rising in the east

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Law Society Gazette www.gazette.ie April 2012 PRESIDENT’S MESSAGE 1
RESILIENCE IN THE
FACE OF ADVERSITY
Since my last ‘President’s Message’, Director General first week in October 2012.
Ken Murphy and I have had the pleasure of attending This is an enormous
meetings with the bar associations of West Cork, and extremely prestigious
Limerick and Kerry. In addition, by the time you receive this event – the legal equivalent
Gazette, we are scheduled to have also visited, spoken and of bringing the Olympics
listened to colleagues at bar association meetings in Donegal, to Dublin! It is estimated
Leitrim and the Midlands. that it will bring more
Unsurprisingly, colleagues, for the most part to date, have than 5,000 visitors to the
reported that their main concern remains the state of the city – indeed, it is thought
economy, with little or no relief in sight. Nonetheless, it is that this will be the biggest
heartening to witness, at first hand, the resilience and good IBA conference yet. It
humour of the profession in the face of adversity. seems certain that hotel “Copies of the
Colleagues remain concerned and apprehensive about accommodation in Dublin
Society’s submission
the Legal Services Regulation Bill. You are probably all aware will be very difficult
that this recently passed its second stage in the Dáil and it is to obtain in the week on the bill have been
expected that the committee stage will commence after the beginning Sunday
sent to every member
Easter break. You will all have received your own hard copy 30 September 2012.
of the Society’s very detailed 100-page submission to the It will obviously be of the Oireachtas
minister. a great boost to the
Joint Committee on
As a further element in the Society’s constructive Irish economy and the
engagement to seek many amendments to the bill as profession should take Justice, Defence and
published, copies of the Society’s submission have also been great pride that Dublin Equality”
sent to every member of the Oireachtas Joint Committee on has been chosen for the
Justice, Defence and Equality. event. These things do not,
On the afternoon of 21 March 2012, that committee met of course, happen by chance, and great credit is due
in Leinster House with representatives of the Free Legal to Michael Greene, Geraldine Clarke and John F Buckley
Advice Centres, the Law Society, the King’s Inns, the Bar in helping to secure the conference for Dublin.
Council, the Competition Authority and the Mandate trade The IBA holds a mesmerising array of events and
union who (in that order) made five-minute statements to seminars at its conferences. While these would usually
the committee. I gave the statement to the committee on only be open to members, the Law Society is hoping to
behalf of the Society. Following that, the director general and persuade the IBA to make a certain number of day passes
I answered questions from committee members. The entire available for events. The position in this regard will not
meeting lasted some two-and-a-half hours. become clear until just two weeks before the event. But if
It is expected that the committee stage of the bill will not you are interested in attending, then perhaps the best way
commence until late April at the earliest. Whether or not to ensure that you can attend is to join the IBA!
the minister, at the Society’s annual conference, will be in a Finally, you will have seen from the last Gazette that the
position to outline the many changes that he has indicated next Calcutta Run is scheduled to take place on 26 May.
he intends to make to the bill may depend on whether or not The event has been hugely successful in raising funds
he has, by then, received the necessary approval for these for inner-city children in Dublin and Calcutta over the
changes from the Cabinet. years. If you can at all, please participate. If not, please
try to sponsor somebody taking part in the event, for
IBA conference whatever amount you can afford. As you know, the day
For the first time since 1968, the conference of the concludes with a barbecue at Blackhall Place, and all are
International Bar Association will come to Dublin in the welcome. G
Donald Binchy
President
2 coNTENTS Law Society Gazette www.gazette.ie April 2012
GGaazzeettttee
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Law Society Gazette
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Volume 106, number 3 c
Subscriptions: €60/€90 o
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Editor: Mark McDermott FIIC
a
Deputy editor: Dr Garrett O’Boyle
L
Art director: Nuala Redmond
Editorial secretaries: Catherine Kearney,
Valerie Farrell
ReGulaRS
Commercial advertising:
Seán Ó hOisín, tel: [phone],
email: [email protected]
4 News 55 One to watch: Water Services
For professional notice rates (wills, title deeds, (Amendment) Act 2012
employment, miscellaneous), see page 62. 12 Analysis 57 SBA report and accounts
59 Justis update
Published at Blackhall Place, Dublin 7, 12 News feature: Is the ‘Freeman on the
60 Eurlegal: EU ‘Energy Roadmap 2050’
tel: [phone], fax: [phone]. Land’ ideology a cause for concern?
Email: [email protected] 16 News feature: The ‘Troika’ experience, – choosing the route to decarbonisation;
Website: www.gazette.ie Greek style recent developments in European law
18 Human rights watch: The issue of
Printing: Turner’s Printing Company Ltd, 62 Professional notices
legal capacity
Longford
63 Recruitment advertising
Editorial board: Michael Kealey (chairman), 20 Comment
Mark McDermott (secretary), Mairéad Cashman,
20 Viewpoint: Could a tweet have scrapped
Paul Egan, Richard Hammond, Mary Keane, 64 Captain’s blawg
the presidential election?
Aisling Kelly, Tracy Lyne, Patrick J McGonagle,
22 Viewpoint: The case in favour of
Ken Murphy, Andrew Sheridan
independent regulation
The Law Society of Ireland can accept
no responsibility for the accuracy of 42 People and places
contributed articles or statements appearing
in this magazine, and any views or opinions 47 Student spotlight
expressed are not necessarily those of the
Law Society’s Council, save where otherwise
48 Books
indicated. No responsibility for loss or distress
occasioned to any person acting or refraining 48 Book reviews: Surviving Revenue Audits,
from acting as a result of the material in The Law of Defamation, and Medicine,
this publication can be accepted by the
Ethics and the Law
authors, contributors, editor or publishers. The
49 Reading room: Updates from the
editor reserves the right to make publishing
Law Society’s Library
decisions on any advertisement or editorial
article submitted to this magazine, and to
refuse publication or to edit any editorial 51 Briefing
material as seems appropriate to him. 51 Council report
Professional legal advice should always be 52 Practice notes
sought in relation to any specific matter.
54 Legislation update: 4 February – 64
8 March 2012
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Law Society Gazette www.gazette.ie April 2012 coNTENTS 3
32 12
coveR StoRy
24 Prophet motive
Islamic Shari’a law presents
a positive vision – based on
principles of equity – as to how
business should be carried on.
We should do all we can to help
Islamic finance flourish in this
22
country, argues John King
featuReS
28 Case: dismissed 36 The paradox of being
Valuing unfair dismissal indispensable
compensation claims can be fraught While the desire to feel indispensable is
with difficulty. Darach MacNamara compelling, it is also dangerous, writes
clears out his desk Keith O’Malley
32 Extinction of the species? 38 Taking charge
Changes in the legal profession over New land registration rules will require
the past five years have threatened the solicitors to modify their approach when
existence of the sole practitioner – putting security in place over registered
are they in danger of becoming an land. What, then, are the practical
extinct species? Mary Frances Fahy implications of the rules? William 38
goes a-huntin’ for fossils Prentice and Frank Treacy explain
Get more at lawsociety.ie
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4 NEwS Law Society Gazette www.gazette.ie April 2012
Nationwide
Compiled by Kevin O’Higgins
Meet your Colleagues Day: Thursday 24 May
Kevin O’Higgins
has been a DUBLIN
Council member
of the Law Now is the time to start thinking about practitioners in Dublin, under Sonia you will then get a list of firms or
Society since how the solicitors in your locality Mcentee’s guidance, have been other bodies in which solicitors are
1998 will mark ‘Meet your colleagues getting together every few months employed for that location, along with
Day’ on thursday 24 May. this is for an after-work chat on office their contact details. It will then be
the opportunity to get to know your management matters and anything an easy matter to get the names of
colleagues a little better. else of concern, with colleagues individual solicitors.
New bar Geraldine Kelly and her DSBa gathering from all over the city. Make a few enquiries to check if
colleagues hosted a wonderful on a more local level, where an event is already being planned.
association social night for a large gathering of I practice in Blackrock, we have If not, you could link up with one or
colleagues stretching from Rathgar about nine firms in the village, and two others to organise a get-together.
team elected to terenure and out as far as we meet over lunch or coffee, either arrange to gather solicitors together
Walkinstown recently. as Geraldine by arrangement or impromptu on a locally on the day, maybe for lunch
at AGM pointed out, the event is purely social, nearby daily basis. It is always a or a drink after work. Decide on the
with no other agenda, and is now in mutually beneficial experience if venue and let other solicitors know
its sixth year. It is a credit to her and approached with a collegiate spirit. what is happening.
KILDARE
other colleagues in the DSBa, such as If you don’t know who your Some groups might decide to
Newbridge solicitor Sharon Keith Walsh, Stuart Gilhooly and John colleagues are, you can quickly nominate a charity of their choice
Murphy was elected president of Glynn. identify them by using the law to benefit from the occasion. If this
the Kildare Bar Association at its But this is happening all over the Society’s online ‘find a firm’ search: event passed you by in previous years,
AGM on 15 March last. Sharon place and is an example of colleagues use only the second search box make sure that this year is different!
takes over from Bernadette helping each other. It doesn’t have (‘location’) on the find-a-firm page, We hope you have a successful event,
Hanahoe. to have a business aspect to it – but enter your exact criteria (for example, and be sure to send the pictures to
The AGM was very well it can – and for two years now, sole ‘Dublin 14’ or ‘Drogheda’), and [email protected].
attended and, prior to the
election of officers, Mr David
Rowe of Outsource gave
a very informative talk on Retirement of Judge Murrough Connellan
risk management and the
opportunities and challenges WICKLOW
facing solicitors in the current
economic climate.
The issue of long delays in
getting cases on for hearing in
the Circuit Court was
discussed and the bar association
is actively seeking ways to reduce
the logjam, where civil matters
can wait up to three years to get a
hearing date after a notice of trial
has issued. There are also serious
delays in family and criminal
matters.
Also elected were David
Osborne (secretary), Eva O’Brien
(treasurer), Helen Coughlan The Wicklow Bar Association marked the retirement of Judge Murrough Connellan at a presentation ceremony in Bray
Courthouse on 27 February, presenting him with a silver and mahogany engraved gavel. (Front): Paddy McNeice and
(PRO), Andrew Cody (CPD),
Judge Murrough Connellan. (Back, l to r): Mark Felton, Alan Donlon, Paul McKnight, Eilish Bradshaw, Conway O’Hara,
Luke Hanahoe (social secretary)
Darren Murphy, Rory McGarry, Patrick O’Toole, Brendan Maloney, Jonathan White, Sharon McKenna Murphy, Jean Con-
and Conal Boyce (court users nors, Richard Joyce, Fiona Roche and Jo Maguire
rep).
Another President MacGuill takes the helm in Louth
LOUTH
Conor MacGuill is the new with Richard MacDonnell and that took place last week to mark registrar, also arranged a get
president of the bar association John McGahon as PRO and the retirement of Brendan Cleary together at the courthouse to mark
and will be assisted during his year treasurer respectively. Conor has from the District Court office. Helen Lennon’s retirement from
by Elaine Connolly as secretary, asked me to mention a function Mairead Ahern, Louth county the court office. G
Law Society Gazette www.gazette.ie April 2012 NEwS 5
A woman of Promissory
In News this month...
influence notes void?
7 Training programme awards 9 Members’ Airport Club discount
8 Cork firm doubles in size 10 Upturn in PC numbers in 2011
9 Five solicitors nominated for 11 News from the Society’s
judicial appointments committees and task forces
Arbitration round-table event
David Hall, a key member of the New
Beginning group, is challenging the
Maura Butler, a course manager Government’s decision to issue €30
in the Law School, has been billion worth of promissory notes to
named by Irish Tatler magazine the former anglo Irish Bank, the eBS
as ‘a woman of influence’ in the and the Irish Nationwide Building
‘professional and public life’ Society. Mr Hall, of college Grove,
category. castleknock, Dublin 15, has brought
Maura is a solicitor and serves the legal challenge to declare the
on the board of the National promissory notes void. the New
Women’s Council of Ireland. Beginning group is not involved.
She is vice-chair of the Irish Mr Hall claims in his High
Women Lawyers’ Association court action that the Government’s
and is pioneering a mentorship decision to issue €30 billion worth
programme for newly qualified of promissory notes to the financial
woman lawyers. In addition, she institutions is unlawful. the decision
Mason Hayes & Curran has inaugurated a monthly round-table event. In all, 95
is chairperson of the Association was never approved by the Dáil, he
people attended its 5 March meeting to discuss the ‘Arbitration Act 2010: two
for Criminal Justice Research and claims. the Dáil was never consulted
years on’. Attending were (l to r): Declan Black (partner and head of the Litigation
Development, and is involved with Practice, Mason Hayes & Curran), John Tackaberry QC, Dermot Ahern (former or had the right to vote or express an
the European Women’s Lobby. Minister for Justice) and John Gordon SC opinion on the matter. In addition, he
argues that the provisions of two acts
that allowed the Government to issue
the notes are unconstitutional.
Judge orders closure of ‘shebeen’
He also claims that the Irish
people are being asked to honour
a District court judge in the said it was a disgrace that the tenant, Michael Iancu, who has a deal made in flagrant breach
Midlands gave gardaí ten minutes long Bar, edenderry, co offaly, been leasing the premises. of the constitution, which has
to shut down a shebeen and had been trading without a Judge coughlan adjourned no democratic legitimacy and
threatened to make a report to the licence and continued to trade all cases to June and ordered is in breach of the treaty for the
Garda ombudsman if it was not while its owner stood before him. gardaí to check the legality of functioning of the eu.
done immediately. He ordered gardaí to Mr Iancu’s status in Ireland, due His proceedings are against the
at edenderry District court on immediately close the premises to information elicited during Minister for finance, the attorney
26 March, Judge John coughlan and initially threatened to jail the questioning in court. General, the central Bank and the
Irish Bank Resolution corporation.
‘Hidden Victorian treasures’ Patricia Rickard-Clarke retires
lecture at King’s Inns
Patricia Rickard-Clarke retired as a
commissioner with the Law Reform
‘Hidden treasures in the Irish The chairman is Charles Lysaght Commission on 29 February 2012.
Law Times of the late Victorian (honorary Bencher of King’s Inns), Formerly a partner in McCann FitzGerald
period’ is the title of a lecture to while the sponsors are Bart Daly solicitors, she was the lead commissioner
be delivered by Mr Justice Hugh BL, Dr Eamonn G Hall (solicitor), for the commission’s work on vulnerable
Geoghegan (retired judge of the Brian J Roche (solicitor). adults and the law (which includes the
Supreme Court) on Wednesday To reserve your place, contact reform of the law on capacity).
25 April 2012. Hugh M Fitzpatrick, 9 Upper She is chair of the Law Society’s Mental
The venue is the Library, Mount Street, Dublin 2; tel: 01 Health and Capacity Task Force and is a
Honorable Society of King’s Inns, 269 2202, fax: [phone], email: member of the Society of Trust and Estate
Henrietta Street, Dublin, at 5pm. [email protected]. Practitioners.
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Law Society Gazette www.gazette.ie April 2012 NEwS 7
Society training programmes bear the mark of excellence
The Law Society Skillnet and platform was further developed
Law Society Finuas Network to allow trainees to get access
have won two outstanding to the training programme by
achievement awards from the smartphones, ipads and personal
Irish Institute of Training and computers. This initiative led
Development (IITD). The to the IITD award for the most
awards were presented by IITD innovative use of technology.
President Sinéad Marren at the Kudos for the achievement is
Kilashee House Hotel on due to the combination efforts
9 March. of the Law Society Skillnet
Recognising the excellence and and Finuas Network Steering
innovation of the Law Society Committees, the teaching and
in the design and delivery of its learning teams, the Society’s
training programmes, the awards career support services team,
were made in the categories its IT section and education
for ‘Most innovative use of department, network member
Celebrating two IITD outstanding achievement awards are (back, l to r): Tom
technology’ and ‘Work placement Blennerhassett (IT manager), Michelle Nolan (communications executive, Law firms, Skillnets Ltd, public and
– graduate and non-graduate’. Society Skillnet and Finuas Networks), T P Kennedy (director of education) and private sector bodies, input from
In July 2011, the Law Society Cillian MacDomhnaill (director of finance and administration). (Front, l to r): other professional organisations
Skillnet and Law Society Paul Mooney (IT co-ordinator, education), Attracta O’Regan (head of Law Society and, most importantly, the
Finuas Network received grant Professional Training) and Keith O’Malley (career advisor) committed participation of job-
funding from Skillnets Ltd seeking solicitors.
JSSP. The target was to design solicitors were provided with The solicitors had a choice Law Society Networks have
and deliver the first educational jobseekers’ training. To date, of two training options – on- received funding from Skillnets
programme of its type to up- 18 have secured full-time site learning or e-learning. The Ltd to continue these successful
skill unemployed solicitors in employment, 55 are currently latter programme was developed programmes in 2012 and look
order to assist them to pursue taking part in work placements, and delivered using existing forward to building on current
employment in sustainable and while 34 are completing educational resources, workplace successes. For details of the
new growth sectors. training and/or applying for resources and cloud computing 2012 programme, contact
A total of 162 unemployed work placements. software. The e-learning [email protected].
A&L Goodbody announces signing of Chinese agreements
taoiseach enda Kenny attended the and head of the firm’s china Group,
signing of agreements between a&l spearheaded the initiative with the
Goodbody and a number of china’s participating chinese law firms and
top law firms and universities the chinese and Irish Governments.
on 27 March 2012 in Beijing. the first four participants in
the signings formed part of the the programme were present at
official announcement event for the the Beijing launch. the taoiseach
a&l Goodbody chinese lawyers’ stated: “I have no doubt that these
Programme. the placement first alumni … have returned from
programme is the first of its kind Ireland with a wealth of experience
and is designed to be a long-term that will benefit them personally
collaborative initiative. and will benefit their firms. I hope
the programme was devised in as well that it will benefit Ireland.
2010, and began in earnest when Having spent a little time on our
the firm welcomed its first set green island, I hope that you will
of chinese lawyers on six-month have returned with an understanding
placements in September 2011. a of our passion for work, our passion
further seven lawyers are currently At the official announcement of A&L Goodbody’s Chinese Lawyers’ Placement for innovation and our passion for
working in a&l Goodbody’s Dublin Programme were Julian Yarr (Managing Partner, A&L Goodbody), John Given excellence.”
office, servicing clients and gaining (Head of the A&L Goodbody’s China Group) and four of the Chinese lawyers all costs of the legal programme,
frontline exposure to the firm’s who have already completed their placements in Dublin estimated to run to several million
international client base, global euro, are being borne by a&l
advisory partners and Irish State this programme will significantly business in china unique expertise Goodbody. In addition, the law firm
agencies involved in inbound and enhance our ability to service and insight through our chinese has been assisting a number of
outbound investment. chinese clients interested in setting lawyers, who are sitting with us in other Irish corporate bodies looking
Julian yarr, Managing Partner of up operations in Ireland and europe, Dublin.” to introduce similar programmes in
a&l Goodbody, says: “We believe as well as offering Irish firms doing John Given, corporate partner their areas of expertise.
8 NEwS Law Society Gazette www.gazette.ie April 2012
ouTlAwS AND INlAwS RDJ celebrates on the double
Life outside legal practice
Law firm, Ronan Daly Jermyn ten law firms in the country. RDJ
(RDJ) has taken on five new managing partner, John Dwyer,
louISe David got more and more involved
solicitors and more than doubled says: “To continue our strategic
JeNNINGS in personnel issues and, over time,
the size of its Galway offices. The expansion, in line with our clients’
Dubai developed into a specialist in HR
law firm has offices in Cork and requirements, we have carried out
Working matters.
Galway, and its office in the an extensive refurbishment and
overseas Aware that most employers
‘City of the Tribes’ has been more than doubled the size of our
for a time cannot afford a full-time HR
enjoying significant growth of office space at Aengus House in
struck Louise function, David decided to
late. The firm has appointed new Galway. Recruiting experienced
Jennings as establish The HR Department
solicitors in the areas of banking, solicitors in key areas is a priority
an attractive as a service that employers can
commercial law, healthcare, and for the firm and we will be looking
option when she qualified in outsource and use, as required, to
litigation and dispute resolution. to further expand our team in the
Eversheds in 2009. access support.
The combined staff of RDJ near future.”
She decided, however, that she His business supplies
and RDJ Glynn now stands at Good news in these reces-
wanted to move somewhere warm, employers with up-to-date
140 – positioning it in the top sionary times!
with a large ex-pat community and handbooks and contracts. It
not too far away from home. She helps employers stay compliant
P
targeted Dubai, investigated the and supports them with HR IC
: M
legal job market there and made challenges. They assist employers IK
E
contact with recruiters and with to develop a strategic HR approach SH
A
employers directly. and to develop their systems. UG
H
Quite quickly, Louise was The company can also audit HR NE
S
offered a unique opportunity processes. SY
within the Dubai government
Legal Affairs Department. Her eMeR lavIN
role consisted of licensing Diversity
and regulation of legal firms, Potential
litigation, and the investigation Emer Lavin
of professional negligence qualified
complaints. as a solicitor
In May 2011, she moved in 1996.
to an in-house role as legal She moved
and business affairs manager from Belfast Galway law firm, RDJ Glynn, celebrated its expansion of staff numbers and offices
with Gulf Intelligence – a to Galway after graduating with on 1 March 2012 (from l to r): John Dwyer (managing partner), Declan Dooley
media and strategic corporate an LLM in human rights law (President of Galway Chamber of Commerce) and Padraic Brennan (partner)
communications company focused from Queen’s University in 2000
on the energy sector. and has lived in Galway ever
Anyone for a Refresher?
She also serves as vice-chair since.
of the Dubai Irish Society and, In 2004, she trained in
associated with this role, has close business executive and personal are you a solicitor returning to the
contact with Enterprise Ireland, coaching and has run a coaching workplace seeking a refresher on
the Irish embassy in the UAE and business on a part-time basis the essentials of legal practice?
the Irish Business Network. since then – combining this with are you a barrister with three
parenting responsibilities. years’ experience in practice who
DavID Bell She has always retained a wishes to transfer to the solicitors’
the HR deep personal interest in human profession? are you a Registered
Department rights and, in particular, in the european lawyer or Qualified
David runs area of diversity. In 2010, she lawyers’ transfer test candidate?
a successful established an organisation If the answer to any of these
HR con- called Diversity Potential, aimed questions is yes, the essentials of
sultancy at encouraging and facilitating legal Practice course from 13 to 31
business. principles of diversity. august 2012 inclusive (weekdays examination; however, attendance
He qualified In September 2011, she was only) is for you. at all elements is mandatory. the
in 1993 and moved quickly out accepted to do a PhD at the this course will cover course fee is €2,825.
of practice into in-house solicitor Department of Equality and Social the core essentials of legal upon successful completion of
roles, working for different Justice at University College practice: professional conduct, this course (and an in-office period
businesses, including a start-up Dublin. She has now begun her Solicitors’ Accounts Regulations, of up to six months), barrister
company and a major food concern PhD studies, through which she conveyancing, probate and tax. candidates are eligible to be
that was listed on the Dublin plans to critique the criminal Intensive in its nature, the course entered on the Roll of Solicitors.
and London stock exchanges. In legal system from an equality will bring professionals up-to-speed for further details, contact
his work as an in-house solicitor, perspective. in these areas in a concise and Rachael Hession (law School) by
condensed manner. there is no email: [email protected].