The Gazette 1992

GAZETTE

DECEMBER 1992

development is proceeding which is authorised by Permission granted under Part IV of the 1963 Act but which has not been or is not being carried out in conformity with the Permission because of non compliance with the requirements of a Condition attached to the Permission or for any other reason. Again, application can be made either to the High Court or to the Circuit Court. Section 19 of the 1992 Act has effectively abolished the old distinction which existed between sub-section 1 cases and sub-section 2 cases under section 27 of the 1976 Act. (A) application for injunction to the High Court or to the Circuit Court in relation to development carried out without Permission shall not be made once five years have passed from the date on which the development was substantially completed. (B) application for injunction to the High Court or to the Circuit Court in relation to an unauthorised use where no Planning Permission at all has been obtained for the change of use shall not be made after five years from the date when the use first commenced, no matter whether the use commenced on or before 1 January, 1994 (the date on which paragraph (g) of s.19 (4) comes into operation. (Commencement order S.I. No. 221/1992) The effect of this will be that the five year period will in some cases already have expired, but an application for an injunction can still be brought before 1 January, 1994. (C) application for injunction to the High Court or to the Circuit Court in relation to authorised development where there is non compliance with the Condition cannot be made after the expiration of five years. The five The time limits applying to section 27 may be summarised as follows:

year period starts to run at the end of the life of the Planning Permission that is to say, in a normal case, the five year period provided for under section 2 of the 1982 Act or such greater period as may have been prescribed or such extended period as may be allowed under sections 2 and 4 respectively of the 1982 Act. The effect of this will be that the five year period will in some cases already have expired, but an application for an injunction can still be brought before 1 January, 1994.

on behalf of the defendant is an established practice in litigation where a plaintiff is seeking compensation for injury suffered allegedly at the hands of the defendant(s) his/their servants or agents. Such independent medical examinations are carried out in consultation with the plaintiff's doctor or consultant. Formerly, the practice was for the plaintiff's doctor or consultant to be physically present at such an examination. In recent years, that practice has largely been departed from and more commonly the defendant's doctor or consultant consults with the plaintiff's doctor or consultant by telephone or by post prior to the examination taking place. In these circumstances, the plaintiff is examined alone by the consultant or doctor for the defendant. The function to be discharged by the defendant's doctor or consultant is to establish the nature and extent of the injuries allegedly sustained by the plaintiff and it is well established that no question should be asked of the plaintiff during the course of the examination the answer to which might have a bearing on the issue of liability between the parties to the litigation. The reason for this is that the proper forum for the establishment of the facts and the determination of the issues is the court. A number of communications have been received in recent times from solicitors concerned that at such examinations questions are occasionally asked which have a bearing on the liability issue. It is appreciated that a thin line divides categories of questions directed to establish what the nature and the extent of the injuries are from questions touching on the liability issue, but it is precisely because the defendant's doctor or consultant must confine himself to the former that consultation with the plaintiff's doctor or consultant is an essential part of the procedure whereunder independent medical examinations are carried out.

John Gore-Grimes

Insider Dealing

The attention of practitioners is drawn to the provisions of Statutory Instrument No. 131 of 1992. This Statutory Instrument takes the form of a declaration expressed to be for the purposes of "the removal of doubt" that section 108 of the Companies Act, 1990 does not apply to dealing outside the State in securities. Section 108 is the basic provision under which insider dealing is made unlawful. Accordingly, it appears that even where the securities being dealt in are Irish securities and/or the parties to the dealing are Irish, an insider dealing effected outside the State is not unlawful for the purposes of the 1990 Act and will therefore not attract the civil liability provided for in Section 109 of that Act." Company and Commerical Law Committee

Independent Medical Examination of Plaintiffs

The Litigation Committee has sent the following letter to the Irish Medical Council:

"Dear Sir,

Independent medical examinations of a plaintiff by a doctor or consultant

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