The Gazette 1985

GAZETTE

1985 INDEX

INCORPORATED LAW SOCIETY OF IRELAND GAZETTE

INDEX TO VOLUME 79 - 1985

1) SUBJECT INDEX:

A comprehensive index to all subjects covered in the Gazette.

2) ALPHABETICAL CASE INDEX:

(i) Cases reported in the Recent Irish Cases supplements. (ii) Cases examined and/or specially mentioned in Articles.

LIST OF ISSUE NUMBERS AND DATES: 1. — January/February 2. — March

3. — April 4. — May 5. — June 6. — July/August 7. - September 8. — October 9. — November 10. — December

l

GAZETTE

1985 INDEX

ARTICLES Beneficial Interests, Conveyancers and the Occupational Hazard (J. Conlon), 2 -59-66 The Brussels Convention on Jurisdiction and the Enforcement of Judgments (G. Moloney; G. Kremlis), 10 -329-37 Campus Oil (M. Hayden), 10 -347-8 Capital Acquisitions Tax and the Favourite Nephew Relief (D. Kennedy), 3 -91-5 Capital Taxation on Settled Property following the Finance Act, 1985 (D. Kennedy), 7 -243-9 The Competition Policy of the European Community (P. D. Sutherland), 7 -229-33; 8 -269-76 Conduct of Legal Action brought on foot of the C.M.R. Rules (B. J. McGovern), 9 -301-7 Criminal Justice Act, 1984 (G. F. Griffin), 1 -30-1 Divorce in England (D. Moloney), 4 -125-8 The Family Law Act, 1981 —Yet another Pandora's Box? (A. Power), 5 -169-73 How do we clamp down on the problem of Company Fraud? (J. Bermingham), 6 -213-14 How EEC law affects practitioners (M. Robinson), 1 -5-8; 2 -73-5; 3 -85-8; 4 -145-7; 5 -161-4; 6 -197-200 Income Tax, Corporation Tax, Capital Gains Tax: The liability of solicitors as agents for non-resident clients (T. S. McCann), 3 -112-14 The Indoor Management Rule in Ireland (G. McCormack), 1 -17-20 The Mistaken Improver of Land (R. A. Pearce), 5 -179-83 Operate your own Word Processor (J. Turley), 4 -133-4 Plain English (T. Whiting), 7 -253-5 Regulation of the Media: Irish and European Community dimensions (E. G. Hall; P. J. McGovern), 2 -45-50 Serious Capital Loss in Companies (G. McCormack), 8 -285-7 Word Processing in a medium-sized solicitor's office) (C. Curran), 2 -69-70 You can say 'Accident' in French: Road accidents in France and how to cope legally (A. Cornec), 3 -104-08 ASSOCIATIONS AND SOCIETIES see also under Photographs AIJA, 1 -35; 9 -315 Apprentices Athletics Club, 7 -235 Apprentices/Legal Offices Olympic Handball Club (ltr.), 9 -316; 10 -356 C.C.B.E. 9 -309 International Bar Association, 2 -67; 4 -137; 5 -189; 6 -210 Medico-Legal Society, 5 -175; 7 -259; 8 -293; 10 -353 Roscommon Bar Association, 4 -151 Solicitors' Apprentices Debating Society of Ireland, 4 -121; AGM, 9 -317 Solicitors' Benevolent Association, 2 -52; 10 -340 Solicitors' Golfing Society, 5 -178; 8 -283; 10 -357 Tipperary Bar Association, 6 -202 BOOK REVIEWS Casebook on Irish Family Law, A, (W. Binchy), 3-99 Cases and Comment on Irish Commercial Law and Legal Technique (R. Byrne), 10 -352-3 2

S UB J ECT I NDEX References are to issue number followed by page number. Abbreviations: edl. (editorial/comment); Itr. (letter).

ACCIDENTS see: Personal Injury Claims; Road Accidents ACTS OF THE OIREACHTAS Age of Majority Act, 1985 (edl.), 2 -43 Broadcasting Authority Act, 1960, 1 -46 Capital Acquisitions Tax Act, 1976, ss.23-6, 7- 243, 246-7 para.9, Part 1, Sch. 2, 3 -91-4 Capital Gains Tax Act, 1975, 3 -113 ss.15, 24, 7 -243, 245-7; s.26, 3 -94 Carriage of Goods by Road Act, 1965, 9 -301 Companies Act, 1963, s.8,1 -17,20 Companies (Amendment) Act, 1983, s.40 (G. McCormack), 8 -285-7 Courts Act, 1981, 9 -302 Criminal Justice Act, 1984 (G. F. Griffin), 1-30-1 European Communities Act, 1972, 1 -7-8 Exchange Control Act, 1954, s.5, 2 -53 Family Home Protection Act, 1976„2 -62; 5 -170-1 Family Law Act, 1981 (A. Power), 5 -169-73 Finance Act, 1985, s.59, 9 -317; ss.61-3 (D. Kennedy), 7 -243-9 Finance (Miscellaneous Provisions) Act, 1968, ss.20-2, 8 -278 Fire Services Act, 1981, 9 -314 Income Tax Act, 1967, ss.200,201,205,3 -112-14 Land Act, 1965, s.45, 3 -85; 4 -131; 9 -314 Marriages Act, 1972, 2 -43 Protection of Employees (Employers Insolvency) Act, 1984, 1 -11 Registration of Title Act, 1964, s.72, 2 -59, 61-4 Succession Act, 1965, 5 -171-2 ADMINISTRATION OF JUSTICE press reporting of court cases (edl.), 4-123 ADMIRALTY LAW, see Maritime Law ADVERTISING Restrictive Practices Comm. Report (edl.), 1 -1 AGE OF MAJORITY (edl.), 2 -43 AGENCY tax liability of solicitors as agents for non-resident clients (T. S. McCann), 3 -112-14 AGRICULTURAL LAND right of EEC nationals to acquire (M. Robinson), 3 -85 V.A.T. on, 2 -53 APPRENTICESHIP in-office training: suggestions for improvement, 1-13

GAZETTE

1985 INDEX

'indoor management' rule (Royal British Bank v Turquand), (G. McCormack), 1 -17-21 insolvencies: proposed new legislation (J. Bermingham), 6-213 Revenue Commrs. as preferential creditors (edl.), 5 -157 serious capital loss in companies: Companies (Amdt.) Act, 1983, s.40 (G. McCormack), 8 -285-7 COMPENSATION criminal injury: statistics, 1982, 1983, 1-12 COMPETITION LAW articles: (M. Robinson) 5 -164; 6 -197-200- (P. D. Sutherland), 7 -229-33; 8 -269-75 cartels, 7 -230-3 extra-territoriality, 8 -269 industrial property, 8 -273 mergers, 8 -273 services sector, 8 -270 state aids, 6 -198-200; 7 -229-30 COMPUTERISATION, see under Office Management CONFLICT OF LAWS Brussels Convention on Jurisdiction and the Enforcement of Judgments (G. Moloney; G. Kremlis), 10 -329-37 CONSTITUTION OF IRELAND Art. 40.3.1, 2 -46 Art. 40.6.1, 2 -45 Constitutional Law of Ireland (D. Gwynn Morgan), reviewed, 5 -176-7 EEC law and, 1 -8 Third Amendment, 1972, 1 -7-8 CONSTRUCTIVE NOTICE, DOCTRINE OF 2, -63,64 CONSTRUCTIVE/RESULTING TRUSTS, 2 -59 et seq .; 5 -169-70 CONSUMER CONTRACTS jurisdiction for claims: Brussels Convention 10 -334 CONTRACT C.M.R. claims: procedure, 9 -301-7 CONTRIBUTORS Bermingham, John, 6-213-14 complaint procedure, 6-197 defence to claim, as, 5 -162 deregulation, 8 -270, 273 distribution, 8 -269-70 enforcement, 5 -164; 6 -198; 8 -274-5

Company Law in the Republic of Ireland (R. Keane), 10 -351-2 Constitutional Law of Ireland (D. Gwynn Morgan), 5 -176-7 Irish Current Law Statutes Annotated (Sweet & Maxwell), 1 -23 LandLaw (R. A. Pearce), 7 -237 Law of Stamp Duties (M. O'Connor; P. S. Cahill), 5-176 Law Reports of the Commonwealth- Constitutional andAdministrative Law reports, 1985 (Professional Books), 9 -319 Limitation of Actions in the Republic of Ireland (J. C. Brady; T. Kerr), 1 -23 LordDenning; the Judge and the Law (Eds. J. L. Jowell; J. P. McAslan), 1 -24 Personal Injury Litigation - Practice and Precedent (I. S. Goldrein; M. R. de Haas), 6 -209 BRITISH COMMONWEALTH Law Reports of the Commonwealth, reviewed, 9-319 BROADCASTING regulation of, Irish and EEC dimensions (E. G. Hall; P. J. McGovern), 2 -45-50 BUILDING CONTRACT house purchase deposits, see under House Purchase BUSINESS LAW, see Commercial Law C.C.B.E. Brussels service, 9 -309 C.M.R Rules, see under Carriage of Goods CAPITAL ACQUISITIONS TAX 'favourite nephew' relief (D. Kennedy), 3 -91-5 settled property: changes under Finance Act, 1985, 7 -243-5, 246-8 CAPITAL GAINS TAX non-residents: liability of solicitors as agents for, 3 -113-14 retirement relief, 3 -94 settled property: Changes under Finance Act, 1985, 7 -243, 245-6 CARRIAGE OF GOODS C.M.R. claims: procedure (B. J. McGovern), 9 -301-7 CIVIL LEGAL AID, see under Legal Aid COMMERCIAL LAW Cases and Comment on Irish Commercial Law andLegal Techniques (R. Byrne), reviewed, 10 -352-3 COMMUNITY LAW, see European Community Law COMPANIES REGISTRATION OFFICE computerization at, 3 -102,109 COMPANY LAW charges: registration (Practice Note), 4-131 Company Law in Ireland (M. Forde), launch, 6-215 Company Law in the Republic of Ireland (R. Keane), reviewed, 10 -351-2 EEC competition law, see Competition Law fraud, problem of, (J. Bermingham), 6 -213-14

Conlon, Julian, 2 -59-66 Cornec, Alain, 3 -104-08 Curran, Colman, 2 -69-70 Griffin, Gerard F., 1 -30-1 Hall, Eamonn G., 2 -45-50 Hayden, Martin, 10 -347-8 Kennedy, David, 3 -91-5; 7 -243-9 Kremlis, George, 10 -329-37 McCann, Thomas S., 3 -112-14 McCormack, Gerard, 1 -17-20; 8 -285-7 McGovern, Brian J., 9 -301-7

McGovern, J. C., 2 -45-50 Moloney, Derry, 4 -125-8

GAZETTE

1985 INDEX

Moloney, Gerald, 10 -329-37 Pearce, Robert A., 5 -179-83 Power, Albert, 5 -169-73 Robinson, Mary, 1 -5-8; 2 -73-5; 3 -85-8; 4 -145-7; 5 -161-4; 6 -197-200 Sutherland, Peter D., 7 -229-33; 8 -269-76 Turley, John, 4 -133-4 Whiting, Tony, 7 -253-5 CONVENTION ON HUMAN RIGHTS, 4 -147; Art. 10 (2), 2 -48-9 6th International Colloquoy, 3 -97 CONVENTION ON LIMITATION OF LIABILITY FOR MARITIME CLAIMS, 1976 (Itr.), 1 -33-4 CONVENTIONS ON JURISDICTION AND THE ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS, 1968, 1978 (G. Moloney; G. Kremlis), 10 -329-37 CONVEYANCING see also House Purchase beneficial interests and rights of occupation (J. Conlon), 2 -59-65 Building Societies/Law Soc. Joint Committee, 5-167 Family Law Act, 1981, implications of, 5-173 flat development referral service, 8 -281 Law Society practice directions, see under Practice notes occupier, rights of, Williams &Glynns Bank v Boland (J. Conlon), 2 -59-65 solicitors' 'monopoly': Restrictive Practices Comm. report (edl.) 1 -1 title: s.72 investigations, 2 -63-4 CORRESPONDENCE Admiralty Law — limitation of liability, 1 -33-4 Apprentices/Legal Offices Olympic Handball Club, 9 -316; 10 -356 civil legal aid, 1 -32-3; 5 -185; 6 -221 Dublin City Marathon, 9 -316 F.L.A.C., 6 -221; 10 -356 Finance Act, 1985, s.59, 9 -317 Gausson Ground Rents, 9-316 house building/purchase deposits, 7 -260-1 old practices, 2 -66; 4 -152; 5 -187; 6 -221; 7 -261 'Plain English', 10 -356 tax collection system, 7 -260 COURTS enforcement of judgments and jurisdiction: Brussels Convention, 10 -329-37 press reporting of proceedings (edl.) 4-123 CRIMINAL INJURIES COMPENSATION TRIBUNAL statistics, 1982,1983,1 -12 CRIMINAL LAW Criminal Justice Act, 1984 (G. F. Griffin), 1 -30-1 defences based on EEC law, 5 -161 DAIL EIREANN DEBATES, 6 -202; 10 -342-3 DAIL EIREANN SELECT COMMITTEE ON CRIME ETC. drug trafficking assets (edl.), 3 -83 Garda training (edl.), 6 -195 DEALING IN LAND taxation (practice note), 8 -278

DEFAMATION injunctions: principles and procedure (edl.), 7-225 DISCRETIONARY WILL TRUSTS Finance Act, 1985, s.59 (ltr.) 9 -317 DIVORCE English divorce law (D. Moloney), 4 -125-8 DOMICILE Brussels Convention on Jurisdiction and the Enforcement of Judgments, 10 -330, 332-5 doctrine of, (edl.) 10 -327, 356 DRUG TRAFFICKING confiscation of assets: (edl.) 3 -83 EEC LAW, see European Community Law EEC NATIONALS enforceability ofrights of, 2 -73-5; 3 -85-8; 4 -145-7 EDITORIAL COMMENT age of majority, 2 -43 company insolvencies: Revenue Commrs. as preferential creditors, 5 -157 defamatory material: injunctions, 7 -225 domicile, doctrine of, 10 -327, 356 drug trafficking assets, 3 -83 Garda training, 6 -195 house purchase deposits: Roche v. Peilow, 5 -159 insurance companies, supervision of, 8 -267 NESC study of criminal justice system, 2 -41 newspaper reporting of court cases, decline in, 4-123 personal injury claims: jury system, 3 -81 planning: permitted use, 9 -297 Restrictive Practices Comm. report, 1 -1 Stardust tragedy: claims tribunal, 8 -265 tax collection system, 5-157 EDUCATION, see Legal Education EMPLOYMENT LAW, see Labour Law ENGAGED COUPLES Family Law Act, 1981. 5 -169-73 ESTOPPEL proprietary estoppel: McMahon v. Kerry Co. Council, 5 -179-82 EUROPEAN COMMUNITY LAW articles: How EEC Law affects Practitioners (M. Robinson), 1 -5-8; 2 -73-5; 3 -85-8; 4 -145-7; 5 -161-4; 6 -197-200 broadcasting, regulation of, (E. G. Hall; P. J. McGovern), 2 -46-50 competition law, see Competition Law Constitution of Ireland and, 1 -6 defences based on, 5 -161 direct effect and direct applicability, 1 -5-6; 10 -347 enforcement of, procedural aspects, 5 -162-4 equality measures, 2 -73 human rights, protection of, 4 -147 levies or taxes in breach of, refund of, 4 -145-6 payments due under, right to recover, 4 -146-7 references under Art. 177, whether appeal lies, 5 -162; (M. Hayden), 10 -347-8 rights of EEC nationals, 2 -73-5; 3 -85-8 sources of, 1 -5-6 supremacy of, 1 -6.

4

1985 INDEX

GAZETTE

INTERNATIONAL CONVENTIONS, see under Convention JUDGMENTS, ENFORCEMENT OF, Brussels Convention, 10 -329-37 JUDGES appointment of, NESC report (edl.), 2-41 JURISDICTION Brussels Convention (G. Moloney; G. Kremlis), 10 -329-37 JURY SYSTEM personal injury cases (edl.), 3 -81 LABOUR LAW EEC equality provisions, 2 -73; 3 -88 free movement of workers, 2 -74-5; 3 -86-8 legislation: reduction of hourly qualification, 1 - 1 1 LAND acquisition of, rights of EEC nationals, 3 -85 beneficial interests and occupation (J. Conlon), 2 -59-65 dealing in, (practice note), 8 -278 Land Act 1965, s.45, see under Practice Notes Land Law (R. A. Pearce) reviewed, 7 -237 mistaken improvements by stranger: McMahon v. Kerry Co. Council (R. A. Pearce), 5 -179-82 Registration of Title Act, 2 -59 LAND REGISTRY Dail debates, 10 -342 Issue of new land certificates: 1 -37; 2 -78; 3-117; 4 -153; 5 -190; 6 -222; 7 -262; 8 -294; 9 -322; 10 -358 LAND, SALE OF, see: Conveyancing; House Purchase LAW REFORM COMMISSION domicile: working paper no. 10 (edl.) 10 -327 LAW SOCIETY see also under Photographs AGM, Nov. 1985,10 -339 bond scheme draw, Nov. 1985, 10 -340 Compensation Fund, 10 -339 Conveyancing (Flat Development) Referral Service, 8 -281 council, 1984/5: photographs and c.v.s. see under Photographs council elections, 1985/6, 9 -313 Final Examination —First Part 1984, report 4-151 Garda training, submission on, 6 -195, 219 half-yearly meeting, April 1985, 4 -139-40 President 1984/5: address, July, 6 -204-6 President 1985/6, 10 -325 presentation of parchments: Feb., 2 -55- July, 6 -204-7; Nov., 10 -355 professional indemnity insurance, 6 -205; 10 -339 publications reviewed: Limitation of Actions in the Republic of Ireland, 1 -23 Retirement Fund, 4-139 survey: Experience of dealing with solicitors amongst the general public, 1985, 10 -349-50 Vice-Presidents 1985/6,10 -341 Younger Members Committee seminar, 7 -235 LEGAL AID civil scheme: criticisms and replies (Itrs), 1 -32;

EUROPEAN CONVENTIONS, See under Convention EXCHANGE CONTROL solicitors acting for resident purchasers, 2 -53 FAMILY HOME beneficial interests and occupation, conveyancing and, 2 -61-5 Family Law Act, 1981 and, 5 -170-1 separation agreements and, (practice note), 1-11 FAMILY LAW Casebook on Irish Family Law, A, (W. Binchy), reviewed, 3 -99 divorce in England (D. Moloney), 4 -125-8 engaged couples: Family Law Act, 1981 (A. Power), 5 -169-73 marriage, age of, (edl.), 2 -43 matrimonial property; see: Family Home; Matrimonial Property succession rights: Family Law Act, 1981, 5 -171-2 Finance Act 1985, s.59 (Itr.), 9 -317 FRANCE road accidents: how to cope legally (A. Cornec), 3 -104-08 FRAUD company fraud (J. Bermingham), 6 -213-14 GARDA TRAINING, COMMITTEE ON Law Society Submission (edl), 6 -195, 219 GIFT TAX, see Capital Acquisitions Tax GIFTS engaged couples, to and between, 5 -169-73 GOVERNMENT OFFICES criticism of delays in, 4 -139 GROUND RENT PURCHASE SCHEME, 10 -243 HAGUE RULES, 9 -301 HOUSE PURCHASE see also Conveyancing booking deposits: protection of, (edl.), 5 -159; NHBGS reply (Itr.), 7 -260-1; (practice note), 8 -278 delays and expenses: Foras Forbartha report, 3-97 HUMAN RIGHTS protection under EEC law, 4 -417 see also Convention on Human Rights HUSBAND AND WIFE, see Family Law INCOME TAX non-residents: liability of solicitors as agents for, 3 -112-13,114 INFANTS beneficial interests and occupation, 2 -65 INHERITANCE TAX, see Capital Acquisitions Tax INSOLVENCIES, see under Company Law INSURANCE see also Motor Insurance claims jurisdiction: Brussels convention, 10 -334 supervision of companies (edl.), 8 -267 INTERNATIONAL ASSOCIATIONS, see under Associations and Societies

1985 INDEX

GAZETTE

5 -185; 6 -221 F.L.A.C. (Itrs.), 6 -221; 10 -357 Kerry, service for, 10 -343 LEGAL EDUCATION apprenticeship training: suggestions for improvement, 1-13 Final Examination —First Part 1984, report, 4, -151 LEGAL PROFESSION NESC study (edl), 2 -41 LIMITATION OF ACTIONS C.M.R. claims, 9 -302 Limitation of Actions in the Republic of Ireland (J. C. Brady; T. Kerr) reviewed, 1 -23 Brady, Winifred (Rathgar, Dublin), 10 -358 Brunskill, Norah (Rathmines, Dublin), 1 -37 Burke, Maureen (Bath Ave., Dublin), 9 -322 Butler, Joan Francis (Co. Laois), 1 -37 Byrne, Austin (Bray, Co. Wicklow), 6 -222 Caulfield, Maureen (Dorset St., Dublin), 1 -37 Connolly, Martin Brendan (Roscommon), 10 -357 Connor, John (Ballinasloe, Co. Galway), 5 -190 Costello, Patrick (Blackrock, Dublin), 9 -322 Cuddigan, Dr. James A. (Middleton, Cork), 4 -153 Cummins, Christopher (Kimmage Manor, Dublin), 3-118 Currie, Robert (Co. Donegal), 3 -118 Dawson, William (Tullamore), 2 -78 Flynn, Martin (Dunlaoghaire and Portlaoise), 2-78 Foley, John (Glenbeigh, Kerry), 1 -37 Halpin, Thomas (Kevin St., Dublin), 8 -294 Hickey, Mary (Dundrum, Dublin), 1 -38 Hogben, Maurice Percy (Bray, Wicklow), 1 -38 Hughes, James (Kilcoole, Wicklow), 5 -190 Hyde, Charles (Ballycotton, Cork), 2 -78 Keechman, Emma Letitia (Sandyford, Dublin), 10 -358 Kelly, Julia (Dunmore, Galway), 10 -358 Kenny, Charlotte (Dublin), 3 -118 King Clarke, Percy (Dunlaoghaire), 4-153 Ledwidge, Gregory (Churchtown, Dublin), 10 -357 McCann, Maureen (Shercock, Cavan), 3 -118 McDonnell, Madeline (Timahoe, Laois), 6 -222 McGivney, Brian (Dring, Longford), 5 -190 McMahon, Nora (Springfield Park, Dublin), 1 -38 Morrissey, John (Knocknagoshel, Kerry), 1 -38 Murphy, John Patrick (Bantry, Cork), 6 -222 O'Brien, Kathleen (Stradbally, Waterford), 3-118 O'Brien, Michael (Farranfore, Kilkenny), 5 -190 O'Byrne, Clare (Drogheda, Louth), 3 -118 O'Connor, Hannah (Cork), 9 -322 O'Connor, Rory (Doolin, Clare), 10 -358 O'Dea, Bridget (Lisdoonvarna and Kilrush, Clare), 6 -222 LIMITATION OF LIABILITY maritime claims (Itrs.) 1 -33-4 LOCAL LAW SOCIETIES, see under Associations and Societies. LOST WILLS

O'Grady, Albert Dudley (Ballintemple, Cork), 10 -358 O'Sullivan, Michael (Carlow), 4 -154; 8 -294 Palmer, Eileen (Clontarf Rd., Dublin), 1 -38 Power, Martin (Gardiner St., Dublin), 7 -262 Power, Patrick John James (Ballsbridge, Dublin), 1 -38 Quinn, Patrick (Terenure, Dublin), 4 -153 Rice, Veronica Mary (Dundalk), 6 -222 Ryan, Mary (Farranshone, Limerick), 8 -294 Sayers, Charles William (Sutton, Dublin), 4 -154 Sheedy, Joseph (Lisdoonvarna, Clare and Dublin), 3 -118 Sheehan, Susan (Nenagh, Tipperary), 4 -154 Smith, Bernard (Oldtown, Dublin), 1 -38 Valentine, Laetitia (New Ross, Wexford), 5 -190 Wallace, James (Kilmacow, Kilkenny), 8 -294 Walsh, Fr. Patrick (Heytesbury St., Dublin), 1 -38 Wiggins, Sylvester (Fairview, Dublin), 8 -294 MARITIME LAW carriage of goods: C.M.R. claims procedure (B.J. McGovern) 9 -301-7 claims: limitation of liability (Itrs.) 1 -33-4 jurisdiction: Brussels convention, 10 -333 MARRIAGE, see under; Faimly Law; Matimonial Property MATRIMONIAL PROPERTY see also Family Home beneficial interests and occupation: Williams & Glynns Bank v. Boland, 2 -61-5 Family Law Act, 1981, 5 -169-70 resulting/constructive trusts, 2 -59 et seq.; 5 -169-70 MEDIA see also PRESS regulation of, Irish and EEC dimensions (E.G. Hall; P. J. McGovern), 2 -45-50 MOTOR INSURANCE personal injury awards; jury system (edl.) 3 -81 NATIONAL ECONOMIC AND SOCIAL COUNCIL criminal justice system, study of, (edl.) 2 -41 NATIONAL HOUSE BUILDING GUARANTEE SCHEME protection of deposits (edl.) 5 -159; reply, 7 -260-1 NEPHEW/NIECE CAT relief, 3 -91-5 NEWSPAPERS, see Press NON-RESIDENTS Exchange Control Act, 1954, s.5, 2 -53 tax liability of solicitors as agents for, (T.S. McCann) 3 -112-14 OBITUARY Moore, P.C., 4 -149 Noonan, Patrick, 4 -149 OFFICE MANAGEMENT Law Society workshop on technology development, 8 -283 word processors, operation of, (C. Curran) 2 -69-70; (J. Turley) 4 133-4 6

GAZETTE

1985 INDEX

insurance block policy, 8 -278 Land Act 1965, s.45:

PERSONAL INJURY CLAIMS Dail debate, 10 -342

list of Co. Boroughs etc., 9-314 rights of establishment, 4-131 residential property tax returns, 10 -344 Solicitors' Accounts Regulations (No. 2), 1-11 VAT: agricultural land, 2 -53 Valuation Office: revised fees, 1 -12 PRESS court proceedings, reporting of, {edl.) 4 -123 defamatory material, injunctions restraining, {edl.) 7 -225 PROFESSIONS EEC nationals: rights of establishment, 2 -74-5 RADIO, see Broadcasting REAL PROPERTY beneficial interests and occupation, (J. Conlon) 2 -59-65 REGISTRATION OF TITLE see also Land Registry beneficial interests and occupation (J. Conlon) 2 -59-65 s.72 investigations, 2 -63-4 RESIDENTIAL PROPERTY TAX completion of returns, 10 -344 RESTRICTIVE PRACTICES, see Competition Law RESTRICTIVE PRACTICES COMMISSION conveyancing and advertising restrictions, report {edl.) 1 -1 RESULTING/CONSTRUCTIVE TRUSTS, 2 -59 et seq.; 5 -169-70 REVENUE, see Taxation ROAD ACCIDENTS France, in, (A.Cornec) 3 -104-8 see also Personal Injury Claims SALE OF LAND, see: Conveyancing; House Purchase SETTLED PROPERTY capital taxation: Finance Act, 1985 ss. 61-3 (D. Kennedy) 7 -234-9; s.59 (Itr.) 9 -317 SOCIAL SECURITY RIGHTS co-ordination of, in EEC countries, 3 -86-7,88 equality of treatment, EEC directive, 2 -73,74 SOLICITORS see also: Associations and Societies; Law Society Accounts Regulations (No.2) 1-11 advertising and conveyancing restrictions (edl.) 1 -1 entry to profession: NESC report {edl.) 2 -41; Law Society AGM motion, 10 -339 experience of dealing with solicitors amongst the general public (survey, 1985), 10 -349 'monopoly' of, {edl.) 1 -1; 2 -41 office management, see Office Management professional indemnity insurance, 1 -1; 6 -205; 10 -339 tax liability of, as agents for non-resident clients (T.S. McCann), 3-112-14

jury system: response to critics {edl.) 3 -81 Personal Injury Litigation - Practice and Precedents (I.S. Goldrein; M.R. de Hass) reviewed, 6 -209 PHOTOGRAPHS AIJA President, 9 -315 American Bar Association, Dublin sessions, July, 6-193 book launches: CompanyLaw in Ireland (M. Forde), 6 -215 Lawyers Desk Diary, 9 -321 C.C.B.E.: presentation of batik to, 6 -215 Coyle Hamilton Law Students Debating Tournament 1985, 1 -34 deceased members, see under Obituary Law Society: council dinner, March 3-100-1 council meeting, July, 6 -219 council members, 1984/5, 1 -28; 2 -76; 3 -110 4 -142; 5 -184; 6 -216; 7 -256; 8 -290 half-yearly meeting, April, 4-140 meeting with solicitor members of Oireachtas, April, 3 -109 presentation of parchments, July, 6 -205; Nov., 10 -354 presentation to best pupil, King's Hospital school, 10 -353 President 1985/6, 10 -325 seminar: 'Accidents in the construction industry', 3 -103 staff tennis tournament 1985, 7 -249 Sligo Bar Association Meeting, 2-71 Solicitors' Apprentices Debating Society, Inaugural Debate, May 4 -121 Vice-Presidents, 1985/6, 10 -341 PLANNING LAW permitted use: difficulties in determining {edl.) 9-297 POLICE TRAINING, see Garda Training PRACTICE AND PROCEDURE C.M.R. claims (B.J. McGovern) 9 -301-7 EEC law, defences based on, 5 -161-2 EEC law, enforcement of, 5 -162-4 enforcement ofjudgments: Brussels Convention, 10 -329-30 jurisdiction: Brussels Convention, 10 -329,330-7 references to European Court, whether appeal lies {CampusOil case), 10 -347-8 PRACTICE NOTES apartments: insurance block policies, 8 -278 building contract: standard form, 10 -344 Companies Office: registration of charges, 4-131 conveyancing: Family Home Act consents; separation agreements and, 1 -11-12 s.72 declaration: secretarial companies, 5 -167 Criminal Injuries Compensation Tribunal- statistics, 1982,1983, 1 -12 dealing in land; taxation, 8 -278 employment legislation: hourly qualification changes, 1-11 exchange control, 2 -53 Fire Service Act, 1981, 9 -314

GAZETTE

1985 INDEX

2. ALPHABETICAL CASE INDEX: (i) Cases reported in the Recent Irish Cases supplements BREATHNACH v. McCANN [1984] ILRM 679, 3-xiv C. v. C. and AN BORD UCHTALA, Supreme Court, unreported, 27 March 1985, 7 -xxvii CARROLL v. SHERIDAN AND ANOTHER, [1984] ILRM 451, 4 -xx CRONIN v. CORK & COUNTY PROPERTY CO. LTD., High Court, unreported, 18 July 1984,3 -ix CRONIN v. YOUGHAL CARPET (YARNS) LTD., Supreme Court, unreported, 28 March, 1985, 8 -xxix D.P.P. v. CLOSKEY, High Court, unreported, 6 Feb. 1984, 4 -xviii D.P.P. v. McQUAID, High Court, unreported, 26 Oct. 1984, 8 -xxix DALY v. AVONMORE CREAMERIES LTD., Supreme Court, unreported, 12 July 1984,6 -xxii DIRECTOR OF CONSUMER AFFAIRS v. JOE WALSH TOURS LTD. & LOMBARD, Supreme Court, unreported, 20 July 1984,4 -xviii DROGHEDA CORPORATION v. GANTLEY & ORS., High Court, unreported, 25 Sept. 1983,3 -xi DUBLIN CORPORATION v. SULLIVAN, High Court 21 Dec. 1984,10 -xxxiii ELECTRICITY SUPPLY BOARD v. GORMLEY, Supreme Court, unreported, 21 May 1985, 10 -xxxiv FERRIERA VALSABBIA S.P.A. v. EEC COMM., European Court, case 209/84,3 -xiv FOLIO HOMES LTD. v. ABBOTT, High Court, unreported, 2 Feb. 1984, 2 -vi GALLAGHER & ANOR. v. ATTORNEY GENERAL, REVENUE COMMRS. AND MINISTER FOR FINANCE, Supreme Court, unreported, 20 Nov. 1984, 2 -v GLENNON, In re, High Court, unreported, 13 Nov. 1984, 7 -xxv HAMILTON v. ARMSTRONG and McCARTNEY, [1984] ILRM 306, 3 -x HILL & ORS. v. MULCAHY, High Court, 30 April 1984, 10 -xxxiii HUSSEY &ORS. v. IRISH LAND COMMISSION, Supreme Court, unreported, 13 Dec. 1984,7 -xxvi IRISH COMMERCIAL SOCIETY LTD. (In liquidation) & ORS. V. PLUNKETT & ORS. High Court, unreported, 6 June 1984, 2 -viii IRISH SHELL v. JOHN COSTELLO LTD., Supreme Court, unreported, 21 Dec. 1984,8 -xxx JACOB v. REVENUE COMMRS., High Court, unreported, 6 July 1983, 1 -iv JACOB INTERNATIONAL LTD. v. O'CLEIRIGH, Supreme Court, unreported, 22 March 1984, 7 -xxvii 8

SPORTS ACTIVITIES see also under Associations and Societies Law Society staff tennis tournament, 7 -249 Legal Offices Fun Run, 2 -16 Patrick McEntee Cup, 1 -16 SPOUSE, SURVIVING, Finance Act 1985, s.59 (Itr.) 9 -317 STAMP DUTY Law of Stamp Duties, The, (M. O'Connor, P. S. Cahill), reviewed, 5-176 STARDUST TRAGEDY tribunal to adjudicate on claims (edl.), 8 -265 STATUTORY INSTRUMENTS European Communities (Companies) Regulations, 1973, 1 -20 Land Act 1965 (additional Category of Qualified Persons) Regulations, 1983, 3 -85 Solicitors' Accounts Regulations (No. 2), 1984, 1 -11 SUCCESSION Family Law Act 1981, 5 -171 Finance Act, 1985, s.59 (Itr.) 9 -317 SUPREME COURT applelate juridiction: High Court reference to European Court (Campus Oil case), 10 -347-8 TAXATION see also: Capital Acquisitions Tax; Capital Gains Tax capital taxation on settled property: Finance Act, 1985 (D. Kennedy) 7 -243-9 insolvencies: Revenue Commrs. as preferential creditors (edl.) 5 -157 Law of Stamp Duties, The, reviewed, 5 -176 liability of solicitors as agents for non-resident clients (T. S. McCann) 3 -112-14 residential property tax returns (practice note) 10 -344 tax collection (edl.), 5 -157; (Itr.) 7 -260 VAT: agricultural land (practice note) 2 -53 TELEVISION, see Broadcasting TRAINING, see Apprenticeship TRESPASSER mistaken improvements to owner's land (McMahon v. Kerry Co. Council), 5 -179-83

TRUSTS, see Settled Property UNMARRIED COUPLE Family Law Act, 1981, 5 -170 VALUATION OFFICE revised fees, 1-12 WILLS LOST, see Lost Wills

GAZETTE

1985 INDEX

STATE (McCOY) v. DUN LAOGHAIRE CORPORATION, High Court, unreported, 1 June 1984, 3 -ix STATE (MULTIPRINT LABEL SYSTEMS LTD.) v. NEYLON, [1984] ILRM 545, 1 -ii STATE (REDMOND) v. DELAP, High Court, unreported, 30 July 1984, 6 -xxi STEPHEN COURT LTD. v. BROWNE, [1984] ILRM 231, 1 -i ALPHABET I CAL CASE I NDEX: (ii) Cases examinedand/or specially mentioned in Articles A.E. v. REVENUE COMMRS. [1984] ILRM 301, 3 -91-4 AGRA TRADING LTD. v. MINISTER FOR AGRICULTURE (1982-3) JISEL 108, 4 -146,147 ALUMINIUM DISTRIBUTORS LTD. v. ALCAN WINDOWS LTD. (1980) JISEL 82, 5 -162; 6 -198 AMALGAMATED INVESTMENT& PROPERTY CO. LTD. v. TEXAS COMMERCE INTERNATIONAL BANK LTD., [1981] 1 All E.R. 923, 5 -182 ATTORNEY GENERAL v. PAPERLINK LTD. [1984] ILRM 373, 2 -46 AUER CASE, (271/82) [1983] ECR 2727, 2 -74 BRT v. SABAM (case 127/73) [1974] ECR51,6 -198 BANK OF IRELAND FINANCE LTD., v. ROCKFIELD LTD. [1979]I.R.21, 8 -286 BOSCH CASE [1962] C.M.L.R.l, 10 -347 BROCKMEULEN CASE (246/80) [1981] ECR 2311,2-74 BULMER V. BOLLINGER [1974] Ch. 401,10-347 BURKE CLANCY LTD., In re, High Court, unreported, 23 May 1974,1 -19,20 CADBURY LTD. V. KERRY CO-OP, [1982] ILRM 77, 6 -198 CAMERA CARE LTD. v. COMMISSION (case 792/79) [1980] ECR 119, 6 -197-8 CAMPUS OIL V. MINISTER FOR INDUSTRY AND ENERGY, [1983] I.R.82, 5 -162; 10 -347-8 CASSIDY v. MINISTER FOR INDUSTRY AND COMMERCE [1978] I.R.297, 4 -145 CAUNCE v. CAUNCE [1969] 1 W.L.R.286, 2 -63 CENTRAL LONDON PROPERTY TRUST LTD v. HIGH TREES HOUSE LTD., [1947] KB 130, 5 -180 CHANEL case [1971] C.M.L.R.403,10-347 COOKE v. WALSH [1984] I.L.R.M. 208, 6 -209 COUNTY OF GLOUCESTER BANK v. RUDRY MERTHYR STEAM & HOUSE COAL COLLIERY CO., [1895] 1 Ch.629,1 -17

MacGIOLLA MHAITH v. CRONIN (BRIAN) & ASSOC., High Court, unreported, 24 July 1984, 3 -xiii McMEEL & ORS. v. MINISTER FOR HEALTH 6 N.E.H.B., Supreme Court, unreported 19 Dec. 1984, 6 -xxii MADIGAN & ANOR. v. A.G., REVENUE COMMRS. AND MINISTER FOR FINANCE, Supreme Court, unreported, 20 Nov. 1984, 2 -v MEENAGHAN v. DUBLIN CO. COUNCIL, [1984] ILRM 616, 1 -ii MESPIL LTD. & ARAMAIC LTD. v. CAPALDI & ORS., High Court, unreported, 10 Feb. 1984,1 -i MOLONEY V. STANLEY, High Court, unreported, 2 April 1984, 1 -i MORAN v. LEITRIM CO. COUNCIL, High Court, unreported, 25 Oct. 1984, 8 -xxx NORTH WESTERN HEALTH BOARD v. MARTYN, High Court, unreported, 14 Dec. 1984 7 -xxvi NORWICH UNION LIFE INSURANCE CO. V. GESTETNER DUPLICATORS LTD., High Court, unreported, 14 Feb. 1984, 4 -xvii O'C. v. P.C.D. AND A BANK, [1985] ILRM 123, 6 -xxi O'DOMHNAILL v. MERRICK, [1985] ILRM 40, 3 -xi O'LAOGHAIRE v. C.D. LTD., [1984] ILRM 196, 3 -xxiii O'SRIANAIN v. LAKEVIEW LTD., High Court, unreported, 8 Oct. 1984, 3 -xiii PARIS BAR v. KLOPP, European Court, case 107/83, 3 -xiv PEOPLE (D.P.P.) v. McCORMACK & DUNNE, Supreme Court, unreported, 20 July 1984, 2 -vi PESCA VALENTIA LTD. v. MINISTER FOR FISHERIES AND A.G., Supreme Court, unreported, 21 May, 1985, 10 -xxxv R.(E.) v. R.(D.), High Court, unreported, 16 Feb. 1984, 4 -xix READ v. LIMERICK CORPORATION, High Court, unreported, 5 March 1984, 6 -xxiv ROCHE V. PEILOW, Supreme Court, unreported, 17 May 1985, 7 -xxv SHANNON v. IRELAND AND A.G., Supreme Court, unreported, 16 Nov. 1984, 2 -vi SOMERS V. JAMES ALLEN (IRELAND) LTD., Supreme Court, unreported, 22 March 1985, 10 -xxxiv STATE (CIE) v. AN BORD PLEANALA, Supreme Court, unreported, 12 Dec. 1984,8 -xxxi STATE (COMMR. OF VALUATION) v. O'MALLEY, High Court, unreported, 27 Jan. 1984, 4 -xvii STATE (FERRIS) v. EMPLOYMENT APPEALS TRIBUNAL & ROYAL LIVER FRIENDLY SOCIETY, Supreme Court, unreported, 10 Dec. 1984, 2 -viii

1985 INDEX

GAZETTE

COX v. DUBLIN CITY DISTILLERY (No. 2) [1915] 11.R.345, 1 -18-19 CRABB V. ARUN DISTRICT COUNCIL [1976] Ch.179, 5-182 CULLEN v. CULLEN [1962] I.R.268, 1 -23; 5 -179,182 DEBAUVE CASE (52/79) [1980] ECR 833, 2 -46 DE BLOOS v. BOUYER (case 14/76) [1976] ECR 1497, 10 -332 DE CAVEL v. DE CAVEL (case 143/78) [1979] ECR 1055, 10 -330 DOYLE &ORS. v. AN TAOISEACH (case 71/80) [1981] ECR 735 4-145-6 DUCK v. TOWER GALVANISING CO. [1901] 2 K.B.314, 1 -18 EXPRESS DAIRY CASE (130/79) [1980] ECR 1887, 5 -163 FEARON & CO LTD. v. IRISH LAND COMMISSION (case 182/83) E.C.J. Nov. 1984, 3-85 FINLAY v. MURTAGH [1979] I.R.149, 10 -352 GALLEY (MICHAEL) FOOTWEAR LTD. v. IABONI [1982] 2 All E.R.200, 9 -307 GARDEN COTTAGE FOODS LTD. v. MILK MARKETING BOARD, [1984] 1 A.C.130,6 -198 GRANT v. U.K. SWITCHBANK RAILWAY CO., (1888) 40 Ch.D.135,1 -19 GUCKIAN v. BRENNAN (1981) I.R.478, 2 -59 HAMPSHIRE LAND BUILDINC CO., In re, [1896] 2Ch.743, 1 -19-20 HAUER v. LAND RHEINLAND PFALZ (case 44/79) [1979] ECR 3727, 4 -147 HIBERNIA MEATS LTD. v. MINISTER FOR AGRICULTURE (1982-3) JISEL 124, 4 -146 HODGSON v. MARKS [1971] 2 W.L.R.1263, 2 -62, 63, 64 HUNT v. LUCK [1902] 1 Ch.428, 2 -63-64 ICMSA v. IRELAND (case 36/80) [1981] ECR 735, 4 -145-6 INTERMILLS CASE (323/82), European Court, Nov. 1984, 6 -198 KAVANAGH v. KAVANAGH High Court, unreported, 17 Oct. 1980, 2 -62 KENNY v. NAT. INSURANCE OFFICER (case 1/78) [1978] ECR 1489, 3 -86 KLOPP CASE (107/83) [1985] 1 C.M.L.R. 99, 2 -75 LOMBARD & ULSTER BANKING (IRELAND) LTD. v. AMUREC LTD. [1976] I.L.T.R.l, 4 -131 McC. v. McC. Supreme Court, unreported, 29 March 1984,5-170

McGILL v. SNODGRASS [1979] I.R.283, 5 -170 McGOVERN, IN RE [1971] I.R.149, 10-348 MacMAHON v. DEPT. OF EDUCATION AND SCIENCE [1982] 3 C.M.L.R.91, 3 -87-8 McMAHON v. KERRY CO. COUNCIL [1981] ILRM 419,1 -23; 5 -179-82 MARTIN v. MARTIN [1977] 3 W.L.R.101, 4 -126 MEETH v. GLACETAL (case 23/78) [1978] ECR 2133, 10 -335 MINISTER FOR FINANCE v. SCHONENBERG & ORS. (case 88/77) [1978] ECR 473, 5 -161 Supreme Court, unreported, 22 April 1983, 2 -48 NORTH KERRY MILK PRODUCTS LTD. v. MINISTER FOR AGRICULTURE & FISHERIES (case (80/76) [1977] ECR 435,4 -146 NORTHERN BANK v. HENRY [1981] I.R.I, 2 -62, 63 NOVA MEDIA SERVICES v. MINISTER FOR POSTS & TELEGRAPHS [1984] ILRM 161,2 -46 O'LAIGHLEIS, In re, [1970] I.R.93, 2 -48 PANORAMA DEVELOPMENTS (GUILFORD) LTD. v. FIDELIS FURNISHING FABRICS LTD. [1971] 2 Q.B.711, 8 -286 PEOPLE (A.G.) v. FENNELL (NO. 2) [1940] I.R.453, 10 -348 PEOPLE (D.P.P.) v. O'SHEA [1982] I.R.384, 5 -177,185 PETTITT v. PETTITT [1969] 2W.L.R. 966, 5 -169 PIGS & BACON COMM. v. McCARRON [1984] I.R.451, 4 -145; 5 -162 PIGS MARKETING BOARD OF N.I. v. REDMOND (case 83/78) [1978] ECR 2347,5 -161 PLIMMER v. WELLINGTON CORP. (1862) 4 De.G.F. and J.517, 5 -179 POWER v. CONROY Supreme Court, unreported, 22 Feb. 1980. 5 -170 PREMIER MEAT PACKERS v. MINISTER FOR AGRICULTURE [1982-3] JISEL 124, 4 -146 R. v. REGISTRAR OF COMPANIES ex parte Esal Ltd., ( The Times, 26 Nov. 1984), 4-131 R.H.&D. INTERNATIONAL LTD. v. I.A.S. ANIMAL AIR SERVICES LTD. [1984] 2 All E.R.203, 9 -306 RAMSDEN v. DYSON (1866) L.R. 1 H.L.129, 5 -179-82 RATTI CASE (case 148/78) [1979] ECR 1629, 1 -6; 2 -74 NATIONAL PROVINCIAL BANK v. AINSWORTH [1965] A.C.1175, 2 -59 NORRIS v. A.G.

REWE-ZENTRALE CASE [1973] ECR 1175,10-347

McCABE v. LISNEY & SONS [1981] ILRM 289, 10 -347, 348

RHEINMUHLEN-DUSSELDORF (No. 2) [1972] C.M.L.R.401, 10 -347 10

GAZETTE

1985 INDEX

WAVIN PIPES v. HEPWORTH IRON CO. 5-173 WESTERN HEALTH BOARD v. QUIGLEY [1982] ILRM 390, 10 -347 WILLIAMS &GLYNNS BANK v. BOLAND [1981] A.C.487, 2 -61-4 WORLD WIDE CARRIERS LTD. v. ARDTRAN INTERNATIONAL [1983] 1 All E.R. 692,9 -302

RIENKS CASE (5/83) [1983] ECR 4233, 2 -74; 3 -85 ROCHE v. PEILOW Supreme Court, unreported, 17 May 1985, 5 -159; 8 -278 ROLLS v. MILLER [1884] 27 Ch.D.88, 3 -92 ROSLER v. ROTTWINKLE (case 241/83), E.C.J. Jan. 1985, 10 -334 ROWE v. LAWE [1978] I.R.55, 5 -173 ROYAL BRITISH BANK v. TURQUAND (1855) 5.E. and B.248, 1 -17-20 RUTILI CASE (39/75) [1975] ECR 1219, 2 -48 SAACHICASE (155/73) [1974] ECR 409, 2 -46-7 SAFFRON WALDEN SECOND BENEFIT BUILDING SOCIETY v. RAYNAR, [1880] 14 Ch.D.406, 3-112 SANDERS v. VAN DER PUTTE (case 73/77) [1977] ECR 2383, 10 -334 SANICENTRAL v. COLLINS (case 25/79) [1979] ECR 3423, 10 -330, 335 SECOND DEFRENNE CASE (43/75) [1976] ECR 454, 2 -73 SIMMENTHAL (NO. 2) CASE (106/77) [1978] ECR 629, 1 -6; 5 -162 STATE (BROWNE) v. FERAN [1967] I.R.147, 10 -348 STATE (LYNCH) v. COONEY [1982] I.R.337, 2 -45 SUGAR DISTRIBUTORS LTD. & KELEHAN v. COMHLUCHT SIUICRE EIREANN TEO, High Court, unreported, May 1975, 6 -198 SUNSHINE RADIO PRODUCTIONS v. A.G. (Irish Times, 17 May 1985), 5 -177 ULSTER BANK LTD. v. SHANKS [1982] 6 B.J.N.I.7, 2 -62 ULSTER INVESTMENT BANK LTD. v. EURO ESTATES LTD. [1982] ILRM 57, 1 -17-18 UNITED BRANDS In re, [1976] 1 C.M.L.R. D.28, 6 -197 VAN DUYN v. HOME OFFICE (case 41/74) [1974] ECR 1337, 2 -74 VAN GEND EN LOOS CASE (26/62) [1963] ECR 1, 1 -5; 10 -347 VELLA v. MORELLI [1968] I.R.11, 10 -348 WALL v. HEGARTY & CALLINAN [1980] ILRM 134, 10 -352 WALSH v. NAT. INSURANCE OFFICER (case 143/79) [1980] ECR 1639, 3 -86-7 [1984] ILRM 170, 2 -46 TORMEY v. IRELAND VARIOLA CASE (case 34/73) [1973] ECR 981, 1 -5

li

INCORPORATED LAW SOCIETY OF IRELAND GAZETTE Vol. No. 79 No. 1 January/February 1985 Not With a Bang . . .

T HE long awaited report of the Restrictive Practices Commission into the effects on competition of the restrictions in conveyancing and the restrictions on advertising by solicitors has emerged not with a bang, but with a whimper. To a great extent this was inevitable because of the substantial changes which have taken place since 1977 when the Minister first requested the Examiner to conduct an enquiry. The property booms of the early and late 70's with their emphasis on private house building and commercial development ended shortly after the Commission held its hearings in 1980. The numbers of practising solicitors had by 1984 already reached the number projected by the Law Society for 1986. One trend has remained constant; the complexity of the conveyancing process has increased and there is no sign of reform or updating of Conveyancing law being given any priority by the Government. Freedom for lawyers to advertise has recently been introduced into England and Wales, following on the United States, and it is about to be introduced in Scotland. However little taste many, perhaps the substantial majority of, solicitors may have for advertising it is beginning to be seen as inevitable but also as largely irrelevant. In the United States where there has now been some seven years experience of lawyer advertising, it is clear that only a small minority of Attorneys are prepared to indulge in direct advertising in the media. The view of the theoretical economist that advertising will improve competition does not commend itself to most practitioners whose pragmatic judgment is that the cost of media advertising is not justified by the prospective return in fee income. An American Bar Association poll revealed that only 13% of lawyers had tried advertising. On the assumption that the Commission's recommendation is accepted it seems likely that the only practical effect on the general situation will be that practitioners will be more free to advertise their existence and possibly the areas in which they are prepared to take work. On the Conveyancing side, as might be expected from a Commission whose majority was composed of two distinguished academics, the evidence given to the Tribunal has been marshalled and analysed impressively and with one major exception it would be difficult to

disagree with the conclusions which have been reached. The exception is the sort of recommendation which has tended to make the word 'academic' a pejorative one. The recommendation that sellers of property should be entitled to engage non-solicitor conveyancers to do their conveyancing for reward is impossible to justify. It is difficult to avoid the conclusion that the majority of the Commission were thrashing around looking for some recommendation to make which would reduce the so- called 'monopoly', having rightly recognised the pointlessness of setting up a parallel profession of 'qualified conveyancers'. The recommendation that purchasers need protection and sellers do not stands up poorly to critical examination. The Commission itself recognises that 'a prudent and well advised vendor . . . would choose a solicitor rather than a non-professional . . .' and also recognises that the professional indemnity insurance which it believes all solicitors engaged in conveyancing should carry would not be available to lay conveyancers. On the practical side the Commission doesn't appreciate that most sellers are also purchasers and confusion would clearly arise if a seller were engaging two persons — one unqualified conveyancer to act in the sale and another qualified solicitor to act in the purchase. There is almost as much logic in the Commissioners' recommendation as there would be to require motorists to insure their cars for journeys into the City but not to insure them for journeys out of the City. The most disappointing aspect of the report is that while the Commission rightly recognises the complexity of conveyancing, it has made no recommendation that Conveyancing law should be reformed and updated. The Law Society has been seeking reform of Conveyancing law for several years but without any satisfactory response from the Department of Justice. It is the complexity of the legal aspects of conveyancing practice which largely contributes to delay and expense, particularly in domestic conveyancing — over 100 years have passed since the last major reform of Conveyancing law. It is clearly time for an urgent review preferably to be carried out by a specialised Committee such as that sitting in Northern Ireland. • 1

GAZETTE

JANUARY / FEBRUARY 1985 "Permanent investment is really sound judgement"

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2

INCORPORATED LAW SOCIETY OF IRELAND GAZETTE Vol. 79 No. 1

January/February 1985

In this issue . . . > How EEC Law Affects Practitioners ^ Part I

5

Practice Notes

1

„ Apprenticeship — In-Office Training

13

Why is our manager's door always open?

Crossword

15

- J 9 8 5 Legal Offices Fun Run

16

^/Patrick McEntee Cup

16

J Indoor Management Rule in Ireland

17

An Apprentice Proposes

21

I Hook Reviews

23

^JCnow Your Council 84/85

28

^C r i m i n al Justice Act, 1984

30

oCorrespondence

32

y/A.I.J.A. — Bordeaux Congress

35

ANSWER: We could try to be funny and say it was to let the bank drafts in. But the truth is it's just the way we operate. Personal, attentive service at all times. Total access to the manager. Longer hours than most banks. And higher interest on deposits. They may sound like small things. But when you add up the little things we do and most banks don't, you'll understand why our customers prefer service to size.

^Professional Information

37

Executive Editor: Mary Buckley Editorial Board:

William Earley, Chairman John F. Buckley Gary Byrne Geraldine Clarke Charles R. M. Meredith Michael V. O'Mahony Maxwell Sweeney

Liam O hOisin, Telephone 305236

Advertising:

Printing: Turner's Printing Co. Ltd., Longford The views expressed in this publication, save where other-wise indicated, are the views of the contributors and not necessarily the views of the Council of the Society. The appearance of an advertisement in this publication does not necessarily indicate approval by the Society for the product or service advertised. ABC Membership has been approved pending first audit

UTTLE THINGS MEANAtOT

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3

GAZETTE

.JANUARY/EEBRUARY 1985 BE YOUR OWNJUDGE

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JANUARY/FEBRUARY 1985

GAZETTE

How EEC Law Affects Practitioners* Part I

by Senator Mary Robinson, S.C.

I RELAND has now been a Member State of the Commun i ty f or mo re than twelve years. Since the date of Accession, 1st January 1973, the basic treaties and acts of the Institutions have formed part of Irish law, and yet the position still seems to be much as perceived by the first Oireachtas Joint Committee on the Secondary Legislation of the European Communities, which noted in its 55th Report in March 1977: "The Joint Committee doubts if the general public or even parliamentarians appreciate the extent to which Community law which governs activities in the fields of trade, industry, transport, agriculture and services, is continuously being incorporated into our legal system either directly or through the agency of statutory instruments made by ministers". 1 I would go so far as to doubt whether all legal practitioners have a perfect appreciation of the impact of European Community Law in Ireland! The.purpose of this paper is to focus on the constitutional and legal implications which flow from the penetration of European Community law: by reference to the rights which can arise, the remedies and defences available and the different procedures by which these can be pursued. In other words, it is not my intention to give an academic lecture on European Community law, but rather to illustrate its relevance and impact on our legal system and to assess the extent to which it is part of Irish law enforceable in our courts. - the Treaties establishing the three Communities (ECSC, EEC and Euratom) and the secondary legislation made under each by the Council and Commission. - related Treaties concluded between the Member States, including the Accession Treaties; - Broader international Treaties binding on all Member States, where the responsibilities for concluding them have been assumed by the Community; - decisions of the Court of Justice of the European Communities. Ireland is bound under international law to carry out the obligations imposed by membership, and the extent of this obligation is clearly set out in Article 5 of the EEC Treaty: Nature of European Community Law The formal sources of Community law include:

"Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the Institutions of the Community. They shall facilitate the achievement of the Community's tasks. They shall abstain from any measure which could jeopardise the attainment of the objectives of this Treaty". However, the real significance for practitioners of the penetration of European Community law in Ireland stems from the fact that much of it gives rise to rights vested in individuals — natural or legal — which the Irish courts are bound to safeguard and enforce. In an early decision, the Van Gend en Loos Case (Case 26/62 [1963] ECR 1, the Court of Justice identified the nature of Community law as follows: "the conclusion to be drawn from this is that the Community constitutes a new legal order of international law for the benefit of which the States have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals. Independently of the legislation of Member States, Community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage. These rights arise not only where they are expressly granted by the Treaty, but also by reason of obligations which the Treaty imposes in a clearly defined way upon individuals as well as upon the Member States and the Institutions of the Community". 2 The nature and extent of the impact of Community law on the national legal systems is assessed by reference to two distinct concepts: direct applicability and direct effects. Strictly speaking, "direct applicability" is the particular attribute of a regulation of either the Council or Commission (as defined in Article 189 EEC Treaty), which ensures its access in its entirety to the national legal order without any need for specific incorporation. Indeed, the Court of Justice has stated that a Member State should not reproduce the text of a regulation in national legislation because to do so would diminish its impact and deny its capacity for direct penetration into that law — Variola Case (Case 34/73) [1973] ECR 981. The term "direct effects" refers to a provision, which may be an Article of the EEC Treaty or even part of a Directive, which is sufficiently clear, precise and 5

GAZETTE

JANUARY/FEBRUARY 1985

European Community law do not just arise in the Court in Luxembourg, but are being raised with increasing frequency in the courts of the Member States, including the criminal courts. What happens, then, when there is a conflict between a provision of Community law and Irish legislation covering the same subject? Supremacy of Community Law The supremacy of Community law over the domestic law of Member States was also established at an early stage in the jurisprudence of the Court of Justice. In Costa -v- ENEL (Case 6/64) [1964] ECR 585, the Court referred to the new legal order of the Community and concluded as follows: "The integration into the laws of each Member State of provisions which derive from the Community, and more generally the terms and the spirit of the Treaty, make it impossible for the States, as a corollary, to accord precedence to a unilateral and subsequent measure over a legal system accepted by them on a basis of reciprocity... The executive force of Community law cannot vary from one State to another in deference to subsequent domestic laws, without jeopardising the attainment of the objectives of the Treaty set out in Article 5(2) and giving rise to the discrimination prohibited by Article 7". 4 The full implications of this supremacy principle were brought home when an Italian court referred certain questions which required the Court of Justice to rule on the duty which befell a national court faced with a conflict between a provision of Community law and a subsequent provision of domestic law on which one of the parties sought to rely in the domestic court — Simmenthal(No. 2) (Case 106/77) [1978] ECR 629. The operative part of the ruling is as follows: " A national court which is called upon, within the limits of its jurisdiction, to apply provisions of Community law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provisions of national legislation, even if adopted subsequently, and it is not necessary for the court to request or await a prior setting aside of such provision by legislative or other constitutional means". 5 The position is, therefore, according to Community law — as authoritatively interpreted by the Court of Justice — that a new legal order has been created with very substantial penetration into the legal systems and laws of the Member States. As a consequence, rights can be asserted and defences based on provisions of Community law in either civil or criminal proceedings before the Irish courts. Any Irish court before which such a matter was raised — whether it be the District, Circuit, High or Supreme Court or any criminal court — would be obliged either to apply the Community law or, if in doubt, to refer such doubt by way of question to the Court of Justice in Luxembourg for interpretation. Even if the Irish court found itself in a position where there was a conflict between Community law and a subsequently enacted Act of the Oireachtas or statutory instrument, the

unconditional that it will be construed by the Court of Justice as conferring a legal right on a natural or legal person. Therefore, establishing direct effects is a matter of interpretation by the Court of Justice. A further issue may then arise as to whether the individual concerned can assert that right as against anyone, including another natural or legal person ("horizontal direct effects"), or only against a public body which had an obligation to respect that right ("vertical direct effects"). The Court of Justice has distinguished between construing whether a particular Treaty article gives rise to direct effects (when it has frequently used interchangeably the terms "directly applicable" and "direct effects", to the confusion of law students and the irritation of some academics!), and construing whether a provision of a Directive which required to be implemented may give rise to direct effects. If the Treaty article satisfies the tests for direct effects, it will be construed as giving rise to horizontal as well as vertical direct effects. In the case of the Directive, on the other hand the court has respected the distinction made in the definition of regulations and of directives in Article 189, and has concluded (Becker Case (Case 8/81) (1982) [1982] ECR 53): "It follows from well-established case-law of the Court and, most recently, from the judgment of 5 April 1979 in Case 148/78 Pubblico Ministero -v- /tam [1979] ECR 1629, that whilst under Article 189 regulations are directly app l i c ab le and, consequently, by their nature capable of producing direct effects, that does not mean that other categories of measures covered by that article can never produce similar effects. It would be incompatible with the binding effect which Article 189 ascribes to directives to exclude in principle the possibility of the obligations imposed by them being relied on by persons concerned. Particularly in cases in which the Community authorities have, by means of a directive, placed Member States under a duty to adopt a certain course of action, the effectiveness of such a measure would be diminished if persons were prevented from relying upon it in proceedings before a court and national courts were prevented from taking it into consideration as an element of Community law. Consequently, a Member State which has not adopted the implementing measures required by the directive within the prescribed period may not plead, as against individuals, its own failure to perform the obligations which the directive entails. This, wherever the provisions of a directive appear, as far as their subject matter is concerned, to be unconditional and sufficiently precise, those provisions may, in the absence of implementing measures adopted within the prescribed period, be relied upon as against any national provision which is incompatible with the directive or in so far as the provisions define rights which individuals are able to assert against the State." 1 The consequence of a Community provision being either directly applicable and/or giving rise to direct effects is that it must be applied and given such effect by the courts of each Member State. Therefore, issues of

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