The Gazette 1978

GAZETTE CORRESPONDENCE 12 South Mall, Cork. 28th November, 1978 The Editor, Law Society Gazette Office, Further to my letter of the 22nd September, 19781 feel it appropriate to draw attention to the House of Lords decision in the case of Saif Ali v Sydney Mitchell and Co., and Others. In 1977 the Court of Appeal ruled that there was no distinction between the immunity of a barrister from an action for professional negligence at the suit of a client in respect of his conduct and management of a case in Court, and in respect of advising on litigation about the case out of Court. That decision was based mainly on public policy although there were many who felt that it was in fact contrary to public policy to allow barristers such a wide immunity whilst other professional men had to answer their acts of negligence and could claim no such immunity. The House of Lords heard the appeal in the Saif Ali case last term and Judgment has just been delivered. By a majority of 3 to 2 it has been held that a barrister can be subject to a claim for professional negligence for advice given or work done negligently before a case comes to trial. The test to be applied is that which was laid down by Mr. Justice McCarthy in the New Zealand case of Rees v Sinclair 1974. In that case Mr. Justice McCarthy said "I cannot narrow the protection to what is done in Court; it must be wider than that and must include some pre-trial work. Each piece of before trial work should, however, be tested against the one rule; that the protection exists only where the particular work is so intimately connected with the conduct of the case in Court that it can fairly be a preliminary decision affecting the way that case is to conducted when it comes to a hearing. The protection should not be given any wider application than is absolutely necessary in the interests of the administration of justice; that is why I would not be prepared to include anything which does not come within the test I have stated." Yours faithfully, Rory F. Conway. Dublin 7. Dear Sir,

DECEMBER 1978

The Agricultural Credit Corporation Limited, Box 111, ACC House, Upper Hatch Street, Dublin 2. Telephone 780644. 10th December, 1978

Dear Editor, I was interested to note that in the October 1978 Gazette you carried an article by Vincent Crowley on the Agricultural Credit Act, 1978. I would like to congratulate Mr. Crowley on his synopsis of the main provisions of this Act but, at the same time, feel that perhaps a somewhat erroneous impression was created in relation to the part of the Act which deals with Charging Orders. In this particular regard Mr. Crowley's opening comment was as follows — "this part of the Act is the most far-reaching, progressive and controversial section of the Act." I would go along with the reference to far- reaching and progressive but could hardly accept that the section in question would introduce controversy. What is being attempted here is the introduction of a system whereby the Agricultural Credit Corporation ("the Corporation") having advanced monies to an individual, could charge the lands subsequent to such issue with the repayment of the funds in question. Any element of controversy that might appear in such a practice is, I feel, substantially diminished by sub-section 5 of section 54, which was not mentioned in Mr. Crowley's article. This particular sub-section provides that a Charging Order may be made only with the consent of the person to whom the funds have been advanced. Perhaps the controversy which Mr. Crowley had in mind arises from the Corporation's ability to make such an Order in respect of advances for permanent improvement purposes to a non-registered owner who is in occupation of registered land. Advances of this nature automatically increase the value of the land and the question of ownership is not, therefore, of paramount importance. However, it is intended to proceed on this basis only where I am reasonably satisfied that title has been acquired by the person to whom the advance is made. I would like to make it quite clear that one of the primary motives behind the introduction of such a system is to enable the Corporation tp issue funds more speedily and allow the borrower's legal adviser to deal with any minor problems on the title to the lands charged without the additional pressure of a client frantically seeking the issue of funds. When the legislation was being introduced, time constraints did not permit the issue of an explanatory memorandum. For this reason, and because a number of Solicitors had asked me for guidelines on some sections contained in the Act, I prepared a short commentary on its main provisions. If any members of the Society would be interested in obtaining a copy of this commentary, they might drop me a line and I will send on a copy. Yours sincerely, Dermot F. Jones, Solicitor.

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