTLAW IE47This is a surprisinglyinteresting book forIrish lawyers, localauthorities and,to some extent,historians. Theauthor of thisedition is, amongother things,the adjudicatorto HM LandRegistry,bencher ofLincoln’s Innand Gray’s Inn,and our own King’s Inns. The latterposition no doubt accounts for his interest inIreland, as displayed throughout the book.The book has 12 chapters: the introduction,‘Creation and acquisition of markets and fairs’,‘The market place and the place for holdingfairs’, ‘The days and hours for holding marketsand fairs’, ‘Toll and stallage’, ‘Disturbance’;‘Sales in markets and fairs’, ‘Forfeiture andextinction of markets and fairs’, ‘Regulation,administration and control’, ‘Accounts, ratesand taxes’, ‘Practice, procedure and evidence’and, lastly, a chapter entitled ‘The Irishdimension’. However, that chapter is not onlyof reference to the Irish situation. Irish cases –for example, Loughrey v Brietry ([1928] IR 108)– and statutes are mentioned throughout whereappropriate. The Casual Trading Act 1995 isreproduced in full and annotated.That the law on markets and fairs is aliveand well is shown by the extensive reference toListowel Livestock Mart Ltd v Bird ([2009] 4 IR631). That case referred to the letters patentgranted by James I in 1612 and James II in 1696to hold market and fairs here in Listowel. Tothis day, horse fairs are held on the public roadoutside our office.A small criticism of the book is the rathersmall print size, especially in the footnotes.Possibly it is my age!Celebrate our common law tradition. Readthis book. GRobert Pierse is partner in Pierse & FitzgibbonSolicitors, Market Street, Listowel, Co Kerry.SEE IT. BELIEVE IT.1800 50 90 34customer.service@westlaw.iewestlaw.ie

Date for your DiaryLaw SocietyannuaL conference10 th /11 th May 2013Minister alan shatter will bethe keynote speaker at the 2013law society annual Conference.Mícheál Ó Muircheartaigh,the legendary Gaa commentator,has also been been confirmedfor the 2013 conference.The theme of the conference is ‘firming up for the future:Building legal agility and a Positive Perspective’ and takesplace in the Europe Hotel and Resort, Killarney.Minister Shatter will speak on ‘Courts Reform and thePersonal Insolvency Act, 2012’, while Mr Ó Muircheartaigh willencourage delegates to move ‘Up the Field and Face the Ball– Exercising a Positive Perspective’.While the programme for each day is still being finalised,the following speakers have also been confirmed:Simon Murphy, Barry M O’Meara & Son SolicitorsRichard Hammond, Hammond Good SolicitorsPaul Keane, Reddy Charlton SolicitorsChris Callan, Callan Tansey SolicitorsSonia McEntee, McEntee SolicitorsCatherine Guy, ByrneWallace SolicitorsFor more information on conference packages,please visit the Events area of the Society’s website.if you have any queries about your booking, please contactthe conference organisers at lawsociety@ovation.ie.ConferenCe ConferenCe rates ratesfull delegate package: €300Access to full conference, Gala Dinner on Friday,10th May, B&B accommodation for one night sharingwith another delegate or registered accompanyingperson and a light lunch on Saturday, 11th May, allin Europe Hotel and Resort. If you will not be sharingand request a single room, a single supplement of€75 will be charged.accompanying Person package: €200One night’s B&B accomodation (Friday, 10th May)sharing with a delegate, Gala Dinner on Friday,10th May, light lunch on Saturday, 11th May.additional night: €200B&B accomodation per roomBook online atwww.lawsociety.ie/annualconference10 th /11 th May 2013the europeHotel & ResoRtKillarney

Law Society Gazette www.gazette.ie April 2013 practice notesbriefing 49Practice notesPre-contract deposit should be stated to be paid tostakeholder or on trustconveyancing COMMITTEEIn a recent High Court case, In theMatter of Protim Abrasives Limited(In Liquidation) and In the Matterof the Companies Acts 1963 – 2009(2009 no 510 COS), it was held byJudge Kevin Feeney that moniespaid by a purchaser to a vendor’ssolicitor by way of a pre-contractdeposit, in the absence of a contraryagreement, are paid to thevendor’s solicitor as agent of thevendor and not as stakeholder,and were in effect paid to thevendor. When the vendor wentinto liquidation without havingreturned the deposit monies tothe purchaser, the deposit moniesbecame assets in the liquidationand the purchaser then became anunsecured creditor.It was also held that GeneralCondition 5(c) of Law Society’sStandard Conditions of Sale,which states that the deposit isto be paid to the vendor’s solicitorsas ‘stakeholder’, whether thesale is by auction or private treaty,cannot apply and does not bindthe vendor until such time as thevendor signs the contract and it isexchanged and becomes binding.The judgment reviewed thecase law in relation to depositsand noted that, in the absence ofagreement to the contrary, an auctioneerreceives (a pre-contractbooking deposit) as stakeholderand not as agent of the vendor.The case is under appeal andthe committee will keep the matterunder review. In the meantime,purchasers’ solicitors needto take appropriate care. Oneway of dealing with this issuewould be to return the contractswith a cheque for the depositand to include a paragraph asfollows in your covering letter:“The cheque for the deposit attachedis sent subject to the following precondition,namely that it will beheld by you (or your firm) in trustfor the purchaser until contracts areexchanged in a manner acceptableto both vendor and purchaser, fromwhich time the money can be held asstakeholder under the terms of thecontract. If you are not willing toFatal delay in referring a matter to arbitrationarbitration and mediation COMMITTEEPractitioners should be aware thatthe Arbitration Act 2010 repealsthe provision of the Arbitration Act1954 that gave the court power toextend time for commencing arbitrationproceedings where theagreement provides that claims areto be barred unless proceedingsare commenced within a specifiedtime.Section 45 of the 1954 act provided:“Where (a) the terms of anagreement to refer future disputes toarbitration provide that any claims towhich the agreement applies shall bebarred unless notice to appoint an arbitratoris given or an arbitrator is appointedor some other step to commencenotice from the regulation departmentNotice to the profession in relation tooffice account bank chequesIt has recently come to the attentionof the Law Society that one of the financialinstitutions has advised itscustomers that it would no longerbe returning the original of paid officebank account cheques.The Solicitors’ Accounts Regulations2001 (as amended) sets outthe minimum accounting recordsthat a solicitor should maintain inregulation 20. Regulation 20(1)(f)requires a solicitor to maintain “theoriginal of each paid cheque drawnon each client account, controlledaccept payment of the deposit subjectto this condition, please return it immediately.”If it is intended to pay the depositby electronic transfer offunds, the wording of any emailand/or letter sent to the vendor’ssolicitor in advance of transferringthe funds and/or forwardingthe contract documentationshould contain a similar pre-condition.arbitration proceedings is taken withina time fixed by the agreement, and (b)a dispute arises to which the agreementapplies, the court, if it is of opinion thatin the circumstances of the case unduehardship would otherwise be caused,and notwithstanding that the time sofixed has expired, may on such terms,if any, as the justice of the case may require,but without prejudice to section42 of this act, extend the time for suchperiod as it thinks proper.”Failure to comply strictly withthe time limits imposed by an arbitrationclause could now be fatalto a claim, as the court would nolonger appear to have power toextend time. Accordingly, practitionersshould be wary of delay inreferring matters to arbitration andcommencing arbitration proceedings.Some agreements contain arbitrationclauses requiring disputesto be referred to arbitration withina period as short as six months.In certain instances, theremight be relief available if, for instance,time did not start to runbecause there was not yet a dispute,or where a consumer canshow the time bar amounts to anunfair contract term. However,practitioners are urged to exercisecaution by checking time limits toensure claims do not become timebarred.trust account and non-controlledtrust account, regularly procuredby the solicitor from his or herbank or banks and maintained andkept by the solicitor in numericalsequence, together with thecorresponding cheque stubs orrequisition dockets”.There is no requirement underthe regulations to obtain the returnof original office bank accountcheques.The majority of practices did, asa matter of good practice, also obtainthe return of the original officeaccount cheques. In the absenceof office account returned paidcheques, it is recommended thatthe solicitor retain a photocopy onfile of all office account chequesissued in respect of outlays disbursedon behalf of clients.In order to ensure continuedcompliance with the regulations,each solicitor must ensure thattheir financial institution continuesto return the original client bankaccount cheques.

50 Practice notesLaw Society Gazette www.gazette.ie April 2013briefingClearance of fundsconveyancing COMMITTEE, business law COMMITTEEThe Conveyancing and BusinessLaw Committees would like todraw your attention to the newsitem ‘Taking advantage of EFT’at page 7 of this Gazette andwould urge practitioners to contacttheir banks if they are experiencingdelays in the clearanceof funds that are longer thanis provided for by law. Solicitorsshould also contact theirbanks to find out the relevant‘shut-off’ times for sending payments,and so on, as suggested inthe news item.If solicitors find that theirbanks are not complying with thetime limits provided for in theEuropean Communities (PaymentServices) Regulations 2009 (SI no383 of 2009), they should let thecommittees know.The value clearing cycle forbank drafts is usually similar tothat for cheques. While bankdrafts enjoy a certainty of fate(that is, they will not be returnedunpaid unless they havebeen counterfeited, fraudulentlyaltered, or stolen), they also requireclearance through the valueclearing cycle.Cheques drawn outside theRepublic of Ireland but lodged inthe country may take considerablylonger to clear and may bereturned unpaid in accordancewith the legislation and/or clearingrules of the country in whichthe cheque is drawn. GMAKE A DIFFERENCE IN A CHILD’S LIFELeave a legacyMake-A-Wish ® Ireland has a vision – to ensure that every child living with a life threateningmedical condition receives their one true wish. You could make a difference by simplythinking of Make-A-Wish when making or amending your will and thus leave a lasting memory.“Make-A-Wish Ireland is a fantasticorganisation and does wonderful work toenrich the lives of children living with a lifethreateningmedical condition. The impact ofa wish is immense – it can empower a childand increase the emotional strength to enablethe child to fight their illness. It creates a veryspecial moment for both the child and thefamily, which is cherished by all.”Dr. Basil Elnazir, Consultant RespiratoryPaediatrician & Medical Advisor toMake-A-Wish“I cannot thank Make-A-Wish enough forcoming into our lives. Having to cope with amedical condition every hour of everyday is agrind. But Make-A-Wish was amazing for all ofus. To see your children that happy cannot besurpassed and we think of/talk about that timeregularly bringing back those feelings of joyhappiness and support.”Wish MotherIf you would like more information on how to leave a legacy to Make-A-Wish, please contactSusan O’Dwyer on 01 2052012 or visit www.makeawish.ie

legislation updatebriefing 51make provision for the regulation,provides for offences under partLaw Society Gazette www.gazette.ie April 20133, while chapter 6 (sections 133 to141) makes provision for miscellaneousmatters pertaining to theact. Part 5 and schedules 2 and 3supervision and discipline of personalinsolvency practitioners bythe Insolvency Service.Commencement: 1/3/2013Legislation update 2 February – 11 March 2013Details of all bills, acts and statutory instruments since 1997are on the library catalogue – www.lawsociety.ie (members’ andstudents’ areas) – with updated information on the current stagea bill has reached and the commencement date(s) of each act.All recent bills and acts (full text in PDF) are on www.oireachtas.ieand recent statutory instruments are on a link to electronicstatutory instruments from www.irishstatutebook.ieACTS PASSEDEuro Area Loan Facility(Amendment) Act 2013Number: 1/2013To further facilitate, in the publicinterest, the financial stability ofthe European Union and the safeguardingof the financial stabilityof the Euro Area as a whole andfor those purposes: (a) to enableeffect to be given, insofar as it relatesto the State, to the amendmentto the €80 billion Loan FacilityAgreement done in Brussels on19 December 2012 and in Athenson 18 December 2012, whichlengthened the term of the loan toGreece to a maximum of 30 yearsand further reduced the margin to50 basis points; (b) to provide thatsubsequent amendments to theGreek Loan Facility Agreement canbe approved by a resolution of DáilÉireann pursuant to article 29.5.2of the Constitution, subject tocertain conditions; (c) to amendthe Euro Area Loan Facility Act2010; and (d) to provide for relatedmatters.Commencement: 5/2/2013Houses of the Oireachtas Commission(Amendment) Act 2013Number: 3/2013Amends the Houses of the OireachtasCommission Act 2003 to providefor the Houses of the OireachtasCommission to translate statutoryinstruments made by ministers, orby persons other than ministers(including, for example, statutorybodies), at a cost, when requestedby ministers to do so. Also amendsthe Houses of the Oireachtas CommissionAct 2003 to provide for a definitionof An Caighdeán Oifigiúil(the Offical Standard for Irish) tobe used in primary and secondarylegislation and as the guide forwriting in the Irish language, andprovides for related matters.Commencement: Commencementorder(s) required as per s5(3)of the actIrish Bank ResolutionCorporation Act 2013Number: 2/2013To provide for the liquidation of theIrish Bank Resolution Corporationand for the sale of its remaining assetsto NAMA or to other marketpurchasers.Commencement: 7/2/2013selected statutoryinstrumentsPersonal Insolvency Act 2012(Commencement) (No 2) Order2013Number: SI 62/2013This order appoints 1 March 2013as the date on which the provisionsof part 1 (other than section6), part 2 (other than section 13),sections 25 and 47, sections 126 to141, part 5 and schedules 2 and 3of the Personal Insolvency Act 2012come into operation. Part 1 of theact provides for the short title andcommencement and interpretationof the act, as well as makingprovision for regulation-makingpowers, expenses and the interpretationof ‘appropriate court’in the act. Part 2 of the act makesprovision for the establishment ofa new body, the Insolvency Serviceof Ireland, for the purposes ofoperating the new debt resolutionarrangements provided for in theact. It sets out the functions andpowers of the Insolvency Serviceand governance arrangementsfor the service. Section 25 is aninterpretation section for chapter1. Section 47 empowers theInsolvency Service to authorise aperson or class of person to performthe functions of an approvedintermediary under chapter 1.Chapter 5 (sections 126 to 132)One to watchOne to watch: recent caseFox v Office of the Data ProtectionCommissionerIn Fox v Office of the Data ProtectionCommissioner ([2013] IEHC49), the High Court confirmed thatthe Circuit Court has no jurisdictionto hear an appeal in relation to anopinion by the Data Protection Commissioner(DPC) that a complaint isfrivolous or vexatious.An issue of statutory interpretationarose whereby two complaintswritten by the applicant to the DataProtection Commissioner on 10 December2010 and 19 January 2011were not being investigated, as theywere deemed by the commissionerto fall within section 10(1)(b)(i) ofthe Data Protection Act 1998 and2003 (as amended) – that is, theywere considered to be “frivolous orvexatious”. The applicant held thatthe DPC’s opinion was a ‘decision’on his complaints and so he had aright of appeal under section 26.Section 26 of the acts makesprovision for an appeal against “adecision of the commissioner inrelation to a complaint under section10(1)(a) of [the] acts” to theCircuit Court. Under that section,the decision of the Circuit Court isfinal, except on a point of law only tothe High Court. Upon receipt of thecommissioner’s letter, the applicantappealed to the Circuit Court. JudgeLinnane dismissed the applicant’sappeal, ruling that a decision by theDPC that a complaint is frivolous orvexatious is not one in respect ofwhich an appeal lay. The applicantappealed this decision to the HighCourt.Justice Peart examined section10(1) of the acts. He noted thatsection 10(1)(a) provides that theDPC may investigate a complaint,and section 10(b)(i) goes on to requirethe DPC to investigate a complaint“unless he is of the opinionthat it is frivolous or vexatious”. Inthe latter case, the DPC is not requiredto investigate the complaintat all. According to section 10(b)(ii),where the DPC does investigate thecomplaint (where it is not deemedto be frivolous or vexatious), he musttry and have the matter resolved amicablyand, if unsuccessful in thatregard, must notify the complainantin writing of his decision and thecomplainant may, “if aggrieved bythe decision, appeal against it to thecourt under section 26 of [the] act.”In his final judgment, JusticePeart stated: “There is a clear sequencingevident in this section.The complaint does not get evento an attempt to resolve it amicablyor a decision upon it until the commissioneris satisfied that it is nota frivolous or vexatious complaint.The reference in section 10(1)(b)(ii) to ‘the decision’ (as distinct from‘a decision’) must in my view relateto the decision made following theinvestigation. It speaks of only onedecision, and that in my view cannotinclude the opinion formed forthe purpose of subsection (1)(b)(i)that the complaint is frivolous orvexatious. It follows in my view thatthe reference to ‘a decision’ in section26 of the act must in turn beread as meaning a decision reachedin relation to the complaint after ithas been investigated.”Peart J noted that this issue hadalready been the subject of a judgmentin Nowak v Data ProtectionCommissioner ([2012] IEHC 449),where the High Court reached thesame decision, that where the DPCdeclines to investigate a complaint,the Circuit Court has no jurisdictionto hear an appeal. G

52 sba report and accountsLaw Society Gazette www.gazette.ie April 2013briefingSolicitors’ Benevolent Association149 th report, 1 December 2011 to 30 November 2012The Solicitors’ BenevolentAssociation is a voluntary charitablebody consisting of all members ofthe profession in Ireland. It assistsmembers or former members ofthe solicitors’ profession in Irelandand their wives, husbands, widows,widowers, family and immediatedependants who are in need. Theassociation was established in 1863and is active in giving assistance ona confidential basis throughout the32 counties.The amount paid out during theyear in grants was €480,276, whichwas collected from members’subscriptions, donations, legaciesand investment income. This wasless than the grants paid out in theprevious year, as the directors hadto reduce the amount of the grantspaid out to avoid overspending ofincome. Currently, there are 66beneficiaries in receipt of regulargrants, and approximately half ofthese are themselves supportingspouses and children.There are 18 directors, three ofwhom reside in Northern Ireland,and they meet monthly in the LawSociety’s offices at Blackhall Place.They meet at the Law Society inBelfast every other year. The workof the directors, who provide theirservices entirely on a voluntarybasis, consists, in the main, ofreviewing applications for grantsand approving new applications.The directors also make themselvesavailable to those who may needpersonal or professional advice. Thedirectors have available the parttimeservices of a professional socialworker who, in appropriate cases,can advise on State entitlements,including sickness benefits.The directors are grateful toboth law societies for their supportand, in particular, wish to expressthanks to Donald Binchy (pastpresidentof the Law Society ofIreland), Imelda McMillan (pastpresidentof the Law Society ofNorthern Ireland), Ken Murphy(director general), Alan Hunter(chief executive) and the personnelof both societies.RECEIPTS AND PAYMENTS A/C FOR THE YEAR ENDED 30 NOV 20122012 2011RECEIPTSSubscriptions 385,553 374,368Donations 140,062 165,108Investment income 39,574 39,390Bank interest 1,851 4,836Currency gain 1,486 –Repayment of grants 40,000 10,000608,526 593,702PAYMENTSGrants 480,276 743,528Bank interest and charges 908 773Administration expenses 36,075 37,510Currency loss – 166517,259 781,977OPERATING SURPLUS FOR THE YEAR 91,267 (188,275)Profit/(loss) on disposal of investments 41,465 (32,298)Provision for write down of quoted investmentsin prior periods no longer required 23,000 122,000SURPLUS/(DEFICIT) FOR THE YEAR 155,732 (98,573)I wish to express particular appreciationto all those who contributedto the association whenapplying for their practising certificates,to those who made individualcontributions, and to thefollowing: Law Society of Ireland,Law Society of Northern Ireland,Belfast Solicitors’ Association,Donegal Bar Association, DublinSolicitors’ Bar Association,Irish Solicitors’ Golfing Society,Kildare Bar Association, LimavadySolicitors’ Association, LimerickCity and County Solicitors’Bar Association, Local Authorities’Solicitors’ Bar Association,Longford Bar Association, Medico-LegalSociety of Ireland, MidlandSolicitors’ Bar Association,Monaghan Solicitors’ Bar Association,Northern Ireland LawSociety Choir, Sheriffs’ Association,Southern Law Association,Tipperary and Offaly Bar Association,Waterford Law Society, andthe West Cork Bar Association.The demands on our associationare rising due to the presenteconomic difficulties and, tocover the greater demands onthe association, additional fundraisingevents are necessary. Additionalsubscriptions are morethan welcome as, of course, arelegacies and the proceeds of anyfundraising events. Subscriptionsand donations will be receivedby any of the directors or by thesecretary, from whom all informationmay be obtained at 73 ParkAvenue, Dublin 4. I would urge allmembers of the association, whenmaking their own wills, to leave alegacy to the association. You willfind the appropriate wording of abequest at page 33 of the Law Directory2012.I note with deep regret thedeath in January last of our colleagueBrian Overend, who wasa director of the association formany years. During that time, hegave up his time and energy infurthering the aims of the association.His support and contributionat the meetings, and especially thefinancial meetings of the association,was much appreciated by allthe directors, and he will be sadlymissed by the board.I would like to thank all the directorsand the association’s secretary,Geraldine Pearse, for theirvalued hard work, dedication andassistance during the year.Thomas A Menton, chairmandirectors and informationDirectorsThomas A Menton (chairman)John Sexton (deputy chairman)Caroline Boston (Belfast)Thomas W Enright (Birr)Felicity M Foley (Cork)William B Glynn (Galway)John Gordon (Belfast)Colin Haddick (Newtownards)Dermot Lavery (Dundalk)Anne Murran (Waterford)John M O’Connor (Dublin)John T D O’Dwyer (Ballyhaunis)Brian K Overend (Dublin)Colm Price (Dublin)James I Sexton (Limerick)Andrew F Smyth (Dublin)Brendan J Twomey (Donegal)Brendan Walsh (Dublin)Trustees(ex-officio directors)John GordonJohn M O’ConnorJohn SextonAndrew F SmythSecretaryGeraldine PearseAuditorsDeloitte & Touche, CharteredAccountants, Deloitte & ToucheHouse, Earlsfort Terrace, Dublin 2Financial consultantsTilman Brewin Dolphin Limited,3 Richview Office Park,Clonskeagh, Dublin 14BankersAllied Irish Banks plc,37 Upper O’Connell Street,Dublin 1First Trust, 31/35 High Street,Belfast BT1 2AL 3Offices of the associationLaw Society of Ireland,Blackhall Place, Dublin 7Law Society of Northern Ireland,Law Society House,90/106 Victoria Street,Belfast BT1 3JZCharity number: CHY892

Law Society Gazette www.gazette.ie April 2013 regulationbriefing 53Solicitors Disciplinary TribunalReports of the outcomes of Solicitors Disciplinary Tribunalinquiries are published by the Law Society of Ireland as providedfor in section 23 (as amended by section 17 of the Solicitors(Amendment) Act 2002) of the Solicitors (Amendment) Act 1994In the matter of Patrick McCarthy,a solicitor formerly practisingas McCarthy & Co, SecondFloor, Building 1000, City Gate,Mahon, Cork, and in the matterof the Solicitors Acts 1954-2008[7748/DT03/11]Law Society of Ireland (applicant)Patrick McCarthy (respondent solicitor)On 4 May 2011, the SolicitorsDisciplinary Tribunal found therespondent solicitor guilty of misconductin that he:a) Failed to respond to correspondencefrom the Society,b) Failed to attend a meeting ofthe Complaints and Client RelationsCommittee on 30 July2009 when required to do so,c) Was in serious delay in pursuingthe return of monies retainedfrom the purchase monies bysolicitors for the vendor buildersin a conveyancing matter,d) Was in serious delay in takingover an undertaking in respectof the complainants from anotherfirm of solicitors,e) Failed to pursue the questionof interest due to the complainantsarising out of the retentionof the monies concerned for anumber of years in reimbursementof the complainants,f) Failed to attend a meeting of theComplaints and Client RelationsCommittee on 29 January2009, notwithstanding that hehad been required to so attend,g) Failed to attend a meeting ofthe Complaints and Client RelationsCommittee on 18 March2009, despite having been requiredto do so,h) Failed to attend a further meetingof the Complaints and ClientRelations Committee on 28April 2009, despite being requiredto do so,i) Failed to furnish the sum of€361.35 to the complainants,which had been received by himby the solicitors for the vendorsin respect of interest,j) Failed to comply with the directionof the Complaints and ClientRelations Committee thathe pay a contribution of €1,000towards the cost of the Society’sinvestigation,k) Failed to attend the meeting ofthe Complaints and Client RelationsCommittee on 28 April2009, despite being required todo so,l) Failed to attend a further meetingof the Complaints and ClientRelations Committee on9 June 2009, despite being requiredto do so.The tribunal ordered that the respondentsolicitor:a) Do stand censured,b) Pay a sum of €500 to the compensationfund,c) Pay the whole of the costs of theSociety as taxed by a taxing masterof the High Court, in defaultof agreement.In the matter of KatherineMA Ryan, a solicitor formerlypractising under the style andtitle of Ryan & Company at 42Woodley Park, Kilmacud, Dublin14, and in the matter of theSolicitors Acts 1954-2008 [6970/DT35/10; 6970/DT75/10; 6970/DT76/10; 6970/DT110/10;6970/DT124/10 and HighCourt record no 2012 no 21SA]Law Society of Ireland (applicant)Katherine MA Ryan (respondentsolicitor)6970/DT35/10On 13 October 2011, the SolicitorsDisciplinary Tribunal foundthe respondent solicitor guilty ofmisconduct in her practice as a solicitorin that she:a) Failed to ensure that there wasfurnished to the Society an accountant’sreport for the yearended 30 April 2009 within sixmonths of that date, in breachof regulation 21(1) of the Solicitors’Accounts Regulations 2001(SI 421 of 2001),b) Through her conduct, showeddisregard for her statutory obligationto comply with theSolicitors’ Accounts Regulationsand showed disregard for theSociety’s statutory obligationto monitor compliance with theSolicitors’ Accounts Regulationsfor the protection of clients andthe public.6970/DT75/10On 13 October 2011, the SolicitorsDisciplinary Tribunal foundthe respondent solicitor guilty ofmisconduct in her practice as asolicitor in that she:a) Failed to comply with an undertakinggiven to the complainant’sbank on 30 November2006 in a timely manner,b) Failed to reply adequately andin a timely fashion or at all tothe Society’s correspondenceand, in particular, the Society’sletters of 28 July 2009, 18 August2009, 2 September 2009, 1October 2009, and 25 February2010,c) Failed to comply with the directionof the Complaints andClient Relations Committeemade at its meeting on 30 September2009 that she make acontribution of €550 towardsthe costs incurred by the Societyas a result of her failure tocommunicate.6970/DT76/10On 13 October 2011, the SolicitorsDisciplinary Tribunal foundthe respondent solicitor guilty ofmisconduct in her practice as asolicitor in that she:a) Delayed in the payment ofstamp duty given to her by thecomplainant on 14 September2007,b) Failed to respond to the Society’scorrespondence and, inparticular, the Society’s lettersof 21 September 2009, 8 October2009, 29 October 2009 and23 February 2010 in a timelymanner or at all,c) Failed to attend at a meetingof the Complaints and ClientRelations Committee on 25March 2010, despite being requiredto do so by letter dated10 March 2010.6970/DT110/10On 13 October 2011, the SolicitorsDisciplinary Tribunal foundthe respondent solicitor guilty ofmisconduct in her practice as asolicitor in that she:a) Failed to complete the conveyancingwork for which she hadbeen paid and, in particular, tostamp and register the title documentationfor the complainantsin respect of four namedproperties in Dublin in a timelymanner or at all,b) Misled the Complaints andClient Relations Committeeat their meeting on 9 October2009 by indicating to the committeethat she had handedover the complainants’ file toanother solicitor with theirconsent, when this was not thecase,c) Failed to respond to the Society’scorrespondence and, inparticular, the Society’s lettersof 30 July 2009, 17 August2009, and 2 September 2009 ina timely manner or at all,d) Failed to attend the Complaintsand Client RelationsCommittee meeting of 29 April2010, despite being required toattend,e) Continued to hold monies paidto her by the complainants forstamp duty/registration fees,despite the fact that she held nopractising certificate.6970/DT124/10On 13 October 2011, the SolicitorsDisciplinary Tribunal foundthe respondent solicitor guilty ofmisconduct in her practice as asolicitor in that she:a) Failed to comply with the directionin a timely manner or atall made by the Complaints andClient Relations Committee atits meeting on 10 July 2009 thatshe refund all professional fees

54 regulationLaw Society Gazette www.gazette.ie April 2013briefingand undischarged outlay paidby the complainant within 21days,b) Failed to comply in a timelymanner with the direction ofthe Complaints and Client RelationsCommittee made on 10July 2009 that she furnish all ofthe complainant’s files over tohis new solicitor, having onlyfurnished those files to the Societyat the meeting of 9 October2009,c) Brought the profession intodisrepute by recklessly disregardingthe interests of her client.Having heard these five matters,the tribunal recommended thatthe matter be sent forward tothe President of the High Courtand, in proceedings record number2012 no 21SA, the Presidentof the High Court on 26 March2012 made an order:a) That the name of the respondentsolicitor shall be struckfrom the Roll of Solicitors,b) That the respondent solicitormake restitution to theSociety in respect of any paymentsmade by the Societyfrom the compensation fundin respect of the solicitor’spractice,c) That the Society do recoverthe costs of the High Courtproceedings and the costs ofthe proceedings before theSolicitors Disciplinary Tribunalas against the respondentwhen taxed or ascertained.In the matter of KatherineMA Ryan, a solicitor formerlypractising under the style andtitle of Ryan & Company, Solicitors,at 42 Woodley Park,Kilmacud, Dublin 14, and inthe matter of the Solicitors Acts1954-2008 [6970/DT77/10;6970/DT78/10; 6970/DT111/10; 6970/DT120/10; 6970/DT121/ 10 and High Court recordno 2012 no 22SA]Law Society of Ireland (applicant)Katherine MA Ryan (respondentsolicitor)6970/DT77/10On 25 October 2011, the SolicitorsDisciplinary Tribunal foundthe respondent solicitor guilty ofmisconduct in her practice as asolicitor in that she:a) Failed to furnish evidence thatshe had stamped and registeredher client’s title to the propertyat Amiens Street, Dublin 1,which he purchased in 2006, ina timely manner or at all,b) Failed to return the deeds relatingto that property to thecomplainant’s bank in a timelymanner or at all,c) Failed to respond to the Society’sletter of 23 February 2010in a timely manner or at all,d) Failed to attend the meeting ofthe Complaints and Client Relationscommittee on 25 March2010, despite being required todo so by letter dated 10 March2010.6970/DT78/10On 25 October 2011, the SolicitorsDisciplinary Tribunal foundthe respondent solicitor guilty ofmisconduct in her practice as asolicitor in that she:a) Failed to comply with an undertakinggiven to the complainantbank on 22 September 2004 in atimely manner or at all,b) Failed to reply adequately andin a timely manner to the Society’scorrespondence and, inparticular, the Society’s lettersof 24 July 2009 and 29 September2009 in a timely manner orat all,c) Failed to comply with the directionof the Complaints andClient Relations Committeemade at its meeting on 20October 2009 that she make acontribution of €550 towardsthe costs incurred by the Societyas a result of her failure torespond to its correspondence.6970/DT111/10On 25 October 2011, the SolicitorsDisciplinary Tribunal foundthe respondent solicitor guilty ofmisconduct in her practice as asolicitor in that she:a) Failed to respond to the Society’sletter of 23 February 2010,b) Failed to attend the meetingof the Complaints and ClientRelations Committee on 25March, despite being requiredto do so by letter dated 10March 2010.6970/DT120/10On 25 October 2011, the SolicitorsDisciplinary Tribunal foundthe respondent solicitor guilty ofmisconduct in her practice as a solicitorin that she:a) Failed to comply with the directionof the Complaints and ClientRelations Committee madeat its meeting on 29 May 2009that she furnish a progress reportand vouching documentationin relation to the complaintwithin ten days and a furtherprogress report by 26 June2009,b) Failed to comply in full, in atimely fashion, or at all with thedirection of the Complaints andClient Relations Committeemade at its meeting on 10 July2009 to refund all professionalfees paid by the client to the solicitorwithin 21 days,c) Failed to attend the Complaintsand Client Relations Committeemeeting of 29 March 2010,despite being required to do so,d) Failed to reply to the Society’scorrespondence in a timelymanner or at all and, in particular,letters of 9 July 2008, 24July 2008, 26 July 2008, 17 September2008, 15 October 2008,6 November 2008, 5 December2008, 7 January 2009, 6 March2009, 30 March 2009, 23 April2009 and 23 February 2010.6970/DT121/10On 25 October 2011, the SolicitorsDisciplinary Tribunal foundthe respondent solicitor guilty ofmisconduct in her practice as a solicitorin that she:a) Failed to advise the complainantthat her case was statutebarred and led the complainantto believe that proceedings werein being and that her case wasbeing processed,b) Sought instructions from thecomplainant on a settlement offerwithout informing the complainantthat she, the solicitor,was the source of this offer,c) Failed to attend the meeting ofthe Complaints and Client RelationsCommittee on 10 June2010, despite being required todo so,d) By her reckless disregard for theinterests of her client, broughtthe profession into disrepute.Having heard these five matters,the tribunal recommended thatthe matter be sent forward tothe President of the High Courtand, in proceedings record number2012 no 22SA, the Presidentof the High Court on 26 March2012 made an order:a) That the name of the respondentsolicitor shall be struckfrom the Roll of Solicitors,b) That the Law Society do recoverthe costs of the HighCourt proceedings and thecosts of the proceedings beforethe Solicitors Disciplinary Tribunalas against the respondentwhen taxed or ascertained.In the matter of MichaelBrowne, a solicitor practisingas Michael Browne, Solicitors,James Street, Westport, CoMayo, and in the matter of theSolicitors Acts 1954-2008 [2072/DT90/11]Law Society of Ireland (applicant)Michael Browne (respondentsolicitor)On 26 July 2012 and on 13 November2012, the Solicitors DisciplinaryTribunal sat to considera case against the respondentsolicitor. The tribunal found therespondent solicitor guilty ofmisconduct in his practice as asolicitor in that he failed to ensurethere was furnished to theSociety an accountant’s reportfor the year ended 31 December2010 within six months ofthat date, in breach of regulation21(1) of the Solicitors’ AccountsRegulations 2001 (SI 421 of 2001).

Law Society Gazette www.gazette.ie April 2013 regulationbriefing 55The tribunal ordered that therespondent solicitor:a) Do stand censured,b) Pay the whole of the costs ofthe Society as taxed by a taxingmaster of the High Court indefault of agreement.In the matter of John Sherlock,a solicitor practising as Sherlock& Company, Solicitors,9/10 Main Street, Clondalkin,Co Dublin, and in the matterof the Solicitors Acts 1954-2008[4340/DT128/11 and HighCourt record no 2012 no 86SA]Law Society of Ireland (applicant)John Sherlock (respondentsolicitor)On 9 October 2012, the SolicitorsDisciplinary Tribunal foundthe respondent solicitor guilty ofmisconduct in his practice as a solicitorin that he:a) Allowed a deficit on the clientaccount of €89,000 as of 30November 2010,b) Failed to pay monies totalling€75,722.67 due to third parties,notwithstanding the factthat these had been receivedinto the client account,c) Took fees in advance in relationto clients 5352 and 4738,as set out in paragraph 4.4 ofthe investigating accountant’sreport,d) Allowed debit balances inthe client account totalling€21,090.20, which werecleared in November 2010,e) Failed to maintain properbooks of account, as set out inparagraph 4.9 of the investigatingaccountant’s report, inbreach of regulation 12,f) Maintained a personal accountin the clients’ ledgerinto which he lodged loansand personal monies and fromwhich personal payments weremade, in breach of regulations5(4) and 7(2)(b),g) Transferred monies from clients’accounts, which wereproperly due to third parties,on behalf of clients, in breachof regulation 8(4) of the Solicitors’Accounts Regulations,h) Failed to inform clients of theparty-and-party costs receivedon their behalf, in breach ofsection 68(6) of the Solicitors(Amendment) Act 1994.The tribunal referred the matterforward to the President of theHigh Court who, on 17 December2012, ordered that the respondentsolicitor:a) Be censured,b) Pay the Society the sum of€15,000 to the Society’s compensationfund,c) Pay the Society the costs of theapplication to the High Court, tobe taxed in default of agreement,d) Pay the Society the costs of theSolicitors Disciplinary Tribunal,to be taxed in default of agreement.In the matter of Padraig J Butler,solicitor, formerly practisingas Butler Solicitors at 10 LowerPatrick Street Kilkenny, and inthe matter of the Solicitors Acts1954-2008 [2908/DT121/11 and2908/DT104/12]Law Society of Ireland (applicant)Padraig J Butler (respondentsolicitor)On 18 October 2012, the SolicitorsDisciplinary Tribunal found therespondent solicitor guilty of misconductin his practice as a solicitorin that he:a) Misappropriated substantial clientmonies, andb) Failed to comply with oneor more of the undertakingsgiven by him to furnish dischargeof charges in favour ofa named financial institution,in respect of the propertiesidentified in the schedule tothe affidavit sworn on behalfof the Society on 31 May2012.The tribunal recommended that:a) The respondent solicitor wasnot a fit person to be a memberof the solicitors’ profession,b) The name of the respondentsolicitor be struck off the Rollof Solicitors,c) The respondent solicitor paythe whole of the costs of theSociety, to be taxed by the taxingmaster of the High Courtin default of agreement.On 28 January 2013, the Presidentof the High Court ordered:a) That the name of the respondentsolicitor be struck off theRoll of Solicitors,b) That the respondent solicitordo pay the Society the costsof the proceedings before theHigh Court and the costs ofthe proceedings before theSolicitors Disciplinary Tribunalto be taxed in default ofagreement. Gjob-seekers’registerFor Law Society members seeking a solicitor position,full-time, part-time or as a locumLog in to the members’ register of the Law Societywebsite, www.lawsociety.ie, to upload yourCV to the self-maintained job seekersregister within the employmentsection or contact careersupport by email oncareers@lawsociety.ie ortel: 01 881 5772.legalvacanciesFor Law Society members to advertise for all theirlegal staff requirements, not just qualified solicitorsVisit the employment section on the Law Societywebsite, www.lawsociety.ie, to place an ad orcontact employer support by email onemployersupport@lawsociety.ieor tel: 01 672 4891. Youcan also log in to the members’area to view the job seekersregister.

56 eurlegalLaw Society Gazette www.gazette.ie April 2013briefingEurlegalEdited by TP Kennedy, Director of EducationQuality schemes for agricultural productsThe skills and determination ofEU farmers and producers whokeep traditions alive are recognisedin the recently adoptedRegulation (EU) No 1151/2012of the European Parliament andof the council on quality schemesfor agricultural products andfoodstuffs. In short, the regulationprovides for (a) protecteddesignations of origin (DO) andprotected geographical indications(GI); (b) traditional specialitiesguaranteed (TSG); and (c)optional quality terms (OPT).The regulation, which enteredinto force on 3 January 2013, repealsand replaces Regulations(EC) No 509/2006 on agriculturalproducts and foodstuffs astraditional specialities guaranteedand (EC) No 510/2006 onthe protection of geographicalindications and designations oforigin for agricultural productsand foodstuffs.The new legislation coversagricultural products intendedfor human consumption listedin annex I to the treaty, andother products closely linkedto agricultural production or tothe rural economy, which areset out in annex I to the regulation(for example, wool, leather,beer, beverages made from plantextracts, mustard paste, salt,chocolate and derived products,bread, pastry, cakes, confectionary,biscuits and other bakers’wares). The list of products maybe further supplemented by theEuropean Commission by way ofdelegated acts.Protected DO and protected GIThe scope for protected designationsof origin and protectedgeographical indications is essentiallylimited to product where anintrinsic link exists between theproduct or foodstuff characteristicsand the geographical origin.The protected DO and the protectedGI – the two identifiersfor the link between a productand its geographical origin – aredefined in the regulation. Article5 sets out the requirements forDO and GI.A DO is a name that identifies aproduct (a) originating in a specificplace, region or, in exceptionalcases, a country; (b) whose qualityor characteristics are essentiallyor exclusively due to a particulargeographical environment with itsinherent natural and human factors;and (c) the production stepsof which all take place in the definedgeographical area.Notwithstanding these requirements,certain names are treatedas DO even though the raw materials(that is, live animals, meatand milk) for the products concernedcome from a geographicalarea larger than, or differentfrom, the defined geographicalarea, provided that (a) the productionarea of the raw materialsis defined; (b) special conditionsfor the production of the raw materialsexist; (c) there are controlarrangements to ensure that theconditions referred to in point (b)are adhered to; and (d) the DO inquestion were recognised as DOin the country of origin before 1May 2004.A GI, on the other hand, is aname which identifies a product(a) originating in a specific place,region or country; (b) whose givenquality, reputation or other characteristicis essentially attributableto its geographical origin; and(c) at least one of the productionsteps takes place in the definedgeographical area.The regulation also deals withthe use of generic terms, conflictswith names of plant varieties andanimal breeds, with homonymsand trademarks, as well as productspecification. In addition, specificprovisions deal with names, symbolsand indications, as well as relationsbetween trademarks, DOand GI.Registration requirements andprocess are found mainly in articles8, 10, and 48-54. Provisionfor transitional national protectionis made, but this ceases onthe date on which either a decisionon registration under theregulation is taken or the applicationwithdrawn. The registrationprocedure enables any natural orlegal person with a legitimate interestfrom a member state, otherthan the member state of the application,or from a third country,to notify their opposition.The option of registering a DOor GI is open to names that relateto products originating in thirdcountries that satisfy the regulation’sconditions. Entry in theregister facilitates the provisionof information to consumers andto those involved in trade. Theregulation provides for specificderogations permitting use of aregistered name alongside othernames, for transitional periodsof up to ten years. The scope ofprotection is described in article13 and extends to the misuse, imitationand evocation of the registerednames on goods as well ason services – the aim is to ensurea high level of protection and toalign the protection with thatwhich applies to the wine sector.Member states are obligatedto take appropriate administrativeand judicial steps to preventor stop the unlawful use ofprotected DO and protected GIthat are produced or marketed intheir state.Traditional specialitiesguaranteedProvision is also made in the regulationfor an improved, clarifiedand sharpened scheme for traditionalspecialities guaranteed.The specific objective of thescheme is to safeguard traditionalmethods of production andrecipes by assisting producers oftraditional products to marketand communicate to consumersthe value-adding attributesof their product. The criteria tobe fulfilled are set out in article18, while article 19 deals withproduct specification and article23 concerns names, symbol andindication.Articles 20-21 and 48-54 containthe principal registrationrequirements and process. Theoption of registering a name asa TSG is open to third-countryproducers. Grounds for oppositionare set out in article 21.Transitional measures regardingregistration of names under Regulation(EC) No 509/2006 arecaptured in article 25, and a simplifiedprocedure with respect tocertain TSG names registered inaccordance with article 13(1) ofRegulation (EC) No 509/2006 isset out in article 26. TSG registerednames are protected againstmisuse, imitation or evocation,or against any other practice liableto mislead the consumer.Optional quality termsIn addition, the regulation providesfor a second tier of qualitysystems based on quality termsthat add value, can be communicatedon the internal market,and are applied voluntarily. Optionalquality terms, primarilydealt with in articles 27-34,are expected to refer to specifichorizontal characteristics, withregard to one or more categoriesof products, farming methods orprocessing attributes that applyin specific areas.An example of a term that is anOPT is ‘mountain product’. It isgenerally only used to describeproducts intended for humanconsumption listed in annex I tothe treaty, in respect of which (a)both the raw materials and thefeedstuffs for farm animals comeessentially from mountain areas,and (b) in the case of processedproducts, the processing alsotakes place in mountain areas. By4 January 2014, the commissionis required to present a reportto the European Parliament and

Law Society Gazette www.gazette.ie April 2013 eurlegalbriefing 57Opt-ing in for a ‘mountain product’the council on the case for a newterm, ‘product of island farming’.OPT are subject to monitoring,based on risk analysis, to ensurecompliance.Common provisionsTo ensure that registered namesof DO, GI, and TSG meet theconditions laid down by theregulation, applications are examinedby the relevant memberstate’s national authorities(see www.agriculture.gov.ie/gi)in compliance with minimumcommon provisions, including anational opposition procedure.Subsequently, the EuropeanCommission scrutinises applicationsfor no manifest errors andto ensure that EU law and theinterests of stakeholders outsidethe member state of applicationhave been taken into account.The role of groups is recognisedin the new regulation.A ‘group’ in this context is anyassociation, irrespective of itslegal form, mainly composed ofproducers or processors workingwith the same product. Groupsare seen to play an essential rolein the application process for theregistration of names of DO,GI and TSG, as well as in theamendment of specifications andcancellation requests.Operators are subject to a systemthat verifies compliance withthe product specification. Thesymbols, indications and abbreviationsidentifying participationin a quality scheme, and therights therein pertaining to theEU, are intended to be protectedin third countries as well as in theEU – with the aim that they areused on genuine products andconsumers are not misled as tothe qualities of products.Further details on how the regulatoryframework will operate isexpected to emerge over time,with the commission’s adoptionof a myriad of delegated acts andimplementing acts provided forin the regulation.In addition, by 4 January 2014,the commission has to present tothe European Parliament and thecouncil on the case for a new localfarming and direct sales labellingscheme to assist producers inmarketing their produce locally.State aid rulesOn 20 December 2012, thecommission opened a publicconsultation on state aid rulesfor agriculture and forestry (seehttp://ec.europa.eu/agriculture/stateaid/policy/consultation).Deadline for submissions was 20March 2013. The consultation isin the context of the expiration ofthe current rules on 31 December2013 and the State Aid Modernisationinitiative.Organic productionThe commission has alsolaunched a consultation on thefuture of organic production,which is to assist consideration ofa new framework regulation (seehttp://ec.europa.eu/agriculture/consultations). The consultationruns until 10 April 2013.CAP reformOn 24 January 2013, the vote onthe future reform of the CommonAgricultural Policy in theEuropean Parliament Agricultureand Rural DevelopmentCommittee confirmed the conceptstabled by the commissionon 12 October 2011 (see http://ec.europa.eu/agriculture/cappost-2013/legal-proposals/index_en.htm).GDiane Balding is a member of theLaw Society’s EU and InternationalAffairs Committee.

2012 OutstandingAchievement Award -Irish Institute of Training& Development (IITD)Awards – MostInnovative Use ofTechnology Category2012 OutstandingAchievement Award - IrishInstitute of Training& Development (IITD)Awards – Work Placement– Graduate and Non-Graduate CategoryDATE EVENT DISCOUNTED FULL FEE CPD HOURSFEE*8 April Job Seeker Support Programme Law Society Finuas Network:Corporate Governance, Risk Compliance, Investment Funds and CreditUnion Law CourseFree for Eligible Jobseekers. Contact jssp@lawsociety.ie16 April Intellectual Property Law Conference – Unified Patent Courts: theFuture, Trademarks and Copyright in 2013. Law Society IntellectualProperty Law Committee in partnership with Law Society ProfessionalTraining2 May New Act – Major Implications for all Solicitors: General PracticeImplications of the National Vetting Bureau (Children & VulnerablePersons) Act 2012 - A Necessary Date for Your Diary10/11 May Law Society Annual Conference: Presented in partnership with LawSociety Skillnet - Hotel Europe KillarneyFull: €165AM: €135PM: €102Full: €220AM: €180PM: €136Full day: 6 General (by Group study)AM – 3.5 General (by Group study)PM – 2.5 General (by Group study)€102 €136 2 General (by Group study)For full details and toregister contactlawsociety@ovation.ie3 General (by Group study) - 10 May3 General (by Group study) – 11 May17 May The New Companies Bill – Demystified Law Society Business Law €147 €196 3 General (by Group study)Committee in partnership with Law Society Professional Training23 May Tactical Negotiation Skills €105 €140 3 M & PD Skills (by Group study)MayMayMayTo view our full programme visit www.lawsociety.ie/LsptPost-Graduate Certificate in Learning Teaching and Assessment inpartnership with DIT and Law Society SkillnetJob Seeker Support Programme Law Society Skillnet: Personal Injury/Medical Negligence/Civil Litigation CourseJob Seeker Support Programme Law Society Skillnet: In-house LegalOfficer Course€896 €1,280 Full CPD requirement for 2013 (including M & PDand Regulatory Matters)Free for Eligible Jobseekers. Contact jssp@lawsociety.ieFree for Eligible Jobseekers. Contact jssp@lawsociety.ie13 June Law Society Skillnet: Setting up in Practice – A Practical Guide €225 €285 5 Management & Professional Development Skillsplus 1 Regulatory Matters (by Group Study)ONLINE COURSES: To Register for any of our online programmes OR for further information email: Lspt@Lawsociety.IeOnline eRegulation: New Terms of Business – Contract Precedent N/A €45 One Hour Regulatory Matters (by eLearning)OnlineeRegulation:N/A €45 One Hour Regulatory Matters (by eLearning)• Professional indemnity insurance• Guide to professional conduct• Solicitors’ accounts – common problems arising from year to yearOnline Facebook for Lawyers: The How to Guide N/A €55 5 Hours Management & ProfessionalDevelopment Skills (by eLearning)Online How to create an eNewsletter N/A €90 5 Hours Management & ProfessionalDevelopment Skills (by eLearning)Online The LinkedIn Lawyer: The How To Guide N/A €55 5 Hours Management & ProfessionalDevelopment Skills (by eLearning)Online Legal Costs Seminar: Recent Decisions and Pending Legislation N/A €55 1 Hour General (By eLearning)Online Microsoft Word – All Levels, Powerpoint – All levelsTouch typing, Excel for beginnersN/AFrom€405 Hours Management & ProfessionalDevelopment Skills (by eLearning)For full details on all of these events visit webpage www.lawsociety.ie/Lspt or contact a member of the Law Society Professional Training team on:P: 01 881 5727 E: Lspt@lawsociety.ie F: 01 672 4890*Applicable to Law Society Skillnet membersPlease note FIVE hours on-line learning is the maximum that can be claimed in the 2013 CPD Cycle

Law Society Gazette www.gazette.ie April 2013 eurlegalbriefing 59Recent developments in European lawINSOLVENCYCase C-116/11, Bank Handlowyw Warszawie SA v Christianaplsp z o o, 22 November 2012Insolvency proceedingswerecommenced inPoland by theapplicant inrespect of therespondent, which is 90% ownedby a French company. Rescue proceedingshad already been startedin France. The French proceedingshad a protective purpose,and the French court approved aten-year rescue plan for the company.Article 3(3) of the InsolvencyRegulation (1346/2000) providesthat any secondary proceedingsopened subsequently must bewinding-up proceedings.The CJEU was asked whetherprotective proceedings precludesecondary winding-up proceedings.It held that the regulationdoes not make any distinction accordingto the purpose of the mainproceedings and that, therefore,secondary proceedings may alwaysbe opened. They are liquidationproceedings, but the regulationaffords various tools to allow theinsolvency official appointed inthe main proceedings to influencethe evolution of the secondaryproceedings.The second issue concernedwhether the French proceedingswere not, technically speaking, insolvencyproceedings. They werepre-insolvency proceedings. Thecourt held that the French ‘procedurede sauvegarde’ is an insolvencyproceeding within the meaning ofthe regulation. The French courthad not ruled on whether the businesswas insolvent. The CJEU decidedthat, in those circumstances,the Polish court could not rule onthe issue.ORDER FOR PAYMENTCase C-215/11, Iwona Szyrockav SiGer Technologie GmbH, 6December 2012In 2011, Ms Szyrocka, a Polishresident, applied to a Polish courtfor a Europeanorder for paymentto be issuedagainstSiGer TechnologieGmbh,a German-based company. Theapplication for the order did notcomply with certain formal requirementslaid down by Polishlaw. She had stated the amount ofthe claim in euro, whereas Polishlaw required this to be expressedin Polish zloty. She also claimedinterest from a specified date untilthe date of payment of the principalclaim.The matter was ultimatelyreferred to the CJEU. It examinedthe provisions of the EuropeanOrder for Payment Regulation(1896/2006). The court held thatarticle 7 of the regulation exhaustivelygoverns the requirementsto be met by an application fora European order for payment.However, some provisions of theregulation make express referenceto national law. Article 25 allowsthe amount of the court fees to belaid down by domestic law, providedthat the rules for this purposeare no less favourable thanthose governing domestic actions.Article 4 provides that claims foramounts of money must be forspecific amounts and be due. Article7(2)(c) provides that, if intereston the claim is demanded, theapplication for a payment ordermust state the interest rate and theperiod of time for which that interestis demanded.From a combined reading ofboth provisions, the requirementsthat a claim must be for a specificamount and have fallen due do notapply to interest. Article 7(2)(c)should not be interpreted to theeffect that it is not possible toclaim interest that has accrued upto the date of the payment of theprincipal, as it might increase theduration and complexity of theEuropean order for payment procedureand add to the costs of suchlitigation. This could deter applicantsfrom using the procedure. G

Personal Insolvency PractitionerCertificate 2013DATES: Four full days of lectures and workshops in April spread over two weekend sessions(Friday and Saturday). Lectures may be accessed by webcast, attendance at workshopsessions mandatory.ASSESSMENT:Two hour closed book examFEE: €1,200Key learning outcomes• Comprehensive understanding of the role and obligations of a Personal Insolvency Practitioner• In-depth and practical knowledge of personal insolvency from legal, financial and commercial perspectives• Critical and commercial understanding of the practice and procedure of personal insolvency under the recent PersonalInsolvency Act 2012• Correctly interpret and complete the documentation and procedures to be used in the insolvency process and engageappropriately with the Insolvency ServicePlease note: In the opinion of the Insolvency Service an individual who completes this course of study and passes the exam will havemet relevant knowledge criterion for submitting an application for authorisation as a personal insolvency practitioner.Full details including the application form and dates are available on our website www.lawsociety.ie/diplomasThis course is only open to solicitors.PIP ad half page Gazette April 2013.indd 1 22/03/2013 14:50Diploma ProgrammeLegal Education for the Real Worldcourse name start date Fees*Diploma in Technology Law (new) (incl iPad Mini 16GB) Saturday 13 April €2,470Diploma in Commercial Litigation Wednesday 17 April €2,150Diploma in Employment Law (incl iPad Mini 16GB) Saturday 27 April €2,470Certificate in District Court Advocacy Saturday 13 April €1,160Certificate in Civil Litigation Updates (new)(Friday 5 July, Saturday 6 July, Thursday 11 July, Friday 12 July, assignment duedate 26 July)Certificate in Intellectual Property Rights Management (new)(intensive one week course)Friday 5 July €1,200**Monday 15 July to Friday19 July(*) Fees quoted are for solicitors. Non-legal personnel are subject to an application process and supplemental fee.(**) Reduced fee of €900 for Skillnet members€1,200For further information:W: www.lawsociety.ie/diplomase: diplomateam@lawsociety.ieP: 01 672 4802Law Society of Ireland Diploma Programmewinner of Law School of the Year award(Irish Law Awards 2012)Diploma ad half page Gazette April 2013.indd 1 22/03/2013 15:03

Law Society Gazette www.gazette.ie April 2013Professional notices61willsBarrett-Murphy, Carmel (deceased),late of Maryfield NursingHome, Lucan Road, Chapelizod,Dublin 20, and previouslyof 4 St Joseph’s, Maryfield, LucanRoad, Dublin 20, 126 LucanRoad, Chapelizod, Dublin 20,and 12 Willow Park Grove, Ballymun,Dublin 9, who died on17 February 2013. Would anyperson having knowledge of thewhereabouts of any will made bythe above-named deceased pleasecontact Corrigan & Corrigan,Solicitors, of 3 St Andrew Street,Dublin 2; tel: 01 677 6108, fax:01 679 4392, email: sarah.flynn@corrigan.ieBrady, Emmett (otherwiseJames Emmett Brady)(deceased), late of 5 AuburnGrove, Malahide, CoDublin, who died on 12May 2012. Would any personhaving knowledge ofthe whereabouts of any willmade by the above-nameddeceased please contact EleanorBannon of BannonClinch Collins, Solicitors, 1Drogheda Mall SC, Finglas,Dublin 11; tel: 01 834 6483,fax: 01 834 63322, email:e.bannon@bcclegal.ieCasey, Sheila (deceased), lateof 38 The Rise, Mount Merrion,Blackrock, Co Dublin. Wouldany person having knowledge ofa will made by the above-nameddeceased, who died on 12 De-Is your client interestedin selling or buying a7-day liquor licence?If so, contact LiquorLicence TransfersContact0404 42832Professional notice ratesrates in the Professional notices section are as follows:• Wills – €147 (incl VAT at 23%)• Title deeds – €294 per deed (incl VAT at 23%)• Employment/miscellaneous – €147 (incl VAT at 23%)Highlight your notice by putting a box around it – €33 extracember 2012, please contact JeremiahC McCarthy of CarneyMcCarthy, Solicitors, of 1 ClonskeaghSquare, Dublin 14; tel: 01269 8855, email: deborah@carneymccarthy.ieCunningham, Marie (deceased),late of 47 Connolly Gardens,Inchicore, Dublin 8. Wouldany person holding or havingknowledge of a will made by theabove-named deceased, who diedon 9 November 2012, please contactGartlan Furey, Solicitors, 20Fitzwilliam Square, Dublin 2;reference CUM102/0001; tel: 01799 8045, email: privateclient@gartlanfurey.ieFennell Patrick, (deceased), lateof 2 Ikerrin Road, Thurles, CoTipperary, and formerly of 2 OldStreet, Thurles, Co Tipperary; 2Rockypool Crescent, Blessington,Co Wicklow; and 6 Glenaraneen,Brittas, Co Dublin. Would anyperson having knowledge of a will(or documents relating to a will)made by the above-named deceased,who died on 10 December2012, please contact MooneyO’Sullivan, Solicitors, 7 OrchardstownPark, Rathfarnham, Dublin14; DX 154006 Templeogue;tel; 01 493 9431, email: harry@mooneyosullivan.ieFitzsimons, Dermot (deceased),late of Flat 6, HaroldsCross Road, Terenure, Dublin6W, who died on 15 May 2012.Would any person having knowledgeof the whereabouts of anywill made by the above-nameddeceased please contact Bourke &Company, Solicitors, of 167/171Drimnagh Road, Walkinstown,Dublin 12; tel: 01 456 1155,email: elaine@bourkesolicitors.comRatesAll notices must be paid for prior to publication. Cheques should be madepayable to Law Society of Ireland. Deadline for May Gazette: 17 April 2013. For furtherinformation, contact the Gazette office on tel: 01 672 4828 (fax: 01 672 4877)CAL LtdTesting LaboratoryIndependent Verificationof Drug AnalysisDr. Jack Bloomfield01 2360755 / 087 2502148Email: jbloom@iol.iewww.cal.ieCriminal Defence CasesGallagher, James D, aka Jim(deceased), late of Scenic Road,Gortnasillagh, Glenties, Co Donegal,who died on 9 July 2010.Would any person having knowledgeof any will executed by theabove-named deceased pleasecontact O’Connell Clarke, Solicitors,Suite 142, The Capel Buildings,Mary’s Abbey, Capel Street,Dublin 7; tel: 01 872 2246, fax: 01872 2247, email: info@oconnellclarke.ieKearney, William (deceased),late of 5 Orchard Road,Clondalkin, Dublin 22, andCherry Orchard Hospital, Dub-lin 10. Would any person havingknowledge of a will made by theabove-named deceased, who diedon 11 October 2012, please contactSherrys Solicitors, PalmerstownAvenue, Dublin 20; tel: 01623 2182, fax: 01 623 2183.Kearns, Patrick Michael(deceased), late of 20 StEithne Road, Cabra, Dublin 7.Any person having knowledgeof a will made by the abovenameddeceased, who died on 17May 2007, please contact SherrysSolicitors, Palmerstown Avenue,Dublin 20; tel: 01 623 2182, fax:01 623 2183.McDevitt, Michael (deceased),late of 25 Monaloe Avenue, Cabinteely,Dublin 18. Would anyperson having knowledge of awill executed by the above-mentioneddeceased, who died on 30November 2012, please contactO’Mahony’s, Solicitors, 6 ClonkeenRoad, Deansgrange, CoDublin, tel: 01 289 2487O’Brien, Mai (deceased), lateof Thomond, Station Road, Ballinasloe,Co Galway. Would anyperson having knowledge of awill (or documents relating to awill) made by the above-nameddeceased, who died on 8 February2013, please contact Noonan& Cuddy, Solicitors, SocietyStreet, Ballinasloe, Co Galway;tel: 09096 42344, email: info@noonancuddy.com

62 Professional noticesLaw Society Gazette www.gazette.ie April 2013miscellaneousContents of legal practicefor sale, to include a selectionof framed antique andmodern legal cartoon prints,server, PCs and printers,telephone system, scanner,fax, photocopier, binding machine,Dictaphone ThoughtTank with two handsets,stationery press, desks, filingcabinets and associatedequipment. Contact: irenedonnelly@eircom.nettitLe deedsIn the matter of the Landlordand Tenant Acts 1967-2005 andin the matter of the Landlordand Tenant (Ground Rents) (No2) Act 1978 and in the matter ofan application by Fergus LynchTake notice any person havingany interest in the freehold estateof the following property: 2 LeBas Terrace, Leinster Road West,Rathmines, Dublin 6, being partof the property more particularlydescribed in an indenture of leasedated 17 June 1874 and made betweenFrederick Stokes of the onepart and Samuel Le Bas of theother part for a term of 800 yearsfrom 17 June 1874 and subject tothe yearly rent of £16.5.0 sterlingand to the covenants and conditionstherein.Take notice that Fergus Lynchintends to submit an applicationto the county registrar for thecounty/city of Dublin for the acquisitionof the freehold interestin the aforesaid properties, andany party asserting that they holda superior interest in the aforesaidpremises (or any of them) arecalled upon to furnish evidenceof the title to the aforementionedpremises to the below namedwithin 21 days from the date ofthis notice.In default of any such noticebeing received, Fergus Lynch intendsto proceed with the applicationbefore the county registrar atthe end of 21 days from the dateof this notice and will apply to thecounty registrar for the county/city of Dublin for directions asmay be appropriate on the basisthat the persons beneficially entitledto the superior interest includingthe freehold reversion ineach of the aforesaid premises areunknown or unascertained.Date: 5 April 2013Signed: Noel Smyth & Partners (solicitorsfor applicant), 22 FitzwilliamSquare, Dublin 2In the matter of the Landlordand Tenant Acts 1967-2005 andin the matter of the Landlordand Tenant (Ground Rents) (No2) Act 1978 and in the matter ofan application by Fergus LynchTake notice any person havingany interest in the freehold estateof the following property: 3 LeBas Terrace, Leinster Road West,Rathmines, Dublin 6, being partof the property more particularlydescribed in an indenture of leasedated 17 June 1874 and made betweenFrederick Stokes of the onepart and Samuel Le Bas of theother part for a term of 800 yearsfrom 17 June 1874 and subject tothe yearly rent of £16.5.0 sterlingand to the covenants and conditionstherein.Take notice that Fergus Lynchintends to submit an applicationto the county registrar for thecounty/city of Dublin for the acquisitionof the freehold interestin the aforesaid properties, andany party asserting that they hold

Law Society Gazette www.gazette.ie April 2013Professional notices63a superior interest in the aforesaidpremises (or any of them) arecalled upon to furnish evidenceof the title to the aforementionedpremises to the below namedwithin 21 days from the date ofthis notice.In default of any such noticebeing received, Fergus Lynch intendsto proceed with the applicationbefore the county registrar atthe end of 21 days from the dateof this notice and will apply to thecounty registrar for the county/city of Dublin for directions asmay be appropriate on the basisthat the persons beneficially entitledto the superior interest includingthe freehold reversion ineach of the aforesaid premises areunknown or unascertained.Date: 5 April 2013Signed: Noel Smyth & Partners (solicitorsfor applicant), 22 FitzwilliamSquare, Dublin 2In the matter of the Landlordand Tenant Acts 1967-2005 andin the matter of the Landlordand Tenant (Ground Rents) (No2) Act 1978 and in the matter ofan application by Fergus LynchTake notice any person havingany interest in the freehold estateof the following property: 4 LeBas Terrace, Leinster Road West,Rathmines, Dublin 6, being partof the property more particularlydescribed in an indenture oflease dated 3 September 1873 andmade between Frederick Stokesof the one part and James McNallyof the other part for a term of800 years from 3 September 1873and subject to the yearly rent of£6 sterling and to the covenantsand conditions therein.Take notice that Fergus Lynchintends to submit an applicationto the county registrar for thecounty/city of Dublin for the acquisitionof the freehold interestin the aforesaid properties, andany party asserting that they holda superior interest in the aforesaidpremises (or any of them) arecalled upon to furnish evidenceof the title to the aforementionedpremises to the below namedwithin 21 days from the date ofthis notice.In default of any such noticebeing received, Fergus Lynch intendsto proceed with the applicationbefore the county registrar atthe end of 21 days from the dateof this notice and will apply to thecounty registrar for the county/city of Dublin for directions asmay be appropriate on the basisthat the persons beneficially entitledto the superior interest includingthe freehold reversion ineach of the aforesaid premises areunknown or unascertained.Date: 5 April 2013Signed: Noel Smyth & Partners, (solicitorsfor applicant), 22 FitzwilliamSquare, Dublin 2In the matter of the Landlordand Tenant Acts 1967-2005 andin the matter of the Landlordand Tenant (Ground Rents) (No2) Act 1978 and in the matter ofan application by Fergus LynchTake notice any person havingany interest in the freehold estateof the following property: 5 LeBas Terrace, Leinster Road West,Rathmines, Dublin 6, being partof the property more particularlydescribed in an indenture oflease dated 3 September 1873 andmade between Frederick Stokesof the one part and James McNallyof the other part for a term of800 years from 3 September 1873and subject to the yearly rent of£6 sterling and to the covenantsand conditions therein.Take notice that Fergus Lynchintends to submit an applicationto the county registrar for thecounty/city of Dublin for the acquisitionof the freehold interestin the aforesaid properties, andany party asserting that they holda superior interest in the aforesaidpremises (or any of them) arecalled upon to furnish evidenceof the title to the aforementionedpremises to the below namedwithin 21 days from the date ofthis notice.In default of any such noticebeing received, Fergus Lynch intendsto proceed with the applica-tion before the county registrar atthe end of 21 days from the dateof this notice and will apply to thecounty registrar for the county/city of Dublin for directions asmay be appropriate on the basisthat the persons beneficially entitledto the superior interest includingthe freehold reversion ineach of the aforesaid premises areunknown or unascertained.Date: 5 April 2013Signed: Noel Smyth & Partners (solicitorsfor applicant), 22 FitzwilliamSquare, Dublin 2recruitmentIn the matter of the Landlordand Tenant (Ground Rents) Act1967-1984: an application byMaxol LimitedTake notice any person having aninterest in the freehold interestof the following property: all thatand those that part of the townand lands of Borris Little situateon the Dublin Road betweenDublin and Stradbally roads inthe rural district of Mount Mellick,barony of Maryborough Eastand county of Laois, the subjectof a lease dated 20 May 1949 andmade between Evelyn GertrudeEyre Kaye, the Ocean Accidentand Guarantee Corporation Limited,and Peter Thomas WelsleySykes of the one part and Mc-Mullan Bros Limited of the otherpart, for a term of 99 years from18 June 1931, subject to the yearlyrent of £20.Take notice that the applicant,Maxol Limited, intends to submitan application to the county registrarfor the county of Laois for theacquisition of the freehold interestin the aforesaid property, andany party or parties asserting thatthey hold a superior interest inthe aforesaid property are calledupon to furnish evidence of titleto the aforesaid property to thebelow named within 21 days fromthe date of this notice.In default of such notice beingreceived, the applicant intends toproceed with the application beforethe county registrar for thecounty of Laois for directions asmay be appropriate on the basisthat the person or persons beneficiallyentitled to the superiorinterest including the freehold reversionin the above premises areunknown or unascertained.Date: 5 April 2013Signed: Rice Jones (solicitors for theapplicant), Castleview House, 22Sandymount Green, Dublin 4 GNOTICE TO THOSE PLACINGRECRUITMENT ADVERTISEMENTS INTHE LAW SOCIETY GAZETTEPlease note that, as and from the August/September2006 issue of the Law Society Gazette, NO recruitmentadvertisements will be published that include referencesto years of post-qualification experience (PQE).The Gazette Editorial Board has taken this decision basedon legal advice, which indicates that such references maybe in breach of the Employment Equality Acts 1998 and2004.

64 captain’s blawgLaw Society Gazette www.gazette.ie April 2013wild, weird and wacky stories from legal ‘blawgs’ and media around the worldRambler has bare-faced cheekNaked rambler Stephen Goughof Eastleigh, Hampshire, hasbeen issued with an interim antisocialbehaviour order (ASBO)banning him from going nude inpublic places.According to the BelfastTelegraph, the order was issuedat Southampton Magistrates’Court, which states that he must“wear sufficient clothing inpublic.” The order is effectivefor all of England and Walesuntil 10 May. If Mr Goughcontravenes it, he could beimprisoned.Mr Gough has served severalprison terms for refusing toget dressed in public places,including courtrooms.Eastleigh Borough Counciland Hampshire Constabularyjointly applied for the ASBOwhile a solicitor for the police,Roger Trencher, added thatthey wanted to clarify the legalposition.He said: “Gough has used aconsiderable amount of policetime in England, Wales andScotland. This is because heinsists on rambling naked. Herefuses to be deterred by thecriminal law. He believes thelaw is uncertain on the issue ofpublic nudity”.Keeping tabs on patientsA Utah sheriff’s office is floatinga unique and unproven idea forkeeping senior citizens withAlzheimer’s disease and dementiasafe – by giving them anklemonitors that are more usuallyassociated with criminals underhouse arrest or on parole.Davis County Deputy SheriffKevin Fielding says that themonitors will allow deputies tofind a person quickly who haswandered off, saving lives andtaxpayers’ money by avoidingtime-consuming searches.The monitors would be offeredto residents at a cost of about $4(€3.10) a day. While Alzheimer’sAssociation officials praisedthe agency for working to keeppeople with dementia andAlzheimer’s safe, they say thatusing the bulky ankle monitors isnot a realistic solution becausepeople will not want to wearthem.Don’t Bogartthat pencilA man has been sentenced to write a5,000-word essay after his convictionfor cannabis possession.The Bristol Post reports thatTerence Bennett had initially beensentenced to 240 hours’ communityservice as part of a one-yearsuspended sentence.However, the probation service sentthe case back because Bennett hada shoulder injury that posed a healthand safety risk.Judge Julian Lambert re-sentencedBennett to write the essay – onthe dangers of cannabis. Bennettapparently asked if the essay couldinclude the ‘counter argument’ infavour of cannabis, but the judge toldhim to stick to the dangers.Fake copcopped on’coptorA Kenyan man has beencharged after allegedlypretending to be an assistantcommissioner of police forfive years. It was said thatJoshua Waiganjo had sackedand recruited police officersin Rift Valley province duringthis time – but a subsequentreport found such allegationsto be false.Waiganjo denied twocounts of impersonatinga police officer, one ofillegal possession of policeuniforms and one of robberywith violence. The accusedpleaded not guilty to all fourcharges.He was reportedlyuncovered after flyingon a police helicopter toinvestigate a massacre of 42police officers who had beenkilled by cattle rustlers in theSuguta Valley last November– the most deadly attack onthe police in the history of theEast African nation. Nairobi’sCapital FM reported that MrWaiganjo had not been paid asalary by the police service.The Standard DigitalNews in Kenya says that theteam appointed to probe theWaiganjo affair found thatWaiganjo was neither a policeofficer nor a reservist.Returning the compliment“You seem to have more thanthe average share of intelligencefor a man of your background,”sneered the lawyer at a witnesson the stand.“If I wasn’t under oath, I’dreturn the compliment,” repliedthe witness.”(Thanks to Richard Hammondof Hammond Good, Mallow, forthis one!)

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