16 20 22 partners the - law society of ireland

Cover StoryGambling on the stock market

The Irish Stock Market has broken all previous recordsover the last five years, but is it a safe bet for the privateinvestor or just the financial world’s answer to LasVegas? Barry O’Halloran reports

The corporate killing fieldsThose responsible for five major UK disasters which left 473 people deadhave never been brought to justice, but recent proposals to createa new British offence of ‘corporate killing’ could changeall that. Paul Burnley and Kirsty Gomersal explain

Get with the programThe rapid growth of information technology hasleft our copyright laws trailing behind. DenisKelleher discusses the existing protections forsoftware authors and argues the case for reform

Firing your partners theAmerican way

A recent partnership case in the United States turned out to be a pot-boiling tale of greed, fear and fiduciary duties. But such a thing couldn’t happen here, could it? Michael Twomeybegs to differ

The better part of discretionDiscretionary trusts can be useful tax-planning mechanisms, butthe legal and technical issues need careful analysis. EamonnO’Connor outlines their potential benefits

Deals on wheelsWhat’s the best option for financing a new company car? Paul O’Grady looksat the wide range of packages available and gets a steer on good deals fromthe professionals

A fair day’s pay?Where does the money earned by your practice go and how can you maximise your profits? The second of two articles on the Law Society’s practice comparison survey

APRIL 1998 LAW SOCIETY GAZETTE 1

CONTENTSCONTENTS

REGULARS

President’s message 3

Viewpoint 4

Letters 7

News 9

Briefing

Council report 33

Committee reports 35

Practice notes 36

Legislation update 37

SBA report and accounts 38

Eurlegal 39

ILT digest 43

People and places 46

Book reviews 51

Professional information 54

12

APRIL 1998APRIL 1998

The views expressed in this publication, save where otherwise indicated, are theviews of contributors and not necessarily the views of the Council of the Law Society.The appearance of an advertisement in this publication does not necessarily indicateapproval by the Law Society for the product or service advertised.

Published at Blackhall Place, Dublin 7, tel: 6710711, fax: 671 0704.

Editorial Board: Dr Eamonn Hall (Chairman), Mary Keane, Ken Murphy, Michael V O’Mahony, Helen Sheehy

Subscriptions: £45 Volume 92, number 3

Editor: Conal O’Boyle MA

Reporter: Barry O’Halloran

Designer: Nuala Redmond

Editorial Secretaries: Andrea MacDermott, Catherine Kearney

Advertising: Seán Ó hOisín, tel/fax: 837 5018, mobile: 086 8117116,10 Arran Road, Dublin 9. E-mail: [email protected]

Printing: Turners Printing Company Ltd, Longford

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Rochford Brady are the only Lawsearchers/Town Agents to have been awarded the ISO 9002 Quality Service Mark.

Rochford Brady are the only Lawsearchers/Town Agents with Professional Indemnity Insurance of £2 million.

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PRESIDENT’S MESSAGEPRESIDENT’S MESSAGE

A s you’ll see from the reporton page 9 of this month’sissue, on 11 March I wel-

comed large numbers to the NewHorizons business breakfast hosted bythe Law Society and sponsored byPrice Waterhouse. In my introductionof the guest speaker, Michael Buckley,Managing Director of AIB CapitalMarkets, I indicated that the successof the financial services sector inIreland over the last ten years hadbeen truly remarkable. I pointed out that it had been created by thevision and tenacity of a few and that it was the collective challenge toall of us to ensure its continued success in entrepreneurial mode,unburdened by undue bureaucracy.

I was proud to say then, and to repeat now, that the members of ourprofession have played their part in an active, constructive and concreteway in building and creating this success. As President of your society,I acknowledge and pay tribute to the role of our members who have par-ticipated in this great accomplishment of our times.

Michael Buckley, in his speech, praised the solicitors’ profession forits great role in the creation of that enormous success, the InternationalFinancial Services Centre. He called on our profession to now play arole in its development over the next ten years, and I am glad to reportthat the Council has agreed with my proposal to appoint a task force toreview this area, to liaise with the Government committees and others,and to consider and work positively towards ensuring that the nextdecade will be just as successful as the past ten years.

National Crime ForumI congratulate our colleague, Professor Bryan McMahon, on takingthe chair of this important initiative of the Minister for Justice. I wishhim well on all our behalves in his endeavours. Your society has com-mitted itself to supporting this initiative, and James MacGuill is amember of the forum. The Criminal Law Committee is presentlyworking on a written submission to the forum on behalf of the pro-fession.

Recently there has been a certainamount of criticism of people who havereduced their tax rates by investing inapproved investments which generate taxrelief. I need hardly remind the critics thatmany of the large number of cranes thatare visible from Blackhall Place are aresult of those tax incentives, which havealso contributed to the creation of whathas become known as the Celtic Tiger.

It is unfair to criticise those who havelegitimately invested in investments

which generate tax relief. It is unfortunate that many of the developmentsin this area which were financed by investors who put some of their dis-posal income at risk and were rewarded with a tax saving should now beclassed as tax dodgers. If the reliefs need to be revisited, then by all meansthe reliefs should be revisited – but those that have legitimately takenadvantage of the reliefs offered should not be criticised for doing so.

Annual conferenceDue to the unprecedented number of colleagues who wished to attend ourconference in Florence, the organising committee, chaired by Gerry Griffin,and I are very upset at our inability to accommodate all our colleagues. Wehave endeavoured to do as much as possible. I look forward to welcomingall those travelling to Florence. See you at the Piazza Del Duomo.

Mr Justice Brian WalshFinally, during the last month the death occurred of Mr Justice Brian Walsh.He was a beacon in the Irish legal profession and helped in particular todevelop the people’s rights under the Constitution. The same words usedlong ago by the Times in an obituary of unparallelled eulogy, referring tothe passing of Christopher Palles, the Lord Chief Baron of the Court of theExchequer in Ireland, appear entirely appropriate: ‘A long, eminent andhonourable life, devoted to the betterment of social institutions and to elu-cidating and clarifying our legal system, has been closed’.

Laurence K ShieldsPresident

Financial services and the legal profession

4 LAW SOCIETY GAZETTE APRIL 1998

VIEWPOINTVIEWPOINT

To some, this piece may appearsensational. But there is a

serious issue at stake. SupremeCourt Justice, Oliver WendellHolmes, is revered as perhaps thebest-rounded mind and personali-ty in American life. Soldier,lawyer, judge and philosopher, hehas exerted more influence thanany other judge in the common-law world. In fact, Holmes towersover all other American judgesand most American historical per-sonages in the context of thescholarly and popular literaturethat he has engendered.

Married and childless, Holmeswas among the handsomest ofmen and enjoyed the company ofmany lady admirers. The issue iswhether Holmes’s private life isrelevant to his public life and rep-utation. Is any judge’s private life,is any politician’s private life, rel-evant to the public performance oftheir duty?

Born in 1841, wounded in theAmerican civil war, a classicalscholar, practising lawyer, profes-sor at Harvard Law School,appointed to the MassachusettsSupreme Court at the age of 41,Holmes was elevated to the USSupreme Court at the age of 61.

With his zest for life hardlydiminished, he retired from theSupreme Court in 1932 in his 91styear. He felt like a schoolboy,without the obligation of attendingschool. But he knew that the endwould come and waited serenelyfor the final call. It came on 6March 1935. Had he lived anothertwo days, he would have been 94.

Extra-marital romanceHolmes’s extra-marital romanticlife had not been considered in theearly works on the judge. Daniel JKornstein noted that Holmes hadbeen portrayed as an ascetic,almost mythical paragon, with aperfect untroubled 60-year mar-riage. Now we know that Holmes,‘like Zeus, occasionally camedown from Olympus for passion’,Kornstein observed (NYSBJ,1992).

John S Monagan, whose 1988book on Holmes opened a vista in

Holmes scholarship, noted thatHolmes’s ‘relationship withwomen was a central element inhis life’. He sought associationwith a variety of sympathetic andattractive women. As Holmesmatured in years, his attraction forwomen (according to Monagan)continued as his fame widened,his physical appearance becamemore impressive and his charmmatured. A significant part ofHolmes’s romantic life was hisrelationship with Lady ClareCastletown, one of the Cork StLegers, daughter of LordDoneraile, and married to BernardFitzpatrick, Lord Castletown.

She was introduced to Holmesin 1889, a relationship developed,and in 1896, at the age of 55,Holmes visited Doneraile Courtand Lady Clare, then aged 43.Leaving for the United States on22 August 1896, he wrote to herevery day on ship and posted allthe letters in a bunch in Boston.The correspondence continueduntil Lady Clare’s death in 1927.Holmes intended that the letterswould be destroyed and he burnedLady Clare’s letters; althoughrequested to do likewise, fortu-nately for historical reasons, shedid not do so.

It appears that some of

Holmes’s letters were discoveredin Doneraile Court in recenttimes and Lady Doneraile pre-sented these letters to theHarvard Law School library in1967.

Talk passes: lettersremainG Edward White, one ofAmerica’s esteemed legal schol-ars, in his 1993 biography ofHolmes, notes that in the firststages of the Holmes-Castletownrelationship, judging fromHolmes’s part of the correspon-dence, both parties demonstrateda degree of infatuation. Havingheard from Lady Castletown,Holmes wrote to her on 5September 1896:

‘I have this moment receivedyour most adorable letter. It iswhat I have been longing for andis water to my thirst. You say anddo everything exactly as I shouldhave dreamed. I shall keep it andwhen I am blue and you seem faraway I shall take it out and readit and be happy again. I do notforget easily, believe me – andyour letter was all that was want-ing to assure me that we shouldabide together.’

The correspondence contin-ued, and in May 1897 Holmes

received an ‘adorable long letter’from Lady Clare which promptedhim to reply:

‘Time has only made our inti-macy more settled, more certain.Is it not so? When I read betweenthe lines I do not mistake, do I?You have the gift of hints that maymean much or nothing. I take themto mean much. I think I shall keepyour affection always.’

Holmes visited Doneraile in1898 and subsequently professedtimeless devotion to Clare. In asubsequent letter, he wrote:

‘Separation from you is madebearable to me by the belief thatwe can now defy time and distance... But I long to hear you repeatagain and again that you do also –that it will not be different whenyou have become accustomed toseparation ...’

Holmes visited Ireland againand met Lady Clare and CanonPatrick Sheehan, parish priest ofDoneraile, who also becamefriendly with the judge. Lady Claredied in her sleep in March 1927. Afriend sent to the judge a touchingreport of her funeral whichappeared in The Cork Examiner.

We must not read too much intothe correspondence. Holmes wasdevoted to his wife and it is notsuggested here that he was unfaith-ful to her. G Edward White notesthat Holmes searched for intimacy,but in a ‘flirting’ manner. In manyways, his life was his wife and hiswork. Control, according to White,was one of the ‘linchpins ofHolmes’s conception of intimacy’.

Does the nature of Holmes’srelationships with women matter?There are those who argue that theprivate life of a person is inter-twined with his or her publicoffice. Others argue that a person’sprivate life is private, a matter forhis or her conscience, providedthat the public person does notbreak the law or preach what he orshe does not practise. I considerthat a person’s private life is pri-vate – a matter for his or her con-science.

Dr Eamonn Hall is Chief LegalOfficer of Telecom Éireann plc.

G

Oliver Wendell Holmes and a judicial affair

Holmes: does the nature of his relationship with women matter?


VIEWPOINTVIEWPOINT

A lmost without you realisingit, European Community

law comes before the averagelawyer on a daily basis, regardlessof his or her areas of practice.Apart from competition law, agri-culture and customs matters, thiscontact with Community law willbe through EC directives. Yet,since directives are implementedthrough national legislation, thelikelihood is that most lawyerswill look only at the relevant Actor statutory instrument and willnot think it worthwhile to be both-ered looking at the EC directiveon which the national law isbased. This might seem logical.But there are times when the useof Community law will benefityour client greatly.

Interpreting national lawAdmittedly, it is national legisla-tion which is generally the sourceof your client’s legal rights andobligations. But it is importantalways to remember that thenational law must be interpretedand applied so as to be consistentwith any underlying EC directive.Indeed, the European Court hasruled that, when interpreting andapplying national law, everynational court must presume thatthe State had the intention of ful-filling entirely the obligationsarising from the directive con-cerned.

Three questions should arise inthe mind of the inquiring lawyer:first, is there an EC directive gov-

erning the matter in issue? sec-ond, what interpretation is to begiven to the directive in question?and, third, does the national lawproperly implement the direc-tive? While it is generally recog-nised that the national law mustbe interpreted in line with thedirective, what is often ignored isthe problem of interpretation ofthe directive itself.

The rules governing interpre-tation of directives are relativelyclear: Community legislation isto be interpreted teleologically –that is, by having regard to itsobjectives; it is to be interpretedso as to be consistent with the ECTreaty and with general princi-ples of Community law such asproportionality. Derogations arenormally to be interpreted strict-ly: reference should be made tothe preamble of the legislation todetermine its meaning and pur-pose.

Different versionsMost importantly, however, it isoften not enough to look solely atthe English language version of adirective in order to grasp itsmeaning. EC legislation is draft-ed in each of the official lan-guages of the Community, all ofwhich are equally authentic. Aninterpretation of a provision ofEC law thus involves a compari-son of the different language ver-sions in order to arrive at a com-mon, or ‘proper’, meaning.

Now, admittedly, most lawyers

are not going to go to the trouble,each and every time they arefaced with a question of law, oftracking down 11 different lan-guage versions of a directive. Butjust consider the following sce-nario which formed the basis of ajudgment of the European Courtof Justice a few months ago.

Council Directive 79/112/EECconcerns the labelling of food-stuffs. The English language ver-sion stipulated such labellingmust indicate the ‘name andaddress of the manufacturer orpackager, or of a seller estab-lished within the Community’.However, the Italian versionomitted the comma and requiredthe indication of the ‘name andaddress of the manufacturer orpackager or of a seller establishedwithin the Community’. The

implementing Italian decree fol-lowed this version. Thus, on theface of it, the Italian legislationwas wholly in conformity withthe directive.

Clever defenceA problem was spotted by aclever defence lawyer when hisclient was prosecuted by theItalian authorities for selling acertain foodstuff, the labelling ofwhich indicated solely the nameand address of the producer whowas established outside theCommunity. By comparing thedifferent language versions inEnglish, French, Dutch andGerman, the Court of Justicedeclared that the comma was vitalto establishing the proper inter-pretation. Thus, the condition ofestablishment within theCommunity applied only to thereseller, and not to the manufac-turer or packager. The defendantwas acquitted.

Unfortunately, it is not uncom-mon for EC legislation to be poor-ly worded or badly translated. It isa sad fact of life that the carewhich goes into the drafting of thefinal version of Irish or Britishlegislation is not always emulatedby the Community institutions.The vigilant lawyer shouldalways bear this in mind.

Conor Quigley is a barrister prac-tising at Brick Court Chambers,Brussels and London, specialisingin European Union law.

G

A comma can make all the difference in European terms

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Conor Quigley: not uncommon forEU law to be poorly worded

Letters


VIEWPOINTVIEWPOINT

From: Irene Lynch, Departmentof Law, University College Cork

Iwas very surprised, as indeedwere a number of my col-

leagues, to see the first headlineon the March Gazette: Your GirlFriday: how to find the best legalsecretaries.

Describing a highly skilled,usually extremely hardworking,member of staff of any solicitor’soffice in such pejoratively sexistterms is so blatantly discriminato-ry as to be almost laughable. Notonly that, the editorial team in theLaw Society do not seem to be

aware of the terms of theEmployment Equality Act, 1977which prohibits employers fromdescribing any particular post interms which imply that it is onlysuitable for a man or a woman. Ifwe find such low editorial stan-dards in the Law Society, whatcan we expect elsewhere?

The editor replies:As far as we are aware, the termsof the Employment Equality Act,1977 do not apply to magazineheadlines. Nevertheless, it’s goodto know that political correctnessis alive and kicking in Cork.

From: Patrick J Farrell, Patrick JFarrell and Co, Co Kildare

Iwrote to a well-known Dublinmedical consultant some years ago

for a report on a young nurse whowas struck by a car while cycling towork. In due time the report arrivedwith a covering note which stated: ‘Ihave looked very carefully and thereis no sign of her’.

After reading this sentence sev-eral times and failing to make anysense of it, my own letter request-ing the report caught my eye. In thecourse of it, my typist had written:‘She was injured and is still underyour car’!

From: McCann FitzGerald, Dublin

The following was obtained offthe Internet and claims to beactual statements made duringcourt cases.

Judge: ‘I know you, don’t I?’Defendant: ‘Uh, yes’.

Judge: ‘All right, how do I knowyou?’Defendant: ‘Judge, do I have to tellyou?’Judge: ‘Of course. You might beobstructing justice not to tell me’.Defendant: ‘Okay. I was your bookie’.

From a defendant representing himself:Defendant: ‘Did you get a goodlook at me when I stole your purse?’Victim: ‘Yes. I saw you clearly. Youare the one who stole my purse’.Defendant: ’I should have shot youwhile I had the chance’.

Judge: ‘The charge here is theft offrozen chickens. Are you the defen-dant?’Defendant: ‘No, sir, I’m the guy whostole the chickens’.

Lawyer: ‘How do you feel aboutdefense attorneys?’Juror: ‘I think they should all bedrowned at birth’.Lawyer: ‘Well, then, I think youare obviously biased for the prose-

cution’.Juror: ‘That’s not true. I think prose-cutors should be drowned at birthtoo’.

Judge: ‘Is there any reason youcould not serve as a juror in thiscase?’Juror: ‘I don’t want to be away frommy job that long’.Judge: ‘Can’t they do without you atwork?’Juror: ‘Yes, but I don’t want them toknow it’.

Defendant: ‘Judge, I want you toappoint me another lawyer’.Judge: ‘Why?’Defendant: ‘Because the PublicDefender isn’t interested in mycase’.Judge (to Public Defender): ‘Do youhave any comment on the defen-dant’s motion?’Public Defender: ‘I’m sorry, YourHonor, I wasn’t listening’.

Judge: ‘Please identify yourself forthe record’.

Defendant: ‘Colonel EbenezerJackson’.Judge: ‘What does the “Colonel”stand for?’Defendant: ‘Well, it’s kinda like the“Honorable” in front of your name.Not a damn thing’.

Judge: ‘You are charged with habit-ual drunkenness. Have you anythingto say in your defense?’Defendant: ‘Habitual thirstiness?’

Defendant (after being sentencedto 90 days in jail): ‘Can I address thecourt?’Judge: ‘Of course’.Defendant: ‘If I called you a son of abitch, what would you do?’Judge: ‘I’d hold you in contemptand assess an additional five days injail’.Defendant: ‘What if I thought youwere a son of a bitch?’Judge: ‘I can’t do anything aboutthat. There’s no law against think-ing’.Defendant: ‘In that case, I thinkyou’re a son of a bitch’.

Dumb and dumber

Patrick J Farrell wins the bottle of champagne this month

From: TM Treston, Brisbane,Australia

My wife and I are giving con-sideration to spending a

period of ten to 12 weeks inIreland. The period we have inmind would be the months July toNovember inclusive. We wouldnot wish to stay in a large city. Thethought has occurred to us thatthere may be Irish practitionerswho would welcome the opportu-nity to spend an extended holidayin Australia. If so, a houseexchange proposal might appeal tothem. Anyone interested in such a

Low standards in highplaces

Anyone for a houseexchange?

suggestion can contact me at thefollowing address: TM Treston,Quinlan Miller & Treston,Solicitors, Commonwealth BankBuilding, 240 Queen Street,Brisbane 4000, Australia (tel: +073229 4366, fax: +07 3221 0015).

Your viewsYour letters make your magazine and may influenceyour Society. Send your let-ters to the Editor, LawSociety Gazette, BlackhallPlace, Dublin 7, or you canfax us on 01 671 0704.

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Lawlink is a joint venture between the Law Society of Irelandand IFG Group Plc. The range of services provided are:

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NEWSNEWS

Lawyers have a key role to playin growing Ireland’s lucrative

international financial servicessector, according to MichaelBuckley, Managing Director ofAIB Capital Markets. Speaking atthe latest Law Society NewHorizons business breakfast inDublin’s RDS, he said the indus-try had grown by 15% last yearand is set to double in size overthe next five years.

‘The legal profession has avery important role to play inassisting the Irish authorities withdefining suggested regulatoryreform as well as in proposingnew legislation which willincrease Ireland’s competitive-ness’, he said.

He also pointed out that manysolicitors are directly involvedand employed in the InternationalFinancial Services Centre (IFSC),as well as the industry generally.His own firm employs at least 20practitioners in non-traditionalwork such as securities, treasury,funds and custodial services.

In his talk, The IFSC – whereto from here?, Buckley warned

Lawyers ‘key to IFSC growth’ BRIEFLYSoftware changes hands IVUTEC, the Irish-based profes-

sional practice management

software developer, has taken

over the Italax program from

Orchard Software Ltd. Italax

claims to be the most commonly-

used software in Irish solicitors’

firms. The company’s managing

director Dermot Mooney has

pledged to develop the program

while keeping it easy to use.

EU legal programme The Council of the Bars and Law

Societies of the EU will launch

The programme of legal and

judicial co-operation on 15 June

next. The project is designed to

respond to the EU’s need to

train legal practitioners in the

legal and judicial co-operation

in Europe. For further informa-

tion, contact Cristina Coteanu-

Bompard, Council of the Bars

and Law Societies of the

European Community, Rue

Washington 40, B-1050 Brux-

elles (tel: 0032 2 640 4274).

Banking seminars in MayCardiff-based consultants Lawyers’

Planning Services are holding two

half-day seminars in Blackhall Place,

Dublin, on 21 May. The seminars,

Your real bottom-line and How to

improve your banking cost stg£175

but anyone booking both seminars

gets an automatic 10% discount

(tel: 0044 222 398161).

Volunteers needed to manenterprise standThe Law Society has taken a stand at

the Enterprise Experience ‘98 exhibi-

tion which runs from Friday 24 April

to Sunday 26 April in the National

Exhibition Centre at Cloghran, near

Dublin Airport. The stand is the ini-

tiative of the Image of the Profession

Committee which feels that the

Society should be more proactive in

publicising the services the profes-

sion can supply to entrepreneurs.

Volunteers are urgently required to

man the stand for shifts of about

two hours. Anyone interested in

helping out should contact Andrea

MacDermott or Catherine Kearney

on 01 671 0711.

that new incentives and productswould have to be offered topotential IFSC companies beforethe marketing deadline expires inDecember 2000. He argued thatafter this date, few companieswill want to set up in the IFSCuntil corporation tax is slashed to12.5%. ‘This will create a market-ing void unless we rethink whatthe IFSC has to offer and putsome new products and incentives

on the table’, he said.He called for the laws relating

to the funds industry to bereviewed and reformed to ensurethat this country stays an attrac-tive location in which to set upand administer funds.

The New Horizons programmeis organised by the Law Society’sCareer Development Committeeand sponsored by accountantsPrice Waterhouse.

The Law Society is due to pub-lish a guide to the ISO quality

management system shortly. ISO9000 and legal practices, pro-duced by the Society’s PracticeManagement Committee, will beavailable for distribution over thecoming weeks.

The guide gives an overviewof the international quality stan-dard and what members will needto do to get accreditation. Itdescribes the benefits of ISO,which include:● More effective staff training● Better communication

through a standardised prac-tice system for practice man-agement

● Better public relations● More satisfied clients● Lower costs through lower

insurance premiums andgreater efficiency in accredit-ed firms.

Members should note that thestandard does not purport to offersuperior legal advice; rather, itmakes it clear to customers that afirm’s management is organised

Society to publish ISO guideand consistent. Further informa-tion about the guide is availablefrom Liz O’Brien, MemberServices Executive (tel: 01 6710711).

Internet provider LawLink is

expanding into the Britain. The

company, which provides a

secure e-mail service for solicitors

in this country, launched its UK

service at the recent solicitors’

technology exhibition in

Birmingham’s NEC.

LawLink is 30% owned by the

Law Society of Ireland, which has

endorsed its SecureMail e-mail

service as the industry standard

for Irish lawyers. According to

LawLink director Stewart

Thompson, the company is now

discussing the possibility of hav-

ing its services endorsed as the

industry standard in Britain with

the Law Society of England and

Wales, and the Law Society of

Scotland.

An estimated 350 Irish firms

are currently using the service,

with approximately 40 joining

each month. It is also being used

by the Department of Health, and

several banks and building soci-

eties.

LawLink connects to UK

Law Society President Laurence K Shields (centre) with Price WaterhouseManaging Partner Donal O’Connor and guest speaker Michael Buckley at

the New Horizons business breakfast

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The Law Society of Ireland Visa Card is issued by MBNA International Bank Limited, incorporated in England and Wales under number 2783251. Registered office: StansfieldHouse, Chester Business Park, Wrexham Road, Chester CH4 9QQ. Registered as a branch in Ireland under number E3873 as 23 St. Stephen’s Green, Dublin 2. Credit is avail-able subject to status, only to ROI residents aged 18 or over. Written quotations available on request.


NEWSNEWS

BRIEFLY

Would you credit it?In the month since the Law

Society launched its credit card,

476 members applied for the

Visa card and most of these

have already been approved.

Several have been issued and

the holders are using them. The

card offers a credit limit of up

to £15,000 standard and

£25,000 gold. There is free pur-

chase protection insurance, no

liability for lost or stolen cards,

no annual fee, and 19.9%

annual percentage rate (vari-

able). Anyone using the card

for anything available from

Members’ Services will have

their name entered in a free

prize draw at the end of the

year.

Family lawyers to uniteThe fifth Family Lawyers’

Association annual conference

and AGM will be held in the

Great Southern Hotel, Rosslare,

Wexford, from 15 to 17 May

1998. The conference will focus

on two issues: the Children Act,

1997, and non-marital co-habi-

tation and the law. For further

information, contact Mark

Graham, Ormond Quay Law

Centre, Dublin 1 (tel: 01

8724133), Jennifer Curry (tel: 01

829 0000) or Sora O’Doherty,

Law Library (tel: 01 7023989).

Copyright crooks face five-year jail termsBreaches of copyright law will earn

prison sentences of up to five years

for offenders under a new law set

to be enacted by next July. Trade

and Consumer Affairs Minister Tom

Kitt revealed recently that the

Government has approved tough

new penalties for criminals who

flout intellectual property rights.

The newly-drafted Copyright

(Amendment) Bill, 1998 proposes to

jail offenders for up to five years, or

fine them to a maximum of

£100,000, or both. Kitt vowed that

the Bill would be passed no later

than July of this year.

(See also Get with the program,

p20)

Apprentices are due a pay increase

following the Law Society

Council’s approval of a revised rec-

ommended salary scale. The new

recommended rates are: £135

gross a week for the first six

months after completing the pro-

fessional course, £145 gross a

week for the second six months,

and £155 gross a week for the

remaining period. While there is

no strict obligation on a master to

pay an apprentice before the

apprentice attends a professional

course, the Council recommends

that the apprentice be paid £105

gross a week. These rates came

into force from 1 March.

Pay boost for apprentices

Law Society Director GeneralKen Murphy has hit out at alle-

gations that solicitors will refuse tosue their fellow professionals. Theclaim, made during a recent casein Galway District Court, wasdenied this month by Murphy, whorejected suggestions that membersoperate a protective practiceamong themselves.

‘There are always solicitorsavailable to sue other solicitors inmeritorious cases’, he said. ‘Anymember of the public whobelieves their solicitor has beennegligent or who believes theyhave a good case to bring againsta solicitor for any reason can con-tact the Law Society, which main-tains a panel of solicitors who areprepared to act in such cases’.

‘The names of solicitors in thelocality who are prepared to act insuch cases will be supplied.Whenever a good cause of actionlies against a solicitor, another

solicitor will always be found, withthe assistance of the Law Society ifnecessary, to institute proceedingsand bring the case to court’, he said.

The ‘protective practice’ claimwas made during a hearing inGalway District Court in whichAthenry private investigator AlfredDoherty was attempting to recover£1,420 in fees from local firm, VPShields and Son. Doherty com-plained to the court that he hadbeen told by his solicitor that it was‘doubtful’ if any law firm wouldtake a case against another. He wasforced to represent himself.

Judge Albert O’Dea said it was‘outrageous’ that any solicitor wouldmake such a statement, and con-demned lawyers for operating whathe claimed was a protective practice.

Solicitors’ protective practice denied

Conveyancing solicitors actingfor the vendors of a property

now owe a duty of care to the pur-chaser following the recent prece-dent-setting Doran judgment,where a couple who bought a£25,000 site in Wicklow won theright to sue the vendor’s solicitorsafter an eight-year court battle.

New duty of care on conveyancersIn the Supreme Court, Mr

Justice Keane ruled that Terenceand Maureen Doran were oweda duty of care by Bray solicitorsJoseph Maguire and Co, the firmthat acted for the sellers in thedeal. Mr Justice Keane said thatwhere a vendor’s solicitors wereaware that a neighbour had

already made claims over theland, and that there was a threatof litigation, they at leastassumed some responsibility forthe information about theseclaims.

A fuller examination of thislandmark case will appear in nextmonth’s Gazette.

Law Society Director GeneralKen Murphy and Minister for

Defence Michael Smith have bothwelcomed the Government deci-sion to proceed with the drafting oflegislation to amend the law onsolicitor advertising.

‘The proposal to amend the lawrepresents a pragmatic compro-mise. While some advertising willremain, it will have to conform to aspecific format’, the Minister said.

In January, the Law SocietyCouncil unanimously agreed tosupport legislation to ban solicitoradvertising for personal injurywork.

‘The Society believes that thisadvertising has greatly diminished

Society and Smith welcome ad curbsthe public esteem in which the pro-fession is held’, said Murphy.‘Maybe we will hear the ambulance-chaser jibe less frequently in future’.

He confirmed that the Society

had held a number of meetingswith the Department of Justice onthe draft legislation. ‘However, itis very much the Government’sBill, not the Society’s’, he said.

Ken Murphy: ‘there are alwayssolicitors available to sue other

solicitors’


Betting on the stock market seems like the ultimate gamble.Prices fluctuate every day, leaving some investors countingtheir winnings and others counting the cost of an expensiveflutter. Worse still, a ‘Black Monday’ style crash can wipemillions off the value of shares, leaving companies and their

stakeholders reeling.On the face of it, many other investment options seem safer than going

into this financial answer to Cheltenham, but is that actually the case? Infact, it’s not. The stock market offers the best chance of getting a goodreturn for any investor willing to look at the long to medium term.

In Britain, City guru and group economic adviser to Barclays, MichaelHughes, produces a yearly study comparing share performance with thatof Government bonds – traditionally the safest bet for an investor. His lat-est findings show that the chances of stocks outperforming these safe betsare as high as 96%.

Risk for returnsTaking any period of ten years since 1918, he says that gilts have beatenshares only three times, and cash investments have only given a betterreturn than the stock market on two occasions. So it seems there is nocontest if you are prepared to stick it out for the long term.

The story in this country is much the same. According to MarkDonnelly of Goodbody Stockbrokers’ private clients’ service, dependingon the circumstances, shares can be an attractive alternative. ‘Over thelonger term they have consistently outperformed other investments likecash and property’, he says.

Shares are the riskiest type of investment and to take such a risk youhave to get a high return. Obviously some stocks will collapse and otherswill rocket ahead. But in the long term, they still offer a high return.

Last year, shares on the Irish Stock Market increased in value by 50%.In other words, every £1 invested at the beginning of 1997 was worth£1.50 by the beginning of this year. Davy Stockbrokers’ Guide to theIrish equity market shows that the market’s value has more than tripledover the last five years, earning investors an average annual return of 30%over the same period.

Comparing last year’s market performance with what you would havereceived on deposit, which would only be around 5% to 6% at the most,it is clear that shares can be very worthwhile.

The Irish Stock Market has broken all previous records over the last five years.

But is it a safe bet for the privateinvestor or just the financial world’s

answer to Las Vegas? Barry O’Hallorandons his red braces and finds out

GamGam

market


COVER STORY

At this stage, opinion is divided on whether the market can keepsteaming ahead in this fashion. Some are predicting that the ISEQ indexof Irish shares will break new records this year, while others say thatprices are already over-stretched and that the only way the index can gois down. But market analysts are a bit like astrologers – no two of themwill come up with the same predictions.

Dealers say that the value of some stocks is stretched at the moment,so there could be some volatility in the short term, but they stress thatthere are plenty of stocks that still offer good value. Also, there may bea number of them that do not look attractive just at the moment, but maybe attractive in the long term.

So the real secret of success on the markets is not to go in hoping tomake a quick killing, but to invest for the medium or long term. Yourinvestment will go through highs and lows, but if you hang in there itshould ultimately reward you for your patience.

The dominant investors on the Irish market are the big financial insti-tutions, pension funds and life companies. But dealers say there is plen-ty of anecdotal evidence to indicate that more and more private individ-uals are now putting their spare cash on publicly-quoted companies.

At least one reason for this is the poor return offered by cash deposits.Low interest rates may be good news for borrowers, but they are bad forsavers, some of whom are earning only small amounts on the money theyhave left on deposit with the banks. ‘Because we have low inflation andlow interest rates, we are seeing more and more people moving their cashinto equities’, says Goodbody’s Mark Donnelly.

Getting in the doorSo if you are thinking of joining this rush to the trading floor, how do youget in the door? Most stockbrokers have a private clients’ service whichspecialises in dealing with individual investors. They will advise you onwhere to put your money and will act as your dealer, which means theywill buy and sell shares on your behalf.

You can allow the broker full discretion to make all the investmentdecisions. In this situation, they have to follow rigorous guidelines relat-ing to income, risk, tax and other issues as set down by the client. Thebrokers also have to notify any change to the investor.

The other option is an advice service. Here, the brokers act as advis-ers, taking into account the same requirements mentioned above. In this

mblingmarketstock

on thembling

stock

Advance Booking FormFee: £55 per person, £550 per table of 10 or £35 per solicitor qualified less less than three years. (There are only 100 reduced-pricetickets availabe and they will be issued on a first-come basis)

Please reserve place(s) @ £ or table(s) for the Law Society Celebration Ball onFriday, 17 July 1998, at Blackhall Place.

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LAW SOCIETY

Celebration BallTHIS YEAR THE SOCIETY CELEBRATES

20 years AT BLACKHALL PLACE.

TO MARK THE OCCASION A CELEBRATION

BALL WILL BE HELD IN A MAGNIFICENT

MARQUEE ON THE GROUNDS ON FRIDAY,

17 JULY 1998.

PRE-DINNER RECEPTION

SUMPTUOUS BANQUET

DANCING TO PADDY COLE AND THE ALLSTARS

AND FOR THE NIGHT OWLS - 2FM DJ BOB CONWAY ‘TILL LATE

DRESS – BLACK TIE

Enjoy a wonderful evening with friends,

clients or colleagues

case, the final decision is up to you, andonce your mind is made up the brokers acton your instructions.

In both situations, the brokers shouldprovide you with regular valuations ofyour investment. It’s also worth notingthat if you do not want your name on theshareholders’ register, which is a publicdocument, stockbrokers will provide anominee to hold the stake for your benefit.

On the other hand, if the deal is a one-off – for example, if you are sellingNorwich Union shares granted to you lastyear before the company’s flotation – thenyou can opt for a straightforward execu-tion service. Here, the intermediary has noinvolvement beyond simply buying orselling shares on your instructions and tak-ing a commission.

Dealers recommend that to get the bestvalue you should have at least £10,000 toinvest. The advantage of having a comparatively large sum like this toplay with is that it gives the broker the chance to spread the cash througha number of stocks in a bid to minimise risk and maximise earnings.However, not all private individuals have this kind of money, and it is notthat unusual for people to invest much smaller amounts.

Different dealsObviously, brokers are not philanthropists, and all charge commissionsfor their services. These may vary according to the amount of moneyyou are investing and the level of business you do with the company.For example, charges could range from 1.65% on the first £10,000, 1%up to £20,000 and 0.5% after that. But this should not be taken as a hardand fast rule.

Brokers will offer different deals depending on the kind of service youare looking for and the amount of money you are investing, so it makessense to shop around. Also, you should ensure that any investment inter-mediaries you deal with are properly accredited.

The market itself is divided into a number of sectors, basically:● Industrials, which includes companies like Smurfit and CRH● Financials, made up of the banks and insurance companies such as

Irish Life● Food, mainly the large co-ops which have been floated over the last 15

years, for example, Kerry and Golden Vale, and ● Exploration, which includes a range of Irish companies involved in

mining and exploration either at home or abroad.

Not all of the listed companies fit precisely into these sectors, whichthemselves are only broad categories whose overall performance may notreflect how particular stocks are doing. The official gauge for measuringequity performance is the ISEQ index, which is compiled by the IrishStock Exchange. It includes all shares listed on the official market andthe Developing Companies Market (DCM). Most of these are registeredin Ireland, but it also includes nine Northern Irish companies with a list-ing in Dublin.

The index is based on the quoted companies’ market capitalisation,which varies according to their share price. A company’s market capital-isation is the total value of all the shares if they were cashed in at thesame time. The ISEQ is updated regularly, one of the latest stocks to beincluded was British-based Norwich Union, the mutual which floatedlast June, delivering a windfall to thousands of Irish savers.

When it actually comes to putting your money somewhere, there area number of things that advisers take into account. Because the success

of your investment depends purely onhow the stock performs, which in turndepends directly on how profitable thecompany is likely to be, then you look atyour chosen investment’s prospects forthe future.

This may be easy to work out. Forexample, any company in the constructionindustry is doing well out of the buildingboom and is probably a good bet for thecoming year at least. But it is not so easywhen you consider that most of the com-panies quoted in Dublin have large inter-ests in other countries and in parts of theworld where the economy is either morevolatile than here, or is just not performingas well.

Market analysts say that any businessactive in this economy has good prospects,but that should not be the only factor thatinfluences the choice of investment. ‘We

would say that companies with a lot of exposure in the Irish economy areobviously good value at the moment’, one says. ‘But that’s not all youshould look at. We also look at how well-managed a company is and atits strategy for future growth. At the moment, most Irish shares representgood value. Companies like Kerry, CRH, and Waterford/Wedgwoodremain attractive’, he adds.

Davy Stockbroker’s forecast for this year predicts that the smallerstocks are likely to out-perform all others on the market over the next 12months, leaving even giants like AIB and Smurfit in the shade. The firmis backing companies like Arnotts, Jury’s, Ryanair and United Drug tomake big gains in 1998.

Of the larger companies, Davy says that Smurfit, Waterford,Clondalkin, Fyffes and Lamont should do well, while the brokers say thatin the financial sector insurance companies offer a cheap alternative tothe banks, whose strong performances have pushed up their prices.

The DCM may also offer good opportunities. This is an alternativemarket designed for smaller, newly or recently-floated companies whichdo not qualify for a full listing. The volumes, or amount, of shares trad-ed by each DCM company tend to be smaller and prices may also becheaper.

It can offer good prospects to private investors. One of the DCM’srecent success stories was recruitment specialist Marlborough plc whichwas floated last October and subsequently applied for a full listing aftertaking over a British firm, Walker Hamill. Its share price almost doubledduring that period and the company earned a very good return for itsinvestors.

Taxing thoughtsAny income you make from an investment is subject to tax. Dividendspaid to you on your shares by the company qualify for income tax, whileprofits from selling shares qualify for capital gains tax (CGT). But youcan cut your liability by putting your money in a special portfolio invest-ment account. This is a scheme designed to encourage private investorsto invest in Irish stocks by offering them tax breaks.

A single person is allowed to place up to £75,000 in a special portfo-lio, while married people are limited to £150,000. Both income and cap-ital gains are taxed at 10%. Thus, if someone places £10,000, and thevalue of their holding increases by £1,000, they pay £100 CGT, or if theyreceive £2,000 in dividend income, they pay £200 in income tax.

So it does seem that using your spare cash to stock up on shares is agood idea. In any case, you have to admit that playing the market is like-ly to be far more exciting than putting your money in the post office. G


COVER STORYCOVER STORY

The Stock Market: the ultimate gamble?


Ten years ago 167 people died inthe tragedy on the Piper Alpha oilrig. In 1987, 31 people were killedin the King’s Cross fire, while 35people perished in the Clapham

rail crash of 1988. The sinking of the Herald ofFree Enterprise in 1987 resulted in 188 deathswhile the sinking of the Marchioness two yearslater saw 51 people lose their lives.

Remarkably, in each instance, no successfulprosecution for manslaughter against the com-pany or the individuals who make up the com-pany was able to be mounted in the UnitedKingdom. Why is that so? It took a furthertragedy last year – the Southall rail crash inwhich seven people died and 160 were injured– for the British Government to act. Moveshave now been made which, in future, shouldmake it easier to prosecute UK firms formanslaughter and potentially to bring to justicethose responsible for the deaths.

The British Home Secretary, Jack Straw,supported by Deputy Prime Minister, JohnPrescott, is pressing for the introduction of anew offence of ‘corporate killing’. Companydirectors could also be prosecuted and be liablefor unlimited fines and imprisonment if theyare found to have failed to ensure the healthand safety of those affected by their activities.

Controlling mindThe present UK law demands that, in prosecut-ing a corporation for manslaughter, it is neces-sary to identify a ‘controlling mind’ and, assuch, it has been notoriously difficult to pinpointone person who caused the death or deaths.

The failure of the law to avenge those killedby management failures has been criticised forsome time. There has been a great deal of spec-ulation about the criminal law’s ability to protectemployees and the public from the activities ofcorporations and to punish corporate offenders.Recommendations for the creation of an offenceof ‘killing by gross carelessness’ to replace thepresent offence of corporate manslaughter weremade by the Law Commission in March 1996after many years of discussion and debate.

In the eyes of the greatBritish public those

responsible for five majordisasters which left 473people dead and many

others injured have neverbeen brought to justice.

But recent proposals fromthe UK’s Law Commissionto create a new offence of

‘corporate killing’ couldsoon change all that, asPaul Burnley and Kirsty

Gomersal explain

corporatekillin

The

killin


CRIMINALCRIMINAL

The reason for the law’s failure is that thecurrent offence has developed case by case overthe centuries and is still tainted by preconcep-tions which existed in the 17th century. It wasnot until the early part of this century that theprocedural rule that a defendant had to appear inthe dock to answer a charge was defeated bylegislation which stated that corporations couldappear in court and plead through a representa-tive. Until that time, the fact that a corporationcould not physically appear in court excludedthem from criminal jurisdiction.

‘Who is to blame?’It was also thought that a company could notbe guilty of a crime as it had no body or mindand therefore could not have a guilty intent. Itis only recently that the law has been furtherrefined so that a company can be found crimi-nally responsible for the acts of those repre-senting the directing mind and will of the com-pany and who effectively controlled what thecompany did. This has still not satisfied thepress or the public. ‘Who is to blame’ stillechoes down the corridors of coroner’sinquests and public hearings into a tragedy.

The present corporate offence is that of‘involuntary manslaughter’. It is not possibleto prosecute a company for voluntarymanslaughter or murder as the penalty isimprisonment and a company cannot be sent tojail. Involuntary manslaughter covers caseswhere there was no intention to kill or causeserious injury, but the law considers that theperson causing death was in some other way toblame. A conviction for manslaughter is possi-ble as it is punishable by a fine. It is necessaryto prove that the decisions made by the direct-ing mind of the company (or the failure tomake decisions) caused the fatality.

So far in the UK only a handful of caseshave been brought to trial for corporatemanslaughter. In May 1992, P&O Ferries wastried for manslaughter following the sinking ofthe Herald of Free Enterprise off Zeebrugge in1987. Mr Justice Sheen, who conducted a fullinvestigation into the disaster and its causes,

concluded that the fault lay with the directorswhom he described as a ‘vacuum at the centreof the company’. The company was describedas being infected ‘with the disease of sloppi-ness’ from top to bottom. At the coroner’sinquest, despite the direction from the coroner,the jury returned a verdict of unlawful killing.

The subsequent trial of the company andseveral individuals was stopped by the judgeeven before the prosecution had closed its case.The Crown failed to prove the key element:that directors and senior managers (the peoplerepresenting the controlling mind of the com-pany) had formed the necessary criminal intentor had acted in a grossly negligent way in thatthey ought to have known that there was a seri-ous and obvious risk that the ship would sailwith open bow doors. In essence, for the com-pany to be convicted of manslaughter, the indi-vidual defendants would also have to be guilty.

Despite the damning Sheen Inquiry, it wasalways going to be an uphill struggle to provethe case against P&O. The overwhelming dif-ficulty was identifying the ‘controlling mind’.The more diffuse the corporate structure, themore difficult this can be to define. However,the decision by the British Director of PublicProsecutions to prosecute the company washailed as a major step towards corporateaccountability and gave the courts the opportu-nity to confirm that, where the evidential bur-den was discharged, the offence of manslaugh-ter could be established against a company.

First successful prosecutionThe first successful prosecution for corporatemanslaughter occurred in December 1994.After four young people drowned in the LymeBay canoeing tragedy, the company responsi-ble for their fatal trip (OLL Limited) was con-victed of corporate manslaughter and fined£60,000. In this instance, it was possible toidentify a ‘controlling mind’. The company’smanaging director, Peter Kite, was also foundguilty of the children’s manslaughter and jailedfor three years. He was said to be grossly neg-ligent in ignoring the warnings of former

ing fieldsing


CRIMINALCRIMINAL

employees who left because of concerns aboutsafety at the centre; he was also said to have pro-vided inadequate training and to have employedinsufficiently qualified people.

A further successful prosecution was securedin September 1996 when Jackson Transport(Ossett) Limited and its former managing direc-tor were found guilty in Bradford Crown Courtfollowing the death of an employee who hadbeen cleaning chemical residues from a tanker.Alan Jackson was sentenced to one year’simprisonment.

Both Jackson and the company were alsofound guilty of two offences under the Healthand Safety at Work Act 1974 (HSWA) for failureto secure the safety of employees. The Act con-tains similar provisions for failing to ensure thesafety of third parties, for example, customers.Such a conviction carries an unlimited fine fol-lowing conviction in the Crown Court and apotential two-year jail sentence for a directorfound guilty of the offence. It is also possible fora director convicted in the Crown Court to be dis-qualified from acting as a director for up to fiveyears. This represents a potential ‘double wham-my’ for companies and a ‘triple whammy’ fordirectors. It remains to be seen whether compa-nies will be prosecuted under both the HSWA andany new offence, but it is likely that the impetusfor a prosecution for corporate manslaughter willbe used where prosecution under the HSWAseems inappropriate or inadequate.

The Law Commission’s proposed newoffence of ‘corporate killing’ is defined askilling by gross carelessness or where the con-duct falls well below what could reasonably beexpected. A company would be liable underthis offence if a management failure resulted indeath and that failure constituted conductwhich failed to ensure the health and safety ofthose affected by the company’s conduct. Theconvicted company would be liable to anunlimited fine and to remedy the fault whichled to be accident.

Genuine corporate liabilityThe conviction of companies responsible fordeaths should be easier under the proposednew offence. A successful conviction will nolonger depend on the identification of the‘directing mind’; rather, the question will bewhether the corporation was grossly careless inthat it should have been aware that there was arisk of death or serious injury and, secondly,that its conduct fell well below what could rea-sonably be demanded in dealing with the risk.There should now be genuine corporate liabili-ty as opposed to individual liability. What is‘reasonable’ will depend on the individual cir-cumstances of each case and will be a matterfor a jury, but it will include factors such as thecost and practicality of taking steps to reduceor eliminate the prevalent risk.

If the proposals are implemented, it will be

the conduct of the company which is ques-tioned as opposed to the status and identifica-tion of those responsible for it.

So what about prosecuting individual direc-tors for manslaughter? The Law Commissionmakes no suggestions about this, but it is like-ly, given the present mood of the British courts,that such prosecutions will continue alongsidecorporate prosecutions. However, while thechange in the law with regard to the corporateoffence may result in more successful prosecu-tions, it is unlikely that the situation willchange with regard to those ultimately respon-sible for any death. How far that will satisfypublic anger remains to be seen.

In a large diffuse company, such as P&O, itcan be difficult to identify those ultimately atfault. It is undoubtedly easier for a director of asmall company to be prosecuted because themanagement structure is simpler and he ismore easily identifiable. So while companiesface the stigma of being branded corporatekillers, senior executives of large companiesare unlikely to be pursued. Strange as it mayseem, it is the directors of smaller businesseswho are more likely to face a custodial sen-tence than the directors of large companieswho may be just as liable – if not more so.

Paul Burnley is a partner and Kirsty Gomersalis a solicitor in the Leeds office of the UK lawfirm Eversheds.

G

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Please return to Law Society Gazette, Blackhall Place, Dublin 7.

MONTH/YEAR

Technology’s rapid surge ahead has left our

copyright laws trailingbehind the times. Denis

Kelleher outlines theexisting protections for

computer programauthors and argues the

case for reform


Computer programs are valuablecommodities which cost millionsof pounds to create but just a fewpence to copy. The great demandfor new programs and the high

rewards for their creators make this a veryfinancially rewarding industry for anyoneinvolved. But if a computer program is success-ful, then many people will try to copy it. Theymay reproduce the whole program and sell itwithout giving the author any royalties, or theymay copy parts of it to improve their own com-peting programs.

In Ireland, computer programs are protectedby copyright law in the same way as literaryworks such as books. This is a very strong pro-tection but the law is convoluted. Computer pro-grams derive their basic protection from an EUdirective implemented in Ireland as SI 26/1993,which essentially protects computer programs asliterary works under the Copyright Act, 1963.

This means that anyone wishing to assert hisrights over a computer program, or a part of it,has to refer to three separate laws to establishthose rights. Conflicts and contradictionsinevitably arise between the different provisions,a problem compounded by the fact that the EU iscommitted to comprehensively amending copy-right law.

The anticipated arrival of EU legislation andthe need for Ireland to agree to revisions of theBerne convention and the new World TradeOrganisation (WTO) treaty on copyright maytempt the Irish legislature to wait before reform-ing our law. This ignores the fact that theCopyright Act, 1963 was never written for com-puter programs or the other products now beingcreated for the Internet and other technologies. Itis badly out of date and in need of reform.

Programs written by Irish people are protectedby the Act and programs written by Europeanshave to be protected under Irish and Europeanlaw. But the Copyright (Foreign Countries)Order, implemented in 1996, extends the Act’sprotection to literary works first published, eitherbefore or after the making of the order, in anycountry of the Berne Union, the Universal copy-right convention or the WTO, includingAmerica, where most programs are written.

This was passed because the 1963 Act’sdrafters never thought that marketing andexploiting the works of American authors of anykind would be a multi-million pound industry inIreland over 30 years later and that it would beused to protect that business. In the same way, if

Get with tGet with t


TECHNOLOGYTECHNOLOGY

the drafters and legislators of 1963 had evenheard of a computer program they would nothave realised that the Act would in time be usedto protect 1990s’ technology. Using the Act toprotect modern technology is inappropriate andit would have been better to introduce a newCopyright Act in 1993 rather than relying on thesticking plaster of a statutory instrument.

One difficulty caused by the Act is containedin section 27(3). This makes it an offence toknowingly make or hold a plate (defined as‘including a stereotype, stone, block, mould,matrix, transfer, negative or other appliance’). Itis unclear whether or not holding a computerprogram or a part of a computer program forcopying would be an offence.

Trivial penaltiesAt any rate the penalties are trivial when com-pared with the sums which may be made by sell-ing pirated copies. Anyone summarily convict-ed of selling or distributing infringing copiesshall be liable to a fine of £100 per copy on hisfirst offence and in any other case liable to thesame fine or to imprisonment for not more thansix months. But the fine cannot exceed £1,000.

This leniency should be contrasted with thesituation in the United States where theCopyright Felony Act 1992 provides that a per-son who ‘wilfully and for purposes of commer-cial advantage or financial gain reproduces ordistributes within a 180-day period at least tenunauthorised copies ... of one or more copy-righted works with a collective value of morethan $2,500’ will face up to five years in prisonand a fine of $250,000 for a first offence.

But the major challenge for Irish courts is thetask of devising a test for deciding whether ornot a computer program has been copied fromanother. This probably cannot be met by legisla-tion. Copyright disputes may take two basicforms. In the first, a work is pirated or simplycopied with no effort made to disguise it. Thechallenge is not to prove that copying occurred,but to catch the pirate. The second is more com-plex: here, elements of one computer programwill be copied and included in another to com-pete with the original. The alleged copier will beeasy to identify, but proving that they havecopied may be difficult.

The test for deciding whether or not copyingoccurred was laid down by Costello J in Housesof Spring Gardens v Point Blank Ltd (1984) IR611 where he adopted a test developed byWilmer LJ in Francis Day and Hunter Ltd v

Bron: ‘In order to constitute repro-duction within the meaning ofthe Act, there must be (a) asufficient degree of objec-tive similarity between thetwo works and (b) somecausal connectionbetween the plaintiffs’and the defendants’work’.

This test is straightfor-ward in itself and it was eas-ily applied in the case, wherethere was a very large degree ofsimilarity between the bullet-proof vestdesigned by the plaintiff and that which thedefendant claimed to have designed. Thus, it waseasy to establish a causal connection between theproducts.

But deciding whether or not one computer pro-gram is sufficiently similar to another is a difficulttask. Programmers learn from one another’s suc-cesses and failures, and the fact that all programsmust run on standard operating systems mean thatsome elements will have to be identical and the1993 regulations specifically allow for this.

Identical elementsJudges and lawyers may find it difficult to decidewhether certain elements are identical andwhether that similarity stems from copying; orwhether programmers used similar methodolo-gies; or whether the elements’ form was deter-mined by other factors, such as the constraints ofthe computer hardware for which the programwas designed.

Unfortunately, American cases do not offerany easy solution. The so-called ‘abstraction-fil-tration-comparison’ test developed there inComputer Associates International Inc v Altai isdifficult to apply and, arguably, by concentratingon the dissection of a program’s elements missesthe wood for the trees.

A major challenge in a computer copyrightdispute will be the difficulty of explaining thetechnology. The courts will rely particularly onthe evidence of experts, and lawyers and judgeswill have to educate themselves so that this doesnot become dependence. The danger in these dis-putes is that the questions will be decided bywhichever side can best explain the technologyrather than on the merits of the case.

Another potential difficulty is that whilelawyers will inevitably try to clarify technologi-cal terms, there is a danger that they will over-

simplify complex issues.Ultimately, time and experi-

ence will allow the courts todeal with computer pro-

grams with the sameease as other areas suchas company law. Butfor now it is importantto realise that protectingcomputer programs rais-

es new questions of lawthat have yet to be dealt

with satisfactorily in Irelandor other jurisdictions.

In spite of these problems, the deter-mination with which computer program ownersintend to pursue those who pirate or plagiarisetheir works should not be doubted. The manag-ing director of an English computer companywas recently sentenced to a two-and-a-half-yearprison sentence after his company sold 46 pirat-ed copies of Novell software.

Both Microsoft and Novell are targetingthose who illegally copy their software inIreland and have won injunctions against thosewhom they believe have been infringing theircopyright. This jurisdiction provides strongcopyright protection for computer programs andother works, but reforms are needed to ensurethat the law is clearly implemented.

Pressure on the Irish Government to reformIrish copyright law is increasing. The US gov-ernment is concerned, and in December 1997the EU published its Proposal for a EuropeanParliament and Council directive on the har-monisation of certain aspects of copyright andrelated rights in the information society. If andwhen this legislation is passed, it will need tobe implemented here, but this can be done bya regulation.

It is unclear how long this will take, but theOireachtas should not be allowed to use it as anexcuse for failing to legislate and reform existingcopyright law. Ultimately, the EU will legislatefor all aspects of copyright and intellectual prop-erty, but this process might take years – if notdecades – to complete. It is unwise and unrealis-tic to expect that a piece of legislation datingback to 1963 will be adequate to deal with all thechanges in both technology and the law whichwill be encountered in the years to come.

Denis Kelleher is a Dublin-based barrister andco-author of Information technology law inIreland (Butterworths, 1997).

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the programthe program


T he New York firm of Cadwalader,Wickersham & Taft is supposed to bethe oldest law firm in the United States.

In 1989, James Beasley was admitted as a part-ner to the firm and proved himself to be ‘anextraordinary rainmaker and a skilled litiga-tor’. Beasley was a partner in the firm’s Floridaoffice, and for a number of years after hisarrival the business was very successful – theprofit-share of each partner increasing year-on-year after 1989. But in 1993, the partners’ prof-it-share declined and the Florida office made aloss for the first time since Beasley’s arrival.

This state of affairs upset the ‘younger, moreproductive partners’ who controlled a lot of thefirm’s business, but felt that they were not get-ting credit for it. They decided to turn theirsights on other partners who didn’t bill or hustleat the same pace as themselves. They did this byputting pressure on the firm’s management com-mittee to do something about the fall-off in prof-it-share. The committee came up with ‘ProjectRight Size’ which was ‘aimed at identifying lessproductive partners for elimination from thepartnership’. The project was designed toimprove the continuing partners’ profit-share bysacking some of the most unproductive partnersand keeping the more productive ones.

The watershed was a clandestine all-daymanagement committee meeting. Before themeeting, co-chair Donald Glascoff asked allmembers to submit lists of less productivepartners for discussion. Only five of the 12members chose to submit such a list – all of theFlorida partners appeared on at least three listsand one appeared on all five.

Soon after this meeting, the managementcommittee decided to close the Florida office.The day after this decision was reached, themanagement committee informed the Floridapartners. When the Florida partners refused theoffer of voluntarily withdrawing from the firm

One recent US partnership case has turned out to be a pot-boiling tale of greed, fear, loathing and fiduciary duties. And, as Michael Twomey points out, the

principles of partnership law highlighted by the case of Beasley v Cadwalader,

Wickersham & Taft could equally apply here

Firing youthe Amer

Florida branch of the firm and offered Beasley atransfer to New York.

The Florida court found that the firm’s offerto move Beasley to New York ‘was not a good-faith offer of continued partnership’ and itsactions in ‘deciding to terminate the Floridapartners and to close the Florida office consti-tuted an anticipatory breach of the partnershipagreement’. The court noted that a majority ofthe partners could have amended the agreementto include a power to expel a partner. But for thesake of expediency, the management committeechose to ‘bend to the will of the disgruntledpartners by expelling others to whom they oweda fiduciary duty’.

Cadwalader also claimed that Beasley hadbeen planning to leave the firm anyway – it tran-spired that he had entered discussions in thisregard with some associates, and did not tell hispartners. Cadwalader alleged that Beasley’s fail-ure to reveal his discussions to leave the firm wasa breach of his fiduciary duty to it and that thisdefeated his claim. The Florida court held that itwould not be equitable to allow Beasley’s discus-sions with his associates about leaving the firm tostand as a defence to Cadwalader’s conduct.Judge Cook added an American refinement to themaxim that he who comes to equity must do sowith clean hands when he stated that ‘if Beasleyhad dirt under his fingernails, Cadwalader was upto its elbows in the dung heap’.

It was also alleged by the management com-mittee’s chairman that the firm’s decision regard-ing the Florida partners was not a breach of fidu-ciary duty since it was in the overall interests ofthe firm. He explained his view of the positionprior to the Florida closure as follows: ‘Therewas a fear, there is a fear, there always will be afear, that highly productive partners can leave, goto another place and get more money. And life isnot made up of love; it is made up of fear andgreed and money – how much you get paid in

Firing youthe Amer

in return for a return of their capital contribu-tions and three months’ severance pay, thefirm forcibly closed the office and employedan armed guard to look after it.

Beasley was one of the Florida partners whoentered negotiations with the firm regarding theterms of his departure. When agreement couldnot be reached, he instituted proceedingsagainst Cadwalader for, first, a breach of thepartnership agreement’s terms and, second, abreach of fiduciary duty (Beasley vCadwalader, Wickersham & Taft, FloridaCircuit Court, 23 July 1996, CL-94-8646, AJ1996, WL 438777).

Breach of partnership agreementAs in Irish partnership law, there is no auto-matic right in US law to expel a partner from afirm. Surprisingly, the Cadwalader partnershipagreement did not contain any express right toexpel a partner. In fact, before its decision toclose the Florida office, the management com-mittee had a memorandum indicating that ithad no authority to expel the Florida partners.

In closing the Florida office, the manage-ment committee chose to ignore this, as well asfailing to consult the firm’s experts on partner-ship law or even consult the terms of the agree-ment. As there was no right in the partnershipagreement to expel a partner, the Florida courthad little difficulty in holding that Beasley’sexpulsion was a breach of the agreement.

Breach of fiduciary dutyBeasley also claimed that the partners hadbreached their fiduciary duty to him by themanner in which they disclosed the plans toclose the Florida branch and their motives forwanting to expel him as a partner.

In response to this claim, the partners inCadwalader claimed that they had not expelledBeasley but that they had simply closed the


PARTNERSHIPPARTNERSHIP

ur partners rican way

share of the firm’s profits between the date ofexpulsion and the date of the court’s order.However, $500,000 of the $3 million wasawarded in punitive damages for the mannerin which the partners had expelled Beasleyand the reason for the expulsion.

As regards the manner of his expulsion,Judge Cook felt that punitive damages werejustified since Beasley was expelled (with noexpulsion provision in the partnership agree-ment) by partners who:● Had ignored the terms of an internal memo-

randum on the invalidity of such an expulsion● Failed to consult their own partnership law

experts● Didn’t even bother reading the terms of the

partnership agreement.

large measure. Unless we didn’t getCadwalader’s profitability to where it was withour competitors’ firms, my great fear was thatpeople were going to leave and that we would notbe able to sustain ourselves’.

Judge Cook rejected outright the argument thatProject Right Size was in the firm’s overall inter-ests, noting that ‘it was a gross breach of fiducia-ry duty for some partners to throw others over-board for the expediency of increased profits’.

Punitive damagesJudge Cook awarded damages of more than $3million for the breach of both the partnershipagreement and the fiduciary duty. Most of thisaward was for payment for Beasley’s share inthe firm at the date of his expulsion and his

As regards the reason for Beasley’s expulsion,Judge Cook felt that punitive damages were jus-tified since the motive for his expulsion was‘for the express purpose of increasing the com-pensation available to the other partners’.

While Irish law firms have not reached thestage where ideas like Project Right Sizebecome commonplace, it may be comforting toknow that many of the principles applied by theFlorida court in Cadwalader are equally applic-able in Ireland. This is because, like US law,Irish law provides that a majority of the partnersin a firm cannot expel a partner unless there isan express agreement between all the partnersto that effect (section 25 of the Partnership Act1890).

In the absence of such an agreement, or evenwhere one exists, any expulsion of a partner inIreland will be subject to the fiduciary dutiesowed by partners to each other. According toMcWilliam J in Williams v Harris (unreported,High Court, 15 January 1980 and SupremeCourt [1980] ILRM 237), ‘equitable principlesare to be applied to partnership matters and afiduciary relationship existed between theplaintiffs and the defendants during the contin-uance of the partnership’.

Thus, in dealing with the expulsion of a part-ner (or any aspect of the partnership relation),partners are required to exercise a fiduciary dutytowards each other. This will require every part-ner to treat his co-partners with, in the words ofGannon J in Re Murph’s Restaurant (1979 ILRM141), ‘equality, mutuality, trust and confidence’.Where this is absent, as was clearly the case inCadwalader, the partners will be in breach of thefiduciary duty and liable for any loss to the inno-cent partner.

However, not all of the principles applied bythe Florida court are likely to find favour inIreland. We have not yet reached the situation inIreland, where punitive damages of $500,000will be awarded for the manner of, and themotive behind, a partner’s expulsion.

Michael Twomey is an Irish solicitor researchinga book on partnership law in the United States,with the support of the Rodney OverendEducational Trust.

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r partners rican way


A ‘discretionary trust’ is defined in sec-tion 2 of the Capital Acquisitions TaxAct, 1976 as any trust whereby, or by

virtue or in consequence of which, property isheld on trust to apply, or with a power to apply,the income or capital or part of the income orcapital of the property for the benefit of anyperson or persons or of any one or more of anumber or of a class of persons whether at thediscretion of trustees or any other person andnotwithstanding that there may be a power toaccumulate all or any part of the income (seebelow for extended definition for discretionarytrust tax purposes).

A charge to capital acquisitions tax (CAT)arises inter alia where a beneficiary becomes

‘beneficially entitled in possession’ to any ben-efit from a trust. This generally occurs whenassets or an interest in assets are appointed outof the trust. The trustees decide when thecharge to CAT arises because the assets areappointed out of the trust at the discretion ofthe trustees.

An appointment by a trustee which is a giftwill be subject to the annual small gifts exemp-tion in section 53 of the Capital AcquisitionsTax Act, 1976 which currently is £500. In addi-tion, the 75% rate of tax on gifts will apply.

An inheritance arises where a beneficiarybecomes entitled to a benefit where:1) The trust was created by will2) By a disposition made within two years of

The bet

Discretionary trusts can be useful tax-planningmechanisms, but the

legal and technical issuesneed careful analysis.

Eamonn O’Connor outlineshow to maximise their

potential benefits

d


TAXATIONTAXATION

the date of death of the disponer. If the dis-cretionary trust has been set up within twoyears from the date of settlor’s death, anyappointment out of it will be deemed to be aninheritance. In the event of the discretionarytrust having been set up more than two yearsprior to the death of the settlor, then allappointments including appointments madewithin two years of the date of death andafter the date of the settlor’s death will begifts and subject to the normal small giftsexemption and 75% rate of tax subject to (3)below

3) An inter vivos disposition which takes effecton death. When the benefit is taken under adisposition inter vivos limited to come intooperation on a death, then there is a deemedinheritance. Where a beneficiary becomesentitled in possession to any benefit under adiscretionary trust, they are obliged to file aself-assessment CAT return within fourmonths of the date of the benefit. The bene-ficiary is primarily liable for payment of thetax and secondary liability attaches to thetrustees. However, trustees can be obliged todischarge a life tenant’s liability where thelife tenant does not have any assets withwhich to discharge the liability. Trustees inthis situation do not have any right of recov-ery from the life tenant. Normally, however,a trustee does not appoint to a beneficiaryuntil the quantum of the liability has beenagreed and discharged to the Revenue.

Appointment of capital or incomeIf a discretionary trust makes regular yearlypayments to a beneficiary, these payments maywell be deemed income in the hands of the ben-eficiary, whether paid out of capital or income.By contrast, a once-off payment to a child ofthe settlor on the occasion of, for example, hermarriage, may well be treated as capital in herhands even where made out of the trust fund’saccumulated income (see Brodies Will Trusteesv IR Commissioners 17 TC 432). In the UK, the

courts have considered whether such paymentsare income or capital in the context of anassessment to income tax raised by the UKInspector of Taxes.

Estate planning and discretionary trustsA discretionary trust can be a useful tax plan-ning tool, as the following examples show:1) As the charge to CAT only arises when

assets are appointed out the trust, it is possi-ble for the trustees to determine when theactual charge to CAT arises

2) Those who wish to make special provisionfor family members with special needs canset up discretionary trusts to hold assets,with the trustees deciding ultimately how theassets should be appropriated

3) A bachelor uncle can create a discretionarytrust by will, thereby giving the trusteeswide powers to benefit the objects of thetrust. These may include nephews/nieces ofthe testator, some of whom might not yet beborn at the date of his death. This means thatmaximum use can be made of the tax-freethresholds. This results in maximum use ofthe £24,340 threshold

4) Certain Irish government stock acquired bytrustees of a discretionary trust and held bythe trustees for three years can be transferredto a non-domiciled non-ordinarily-residentbeneficiary without any charge to CAT. Itshould be remembered that governmentsecurities can be placed in a discretionarytrust as a means of completing the three-yearperiod of ownership as between the dispon-er and the trustees

5) By placing agricultural property in a discre-tionary trust as a ‘holding operation’ while thedonee’s assets are rearranged to facilitate asuccessful section 19 agricultural relief claim.

Discretionary trust tax: generalThe levies which apply to discretionary trustsare as follows:

a) A 6% levy on the settlor’s death (increasedfrom 3% with effect from and after 11 April1994, section 143 of the Finance Act, 1994).This may be postponed as described below,and

b) An annual levy of 1% on 5 April each yearfollowing the imposition of the 6% levy(excluding the first such date following theimposition of the 6% charge). The trusteesare deemed to have become beneficiallyentitled in possession to an absolute interestin the trust property and the accumulatedincome, if any, as remains subject to the dis-cretionary trust on the latest date above.

The definition of ‘discretionary trust’ in section2 of the Capital Acquisitions Tax Act, 1976 isextended for the purpose of the discretionarytrust tax. The definition is as follows:

‘Discretionary trust means any trust where-by, or by virtue or in consequence of which,property is held on trust to accumulate theincome or part of the income of the property, orany trust whereby, or by virtue or in conse-quence of which, property (other than propertyto which for the time being a person is benefi-cially entitled for an interest in possession) isheld on trust to apply, or with a power to apply,the income or capital or part of the income orcapital of the property for the benefit of anyperson or persons or of any one or more of anumber or of a class of persons whether at thediscretion of trustees or any other person andnotwithstanding that there maybe a power toaccumulate all or any part of the income’.

Initial 6% charge to discretionary trust taxDiscretionary trust tax arises under the will ofthe disponer/settlor or under an inter vivos dis-cretionary trust on the death of the disposer/sett-lor (subject to the exempting provisions in sec-tion 106 of the Finance Act, 1984) where underor in consequence of a disposition propertybecomes subject to a discretionary trust other-

tter part of

discretion


wise than for full consideration in money andmonies-worth paid by the trustees. Where prop-erty becoming subject to a discretionary trust onor after 31 January 1993, the trust is deemed totake an inheritance on the latest of the followingdates or events: 31 January 1993; the date onwhich the property becomes subject to the dis-cretionary trust; the date of the disponer’s death;the date on which there ceases to be a principalobject under the age of 21 years.

Any trust whose settlor is dead seeking toavoid the initial charge should terminate thetrust before the day preceding the 21st birthdayof the youngest principal object of the trust. Ifthe trust is terminated on the date of the 21stbirthday of the youngest principal object of thetrust, then the initial charge is payable. Before31 January 1993 the age requirement of theprincipal object was 25 years.

Any trust seeking to avoid the initial chargeshould terminate the trust prior to the day pre-ceding the 21st birthday of the youngest prin-cipal object of the trust (see Example 1).

A ‘principal object’ in relation to discre-tionary trusts is: a) the spouse of the disponer;b) the children of the disponer; c) children of adeceased child of a disponer (but only where thedeceased child has pre-deceased the disponer).

The initial 6% charge will revert to 3% ifwithin a period of five years from the date ofthe initial charge the entire trust is wound upand the beneficiaries become absolutely enti-tled in possession. Any refund made by theRevenue Commissioners will not carry inter-est.

In the event of the discretionary trust havingbeen chargeable before 31 January 1993 to theinitial charge to discretionary trust, it will notbecome subject to a charge again under section106(4) of the Finance Act, 1984, due to the agerequirement of a principal object of a discre-tionary trust being reduced from 25 to 21years.

Annual 1% charge to discretionary trust taxThe legislature also introduced an annual 1%levy (see above) on the taxable value of dis-cretionary trusts under section 106 of theFinance Act, 1986. The ‘chargeable date’ inrelation to any year is 5 April of that year. A‘chargeable discretionary trust’ means a dis-cretionary trust in relation to which: a) thedisponer is dead, and b) none of the principalobjects of the trust are under the age of 21years (section 255 of the Finance Act, 1992).

If a discretionary trust becomes subject tothe initial charge of 6% it also becomeschargeable to the 1% levy as the definitionsand requirements are identical, unless the totalfund is appropriated out to a beneficiary beforethe 1 April on which the 1% charge wouldapply. But where there is a decision to pay

income to objects of the trust for a period ofnot less than five years (for example, betweenthe ages 18-23), then the annual charge of 1%is avoided.

ExemptionsExemption from the initial charge and annualcharge is available to trusts set up exclusivelyfor charities, superannuation schemes, regis-tered unit trust schemes within the meaning ofthe Unit Trust Act, 1972 and trusts for theupkeep of certain houses/gardens.

Discretionary trusts which are created forthe benefit for one or more named individualsspecified in the discretionary trusts who,because of age or being incapable of manag-ing their affairs, are also exempt. In order forthe trust to qualify for the exemption, all ofthe individual/individuals must come withinthe category of person/persons who qualifyfor the relief.

Taxable gifts/taxable inheritancesA ‘taxable gift’ means in the case of a gifttaken under the discretionary trust where thedisponer is domiciled in the State at the date ofthe disposition under which the donee takesthe gift or at a date of the gift or was (in thecase of a gift taken after his death) so domi-ciled at the time of his death, the whole of thegift; and in any other case so much of the prop-erty of which the gift consists as is situate inthe State at the date of the gift.

A ‘taxable inheritance’ means in a casewhere the disponer is domiciled in the State atthe date of the disposition, usually the date ofdeath under which the successor takes the

inheritance, the whole of the inheritance and inany other case where at the date of the inheri-tance the whole of the property comprising theinheritance was situate in the State, the wholeof the inheritance (see Example 2).

Before 17 June 1993 a charge to gifts taxand inheritance tax arose if the proper law ofthe disposition was Irish law.

Income taxThe trustees of a discretionary trust are liableto income tax on all income arising at the stan-dard rate of 26% without any deduction forallowances/reliefs. Where income of a discre-tionary trust is not distributed within the yearof assessment or within 18 months from theend of the year assessment then a surcharge islevied at the rate of 20%.

This is provided for in section 13 of theFinance Act, 1976. In computing the sur-charge a deduction is made for managementexpenses of the trust which are properlychargeable to income. Consequently, it isimportant to bear in mind that where incomeof a discretionary trust is not distributed with-in the stipulated periods set out in section 13of the Finance Act, 1976 the surcharge willapply. The distribution of income can haveCAT consequences

Capital gains taxWhere a settlor settles property on trustees heis deemed by section 15 (2) of the CapitalGains Tax Act, 1975 to have made a disposalof the entire property. Such a dispositionwould not be a bargain at arm’s length andaccordingly the disposal proceeds in the caseof the settlor must be taken as being the mar-ket value of the assets at the time when theywere settled on the trustees.

Likewise, the trustees are treated as acquir-ing the assets at market value. By contrast, ifthe settlement is set up on death it does notgive rise to any capital gains tax (CGT) arisingon the transfer to the discretionary trust.

Trustees are deemed to be a single continu-ing body, and as such may dispose of assets inthe same manner as any other person. Whenthat body of persons disposes of an asset eithera gain or a loss will arise for CGT purposes.

Whether such a gain is chargeable, or a lossallowable depends on the residence or ordinaryresidence of the trustees and whether the assetsare specified assets as set out in section 4 ofthe Capital Gains Tax Act, 1975, namely:1) Land in the State2) Minerals in the State or other assets in rela-

tion to mining or minerals or the searchingfor minerals

3) Assets situated in the State which are usedin or for the purposes of a trade carried onin the State through a branch or agency

4) Exploration rights on the continental shelf.

EXAMPLE 2X, who was domiciled in Saudi Arabia, creates a

discretionary trust which contains exclusively UK

assets. Subsequently, he obtains an Irish passport,

moves to Ireland, and dies domiciled here. None

of the objects of the trust are domiciled in

Ireland, but nevertheless on an appointment

made after his obtaining Irish domicile, a charge

to CAT will arise.

EXAMPLE 1X by will settles property on discretionary trust

for his children Y and Z in 1997. At the date of

creation of the discretionary trust, Y is aged 19

and Z is 23. All of the assets in the discretionary

trust must be appointed out not later than the

date immediately preceding the 21st birthday of

Y, the youngest child, in order to avoid the initial

6% charge.

TAXATIONTAXATION

The absolute appointment of assets by thetrustees to a beneficiary is a disposal by thetrustees at market value. The appointment of aninterest in an asset is neither a disposal nor partdisposal, except where the interest passing is anabsolute interest.

When a person becomes absolutely entitledto any of the trust property, any unused lossesaccruing to the trustees in respect of that prop-erty in so far as they are not used by the trusteesup to that date are treated from then on as accru-ing to the person who becomes entitled to theproperty – that is, the appropriate object of thetrust.

Interaction of CGT and CATWhere trustees dispose of an asset with a con-sequent liability to CGT and CAT is payable bythe appropriate beneficiary, section 63 of theFinance Act, 1985 provides for a credit to begiven against the CAT liability arising in respectof any CGT liability arising where both taxeshave been triggered by the ‘same event’. In thisregard it is important to note that a ‘disposition’for CAT purposes may also be a ‘disposal’ forCGT purposes. Consequently, it is important tobe mindful that the credit is available resultinggenerally in a significant saving in tax.

Stamp dutyThere may not be any stamp duty or if stampduty is payable it will be at the nominal rate.However, if assets are settled on a discretionarytrust during the settlor’s lifetime, stamp duty ispayable in the normal way on the value of theassets passing into the discretionary trust.Where assets are appointed out of the discre-tionary trust, for example by gift, then the nor-mal rates of ad valorem duty will applyto the appropriate documents.

Irish governmentstock exemptionSection 57 of theCapital AcquisitionsTax Act, 1976 (asamended by section140(1) of theFinance Act, 1978)provides for anexemption from gifttax or inheritance taxand the government stockis not taken into account incomputing the tax provided that:1) The stock is owned by the donor/testa-

tor for three years immediately before thedate of the gift or inheritance. Both thedonors’ and trustees’ period of ownership ofthe appropriate government stock are com-bined to establish the three-year qualifyingperiod of ownership

2) The stock is comprised in the gift or inheri-

Section 60 life assurance policiesThese are policies taken out to discharge CAT.The trustees of a discretionary trust should beaware that to avail of the benefit of section 60life assurance policies, assets must be appoint-ed out of the discretionary trust within 12months of the appropriate death, otherwise thebenefit of these assurance policies will be lost.

Dependent relativesPayments out of a discretionary trust towardsthe maintenance of a dependent relative areexempt from the charge to CAT subject to theconditions contained in section 58, CapitalAcquisitions Tax Act, 1976 as amended.

Section 19, CAT Act, 1976Agricultural relief within the meaning of sec-tion 19 of the Capital Acquisitions Tax Act,1976 is available where agricultural propertypasses from a discretionary trust to an appro-priate beneficiary. The donee or successor mustbe ‘a farmer’ within the meaning of section 19in order to obtain the relief. Section 19 agricul-tural relief is not available on the transfer ofagricultural property to trustees as the latter arenot ‘individuals’ within the meaning of section19 of the Capital Acquisitions Tax, 1976.

Section 125, Finance Act, 1995Business asset relief is also available to reducethe market value of relevant business assets asdefined by 90% for CAT purposes. Relevantbusiness assets include unquoted shares in anIrish company meeting conditions. The reliefdoes not apply to discretionary trust tax or pro-bate tax.

Despite the 6% initial and 1% annual levies,discretionary trusts still have attractions. Butthe legal and tax legal issues need carefulanalysis. Ultimately the decision as to whethera discretionary trust is the best vehicle willdepend on the facts of each case.

The prudent use of a discretionary trustshould result in a deferral of CAT. But duringthe period when the assets are retained in thediscretionary trust, the value of those assetswill generally have increased by the time thetrustees appoint in favour of the trust’s objects.This can, of course, lead to a higher CATcharges than might have been the case whenthe discretionary trust was created.

However, the trust’s beneficiary object willbe able to compensate for the higher incidenceof CAT as his own CGT base-cost will reflectthe value of the assets at the date of theirappointment in his favour. This will, clearly,reduce his exposure to CGT when he ultimate-ly disposes of the assets.

Eamonn O’Connor is a solicitor with theDublin firm SS&E Reeves and a member of theLaw Society’s Taxation Committee.

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tance at the date of the gift, or the date of theinheritance and also at the valuation date

3) The donee or successor is neither domicilednor ordinarily resident in the State at thedate of the gift or inheritance.

There is a total exemption if the disponer is notdomiciled and ordinarily resident in the Stateat the date of the gift or the date of the inheri-tance. The exemption is not available totrustees in relation to the charge to discre-tionary trust tax.

Avoidance of initial and annual levyThe definition of ‘discretionary trust’ as set out

in section 105 of the Finance Act, 1984 con-tains an exemption from the initial

6% levy and the annual 1% levyfor property in relation to

which a person is benefi-cially entitled to an inter-est in possession (thatis, a life interest). Inorder to avoid the ini-tial and annual levies alife interest can be cre-

ated which would havea capitalised value of less

than the donee/successor’sexemption limit. This will

have the effect of removing theappropriate property from the 6%

initial and 1% annual discretionary trustlevies.

Section 103 of the Finance Act, 1986 con-tains an anti-avoidance provision where it isnot possible to avoid the annual 1% charge byappointing assets out of a discretionary trustfor a period of less than five years or if theappointment is subject to a revocation.


Deals w


Y ou have decided to get a company carfor your practice or business. Youhaven’t operated one before and your

own car and those of your employees are per-sonally owned and financed. What options doyou have for financing the business vehicle?

The short answer is a multitude. The financeadvertising you look at speaks of low annualpercentage rates, tailored packages and offersyou the choice between purchasing, leasing orcontract hire.

Question number one is whether you wantto buy or lease the car. The issue here iswhether you want to list it as an asset on yourbalance sheet. If you do, you have the freedomto sell at any time, but you are taking on therisks involved in vehicle depreciation.

Larry Dunne, leasing director of WaldenMotors and President of the Vehicle LeasingAssociation of Ireland (VLAI), says: ‘Theremay be good accounting reasons for choosing aparticular type of financing option. The account-ing treatment can vary from plan to plan, so ifthe appearance of your accounts is important toyou, particularly in terms of accounting ratiosand asset values, then it is vital that you chooseyour finance plan carefully’.

If you choose to buy the vehicle, the nextquestion is whether to pay cash or use someform of credit. All credit has a cost and youwill have to compare the cost of the schemesthat suit your circumstances. Buying for cashuses capital that could be put to better use, suchas expanding the business, while setting up anoverdraft or a bank loan may take up one ofyour major credit lines, giving the same neteffect as using cash.

Getting the financeIn the current market, getting finance is gener-ally not a problem. Each of the main banks hasan asset finance subsidiary in addition to their

branch network. The building societies are veryactive in the market, and some companies suchas Woodchester specialise in vehicle financing.Add in the vehicle distributors’ finance compa-nies such as Ford Credit, the credit unions andthe fact that most vehicle dealerships are nowregistered intermediaries for finance products,and you have a seriously competitive market.

That’s the good news: these people want tolend you money. The bad news is that theplethora of new finance products on the marketmeans that it takes time and effort to find outwhich option is right for you. There are threemain types of finance and lease plans. They are:● Purchase: where you pay cash up-front or

take on a hire purchase (HP) agreement.Using this method you either own the vehi-cle right away or have the option to own it

● Finance leases: you can choose fixed term,flexible or balloon leasing and you will fundthe cost of the vehicle, but never own it

● Operating leases: a contract hire agreementwhere you only pay for the depreciation costand agreed maintenance of the vehicle.

The devil’s in the detailUnder HP, the vehicle is hired for a fixed peri-od and repayments are made by installments tocover the total cost of the vehicle plus interestless the final purchase fee. As Dunne explains:‘The vehicle is shown as a fixed asset on yourbalance sheet throughout the period of theagreement and for accounting and tax purposesit is treated as though you own it outright. Theamount owing is normally shown as a liabilityand the interest charge is set against taxableincome over the term of the contract. For taxpurposes, you can claim writing-downallowances on the allowable capital cost of thevehicles’.

A variation of HP is balloon hire purchasewhich defers part of the capital cost (the bal-

Deals What’s the best option for financing a new company

car? Paul O’Grady looks at the wide range of packagesavailable and gets a steer on good deals for your

wheels from the professionals

won

wheels


BUSINESSBUSINESS

loon) until the end of the agreement. But youshould bear in mind that with any purchaseplan you take the hit for depreciation.

So what’s the difference between a financelease and an operating lease? The answer liesin who takes the risk on the depreciation of thevehicle. In a finance lease, you bear the risk. Ifthe price you get for the vehicle does not matchthe settlement figure or the balloon payment,then you have to come up with the difference.

Under an operating lease, however, youonly pay for the depreciation and the interestand then the vehicle goes back to the leasingcompany at the end of the agreement. Anydrop in the value, estimated or otherwise, isabsorbed by the leasing company.

Which lease?Fixed-term leasing is the most straightforwardscheme available. Basically, you pay a rentalover an agreed period, usually the vehicle’s use-ful life, and then you can get up to 100% of theproceeds of its the sale at the end of the lease.You can also opt for service and maintenancecontracts.

Flexible leasing is much the same productwith an option to end the lease after an agreedinitial period, usually 12 months. At the end,you or the leasing company can sell the vehicleand you will get a rebate on your rentals if thesale price of the vehicle exceeds the outstand-ing amount of the lease and costs incurred. Inboth fixed-term and flexible leasing options,you can choose to extend the period of leasefor a nominal (so-called ‘peppercorn’) rental.

A first cousin of the flexible lease is the bal-loon lease. Here, part of the capital cost, plusVAT, is deferred to the end of the lease to berecovered from the sale of the vehicle.Naturally, should the sale of the vehicle notachieve the necessary amount, you’ve got tostump up the difference again.

Get off your assetsContract hire, which is also known as an oper-ating lease or full-service leasing, offers busi-nesses the opportunity to operate vehicles withthe minimum of fuss and with the least intru-sion into their accounts as they do not have tobe shown on the balance sheet. These types ofagreements give the full use of the vehicleincluding, usually, the costs of servicing, main-tenance and tyres. Road tax is normally includ-ed and automatically renewed as is AA orRAC-style breakdown cover protection.

‘Contract-hire agreements can be construct-ed to suit every business requirement, eliminat-ing the customer’s responsibility for deprecia-tion risks, maintenance costs and administra-tion’, says Larry Dunne.

Frank Moore, sales manager with LeasePlan Fleet Management Services, a specialistprovider of vehicle management solutions,says: ‘Operating leases are the way of thefuture. Companies are increasingly showingtheir desire to move their vehicles off theirbalance sheets and let the finance companiestake the risk on residual values. The reducedadministration burden is also a big advantagewhere a maintenance contract is also incorpo-rated’.

The taxmanThe Revenue Commissioners treat financepackages in two different ways and the crucialquestion is whether there is either a right or anoption to buy the vehicle. If there is, then theRevenue Commissioners treat the financepackage as a purchase plan for income and cor-poration tax.

In this instance, capital allowances can beclaimed (instead of depreciation) on a reducingbalance at 20% of the allowable cost which iscurrently £15,500 for new cars. There is nolimit on commercials. The interest part of the

wheels

LAW SOCIETY ROOMSat the Four Courts

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CourtTHE SOCIETY’S CONSULTATION ROOMS ON THE LOWER LEVELAT THE FOUR COURTS HAVE BEEN UPGRADED TO PROVIDE EXTRACOMFORT AND CONVENIENCE

NEW FEATURES INCLUDE:Revised layout with two additional roomsImproved ventilation and lightingTelephone extension in every roomConference facility telephonesRoom service catering facility Friary Café

FOR BOOKINGS & FURTHER DETAILS contact Mary Bissett or Paddy Caulfield at the Four Courts 668 1806


BUSINESSBUSINESS

payment can be set against tax, depending onthe type of purchase plan you have chosen.

On leases where you have no option or rightto buy the vehicle, the full amount of therentals is allowable against cars costing lessthan the current limit of £15,500. (Only a pro-portion of the cost is allowed for more expen-sive cars.) Rentals are allowable on a time-of-use basis.

Where a vehicle is sold at the end of a leaseand a surplus is made, the rebate of the rentalsis treated as taxable income. Where the vehicleis traded in, the amount of the trade-in isallowed for tax purposes to be spread over theterm of the lease.

If you choose to purchase your vehicle byHP and the vehicle automatically transfers toyou at the end of the agreement, you must payVAT at the outset of the agreement on the cap-ital cost of the agreement. No VAT is payableon the financing cost.

‘If you choose a lease’, Dunne advises, ‘theabsolute VAT cost is higher since VAT ispayable on the total rentals, including interest.However, a cashflow advantage can beobtained since the VAT is charged and paid aspart of the rentals over the period of the lease,rather than being paid in full at the outset as isthe case with purchase plans’.

Check listBefore you make a decision on which of themany financing products suits your firm best,think carefully about the following issues:● Do you know how much interest you are

going to pay over the full term of youragreement?

● Is the length of agreement more suitable toyou or the finance company?

● Is the payment pattern likely to throw up dif-ficulties at certain times of the year? If so,you can usually negotiate a repayment pat-tern that suits you better

● Do the initial rentals or the deposit requireVAT to be paid at the outset?

● What are the excess mileage and wear andtear charges? (These apply particularly tooperating leases)

● What level of maintenance charge and main-tenance cover applies?

● Which additional services are included? (forexample, is road tax included?)

● Who takes the hit on depreciation: you or thefinance company?

Last, but not least, talk to the professionals.Most Society of the Irish Motor Industry deal-erships now have fleet or business vehicle spe-cialists whose job is to give you independentadvice on which finance package is best foryou. A full list of the members of the VLAI andan excellent booklet on vehicle financing canbe obtained from their office in Glenageary,County Dublin (tel: 01 285 4619).

Paul O’Grady is editor of Irish Motor Industrymagazine, the official journal of the Society ofthe Irish Motor Industry.

G

THE FAMILYLAWYERS

ASSOCIATIONArguably the fastest growing association oflawyers in the country, the Family LawyersAssociation welcomes new Members.

The Fifth Annual Conference and AnnualGeneral Meeting will take place at the GreatSouthern Hotel, Rosslare, County Wexford from15th to 17th May 1998. Booking on or beforeFriday 17th April 1998.

For further information and Booking Forms con-tact Ms. Sora O’Doherty B.L., Hon. Secretary,Tel. 702 3989 or Mr. Mark Graham, Solicitor,Ormond Quay Law Centre, Tel. 872 4133


PRACTICEPRACTICE

O ne of the key aims of the LawSociety’s first-ever practice compari-son survey was to allow member

firms an opportunity to measure or benchmarkthemselves against similar practices and workout how they could improve their profitabilityand growth prospects.

The Society and its independent adviser,InterCompany Comparisons, have just finishedanalysing the financial information supplied bythe 26 firms which took part in the survey and,once again, the results have thrown up plentyof food for thought.

Average net profits for the last three yearswere £133,000, £111,000 and £113,000 respec-

tively. While these figures look quite high, theSociety’s Finance and Administration DirectorCillian MacDomhnaill stresses that it is diffi-cult to establish this one way or the otherbecause the survey is based on such a smallsample of firms. Table 1 shows the results afterthe figures were analysed. Table 2 shows theminimum and maximum profits over threeyears.

Practitioners frequently ask if they arecharging enough, or too much, and they won-der what others are charging. The real answeris that there is no correct amount, but youshould look for enough to cover overheads andreward yourself and your firm.

A Law Society Cost Committee surveyfound in 1994 that the average cost of run-ning a solicitor’s office was £78 an hour.Bearing this in mind, you should note thatmost professionals’ charges break down asone-third to cover overheads, one third tocover a reasonable salary for the person pro-viding the service and one third for profit.

Table 3 shows that this approach wasbeing taken by the firms which took part inthe survey. Average net profit came to 31%,

A fair day’s pay?Where does the money earned by your practice go, and does your method of

charging allow you to maximise profits? In the second article on the Law Society’sfirst benchmarking exercise, Barry O’Halloran looks at spending and profit

700,000

600,000

500,000

400,000

300,000

200,000

100,000

0

-100,000

Table 2

Minimum Median Maximum

-5,740 -9,798 -11,068

1997 1996 1995

93,64959,666 70,778

539,149

636,064

544,967

Table 1

NET PROFIT (AFTER TAX)

25 Median 50 751996 £30,067 £59,666 £117,747

1995 £41,032 £70,778 £156,989

Median is the middle value in a range. The upper and lower points represent 75% and 25% respectively, that is,

the median for the top and bottom halves of the sample.

Overheads (incl staff levels)

Profit

Reasonableremuneration for

fee earner

Table 3

Table 4

CHARGE RATE PER HOUR

25 Median 50 75Partner/principal £68 £93 £113

Assistants £61 £80 £105

Table 5

25 Median 50 75Partners £46,234 £82,500 £105,873

Principal/no assistants £13,000 £40,000 £65,000

Princpals with assistants £33,750 £62,500 £155,000

25% went on salaries and 44% was allocat-ed to overheads. Table 4 shows the hourlyrate charged by the respondents.

Turnover per partner/solicitor averaged£89,633 with a minimum of £4,500 and amaximum of £297,200. Table 5 shows howthis profit is distributed to partners andprincipals with assistants and without assis-tants.


PRACTICEPRACTICE

END OF YEAR BALANCESHEET SUMMARY

Mean % of total

balance sheet

Debtors £72,414 6%

Work in progress £32, 145 2%

General creditors £15,860 2%

PAYE/PRSI outstanding £2,323 0%

VAT outstanding £9,384 0%

Partner’s income tax £41,720 1%

Outstanding borrowings £67,922 4%

Lease obligations £6,836 0%

Capital and reserves £50,328 3%

Cash in hand/bank £187,465 14%

Total current assets £292, 085 27%

Total current liabilities £291,287 28%

Fixed assets £57, 556 5%

Partners’ capital accounts £94,798 8%

Bad debts provision £9,351 0%

Table 6 shows the main categories ofexpense and the average amount spent on each.There were no great surprises here. Overallcomputer costs and depreciation accounted for7.5% on average, rent and rates for 8.2%.Professional indemnity insurance and practis-ing certificate fees accounted for almost 4%.Table 7 shows the balance sheet summary forthe average firm at the year’s end.

The lesson to be learned from this exerciseis that the key issue is profitability of feesrather than the charges themselves. While fees

are essential, an over-emphasis on an individ-ual fee level can be counter-productive as itmay cause:● Fee earners to keep work that should really

be passed on to others● Partners doing work that should be done by

someone else● Solicitors with management responsibilities

focusing too much on that role.

Profitability should be measured after allowingfor fee earners’ and support staff salaries. Astandard partner’s/principal’s salary should beincluded at roughly £35,000 a year. Overheadsare not being taken into consideration andfirms should be asking themselves what levelof overheads are reasonable for a business oftheir size.

The survey was launched a year ago andfocused on the following areas: ● Practice size, location and premises tenure● Personnel (fee-earning and non-fee-earning)

recruitment, remuneration and benefits● Partnership structure

● Market structure – that is, revenue per hour,revenue type in terms of fees and numberof clients

● Market profile – that is, private, commercialand so on

● Finance and accounting structure● Expenditure and profits.

It was originally meant to be carried outacross nine sub-categories, made up of vari-ous-sized practices in Dublin, other urbancentres and rural areas. Unfortunately, thesmall number of respondents made it impossi-ble to do this.

Both MacDomhnaill and Peter Coyne ofInterCompany Comparisons argue that this isthe first step in a process that will eventuallypaint a very complete picture of the professionacross all areas, practice sizes and sectors. Theinformation will allow all firms to compare orbenchmark their performance against theirpeer group and establish how they are per-forming, and if improvements need to bemade.

The Practice Management Committeeintends to carry out a much more comprehen-sive benchmarking exercise this year, butMacDomhnaill argues that for this to be suc-cessful, and to provide the profession withmeaningful feedback, a large number of firmsmust respond to the survey.

Table 8 shows how the survey will divide upthe profession into sub-sectors. In terms of size,there are three categories, beginning with firmswith one to two partners up to those with oversix. Geographically, firms will be split intoDublin-based, urban (meaning Galway, Water-ford, Cork, Kilkenny and Limerick) and rural.

The survey will not require the completionof detailed forms. Managing partners/princi-pals will be presented with a pro formarequesting information relating to size ofpractice, staff levels, staff turnover etc. Theywill be asked to append the most recentyear’s financial accounts. The PracticeManagement Committee will not have accessto information about individual firms. Thiswill be processed by an independent thirdparty, InterCompany Comparisons, whichwill only report its aggregate findings to thecommittee.

MacDomhnaill stresses that the exercisewill be very worthwhile for the participatingfirms and for the profession as a whole. ‘Ifsufficient firms participate in the survey, itwill mean that meaningful data can be pro-duced for each of the sub-categories’, he says.

‘Participating firms will receive a reportoutlining the findings of the survey and howthey perform against the industry average.This will give you a benchmark against whichto measure your performance and hopefullymake improvements where necessary’. G

Table 7

Expenditure item Average % of Spend

Finance charges £3,088 1.4%

Light/heat/power £2,751 1.2%

Computer expenses £4,260 1.9%

Computer equipment £7,660 3.5%

Motor & vehicle £7,335 3.3%

Repairs & renewals £4,001 1.8%

Maintenance £3,473 1.6%

Agents’ fees £1,457 0.7%

Telephone £6,995 3.2%

Cleaning £1,606 0.7%

Leasing £4,430 2.0%

Consultancy £9,496 4.3%

Training £1,877 0.8%

Audit fees £2,878 1.3%

Library £2,028 0.9%

Professional indemnity

and practising cert £8,307 3.7%

Stationery £6,037 2.8%

Postage £4,949 2.2%

Salaries £98,050 44.3%

Marketing/advertising £3,099 1.4%

Rates £2,398 1.0%

Rent £16,005 7.2%

Bad debts (written off) £3,592 1.6%

Depreciation – fixtures

and fittings £7,127 3.2%

Depreciation – buildings £1,065 0.5%

Depreciation – computer £4,209 1.9%

Insurance – public liability £831 0.4%

Insurance – general £1,943 0.9%

Table 6

Table 8

1-2 3-5 6+

Dublin

Urban*

Rural

*Galway, Waterford, Cork, Kikenny and Limerick

SIZE (NO OF SOLICITORS)

Council reportReport on Council meeting held on 22 January 1998


BRIEFINGBRIEFING

1. Motion: Salaries forapprenticesThat this Council approves therevised scale of recommendedsalaries for apprentices, toapply from 1 March 1998, as setout below:● £135 gross per week for the

first six months after comple-tion of the professionalcourse

● £145 gross per week for thesecond six months

● £155 gross per week for theremaining period.

That this Council also approvesa revised salary guideline of£105 gross per week for appren-tices working in their masters’offices prior to attendance onthe professional course.Proposed: Owen BinchySeconded: Michael Peart

The proposers said that the pro-posal had been approved by theEducation Committee and repre-sented a £20 increase on the rec-ommended scale set in 1994. PatO’Connor, in reply to questionsfrom Andrew Dillon, confirmedthat the Deed of Apprenticeshipcontained a covenant that themaster would pay the recom-mended scale. He also reiteratedthe Council’s very strong and

long-standing opposition to pay-ments to prospective masters tomake apprenticeships available.The Council approved the termsof the motion.

2. Motion: Law reformThat this Council calls on theGovernment to immediatelyimplement any outstanding LawReform Commission reports,particularly in the areas of landlaw and conveyancing law, suc-cession law and debt collectionwhere such legislation can beintroduced without any cost tothe Government.Proposed: John CostelloSeconded: Michael Peart

At the suggestion of thePresident, it was agreed by theproposers that the motion shouldbe adjourned to the Councilmeeting on 8 May 1998 forreports from the Law ReformCommittee and ConveyancingCommittee. It was confirmedthat the Law Reform Committeehad already arranged a meetingwith the Law Reform Comm-ission.

3. Army deafness casesThe President reported that thisissue had been receiving enor-mous publicity with both the

Minister for Defence and theSociety making public state-ments on an almost daily basis.On 20 January 1998, theDirector General had appearedon the RTE TV programmePrime Time and deserved con-gratulations on his perfor-mance. Meetings had been heldwithin the Society on a regularbasis in response to unfoldingevents. On 20 January 1998,the President and DirectorGeneral had a meeting with theMinister for Defence for anhour and a half at theMinister’s office. The Ministerhad expressed strong views inrelation to the entire matter andhad asked the Society to deliv-er a 50% reduction in the feesbeing charged in these cases,following which he would con-sider providing the Societywith some evidence of allegedmisconduct by solicitors. ThePresident had subsequentlywritten to the Minister askinghim to furnish to the Societyany evidence in the Minister’spossession of misconduct onthe part of any solicitor as amatter of urgency. In relationto fees, a meeting with repre-sentatives of the 40 solicitors’firms acting for substantialnumbers of plaintiffs in these

cases had been convened for 23January 1998. Obviously, anydecision in relation to a reduc-tion in fees was a matter for thefirms concerned. There fol-lowed a lengthy debate to which21 Council members made con-tributions. It concluded with anexpression of full confidence inthe President and the DirectorGeneral in their continued deal-ing with the on-going contro-versy.

4. Solicitor advertisingThe President said that, sincethe December Council meeting,the Society had been advised ofa Government decision ‘to pro-hibit solicitors advertising theirservices, at least in relation topersonal injuries’. On 21January 1998 he, together withthe Director General, Michael VO’Mahony and Mary Keane,had met officials of theDepartment of Justice to discussthe legislation which would giveeffect to this Government deci-sion. A lengthy debate ensued towhich 16 Council members con-tributed on various aspects ofthis issue. In conclusion, theCouncil unanimously endorsedthe view that it would supportlegislation to ban solicitoradvertising for personal injury

Solicitors Financial Services

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A Law Society company• Independent investment advice for your client• Commission and client loyalty for you• Membership fee : firms with 1-2 solicitors: £50 plus VAT

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BRIEFINGBRIEFING

work. No wider ban would besupported by the Society, how-ever, as the solicitors’ profes-sion had to be free to competeon a level playing field in thecompetitive market it sharedwith other service providers.

5. Payment by lendinginstitutions for workdone by borrowers’ solicitorsColm Price, past chairman of theConveyancing Committee,addressed the Council to intro-duce a recommendation of theConveyancing Committee priorto a full debate on the issue atthe Council meeting on 26March 1998. Mr Price empha-sised that the ConveyancingCommittee was not by anymeans ‘soft’ on lenders. On thecontrary, during 1996 the com-mittee had negotiated with thelenders and, by the end of thatyear, the certificate of title sys-tem had been restored to its ini-tial purpose, with solicitors

being required to certify purelyin relation to title matters. Allmatters not related to title, suchas credit-worthiness, loanrepayment arrangements, prop-erty valuations and all insur-ance matters were the responsi-bility of the lender and not ofthe borrower’s solicitor. Section125 of the Consumer Credit Actprohibited lenders charging feesto borrowers in relation toinvestigation of title. Following athorough consideration of thematter, it was now the unanimousview of the ConveyancingCommittee that payment shouldnot be sought from lending insti-tutions for work done by borrow-ers’ solicitors. The acceptance offees for mortgage security workwould have inherent dangers ofimposing a general duty of careon solicitors in relation tolenders. This was the recommen-dation of the ConveyancingCommittee. Whether it wasaccepted or not was a policy mat-ter for the Council to decide.

6. Multi-disciplinary practicesThe President reported that he,the Director General and JohnFish had recently attended ameeting at the offices of the LawSociety of England & Wales toreview a useful and informativediscussion paper on this subject.The President, with the approvalof Council, then established aworking group whose terms ofreference would be to:i. Examine and report to the

Council, by 8 May 1998, onthe issues affecting (a) theprofession, (b) the public, and(c) the Law Society arisingfrom the establishment ofmulti-disciplinary practices/partnerships.

ii. Consider what steps, if any,the Law Society should takein light of the above.

7. Persons with disabilitiesErnest Cantillon proposed that theSociety establish a new commit-

tee to address issues which arosefor persons with disabilities.These included education, wills,trusts, criminal responsibilities,powers of attorney and healthentitlements. He envisaged thenew committee analysing theseissues and producing a user-friendly booklet or brochure forboth carers and members of theprofession. The Council endorsedMr Cantillon’s proposal.

8. Establishment directiveMichael Irvine noted that the EUestablishment directive had beenpassed and had to be enacted intoIrish law by 1999. Considerationof the implications of the direc-tive was added as a specific itemon the Council action plan.

9. Anniversary ballThe President reported that ananniversary ball to mark the LawSociety’s 20th year in BlackhallPlace would be held on 17 July1998.

WHERE THERE’S A WILLTHIS IS THE WAY…

5 Northumberland Road, Dublin 4. Tel: (01) 668 1855

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

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

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

“Conquer Cancer Campaign” is a Registered Business Nameand is used by the Society for some fund-raising purposes.The “Cancer ResearchAdvancement Board”allocates all ResearchGrants on behalf of theSociety.

IRISH KIDNEYASSOCIATIONDonor House, 156 Pembroke Road, Ballsbridge, Dublin 4.Tel: 01 -668 9788/9 Fax: 01 - 668 3820

The Irish Kidney Association was formed in 1978 to:

1. Promote the general welfare of persons suffering kidney failure - financial and psychological.

2. To give advice and guidance to parents and relatives.

3. To arrange lectures, conferences and meetings pertaining to kidney disease.

4. To support research projects into the causes and effects of inherited disorders and kidney failure.

5. To print and distribute the Multi-Organ Donor Cardand actively promote public awareness of organ failure.

REMEMBER US WHEN MAKING A WILL!

Certified by the Revenue Commissioners as a charity: 6327

OUR FINANCIAL ASSISTANCE IS NATIONWIDE

Committee reports


BRIEFINGBRIEFING

TAX BRIEFINGThe following extracts from TaxBriefing, issue 30, February1998, are reproduced by kindpermission of the RevenueCommissioners.

Cash receipts basis ofaccounting for VATPractitioners will recall that last Julythe annual turnover threshold foreligibility for the cash receipts basiswas increased from £250,000 to£500,000. There is a cashflow bene-fit to be obtained by qualifyingtraders in changing to a cash re-ceipts basis of accounting for VAT.

Some practitioners haveexpressed concern that, at the timeof changing to the cash receiptsbasis, a trader might be obliged toaccount for VAT twice in relationto the same supply – initially dur-ing the taxable period when theinvoice issues and subsequently ina later taxable period when pay-ment is received. This is not cor-rect. Where VAT in relation to asupply has already been accountedfor prior to authorisation to use thecash basis, no further liability aris-es when payment is subsequentlyreceived (section 14(1A)(b) of theVAT Act refers.)

TAXATION Practitioners dealing withclients who wish to change to thecash receipts basis should notifytheir local tax office giving detailsof their turnover for the last 12months and an estimate of theirlikely turnover for the next 12months.

CGT clearance certificateUnder current legislation, if theconsideration for the disposal ofcertain assets exceeds £100,000the vendor must obtain a clear-ance certificate from Revenue,otherwise the purchaser mustdeduct 15% from the purchaseprice. An Irish tax resident is enti-tled to a certificate on the basis ofhis residence while a non-residentmust pay any CGT arising beforea certificate is issued. With therecent increase in house prices aconsiderable amount of adminis-trative work is being generated bythis requirement. It is proposed toincrease the limit to £150,000 tosimplify the administrative burdenon taxpayers and on the Revenue.

Small gains annualexemption limitThe current capital gains taxexemption limits are £1,000 perindividual and effectively £2,000per married couple. The Budgetannounced that from 6 April 1998

the small gains exemption limitwould be £500 per individual irre-spective of marital status. It hasbeen decided to increase this to£1,000 a year. The Finance Billprovides for this revised amount.

Tax clearanceSolicitors and barristers operatingunder the criminal legal aidscheme are not, at present, subjectto tax clearance procedures. TheFinance Bill, therefore, includes aprovision which will facilitate theextension of such procedures tosolicitors and barristers under thefree legal aid scheme.

Tax relief for companydonations to eligible char-itiesThe Finance Bill provides that taxrelief for company donations to eli-gible charities will apply to all char-ities and not just domestic charitiesas announced in the Budget.

Commencement rules forincome taxSections 65 and 66 of the TaxesConsolidation Act, 1997 set out thetax assessment rules which apply totraders and professionals commenc-ing business. There is evidence ofabuse in this area whereby someindividuals have artificially con-trived to keep substantial amountsof income outside the charge to tax.Provisions are now included in theFinance Bill to remedy this situa-tion. They provide that the tradingprofits of the second year runningfrom 6 April to 5 April will be tax-able in full in all cases.

Income tax, CGT: self-ass-essment pay and file rulesThe Finance Bill proposes toamend the current provisions under

self-assessment for the payment ofpreliminary income tax and the fil-ing of tax returns by harmonisingthe deadlines by which the tax ispaid and tax returns are filed. It isproposed to unify these deadlinesat 30 November on and from 30November 1999. The effect ofthese proposals is illustrated by thefollowing example:Pay preliminary tax for1999/2000Existing deadline: 1 Nov 1999 Proposed deadline: 30 Nov 1999 File return for 1998/99Existing deadline: 31 Jan 2000 Proposed deadline: 30 Nov 1999 Pay balance of tax for 1998/99Existing deadline: 30 April 2000Proposed deadline: 30 April 2000.

The Revenue have also undertakento reduce the amount of documen-tation required to be filed by tax-payers with the return under thenew self-assessment arrange-ments. There will be consultationwith practitioners through the TaxAdministration Liaison Commit-tee in implementing these new payand file arrangements.

The Finance Bill also providesthat CGT will also be paid in fullon 30 November after the tax yearin which the gain was made. Atpresent, payment of 90% isrequired on 1 November after thetax year, with the balance payablethe following 31 January or, iflater, within one month of theassessment being made.

There will also be changes tothe direct debit system for pay-ment of preliminary tax to allowinstalments to be aligned with thetax year rather than the calendaryear as at present. These changeswill take effect for the tax year1999/2000.

FOR FURTHER DETAILS Contact Geraldine Hynes at the Law Society, Blackhall Place, Dublin 7

(tel: 01 671 0200; fax: 01 671 0064)

SOLICITOR LINKCompletely CONFIDENTIAL service to help

solicitors wishing to buy or sell a practice ormerge with another firm or share overheads

Practice notes

Requisition 15 of the 1996 edition of

Requisitions on title bears the above

heading.

The Conveyancing Committee has

decided in the light of opinions

received that requisition 15 be amend-

ed by the deletion of 15c for the rea-

sons set out in this practice note.

Accordingly, it should no longer be nec-

essary to furnish a bond if the require-

ments below are fulfilled.

Requisition 15c at present states ‘...

if the disposition was made within the

past two years, an insurance bond

equal to value of the property’ should

be furnished. The present wording was

arrived at because it was felt in the

opinion of the committee to be desir-

able in the light of section 59(1)(a) of

the Bankruptcy Act, 1988 which states

as follows:

‘Any settlement of property, not

being a settlement made before and in

consideration of marriage or made in

favour of a purchaser or encumbrancer

in good faith and for valuable consider-

ation shall:

a) If the settlor is adjudicated bank-

rupt within two years after the

date of the settlement be void as

against the official assignee and

...’.

The section says ‘void’ and further does

not contain an express provision giving

protection to purchaser for value with-

out notice whereas there is such protec-

tion given under section 59(1)(b) ‘... if

the settlor is adjudicated bankrupt at

any subsequent time within five years

after the date of the settlement ...’.

As stated, it was thought that the

Bankruptcy Act, 1988 had changed the

earlier Bankruptcy (Ireland) Amend-

ment Act 1872 as amended. It has, how-

ever, long been accepted that the use

of the word ‘void’ in fact means ‘void-

able’ and why the opportunity was not

taken in the 1988 Act to clarify this is

not entirely clear. The courts have

always accepted that in this context

‘void’ means ‘voidable’ and that anyone

who claims under a settlement who is a

purchaser for valuable consideration

without notice has a good title which

indeed can be forced on a purchaser

(re: Carter and Kenderdines Contract

[1897] 1 CH776).

The net issue would appear to be

that if the settlor was made a bankrupt

within two years of the date of the set-

tlement and the official assignee in

bankruptcy availed of section 59(1)(a)

in order to set aside the voluntary con-

veyance by the settlor, would this have

the effect of depriving a purchaser of a

good title to the property? Secondly, if

the setting aside of the settlement

would not prevent a purchaser getting

a good title because he is a bona fide

purchaser for value without notice,

what criteria must the purchaser satisfy

in order to come within the terms of

the definition?

The essential elements therefore are

valuable consideration, good faith and

the absence of notice whether actual or

constructive. Accordingly, therefore,

section 59(1)(a) did not change the law

which has existed since 1883 which is

that a voluntary settlement would not

be void against the settlor’s trustee in

bankruptcy from its date but could only

be void against the trustee from the

date on which the trustee’s title

accrues. Up to that point, the disponee

of the voluntary settlement would have

a voidable (not a void) title and if the

property comprised in the settlement

were sold to a bona fide purchaser for

value without notice the title of the

purchaser would be good as against the

trustee.

The donee will be acting in good

faith if he has no notice of any fraud or

fraudulent preference being intended

even if such was the intention of the

settlor at the time.

The onus of proof of a lack of good

faith and a lack of valuable considera-

tion is on the official assignee. The per-

son taking under or relying on a gift

must at all times have acted bona fide,

which means in the absence of any dis-

honesty or any attempt to defraud

another person.

In effect such person must have no

notice of any fraud or fraudulent pref-

erence being intended by the settlor.

What is therefore necessary when deal-

ing with a voluntary conveyance is to

obtain the information necessary to

show that at the time of the disposition

the settlor was in a position to dis-

charge any debts that he or she might

have had. It is the long-established

practice of taking a declaration of sol-

vency. It is necessary that the assets of

the settlor be sufficient to discharge all

his debts without recourse to the prop-

erty comprised in the settlement.

For a definition of what constitutes

a purchaser for value without notice,

one should look at section 3(1),

Conveyancing Act 1882 which states

that a purchaser will not be affected by

notice of any instrument, fact or thing

unless inter alia it would have come to

the knowledge of his solicitor had such

enquiries and inspections been made as

ought reasonably had been made by

the solicitor. What the appropriate

enquiries and inspections are will of

course depend on the circumstances of

each case.

The other Act which is relevant in

this regard is the Conveyancing Act

(Ireland) 1634 and sections 10 and 14

thereof which deal with dispositions

intended to delay, hinder or defraud

creditors. Such dispositions are void

save where made bona fide for good

consideration and in this regard see

requisition 15a. Accordingly, it is sug-

gested to amend requisition 15 to read

as follows:

15. Voluntary disposition/bankruptcyIf there is a voluntary disposition on

title furnish now in respect of each such

disposition:

a) A statutory declaration from the

disponer that the disposition was

made bona fide for the purpose of

benefiting the disponee and with-

out intent to delay, hinder or

defraud creditors or others or, if

this is not within the reasonable

procurement of the vendor, confir-

mation that the vendor was not

aware of any such fraudulent

intent

b) If the disposition was made with-

in the past five years, evidence by

way of statutory declaration of

the disponer that at the date of

the disposition the disponer was

solvent and able to meet his/her

debts and liabilities without

recourse to the property disposed

of

c) A bankruptcy search against the

disponer.

Please note in paragraph (b) above

that, in accordance with the Bankruptcy

Act, 1988, ten years has been changed

to five years.

Conveyancing Committee

Voluntary dispositions/bankruptcy


BRIEFINGBRIEFING


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LEGISLATION UPDATE: 1 JANUARY – 15 MARCH 1998ACTS PASSEDReferendum Act, 1997Number: 1/1998Contents note: Establishes an indepen-dent Statutory Referendum Commis-sion which will provide information tothe electorate on the subject matter ofa referendum.Date enacted: 26/2/1998Commencement date: 26/2/1998

SELECTED STATUTORY INSTRUMENTSDistrict Court (Criminal Justice)Rules 1998Number: SI 41/1998Contents note: Give effect to the provi-sions of the Criminal Justice(Miscellaneous Provisions) Act, 1997,with the exception of provision of a sealfor the District Court. In addition, threeother matters are provided for: (a) theamendment to the form 24.7 (list of wit-nesses); (b) the addition of rule 11 toorder 25 which concerns the recital ofcharges in a warrant or a recognisance;(c) the amendment to order 38 regard-ing applications to the court to detainor further detain cash seized under theCriminal Justice Act, 1994.Amends: District Court Rules 1997 (SI93/1997)Commencement date: 15/3/1998

District Court (Family Law) Rules1998Number: SI 42/1998Contents note: Set out the procedureto be followed and the forms to beused in applications under the Family

Law Act, 1995 and the Family Law(Divorce) Act, 1996.Amends: District Court Rules 1997 (SI93/1997)Commencement date: 15/3/1998

Fisheries (Amendment) Act, 1997(Commencement) Order 1998Number: SI 46/1998Contents note: Appoints 26/2/1998 asthe commencement date for certainspecified provisions – see SI.

Guardianship of Children(Statutory Declaration)Regulations 1998Number: SI 5/1998Contents note: Prescribe the form of thejoint statutory declaration to be madeby the mother and father of a non-mar-ital child who wish the father tobecome a guardian of the child jointlywith the mother in accordance with theGuardianship of Infants Act, 1964, s2(4)(inserted by the Children Act, 1997).Commencement date: 1/02/1998

Organisation of Working Time(Breaks at Work for ShopEmployees) Regulations 1998Number: SI 57/1998Commencement date: 1/03/1998

Organisation of Working Time(Code of Practice on CompensatoryRest and Related Matters)(Declaration) Order 1998Number: SI 44/1998Contents note: Prescribes a code ofpractice on compensatory rest periodsfor the purposes of the Organisation of

Working Time Act, 1997, s6.Commencement date: 24/2/1998

Organisation of Working Time(Exemption of Transport Activities)Regulations 1998Number: SI 20/1998Commencement date: 1/3/1998

Organisation of Working Time(General Exemptions) Regulations1998Number: SI 21/1998Contents note: Prescribe that personsemployed in the activities specified inthe schedule to these regulations shallbe exempt from the application of ss1,12 and 13 of the Act which deal respec-tively with daily rest, rests and intervalsat work and weekly rest, subject tobeing granted equivalent compensatoryrest. Such persons shall also be exemptfrom the application of s16 of the Actwhich deals with nightly working hours.Commencement date: 1/3/1998

Referendum Commission(Establishment) Order 1998Number: SI 53/1998Contents note: Establishes a referen-dum commission to provide informa-tion to the electorate on the 18thAmendment to the Constitution(which will enable the State to ratifythe Amsterdam treaty).Commencement date: 2/3/1998

Rules of the Superior Courts (No1) (Solicitors (Amendment) Act,1994) 1998Number: SI 14/1998

Contents note: Provide for an amend-ment and additions to order 53 of theRules of the Superior Courts in regardto procedures in disciplinary and relat-ed matters arising under the SolicitorsActs, 1954 to 1994.Commencement date: 2/02/1998

Terms of Employment (AdditionalInformation) Order 1998Number: SI 49/1998Contents note: Provides that where,under the Terms of Employment(Information) Act, 1994, an employer isrequired to provide an employee witha written statement of certain particu-lars of his or her terms of employment,such statement shall, after 1 March1998, include details of the times andduration of (and any other terms andconditions relating to) the rest periodsand breaks referred to in theOrganisation of Working Time Act,1997, ss11, 12 and 13, that are beingallowed to the employee.Commencement date: 1/3/1998

Trustee (Authorised Investments)Order 1998Number: SI 28/1998Contents note: Replaces the previouslist of investments in which trust fundsmay be invested, as set out in theTrustee (Authorised Investments) Act,1958, with a new list. Also specifiesconditions which are to apply to theinvestment of trust funds.Commencement date: 9/3/1998

Prepared by the Law SocietyLibrary

Certificates of title in residential (non-commercial) conveyancingIt has come to the attention of theConveyancing Committee that somelending institutions are requesting solici-tors to sign ‘acceptance of instructions’and are issuing ‘instructions to solicitors’or are otherwise issuing loan packagescontaining documentation suggestingthat a borrower’s solicitor also acts forthe lending institution.

Under the certificate of title systemagreed between the Law Society and thelending institutions, the obligations of theborrower’s solicitor are set out in theapproved guidelines as issued with theapproved forms of undertaking and cer-tificate of title. No other documentationshould be accepted or used by practition-ers, nor should they accept or sign any doc-

uments which appear to be extraneous tothe agreed documentation or which sug-gest either expressly or impliedly that thesolicitor also acts for the lender. In theordinary course of events, the professionwill be given due notice of any agreedchanges to the certificate of title system.

Solicitors are also reminded of the pro-cedures regarding stage payments and the

supplemental stage payment undertakingwhich requires a solicitor giving the under-taking to a lending institution to ensurethat before any stage payment in excess ofthe amount covered by the HomeBond ispaid, title to the property (including theright to immediate possession) must passto the purchaser.


Practitioners acting for purchasers arereminded that, where it is a condition ofthe contract that the deposit be releasedto the vendor, then in order for the pur-chaser to avail of the protection afford-ed by HomeBond the deposit chequeshould be made payable to the party

who is registered under the HomeBondscheme.

Therefore, where booking depositshave already been paid by the purchaserto an agent or to someone other thanthe party registered with HomeBond,confirmation should be given by the ven-

dor’s solicitor that this money has beenpassed on to the registered party.

Purchasers’ solicitors should alsoensure that the original HB10 is in theirpossession before the deposit cheque ispassed on to the vendor’s solicitor (madepayable to the registered party). If the

original HB10 is not available, confirma-tion should be furnished by the vendor’ssolicitor that any deposit paid will beheld by them as stakeholder until theoriginal HB10 (with schedules attached) isin the purchaser’s solicitor’s possession.


New houses: HomeBond and deposit cheques


BRIEFINGBRIEFING

Solicitors’ Benevolent Association 134th Report and Accounts

Year 1 December 1996 to 30 November 1997The Solicitors’ Benevolent Association,founded in 1863, is the profession’s volun-tary charitable body. It consists of membersof the profession throughout Ireland whocontribute to our funds, and its aim is toassist members or former members of theprofession and their spouses, widows, wid-owers, families and dependants who are inneed. The association provides advice andfinancial assistance on a confidential basisand functions independently of both LawSocieties.

There are currently 23 directors, three ofwhom reside in Northern Ireland, and theymeet monthly in the Law Society’s office,Blackhall Place. They meet at Law SocietyHouse, Belfast, every other year. The workof the directors, who provide their servicesentirely on a voluntary basis, consists in themain of reviewing applications for grants.Directors also make themselves available tothose who may need personal or profes-sional advice, a service which has increasedduring the last year.

The activities of the association arehelped not only by individual or special sub-scriptions but also by organised groups ofthe profession, including bar associationsand the Younger Members’ Committee.

You will see from the accounts that theamount paid out in grants during the yearwas £188,111 and it was only possible topay out this sum due to the generousdonations, legacies and the proceeds offund-raising events received by the associ-ation. The subscriptions from members arenot sufficient to meet all the demands and,accordingly, it was necessary for the direc-tors to increase the annual subscription formembers by £5 for the coming year.

The directors are grateful to both LawSocieties for their support and, in particu-lar, wish to express thanks to Francis DDaly, Past President of the Law Society ofIreland, Alistair J Rankin, Past President ofthe Law Society of Northern Ireland, KenMurphy, Director General, John Bailie,Chief Executive, and all the personnel of

both societies.I wish to express particular appreciation

to all those who contribute with the feefor their practising certificate, to thosewho make individual contributions and tothe following:

Dublin Solicitors’ Bar Association;Southern Law Association; Waterford LawSociety; Limavady Solicitors’ Association;County Cavan Solicitors’ Association;Limerick Bar Association; Mayo Solicitors’Bar Association; West Cork Bar Association;Tipperary & Offaly Bar Association; KerryLaw Society; State Solicitors’ Association;Faculty of Notaries Public; The Law Society;Publishers of the Lawyers’ Desk Diary; IrishDocument Exchange; Younger Members’Committee.

I would like to thank all the directors andthe association’s secretary, GeraldinePearse, for their valued hard work, dedica-tion and assistance during the year.

Thomas A Menton, Chairman

ACCOUNTING POLICIESa) Accounting conventionThe accounts have been prepared underthe historical cost convention. The currencyused in these accounts is the Irish Pound asdenoted by the symbol IR£.b) Receipts and payments Receipts and payments are recognised inthe accounts as they are received and paid.c) InvestmentsInvestments are stated at cost less provisionfor any permanent diminution in value.d) Sterling

Assets and liabilities denominated in ster-ling are converted to Irish Pounds at therate of exchange prevailing at the balancesheet date. Income and expendituredenominated in sterling are converted toIrish pounds at the average exchange rateprevailing during the year.The rates applicable for the year ended 30November 1997 were:

IR£ Stg£• Year End 1 0.8805• Average 1 0.9372

ACCOUNTANTS’ CERTIFICATEWe have prepared the Receipts andPayments Accounts set out above for theperiod 1 December 1996 to 30 November1997 from the accounting records andinformation and explanations supplied tous. In our opinion, the accounts are inaccordance therewith.

Coopers & Lybrand, Chartered Accountants,

Dublin

DIRECTORS AND OTHER INFORMATION

DirectorsChairman: Thomas A MentonDeputy Chairman: Brian K Overend

Trustees (ex officio directors)Brian K OverendJohn M O’ConnorAndrew F SmythRosemary Kearon John Sexton

Metropolitan directorsRosemary KearonSheena BealeGerald HickeyNoelle Maguire John M O’ConnorColm PriceJohn SextonAndrew F Smyth

Provincial DirectorsDesmond Doris, BelfastRobert M Flynn, CorkJohn Brian Garrett, BelfastColin Haddick, NewtownardsCarmel Jenkins, MayoNiall D Kennedy, TipperaryFrank Lanigan, CarlowBrendan J Lynch, Carrick-on-ShannonEtta Nagle, CorkMichael O’Connell, TraleeThomas D Shaw, MullingarPatrick F Treacy, Tipperary

SecretaryGeraldine Pearse

BankersAIB plc37/38 Upper O’Connell StreetDublin 1andFirst Trust31/35 High Street,Belfast BT1 2AL

AccountantsCoopers & LybrandChartered AccountantsGeorge’s QuayDublin 2

StockbrokersBloxham Stockbrokers2-3 Exchange PlaceIFSCDublin 1

Offices of the AssociationThe Law SocietyBlackhall PlaceDublin 7

Law Society of Northern IrelandLaw Society House90/106 Victoria StreetBelfast BT1 3JZ

RECEIPTS AND PAYMENTS ACCOUNT 1 DECEMBER 1996 TO 30 NOVEMBER 1997

1997 1996Receipts IR£ IR£ IR£ IR£Subscriptions 133,157 33,512Donations 40,582 27,388Investment income 25,630 25,463Bank interest 451 862

199,820 187,225PaymentsGrants 188,111 187,260Bank charges 1,547 1,635Administration expenses 13,100 10,870

(202,758) (199,765)Deficit for year before Special events proceeds

(2,938) (12,540)Maracycle – 716Concert: 1 October 1996 – 3,225Irish conveyancing precedents publication 701 4,566Golf outings – 1,982

701 10,489(Deficit) for year before legacies (2,237) (2,051)Legacies 38,350 20,000Surplus per year £36,113 £17,949

EurlegalNews from the EU and International Affairs Committee

Edited by TP Kennedy, Education Officer, Law Society


BRIEFINGBRIEFING

Sexual discrimination and equal pay provisions

The European Court of Justice(ECJ) has given its decision in

Lisa Jacqueline Grant v South-West Trains Ltd (Case 249/96), 17February 1998. It held that arefusal to grant travel concessionsfor an employee’s partner of thesame sex is not discrimination pro-hibited by Community law.

Ms Grant is an employee ofSouth-West Trains. The companygives free travel or travel conces-sions on its network to its employ-ees. These benefits are also given toan employee’s spouse, or to a part-ner of the opposite sex if there hasbeen a meaningful relationshipbetween them for at least two years.

Ms Grant’s predecessor hadobtained travel concessions for hisfemale partner. Ms Grant was in along-standing homosexual rela-tionship and requested the travelconcessions for her female partner.South-West Trains refused on thebasis that such concessions wereonly granted to a spouse or a part-ner of the opposite sex. Ms Grantthen brought proceedings beforean industrial tribunal inSouthampton, arguing that the

refusal constituted discriminationbased on gender, contrary toCommunity law on equal pay formen and women (article 119 ofthe treaty and the equal pay andequal treatment directives). Theindustrial tribunal referred ques-tions to the court concerning theinterpretation of these provisions.It asked whether a refusal to granttravel concessions in these cir-cumstances amounted to discrim-ination on grounds of gender,prohibited by Community law.

In his opinion (see Gazette,November, p40), AdvocateGeneral Elmer recommended thatthe court rule that article 119 hadbeen breached and that there hadbeen an act of discriminationbased on gender. He said that theconcessions were conditional onthe co-habitees being of the‘opposite sex’ to the employee.Thus, the granting of the conces-sions were based on the gender ofthe employee and the co-habitee.

However, the court reached adifferent conclusion. It consideredthree main issues. First, it consid-ered whether the limitation of the

travel concessions to co-habiteesand spouses of the opposite sexwas discrimination based directlyon the gender of the worker. Itrefused to follow the recommen-dation of the Advocate Generaland held that the measure was notdiscriminatory. It pointed out thatit applied equally to a male workerliving with a male co-habitee as tofemale co-habitees. Thus, the ruleapplied in the same way to maleand female workers.

The court then went on to con-sider whether Community lawrequires that stable relationshipsbetween two persons of the samesex should be treated by employ-ers as equivalent to marriage or tostable relationships outside mar-riage between persons of oppositesex. The court held that it did not.There is nothing in Communitylaw requiring the approximationof homosexual relationships tomarital relationships. Nationallaw was not of assistance as theMember States have widelydiverging rules on this issue. Italso noted that the EuropeanCommission on Human Rights

does not consider homosexualrelationships as coming within thescope of the right to respect forfamily life under the Europeanconvention on human rights. Forall these reasons, the court heldthat Community law does notequate stable same-sex relation-ships with opposite-sex stable ormarital relationships. This canonly be done by the introductionof legislation.

Finally, the court consideredwhether in the light of its case lawand international conventions dis-crimination based on sexual orien-tation could be treated as discrimi-nation based on sex, prohibited byarticle 119 and Community legisla-tion. It held that Community lawdoes not cover such discrimination.

The court pointed out thatunder the Amsterdam treaty, theCouncil would be able, acting on aproposal from the Commissionand after consulting the EuropeanParliament, to take measures witha view to eliminating variousforms of discrimination, includingdiscrimination based on sexualorientation. G

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Your client telephones early inthe morning. He tells you

that there are officials fromDirectorate General (DG) IV ofthe European Commission at thereception desk of his company.He wants to know what to do.What do you advise him?

Legislative backgroundArticles 85 and 86 of the Treaty ofRome contain the most importantof the rules in competition mat-

ters. In broad terms, article 85prohibits anti-competitivearrangements between undertak-ings where such an arrangementhas an effect on trade betweenMember States, while article 86prohibits the abuse of dominanceby an undertaking having a domi-nant position in the market.

Council Regulation 17/62entrusts the Commission with theenforcement of competition lawand policy. DG IV of the

Commission deals with this, andin particular it is directorate A ofDG IV which is responsible forinvestigations. Article 14(1) ofthe regulation allows theCommission to ‘undertake allnecessary investigations’ intoundertakings and associations ofundertakings, and to this end it isempowered to:● Enter the undertaking’s premis-

es, land and means of transport● Examine and take copies of the

books and other businessrecords

● Ask for oral explanations onthe spot.

Preliminary pointsThe role of the Commission inthese investigations should benoted. It is the investigator, prose-cutor and adjudicator. Your atti-tude and that of your client shouldbe informed by this simple truth.Your client’s behaviour towards

EU competition law investigations

Recent developments in European law

The Commission has proposed a banking

code directive to consolidate the 19

banking directives. This directive will not

amend their substantive provisions. A

number of banking directives have been

left outside the scope of this proposal:

those dealing with deposit guarantee

schemes, the prohibition of money laun-

dering, capital adequacy and the

accounting directives.

The Commission had adopted a decision

condemning Unilever’s practice of

‘freezer exclusivity’ in Ireland. Unilever is

the leading supplier of ice cream in

Ireland, with a market share exceeding

85%. The company supplied freezer cab-

inets to retailers without charge, but

subject to the condition that they are

used exclusively for storage of Unilever’s

products. The Commission has found

that this results in many outlets being in

a position to sell only Unilever ice cream

products. Market research revealed that

retailers are unlikely to replace existing

freezer cabinets or install additional

ones, so Unilever’s competitors are

unable to sell their products through a

large proportion of retailers with

Unilever freezer cabinets.

Thus, the decision found that the

exclusivity condition for supply of the

cabinets infringed article 85 of the

treaty. The Commission also found that

Unilever was abusing its position of mar-

ket dominance in Ireland, contrary to

article 86, by inducing retailers to enter

into these agreements.

Mars had first complained to the

Commission in 1991. In light of

Commission objections in 1993, Unilever

had modified its distribution agree-

ments: it had introduced a hiring option,

which could have resulted in direct own-

ership of the freezers by the retailers.

However, this change had not taken

place.

The Commission has proposed a direc-

tive on noise emission by equipment

used outdoors, such as construction

machines (excavators and compressors),

garden machinery (lawnmowers and

chain saws) and working equipment on

municipal vehicles (domestic refuse col-

lection vehicles). It covers 55 types of

equipment used in the open air. This

directive will update and replace the

nine current directives covering separate

groups of machinery. Its objective is to

reduce noise exposure and noise nui-

sance. Noise from machines such as

dumpers, graders and mobile cranes will

be subject to limits for the first time,

while existing limits have been tight-

ened by three to six decibels for machin-

ery such as compressors, tower cranes

and hand-held concrete breakers. It pro-

poses that machines should be marked

with their guaranteed maximum noise

emission level.

The Commission has proposed a draft

directive requiring Member States to

supplement the annual roadworthiness

test on commercial vehicles (introduced

by Directive 96/96) with random road-

side inspections. The proposal prescribes

a three-stage inspection. First, visual

inspection of a passing vehicle by a

trained vehicle examiner. If the examin-

er suspects that the vehicle is inade-

quately maintained, the inspection pro-

ceeds to the second stage. This involves

a visual inspection of the parked vehicle

and a check on its roadworthiness docu-

ments. If the examiner still suspects the

vehicle is unroadworthy, the inspection

proceeds to the third stage. This involves

a thorough examination of the vehicle

for irregularities such as bald or dam-

aged tyres, inoperable lights or inade-

quate braking. If the vehicle does not

comply with the required standard or is

found to present a serious risk to the dri-

ver or other road users, the vehicle can

be banned immediately from use on the

public roads.

The ECJ considered the compatibility of

certain Austrian levies with Community

law governing VAT in SPAR Österreichis-

che Warenhandels AG v

Finanzlandesdirektion für Salzburg

(Case 246/96), 19 February. The case con-

cerned a levy imposed by the Austrian

government which is designed to

finance chambers of commerce and the

Federal Chamber of Commerce. It is

payable by all individuals or companies

carrying on finance, credit, insurance,

transport or tourism business and whose

turnover exceeds two million Austrian

scillings. The levy is assessed by the

amounts payable by way of VAT on sup-

plies of goods or other supplies made by

other traders to the taxable party for his

business. The levy is currently set at 3.9%

and is collected by the tax authorities

under the procedures laid down for the

collection of VAT.

SPAR sought to have the decision

imposing the levy on it set aside. The

national court made a reference query-

ing the compatibility of the levy with the

Sixth Directive 77/388, which introduced

a uniform basis of assessment for nation-

al turnover taxes. Article 17 provides

that the taxable person can deduct from

the tax for which he is liable the VAT

payable or paid on goods and services

used for his taxable transactions.

Though the levy was assessed on the VAT

payable, it was not deductible from the

VAT payable by the company. Article 33

of the directive does not prevent a

Member State from introducing taxes or

charges other than turnover taxes.

The Court of Justice held that the

levy was not a turnover tax. It found

that the levy did not impose a charge on

the movement of goods and services and

did not affect commercial transactions in

a manner comparable to VAT. The levy

was calculated on the goods and services

made to the company by his suppliers,

rather than those supplied by him. Thus,

the basis of imposition of the levy was

not on the amount obtained from the

transactions carried out by the company.

The court held that the levy did not

exhibit the essential characteristics of

VAT and was not precluded by the direc-

tive. be sold throughout the EU.

TAXATION

ROAD SAFETY

ENVIRONMENTAL

COMPETITION

BANKING


BRIEFINGBRIEFING

the Commission officials willhave a direct bearing on theirdecision and, more importantly,on the level of fines imposedshould a breach of the competi-tion rules be discovered. You arenot dealing with a police forcewhich will ultimately hand overthe adjudication of the issue to ajudge. For this reason, you shouldbe reluctant to advise your clientnot to co-operate with the officialsand you should certainly encour-age all of his staff to be positiveand polite with the officials and toco-operate in whatever way nec-essary.

Obviously, if you can attend atyour client’s premises immediate-ly, you should do so. However,there are a number of matterswhich may be dealt with on thetelephone in the event that youcannot attend immediately.

Is your client obliged tolet the officials in?The first matter for considerationis whether the officials are actingpursuant to article 14(2) or article14(3) or regulation 17(62). Yourclient will probably have beenhanded an authorisation by theofficials with an explanatory noteattached. It will be clear from thisauthorisation under which sectionof the regulation they are proceed-ing.

Article 14(2) is sometimesknown as the ‘mandate’ proce-dure, although this term is mis-leading as the simple authorisa-tion under which they are actinghas no compulsory effect. Yourclient is not obliged to submit toan investigation in this instance. Ifhe refuses to allow the investiga-tion to continue, the officials willsimply minute this refusal and goaway (probably to return withstronger authorisation).

Under article 14(3), the offi-cials will be acting on a formalCommission decision. In thisinstance, your client is obliged tosubmit to the investigation andyou should advise him of the finesand daily penalties involved in notdoing so. Fines range from 100 to5,000 ECUs for failure to submitto an investigation, with the

Commission tending towards themaximum figure. It would beinadvisable for your client not toco-operate in this instance.Should he persist, the officialshave no power to enter thispremises against his will unlessthe Competition Authority hasactually obtained a warrant toenter from the District Court.

You should also check whetherthe national authorities are pre-sent at the investigation, as theyhave a right to be and would nor-mally attend. The Commission isobliged under article 14(4) to con-sult with the competent authorityof the Member State and, whilethat authority does not have theright to veto an investigation, fail-ure to consult would render thedecision to investigate invalid.

What are they looking for?Maybe your client knows exactlywhat they are looking for; maybenot. If there is something to hide,you should be told immediately asco-operation with the officials atan early stage may significantlydecrease the level of fine imposedat decision stage.

Your client may not know whatthey are looking for. It may helpto find out whether any otherfirms have been raided at thesame time. In some instances, theCommission decision will beaddressed to a number of firms,particularly if complicity is sus-pected between them. If the deci-sion does not name other firms, itmay be useful for your client totelephone his friends in the indus-try to confirm whether or not theyhave been raided.

In any event, the Commissionwill not show its hand. Indeed, inthe explanatory note it says that itcannot be ‘required to enlargeupon the subject matter as set outin the decision or to justify in anyway the taking of the decision’.

Will the officials wait fora lawyer?Paragraph 6 of the explanatorynote recognises the right of thecompany to consult a legal advis-er during the investigation.

However, officials will not undu-ly delay the investigation waitingfor a lawyer, especially if theundertaking has in-house lawyers.The Commission’s attitudeappears to have been approved inNational Panasonic (UK) Ltd vCommission (Case 136/79)[1980] ECR 2033. The ECJ ruledthat where Commission officialsdid not wait for the company’slawyer to arrive, the Commissionhad not infringed the company’sfundamental rights. There is nocut-and-dried definition of ‘unduedelay’; it will depend on the par-ticular circumstances of the caseand, in particular, your client’sattitude to the officials and possi-bly his attitude to them in anydealings he may have had withthem in the past.

Each situation will differ but itis important that you get to yourclient’s premises as quickly aspossible and, if you can, talk onthe telephone to the officials andestablish that they will wait foryou to arrive before continuingwith the investigation.

Advice and procedure atyour client’s premisesIf the officials awaited yourarrival, you must now advise yourclient as to his duties and obliga-tions with regard to the investiga-tion.

The Commission has decidedthat submission to an investiga-tion involves a positive duty onthe firm to co-operate and providethe documents received by theofficials. Your client is obliged todo much more than simply allowthe officials to search the premis-es. If they specify a particulardocument or documents, yourclient is obliged to assist them inobtaining this document.However, it seems clear that yourclient is under no obligation toprovide a list of documents to theofficials.

Can they take documents away? The officials may only inspect theoriginal documents and ask forcopies to be made. You shouldtake three copies of any docu-

ments requested by the officials:one for the officials themselves,one for your client and one foryourself. In this way, you can eas-ily keep track of the documents inwhich the Commission is interest-ed and this may be very helpfullater.

Can the officials ask questions?From the text of article 14(1), it isobvious that the officials can askfor oral explanations on the spot. InNational Panasonic, the court indi-cated that these questions shouldpertain to the records and mattersarising therefrom relating to thesubject matter of the investigation.It must not be a fishing expedition.Your client should limit his answersaccordingly. These explanationsmay be minuted at the request ofyour client or the Commission offi-cials. It is sensible that any conver-sations with the officials should beminuted, and that there should besomeone present either from yourfirm or from your client’s firmcapable of accurately recordingthese minutes.

Your client cannot simply desig-nate one member of staff to dealwith the officials as he may not becompetent to offer explanations ona particular point. A refusal to pro-vide a competent member of staffmay be deemed non-co-operationand may be subject to a fine orpenalty.

Is there protection againstself-incrimination?There is no mention in regulation17 of any right on the part of afirm not to incriminate itself. TheCommission will punish the con-cealment of incriminating docu-ments with fines and daily penal-ties. The company does not havea right to withhold the very docu-ments which prove its participa-tion in an infringement. If it hadsuch a right, this would totallynegate the officials’ investigation.However, it may be possible toargue that an individual or com-pany may refuse to incriminateitself where to do so would riskexposure to criminal law penal-ties.


BRIEFINGBRIEFING

Legal professional privilegeIn AM & S Europe v Commission(Case 155/79) [1982] ECR 1575,the court held that some, but notall, correspondence between aclient and an independent lawyerbased in the EU are privileged,but that dealings with an in-houselawyer or a lawyer in a third coun-try are not. Furthermore, commu-nications with an independentEU-based lawyer are only privi-leged if they are made for the pur-poses of, and in the interests of,the client’s right of defence.Communications with in-houselawyers are not generally privi-leged. However, in Hilti vCommission (Case T 7/89) [1991]ECR II 1711, the court held that inthe very limited case of an inter-nal memorandum prepared by anin-house lawyer reporting what anindependent lawyer said, privi-lege does attach.If your client feels that a docu-ment is privileged, he must claimit, giving a reason or explanationto the official as to why he thinksso. He must not show them thedocument. If they accept hisexplanation, that is the end of thematter. If they do not, your clientshould still refuse to produce thedocument. In that event, the offi-cial will make a formal decisiondemanding production of the doc-

ument and this may be reviewedby the ECJ’s Court of FirstInstance. In this way, the mattercan be decided without the offi-cials actually seeing the docu-ment for which privilege isclaimed.

Can your client protectprofessional secrets?Your client may be under investi-gation as a result of a complaintby a third party. He will thereforebe anxious to ensure that any doc-uments containing ‘businesssecrets’ which are copied by theCommission will not be revealedto that third party, or indeed toanother company under investiga-tion or intervening in the investi-gation. Article 20(2) of regulation17 recognises this right. It pro-vides that the Commission shallnot disclose any informationacquired as a result of this regula-tion which is covered by theobligation of ‘professional secre-cy’. There is no precise definitionof professional secrecy but itwould cover production secretsand processes, customer and dis-tributor lists and marketing plans.In a notice issued in January1997, the Commission differenti-ates between ‘communicable’ and‘non-communicable’ documents.Your client must claim protectionfor the particular document at the

Conferences and seminarsAIJA (Association of YoungLawyers)Topic: The international sale of goodsand supply of machinery abroadDate: 4-6 June Venue: RomeContact: Gerard Coll (tel: 01 6761924)

Topic: Annual congressDate: 20-25 September Venue: Sydney, AustraliaContact: Gerard Coll (tel: 01 6761924)

Topic: Tax and company law: relation-ship between parent and subsidiaryDate: 9 October Venue: MilanContact: Gerard Coll (tel: 01 6761924)

Topic: Multinational dimension of legalpractice

Date: 28 November Venue: Prague, Czech RepublicContact: Gerard Coll (tel: 01 6761924)

European Trade Law AssociationTopic: Developments in law, policy andprocedureDate: 5 MayVenue: BrusselsContact: 0044 171 453 54292

IBCTopic: Advanced EC competition lawDate: 11-12 MayVenue: LondonContact: Patrick Dalton (tel: 0044 171453 2146)

Topic: Distribution, IP licensing and ECcompetition lawDate: 4 June

Venue: LondonContact: Patrick Dalton (tel: 0044 171453 2146)

Topic: Intensive foundation course onEC competition lawDate: 8-11 JuneVenue: LuxembourgContact: Patrick Dalton (tel: 0044 171453 2146)

Irish Centre for European LawTopic: Future developments inCommunity law on sex discriminationDate: 8 AprilVenue: TCDContact: 01 6081081

Solicitors’ European GroupTopic: Energy liberalisation: EC law andCommission policy

Date: 30 AprilVenue: LondonContact: 0044 171 320 5791

Topic: International anti-trust harmonisation initiativesDate: 21 MayVenue: LondonContact: 0044 171 320 5791

Topic: Sport and competition lawDate: 23 JuneVenue: LondonContact: 0044 171 320 5791

Topic: Recent developments: EUemployment law and related issuesDate: 8 JulyVenue: LondonContact: 0044 171 320 5791

time of the investigation. If theCommission officials agree that itcontains business secrets, theywill note this fact and, subject tosome of the exceptions, this willrender the document non-commu-nicable. If the Commission offi-cials disagree, all your client cando is have the document or docu-ments marked, insist that the offi-cial make a formal decision that itis not going to be offered the pro-tection of business secrets whichmay be reviewed by the Court ofFirst Instance.

The protection offered by therecent notice against disclosure ofbusiness secrets is not absolute.Where the secrets themselves pro-vide evidence of an infringementof competition law, theCommission believes that it mustbalance the need to disclose itagainst the harm which mightresult from disclosure. It will takethe following facts into account:● The relevance of the informa-

tion to determining whether ornot an infringement has beencommitted

● Its probative value● Whether it is indispensable● The degree of sensitivity

involved (to what extent the dis-closure of the information harmsthe interests of the firm), and

● The seriousness of the infringe-ment.

When the officials have left andyour client and yourself have hadan opportunity to reflect, it isimportant to set up a meeting todiscuss what documents theyhave copied and taken away andalso to discuss the minutes of anyconversations with the officials.Your client should decidewhether there are any documentswhich they have not copied,which may show his firm in abetter light. If so, these docu-ments should be communicatedto the Commission.

Advise your client in relation tofines. Fines may be imposed up toone million ECU or 10% of theturnover of your client’s companyfor the preceding year. There maybe applications to be made by youto the Court of First Instance todetermine issues of privilege, self-incrimination or business secrets.Consider setting up a meetingwith the Commission officials todiscuss their findings.

Thinking to the future, adviseyour client in relation to settingup a compliance programmebased on a competition audit byyou or your firm. It won’t becheap, but it’s cheaper than thefines.

Noel O’Gorman is principal ofO’Gorman and Co, Solicitors,Cavan.

G

ILT digestof legislation and superior court decisions

Compiled by David P Boyle


BRIEFINGBRIEFING

Child pornography measures proposedA Bill has been presented whichproposes to strengthen legislationaimed at protecting children fromsexual exploitation.● The two areas to be specifical-

ly targeted are child traffickingand child pornography

● The definition of ‘childpornography’ includes porno-graphic images which are gen-erated by computer graphicsand are not of real persons

● Maximum penalties under theproposed legislation would bea fine of up to £100,000and/or up to ten years’ impris-onment.

Child Trafficking andPornography Bill, 1997

Mandatory minimum sentences for drugoffencesThe Criminal Justice Bill, 1997has been re-presented in theSeanad. If passed, the new Billwould provide for:● The creation of a new offence

relating to possession of drugswith a value of £10,000 ormore for the purpose of sale orsupply (it is envisaged that evi-dence of market value would

CRIMINAL be given by a member of theGarda Síochána or an officer ofcustoms and excise)

● Mandatory minimum sen-tences of life or ten years,together with an unlimited fine,for specified offences, subjectto certain exceptions

● The abolition of preliminaryexaminations

● Automatic enquiries by thecourts as to whether drug traf-ficking offenders have benefit-ed from their offences, and

● The giving of evidence by cer-tificate.

Criminal Justice (No 2) Bill, 1997

New Bill for non-thirdlevel educationLegislation has been presentedrelating to rights and duties aris-ing in respect of education at theprimary, post-primary, vocationaland training and adult levels. Ifpassed, the Bill will provide for:● The recognition of schools for

the purposes of funding bypublic funds

● The establishment of theInspectorate on a statutorybasis

● The establishment of boards ofmanagement of schools

EDUCATION

● The establishment and role ofparents’ associations

● The functions of principals andteachers

● Appeals by students or theirparents

● The making of regulations bythe Minister for Education andScience

● The establishment of aNational Council for Curric-ulum and Assessment, and

● Regulation of the State exami-nation system.

Education (No 2) Bill, 1997

Changes proposed toSunday workingA second private member’s Billhas been presented which aims toincrease protection for shopworkers by making Sunday workoptional as opposed to obligatory.If passed, the Bill will:● Apply to shop businesses only● Provide that an employee can-

not be obliged to work on aSunday without his or her con-sent

● Prevent discrimination againstemployees who refuse to workon Sunday

● Provide that at least time and ahalf shall be paid to employees

EMPLOYMENT

who work on Sundays● Ensure that the employer

gives a minimum of fourdays’ notice of the option towork before any one Sunday

● Provide that the employeemust give at least three days’notice of his or her non-availability on the followingSunday, in default of whichthe employer may assumethat the employee consentsto work on the Sunday, and

● Provide for application to aRights Commissioner by anaggrieved employee whomay, if successful, be award-ed a maximum of ten weeks’wages.

Protection of Workers (Shops)(No 2) Bill, 1997

Methods of pay calculation set outThe methods of calculating:● The normal weekly rate of an

employee’s pay (ss20 and 23),and

● The appropriate daily rate ofan employee’s pay (s22) forthe purposes of theOrganisation of Working TimeAct, 1997 have been set out.

Organisation of Working Time(Determination of Pay forHolidays) Regulations 1997 (SIno 475 of 1997)


BRIEFINGBRIEFING

High Court bound byLabour Court findings of fact● Under the 1974 Act, the

High Court had jurisdictionto hear an appeal from ahearing or decision of theLabour Court on a point oflaw

● It is not a rehearing and thecourt is bound by the find-ings of primary fact made bythe Labour Court. In theabsence of an appropriatemale comparator, it couldnot be said that there wasindirect discrimination inany given situation.

Brides v Minister forAgriculture (Budd J), 21 July1997

New admission requirementsRegulations have been madewhich set out the new mini-mum educational require-ments for the admission ofpersona as Garda trainees.The regulations are deemed tohave come into effect on 8May 1997.Garda Síochána (Admissionand Appointments) (Amend-ment) Regulations 1997 (SI no470 of 1997)

Knowledge that vehicleuninsuredWhen considering whether anindividual should reasonablyhave known about the absenceof insurance on a vehicle inwhich they were travelling,the issue is not whether a rea-sonable person have known,but rather should the particularindividual, having regard to allthe relevant circumstances,have known. Curran v Gallagher (SupremeCourt), 7 May 1997

INSURANCE

GARDA SÍOCHÁNA

Regulation of ‘bounc-ers’ proposedA private member’s Bill hasbeen introduced which aims toregulate the activities of ‘doorsupervisors’ at licensed premis-es, including premises licensedunder the Public Dance HallsAct, 1935. The Bill proposes:● The introduction of a register

of door supervisors● A system of certificates of

fitness, to be issued by theGarda Síochána, to enablepersons to be entered on theregister

● Criteria for registration and asystem of appeal relating tothe grant or refusal of suchcertificates

● A prohibition on theemployment of non-regis-tered persons as door super-visors in or about licensedpremises, and

● A system of inspection toensure compliance with theproposed legislation.

Door Supervisors Bill, 1997

Bord Pleanála to beexpandedA Bill has been presentedwhich aims to allow for anincrease the membership of AnBord Pleanála, currentlyrestricted by statute to onechairman and five ordinarymembers. The Minister for theEnvironment and LocalGovernment would be empow-ered to appoint additional mem-bers as necessitated by the lev-els of the board’s work.Local Government (Planningand Development) Bill, 1997

Clarification of localauthority CPO powersregarding tunnelsLegislation has been introducedwhich will, inter alia, if passed:

PLANNING & DEVELOPMENT

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BRIEFINGBRIEFING

● Clarify the power of localauthorities, as road authorities,to compulsorily acquire a sub-stratum of land for the con-struction and maintenance of aroad tunnel as part of theirpowers under the Roads Act,1993

● Amend the Transport (DublinLight Rail) Act, 1996 toexpressly provide a similarpower in connection with thatlegislation, should this provenecessary.

Roads (Amendment) Bill, 1997

Abuse of process to re-litigate issue alreadydetermined● Issue estoppel did not arise

per se in this case. The statusof the relevant findings relat-ed to whether or not it wouldbe unjust in all the circum-stances and an abuse of theprocess of the court to allowsuch findings to be revisited

● The concept of abuse ofprocess applied irrespectiveof privity. When an issue hadbeen determined by a court ofcompetent jurisdiction, it wasan abuse of process of thecourt to seek to have it re-lit-igated in new proceedings

● A judicial determinationdirectly involving an issue offact or of law disposed onceand for all of the issue, so thatit could not afterwards beraised between the same par-ties or their privies. Thisapplied in circumstances suchas the present where theplaintiff but not the defen-dants were the same as in thefirst action

● The plaintiff was seeking tore-open in the present pro-ceedings an issue of factwhich had been decidedagainst it in the first action

The plaintiff issued two sets ofproceedings concerning a pro-

PRACTICE & PROCEDURE

posed lead and zinc mine inNavan, Co Meath.

The first action was againstthe State and Tara MinesLimited, the latter being theoperator of a lead and zinc mineadjacent to the Navan mine. Inthat first action, the plaintiffalleged that the State and TaraMines Limited had wrongfullyconspired together to inflict eco-nomic loss and damage to theplaintiff, to enable Tara toobtain the plaintiff’s share in theNavan mine. In the High Court,the plaintiff’s claims wererejected and the case againstboth defendants dismissed. Anotice of appeal in that case wasserved by the plaintiff.

In the second set of proceed-ings, the plaintiff sought reliefagainst the first named defen-dant who was the receiverappointed over the assets ofBula in 1986 and three otherdefendants who were the bankswhich had provided funds forfunds for Bula’s activities. Theallegations against all were thatthey had been negligent, deceit-ful, in breach of contract and inbreach of trust in their relation-ship with Bula.

In the present proceedings,the High Court ruled that find-ings which had been made in thefirst action and which were rel-evant to any issue in the presentaction, were not reviewable andthe parties were not entitled toreopen them.Bula Limited (In Receivership)v Crowley (Barr J), 29 April1997

Bill admissible for construction purposes● The court was entitled to

investigate and look at whatwas the policy of the BlascaódMór National Historic ParkAct, 1989, and, in that narrowcontext, the court was entitledto look at what was the mis-chief sought to be addressedby the passing of this Act

● A Bill differed from the parlia-mentary records of debates

● The wording of the Bill couldassist the court in framing a

statement of the purpose ofthe Act.

The plaintiffs sought to havehanded into court part of the1989 Blascaód Mór Bill. Theplaintiffs were of the opinionthat the relevant section of theBill would help in the interpre-tation of the words ‘linealdescendant’ contained in s4(4)of the 1989 Act.Blascaód Mór Teoranta v theCommissioners of Public Works(Budd J), 1 July 1997

Whether loan constitutes temporaryborrowings a questionof fact● The question whether a loan

constituted temporary andfluctuating borrowings andwas a revenue transactionwas one of fact to be deter-mined having regard to allthe circumstances

● Findings on primary factshould not be set aside by thecourts unless there was noevidence to support them.

Section 61 of the Income TaxAct, 1967 provides that incomputing the amount of theprofits or gains to be charged,no sum shall be deducted inrespect of ‘(e) any loss notconnected with or arising outof the trade ... (f) any capitalwithdrawn from or any sumemployed or intended to beemployed as capital in suchtrade’. The company in ques-tion carried on the trade oflicensed vintner and restaura-teur in Cork. The companyborrowed to finance the pur-chase of the property fromwhich it carried on the trade.Losses were incurred in con-nection with foreign currencytransactions relating to theinterest on and repayment ofthe loan. The Circuit Courtsubmitted for the High Court’sconsideration the question of

TAXATION

whether it was correct in law infinding that the company wasentitled to bring into account, incomputing its trading profitsand allowable losses for corpo-ration tax purposes, theamounts of the losses incurredon foreign currency exchangerates applicable to its borrow-ing. The High Court answeredin the affirmative and found thatthe issue was one of fact fordetermination by the CircuitCourt and there were nogrounds justifying any interfer-ence with that determination.The plaintiff, on appeal to theSupreme Court, claimed, interalia, that the High Court haderred in law in finding that thequestion in issue was one of factrather than law. The appeal wasdismissed.Brosnan v Mutual EnterprisesLtd (Supreme Court), 8 July 1997

Changes in merchantshipping lawA Bill has been presented whichaims to:● Repeal and amend certain

penal provisions in maritimelaw to reflect relevantInternational LabourOrganisation conventions andthe Council of Europe’s SocialCharter

● Bring domestic law on the reg-istration of ships and recre-ational craft into line with therequirements of the Europeantreaties

● Amend the provisions of theMerchant Shipping Act, 1992regarding the licensing ofsmall passenger ferries, and

● Amend s680 of the MerchantShipping Act 1894 to bringpenalties into line with currentnorms.

Merchant Shipping (Miscellan-eous Provisions) Bill, 1997

The ILT digest is reproduced bykind permission of the Irish LawTimes.

TRANSPORT


PEOPLE & PLACESPEOPLE & PLACES

The Philip C Jessup Moot Court

competition is well known to

Irish lawyers, and is easily the most

prestigious of its kind. Annually,

teams from all over the world con-

verge on Washington DC to

debate the finer points of interna-

tional law. The competition is

organised by the American Society

for International law and attracts

over 70 entrants from all over the

world. The standard of competi-

tion is extremely high.

Law Society teams have always

maintained a high profile in the

Jessup in the past and, happily, the

tradition endured this year when

an apprentice team – Cathryn

Costello, Donal King, Philip Nolan

and Patrick Walshe – defeated

Trinity College and the King’s Inns

in the Irish qualifying round.

Cathryn Costello was declared the

best speaker in the competition

and the team’s written arguments

won the best memorial award. It

was a hugely satisfying result for

us, following months of intensive

research. Jessup teams argue for 45

minutes, and are constantly inter-

rupted by judges anxious to catch a

speaker out on some arcane aspect

of the subject-matter. The Jessup

demands that you be constantly on

your toes – it is a most discerning

form of advocacy.

The success of apprentice-advo-

cates raises an interesting point in

the debate on the merits of fusing

the two branches of the Irish legal

system. In mock-court competitions

like the Jessup, Law Society teams

have never failed to prove them-

selves to be the equals of their

advocate peers when, as that

beloved Law Library colloquialism

goes, ‘on their feet’.

The success of apprentice advo-

cates is an indication – however

minor – of the expanded role that

solicitors could play in the court-

room. There is little to choose

between a novice solicitor and a

novice barrister in terms of fluidity

of speech, confidence or ability to

argue, and – of course – the same

can be said of the qualified mem-

bers of both sides.

We are no longer prepared to

be described as the junior branch

of the profession, nor should we

be. If apprentice solicitors can

excel in moot courtrooms, why

should we doubt that solicitors

proper can excel in real ones?

The team members would like

to thank our offices: McCann

FitzGerald, Arthur Cox, Mason

Hayes & Curran, and Keans for

their support. We also greatly

appreciate the assistance of Cillian

MacDomhnaill and Paula Sheedy

of the Law Society. We would par-

ticularly like to thank our coach,

TP Kennedy, who was immensely

generous with both his time and

his knowledge of the subject in

hand.

Patrick Walshe,

McCann FitzGerald

Apprentices show theirmettle in Moot Court

Pictured launching the Society’s ISO 9000 guide are (left to right): CillianMacDomhnaill, Director of Finance and Administration; Conor Foley, Matrix

Business Services, guidebook author; Law Society President, Laurence KShields; Liz O’Brien, Members’ Services Executive

Emily Comber (third from left), winner of the fifth Tormey & Co LawScholarship for post-primary students, being presented with her prize by

Justice Diarmuid O’Donovan. Also pictured are Barra Flynn, Principal, Tormey& Co (far left) and Catherine Murphy, Solicitor, Tormey & Co (far right). The

Athlone-based firm runs the scholarship every year

LawLink’s stand at the Solicitors’ Exhibition, National Exhibition Centre,Birmingham. The company has launched its secure on-line services in Britain

President Mary McAleese pictured talking to Paddy Harte and Glen Barr,joint executive chairmen of the A journey of reconciliation trust, a cross-bor-der initiative to honour all Irishmen who fought and died in World War One.

Next November the trust plans to unveil a 100-foot Irish round tower inMessines, Belgium



The Diploma in Legal French isa course which has been

offered by the Law Society andAlliance Française since 1995. Ahigh level of fluency is expectedof participants who, through inter-active tutorials, learn about Frenchlaw and the French legal system,while improving their standard ofspoken French.

The conferring ceremony forthe 1997 presentation of the coursetook place on Tuesday 24 March.Twelve candidates attended andcompleted the course in 1997, tenof whom attended for the confer-ring ceremony. The diplomas wereawarded by the FrenchAmbassador, Henri de Coignac,and the President of the LawSociety, Laurence K Shields. TheVice-Chairman of the EducationCommittee, Michael Peart, in hisopening remarks commended theparticipants on their hard work inparticipating in such a demandingcourse over a 12-month period. Heencouraged others to follow wherethey had led.

Diploma in Legal French

This course is currently in itsthird year, with another group ofsolicitors, barristers and appren-tices currently attending sessionson Saturdays and week-dayevenings.

(From left) Laurence K Shields, President of the Law Society, His ExcellencyHenri de Coignac, the French Ambassador to Ireland and Michael Peart,

Vice-Chairman of the Education Committee

Alan Millard is presented with his diploma by Laurence K Shields Barbara Slattery is presented with her diploma by Laurence K Shields

Brian Leonard is presented with his diploma by Laurence K Shields

His Excellency Henri de Coignac, French Ambassador to Ireland (fourth from left), Laurence K Shields, Law SocietyPresident, pictured with Tadhg O’Sullivan, President, Alliance Française, Mrs Vandoorne, director, Alliance Française

and Michael Peart, Vice-Chairman of the Society’s Education Committee and award recipients, Ercus Stewart, NicolaTyson, Mary Casey, Paula Jennings, Paul Keane, Barry McCarthy, Sonya Morrissy-Murphy, Alan Millard, Barbara

Slattery and Brian Leonard

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M r Justice Brian Walsh, former judge ofthe Supreme Court, judge of the

European Court of Human Rights and one ofthe great helmsmen of Irish and Europeanlaw, died after a short illness on 9 March1998. He was in his 80th year.

On his appointment to the Supreme Courtin 1961, the Taoiseach, Seán Lemass,remarked to the young 42 year-old appointeethat he would like the Irish Supreme Courtto become more like the United StatesSupreme Court. The Taoiseach, properly,never referred to the issue again, although hedid mention the same issue to the new Chief Justice, Cearbhaill ÓDalaigh, who was appointed the same day as Brian Walsh.

The Taoiseach had spoken to the converted: the young judge wasinterested in American jurisprudence and in the interpretative roleadopted by the US Supreme Court. The jurisprudence of the USSupreme Court, sincerely-held Christian beliefs, and the view that theConstitution was essentially a natural law document exercised a pro-found influence on Irish law during the Walsh era.

Lawyers will remember Brian Walsh as one of the great exponentsof personal liberty. Access to the courts, inadmissibility of evidenceobtained in violation of a constitutional right, the guarantee of fairprocedures, the concept that the Constitution is written in the presenttense, the belief that if the Constitution provides a right, there auto-matically follows a remedy for breach of any right – these core prin-ciples were developed significantly and with powerful effect byWalsh J and his brother judges. Few persons will ever enjoy a judi-cial career such as Brian Walsh, a judge of three courts, the High and

Supreme Courts of Ireland, and theEuropean Court of Human Rights, with aspan of about 40 years.

Judge Walsh’s intellectual reputation wasawesome. In a tribute, Mr Justice DeclanCostello noted that it was his intellectualvigour that most lawyers encountered.‘Addressing a court in which he was amember, you would be lucky to survive fiveminutes before the incisive questioningbegan, because he enjoyed the cut andthrust of argument’, he continued. Althoughthe judge sometimes displayed the ‘stern

face’, his total lack of pomposity and affectation, and his deephumanity, made any incisive questioning more easy to bear.

In October 1994, Judge Walsh delivered the re-dedication speechat the Law School of St John’s University, New York, and received adoctorate in law. His speech on that occasion sums up his many yearsof reflection on the nature and purpose of law and, by implication, hisown raison d’être. The function of the lawyer is to serve the cause ofjustice and the main function of law is to uphold the cause of justice.‘All lawyers have a prior and perpetual retainer on behalf of truth andjustice’, the judge proclaimed. In a magnificent finale, Judge Walshconcluded: ‘All persons participating in the administration of justicemust be regarded equally to be ministers in the temple of justice’.

One of the great ministers of the law, dedicated to the cause oftruth and justice, has passed away from among us. Judge Walsh’s lifeenriched the lives of many others.

Dr Eamonn Hall is Chief Legal Officer of Telecom Éireann plc.

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OBITUARY

Mr Justice Brian Walsh

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BOOKSBOOKS

Book reviewsThe Child Care Act, 1991

Paul WardRound Hall Sweet and Maxwell (1997), Brehon House, 4 Upper Ormond Quay, Dublin 7. ISBN: 1-899738-107-2. Price: £19.95

Paul Ward has produced thefirst book on the Child Care

Act of 1991. It is a practical guideto the Act, providing explanatorynotes to each section.

Prior to the enactment of theChild Care Act, 1991, the area ofchild care was governed by theChildren Act 1908. Not surpris-ingly, it became increasinglyclear through the late 1970s and80s that this Act was simply notdesigned to deal with the needsof a modern society.

The last ten years have seenextensive development in thearea of child care. It has evolvedthrough case law, the develop-ment of practice and procedure inthe district courts, and particular-ly through the introduction of theChild Care Act, 1991.

In 1989, the landmark judg-ment of the State (D) v G washanded down by the SupremeCourt. The court ruled that casespertaining to the welfare of chil-dren were of such importancethat all the evidence to be reliedupon, whether medical reports or

otherwise, must be delivered tothe solicitor acting on behalf ofthe parent/parents in the case ingood time prior to the trial.Attention was also drawn by theSupreme Court to the fact thatthese proceedings are not fullyadversarial; rather, that they arean inquiry into the welfare of achild.

In 1991, the Supreme Courthanded down a judgment in thecase of the State (F) vSuperintendent of BallymunGarda Station and others. In thecourse of his judgment, the ChiefJustice stated that the rights of achild are unique and in a specialcategory. The Chief Justice fur-ther noted that the continuedabsence of modern legislation inthe child care area was a cause ofgreat concern.

It is against this backgroundthat the Child Care Act was intro-duced, and it has resulted in amajor overhaul of practice in thearea. Brand new legislative con-cepts such as the appointment ofa guardian ad litem for a child,

and the joining of a child as aparty to the proceedings, havebeen introduced. These two sec-tions in particular have becomevery popular in their use, certainlyin the Eastern Health Board area.

The Child Care Act, 1991 hasbeen fully operable since 1996.Paul Ward’s book walks the read-er through each section, providinguseful notes and references to rel-evant case law and regulations.

This Act has spawned five dif-ferent sets of regulations andWard makes reference to these inthe relevant sections. He alsorefers to the judgment of MrJustice Geoghegan in the case ofPS v the Eastern Health Board.This is as yet one of the only judg-ments handed down whichincludes extensive discussion ofaspects of the Act.

The book does not attempt toanalyse or criticise the legislation,and perhaps it’s too early toattempt such a criticism. The bulkof the Act, in particular that partpertaining to procedural aspects ofthe removal of children into care,

only came into being in October1995.

However, one notable issuethat Ward might have highlightedis that an interim care order canonly be extended beyond eightdays with the consent of the par-ent or parents. This limitationimposes a significant burden onpractitioners, judges and courtstaff alike. It results in congestedcourt lists; it wastes valuablecourt and practitioners’ time, andlegal aid resources.

For a practitioner who is newto child care, this book provesvery useful. It draws the reader’sattention to related matters wherenecessary. The legislation isincluded and the explanatorynotes are clear and simple. Forthose who work in the area, itprovides the legislation in anaccessible format along withmuch helpful supplementalinformation.

Sinéad Kearney is a solicitor withthe Dublin firm Roger Greene &Sons.

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■ Services and forward planning

■ Case management

■ Office administration

■ Financial management

■ Managing people

PRACTICE MANAGEMENT GUIDELINESAvailable from the Law Society’s Practice Management Committee, Blackhall Place, Dublin 7 . (tel: 01 671 0711, ext 401).


BOOKSBOOKS

This book is both important inwhat it tries to do, and practi-

cally useful because it succeeds.There is no European Communitylaw of contract. The law of con-tract is a matter of private law – inthis jurisdiction developed bycourts in the common law, inother Member States part of thecodified law of obligations.Rather than seeing this as a set-back to a book entitled EuropeanCommunity contract law, theauthor takes this as his premiseand sets out to describe how EClaw affects contracts.

The effect of EC law on con-tract law is threefold.

First, there are substantiverules of Community law whichapply to contracts in many areas.The author divides the mostaffected areas of contract intocommercial contracts, employ-

Recent years have seen a pro-liferation of comparative law

texts. These range from works ongenuine trans-national legal issues,such as the application of theBrussels convention on jurisdic-tion and enforcement of judgmentsto works adopting a comparativeapproach to issues of national lawsuch as property. Some of theseworks have a wide-ranging appealwhile others are of interest to amuch narrower audience. TheGuide to European company lawsfalls into the latter category.

It provides a chapter by chapteroverview of company law in eachof the EU and EFTA MemberStates (except Iceland). It alsobriefly examines EU company lawand considers the company lawharmonisation programme. This

ment contracts, consumer con-tracts, banking, credit and insur-ance contracts, and public con-tracts (public procurement).Within this broad range of con-tracts, the range of application isagain broad. For example,Quigley lists the applicable legis-lation for employment contractsunder the headings of the freemovement of persons, equaltreatment for men and women,employment law, safety andhealth at work, and social policy.

Second, there are rules ofCommunity law that determinewhich law applies to contracts:the Rome convention on the lawapplicable to contractual obliga-tions (19 June 1980), an interna-tional treaty which forms part ofEC law, determines which law(Irish, English, Greek) applies toa contract.

Third, there are rules ofCommunity law on jurisdictionand enforcement of judgments,which apply to (although are notconfined to) contractual matters.These are the Brussels conventionon jurisdiction and the enforce-ment of judgments in civil andcommercial matters, made pur-suant to article 220 (EC), and theLugano convention on jurisdic-tion and the enforcement of judg-ments in civil and commercialmatters (16 September 1988)which, essentially, extends therules to the Member States of theEuropean Free Trade Association.

The author expertly sets out allthese effects in volume one, andthen sets out all the applicabletreaties and laws in volume two,so a lawyer can check against theprimary sources. This makes thebook a great resource.

There is a huge disparitybetween the volume of substan-tive Community law and the vol-ume of litigation in Communitylaw. Most of this disparity resultsfrom subject area: Communitylaw affects the volume trade(crime, PI etc) only in certain par-ticulars.

However, part of this resultsfrom the Community law point ina case being missed by lawyers.That is why a book like this is soimportant. It has conceptualimportance because it is (to myknowledge) the first, indeed theorigin, of a type of book for whichthere is a great need. Its practicalimportance is linked by the excel-lence of the book to that of con-tract law itself.

Diarmuid Rossa Phelan is aDublin-based barrister.

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second edition extends the reach ofthe book to a consideration of sev-eral Eastern European states.

The Guide facilitates easy com-parison between various nationalsystems of company law. In eachnational chapter, there is a reviewof the principal types of businessorganisation available, require-ments of incorporation and itscost. Each national chapter is writ-ten in a uniform format to ensurethat the reader can easily comparethe main features of commercialenterprises in the states covered.

It is somewhat difficult to con-ceive of the market for this work.It would be of limited value tomost practitioners. While theoverview given of Irish law byHenry Ong and Stephen Hegarty islucid and relatively comprehen-

sive, it is necessarily limited inscope. It is no easy task summaris-ing Irish company law in 27pages. The overview of Europeaninitiatives is very limited – in thecase of some of the company lawdirectives confined to a one-linedescription. This is most unfortu-nate, as the cumulative effect ofthe EC initiatives is quite signifi-cant. It is to be hoped that a futureedition will devote more space tocoverage of EC company law andto a consideration of its success orfailure.

One presumes that the targetaudience for this work is theexecutive whose business oper-ates across national frontiers orcorporate solicitors advisingmultinational companies. Forsuch people, this book will be of

considerable value. It will providethem with an overview of thelegal constraints to which theiroperations or clients will be sub-ject in different European states.However, if a more detailed legalanalysis is required, they will beobliged to consult other texts ortake local advice.

For other practitioners, it willbe something of a curiosity item.Those solicitors possessed with aburning desire to discover theminimum share capital requiredof companies in Estonia or theincorporation requirements forcompanies in Portugal will enjoythis work; others will find it oflimited interest.

TP Kennedy is the Law Society’sEducation Officer.

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Guide to European company laws (second edition)Julian Maitland-Walker

Sweet & Maxwell (1997), 100 Avenue Road, Swiss Cottage, London NW3 3PF, England. ISBN: 0 421 52670 X. Price: stg£95

European Community contract law (two volumes) Conor Quigley

Kluwer Law International (1997), Sterling House, 66 Wilton Road, London SW1V 1DE. ISBN: 9041107185 (volume one), 9041107193 (volume two).Price: stg£156


BOOKSBOOKS

The Taxes Consolidation Act,1997 is a titanic enactment,

surpassing its predecessor, theIncome Tax Act, 1967, both inscale (1,104 sections and 32schedules as against 561 sectionsand 19 schedules) and in scope;the 1997 Act encompasses notonly income tax but also corpora-tion and capital gains tax. Further,given its subject matter, the Actranks as one of the most complexpieces of legislation on the statutebook. Accordingly, lawyersadvising on tax matters will con-front the twin challenges of, first-ly, locating the relevant provi-sions in the new legislation and,second, of interpreting those pro-visions.

The tax book by Alan Mooreaims to help lawyers meet both of

these challenges. The publicationincludes a destination tablewhich allows the user to rapidlyidentify where, in the new Act,an old section or sub-section isnow located. Alternatively,should a client or the Revenuerefer to a section or sub-sectionin the new Act, the user canrapidly identify from the publica-tion the old section or sub-sec-tion.

Useful though such featuresare, The tax book goes further byproviding a plain English guideto each section and sub-sectionof the Act. Such guidance is fre-quently supplemented bydetailed author’s notes whichmake reference to Irish andEnglish case law, Revenue state-ments of practice and equivalent

British enactments. The tax bookalso provides over 300 workedexamples.

It is important to realise that thebook does not reproduce the actual legislation and while, aslawyers, many of us prefer toengage in our own process ofinterpretation, the author’s notesprovide useful background infor-mation for such a process. Further,the guidance provided is authorita-tive. Author Alan Moore, who pre-viously edited Tax Acts, VAT Actsand Capital Tax Acts, was assistedby consultant editors NormanJudge, a former Tax Partner withKPMG and author of Irish incometax, and Sean Murphy, a formerPrincipal Inspector of Taxes andTax Technical Director with Ernstand Young. All three were mem-

bers of the Taxes ConsolidationProject team.

Uniquely, The tax book is alsoavailable on CD-ROM, which notonly allows the user to cut and pastetext directly on to a word-processorbut will also allow the user tosearch any combination of wordsand phrases and to save search pat-terns and results for future use.

Used in conjunction with theTaxes Consolidation Act, The taxbook in text and/or CD-ROM for-mat provides a comprehensiveguide which will be of benefit toall those who are concerned withtaxation matters.

Niall O’Hanlon BA (Hons) (Acct& Fin), (Comm Law), ACA AITI isa barrister specialising in taxationand commercial law.

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Patrick MacKenzie was born inDublin, called to the Bar in

1941, practised extensively in theEastern Circuit, was called to theInner Bar in 1972 and elevated tothe Bench as a judge of the HighCourt in 1987. He has sinceretired and lives in the country.Since its first publication in 1991,Mr Justice MacKenzie’s book hasbeen on the best-seller list andreprinted on several occasions.

In his highly enjoyable mem-oirs, there are descriptions of thegreat and the good, the ‘charac-ters’ who peopled the old EasternCircuit and of the judgesdescribed on the cover of the bookas ‘some good, some bad – nearlyall difficult’. Apart from the sheerenjoyment of reading the book,social and legal historians of thefuture will find interesting obser-vations in these memoirs. SeanMacBride, a senior counsel andstatesman of internationalrenown, was described by theauthor as ‘a very ponderous per-

former in the Circuit Court wherealacrity and ability to shift one’sground is demanded’. The authordescribes Cecil Lavery as themost famous barrister in Irelandwhen the author was called to theBar. Lavery was ‘a man of greatpresence and fluency with adynamic brain’ who was subse-quently elevated to the SupremeCourt ‘where he suffered severalyears of complete and absolutefrustration’, according to theauthor.

Judge Michael Comyn, ChiefJustice Tim Sullivan, Mr JusticeGeorge Gavan Duffy, JudgeFawsett, Noel McDonald SC, MrJustice Brian Walsh, Mr JusticeTom Finlay and Judge BobhUadhaigh are all referred to inone context or another in thebook.

MacKenzie praises the lateTommy Connolly as our greatestconstitutional lawyer, whiledescribing him as ‘an admittedlyheavy drinker who was never

without a cigarette dangling fromhis lips, enveloping his not verywell pressed suit in a snow stormof ashes’. The author noted thatso absent-minded was Connollythat he had seen him with hispyjamas still under his trousers.‘The boys would carry the booksinto court and Tommy wouldlaunch into his argument.’ Theauthor notes that ‘the dry law,moistened by classical allusions,left members of the SupremeCourt flapping with the honey ofhis legal arguments’.

Judge Frank Roe is describedas one of the best Circuit Courtjudges that ever sat in Ireland andwho subsequently becamePresident of the Circuit Court.The author notes that apart fromhearing cases, horses and racingwere his prime interests in life.Everyone was made at easebefore Judge Roe and he ran ‘anextremely happy, sensible courtof justice’.

Mr Justice Ronan Keane is

described as ‘a very eminentjudge, author and fine legalbrain’. Maurice Gaffney SC isdescribed as ‘the most gentle ofsouls’. He is stated to bring ‘aphilosophical and metaphysicalelement into every case’. MrJustice Fred Morris, nowPresident of the High Court,Judge Joe Matthews, Mr JusticeFrank Griffin, Simon O’LearyBL, now the Deputy Director ofPublic Prosecutions, FrankAlymer BL and Rex Mackey SCare some of the distinguished per-sonages who are described by theauthor in his book.

Lawful occasions is a veryentertaining book. The lively wit-ticisms of Bench and Bar, the sto-ries of the ordinary and extraordi-nary persons who come before thecourts, are told with wit, humourand a sense of wisdom that willcertainly entertain readers.

Dr Eamonn Hall is Chief LegalOfficer of Telecom Éireann plc.

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The tax bookAlan Moore (consultant editors: Norman Judge and Sean Murphy)

Taxworld Ltd (1998), 73 Bachelor’s Walk, Dublin 1. ISBN: 1 902065 00X. Price: £95 (book), £114.95 (CD-ROM), £152.50 (book and CD-ROM)

Lawful occasions: the old Eastern CircuitPatrick MacKenzie

Patrick MacKenzie (1991), Old Grange House, Old Grange, Narraghmore, Co Kildare. ISBN: 1-85635-024-X. Price: £6.99


PROFESSIONAL INFORMATIONPROFESSIONAL INFORMATION

Registration of Title Act, 1964An application has been received from theregistered owners mentioned in the sched-ule hereto for the issue of a land certificateas stated to have been lost or inadvertentlydestroyed. A new certificate will be issuedunless notification is received in theRegistry within 28 days from the date ofpublication of this notice that the originalcertificate is in existence and in the cus-tody of some person other than the regis-tered owner. Any such notification shouldstate the grounds on which the certificate isbeing held.(Register of Titles), Central Office, LandRegistry, Chancery Street, Dublin

(Published 3 April 1998)

Regd owner: Louth County Council; Folio:9818; Land: Haggardstown; Area: 0a 1r8p; Co Louth

Regd owner: John W McCann; Folio:5078; Lands: Ballincurry; Area: 25a 0r12p; Co Longford

Regd owner: Patrick Eugene Burke; Folio:18160; Lands: Salt North, Leixlip; CoKildare

Regd owner: Victor Cathcart, deceased, of83 Cromwellsfort Road, Crumlin,Dublin; Folio: 5871; Lands: Townlandof Commons in the Barony ofUppercross situate on the north side ofCromwellsfort Road; Co Dublin

Regd owner: Dieter Schitli; Folio: 55496;Land: Townland of Kilcrohane in theBarony of Carberry West (WestDivision); Co Cork

Regd owner: David O’Donoghue; Folio:21454F; Land: Townland of Lisquinlan,Barony of Imokilly; Co Cork

Regd owner: John Lynch (deceased);Folio: 44471; Land: property, part landsof Ballydaniel More with the cottagethereon situate in the Barony ofBarrymore, County of Cork, beingproperty in said Folio; Co Cork

Regd owner: William Enright of 44

LOST LANDCERTIFICATES

Queen’s Street, Dublin (58/61 CorkStreet, Dublin 8); Folio: 3821L; Lands:property situate on the west side ofNorth Road in the village of Finglas,Townland of Finglas East and Baronyof Castleknock; Co Dublin

Regd owner: Anne Marie Lee; Folio:10383; Lands: Newtownmount-kennedy, Barony of Newcastle; CoWicklow

Regd owner: John and Anne Garde; Folio:43653; Lands: Sarsfields Court, Baronyof Barrymore; Co Cork

Regd owner: Joseph Haughton; Folio:8932; Lands: Ballinderry, Barony ofCarbury; Co Kildare

Regd owner: Marie E Cassell; Folio:10546; Lands: Bray, Barony ofRathdown; Co Wicklow

Regd owner: John Thompson of 43Oakway, Clondalkin, Dublin 22; Folio:52086F; Lands: property situate to theWest of Boot Road in the Town andParish of Clondalkin; Co Dublin

Regd owner: John Lynch and MarieLynch; Folio: 7978; Lands: Punchbowl,in the Barony of Bunratty Lower; Area:5a 2r 20p; Co Clare

Regd owner: Liam O’Donovan; Folio:28811; Lands: Townland of Rea, situatein the Barony of Carbery West; CoCork

Regd owner: Texprint Limited (LimitedLiability Company) of Unit 2 BaldoyleIndustrial Estate, Baldoyle, CountyDublin; Folio: 37742F; Lands:Townland of Baldoyle in the Barony ofCoolock; Co Dublin

Regd owner: Mary Josephine Malone;Folio: 1133F and 2859F; Land:Fairyhall, Barony of Clanwilliam;Area: 12a 3r 23p and 7a 3r 24p; CoLimerick

Regd owner: Gerard Dunne and KarenDunne of 100 Clanmaurice Road,Donnycarney, Dublin 9; Folio: 19609F;Lands: property known as 100Clanmaurice Road situate in the Parishand District of Artaine; Co Dublin

Regd owner: Michael Parker and MarjorieParker; Folio: 2836L; Land: the lease-hold interest in the property situate onthe south side of Glenthorn Drive in the

Parish of St Annes Shandon and CountyBorough of Cork (lease dated07/04/72); Co Cork

Regd owner: Maurice Moore; Folio:18696; Land: Townland of Castletown,Barony of Kenry; Area: 6a 1r 9p; CoLimerick

Regd owner: Patrick J Quinn; Folio:28961; Land: Greaghs; Area: 16a 0r 2p;Co Donegal

Regd owner: John Connor; Folio: 1330;Lands: Ballyhagan, Barony of Carbury;Co Kildare

Regd owner: Gerard O’Halloran; Folio:4290L; Land: property situate to thesouth of Curaheen Road in the Parish ofSaint Finbar’s and County Borough ofCork being that comprised in said folio;Co Cork

Regd owner: Kathleen Healy; Folio:10056; Lands: part lands of NettlevilleDemesne situate in the ElectoralDivision of Cannaway, Barony ofMuskerry East, Co Cork, (being 2 parts)and part lands of Loughleigh situate asaforesaid (being 1 part); Co Cork

Regd owner: Jim Brickley; Folio: 18538;Lands: part of the lands of TawniesUpper, situate in the Electoral Divisionof Clonakilty, Rural Barony of CarberyEast and County of Cork; Co Cork

Regd owner: Fergus McKenna; Folio:10018F; Land: Aghangap; Area: 6.515hectares; Co Monaghan

Regd owner: Joseph Mooney; Folio: 869;

Land: part of the lands ofBallynagleragh; Area: 26a 1r 3p; CoClare

Regd owner: Con Murphy, Very RevEdward Canon Fitzgerald (deceased),Sean Og Murphy (deceased); Folio:36657; Land: Townland of Underhill inthe Barony of Carberry East (WestDivision); Co Cork

Regd owner: Feede Manufacturing Limited(Limited Liability Company) of 54North King Street, Dublin 2; Folio: 805;Lands: Townland of Brazil in theBarony of Nethercross; Co Dublin

Regd owner: Patrick McCourt (deceased)and Anna McCourt; Folio: 201F; Land:Muchgrange; Area: 1a 2r 22p; CoLouth

Regd owner: James Hennessey; Folio:15234; Land: Knockardagannon South;Area: 10a 3r 20p; Co Queens

Quirke, Michael, deceased, late ofKnockroe (or alternatively Ardroe),Caherconlish in the County of Limerick.Would any person having knowledge of awill executed by the above deceased whodied on 6 March 1998, please contact JohnJM Power & Company, Solicitors,Hospital, Co Limerick, tel: 061 383105,fax: 061 383415

WILLS

ADVERTISING RATES

All advertisements must be paid for prior to publication. Deadline for MayGazette: 17 April. For further information, contact Catherine Kearney orAndrea MacDermott on 01 671 0711.

• Lost land certificates – £30 plus 21% VAT• Wills – £50 plus 21% VAT• Lost title deeds – £50 plus 21% VAT• Employment miscellaneous – £6 per printed

line plus 21% VAT (approx 4/5 words a line)

Advertising rates in the Professional information section are as follows:

As per SI no 196 and 287 of 1996. Available in Word 2, 6 and 7, and WordPerfect 6.1. Reproduced with the permission of the Controller, Government Stationery Office. Price per disk (incl p&p): £5 + 1.05 (VAT): £6.05

ENDURING POWER OF ATTORNEY – DISKThe Law Society, Blackhall Place, Dublin 7. Fax: (credit card payments only) 671 0704.

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Cunnane, Patrick, deceased, late of 9Marren Park, Ballymote, Co Sligo. Wouldany person having knowledge of thewhereabouts of a will dated 23 January1992, executed by the above nameddeceased who died on 13 December 1992,please contact Rochford, Gallagher &Company, Solicitors, Ballymote, Co Sligo,tel: 071 83309, fax 071 83467

Moore, Albert (otherwise GeorgeAlbert) and Margaret, deceased, bothlate of Lower Meevagh, Downings, in theCounty of Donegal. Would any personhaving knowledge of a will, if any, ofeither of the above named deceased whodied on 27 February 1996 and 23 October1995 respectively, please contact MessrsMcGinley & Company, Solicitors,Milford, Co Donegal, tel: 074 53233, fax:074 53563

Murphy, Patrick, deceased, late of 7Smyths Villas, York Road, Dun Laoghaire,Co Dublin. Would any person havingknowledge of the whereabouts of a will ofthe above named who died on 8 April1997, please contact O’Callaghan Cowhey,Solicitors, 93 Upper George’s Street, DunLaoghaire, Co Dublin, tel: 2803399, fax:2809221

Phelan, Christy or Christopher, deceased,late of Ballymakee, Ballymacarbery,Clonmel, Co Waterford. Would any personhaving knowledge of the whereabouts of anoriginal will of the above named deceasedwho died on 24 February 1998, please con-tact Murphy & Long, Solicitors, LowerKilbrogan Hill, Bandon, Co Cork, tel: 02344420, fax: 023 44635

McGrath, Francis, deceased, late ofBoeshill, Pettigo, Co Donegal, retiredfarmer. Would any person knowing thewhereabouts of a will of the above nameddeceased who died on 12 April 1985,please contact Brittons, Solicitors,Tirconaill Street, Ballyshannon, CoDonegal, tel: 072 51187, fax: 072 52057(Ref Mc411/MK)

Fitzpatrick, William Anthony (other-wise Tony), deceased, late of 30 and 32Monastery Walk, Clondalkin, Dublin 22.Would any person having knowledge ofthe whereabouts of a will executed by theabove named deceased who died on 1March 1996, please contact Karen O’Neill,Solicitor, Clondalkin Law Centre, TowerShopping Mall, Clondalkin, Dublin 22, tel:4576011, fax: 4576007

Locum solicitor (litigation) required in theDublin 2 area from May to September1998. Reply to Box No 31

Conveyancing overload? Experiencedsolicitor available to work on files in ownhome. Reply to Box No 32

Highly organised, computer liter-ate solicitor with over ten years’post-qualification experience inconveyancing, commercial lending,probate and practice managementseeks position as solicitor withpractice in the Mid West region.Reply to Box No 30

EMPLOYMENT

Northern Ireland agents for all con-tentious and non-contentious matters.Consultation in Dublin if required. Feesharing envisaged. Offices in Belfast,Newry and Carrickfergus. ContactNorville Connolly, D&E Fisher, Solicitors,8 Trevor Hill, Newry, tel: 0801693 61616,fax: 0801693 67712

Personal injury claims, Family law, crim-inal law and property law in England andWales. We have specialist departments ineach of these areas, and offices in London(Wood Green and Camden) andBirmingham. One of our staff is in Irelandfor one week in every month. Legal aidavailable to clients that qualify. ContactDavid Levene & Company, Ashley House,235-239 High Road, Wood Green, LondonN22 4HF, England, tel: 0044 181 8817777, fax: 0044 181 889 6395, and theMcLaren Building, 35 Dale End,Birmingham B4 7LN, tel: 0044 121 2120000, fax: 0044 121 233 1878

London solicitors will advise on UK mat-ters and undertake agency work. All areas.Corporate/private clients. Ellis &Fairbairn, 26 Old Brompton Road, SouthKensington, London SW7 3DL, tel: 0044171 589 0141, fax: 0044 171 225 3935

Agents – England and Wales. We arewilling to act as agents for Irish solicitorsin civil and criminal litigation. Contact:Olliers, Solicitors, Alderman DownwardHouse, 2/3 The Birtles, Civic Centre,Wythenshawe, Manchester M22 5RF, tel:0044 161 437 0527, fax: 0044 161 4373225

MISCELLANEOUSNorthern Ireland solicitors. Will adviseand undertake NI-related matters. All areascorporate/private. Agency or full referralof cases as preferred. Consultations inDublin or elsewhere if required. Fee shar-ing envisaged. Donnelly Neary &Donnelly, 1 Downshire Road, Newry, CoDown, tel: 0801 693 64611, fax: 0801 69367000. Contact KJ Neary

Northern Ireland solicitors providing anefficient and comprehensive Legal Servicein all contentious/non-contentious matters.Dublin-based consultations and elsewhere.Fee apportionment. ML White, Solicitors,43-45 Monaghan Street, Newry, CountyDown, tel: 0801693 68144, fax: 080169360966

To rent: cottage in West Connemara sur-rounded by stunning views. Sleeps five.All mod cons. Local amenities includegame fishing, horse riding, water sportsand fine restaurants. Bed linen included.No children under 12. £400 per week. Tel:041 61120 or 041 53535

James Hyland & Company

FORENSIC ACCOUNTANTS

26/28 South Terrace, Cork

Phone (021) 319 200Fax: (021) 319 300

Dublin Office:Carmichael House

60 Lower Baggot StreetDublin 2

Phone: (01) 475 4640 Fax: (01) 475 4643

E-mail jhyland @ indigo.ie

LOST A WILL?

TRY THEREGISTRY OF WILLS

SERVICE

Tuckey’s House,8, Tuckey Street,

CORK.

Tel: +353 21 279225Fax: +353 21 279226

Dx No: 2534 Cork Wst

ENGLISH AGENTS: Agency work undertaken

for Irish solicitors in both litigation and

non-contentious matters –including legal aid.

Fearon & Co,Solicitors,

Westminster House, 12 The Broadway, Woking,

Surrey GU21 5AU.Tel: 0044 1483 726272Fax: 0044 1483 725807

English Agents - No Win No Fee

JUDKINS & CO. Solicitors

● Personal Injury ● Medical Negligence● Work Accidents & Chronic

Work Related Illness ● Employment● Conveyancing ● Matrimonial ● Childcare ● Contract

also LEGAL AID

Contact Paul Judkins00441992 500456

6-8 The Wash, Hertford, Herts, SG14 1PX

EUGENIA MURRAY& CO.

SOLICITORS36 Main Street

NaasCo. Kildare

Telephone: (045) 895500Fax: (045) 895503

email: [email protected] NOW PRACTISING

Opposite the Court House

All District and CircuitCourt Applications

June/July/August • SecludedSleeps 8 (2 double, 2 twin)

11/2 MILES FROM SEABeside lake

Has washing machine, dishwasher, T.V. & video,

central heating

£400 per week June£450 per week July and August

HOLIDAYIN WEST CORK

House for rentHouse for rent

PHONE028 33388



In the matter of the Registration of TitleAct, 1964 and of the application of ItaThornton in respect of property knownas 24 Meadow Vale, Blackrock, CoDublin

Take notice that Ita Thornton of 24Meadow Vale, Blackrock, County Dublin,has lodged an application for her registra-tion on the Leasehold Register free fromencumbrances in respect of the above men-tioned property.

The original documents of title speci-fied in the schedule hereto are stated tohave been lost or mislaid. The applicationmay be inspected at this registry.

The application will be proceeded withunless notification is received in the reg-istry within 21 days from the date of publi-cation of this notice that the original docu-ments of title are in existence.

Any such notification should state thegrounds on which the documents of titleare held. The missing documents aredetailed in the schedule hereto.Dated 23 March 1998M O’Neill, Chief Examiner of Titles

LOST TITLE DEEDSSchedule

Lease dated 2 August 1968 from Foxrockand Brewery Ltd to James E Thornton ofthe part of the property known as 24Meadow Vale Estate, Blackrock, CoDublin, which said lease is registered as aburden at entry no 24 of Folio 12598F ofthe Register, County Dublin

In the matter of the Landlord and Tenant(Ground Rents) Acts, 1967-1987, betweenMichael Kelly (applicant) and theunknown or unascertained owner orowners (respondents)

To: the County Registrar, CircuitCourt Office, Church Street, Longford,County Longford

Notice of applicationTake notice that on 8 April 1998 at 3pm anapplication will be made on behalf of theabove named applicant to the CountyRegistrar sitting at Circuit Court Office,Church Street, Longford, in the County of

LANDLORD AND TENANT

Longford for:1. An order determining the applicant’s

entitlement to acquire the fee simpleand all intermediate interests in thedwellinghouse and premises known asthe Old Teacher’s Residence,Ballymahon, County Longford; and asmore particularly described in theschedule hereto

2. An order determining the purchaseprice to be paid in respect of suchacquisition

3. An order determining the person orpersons entitled to receive the pur-chase money in respect of the acquisi-tion and the amount each person isentitled to receive

4. In the event of any person required tojoin in the conveyance of the fee sim-ple and all intermediate interests beingunknown or unascertained or refusingto execute the conveyance, an orderappointing an officer of the court torepresent such person and to executethe conveyance for and on behalf ofsuch person

5. Such further or other order or award asthe County Registrar may think fit,and

6. An order providing for the costs ofthis application.

Which said application will be groundedupon the issue and service of this noticeof application, the affidavit of MichaelKelly, the affidavit of Deirdre Gearty, thenature of the case and the reasons to beoffered.Dated 21 April 1997Signed: FJ Gearty & Company, solici-tors for the applicant, 4/5 ChurchStreet, Longford, County Longford

ScheduleAll that and those the plot of ground partof the Townland of Drinan situate in theBarony of Rathcline and County ofLongford, containing .205 acres ofthereabouts statute measure and asshown on the copy map annexed to anindenture of assignment dated 6 August1996 and made between St Mel’sDiocesan Trust of the one part andMichael Kelly of the other part andwhich property comprised the dwelling-house and premises known as the ‘OldTeacher’s Residence’, Ballymahon, inthe County of Longford.

LAW SOCIETY OF IRELANDContinuing legal education

executive

The Law Society of Ireland seeks to recruit an executiveto enhance its Continuing Legal Education programme.

The Society is committed to a major development andexpansion of its current programme and the provision ofseminars throughout the country. Reporting to theContinuing Legal Education Co-Ordinator, the executivewill be charged with administering and implementing thisenhanced seminar programme.

This position will appeal to a person with proven experi-ence in educational administration or a solicitor or bar-

rister with an aptitude for education. The successful appli-cant should be the holder of a full clean driving licenceand, ideally, computer literate. The appointment will, inthe first instance, be on a fixed-term contract basis.

Letters of application, with supporting CV, to be receivedby not later than Friday 3 April by

Albert PowerDirector of EducationLaw Society of Ireland

Blackhall PlaceDublin 7

COOLOCK COMMUNITY LAW CENTRE

A unique opportunityfor a solicitor ...

To join the only community law centre in the Republic.The centre is committed to protecting and promoting thelegal and social rights of marginalised individuals andgroups.

As the present incumbent is taking leave of absence, thecentre invites applications for the post of solicitor who will:• Be responsible for all legal case work (including family

law, employment law, consumer, housing and debt)• Engage in education/training• Draft submissions and undertake research• As a member of the management team contribute to the

overall development of the centre.

This senior and exciting position requires a highly moti-vated solicitor who can work well on their own initiative.

The appointment is for a minimum of two years.

Please submit a detailed CV to be received by Friday 17 April 1998 to:

THE ADMINISTRATORCOOLOCK COMMUNITY LAW CENTRE

Barryscourt MallNorthside Shopping Centre

CoolockDublin 17

Fax: 01 8477563; Tel: 01 8477804/8478692

16 20 22 partners the - law society of ireland

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