The Gazette 1971

THE SOCIETY Proceedings of the Council

24th June 1971: The President in the chair, also pre- sent Messrs W. B. Allen, Walter Beatty, Bruce St. J. Blake, John Carrigan, Anthony E. Collins, Laurence Cullen, Gerard M. Doyle, Joseph L. Dundon, James R. C. Green, Gerald Hickey, Michael P. Houlihan, John B. Jermyn, Francis J. Lanigan, Eunan McCarron, Patrick J. McEllin, Patrick McEntee, Brendan A. McGrath, John Maher, Gerald J. Moloney, Patrick G. Moore, Desmond Moran, Senator John J. Nash, George A. Nolan, Patrick Noonan, John G. O'Carroll, Peter E. O'Connor, Rory O'Connor, Patrick F. O'Donnell, James W. O'Donovan, William A. Osborne, David R. Pigot, Peter D. M. Prentice, Mrs. Moya Quinlan, Robert McD. Taylor, Ralph J. Walker. The following was among the business transacted. Income Tax Act 1967 Section 176. The question of a solicitor's obligation to preserve pro- fessional secrecy in regard to income which he may receive in the form of deposit interest, rents or other- wise and requests from inspectors of taxes for disclosure of information about such matters was discussed with an opinion from senior counsel as to a solicitor's professional duties. Members have been receiving requests from the inspectors throughout the country and have referred the matter to the Society for advice. Representatives of the Council discussed the matter with senior officers of the Revenue Commissioners. As the result of the discussion it was decided to refer the matter back to Counsel for clarification of certain points arising from his opinion and the matter will be on the agenda of the Council at their next meeting. Stakeholders The Council considered on a report from a committee a query which was received from a local bar association as to the duties and rights of a stakeholder who receives a deposit on the sale of property. The Associa- tion enquired whether the solicitor or the auctioneer is the proper person to act as stakeholder. The Society's standard conditions of sale by private contract pro- vide that the deposit is to be paid to the solicitor. On sales by public auction the conditions may be adapted to provide for payment of the deposit either to the solicitor or to the auctioneer. As the matter is regulated by the conditions of sale it is a matter for instructions from the client in each case and where appropriate for negotiations and action at Bar Association level. The latest authority on the question of the incidence of loss where the stakeholder defaults is the unreported decision of Kenny J. in Lemas Investments Limited v Harvey 26th January 1970 summarised in the Society's Gazette of February 1970. It was there decided that the vendor had to bear the loss. On the question of interest on the deposit, there is authority for the pro- position that the stakeholder is entitled to the interest during the period between contract and completion.

The Council however decided not to express any opin- ion or recommendations on the legal questions arising.

FURNISHING OF DOCUMENTS WITH CONTRACTS

A member wrote to the Society drawing attention to difficulties created for the purchaser's solicitor by the increasing practice whereby copies of all documents of title are furnished with the draft contract for approval. This affords constructive notice to the purchaser of all latent defects in title details of which may be discovered by inspection of the documents. The purchaser's solici- tor is placed in the position of having to investigate the title before allowing the contract to be signed. In prac- tice there is the added difficulty especially in the case of a sale by public auction in that this examination must be carried out within a limited time. The Council stated that they disapprove of this prac- tice. The correct practice is to furnish a copy of the root of title only with the draft contract: when the contracts have been exchanged copies of the remaining docu- ments of title are furnished. If there are latent defects in title the better practice is to set out the facts fully and frankly in the contract and thereby give the pur- chaser an opportunity to decide whether to take the title offered or not. THIRD PARTY PROCEDURE The Council considered Order 16 Rule 1 (i) of the Superior Courts Rules under which it is necessary for a defendant to obtain leave of the Court to serve a third party notice. The application for leave is made ex parte on affidavit. In the view of the Council such application should be unnecessary where the consent of the plaintiff in writing is obtained. Where the plaintiff's consent is not "forthcoming the application to the Count should be on notice. The Council has suggested to the Superior Courts Rules Committee that Order 16 Rule 1 should be amended accordingly. PARTICULARS DELIVERED STAMP A member wrote to the Society and stated that he was unable to obtain a short form S.T.20 which is lodged with the Revenue Commissioners together with a copy of the deed for retention when applying for the par- ticulars delivered stamp. The Revenue Commission- ers informed the Society that form S.T.20 was out of print but on representations being made by the Society a supply of the form has now been made available.

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