The Gazette 1989

GAZETT INCORPORATE D LAWSOCIETY OF IRELAND Vol. 83 No. 3 March 198 Viewpoint

MARCH 1989

GAZETTE

In this Issue

Viewpoint Defective Building Work: 77 81 Younger Members' News 83 Eurlegal 85 Data Protection Act 1988 89 Practice Notes People and Places 91 92 Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act, 1988 94 Obituaries 106 Book Reviews 107 Professional Information 109 Executive Editor: Mary Gaynor Committee: Geraldine Clarke, Chairman Eamonn G. Hall, Vice -Chairman John F. Buckley Gary Byrne Patrick McMahon Charles R. M. Meredith Who should pay? From the President 75 Advertising: Seán Ó hOisín. Telephone: 3 0 5 2 36 3 0 7 8 60 Printing: Turner's Printing Co. Ltd., Longford. The views expressed in this publication, save where otherwise 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. Daire Murphy John Schutte

Trading in the UK who has been a vociferous advocate of breaking down restrictive practices in the professions has strenuously objec- ted to barristers being permitted to enter into partnership with solicitors. It might have been thought that this type of partnership would have been the most obvious develop- ment if the intention is to provide more ready access to legal services for the lay man. It would be amusing to watch these events from the safety of a neighbouring jurisdiction were it not for the usual danger of "spill over". It may be no bad time for us to consider how effective the provision of legal services is in Ireland and whether any structural changes need to be made par- ticularly in relation to the provision of advocacy services. It has been suggested that actual or anticipated disapproval by judges has discouraged solicitors from exercising their rights of advocacy to any great extent in the higher Courts. It is difficult to quantify the extent of the basis for this sug- gestion. Another explanation may be that there are in fact only a small number of solicitors who would regard themselves as sufficiently skilled in advocacy to warrant their conducting cases, particularly in the High Court. In addition there is the cost factor. Only the most modest firm of solicitors will have such low operational costs as members of the Bar. While the level of fees charged by some barristers does not always reflect their low operating costs, nonetheless it is a factor which enables them to compete on a price basis, certainly at the Circuit Court level. Much has been made of the need to preserve the independence of the Bar but is it not time that the Bar looked again at whether its services could be more sensibly provided by partnerships or associ- ations of Barristers rather than by the exclusively independent prac- titioner. •

The sight of the serried ranks of the judicial and bar establishment in England and Wales ranging them- selves to oppose the Lord Chan- cellor's proposals for radical alterations to the organisation of the profession of advocate is fascinating. The piquancy of the situation is enhanced by the fact that Lord Mackay's political master is herself a member of the Bar. Two of the principal changes proposed in the Green Papers, the abolition of the Bar's exclusive right of existence in the Higher Courts and the entitlement of Lawyers to take cases on a "no foal no fee basis", are not novel in this jurisdiction. Solicitors have of course had the full right of audience in the High Courts here since 1971. While the UK is not noted for looking beyond its own shores for examples when it is preparing legislation, it may be that the limited effect of the extension of the right of audience to solicitors in this jurisdiction has persuaded the Lord Chancellor to propose a more radical and complicated system for England and Wales. The creation of a new profession of advocate, open to barristers, solicitors and indeed non lawyers who meet the educational criteria seems certain to create further unnecessary bureaucracy. Develop- ments in other Common Law juris- dictions, in Australia and Canada, seem to have brought about a change in the advocacy profession by evolution rather than by the imposition of complex new struc- tures. In some of these jurisdictions the normal progress to the status of specialist advocate is by way of what we would call the solicitors' profession. Having spent a number of years as "solicitors" some elect to become specialist advocates in the Barristers' profession. Another proposal to permit law- yers to enter into multi disciplinary practices has brought forth one of the more bizarre comments. Sir Gordon Borrie, the Director of Fair

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