The Gazette 1986

INCORPORATED LAW SOCIETY OF IRELAND

INDEX TO VOLUME 80 - 1986

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 sup- plements. (ii) Cases examined and/or specially ment ioned in Articles.

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

3. — April 4. — May 5. — June

6. — Ju l y /August 7. — September 8. — October 9. — November 10. — December

1986 INDEX

GAZETTE

SUBJECT INDEX References are to issue number (in bold) followed by page number.

First Young Solicitors' International Conference (K. Murphy), 2 -50 The Heart of the Matter: Client relations, 7 -205 A Limitations Conundrum (J. C. Brady), 1 21 5 Mediation in Family Disputes (M. Lloyd),' 4 -109-10 Mediation — Professional and practice issues (M. Wall-Murphy), 4 - 1 1 1 - 13 Performance Guarantees (G. J. McGann), 6 -169-76; 7 -197-202 Periodic Tenancies in Writing and the Running of Time (J. C. Brady), 9 -253-7 Profit Sharing (F. Meenan), 6 -183-7 Recent Developments in Tax Avoidance (P. McElhinney; D. Kennedy), 7 -211-16; 8 -225-30 Reciprocity of Qualifications and Employment Opportunities Abroad (R. Woulfe), 3 -81-2 The Role of the Modern Document Examiner (T. W. Allen), 2 -61 The Role of a Solicitor in relation to the Motor Insurers' Bureau of Ireland Agreement (N. S. Mulvin), 2 -59 The State Family Mediation Service (J. F. O'Higgins), 4 -114-15 Suppose he never commits the crime? (New power of detention for questioning) (B. Mehigan), 1 -13-16 Technology without tears: a suggested approach (I. Long), 5 -155-8 ASSOCIATIONS AND SOCIETIES see also under Photographs AIJA, 7 -207 Agricultural Consultants Assoc., 2 -47 Amnesty International Lawyers' Group, 9 -257 C.C.B.E. - 25th anniversary, 2 -45 Co. Galway Solicitors' Bar Association, 2 -51; 5 -159 Dublin Solicitors' Bar Association, 3 -83 Incorporated Law Society, see Law Society International Bar Association, 2 -44; 9 -263 Ladies Golfing Society, 4 -120 Mayo Bar Association, 4 -124 Medico-Legal Society, 1 -29; 5 -150; 7 -209; 10 -304 Society of Young Solicitors, 2 -50-1; 3 -79; 9 -272 Tipperary Bar Association, 6 -179 BANKING LAW Bank Security Documents (J. R. Lingard), reviewed, 4 - 1 3 1 performance guarantees (G. J. McGann), 6 -169-76; 7 -197-202 BOOK LAUNCHES (Pictorial) Carroll's Tax Planning in Ireland, 10 -294 Family Law in the Republic of Ireland (A. Shatter), 10 -294 The Legal Profession in Ireland, 1789— 1922 (D. Hogan), 6 -165 The Succession Act, 1965: A Commentary (2nd ed., R. A. Pearce), 1 -11 Trees and the Law (H. M. Fitzpatrick), 1 - 1 1 International Law Association, 2 -61 Irish Society for Labour Law, 2 -51

Abbreviations: edl. (editorial/comment); Itr. (letter); pr. (practice note) ACTS OF THE OIREACHTAS Civil Liability Act, 1961, Part IV, 4 -126-9 Courts (No. 2) Act, 1986 (pr.) f 8 -235 Courts (No. 3) Act, 1986 (edl.), 10 -279,291 Criminal Justice Act, 1984, s.4, 1 - 1 3 Domicile & Recognition of Foreign Divorces Act, 1986, (pr.), 8 -233, 235; (B. Bohan) 9 -269-72 Exchange Control Act, 1954, 2 -52 Health (Amendment) Act, 1986, (pr.), 8 -235 Malicious Injuries (Amendment) Act, 1986, (pr.), 8 -233 Statute of Limitations, 1957, 1 -21-5; 3 -89-92; 5 -141-3; 9 -253-7 ADVERSE POSSESSION, 3 -91-2 animus possidendi, and, (J. C. Brady), 5 -141-3 periodic tenancies in writing and the running of time (J. C. Brady), 9 -253-7 personal representative - claim for recovery of land. Drohan v Drohan, (J. C. Brady), 1 -21-5 ADVERTISING AGM debate (edl.), 9 -251; report, 10 -295 AGENCY duties of an agent to a principal (V. J. Power; K. Hughes), 1 0 -299-302 AGRICULTURAL CONSULTANTS (U. Conway), 2 -47 ARTICLES Adverse Possession and the Animus Possidendi (J. C. Brady), 5 -141-3 Agricultural Consultants serving the Legal Profession (U. Conway), 2 -47 The Brussels Convention on Jurisdiction and the Enforcement of Judgments — Part II (G. Moloney; G. Kremlis), 1 -5-8 Building Defects and Latent Damage (J. V. O'Connor), 3 -89-95 The Conclusiveness of Certificates of Registration of Company Charges (P. O'Riordan; R. A. Pearce), 10 -281-9 Contracts that contravene Exchange Control (M. Forde), 2 -52-7 Court Etiquette (P. Daly), 9 -261 Domicile and Foreign Divorces Act, 1986 (B. Bohan), 9 269-72 The Duties of an Agent to a Principal — Part I (V. J. Power; K. Hughes), 10 -299-302 The EEC Directive on Products Liability (W. Binchy) 2 -37-42; 3 -73-8 Employers' Liability Insurance, the Insurance industry and the Legal System (J. Rowan), 8 -239-43 The Fable of Sam, the Solicitous Solicitor (F. O'Mahony), 9 -265-6 Fatal Injuries and Title to Sue: The need for reform (J. P. White), 4 -126-9

GAZETTE

1986 INDEX

BRETTON WOODS AGREEMENT see under Exchange Control BROADCASTING illegal radio stations (edl.), 1 -1 BUILDING CONTRACTS

CORRESPONDENCE Building Societies Bill, 10 -303 Companies Office - computerisation programmes, 5 -160 document examiner, role of, 5 -160 German language courses, 6 -188

Building Societies' requirements (pr.), 3 -100 residential properties - deposit protection, 3 -83 BUILDING DEFECTS, see Defective Premises BUILDING SOCIETIES Building Societies (Amendment) Bill, 1986 (edl.), 9 -249; (ItrJ, 10 -303 Govt, discussion document, (edl.), 5 -137 requirements for building contracts, (pr.), 3 - 1 0 0 standard form of buildinq aqreement, (pr.), 9 -258 COMPANY LAW registration of charges: conclusiveness of certificate (P. O'Riordan; R. A. Pearce), 10 -281-9 COMPUTERISATION, see under Office Management CONFLICT OF LAWS Brussels Convention on Jurisdiction and Enforcement of Judgments — Part II (G. Moloney; G. Kremlis), 1 -5-8 CONTRACTS see also Building Contracts exchange control, contravening, (M. Forde), 2 -52-7 CONTRIBUTORS

house exchange, 2 -65 Land Registry, 7 - 2 1 7 Netherlands - Ban the Cruise Missiles Foundation, 8 -244 New York State - bar admission requirement, 6 -187 'Plain English', 2 -65 rack rent leases, 4 -133 sports activities, see under Sports Activities Status of Children Bill, 10 -303 COURT ETIQUETTE (P. Daly), 9 -261 COURT PRACTICE, see Practice and Procedure CRIMINAL INJURIES COMPENSATION TRIBUNAl changes from 1 April, 1986, (pr.), 8 -236 CRIMINAL INJURY TO PROPERTY Malicious Injuries (Amendment) Act, 1986, (pr.), 8 -233 CRIMINAL JUSTICE computerised summonses - Courts (No. 3) Act, 1986, (edl.), 10 -279, 291 detention for questioning - powers of police under Criminal Justice Act, 1984 (B. Mehigan), 1 -13-16 DÁIL DEBATES Ballycullane (Wexford) Courthouse, 7 -207 conveyancing and advertising, 2 -43 ground rent purchase applications, 4 -125 Land Registry backlog, 5 - 1 4 9 NHB Guarantee Scheme, 3 -99 DEFECTIVE PREMISES (J. V. O'Connor), 3 -89-95 accrual of cause of action, 3 -89-94 Defective Premises Bill, 1982, 3 -89, 92 fitness for purpose, 3 -89, 94-5 protection insurance, 3 -90-1 DEFECTIVE PRODUCTS EEC Directive (W. Binchy), 2 -37-43; 3 -73-8 DISTRICT COURT computerised summonses, (edl.), 10 -279, 291 DIVORCE, see under Family Law DOCUMENT EXAMINER, role of, (T. W. Allen), 2 -61; (Itr.), 5 -160 DOMICILE, see under Family Law EEC LAW, see European Community Law EDITORIAL COMMENT advertising, 9 -251

Allen, Timothy T. W., 2 -61 Binchy, William, 2 -37; 3 -73 Bohan, Brian, 9 -269 Brady, James C., 1 -21; 5 -141; 9 -253 Conway, Ultan, 2 -47 Daly, Paddy, 9 -261 Forde, Michael, 2 -52 Gannon, Mr. Justice Sean, 1 - 1 7 Hughes, Kieran, 10 -299 Kennedy, David, 7 -211; 8 -225 McElhinney, Paul, 7 -211; 8 -225 McGann, Gabriel, J., 6 -169; 7 -197 Meenan, Frances, 6 -183 Mehigan, Bertie, 1 - 1 3 Moloney, Gerald, 1 -5 Mulvin, N. S., 2 -59 Murphy, Ken, 2 -50 O'Connor, John V., 3 -89 O'Higgins, James F., 4 -114 O'Mahony, Frank, 9 -265 O'Riordan, Philip, 10 -281 Pearce, Robert A., 10 -281 Power, Vincent J. G., 10 -299 Rowan, John, 8 -239 Wall-Murphy, Maura, 4 - 1 1 1 White, John P. M., 4 -126 Woulfe, R., 3 -81 CONVENTION ON JURISDICTION AND THE ENFORCEMENT OF JUDGMENTS, 1968 (G. Moloney; G. Kremlis), 1 -5-8 CONVEYANCING see also House Purchase Law Society practice directions see under Practice Notes Kremlis, George, 1 -5 Lloyd, Mary, 4 -109 Long, Ian 5 -1 55

appointment of judges, 3 -69, 71 building societies, 5 -137; 9 -249 computerised summonses, 10 -279, 291 family law courts, 7 -193 family mediation service, 4 - 1 0 7 Insurance Bill, 8 -221 Law Reform Commission, 1 -3 pirate radio stations, 1 -1 under-payment of law clerks, 6 -167 Willie O'Reilly, 2 -35

4

GAZETTE

1986 INDEX

INTERNATIONAL ASSOCIATIONS see under Associations and Societies

EDUCATION, see Legal Education EMPLOYEE SHAREHOLDING SCHEMES (F. Meenan), 6 -183-7 EMPLOYERS' LIABILITY INSURANCE (J. Rowan), 8 -239-43 ENFORCEMENT OF JUDGMENTS, see under Judgments EUROPEAN COMMUNITY LAW exchange control, 2 -57 product liability (W. Binchy), 2 -37-43; 3 -73-8 EUROPEAN CONVENTION, see Convention EVIDENCE document examiner, role of, (T. W. Allen), 2 - 6 1 ; (Itr.), 5 - 1 6 0 EXCHANGE CONTROL Bretton Woods Agreement, 2 -52, 53-4, 55, 56 contracts contravening (M. Forde), 2 -52-7 EEC law, 2 -57 FAMILY LAW courts for family law cases, (edl.), 7 -193 Domicile and Recognition of Foreign Divorces Act, 1986, (pr.), 8 -233, 235; (B. Bohan), 9 -269-72 mediation in family disputes (M. Lloyd), 4 -109-10 mediation - professional and practice issues, (M. Wall-Murphy), 4 -111-13 State family mediation service, (edl.), 4 -107, 110 (J. F. O'Higgins), 4 -114-15 Status of Children Bill, (Itr.), 10 -303 FATAL INJURIES title to sue, and (J. P. White), 4 -126-9 FOREIGN DIVORCE recognition of, see under Family Law FOREIGN EXCHANGE, see Exchange Control FOREIGN JUDGMENTS recognition and enforcement of, 1 -5-8 GARDA SIOCHÁNA detention tor questioning - powers under Criminal Justice Act, 1984 (B. Mehigan), 1 -13-16 HEALTH SERVICE road accident victims: Health (Amendment) Act, 1986, (pr.), 8 -235-6 HIGH COURT non-injury actions listing procedure (Gannon, J.), 1 -17-18 HOUSE, DEFECTS IN, see Defective Premises HOUSE PURCHASE bonding of deposits, 3 -83 practice directions, see under Practice Notes INJUNCTIONS performance guarantees, 6 -175-6; 7 -202 INSURANCE defective premises, 3 -90-1 employers' liability, (J. Rowan), 8 -239-43 Insurance Bill, fed/.), 8 -221 Motor Insufers' Bureau Agreement, (N. S. Mulvin), 2 -59 5

JUDGES, APPOINTMENT OF, (edl.), 3 -69, 71 JUDGMENTS recognition and enforcement - Brussels Convention (G. Moloney; G. Kremlis), 1 -5-8 JURISDICTION Brussels Convention, 1 -5 LAND adverse possession, see Adverse Possession LAND REGISTRY backlog, 5 -149 expediting registration, 6 -178 lost land cert, notices, 1 -30; 2 -66; 3 -102; 4 -134; 5 -161; 6 -189; 7 -218; 8 -246; 9 -274; 10 -305 LANDLORD AND TENANT LAW caretakers agreement, use of, (pr.), 3 -100-1 periodic tenancies in writing and the running of time, (J. C. Brady), 9 -253-7 LATENT DEFECTS IN BUILDINGS, see Defective Premises LAW CLERKS payment below minimum rates, (edl.), 6 -167 LAW REFORM COMMISSION —A New Term (edl.), 1 -3 defective premises, report on, 3 -89 LAW REPORTING ILRM 1980, reviewed, 4 - 1 3 1 -2 LAW SOCIETY AGM, Nov. 1986, 10 -294 book launches, see Book Launches Conveyancing Committee, see under Practice Notes Council Dinner, March 1986, (pictorial), 3 -86-7 Council elections 1986/7, 10 -297 education video — 'It's the Law', 5 -146 Final Examination - First Part, 1985, 3 -99 half-yearly meeting, May 1986, 4 - 1 1 9 Litigation Committee, see under Practice Notes presentation of parchments, March, 4 -122-3; December, 10 -298 President 1986/7, 10 -277 Taxation Committee: Budget submissions, 5 -153 Vice-Presidents 1986/7, 10 -297 LEGAL EDUCATION Final Examination - first part, 1985, report, 3 -99 Irish apprentices at Jessup Moot, 3 -76 LICENSING ACTS Courts (No. 2) Act, 1986, (pr.), 8 -235 LIMITATION OF ACTIONS adverse possession, see Adverse Possession defective premises, 3 -89-92 defective products: EEC Directive, 3 -74-5, 77 periodic tenancies in writing (J. C. Brady), 9 -253-7 LOCAL LAW SOCIETIES, see under Associations and Societies

GAZETTE

1986 INDEX

LOST WILLS Anderson, Richard (Finglas, Dublin)7 -218 Ashe, Thomas (Glenoughty, Donegal), 5 -162 Banks, Annie (Donnybrook, Dublin), 1 -26 Bennett, Agnes (Sandymount, Dublin) 10 -305 Bolger, William (Connemara, Galway), 10 -305 Byrne, Andrew (Rathmines, Dublin), 4 -130 Byrne, Kevin George (Sussex; Maynooth, Kildare), 4 - 1 3 0 Carroll, Pauline (Enniskeane, Cork), 9 -274 Cassels, Annie (Dun Laoghaire), 4 -130 Clarke, Peter (Palmerstown, Dublin), 1 -26 Coughlan, John (Schull, Cork), 9 -274 Crowe, John (Knocklong, Limerick), 1 -30 Devitt, Patrick (Cashel, Tipperary), 8 -246 Ennis, Oliver (Clondalkin, Dublin) 5 -162 Gill, Martin (Phibsboro Rd., Dublin) 2 -66 Grant, James William (Inch Island, Donegal), 9 -274 Griffin, Eugene (Ranelagh, Dublin), 5 -161 Halley, Thomas Anthony (Cabra Rd., Dublin), 2 - 6 6 Hargaden, James A. (Blackrock, Co. Dublin) 3 -102 Hickey, Edward (Nth. Circular Rd., Dublin) 6 -190 Joy, John (Killorglin, Kerry), 8 -246 Keays, Robert (Oxford), 9 -274 Kevaney, Martin (East Wall, Dublin), 8 -246 Kilbride, Thomas (Granard, Longford), 10 -305 Lawes, Michael Thomas (Drimnagh, Dublin), 7 -208 Leechman, Emma Laetitia (Sandyford, Dublin) 1 -26 Long, Joe (Killaloe, Clare), 1 -26 Lynch, Eugene (Kinsale Rd., Cork), 3 -102 McCarthy, Agnes (Ballymun Rd., Dublin), 8 -246 McGovern, Ann Christine (Salthill, Galway) 4 -130 McKeon, Bridget (Dun Laoghaire), 2 -66 McManus, Denis (Frenchpark, Roscommon), 10 -305 McNeill, John Joseph (Collooney, Sligo), 7 -218, 208 Maguire, Brigid (Cabra, Dublin), 9 -274 Malone, Rita (Lisnagry, Limerick), 6 -190 Marino, Annie (Harold's Cross, Dublin), 10 -305 Meade, Patrick Hugh (Blackrock, Dublin), 4 -130 Mulrennan, Dominic (Castlerea, Roscommon), 7 -218 O'Connor, Margaret (Rathmines, Dublin), 10 -305 O'Farrell, Kathleen (Phibsboro, Dublin), 8 -246 O'hEideain, Dr. Sean (Howth, Dublin), 3 -102 O'Keefe, Jeremiah (Nth. Circular Rd., Dublin), 10 -305 O'Moore, Christopher Kevin (Nth. Strand, Dublin), 8 -246 O'Reilly, Charles (Crumlin, Dublin), 1 -26 O'Sullivan, Cornelius (Inchicore, Dublin), 7 -208 O'Sullivan, Michael (Navan Rd., Dublin), 10 -305 O'Toole, Patrick (Cleggan, Galway), 7 -208 Walsh, Teresa (Ballycumber, Offaly), 10 -305 Whelan, Thomas (Walkinstown, Dublin), 3 -102 Whelton, Christine (Wellington Rd., Cork), 2 -66

MEDIATION family disputes, see under Family Law MINORS Domicile Act, 1986, 9 -270 MORTGAGE see also Building Societies mortgagees' solicitors and their borrowers, (pr.), 4 -116; 10 -292 MOTOR INSURERS' BUREAU agreement of 30/12/64, (N. S. Mulvin), 2 -59 NATIONAL HOUSE BUILDING GUARANTEE SCHEME, 3 -99 NEGLIGENCE defective premises, see Defective Premises defective products, see Products Liability employers' liability insurance, 8 -239-43 OCCUPATIONAL INJURIES employers' liability insurance (J. Rowan), 8 -239-43 OFFICE MANAGEMENT technology without tears (I. Long), 5 -155-8 PERFORMANCE GUARANTEES (G. J. McGann), 6 -169-76; 7 -197-202 PERSONAL INJURIES abolition of jury system, 8 -239 Litigation Cttee. directives (pr.), 5 - 1 4 6 road accident victims: Health (Amendment) Act, 1986, (pr.), 8 -235-6 work, at, see Occupational Injuries PERSONAL REPRESENTATIVE claim for recovery of land: limitation period (J. C. Brady), 1 -21-5 PHOTOGRAPHS book launches, see Book Launches Brighter Homes Exhibition stand, 3 -80 Dublin Solicitors' Bar Assoc. - annual dinner, 2 -33 ITELIS, relaunching of, 3 -85 International Bar Association Council meetings 4 -105 Kings Cup Football Tournament, 6 -180 Law Society: Council dinner, 3 -86-7 President/Vice-Presidents, 1986/7, 10 -277, 297 Mayo Bar Assoc., annual dinner dance, 3 -85 Solicitors Benevolent Assoc. retirement of Ms. Thelma King, 5 -154

POLICE, see Garda Siochána PRACTICE AND PROCEDURE

computerised summonses (edl.), 10 -279, 291 enforcement of judgments - Brussels Convention, 1 -5-8 High Court non-jury actions listing procedure, 1 -17-18 6

MARRIED WOMEN Domicile and Foreign Divoices Act, 1986, 9 -269-

GAZETTE

1986 INDEX

PRACTICE NOTES Building Agreement Standard Form, 9 -258 building societies requirements for building contracts, 3 -100 Conveyancing Committee: closing a sale by post: 1986 Code, 1 -9 mortgagees' solicitors and their borrowers, 4 -116; 10 -292 Courts (No. 2) Act, 1986, 8 -235 Criminal Injuries Compensation Tribunal, 8 -236 deposits in sale generally, 9 -258 Domicile and Recognition of Foreign Divorces Act, 1986, 8 -233, 235 EEC Milk Cessation Scheme, 9 -258 Health (Amendment) Act, 1986, 8 -235 Land Act, 1965, s.45 - list of Co. Boroughs etc. 4 -116 Landlord & Tenant Act, 1980 - use of caretakers agreement, 3 -100-1 Litigation Committee: personal injury litigation, 5 -146 Malicious Injuries (Amendment) Act, 1986, 8 -233 Solicitors' Remuneration General Order, 1986, 10 -292-3 VAT on management charges - office and shop properties, 1 -9-10 PRINCIPAL AND AGENT, see Agency PRIVY COUNCIL Irish solicitor's appearance before, 4 -130 PRODUCTS LIABILITY EEC Directive (W. Binchv* 2 -37-43: 3 -73-8 PROFIT SHARING (F. Meenan), 6 -183-7 RADIO see Broadcasting ROAD TRAFFIC accident victims: health charges for, (pr.), 8 -235-6 insurance: MIBI Agreement, 2 -59 SALE OF GOODS performance bonds, see Performance Guarantees SOLICITORS advertising, see Advertising associations, see Associations and Societies client relations - a layman's view, 7 -205 professional indemnity: AGM report, 10 -295 reciprocity of qualifications (R. Woulfe), 3 -81-2 remuneration: rack rent leases dir.), 4 -133 Solicitors' Remuneration General Order, 1986, 10 -292-3 SPORTS ACTIVITIES see a/so under Associations and Societies Apprentices/Legal Offices Olympic Handball Club (Itr.), 1 -27 Kings Cup Football Tournament, 6 - 1 8 0 mixed soccer tournament, 4 - 1 2 0 Shields golf outing, 5 -159 SUCCESSION 'imitation perioa: recovery of assets by personal representative (J. C. Brady), 1 -21-5 The Succession Act, 1965 — A Commentary, (2nd ed. R.A. Pearce), reviewed, 2 -63 law clerks - underpayment of, 6 - 1 6 7 office administration and management, see Office Management practice directions, see Practice Notes

TAX PLANNING profit sharing schemes (F. Meenan), 6 -183-7 recent developments in tax avoidance (P. McElhinney; D. Kennedy), Ireland, 8 -225-9; UK, 7 -211-16 TECHNOLOGY see under Office Management WILLS LOST, see Lost Wills 2. ALPHABET I CAL CASE INDEX: (i) Cases reported in the Recent Irish Cases supplements AGRA TRADING LTD. v. WATERFORD CO. COUNCIL, High Court, unreported, 11 Oct./9 Nov. 1984, 7 -x-xi C. (R) & C. (P) v. AN BORD UCHTALA and ST. LOUIS ADOPTION SOCIETY, High Court, unreported, 8 Feb. 1985, 7 -ix COURTNEY v. DUBLIN WELL WOMAN CENTRE LTD., High Court, unreported, 15 Nov. 1985, 7 x CUNNINGHAM v. GOVERNOR OF MOUNTJOY PRISON, High Court, unreported, 5 Dec. 1985, 7 x DEVINE v. FITZGERALD, District Court, unreported, 3 Dec. 1985, 6 -v DOYLE and ORS. v. AN TAOISEACH and ORS., Supreme Court, unreported, 29 March 1985, 2 -ii DUBLIN CO. COUNCIL v. KIRBY, High Court, unreported, 10 May 1984, 2 -i EGAN (William) & SONS LTD., v. SISK & SONS LTD., and LEE GARAGE (CORK) LTD., High Court, 6 May 1985, 11984], ILRM 283, 6 -vii FLYNN v. D.P.P., Supreme Court, unreported, 8 Nov. 1985, 6 -vii-viii INSPECTOR OF TAXES ASSOCIATION and ORS. v. MINISTER FOR PUBLIC SERVICE, IRELAND and the ATTORNEY GENERAL, Supreme Court, unreported, 11 Nov. 1983, 7 -ix LABOUR, MINISTER FOR, v. PMPA INSURANCE CO., High Court, unreported, 16 April 1986, 6 -vi-ii M. (M) v. R.C., P.C., and AN BORD UCHTALA see C. (R.) and C. (P.) v. An Bord Uchtala McCANN (Charles) LTD., v. O'CUALACHAIN, Supreme Court, unreported, 30 June 1986, 7 -xii McGUILL v. AER LINGUS TEO and UNITED AIRLINES INCORPORATED, High Court, unreported, 3 Oct. 1983, 6 -viii QUINN v. WREN, Supreme Court, unreported, 28 Feb. 1985, 6 -vii R. v. R., High Court, unreported. 21 Dec. 1984, 7 -xi-xii STATE (CIE) v. AN BORD PLEANALA, Supreme Court, unreported, 12 Dec. 1984, 2 -ii-iii 7

GAZETTE

1986 INDEX

CORK CORPORATION v. LYNCH, Circuit Court, unreported, 26 July 1985, 5 -141, 143 CRAVEN v. WHITE [1985] S.T.C. 531, 7 -213-14, 215 CRONIN v. CORK & CO. PROPERTY CO. LTD., High Court, unreported, 18 July 1984, 8 -225, 229 DALY v. AVONMORE CREAMERIES LTD., Supreme Court, 12 July 1984, 3 -77 DENILAULER v. COUCHET FRERES, [19801 ECR 1553, 1 -6 DE WOLF v. COX [1976] ECR 1759, 1 -6 DIPLOCK, In re., [19841 Ch. 465, 1 -21 DROHAN v. DROHAN, [1984] I.R. 311; ] 1981] ILRM 473, 1 -21-5 EAST v. CUDDY Circuit Court, unreported. EAST DONEGAL CO-OPERATIVE LIVESTOCK MART LTD., v. A.G. [1970] I.R. 317, 1 - 1 3 FIELD, In re, [1918] 1 I.R. 140, 9 -254 FIRMA P. v. FIRMA K., ECJ, case 173/83, 1 -7 FOREMAN v. MOWLDS [1985] 3 I.L.T. (N.S.) 47, 9 -253, 254, 256 FRAY v. VOULES (1859) 1 E. & E. 839, 10 -300 FURNISS v. DAWSON [1984] S.T.C. 153, 7 -211, 214, 215; 8 -225-30 (passim) GATIEN MOTOR CO. v. CONTINENTAL OIL CO. LTD., [1979] I.R. 406, 3 -100-1 GLEESON v. FEEHAN; same v. PURCELL, (1985) I.L.T. 102, 1 -21, 22 HANCOCK v. BRAZIER (ANERLEY) LTD., [1966] 2 All E.R. 1901 3 -92 HARBOTTLE v. NATIONAL WESTMINSTER BANK [1978] Q.B. 146, 6 -170, 173, 174 HIBERNIA MEATS v. MINISTER DE L'AGRICULTURE and TRINITY BANK LTD., High Court, unreported, 16 Feb. 1984. 6 -169, 173 HIBERNIAN TRANSPORT CO. LTD., In re., [1984] ILRM 583, 8 -230n HOLGATE-MOHAMMED v. DUKE [1984] All E.R. 1054, 1 - 1 4 HOWE RICHARDSON SCALE CO. v. POLIMEX CEKOP [1978] 1 Lloyd's Rep. 161, 6 -170 HUGHES v. LORD ADVOCATE [1967] A.C. 837, 2 -41 HUSSIEN v. CHONG FOOK KOM [19701 A.C. 942, 1 -16 I.R.C. v. BOWATER PROPERTY DEVELOPMENTS

STATE (KENNY and HUSSEY) v. AN BORD PLEANALA, Supreme Court, unreported, 20 Dec. 1984, 6 -v-vi SWEENEY (F. G.) Ltd., v. POWERSCOURT SHOPP- ING CENTRE LTD., High Court, 6 June, 1984 [1984] I.R. 501, 2 -iii TORMEY v. IRELAND and the ATTORNEY GENERAL, High Court, unreported, 16 May 1985, 6 -vi WARD v. McMASTER, LOUTH CO. COUNCIL and HARDY & CO. LTD., High Court, unreported, 20 April 1985, 2 -i-ii ALPHABET I CAL CASE INDEX (ii) Cases examined and/or specially mentioned in Articles. ALLAM & CO. LTD. v. EUROPA POSTER SERVICES LTD., [1968] 1 All E.R. 826, 10 -302n AMERICAN CYANAMID v. ETHICON LTD., [1975] A.C. 39 7 -199 ANISMINIC LTD. v. FOREIGN COMPENSATION COMM., [1969] 2 A.C. 147, 10 -285, 286 ANNS v. MERTON L.B.C. [1978] A.C. 728, 3 -89, 90; 4 -127 ASSOCIATED PROVINCIAL v. WEDNESBURY. [1948] 1 K.B. 223, 1 -14 BAYLIS v. GREGORY [1986] S.T.C. 22, 7 -215 BEAL v. SOUTH DEVON RLY. CO., (1864) 3 H. & C. 337, 10 -300 BELVILLE HOLDINGS LTD. v. CRONIN, High Court, unreported, 14 May 1985, 8 -226, 228 BERTRAM v. GODFREY, (1830) 1 Knapp. 381, 10 -300 BIRD v. I.R.C., [1985] S.T.C. 584 7 -215 BOISSEVAIN v. WEIL, [1950] A.C. 327, 2 -52-3 BOLIVINTER OIL S.A. v. CHASE MANHATTAN BANK, [1984] 1 All E.R. 351; [1984] 1 W.L.R. 392, 7 -174 BROWNE v. FAHY, High Court, unreported, 25 Oct. 1975, 5 -143 BURGESS v. FLORENCE NIGHTINGALE HOSPITAL FOR GENTLEWOMEN, [ 1 955] 1 Q.B. 349, 4 -1 29n -129 n CAHILL v. IRISH MOTOR TRADERS ASSOC.,

[19661 I.R. 430, 1 -25n CAIRNS v McDIARMAID,

[1983] S.T.C. 178, 7 -212

CHOWN v. PARROTT (1863), 14 C.B.N.S. 74, 10 -300 COATES v. ARNDALE PROPERTIES LTD., [1984] S.T.C. 637, 7 -212 COHEN v. KITTELL, (1889) 22 Q.B.D. 680, 10 -299 CONVEY v. REGAN [1952] I.R. 56, 5 -142

LTD., [1985] S.T.C. 783, 7 -214-15 I.R.C. v. DUKE OF WESTMINSTER, [1936] A.C. 8 -225 8

GAZETTE

1986 INDEX

NAMLOOZE VENOOTSCHAP DE FAAM v. DORSET MANUFACTURING CO., [1949] I R 205 2 -53 NATIONAL PROVINCIAL & UNION BANK OF ENGLAND v. CHARNLEY [1924] 1 K.B 431 10 - 2 8 2 NORTA WALLPAPERS (IRELAND) v. SISK & SONS 11978] I.R. 114, 3 -95 NYE (C.L.) LTD., In re, [1971] Ch. 442, 10 282 O'COINDEALBHAIN v. GANNON, High Court, unreported, 11 March 1986, 8 -228-9 O'CONNLAIN v. BELVEDERE ESTATES, High Court, unreported, 19 April 1984, 8 -225-6, 229 O'SULLIVAN v. DWYER, [1971] I.R. 275, 3 -77 OWEN (EDWARD) ENGINEERING LTD., v. BARCLAYS BANK [1978] Q.B. 159, 6 -169, 170 173; 7 -197 PETROTIM SECURITIES v. AYRES 36. T.C. 293, 8 -226, 228 PILKINGTON v. I.R.C. [1982] S.T.C. 103, 7 -212 PIRELLI GENERAL CABLE WORKS LTD. v. OSCAR FABER & PARTNERS, [ 1983] 2 A.C. 1 , 3 -89, 90, 92 POTTON HOMES LTD. v. COLEMAN CONTRACTORS (OVERSEAS) LTD., 128 S.J. 282, 7 -197-8 R. v. REGISTRAR OF COMPANIES, ex parte Central Bank of India [1985] 2 All E.R. 79, 10 -282, 285, 286, 287, 289 RAMSAY v. I.R.C. [1981] T.C. 174, 7 -211-15 passim REED v. NOVA SECURITIES LTD., [1985] S.T.C. 124, 7 -212 REVENUE COMMRS. v. T.F.Q.R. and I. McG. ('club 349 case'), [1983] ILRM 34; [1984] ILRM 406 8 -226, 229 SAUERZWEIG v. FEENEY Supreme Court, unreported, 7 July 1986, 9 -254, 256 SERGE CAUDRON & ORS. v. AIR ZAIRE, AER LINGUS AND AER RIANTA, Supreme Court, unreported, 26 April 1985, 7 -202n SHANAHAN, In re., Supreme Court, unreported, 5 July 1986, 9 -253-4 SHARIF v. AZAD [1969] 1 Q.B. 605, 2 -54, 55 SHARKEY v. WERNHER Í1953] Ch. 782, 8 -226, 228 SHELLY v. PADDOCK, Li 9811 Q.B. 348, 2 -53 SPARHAM-SOUTER v. TOWN & COUNTRY DEVELOPMENTS (ESSEX) LTD., [19761 1 Q.B. 858, 3 -89, 90 9

I.R.C. v. GARVIN, 119821 S.T.C. 344, 7 -212 INGRAM v. I.R.C. [1985] S.T.C. 664, 7 -213 INSPECTOR OF TAXES v. KIERNAN, [1982] ILRM 13, 8 -225 INTRACO LTD. v. NOTIS SHIPPING CORPORATION, [1981] 2 Lloyd's Rep. 256, 6 -174, 175 JACOB INTERNATIONAL v. O'CLEIRIGH, [1985] ILRM 651,m 8 -230n JUNIOR BOOKS v. VEITCHI, [1983] 1 A.C. 250, 2 -41 K. v. J.M.P. CO. LTD., [1976] 1 Q.B. 85, 4 -126, 127-9 KEARNEY v. PAUL & VINCENT LTD., High Court, unreported, 30 July 1985, 2 -37 KENDALL v. LILLICO, [1969] 2 A.C. 84, 3 -95 KELLYSTOWN CO. v. HOGAN, Í1 985] ILRM 200, 8 -225 KING v. A.G., [1981] I.R. 233, 1 -14 KING'S NORTH TRUST LTD. v. BELL AND ORS., [1986] 1 W.L.R. 119, (pr.), 4 -116; 10 -292 KLOMPS v. MICHEL [1981] ECR 1593, 1 -5 LEIGH v. JACK (1879) 5 Ex.D. 264, 5 -141-2, 143 LOMBARD & ULSTER BANKING (IRELAND) LTD. v. AMUREC LTD., [1978] 112 I.L.T.R. 1, 10-281, 282 LORD ADVOCATE v. LORD LOVET, (1880) 5 App. Cas. 273, 5 -143 LUPTON v. A.B. LTD., 47 T.C. 580, 8 -226 McCOMISKEY v. McDERMOTT [1974] I.R. 75, 3 -78 MacCARTHAIGH v. DALY ('The Metropole Case') [1986] 6 ILRM 116, 8 -225, 226, 229 McELDOWNEY v. A.G. [1983] I.R. 289, 10 -287, 289 McMAHON v. KERRY CO. COUNCIL, [1981] ILRM 419, 5 -143 MAGNAVOX ELECTRONIC CO. LTD. v. HALL, Í1 985] S.T.C. 260, 7 -212 MAHER v. A.G., Í19731 I.R. 140, 10 -286-7 MECHANISATIONS (EAGLESCLIFFE) LTD., In re, [1966] Ch. 20, 10 -281 MORAN v. FABERGE INC., 273 Md. 538, 332. A. 2d 11 [1975] 2 -41 MORGAN v. PARK DEVELOPMENTS LTD., 11983] ILRM 156, 3 -77, 89, 90. 91, 92 MURPHY v. MURPHY, [1980] I.R. 183, 4 -91: 5 -141 MURRAY CLAYTON & ORS. v. RAFIDIAN BANK AND ANOR., The limes, 18 July 1984, 7 -190-201

GAZETTE

1986 INDEX

STAGG v. WYATT, (1838) 2 Jur. 892, 9 -2 53, 254, 256 STATE (ABENGLEN) v. DUBLIN CORPORATION, 11982] ILRM 590, 10 -286 STATE (CLARKE) v. ROCHE AND SENEZIO, Supreme Court, unreported, 12 Dec. 1986, (edl.), 10 -279 STATE TRADING CORP. OF INDIA LTD. v. E.D. & F. MAN (SUGAR) LTD., [1981] Com.L.R. 235, C.A., 6 -174 SWISS BANK CORP. v. LLOYDS BANK LTD., [ 1 980] 3 W.L.R. 457, 2 -52, 53 STATE (LYNCH) v. COONEY, [1983] ILRM 89, 10 -286 ' UNITED CITY MERCHANTS (INVESTMENTS) LTD. v. ROYAL BANK OF CANADA, [19821 1 Q.B. 242, 2 -56; [1983] A.C. 168, 6 -17 UNITED TRADING CORP. S.A. v. ALLIED ARAB BANK LTD., The Times, 18 July 1984, 7 -197, 198-201 VAUGHAN v. COTTINGHAM, [1961] I.R. 184, 1 -23 WALLIS'S HOLIDAY CAMP v. SHELL-MEX [1975] 1 Q.B. 94, 5 -142, 143 WARD v. McMASTER & LOUTH CO. COUNCIL, High Court, 26 April 1985, 2 -37, 41 WARNOCK v. REVENUE COMMRS., [1986] ILRM 37, 8 -228 WATSON v. FRAM REINFORCED CONCRETE CO. (SCOTLAND), [ 1960], S.C. 92, 3 -77 WILKINSON v. COVERDALE (1793) 1 Esp. 74, 10 -299 WILLIAMS BROTHERS DIRECT SUPPLY LTD. v. RAFTERY [1958] 1 Q.B. 159, 5 -142-3 WILSON, SMITHETT & COPE LTD. v. TERRIZZI. [1976] 1 Q.B. 683. 2 -54. 5, 56 YOLLAND, HUSSON & BIRKETT LTD., In re., [1908] 1 Ch. 152, 10 -282 YOUNG v. PHILLIPS [1984] S.T.C. 520, 7 -212 TRADAX v. IRISH GRAIN BOARD, [1984] ILRM 471, 6 169, 1 76n TURPIN v. BILTON, (1845) 5 Man & G. 455, 10 -299

10

INCORPORATED LAW SOCIETY OF IRELAND GAZETTE Vol. 80. No. 1 JANUARY/FEBRUARY 1986

One Law?

T he appearance of newspaper advertisements cele- brating the continuance for 5 years of what is apparently an illegal activity may be seen as a tribute to a robust and free press. Since however the anniversary in question is that of a pirate radio station, the publi- cation may be seen as a triumphant celebration of the failure of successive governments to enforce the law of the land. It may well be that there is public desire for a different style of radio presentation or programme contents from those available from RTE. If there is it may be appropriate that independent radio stations should be permitted to meet this demand. Legislation has too long been promised. The delay in producing this legislation, so typical of recent administrations does not however excuse the continuance of the present flouting of the law. The absence of any determined attempt to enforce any illegal radio station to cease operation is impossible to justify. It may be, though there do not seem to have been any failures in the Courts, that there are difficul- ties about instituting proceedings against the operators of illegal stations. If a direct prosecution for operating an illegal station is unlikely to succeed there may be other ways of choking the cat which might render the operation of such stations commercially impossible. The local planning authorities are not slow to bring proceedings under Sections 26 and 27 of the 1976 Plan- ning Act to curtail the operation of other unlawful uses. It is curious that it was left to third parties to explore this approach. If the operation of a radio station is unlawful then will not the illegality taint transactions connected with the operation of the station. Should advertisers' payments to the station be deductible expenses for tax purposes? Any advertiser who to a

lesser or greater extent is subject to some state control or supervision might perhaps be advised that the continu- ance of supporting the illegal activity of the pirate radio station is not consistent with support from the State. From a lawyer's point of view the even more interesting thought occurs that any body corporate which advertises on such a station is indulging in an ultra vires activity since it surely cannot be an activity permitted by its Memorandum of Association. This failure to clamp down on unlawful activities contrasts curiously with the decision to renew the res- trictions applied to RTE under Section 31 of the Broad- casting Act. No similar restrictions can be placed on pirate radio stations, which are outside the jurisdiction of the Act. The Government's failure to prevent the operation of unlawful broadcasting stations means that freedom of the air has been granted to those spokesmen for unlawful organisations whom the Government rightly feels should not be permitted to preach their dangerous creed on the air waves. Increasingly it appears that in every facet of the State's activities, particularly in the areas of taxation and the collection of fines imposed by the Courts, it is the law abiding who suffer for being good citizens. Those who readily or voluntarily submit to the jurisdiction of the State are hard pressed, while those who thumb their noses at the system escape scot free. Is it any wonder that the black economy grows as people see that the "consent of the governed" operates to the detriment of those consenting. It is the duty of a governemnt to govern, to apply the laws without fear or favour. It is also the duty of the government to seek out those who choose to ignore or reject the laws and to ensure that such people are brought within the laws.

1

GAZETTE

JANUARY/FEBRUARY 1986

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INCORPORATED LAW SOCIETY OF IRELAND GAZETTE

Vol. No. 80 No. 1

JANUARY/FEBRUARY 1986

Comment. . .

In this issue .

LAW REFORM COMMI S S I ON — A NEW TERM

Comment

3

T HE opportunity of the expiry of the present term of the Law Reform Commission to review its perform- ance should not be missed. While criticism has been expressed in these pages previously on the methods of operation of the Commission it would be wrong to blame the Commission for its apparent lack of success, if 'success' is to be judged by the volume of legislation introduced or enacted as a result of its deliberations. It is clear that the lack of any satisfactory arrange- ments for the presentation to the Oireachtas of draft legislation recommended by the Commission has been a flaw in the working of the Commission. Operating, as it does under the aegis of the Attorney General, whose department has of course no facility for the intro- duction of legislation into the Oireachtas, the draft legislation proposed by the Commission must be adopted by the relevant Government department before it can find a place in the legislative treadmill. Many of the topics so far covered in the Commission's published reports fall within the jurisdiction of the Dep- artment of Justice, and it is well known that the Depart- ment itself is generating a very substantial programme of legislation which does not encourage optimism that there will be early introduction of many of the Commis- sion's legislative recommendations. It is also clear that the adoption by a Government department does not lead to rapid introduction of the measure because further consultation within that department and with other departments then takes place. This to a large extent is giving the departments a further 'bite-at-the-cherry' because they have already had an opportunity of commenting on the Commission's work- ing papers. With hindsight, it must also be said that the prog- ramme of law reform contained in the Commission's first programme was almost certainly too large and, to some extent at least, was responsible for the slow prog- ress of the Commission during its earlier years. It might be more satisfactory if a much shorter programme of reform were to be prescribed for the next Commission, when the views of the Commission as to what areas it should look at might be given greater weight, so that the Commission could achieve its more modest targets within a shorter time scale. The question of whether the Commission should con- tinue to operate its previous system, of relying for the production of its working papers exclusively on its own (cnnlinued on page 18) 3

Brussels Convention on Jurisdiction and Enforce- ment of Judgements

5

Practice Notes

9

Suppose he never commits the Crime

13

High Court Non-Jury Actions Listing Procedure . . .

17

Crossword

19

A Limitations Conundrum

21

Correspondence

27

Medico-Legal Society

29

Professional Information

30

Executive Editor: Editorial Board:

Mary Buckley 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 Turner's Printing Co. Ltd., Longford

Advertising: Printing:

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. Published at Blackball Place, Dublin 7.

GAZETTE

JANUARY/ FEBRUARY 1986

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GAZETTE

JANUARY/FEBRUARY 1986

The Brussels Convention on Jurisdiction and the Enforcement of Judgements Part II by Gerald Mo l oney, Solicitor and George Kremlis*

nised automatically, without the necessity of any special procedures. The Jenard Reports states that under Article 26 there is a presumption in favour of recognition which can be rebutted only if one of the grounds specified in Article 27 is present. Also, the two novel develop- ments pointed out by the Jenard Report are that judge- ments no longer have to be Res Judicata and that, in general, the jurisdiction of the original court does not have to be investigated. Exceptions to Recognition The first exception in Article 27 is that a judgement need not be recognised where recognition would be contrary to the public policy of the State in which recog- nition is sought. The exception was intended, however, to be used only in exceptional circumstances. In Ireland an interpretative problem may arise where it is alleged that the original judgement was obtained by fraud. Fraud is regarded in the Irish courts as a special ground, separate from public policy. The problem was, however, envisaged. < 3 >It was suggested that the obtaining of a judgement by fraud can be regarded as an offence against public policy. It was also suggested that "the court in the State addressed must always therefore ask itself whether a breach of its public policy still exists in view of the fact that proceedings for redress can be or could have been lodged in the court of the State of origin against the judgement allegedly obtained by fraud". How an Irish court will deal with this problem when it arises will be interesting to see and may, of course, be subject to the review of the Court of Justice. The second exception in Article 27 is where the original judgement was granted in default of appear- ance. Such a judgement will not be recognised where the defendant was not served with the document which instituted the proceedings or with an equivalent docu- ment in sufficient time to enable him to arrange for his Defence. There would not appear to be any objective standard of what constitutes "sufficient time" and it is stated < 4 > that it is for the court in which recognition is sought to decide whether the defendant was given sufficient time to arrange his Defence. The case of Klomps-v-Michei < 5 » decided, inter alia, that Article 27 does not require an investigation, except in the most exceptional circumstances, as to whether the document which instituted the proceedings was actually brought to the notice of the defendant. The court concerned could therefore confine its examination to the period of time from the date on which service was effected. «> The third exception in Article 27 applies where the judgement sought to be enforced is irreconcilable with a

•Member of the Legal Service of the Commission of the European Communities. The writer expresses his own views. The first part of this Article dealt with the first half of the Convention which sets out the new harmonised rules on jurisdiction. This second and concluding part will deal with the provisions of the Convention relating to the recognition and enforcement of judgements and with the Protocol dealing with the interpretation by the Court of Justice of the Convention. Recognition and Enforcement — General To get an idea of the intention of the drafters of the provisions of the Convention relating to recognition and enforcement it is worth looking at the Jenard Report»') It is stated that because of the safeguards guaranteed by the Convention to defendants in the original proceed- ings, the provisions relating to recognition and enforce- ment are very liberal. It continues to state that Title III, which sets out these provisions, "seeks to facilitate as far as possible the free movement of judgements and should be interpreted in this spirit. The liberal approach is evidenced in Title III, firstly, by a reduction in the number of grounds which can operate to prevent the recognition and enforcement of judgements and, secondly, by the simplification of the enforcement pro- cedures which will be common to the (Contracting States)". At present, it is in general only foreign judgements for fixed sums of money that can be enforced in Ireland, and under strict conditions. A foreign judgement has to be Res Judicata and the Irish Courts have a very broad power to refuse to enforce a foreign judgement where it considers that the foreign court should not have assumed jurisdiction in the matter in the first place. The Convention will radically change this position. With certain specified exceptions, foreign judgements coming within the scope of the Convention will be rec- ognisable and enforceable in Ireland. This will include judgements of certain tribunals and even certain orders of a Civil nature made by Criminal Courts. Judgements will no longer have to be Res Judicata and therefore provisional orders will be enforceable. And, further, the grounds on which the Irish courts will be able to refuse recognition and enforcement will be considerably reduced. Article 25 also specifically includes orders determining a party's costs. Recognition Recognition is governed by Articles 26 to 30. The effect of Article 26 is that judgements are to be recog-

5

GAZETTE

JANUARY/FEBRUARY 1986

judgement given in a dispute between the same parties in the State in which recognition is sought. The fourth exception provides that a judgement should not be recognised where the original court decided a prelimin- ary point relating to the capacity of persons, property rights arising out of marriage or relating to Wills or suc- cession, which conflicts with a rule of private inter- national law in the State where recognition is sought. Finally, and this is a new exception added by the 1978 Convention, a fifth exception is where the judgement in question is irreconcilable with a previous judgement in the same cause of action between the same parties provided that it was decided in a non-Contracting State and is itself enforceable. Article 28 also provides that a judgement need not be recognised if it conflicts with those jurisdictional rules of the Convention relating to insurance contracts, con- sumer contracts or the rules of exclusive jurisdiction or conflicts with the provisions of Article 59 (which allow certain obligations in bilateral Conventions with third countries). However, the court in which recognition is sought is bound by the findings of fact in the original court. Article 39 is simply stated and to the point and pro- vides that "under no circumstances may a foreign judgement be reviewed as to its substance." As the Jenard Report explains < 7 > "the court in the State in which recognition is sought is not to examine the correct- ness of that judgement; it may not substitute its own dis- cretion for that of the foreign court nor refuse recog- nition if it considers that a point of fact or law has been wrongly decided". The effect of Article 30 is that an Irish court in which recognition is sought may stay the proceedings if an "ordinary appeal" (essentially an appeal which suspends enforcement in the original country) has been lodged in that original country and a foreign court may stay the proceedings where an appeal has been lodged in the Irish courts and the effect of the appeal is to suspend enforcement in Ireland. Enforcement The drafters of the Convention realised <»> that the progress made by the jurisdictional provisions of the Convention would be rendered nugatory if a party seek- ing enforcement of a judgement given in his favour were impeded by procedural obstacles. Because the recognis- ing court is strictly limited in its power to look into the judgement and because the defendant is adequately protected in the original proceedings — "it is proper that the application for enforcement be enabled to pro- ceed rapidly with all the necessary formalities in the State in which enforcement is sought, that he be free to act without prior warning and that enforcement be obtained without unnecessary complications". On the basis of such reasoning it was decided to base the enforcement procedure on an ex parte application. Article 31 provides simply that a judgement given in one Contracting State and enforceable there shall be enfor- ceable in another Contracting State. The application for enforcement is made, in Ireland, to the High Court and the procedure for making application is governed by the law of the country where enforcement is sought. The application must provide an address for service within

the jurisdiction of the court applied to or, if the law does not provide for the furnishing of such an address, he must appoint a representative Ad Litem. In De Wolf -v- Cox < 9 > it was held that the enforce- ment procedure under the Convention was obligatory even if, in exceptional circumstances, there was a cheaper or easier procedure under National Law. The application is made ex parte and Article 34 pro- vides that the court must give its decision without delay. Further, it is specifically provided in Article 34 that the party against whom enforcement is sought is not entitled to make any submission to the Court at this stage. The case of Denilauler -v- Couchet Freres <"» is of interest. The judgemept which was sought to be enforced was an order to freeze a party's bank accounts. The Court of Justice recognised that there were cases such as this one, where the nature of the order being requested required that defendant not be notified of the proceedings against him or indeed of the order when made. How- ever, having regard to the nature of the Convention and the essential safeguards for defendants contained therein the Court of Justice held that such orders were not enforceable under the Convention. Apart from cases such as Denilauler it was considered ci) that the rights of the respondant were adequately safeguarded since he can appeal against the decision authorising enforcement. The application for enforce- ment may only be refused for one of the reasons specified in Articles 27 and 28. It is reiterated in Article 34 that the foreign judgement may not, under any cir- cumstances, be reviewed as to its substance. Walter Conan Ltd., Academi c -Lega l -Ci v i l -Cl er i cal Robemake r s. Telephone - 97J 730 - 971887 ¥ PHELAN - CONAN GROUP WOODLEIGH HOUSE, HOLLYBANK AVENUE. RANELAGH D.6 Official Robemakers To:- The Incorporated Law Society of Ireland also N.U.I. N.C.E.A. N.I.H.E. Q.U.B. We cater for all English universities and the Inter-Collegiate code of North America and C a n a d a.

6

GAZETTE

JANUARY/FEBRUARY 1986

The respondent is given one month from the time of the decision (the Court is obliged to notify him) to appeal and two months where he is domiciled in some other Contracting State. Article 38 allows the appellate court to stay enforce- ment where an "ordinary appeal" has been lodged against the judgement and for the purposes of Article 38 any appeal in Ireland will be regarded as an "ordinary appeal". Article 39 provides that where enforcement has actually been ordered it may not be carried out until the time for the appeal has expired. Not unnaturally, the exception to this rule is the taking of provisional pro- tective measures. (12) Articles 40 and 41 govern the applicants appeal, should enforcement be refused. In the case of Firma p - -v- Firma K <'3> the Court of Justice ruled that where the applicant appeals a refusal to enforce, the appellate court is obliged to hear the respondent even though enforcement was refused because certain documents were not produced and the respondent does not reside in the State in which enforcement is sought. Article 42 provides that where a foreign judgement has been given in respect of several matters and enforcement cannot be authorised for all of them then the Court may authorise partial enforcement as, indeed, an applicant may appeal himself for partial enforcement. Article 45 will alter our present rules relating to security for costs by providing that no such security may be required of a party who in one Contracting State applies for enforcement of a judgement given in another Contracting State on the ground that he is a foreign national or not domiciled in the State in which enforce- ment is sought. Finally, Articles 46 to 51 deal with the documents which an applicant must produce to support his application. There are a number of general and final provisions in the Convention. Articles 52 and 53 (as amended) deal with the determination of the domicile of persons, com- panies and trusts. These have already been dealt with briefly in the first part of the Article. Article 57 (as amended) provides that the Convention shall not affect any Convention to which the Contract- ing States are or will be parties and which, in relation to particular matters, govern jurisdiction or the recognition and enforcement of judgements. At present, the only international agreement to which Ireland is a party which could come within the ambit of Article 57 is the 1974 agreement with the U.K. on the enforcement of maintenance orders. Article 59 (as amended) provides that a Contracting State may enter an obligation towards a third State not to recognise judgements of other Contracting States against domiciliaries of that third State, where juris- diction was based only on exhoribtant jurisdiction included in the list in Article 3. However, there are exceptions which relate to the existence of property belonging to the defendant in the Contracting State in question. Article 34 of the 1978 Convention provides that the Convention will apply only to legal proceedings insti- tuted after the entry into force of the Convention, in the country of origin and, where recognition or enforce-

ment is sought, in the country addressed. An exception to this Rule will arise and the judgement will be recog- nisable where jurisdiction was founded on rules which conform with those in the Convention. And, as has already been mentioned, if the parties to a dispute concerning a contract had agreed in writing, before the entry into force of the Convention, that the contract was to be governed by Irish or U.K. law then the Irish or U.K. courts, as the case may be, will retain jurisdiction. Article 36 of the 1978 Convention provides special transitional measures in Admiralty matters. These also have been dealt with briefly in the first part of this Article. The 1971 Protocol The 1971 Protocol gives jurisdiction to the Court of Justice to give rulings on the interpretation of the Con- vention. The 1978 Convention (Article 30) extends this jurisdiction to include the interpretation of the 1978 Convention. This jurisdiction is similar to that contained in Article 177 of the EEC Treaty. However, there are some important differences. Where a question of interpretation of the Convention is raised in a case pending before the Supreme Court it must request a preliminary ruling from the Court of Justice where it considers that a decision on the question is necessary. The main differences with Article 177 is that under the Protocol it is only a court sitting in its appellate capacity which may request a preliminary ruling. Under Article 177 any court or tribunal may request a preliminary ruling. The reasons for this more restrictive system of requesting preliminary rulings was stated in the separate Jenard Report on the Protocols, tut " it was feared that, in view of the number and diversity of the disputes to which the Convention applies, an application for a preliminary ruling on the lines of Article 177 might be made by one of the parties either as a delaying tactic or as a means of putting pressure on an opponent of modest financial means. In short, the application might be made for improper purposes". An interesting provision in the Protocol is contained in Article 4. Article 4 allows a competent authority in a Contracting State (to be appointed by that Contracting State) to request a preliminary ruling if a judgement given in that State conflicts with the interpretation given either by the Court of Justice or in a judgement in one of the courts of another Contracting State referred to in Article 2 (the Supreme Court or another court sitting in its appellate capacity). However, any ruling in such a case will not affect the particular judgement which gave rise to the request. It is not necessary here to go into the details of formal procedure involved in a request for a preliminary ruling, as in most respects a request under the Protocol will be similar to a request under Article 177. Equally, the matters which the national court should consider before making a request will be similar to a case under Article 177. The most important consideration is whether a question of interpretation is really necessary to the decision in the case. In relation to the interpretation of the Convention, however, one point should be made. When a question of interpretation arises lawyers should have reeard to the two Jenard Reports (on the 1968 Convention and the

7