A TRIBUTE TO OUTGOING PAST PRESIDENT BRIAN GALLAGHER

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Criminal law, Drink driving Criminal law – Evidence - Validity of opinion of arresting garda – Whether direction by gardaí to commit illegal act affects validity of evidence or prosecution – Garda forming opinion that accused intoxicated to such extent that incapable of driving – Garda subsequently directing defendant to drive car to side of road – Whether amounting to direction to commit illegal act – Whether vitiating arrest Facts The accused was stopped by a member of the gardaí and informed that he had formed the opinion that the accused had committed an offence contrary to s. 49 of the Road Traffic Act 1961, as amended. The arresting garda then directed the accused to drive his car to the side of the road and stop whence he was arrested. At the conclusion of the evidence in the District Court, the accused applied for a direction that he be acquitted on the grounds that his arrest had been unlawful by reason of the fact that the arresting garda, having purportedly formed the opinion that the accused had committed an offence contrary to s. 49 of the Act of 1961, as amended, then required him to drive his car in circumstances which deprived him of his liberty and that the requirement was one to commit a criminal offence. It was also contended that the illegality associated with the arrest tainted the evidence obtained thereafter. The District Judge refused the application but agreed to state a case to the High Court as to (a) whether the arrest of the accused was lawful in circumstances where the arresting garda, having stated that he had formed the opinion that the accused had committed an offence contrary to s. 49 of the Act of 1961, then required the accused to continue driving; and (b) in the alternative, whether the requirement that the accused continue driving sufficient to vitiate the garda’s opinion that the defendant had committed an offence contrary to s. 49. Held by Ms Justice Dunne in answering the first question posed in the affirmative and the second in the negative. 1. that the fact that a garda has requested one to do an illegal act did not, of itself, amount to authority to an individual to do that illegal act. 2. That, as there was no causative link between the act complained of and the obtaining of evidence, the defendant had not been prejudiced thereby. 3. That, in the circumstances where there was a finding of fact that the garda had formed the necessary opinion, it could not be vitiated by subsequent events. Reporter: P.C. DPP v Penny High Court Her Hon. Judge Dunne 27/07/2006 2006 73 S.S [FL13013] Immigration, refugee and asylum law, Judicial review Immigration – Asylum – Judicial review – Leave – Whether respondent failed to take into account adequately or at all the applicant’s HIV status Facts The applicant sought leave to apply for judicial review quashing the decision refusing her refugee status. The applicant contended that there were materials before the Tribunal that placed the Tribunal itself on inquiry as to whether the applicant would be a victim of discrimination as an HIV positive woman in South Africa. Held by McMenamin J. in granting leave that the applicant was entitled to apply for judicial review on the grounds that the first respondent failed to take into account adequately or at all the fact or significance of the applicant’s status as an HIV positive person in the consideration of persecution in the future and as to her membership of a particular social group in the consideration of whether State protection was available to her. Reporter: R.W. Msengi v Minister for Justice, Equality and Law reform High Court Mr. Justice MacMenamin 26/05/2006 2005 No. 456 J.R [FL12984] European law, Judicial review, Planning and development law, Statutory interpretation Judicial review - Leave to appeal to Supreme Court - Statutory interpretation – Words and phrases – Point of law of exceptional public importance – Test to be applied – Planning and environmental law – European law – Whether point of law of exceptional public importance raised – Planning and Development Act 2000, section 50(4)(f)(i). Facts the High Court had declined the applicant’s application for judicial review of a decision of the respondent in respect of a waste recovery facility it planned to operate. The applicant applied for leave to appeal to the Supreme Court on points of law of exceptional public importance, being: whether Council Directive 75/442/EEC was properly construed as meaning that the proximity principle did not apply to waste for recovery within national boundaries; whether the policy issued by the Minister for the Environment pursuant to section 60 of the Waste Management Acts in respect of the movement of waste was relevant to the determination by the respondent of an appeal in relation to a proposed waste recovery facility in circumstances where some of the waste to be treated was generated outside the waste management planning region in which that facility was located and; whether, where the respondent was obliged to have regard to a ministerial direction issued pursuant to section 60 of the Waste Management Acts, a rebuttable presumption arose that it did have such regard. Held by Mr Justice MacMenamin in refusing leave to appeal to the Supreme Court on a point of law of exceptional public importance that the restriction imposed by section 50(4) of the Planning and Development Act 2000 indicated an intention that the planning process not be hampered by an unrestricted access to the courts which could cause delays, which restriction was to be lifted only in exceptional cases. That the test of exceptional public importance in that context meant: (1) the requirement went further than that a point of law emerged in or from the case; (2) the jurisdiction to certify such a case had to be exercised sparingly; (3) that the law in question stood in a state of uncertainty; (4) where leave was refused in an application for judicial review, a question could arise as to whether, logically, the same material could constitute a point of law of exceptional public importance; (5) the point of law had to arise out of the decision of the High Court and not from discussion or consideration of a point of law during the hearing; (6) the requirements regarding “exceptional public importance” and “desirable in the public interest” were cumulative requirements which required separate consideration by the court; (7) the test was not whether the point of law transcended the individual facts of the case; (8) normal statutory rules of construction applied which meant that “exceptional” had to be given its normal meaning; (9) uncertainty could not be imputed to the law by an applicant simply by raising a question as to the point of law rather the uncertainty had to arise in the daily operation of the law in question and; (10) some affirmative public benefit from an appeal had to be identified. The fact that the finding by the High Court involved an interpretation of European Community law did not render it a point of law of exceptional public importance. Reporter: P.C. Teoranta v An Bord Pleanala High Court Mr. Justice MacMenamin 13/07/2006 2005 No. 1309 JR, 2005 No. 120 COM [FL12987] COMMERCIAL LAW Allotments for non-cash consideration Solicitors are reminded that the abolition of capital duty in respect of shares issued on or after 7 December 2005 has not affected the requirement to file a form 52/contract where shares are issued for non-cash consideration. If shares are issued for cash consideration, the Form B5 can be filed directly at the Companies Registration Office. However if shares are issued for non-cash consideration, a form 52/contract must continue to be filed in duplicate with the Revenue Commissioners. Jurisdiction Clauses and Brussels Regulation In Nestorway Limited trading as Electographic International v Ambaflex B.V. (Clarke J, 19 July 2006) the High Court had to determine whether a distribution agreement contained an effective choice of forum clause for the purposes of article 23 of Council Regulation (EC) 44/2001 (“the Brussels Regulation”). The agreement was expressed to be governed by Dutch law and made reference to standard conditions frequently used in respect of the sale of goods in The Netherlands in relation to warranties and after sales service. Those terms and conditions specified that the courts of The Netherlands had jurisdiction to resolve disputes between the parties. The dispute in issue did not relate to warranties or after sales service but rather the purported early termination of the agreement. In the absence of specific Dutch law evidence, Clarke J held that it had not been proved that the jurisdiction of The Netherlands courts had been applied to the contract as a whole rather than simply the warranties and after sales service provisions. He also considered the provisions of article 5 of the Brussels Regulation (place of performance of a contract) and emphasised that the onus rests upon the party bringing the proceedings to establish that jurisdiction is conferred on the basis of article 5. The place of performance of the contract must be construed in accordance with the governing law of the contract which in the case being considered was Dutch law. Solicitors are reminded that when advising on a contract where the contracting parties are domiciled in different jurisdictions it is important to specify the forum for the resolution of disputes expressly and unambiguously in the contract. Exclusivity Agreements Often, when parties are in discussions with each other in relation to a transaction, one party will request that the other enter into an exclusivity agreement with it undertaking not to deal with any third parties in relation to the subject matter of their discussions. Careful drafting of an exclusivity agreement is crucial to ensure that the agreement is enforceable. In a recent High Court case,Triatic Limited v Cork County Council, Laffoy J found the reasoning of the House of Lords in Walford v Miles to be persuasive and approved it for the purposes of Irish law, holding that agreements to negotiate in good faith (often referred to as lock-in agreements) even with a time limit imposed for those negotiations are unenforceable because they lack the necessary certainty. However the judgment of the House of Lords in Walford and of the Irish High Court in Triatic makes it clear that an agreement not to negotiate with a third party will be enforceable if it is for a fixed period and it is supported by consideration or made under seal. When drafting exclusivity agreements, care should be taken to ensure that the exclusivity period is fixed, certain and reasonable. Rectification of Register of Members In Banfi Limited v Noel Moran, Karina Ray & others, Laffoy J considered the directors’ refusal to register a share transfer in accordance with the Articles of Association which provided that “the Directors may, in their absolute discretion, and without assigning any reason therefor, decline to register any transfer of any share, whether or not it is a fully paid share.” Laffoy J directed the rectification of the register of members and held that in refusing to register the plaintiff as a member, the directors were pursuing their own self-interests and not the interests of the company as a whole. The applicable principles were as set out in Courtney’s book on the Law of Private Companies. She noted that to succeed on its application to have the register rectified pursuant to section 122 of the Companies Act 1963, the plaintiff must discharge the burden of proving that the directors did not act bona fide in what they (rather than the court) considered to be in the interests of the company as a whole. Laffoy J also noted that section 122 creates a statutory remedy of rectification and it has not imposed any time limit for bringing such an application, although she noted that situations could arise in which a Court would consider that it would be inappropriate to exercise its discretion because of delay in bringing an application if it was shown that delay was prejudicial to the company. (note: this judgement is also reported in case abstracts). Deirdre-Ann Barr Additional Powers in Companies Bill The Investment Funds Companies and Miscellaneous Provisions Bill 2006 has been passed by both Houses of the Oireachtas. At Report Stage in the Dáil, a number of amendments were made to the Bill. These include: New provisions with regard to the status of statutory declarations made abroad for the purposes of theCompanies Acts. The new provisions confirm that such statutory declarations made by Irish practising solicitors or by a person such as a public notary authorised in the state to administer oaths will be acceptable. Declarations made before persons such as a public notary are expressly required to conform with arrangements regarding authentication under conventions to which Ireland is a party. The amendment also confirms the retrospective validity of statutory declarations made abroad which have already been delivered to and registered in the Companies Registration Office in accordance guidance which was previously issued by the CRO. Section 33 of the Companies Act 1963 and Section 21 of the Companies (Amendment) Act 1983 are amended to explicitly permit a private company to make offers of the type which benefit from exemptions under the Prospectus Regulations or which otherwise fall outside of the scope of these Regulations. An increase the permitted number of members of a private company to 99 in line with the recommendations of the Company Law Review Group (CLRG). Clarification on the application and transitional arrangements with regard to the increase on exemption thresholds for accounts which are being implemented by the Bill. Clarification with regard to the status of a statement made by an expert in respect of a prospectus under Section 45 of the Investment Funds Companies and Miscellaneous Provisions Act 2005 Additional powers with regard to the EU Transparency Directive are given to the Irish Auditing and Accountancy Authority (IAASA)
ODCE Guidance on Audit Committees Following a public consultation process, the Office of the Director of Corporate Enforcement has published Decision Notice D/2006/1 - Guidance on Audit Committees. The Decision Notice sets out the principal duties and powers of Audit Committees and provides further guidance for their operation. Section 42 of the Companies (Auditing and Accounting) Act 2003 requires certain types of companies to have an audit committee. The requirement applies to all public limited companies, qualifying “large private companies” and “relevant undertakings”. An audit committee is a committee of company directors required to regularly assess the validity of the company’s financial and other reporting arrangements as well as overseeing its internal and external audit processes. Audit committees will have a range of functions with regard to the accounting duties of the company, the appointment of auditors in relation to audit and non-audit work and other functions as may be assigned. The provisions of Section 42 have yet to be commenced. Privity of Contract and Third Party Rights The Law Reform Commission (LRC) have published a Consultation Paper on Privity of Contract: Third Party Rights. The LRC has provisionally recommended that subject to certain limitations, the privity of contract rule should be changed so that a third party who the contracting parties clearly intended to benefit from their agreement will be able to sue if the agreement is not carried out properly. The Consultation Paper examines the existing law on privity of contract and the problems encountered in practice as a result of the rule of privity. Particular problems are identified in the construction, insurance and shipping sector. The Paper also examines difficulties with regard to exemption clauses, professional negligence and with regard to consumer contracts. New EU Measures for PLC’s The European Commission has published Directive 2006/68/EC amending the Second Company Law Directive. The new Directive contains measures to facilitate the allotment of shares for a consideration other than in cash by public limited liability companies without requiring them to obtain a special expert evaluation. The Directive also includes measures to allow public limited liability companies to acquire their own shares up to the limit of the company’s distributable reserves. It also facilitates the granting of financial assistance by public limited liability companies with a view to the acquisition of their shares by a third party (subject to certain limits). The measures require Member States to ensure adequate safe guards for shareholders and third parties including creditors. Member States are required to transpose the directive no later then 15 April 2008. (OJL264/32) Credit Union Limits Increased Credit Unions are regulated by the provisions of the Credit Union Act 1997 as amended by the Central Bank and Financial Services Authority of Ireland Act 2003. Section 27 of the 1997 Act set certain limits on the aggregate liabilities a Credit Union may hold in respect of deposits from members also limited the amounts which may be held on deposit by a member of a Credit Union. The Minister for Finance has now increased the threshold for aggregate liabilities of a credit union in respect of deposits from members to be 100 per cent of its aggregate liabilities in respect of shares issued to members. The Minister has also increased the deposit limits so that a member may now hold on deposit a sum not in excess of 100,000 and may hold an aggregate claim or interest in shares not to exceed 200,000. Credit Union Act 1997 (Alteration of Financial Limits) Order 2006 (SI 453/2006). Section 21 of the Credit Union Act 1997 provides for the nomination by a member over the age of 16 of a person or persons to become entitled at his or her death to the whole or such parts of his or her property which he or she may have at the time of his or her death. The Minister for Finance has published Regulations increasing the threshold amount for such nominations to 23,000 . The Minister has also increased the threshold amount payable as a “small payment on death” under Section 23 of the Act to 15,000. Credit Union Act 1997 (Alteration of Financial Limits) Regulations 2006 (SI 546/2006). John Furlong FAMILY LAW UPDATE Pre-Nuptial Agreements In determining ancillary property and financial relief claims upon separation and divorce, the courts have very wide-ranging powers to make various orders, including lump sum orders, maintenance payments, property adjustment orders, orders for the sale of property and pension adjustment orders. The net value of all “family” assets must be put before the court and a decision is then made as to how these assets should be divided between the spouses to ensure proper provision for both spouses and any dependent children. There are no automatic entitlements or shares for distribution upon marital breakdown and each case must be considered on its own facts and circumstances. There exists, therefore, a great deal of uncertainty and unpredictability in family law litigation at present. As a result, there has been some considerable interest in the area of Pre-Nuptial Agreements in recent times, particularly in “high net worth” cases, both as a wealth preservation tool and to endeavour to achieve some certainty in family law disputes.A Pre-Nuptial Agreement is essentially an agreement between an engaged couple to specify what would happen in the event of their marriage breaking down. No longer the preserve of the rich and famous, the “Pre-Nup” is now increasingly being considered by wealthy individuals in this jurisdiction in an attempt to safeguard their position in the event of marital breakdown. To date, although the Irish courts have not considered their legal effect, it is clear that pre-nuptial agreements are not automatically binding and enforceable in Ireland for reasons of public policy. Nonetheless, many people have chosen to enter into a pre-nuptial agreement since it may at least serve to record the intent of the parties and their respective financial positions at the time of marriage. In this regard, full disclosure of all financial resources, tax planning advices and independent legal advice are vital components in the execution of a pre-nuptial agreement. It would also be advisable that the agreement refer to contingencies, for example, the passage of time and/or the birth of children. An expert group has now been set up to advise the Government on whether, and to what extent, pre-nuptial agreements should be recognised in Ireland and this area will certainly be watched with interest by family lawyers and engaged couples alike. This group will be chaired by Inge Clissmann SC and has been requested to prepare its report by the end of March 2007. The terms of reference of the group are to report on the operation of the law since the introduction of divorce having regard to the possible impact of pre-nuptial agreements “taking into account the constitutional requirements”. If there is a recommendation that these agreements should be taken into account when deciding ancillary relief cases, it is the writer’s view that the law could quite simply be changed to add them to the list of factors which the courts are already obliged to take into consideration, while reserving the final word as to proper provision to the trial judge, having regard to the particular circumstances. In the meantime, in the absence of binding pre-nuptial agreements and given the current uncertainty in the courts, many commentators are of the view that the only safe advice to give any wealthy individual is not to marry under any circumstances! Cohabitation The Law Reform Commission published its Report on the Rights and Duties of Cohabitants on 1 December 2006 (www.lawreform.ie). Launching the Report, Minister McDowell TD said that “Irish society has changed greatly in recent decades and family law has not evolved at the same pace to match the altered social reality. The reality is that many people now reside in domestic relationships which are not founded on marriage”. Cohabiting couples accounted for more than one in 12 family units in 2002 as against one in 25 in the previous census of 1996. As at the date of writing, the results of the 2006 Census are still awaited. The LRC Report sets out a series of recommendations for cohabitants across a range of areas to include an encouragement to cohabitants to register their relationship and enter into appropriate legal agreements on financial matters eg property co-ownership agreements. The Report also advocates the adoption of a “safety net” redress scheme for qualified cohabitants ie a couple who has cohabited in an intimate relationship (whether same sex or opposite sex) for at least three years, or two years if they have a child. This would allow a cohabitant apply to court for financial relief at the end of a relationship or on the death of the other cohabitant provided economic dependency on the co-cohabitant can be shown. The court could then make a variety of orders in areas such as maintenance, division of pensions and property. The Report also sets out further provisions for the recognition and treatment of cohabitants under social welfare law, taxation, private tenancies, domestic violence and in health care settings. These are set out in more detail in the LRC Report. Around the same time, the Working Group on Domestic Partnership established by the Minister for Justice in March 2006 and chaired by Anne Colley Solicitor published its Options Paper. This set out a wide range of options for the recognition and consequences of “domestic partnerships” in Ireland, to include full civil partnership and same-sex marriage. However, it remains to be seen what developments may flow from the publication of these reports. It also appears unlikely that any real progress will be made until after the next general election. Recent Judgments 2006 was a busy year for family law in the courts. Various high profile cases were decided in the course of the year, to include the “Baby Ann” adoption case, the embryo custody case and the claim for recognition of a same-sex marriage. These have brought into sharp focus the emergence of new or alternative family units in Ireland and the changing fabric of our society. We are also promised a Referendum on the Rights of Children but the timing and content of the proposed referendum is as yet unknown. The High Court also dealt with several ample resources cases in the course of the year, dealing with the concept of proper provision in ancillary relief cases. A series of “second bite of the cherry” cases also came before the High Court to determine the impact of “full and final settlement” clauses in divorce proceedings following a separation agreement or Consent Terms reached in the course of separation proceedings. Varying decisions were reached in these cases and a number of judgments were handed down in late November although they are not yet generally available. It is also understood that one or more of these judgments are likely to be appealed. In effect, it is impossible to distil a general principle from these cases as the weight to be attached to a prior settlement appears to vary from case to case depending on the particular circumstances. The High Court judgment in the Trusts case of TM v TM was also handed down in the course of 2006. The bulk of the assets in this case were comprised in a discretionary trust established by the husband’s family. A preliminary issue had initially arisen as to whether the lands and property comprised within the Trust could be considered by the courts when determining the question of proper provision. McKechnie J held that it could and that the trust in question fell within the definition of a post-nuptial settlement which would be capable of variation. It was also held that the term “settlement” in family proceedings has a broader meaning than under strict trust or taxation laws. As this was a preliminary ruling, it did not fall to McKechnie J to determine how the trust assets were to be divided so as to achieve proper provision. However, in the final hearing in March 2006, Abbott J made various orders for the division of the trust assets between the husband and the wife, although it is understood that this decision is now under appeal. There was also a great deal of interest in a number of English “big money” decisions in the course of the year, to include the Miller and McFarlane decisions in May 2006 which attracted huge media attention and it will be interesting to see whether these decisions are to be followed in this jurisdiction. Appointment of the Family Law Reporter One other development of note in the area of family law in 2006 was the appointment of Dr Carol Coulter in her role as Family Law Reporter. The appointment is initially for a period of one year with a view to identifying how information on the work of the family law courts can best be disseminated to the judiciary, the wider legal community, the media and the general public. This will involve reporting significant judgments and decisions of the High, Circuit and District Courts, the compilation of statistical information relating to the work of these courts and the drafting and distribution of family law information for general publication. Hilary Coveney, Matheson Ormsby Prentice Chair of the Family Law Committee Advance Notice - Collaborative Law There will be a training course in Basic and Intermediate Collaborative Law in Dublin on 26 and 27 March 2007. Interested parties should contact Niamh O’Hanlon of the Legal Aid Board (01 6441923 or nmohanlon@legalaidboard.ie) for further information. A Practice Development Day will also be organised by the Irish Association of Collaborative Practitioners to be held on Saturday 31 March 2007 in Cork. Further information on this date is available from Anne O’Neill Solicitor at 023 41322.
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A TRIBUTE TO OUTGOING PAST PRESIDENT BRIAN GALLAGHER

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