Issue july 98...Title Issue july 98 Author Nuala Redmond Created Date 3/20/2003 12:30:03 PM

Cover StoryAll down the line

Over 120 million people worldwide are now using the Internet regularly, and an increasing number of companies are doing business on-line. Grainne Rothery looks at the Internet as a means of communication and as a research tool for the legal profession

Splitting the differenceRecent changes in family law mean that family law solicitors must have a working knowledge of conveyancing practice and conveyancing solicitors must have a knowledge of family law. Joan O’Mahony outlines some of the issues that practitioners must bear in mind

Mean dispositionsChildren who feel they have been unfairly treated in the wills of theirdeceased parents can apply to the courts for relief under section 117 of theSuccession Act. But, as a recent Supreme Court judgment shows, even seem-ingly straightforward cases can be hard to prove. Maureen Cronin reports

Copy catch!Recent attempts to strengthen the rights of copyrightowners may have had precisely the oppositeeffect. Niall O’Hanlon explains how we slippedup in implementing an EU directive proper-ly and why the Government could finditself in trouble as a result

Defusing themillennium timebomb

Acres of newsprint have been devoted to predic-tions that the millennium date change will causechaos for the incalculable number of businesses world-wide that rely on computer systems. Julie Smyth and KerrenDaly suggest some practical solutions

JULY 1998 LAW SOCIETY GAZETTE 1

CONTENTSCONTENTS

REGULARS

President’s message 3

Viewpoint 4

Letters 7

News 9

Webwatch 15

Briefing 31

Council report 31

Practice notes 32

Legislation update 35

Eurlegal 37

ILT digest 41

People and places 48

Apprentices’ page 51

Book reviews 53

Professional information 55

14

16

18

23

28

JULY 1998JULY 1998

The views expressed in this publication, save where otherwise indicated, are theviews of contributors and not necessarily the views of the Council of the Law Society.The appearance of an advertisement in this publication does not necessarily indicateapproval by the Law Society for the product or service advertised.

Published at Blackhall Place, Dublin 7, tel: 01 6710711, fax: 01 671 0704.

Editorial Board: Dr Eamonn Hall (Chairman), Conal O’Boyle, Mary Keane, Ken Murphy, Michael V O’Mahony, Helen Sheehy

Editor: Conal O’Boyle MA

Reporter: Barry O’Halloran

Designer: Nuala Redmond

Editorial Secretaries: Andrea MacDermott, Catherine Kearney

Advertising: Seán Ó hOisín, tel/fax: 837 5018, mobile: 086 8117116,10 Arran Road, Dublin 9. E-mail: [email protected]

Printing: Turners Printing Company Ltd, Longford Subscriptions: £45 Volume 92, number 6

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No English fans need apply (see page 5)

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PRESIDENT’S MESSAGEPRESIDENT’S MESSAGE

This month I wish to touch brieflyon the area of the proposed des-ignation of solicitors pursuant to sec-tion 32 of the Criminal Justice Act,1994. As you know, the 1994 Actgives effect inter alia to the EUmoney laundering directive.However, as part of its anti-crimepackage, the Government has nowproposed extending the reach of sec-tion 32 of the 1994 Act to solicitors.It is important to bear in mind thatthe solicitors’ profession is alreadycovered under the Criminal JusticeAct by virtue of the provisions of section 31, which makes it an offencefor anybody to advise or assist in relation to the transfer or removal ofany property which represents the proceeds of drug trafficking.

The Law Society has grave concerns about the proposed designationof solicitors, particularly in relation to the impact it might have on the indi-vidual’s constitutional right against self-incrimination and on a client’sconstitutional rights of access to a solicitor. Designation could mean thatsolicitors have to report to the Gardaí even the mere suspicion of criminalactivity on the part of a client who might have shared information with hissolicitor on a confidential basis. It is inherent in the very nature of citizens’rights of access to a solicitor that they must not be impeded by fear or sus-picion from obtaining the legal advice they require. This right could becompromised by the very possibility of compulsory legislative disclosureby a solicitor.

The privilege which surrounds professional communications is no meretechnical rule of law, but is the very foundation of the relationship betweensolicitor and client. The client must feel entirely free to be completely openand candid with his solicitor, absolutely confident that nothing will berepeated, for only thus can a solicitor give the most effective advice. TheLaw Society regards any violation of these rights with the utmost concern,and I cannot stress strongly enough the necessity for these issues to beaddressed prior to any designation of the solicitors’ profession.

Solicitors are anxious to play their full part in the fight against crime, butthe citizen’s constitutional right to legal privilege and confidentiality in

relation to what they tell their solicitor,as well as those other important con-stitutional rights against self-incrimi-nation and access to legal advice, mustnot be undermined.

While unashamedly supportingthe long-established principles whichunderpin the solicitor/client relation-ship, the profession must be equallyaware of new developments affectingboth lawyers and society in general.You will note that, on page 9 of thisissue, there is a report on the workdone by internationally-renowned

defence lawyer Barry Scheck. While he may be more famous for his rep-resentation of high-profile clients such as Louise Woodward and OJSimpson, Scheck sees his primary role as the promotion and developmentof new evidentiary systems involving DNA, which he believes shouldsurmount the traditional rules governing the exhaustion of legal remedies.Undoubtedly his work raises questions about the proper balance betweenthe rights to privacy of the individual and the necessity to vindicate inno-cent convicted persons, but it also highlights the way in which techno-logical advances can enhance traditional procedures.

The cover story this month deals with the impact of technologicaldevelopments on the day-to-day practices of solicitors. The probability isthat e-mail and the Internet will quickly become as integral a part of everysolicitor’s office as the fax machine. The Law Society is currently devel-oping a Web site designed to provide the profession with the most up-to-date source of relevant information and we hope to go ‘live’ in theAutumn.

Whether it’s in the DNA world of Barry Scheck, on the World WideWeb or in the familiar surroundings of our own offices, we must be pre-pared to embrace progressive developments while steadfastly adhering totraditional values and principles and protecting the citizen’s constitution-al rights.

Laurence K Shields President

Section 32 and the rights of clients

4 LAW SOCIETY GAZETTE JULY 1998

VIEWPOINTVIEWPOINT

Recently I read a tribute to thejudges of the District Court. Itwas written by Sir JamesO’Connor, solicitor, barrister andjudge extraordinary in 1925. SirJames’s tribute was contained inthe preface to A digest of criminaland quasi-criminal law (1925) bybarrister George Gavan Duffy,which itself was written as a sup-plement to Sir James’s own bookThe Irish justice of the peace.

First, it may be appropriate tomention something about SirJames. Sir James was admitted asa solicitor in Ireland in 1894 and,in 1900, having ceased to be asolicitor, he was called to the Bar.Having taken silk in 1908, hebecame Solicitor General forIreland in 1914, Attorney Generalfor Ireland in 1917, judge of theChancery Division in 1918 and,some months later, a Lord Justiceof Appeal at the age of 46. Hewrote several textbooks includingThe licensing laws of Ireland, TheMotor Car Acts, The Irish justiceof the peace and History ofIreland 1798 to 1924. Retiring onthe abolition of the Court ofAppeal in the new Irish State, SirJames became a member of thePrivy Council and received aknighthood in 1925. He then prac-tised at the Bar in England.Subsequently he returned toIreland and was readmitted as asolicitor on certain terms. He diedon 29 December 1931.

In his preface to the Digest, SirJames noted that the evolution ofmodern society had immenselyincreased the range of the judge’sduties in the District Court. Hepointed out that in earlier days the

category of criminal offences wassmall and the offences themselveswere of a quality that had nothingsubtle or complex about them.They were, in the main, assaultsupon the person or property of asimple, direct, visible character.But he noted that by 1925 thingshad changed. ‘We are becoming,each day, more and moremachined units of the State, andhave to regulate our conduct bymultifarious and constantlyincreasing statutes and rulesintended for the public good’, hewrote. How little has changed! SirJames noted that the enterprisingbut dishonest vendor of com-modities lived in an atmospherefrom which at all times publicfunctionaries were liable toemerge with drastic powers. Henoted that the possibilities offuture police and magisterialinquisition and punishment werelimitless. He noted that when theWellsian concept of an apparatusthat would enable the eye topierce a brick wall and the ear tohear anything within a five milerange took shape, ‘we may expect

a monopoly [of truth] in thejudges and the police who willuse such devices to see if our tapis wasting water, or if our lips areuttering any treasonable formula’.

A great power in the landThe judge of the District Courthas become a great power in theland, according to Sir James. Thejudge brings to the discharge ofthe duties of office a trained legalmind, ‘a nose for evidence’ and acertain ‘aloofness’ appropriate tothe office.

Sir James considered, in effect,that a judge is like a fish out ofwater unless he has a book by hisside. Urging judges to read theIrish Law Times, he noted that thesight of certain legal publicationson the judge’s breakfast table onMonday mornings would enablethe judge to begin the week withthe reflection that he is in touchwith the world of legal thought.

Sir James then contrasted mag-istrates of an earlier period withthe efficient new judge of theDistrict Court. He noted that in

previous times some magistratesknew no law and vaguely trustedto Divine inspiration, which wasnot usually forthcoming, to helpthe magistrate out of difficulty.‘He was domineering, choleric tothe verge of apoplexy, and some-times bibulous’, he wrote. NowSir James noted that judges of theDistrict Court are ‘models of dap-per efficiency and legal lore – intwo languages’. Under theirsuperintendence the judicial workprogresses smoothly. GeorgeGavan Duffy, later president ofthe High Court, noted in his fore-word that the creation of theDistrict Court established a newlandmark; the experiment hadbeen a signal success and theauthority of the judge in theDistrict Court had grown steadily.He noted that the jurisdiction ofthe court had expanded withalmost bewildering rapiditybetween British statutes, rules andorders, and the plethora of IrishActs, decrees and regulations, tosay nothing of years of accumula-tion of Irish, Scots and Englishcase law.

In advising District Courtjudges, Sir James concluded: ‘Bemerciful to the first offender. Wehave all offended, not only oncebut many times. Encourage everyhonest attempt at improvement’. Ihave had the privilege of appear-ing professionally before manyjudges of the District Court andcan state with pride that thesewords of advice have been ful-filled to the letter.

Dr Eamonn Hall is Chief LegalOfficer with Telecom Éireann plc.

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In praise of the District Court

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VIEWPOINTVIEWPOINT

World Cup fever, as well asproviding a month ofexhaustive football coverage, hasraised a number of matters ofinterest to lawyers, ranging fromthe deportation of hooligans to thethorny question of whetherWimbledon FC should move toDublin.

As with so many other issues,European Community law has itspart to play in determining theanswer. The impact of Communitylaw on sports in general is consid-erable. In particular, where ques-tions of movement of persons areconcerned, it will almost alwaysbe the case that national rules andregulations will be subservient tothe superior application ofCommunity law. This is the caseregardless of whether we are talk-ing about players, teams or fans.

As long ago as 1974, in a casebrought against the InternationalCycling Union, the European Courtrecognised that the composition ofnational sports teams is not affectedby the prohibition on discrimina-tion on grounds of nationality. Butthe court also pointed out that thisexemption from the normal rule,which is otherwise the guidingprinciple of Community law,applied only in those cases wherethe formation of the team was pure-ly a question of sporting interestand as such had nothing to do witheconomic activity.

After the famous Bosman casein 1995, it is now accepted thatthe rules of the EC treaty applythroughout professional soccer.Modern professional soccer is, atleast in most of Europe, a com-mercial economic activity. Thecontent of Premier League teamsin England is certainly not ‘pure-ly a matter of sporting interest’,even if this is what concerns thefans most of all. But the fans areonly part of the picture. The otherimportant participants are theplayers, other employees of theclubs, and the shareholders.

So while the English nationalteam may still be composed solelyof English nationals, no restriction

is permitted on the number ofplayers from other Member Statesthat may take part in an EnglishPremier League team.

That does not mean thatCommunity law has no part inregulating the World Cup. Twoissues immediately come to mind.First, the appalling allocation oftickets by the French was theobject of attention for theEuropean Commission’s compe-tition authority. The restrictivepractices and abuses involved inadvertising and selling the ticketswas alleged to be in breach ofarticles 85 and 86 of the ECtreaty.

Drunken EnglishSecondly, the activities of theFrench police in tackling footballhooligans must be appraised inthe light of the rights ofCommunity nationals to travel tosee their national teams play. Allfans who travel to see a teamplay in another Member Stateare, by their nature, takingadvantage of their right underCommunity law of freedom toreceive services. Article 59 ofthe EC treaty gives them theright to travel. Limitations on theright to freedom of movementmay be justified only on groundsof public policy, public security

and public health.Any exercise of such a limita-

tion by the national authoritiesmust comply with another funda-mental principle of Communitylaw – proportionality. In otherwords, the French police must actwithin clearly defined limits. Inparticular, it is quite unlawful tobrand all fans, or all English fans,or even all drunken English fans,as a threat to public security.Deportation may only be carriedout in respect of specific individu-als against whom there is suffi-cient evidence to show that theyconstitute such a threat. It is not tobe used as a weapon pour encour-ager les autres. (Somebody mightalso care to tell the British PrimeMinister, Tony Blair, that deporta-tion from another country is noground for dismissing that personfrom his employment.)

On the question of WimbledonFC migrating to Dublin, a numberof issues arise for consideration.First, it is obvious that the pro-posed transfer falls within thescope of application of the ECtreaty. EC law guarantees the rightto transfer an economic activityfrom one place to another withinthe Community. (It is true thatthere may be ancillary issues con-cerning the means of transfer, suchas whether a new Irish company

might need to be established inorder to comply with tax and com-pany law obligations, but these areof no real concern for present pur-poses.) It follows that the share-holders of the Wimbledon clubhave the right under Communitylaw to move to Dublin.

The next question is whethereither the English or Irish footballassociations could refuse to allowWimbledon to play in the EnglishPremier League. That involvesmuch more difficult questions ofpublic policy, which will no doubtbe hotly debated in the monthsahead. A recent, wholly unscien-tific, straw poll carried out in aLondon pub among my Englishlawyer friends one Friday eveningfound an overwhelming desire tosee Wimbledon move to Dublin,so that they could have an excusefor a weekend in Ireland. Ofcourse, there are important issuesconcerning the knock-on effect onIrish clubs. But, after France ’98,the decisive issue might bewhether the Irish really want thetrouble associated with Englishsoccer spilling onto their streetsevery fortnight.

Conor Quigley is a barrister spe-cialising in European Union lawand practising at Brick CourtChambers, London and Brussels.

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Eat football, drink football, fight football!

Have thug, will travel: an English ‘fan’ is arrested by French police

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Letters


VIEWPOINTVIEWPOINT

Dumb and dumberFrom: Malachy Boohig,Malachy Boohig & Company, CoCork

Idiscovered the following com-ments from medical records in arecent copy of the Readers’ digest.They have definitely not been doc-tored:● ‘Since the patient stopped

smoking, his smell is beginningto return’.

● ‘The patient is a 65-year-oldwoman who fell. This fall wascomplicated by a lorry rollingover her’.

● ‘For his impotence, we will dis-continue the medication andlet his wife handle him’.

● ‘She is quite hard of hearing. Asa matter of fact, she can’t hearat all in the left eye’.

● ‘She has no rigours or shakingchills, but her husband statesthat she was very hot in bed

last night’.● ‘Sinuses run in the family’.● ‘He was bitten by a bat as he

walked down the street on histhumb’.

● ‘The patient was advised toforce fluids through his inter-preter’.

● ‘She is to refrain from sexualintercourse until I see her in theoffice.’

From: Shaun ElderShaun Elder Solicitor, Limerick

Recently I discovered an inter-esting typo. When writing tothe local garda superintendentseeking information about a case,a particular member of the forcewas referred to as ‘DeceptiveGarda X’. What an accolade!

Malachy Boohig wins the bottle ofchampagne this month.

From: Richard Irwin, IrwinKilcullen & Company, Cork

Iwas delighted to see your articleon ten of Dublin’s top pubs pub-lished in the June issue of theGazette. No doubt each of thesehighly profitable enterprises wasmilked for a handsome sum inreturn for this publicity. Very fewmembers of the licensed tradehave had such a rare and potential-ly lucrative opportunity to reachevery solicitor in the country insuch a well presented high-techformat. No doubt we will allreceive news of a reduction in ourlicence fees for the coming year.

On the other hand, I could bewrong. Maybe some of my contri-bution to the Law Society has beenspent on producing this article. Ifthis is the case, I take strongexception and consider it a profli-gate waste of resources.

Less is more?All I expect from the Gazette is

to be kept up to date with the lat-est legal developments by way ofpractice notes and articles. We donot need a glossy format or to payfor other people to advertise in amagazine which we fund. It wouldbe preferable to see the resourcesof the Law Society being spent onbeefing-up practical assistance topractitioners rather than financingthis type of article. I think that myviews reflect those of many of mycolleagues.

The editor replies:Actually, last year all ten issues ofthe Gazette cost you the grandtotal of 60p. This year we are con-fident that the magazine will makea profit for the first time in its 90-year history and actually givesomething back to the LawSociety – still, I take your point.


NEWSNEWS

Tough statutory measures willbe needed to protect suspects’rights when Gardaí begin usingDNA databanks in criminal inves-tigations, according to BarryScheck, the American lawyer whosuccessfully defended LouiseWoodward and OJ Simpson.

Scheck is best known for his rolein a number of high-profile criminaltrials in the United States but hespends most of his time running theInnocence Project in the prestigiousCardozo Law School in New York.The project has so far helped exon-erate 55 wrongly-convicted prison-ers with the help of DNA evidence.

But despite the fact that DNAevidence is powerful enough tooverturn convictions that havestood for ten or 20 years, Schecktold the Gazette during his recentvisit to Ireland that the storage anduse of this information has to bestrictly regulated by legislation toensure it is not abused and does notitself lead to miscarriages of justice.

‘You have to have a lab with thehighest standards in quality assur-ance and you need to train thepolice to collect the evidence so itsintegrity is preserved’, he said.‘When the samples are stored, youneed to make sure that no-one canaccess them except for the purposesof identification in a criminal case’.

DNA evidence is used in crimi-nal cases in this jurisdiction andthere are plans to establish a data-bank of samples which would allowGardaí to compare evidence takenfrom a crime scene with stored sam-ples. But Scheck warned that safe-guards need to be laid down clearlyin legislation before we set up sucha databank.

‘Before anyone goes down theroad of collecting and storing DNAsamples, society needs to make adecision about how it’s going to beused, and that means you need leg-islation’, he stressed. The safe-guards should also ensure that sam-ples taken from suspects who aresubsequently acquitted should bedestroyed.

In the US, samples from convict-ed violent felons and those taken

from crime scenes are the onlytypes stored. But in the UK, bio-logical evidence taken fromarrestees – who may be cleared –are taken and stored along withthose from people convicted offelonies or misdemeanours,including juveniles. There are cur-rently 250,000 samples banked inthe UK, a figure set to reach fivemillion by 2010. The US has abacklog, largely because differentstates use different testing meth-ods. The system in both countriesallows the authorities to comparesamples taken from the crimescene with those from the existingdatabank and from suspects, ifthere are any.

Scheck stressed that DNA evi-dence is a powerful tool because itholds so much intimate informa-tion. The samples can pinpointracial characteristics, as well as awhole range of details about theindividual and their family, such astheir susceptibility to particulardiseases and even their hair colourin some cases.

The potential for abusing thisinformation is huge, he said. At abasic level, samples could be mis-handled or contaminated, as theywere in the OJ Simpson case. Inanother scenario entirely, the infor-mation could theoretically be used toincarcerate innocent people on thebasis that they were genetically dis-posed to crime.

Scheck pointed out that the law inone American state allows for thecivil commitment of people provento be child sex offenders. ‘Thestatute talks about “inherent charac-teristics”. Profiling could be used toshow this, as there is a suspicionamongst geneticists that the causesof child abuse could be geneticrather than environmental’, heargued during a lecture at TrinityCollege, Dublin, recently.

But he does believe that DNAevidence has revolutionary potential.He told the story of Marine CorporalKevin Greene, who was convictedon his wife’s testimony that he beather into a coma during the finalmonth of her pregnancy. Eighteenyears later, as the police were com-piling their DNA databank, theycame across a series of unsolvedmurders, carried out by the ‘bed-room basher’. All the victims werewomen who had been raped andbeaten to death in their own beds.

Subsequent DNA comparisonsshowed that a man named Parker,already in jail for another offence,may have been the killer. When hewas questioned, Parker confessed tothe bedroom killings, and to theattack on Greene’s wife. DNA evi-dence also showed he was responsi-ble for this. Greene was released –and has since divorced.

BRIEFLYUnlucky strike for tobaccocompany in USALitigators had a lucky strike

against American tobacco giant

Brown and Williamson recently.

The company has been ordered

to pay £625,000 ($1 million) to

the family of Roland Maddox

(67), who died from cancer after

years of smoking its famous

Lucky Strike brand of cigarettes.

A jury in Jacksonville, Florida,

found that the company had

been negligent, made a defective

product, and conspired with

other tobacco product manufac-

turers to hide the dangers to

health posed by smoking.

Registrar vacancy in WexfordThe Department of Justice is

seeking a new county registrar

for Wexford. Both the Law

Society and the Bar Council have

been informed of the vacancy.

Anyone interested should contact

the Department’s courts division.

Builders to down toolsThe building industry will grind to

a halt later this month – but only

for its annual two-week holiday.

Workers will down tools on 20

July and return looking tanned

and fit on 4 August, after the

bank holiday. From this year,

builders will take their holidays at

the end of July instead of at the

traditional time of early August.

Ireland ratifies new ILO conventionsIreland has ratified two Inter-

national Labour Organisation

conventions aimed at improving

conditions in the catering and

exploration industries. ILO

Convention 172 requires the

Government to ensure that all

hotel and restaurant workers are

not excluded from minimum

standards governing working

hours adopted at national level.

Convention 176 demands that

the State appoint a competent

body to monitor and regulate

health and safety in mines. It also

lays down employers’ responsibil-

ities for protecting their workers’

safety in mines.

Woodward lawyer warns on DNA evidence

Compensation Fund payoutsThe following claim amounts were admitted by the Compensation Fund

Committee and approved for payment by the Council at its meeting in

June: Michael Collier, 2 Ross Terrace, Malahide, Co Dublin – £2,413;

Francis G Costello, 51 Donnybrook Road, Donnybrook, Dublin 4 –

£706.25; Dermot Kavanagh, 2 Mary Street, New Ross, Co Wexford –

£4,264.75; Michael Owens, 5 Lower Main Street, Dundrum, Dublin 14 –

£9,588.

Barry Scheck: ‘society needs tomake a decision’

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NEWSNEWS

Some solicitors are planning tochallenge the proposed ban onadvertising for personal injuryclients as soon as the new rulesbecome law. Irish members of theBritish-based Association ofPersonal Injury Lawyers (APIL)could take the State to court to getthe law overturned.

The Solicitors’ (Amendment)Bill, 1998 prohibits ‘advertisingexpressly or by implication refer-ring to claims for damages for per-

Solicitors to challenge PI advertising ban

sonal injury’. The legislation –sparked by the public outcry overthe army deafness claims – isbacked by the Law Society. Butthe move has been criticised byAPIL’s regional organiser, Dublinsolicitor John Schutte, who claimsthat it is unconstitutional as itseeks to restrict the public’s rightto seek redress for personal injury.

He confirmed to the Gazettethat APIL is canvassing its 25Irish members on their views, and

said it would then make a finaldecision on what steps to take.

But whether or not the organi-sation decides to mount a chal-lenge on behalf of its members,Schutte said that individual solici-tors may decide to act themselvesto contest the ban. ‘There is agroup of Dublin solicitors whowill challenge it. They haveretained a senior counsel whosays there is a good case on twopoints of law’, he said.

I reland’s booming multinationalsector has lured the firstAmerican law firm to open anoffice in this country. Chicago-based Schiff Hardin & Waite hasaffiliated with Dublin solicitorsMcKeever Rowan.

The American firm will pro-vide services to clients in Ireland,the UK and Europe who want toenter the US market or expandthere. The link-up will also giveMcKeever Rowan a base in theUS, allowing it to win new clientswho want to take advantage ofbusiness opportunities in the EU,where the Dublin practice haslocal law firm affiliations.

The Chicago firm’s move toIreland was driven by one of itspartners, James Fahy, who emi-grated to the US from Galway 17years ago. He is now heading up

to base its European operationhere. ‘Some 25% of all US invest-ment in the EU is in Ireland, whichmakes it a good location for anAmerican firm’, he said.

Fahy added that his firm spenttwo weeks seeking a suitable Irishaffiliate, and chose McKeeverRowan because of the similaritybetween the two companies. Bothare long-established commercialfirms which specialise in litigationand general legal work. ‘We bothfelt that there were mutual areaswhich we could develop’, GerardWalsh of McKeever Rowanexplained.

Under the terms of the deal,both firms will remain indepen-dent and be solely responsible fortheir own work. But they will worktogether on a non-exclusive basisto serve existing and new clients.

First US firm opens in Dublin BRIEFLYScots solicitors ‘must takepart in government’The Scottish Law Society’s new

President wants his members to

take an active role in the coun-

try’s new legislature when it is

established later this year. In his

first public statement, Philip

Dry urged lawyers to stand for

election and stressed the

importance of law reform in

the new Scottish Parliament.

‘Solicitors must be seen to be

taking the initiative and play-

ing a proper and appropriate

role in the way that Scotland is

governed’, he said.

1,200 separation cases listedClose to 1,200 judicial separa-

tion cases were waiting to be

heard at the beginning of the

year, according to the latest

figures from the Department

of Justice. In the 12 months to

31 July last year, 1,382 separa-

tions had been granted and

1,223 new applications had

been received. But 1,534 cases

were carried forward from the

previous 12 months, leaving

1,126 applications on hand.

IVUTEC appoints Cork firmIVUTEC has appointed the

Cork-based Michael Daly

Consultancy to act as the inde-

pendent financial consultancy

for training in the use of its

Italax professional practice

management software. Italax

claims to be the most common-

ly used accountancy software in

Irish solicitors’ firms

New brochure on divorceThe Law Society’s Family Law

and Civil Legal Aid Committee

has produced a brochure on

divorce which members can

send to clients and potential

clients seeking information on

this area. The brochure was

produced in response to reports

from firms that they have had a

high number of enquiries on

this subject. The brochure can

be obtained from the Society at

a cost of £6.65 for a pack of 25.

the American practice’s Dublinoffice at the McKeever Rowanheadquarters. He told the Gazettethis month that the high level ofAmerican investment in Irelandwas central to his firm’s decision

The 1999 edition of the LawSociety Yearbook and diarywill be ready to post out by earlyNovember. The diary is specifi-cally designed for solicitors andcontains information and usefulphone numbers, including detailsof law terms, government depart-ments, financial institutions,State-sponsored bodies and legalprofessional services. As a spe-cial bonus, everyone who getstheir order in by post or fax by 30September will be placed in aprize draw. The winner will

John Donnelly and Gary More,Directors of Ashville Media Group,

present SBA chairman TomMenton with a cheque for £7,500

Law Society Yearbook and diaryAll proceeds from the sales of

the diary go to the profession’svoluntary charity, the Solicitors’Benevolent Association (SBA),which has benefited greatly inrecent years. ‘The benevolentassociation greatly appreciates allthose members who purchased adiary this year’, says SBA chair-man Tom Menton, ‘and we wantnext year’s diary to be even moresuccessful’. Last year the associa-tion paid out over £188,000 tothose needing assistance – anincrease of over 40% since 1990.

receive a weekend for two inDromoland Castle in CountyClare.

James Fahy: good location


Adefinitive estimate of the number of Irish people withInternet access is hard to come by. In a very competitivemarket, Internet service providers (ISPs) are notoriouslycagey about their subscriber numbers. However, LauraLynch, marketing executive at Ireland On-Line, says that

approximately 300,000 Irish people currently have access to the Internet.In addition to home and work accounts, this figure includes people whohave access in colleges and libraries.

Martin Maguire, managing director of Dublin-based ISP ConnectIreland, says that the growth rate in the numbers getting connected to theInternet over the last year is between 120% and 140%. Laura Lynch saysthat, while the industry has seen significant growth over the past six toeight months, the coming year is expected to see the largest increase yet.‘Internet years are three months long – in other words, the market is con-stantly changing’, she says. ‘I use the example of the mobile phoneindustry over the past two years as a good model of the expected growthrate over the coming year for Internet usage and connection’. (For therecord, the Irish mobile phone market has grown by an average of 72%a year since 1994. In the two years from April 1996 to April 1998, thenumber of mobile phone users increased from 158,000 to 520,000.)

Pressure to be on the WebRecent growth in Internet usage is due to a number of factors, not leastof which are the increasing ownership of high spec PCs, both at homeand in the workplace, and the ease and cheapness of getting connectedthrough an ISP. The Internet is also becoming an accepted medium initself: newspaper advertisements often carry e-mail and Web siteaddresses, as do magazine articles and television programmes. And asmore and more people get connected, all businesses face increased pres-sure to have access to the World Wide Web and to be contactable via e-mail. As they say, it’s not a case of if, but when and how, you get con-nected.

As far back as three years ago, Forbairt predicted that by the year 2000the Internet would be as fundamental to business as the telephone and thefax. Barry Rhodes of Esat-Net, which provides Internet access solely tocorporate clients, agrees with this view. ‘The most important reason forfirms to implement e-mail is that it is now so ubiquitous that other busi-

All downIt’s now reckoned that over 120 millionpeople worldwide have access to theInternet, with the European on-line

community accounting for 24 million of that. As a result, an increasing numberof companies are doing business on-line.

Grainne Rothery looks at the power of the Internet as a means of

communication and as a research tool for the legal profession


COVER STORY

n thenesses expect the organisations that they deal with to be able to send andreceive e-mail’, he says.

From a business point of view, and for the purposes of simplicity, theInternet can probably be divided into three basic applications: communi-cations, research and marketing. As a marketing tool, the Web is reallystarting to take off, both in a branding and a direct sales capacity. The lat-est survey carried out by the Irish Internet Association (IIA) shows that29% of respondents had made on-line purchases over the previous yearwhile 32% intended to do so over the coming six months. A report pub-lished recently by the e-Marketer, meanwhile, estimates that consumerswill spend $26 billion over the Internet by 2002. Within the same time-frame, electronic business transactions are expected to reach $268 billion.

At the moment, however, the most common use of the Internet is elec-tronic mail (or e-mail) which over the last couple of years has revolu-tionised the way in which people communicate with one another. TheIrish Internet consultancy Nua estimates the current number of businessusers of e-mail to be around 14.5 million.

According to Esat-Net, e-mail is the main factor behind the growth ofthe Internet and is accelerating its acceptance as a commercial communi-cations medium. Although the Internet offers numerous other facilities, e-mail is the primary reason that many businesses decide to go on-line,mainly because of its discernible and considerable productivity gains andcost savings. The specific benefits of e-mail for solicitors include analmost immediate means of communication with clients and associates,as well as a convenient way of storing and tracking correspondence.

In very basic terms, e-mail allows Internet users to send messages toother Internet users, regardless of their respective ISPs or where they arelocated in the world: if two people have e-mail addresses, they can com-municate with each other. Internet service providers supply each sub-scriber with a unique e-mail address and easy to use Windows-based soft-ware for sending and receiving messages.

Significant cost savings with e-mailThere are numerous advantages in sending messages electronically ratherthan by fax or through the post. First of all, it’s incredibly cheap: mostmessages or even batches of messages will be sent for the price of a localphone call (as long as your ISP can provide you with local call access) toany destination in the world. So although electronic messaging is unlike-ly to completely replace the telephone or fax machine in the next coupleof years, it can help to make significant cost savings by eliminating justsome of the day-to-day phone and fax calls.

E-mail is quick: it’s possible to send short, single-line correspondence,or even to attach word-processing documents, spreadsheets, graphic pre-sentations or sound files to messages, and to transmit them in a matter ofseconds. E-mail messages are digital so, unlike faxed documents, anyinformation received can be reused or modified. Recipients can open upspreadsheets and word-processing documents and modify them as if theyhad created the files themselves.

Electronic mail is also very reliable: messages are rarely lost in transit.Just to be sure, however, the sender can request notification when therecipient receives the message. Once they are sent, messages are stored inan electronic mailbox on the ISP’s computer until they are accessed bythe recipient. This means that a PC does not have to be switched on toreceive messages. Unlike a telephone answering machine, it also means

lineline PIC: ROSLYN BYRNE


COVER STORYCOVER STORY

The requirements for getting connected to the Internet vary considerablydepending on the size of the practice. A basic single-user connection hasthe minimum hardware requirement of a 486 PC with 8 Mb of RAM, amodem and access to a phone line. A higher spec machine and a fastmodem (33.6 kbps and above) will make the process of downloading Webpages a lot quicker and easier and will contribute significantly to theusability of the system.

Ireland now has a number of Internet service providers offering arange of connection options. Within the packaged options, a single userdial-up account can cost less than £10 a month, while a business connec-tion, offering four or five different e-mail addresses, won’t cost too muchmore. A number of ISPs also focus on the cor-porate market and offer complex business solu-tions which may be more appropriate for someof the larger practices.

Potential customers should ask the ISPs about

the availability of local access, their user-to-modem ratio, modem speeds,the amount of Web space supplied and the levels of support provided.

The legal profession is understandably concerned about sending con-fidential documents over the public domain. The ISPs say that there is agrowing number of hardware and software encryption products whichcan be implemented if organisations do require increased security fortheir e-mail. LawLink, meanwhile, offers the SecureMail private elec-tronic mail service, developed specifically for the legal community, fortransmitting confidential documents to colleagues and clients within aprivate network.

For simple dial-up accounts, it is usually possible to get connected in amatter of minutes once the account has been setup and the software sent out. While the softwareis usually reasonably self-explanatory, ISPs willgenerally talk users through the installationprocess over the telephone.

that a user can receive hundreds of messages atthe same time without any risk of the mailboxbeing overloaded. Larger companies with leasedlines and heavy communications requirementsoften choose to be on-line at all times. In suchcases, recipients are usually alerted when indi-vidual messages arrive.

Apart from the cost savings in terms ofphone and post bills, e-mail can help to increaseproductivity by reducing the amount of timethat has to be spent in composing and printingletters, faxes and mailshots, or even copyingdocuments onto floppy disks and either contact-ing couriers or personally delivering them. Despite all of its clearadvantages, however, there’s also a downside to electronic mail whichis starting to become apparent among its heavier users. Sending andresponding to an increasing number of messages can be very time con-suming. Pitney Bowes recently funded a survey called Workplace com-munications in the 21st Century, based on interviews and diaries frommore than 1,000 people. It found that 60% of executives, managers andprofessionals feel overwhelmed by the daily task of dealing with elec-tronic communications. Of those interviewed, some are sending andreceiving up to 190 messages a day.

In terms of researching information, the Internet, and the World WideWeb in particular, provide an increasingly important tool. The Web is ahuge multimedia library of information consisting of millions of differentWeb sites, which have been developed by public institutions, companies,the media and private individuals. Web sites can contain text, graphics,sound, video and photographs. They are usually linked to other relevantsites by highlighted words or phrases.

While most Web sites provide full access free of charge some requirecredit card details before certain parts of the site can be accessed. ‘Themain benefit of Web access for research is that the information is easy tofind, is up to date, and in the majority of cases is free’, says Barry Rhodesof Esat-Net.

The Web is indexed by a number of search engines such as AltaVista,Infoseek and Yahoo. Some individual Web sites have their own intelli-gent search tools which allow users to access specific information bykeying in relevant words or phrases. ‘One of the key benefits of theInternet is the ability to filter information overload’, says Frank Quinn,chairman of the Irish Internet Association. He points out that users mustspend a bit of time learning how to use search engines properly if theywish to access the best and most relevant information.

For lawyers, there is a huge amount of valuableand up-to-date information on the Web, bothlegal and non-legal, which can be accessed in amatter of minutes from the desktop. Kathy Leefrom LawLink points out that solicitors using theInternet have access to literally thousands ofsources on a variety of issues. ‘The LawLink on-line information service, for example, allowssolicitors to look at different areas of interest,including cases and decisions made all over theworld as they happen, news on industries, coun-tries, companies and law, links to Web sites ofinterest to the legal profession and stocks and

shares information’, she says. ‘Solicitors can also carry out searches fortheir clients and can access the legal diary and judgments’.

‘You can compare the Internet to having ten million consultants onyour payroll with an unlimited source of information on every topic’,says Laura Lynch. ‘There are numerous newsgroups relevant specifical-ly to solicitors that can be accessed day or night 365 days a year. Forexample, if a solicitor wants to find out if any precedent exists that willaffect a current case, he or she can source this information at the touch ofa button, rather than ploughing through previous case studies’.

The range of law-related sites on the Web is enormous. Good start-ing points for absolute beginners in this area include the Delia Venablessite (www.pavilion.co.uk/legal), the Hieros Gamos Web site(www.hg.org) and the LawLink pages (http://ireland.iol.ie/lawlink/).While by no means exclusively so, each of these sites provide goodinformation and links to other relevant legal pages. (See also Webwatchopposite.)

Many publications, meanwhile, including The Irish Times and TheTimes, have special Web editions which appear every day. While thesemay lack the traditional feel of a newspaper, they often have the advan-tage of including links to other related news stories or offer the opportu-nity to view related items carried in previous editions of the publication.Many of them also have searchable archives over a number of previousyears.

As with most areas of business, the legal profession is expected tomake increasing use of the Internet over the next couple of years. E-mailwill be the driving force for many, but most solicitors will also start tomake more use of the Web as an invaluable information sourcing tool.

Grainne Rothery is a freelance journalist specialising in technologyissues.

G

Getting started on the Net


WEBWATCHWEBWATCH

I t is estimated that the number of Internetusers doubles every 100 days. A glance atIreland’s legal directory on the World WideWeb Legal-island (www.legal-island.demon.co.uk) suggests that an ever-increasing numberof law firms are choosing to promote theirpractices through the Internet. Many firmsrealise that a presence on the Web can be aneffective and efficient way to reach a wideaudience at little cost. One such firm is DuncanGrehan & Partners (www.duncan-grehan.com/main.html) which boasts an impressive Webpresence with pages that are easy on the eyeand simple to navigate.

It’s clear, however, that Web sites are not thepreserve of the big commercial Dublin-basedfirms. Cleary, McInnes & Co based inLetterkenny, Co Donegal, have a simple buteffective site (www.letterkenny.com/cleary&co/) which allows the visitor to get to theinformation required quickly. The site obeysthe first rule of Web design: content is King.‘All singing and all dancing’ Web sites con-taining flashing logos and which are invariablyplastered with photographs of the firm’s part-ners usually take too long to download.They’re also unlikely to attract return visitors.

Another firm which has kept its ego well incheck on the Internet is John Glynn & Co,based in Tallaght, Dublin (www.tallaght.com/lawyer/index.html). This site is easy to accessand contains essential information only.

Publishers have also woken up to the impor-tance of the Internet, realising that it is a high-ly effective means of disseminating legal infor-mation. Butterworths has recently stated that itexpects all electronic publishing to be pro-duced via the Internet within five years. Thisstatement suggests that the CD-Rom (withwhich many lawyers are just becoming famil-

iar) is already destined for the IT museum.Among other things Butterworths’ current on-line service, called Butterworths Direct, pro-vides access, to legal news databanks and cer-tain law reports – but for hefty sums of money.A free month’s trial, however, can be obtainedvia its Web site (www.butterworths.co.uk).

The astute practitioner may be askingwhether it is wise to make large investments foraccess to such commercial databanks when somuch information can be obtained from the Webfor free. Judgments, for example, of bothEuropean Courts are now available on the Webas are countless documents relating to publicinternational law at the huge United NationsWeb site (www.un.org/). Closer to home, manyof the bigger Dublin law firms contribute to this‘free information databank’ by featuringreviews of recent legal developments on theirown Web pages. Mason Hayes & Curran(www.mhc.ie/), for example, currently haveWeb pages which deal with areas including theIrish Takeover Panel Act, 1997 and changes inenvironmental law.

All this information can be found in oramong millions of Web pages floating aroundin cyberspace, many of which are likely to beof no interest or benefit to the solicitor lookingto research a legal problem. The greatest chal-lenge facing most lawyers new to the Web is towork out how to find the information requiredin the shortest possible time. Thankfully, thistask has been made much easier with theLegal-island Web directory of legal links.Although this site had a few teething problemsat first, it is fast becoming the starting place formany research inquiries relating to law inIreland. More general search inquiries are usu-ally carried out with the help of a search enginesuch as AltaVista (www.altavista.digital.com)

WebwatchLaw firms and the Internet

In the first in a regular series, Mark Reid looks at Web sites and Web links of interest to the legal profession

or by visiting mamma.com/ which runs thequery through a number of engines simultane-ously.

Some practitioners are already feeling leftbehind by developments in information tech-nology and excluded from office conversationabout size of ram, cache or processor speed.Happily, there are now many good guides tocomputer technology and Internet develop-ments which can get even the most confirmedtechnophobes making reasonable use of newoffice technology fairly quickly. Many firmshave learnt the value of providing formal in-house training to staff which usually ensuresthat the partner’s word-processor does morethan gather dust on a desk.

Some firms have experienced problems of acompletely different kind, finding that employ-ees are spending an inordinate amount of timeon the Internet. Acknowledging this problem,

Cybersearch Ltd (www.cybersearch.co.uk)offers to do the on-line research for law firmsupon receipt of a ‘research brief’ and a fee.Stephen Devitt of Cybersearch explains thatlaw firms generally are not too concerned thattheir staff may be accessing illicit material onthe Web. The worry is that they are wastingvaluable fee-earning time looking for materialthat cannot be easily located among the mil-lions of Web pages that now exist.

For those who feel they cannot leave theWeb alone and are suffering from the newly-recognised complaint IAD (Internet AddictionDisorder), help is at hand. It’s available, ofcourse, on the Web at www.computeraddic-tion.com/.

Mark Reid is a freelance journalist with a par-ticular interest in the Web.

G


Recent changes in family law mean that family law solicitors must have a working knowledge of conveyancing practice and conveyancing solicitors

must have a knowledge of family law. Joan O’Mahony outlines some of the issues that

practitioners must bear in mind

U nder the provisions of section 9 of theFamily Law Act, 1995 and the FamilyLaw (Divorce) Act, 1996, courts canmake property adjustment orders in favour of aspouse (or another specified person) for thebenefit of a dependent member of the family,including transferring the family home fromone spouse to another. Property adjustmentorders and transfers of the family home are nowa regular feature of separations and divorce set-tlements. In these circumstances, family lawsolicitors cannot close their eyes to the implica-tions of such transfers from a conveyancingpoint of view. Furthermore, it is important forconveyancing solicitors to be aware of theimplications of the 1995 and 1996 Acts in boththe sale and/or purchase of properties that havebeen the subject of court orders or settlementsunder these Acts.

A number of typical situations are likely tooccur:● Transfer of the family home without a mort-

gage from one spouse to another● Transfer of the family home from one spouse

to another with the benefiting spouse takingover responsibility for the mortgage

● Transfer of the family home from one spouseto the other on payment of a specified sumby the transferee spouse to the transferorspouse, and

● Transfer of the family home from one spouseto the other with one mortgage being clearedoff and the transferee spouse re-financingwith an alternative lending institution.

These situations also apply to former spousesthat have since been divorced. What follows isa brief checklist of issues that need to be con-sidered by practitioners handling such cases.

architects’ certificates. If your client is financ-ing the purchase of the interest of the transfer-or spouse by new borrowings, you will berequired to complete a certificate of title andthe requirements of the lending institution inthis respect should be particularly noted.

Full requisitions on title. The questionalways arises as to whether or not a transferee’ssolicitor should raise a full set of requisitionson title and, if this is done, what the obligationof the transferor’s solicitor in respect of repliesshould be. There is as yet no definitive answeror guidelines from the Law Society.Requisitions should be raised either with yourown client or with the transferor’s, if co-opera-tive, dealing specifically with such issues as:

Title deeds. Because transfers of interest usu-ally take place under a ‘take it or leave it’ sce-nario, or reluctantly under a court order, the solic-itor for the proposed transferee should ensure thatcopies of the title documents are obtained prior tosettlement to ensure that they are in order. Thisrequires the consent of both spouses, which oftenis not forthcoming. Your client should be advisedthat it will be assumed that the title is in order upto the date of the mortgage.

Transfer subject to existing mortgage. If itis proposed that the property should be trans-ferred to one spouse subject to the existingmortgage, the consent of the lending institutionis required, as the transferor spouse will insiston being released from all liability on foot of themortgage. Such consent will be contingent onthe lending institution being satisfied about therepayment capacity of the transferee. It is vitalto note that, notwithstanding a court order, thelending institution cannot be compelled torelease the transferor from his or her liabilitieson foot of the mortgage.

The searches. Prior to making any settle-ment or to any court hearing, searches should bemade against the property and against the par-ties to clarify the situation with regard to mort-gages and judgments. Note that the registrationof a judgment mortgage on the title of a proper-ty which is registered in the joint names of ahusband and wife automatically severs the jointtenancy and this can have very serious conse-quences as the spouses may be relying on theproperty passing by survivorship on the death ofone or other of them.

Planning. Your client should be askedwhether there have been any developments tothe property which may have required planningpermission, bye-law approval, and appropriate

Splitting


FAMILY LAWFAMILY LAW

a) The planning and development situationb) Whether any notices have been servedc) Whether there are any disputes with neigh-

bours, or problems with regard to rights-of-way etc

d) Whether a freehold interest has been pur-chased, and

e) Whether there is an outstanding liability forresidential property tax.

Residential property tax. If a spouse trans-fers a residential property to the other spouse,then any residential property tax (RPT) owedby the transferring spouse is charged on thatproperty for a period of 12 years. On a subse-quent sale or mortgage the charge will not

remain unless the sale proceeds or mortgageamount exceed the relevant market valueexemption, but it is imprudent to leave thisissue to chance. It is essential that a clearancecertificate is obtained from the RevenueCommissioners on the transfer and applica-tion is made to the Revenue Commissionerson form RP54 (Finance Act, 1983, section110A(a)). Since RPT has been abolished since1997, this particular section will lose its rele-vance in the year 2008.

Capital gains tax. Three issues arise underthis heading:a) Section 52 of the Family Law Act, 1995 pro-

vides that property which passes from onespouse to the other by deed of separation orby court order is not liable to capital gainstax (CGT), but it is still necessary to obtaina CGT clearance certificate if the originalcost or acquisition value of the asset to thespouse transferring it exceeds the exemptionlimit. Note that the spouse who receives theasset is deemed to have acquired it at thedate on (and the cost at which) the otherspouse acquired it. In the event of a subse-quent disposal, the acquisition cost is usedas the base value

b) Section 35 of the Family Law (Divorce) Act,1996 preserves this relief in the context ofdivorce provided that the transfer of assetsbetween the spouses is by virtue of – or inconsequence of – a court order. This is par-ticularly relevant where the transfer of aninterest may be deferred until the children ofthe marriage come of age. When availing ofstamp duty and CGT reliefs, it is crucial thatany transfers come within the provisions ofthe 1996 Act

c) In the event of a deferred sale – that is, whenprovision is made in any agreement that theproperty is not to be sold until the youngestchild reaches his majority and in the mean-time one of the parties vacates the premises– then a CGT liability will arise in respect ofthe non-residential spouse for the share ofthe proceeds of sale that he or she willacquire.

Declaration of solvency. Declarations of sol-vency are required where transfers take placeon foot of voluntary dispositions. If a transfer

of interest is taking place following a proper-ty adjustment order made by the court, it can-not be said that the transfer is a voluntary dis-position so such a declaration should not berequired. But if the transfer of an interest istaking place pursuant to a deed of separation,the element of valuable consideration may beunclear and in such circumstances a declara-tion of solvency should be sought.

Family home declaration. In addition tothe deed of assurance, a family home declara-tion should be prepared for execution by thetransferor spouse, notwithstanding the factthat the transfer is taking place on foot of acourt order. This family home declaration willexhibit the marriage certificate and as much ofthe court order or separation agreement as isappropriate. Where the transferor has divorcedand remarried, it may be appropriate toinclude details.

Execution of documentation. In the eventof a property adjustment order being made, thecourt will generally empower the county regis-trar to execute all documents in the event ofdefault by the transferor spouse. No such pro-vision can be included in a deed of separation,and delays in regard to such transfers should bekept to a minimum to avoid the possibility ofthe transferor spouse leaving the country orbecoming unco-operative.

Survey. The transferee spouse should beadvised that the property is being taken as is,that they are fully within their rights to obtain asurvey of the property, and that they should putthemselves on notice as to any work whichneeds to be done.

Letter to the client. You should write toyour client at the appropriate stage advisinghim or her of the extent of the conveyancingservice which will be offered. The client shouldbe advised that the standard investigation oftitle may not be possible and that the title isbeing offered on a ‘take it or leave it’ basis. Inaddition, the client should be sent the statutorysection 68 letter advising that, in addition to thefamily law costs, additional conveyancing costswill become due.

Joan O’Mahony is a Dublin solicitor and amember of the Law Society’s Family Law andCivil Legal Aid Committee.

G

the differencethe difference

S ection 117 of the Succession Act, 1965allows a court, in limited circumstances,to substantially change the distribution ofan estate under the terms of a will, thus alteringwhat the testator intended. Obviously, this is amajor encroachment on the concepts of freedomof testamentary disposition and freedom to dis-pose as one sees fit of one’s assets or property.

In the most recent judgment on the section, Bv S & McC (delivered 10 February 1998), theSupreme Court effectively upheld a substantialresiduary bequest to various charities whiledeclining to make provision for the son of thetestatrix, an unemployed father of three, arecovering alcoholic and drug user. At firstglance, it might seem that this case is exactly thesort of conflict which section 117 was original-ly intended to address: the ‘disinheritance’ (in amanner of speaking) of a child in dire financialand personal need by bequests to charity.However, a closer examination of the circum-stances reveals a complex situation which mili-tated largely against the granting of relief, atleast in the majority view of the Supreme Court.

Sub-section 1 of section 117 of the 1965 Actsays that: ‘Where, on application by or onbehalf of a child of a testator, the court is of theopinion that the testator has failed in his moralduty to make proper provision for the child inaccordance with his means, whether by his willor otherwise, the court may order that such pro-vision shall be made for the child out of theestate as the court thinks just’.

Since it was first introduced over 30 yearsago, section 117 has been interpreted somewhatcautiously. Unlike a surviving spouse’s legalright on testacy, the relief available under sec-tion 117 requires a court application and, even ifsuccessful, the remedy is still discretionary.There are several factors that the court may needto consider before deciding whether or not togrant relief.

The most obvious constraint on using section117 is the very limited time within which tobring an application. The time limit for such anapplication is six months from the date of ‘firsttaking out of representation of the deceased’sestate’ (sub-section 6, as amended by section 46

Children who feel theyhave been unfairly treated

in the wills of theirdeceased parents can

apply to the courts forrelief under section 117 of the Succession Act.

But, as the recentSupreme Court judgment

in B v S & McC shows,even seemingly

straightforward cases can be hard to prove.

Maureen Cronin discussesthe requirements of

section 117 applicationsand the Supreme Court’s

decision in this case


Meandisdis

of the Family Law (Divorce) Act, 1996).Moreover, no award under section 117 caninterfere with the surviving spouse’s legal rightsunder the Succession Act (sub-section 3). Or, ifthe surviving spouse is the mother or father ofthe applicant, any devise or bequest to thespouse or any share to which the spouse is enti-tled on intestacy may not be affected either.

Factors relevant to an applicationAlthough it helps if an applicant has been over-looked or ignored or treated less favourably thanother children (either during the lifetime of theparent/testator or under the terms of the will),it’s not essential. The fact that all children aretreated equally in the will is not necessarily abar to a successful application either. In somecircumstances, to treat all children equallymight be unjust and imprudent if the special cir-cumstances pertaining to one child require spe-cial treatment.

In the case of B v S & McC, the fact that allthe children received equal settlements duringthe lifetime of the testatrix was not relevant tothe court’s determination. Mr Justice Keanespecifically stated that ‘the maxim equality isequity can have no application where the testa-tor has, by dividing his estate in that manner,disregarded the special needs (arising, for exam-ple, from physical or mental disability) of one ofthe children to such an extent that he could besaid to have failed in his moral duty to thatchild’.

Nor is destitution on the part of the applicanta pre-requisite for relief. Several cases havebeen decided in favour of applicants who werealready in what might be considered comfort-able circumstances and who had received sub-stantial benefits both during their lifetimes andunder the wills of their deceased parents (seeB(S) (otherwise M(S)) v Bank of Ireland, unre-ported, High Court, 27 July 1988).

The size of the estate is, of course, relevant inthat if the estate is insubstantial it may not beworth fighting over or the costs of the applica-tion may be too onerous. Nevertheless, it doesnot have to be vast. Successful applicationshave been brought in large estates and in more

Section 117 of the Succession Act, 1965


WILLSWILLS

positionspositions

The diploma is designed primar-ily for those with little or noknowledge of European law. The

course will provide training in the

basics of European law. It will also

address in more detail areas of

European law of relevance to prac-

titioners. The diploma will also be

of interest to lawyers with some

working knowledge of European

law who wish to gain greater exper-

tise in various specialist areas.

Course participantsThe diploma is open to solicitors,

barristers, apprentices and others

with an interest in the subject.

Timetable and venueThe course will be provided in mod-

ular fashion on Saturdays following

academic terms over the course of a

year (approximately 20 sessions).

The course will be held in Blackhall

Place and will commence in January

1999 through to November. There

will be a two-month gap in lectures

for summer and two/three weeks

for Easter. No lectures will be given

on bank holiday weekends.

Course requirementsPersons wishing to obtain the diplo-

ma will be obliged do a written

assignment and pass an examina-

tion.

Certificate in European law

Candidates may attend lectures

without sitting the examination

and will be conferred with a

Certificate in European law if they

attend at least 80% of all lectures.

Lecturing team

Lecturers will be drawn from solici-

tors, academics and others with

expertise in European law.

MaterialsCandidates will be provided with

the materials necessary to study for

the diploma and will not be

required to buy textbooks.

ModulesParticipants will be required attend

modules in (a) Introduction to

European law and (b) European

business law. They will then have a

choice of four of the seven other

modules (with the option of attend-

ing all). Numbers interested in

attending the course will dictate

whether it is possible to offer all

these modules.

Introduction to European Law

(3 days)● Historical context and sources● The treaties● Community institutions and leg-

islation● Reading and interpreting

Community legislation● Fundamental principles● General principles of Community

law● Incorporation of Community law

into national law.

Business (3 days)● The Single Market● Customs duties and discriminato-

ry taxation● Free movement of goods and

capital● Freedom of establishment and

free movement of services

● Public procurement● Consumer legislation● Product liability.

Candidates will then berequired to choose four of thefollowing:

Introduction to competition law

(2 days)● Anti-competitive agreements:

article 85● Abuse of a dominant position:

article 86● Irish competition legislation● Enforcement● Competition law and employ-

ment contracts.

Competition (2 days)● Article 85(3) – exemptions: indi-

vidual and block exemptions● Merger control● State aids: articles 92-94● Intellectual property and compe-

tition● Position of Member States: arti-

cle 90● Extra-territorial application.

Agriculture (2 days)● The Common Agricultural Policy● Milk quotas● Regional policies● Food labelling and regulation.

Employment and social policy

(3 days)● Free movement of persons● Recognition of qualifications● Sex discrimination● Health and safety● Acquired rights● Welfare provision.

Environmental Law (2 days)● European environmental law● Irish implementation.

Litigation (3 days)● Choice of law provisions in con-

tracts and agreements: Rome

Convention● Disputes over jurisdiction:

Brussels and Lugano conventions● Recognition and enforcement of

foreign judgments: Brussels and

Lugano conventions● Court of First Instance● Court of Justice● References to the Court of

Justice● Enforcement actions● Indirect challenges● Remedies.

Human rights (2 days)● European convention of human

rights and fundamental free-

doms● Jurisprudence of the European

Court of Human Rights.

FeeThe fee for the course is £477,

which includes all materials and

examination fees. £400 of the fee

is refundable if the participant

decides not to proceed with the

course, and notifies the Law

Society before 4 December 1998.

There is a non-refundable booking

deposit of £77 payable on applica-

tion.

DIPLOMA IN APPLIED EUROPEAN LAWThe Law Society of Ireland (with the support of the European Commission)

Name:

Firm:

Address:

DX no:

Telephone no: (Home) (Work)

Fax no:

What knowledge of European law do you have?

Professional qualification:

Year qualified:

Options chosen (in order of preference)

1.

2.

3.

4.

Signature:

Date:

I attach non-refundable booking deposit of £77.

Final date for receipt of applications: 14 November 1998

APPLICATION FORM

Please return completed form to: T P Kennedy, Education Officer, Law School, The Law Society, Blackhall Place, Dublin 7, tel: 01 671 0200, fax: 671 0064


WILLSWILLS

her moral duty to the plaintiff. The court wassatisfied it did not. The decision of the testatrixnot to make any further provision for her sonwas one which a responsible parent could take,and the High Court was correct in concludingthat the plaintiff had failed to establish that thetestatrix had failed in her moral duty.

In his dissenting judgment, Mr Justice Barronsaid that all the circumstances needed to be con-sidered. He continued: ‘Having regard to hisobligations and the very considerable differencein his economic circumstances from those of hismother and the competing moral claims of thecharities, it would have been right and proper forsome further provision to have been made for theplaintiff’. The judge was satisfied that, given theapplicant’s need, the fact that the testatrix hadthe means to alleviate that need, even if only inpart, and having regard to all the claims on herbounty, ‘it would have been right and proper forthe deceased to have used some of those meansto alleviate at least part of that need’. He con-cluded that the overall purpose of this part ofsection 117 was to prevent a testator fromwrongfully disinheriting his nearest family.

In contrast to Mr Justice Barron, the majorityjudgment focused largely on the inter vivos pro-vision which admittedly was substantial. Wouldthe court’s decision have been any different ifthat provision had somehow been ‘innocently’lost through no fault of the applicant (for exam-ple, on a stock market crash) rather than dissi-pated on drink and drugs? Also, did the courtgive sufficient weight to factors such as the factthat no other family member stood to lose any-thing by the award of relief and that the ultimatebeneficiaries (five charities) were not ‘personal-ly’ involved, in the sense that, again, no-onestood to lose anything by an award to the plain-tiff.

On the other hand, the fact that the applicantdid not ‘reform’ himself until some time afterthe death of the testatrix particularly operatedagainst him as the court specifically ruled outany consideration of factors arising after thedeath of the testatrix. The court was not entitledto take into account the fact that the plaintiff,since his discharge from Cluain Mhuire in 1993,had not taken alcohol or drugs. Because hisrecovery from his addiction for that period cameafter his mother’s death, it was not relevant tothe discharge or otherwise of her moral duty tohim, said the court. It therefore confined itself tothe situation as it existed at the date of death.

In summary, the decision in B v S & McCshows that the onus of proof in such cases is aheavy one, and that a parent’s moral duty tomake proper provision for a dependent child isnot completely open-ended. Depending on thecircumstances, the court can decide a parent hasdone enough and need do no more.

Maureen Cronin is a Dublin barrister.

G

modest ones in equal measure. However, thelarger the estate, obviously the greater the moti-vation to make an application!

Making a claimTo succeed in a section 117 application, the firsthurdle is to convince the court that the deceasedparent failed in his or her moral duty to makeproper provision for the applicant. The standardby which the court measures the behaviour ofthe testator is generally that of a prudent and justparent. This breach of moral duty is generallyevidenced by some failure to provide help orsupport, when it was possible for the testator todo so, either during the lifetime of the deceasedparent or through their will. The testator musthave been aware of the financial or marital dif-ficulties or, at least, the difficulties must havebeen to some degree foreseeable. For example,the applicant might be physically or mentallydisabled and in need of special care and treat-ment which the deceased testator could havepaid for but failed to, either prior to his death orby means of a legacy or trust under his will.

Evidence that the applicant and deceased tes-tator had a hostile relationship may also lendweight to the applicant’s case (see In LACdeceased, CC and Ch F v WC & TC, [1990] 2IR 143).

The onus of proofSeveral cases have emphasised that the burdenof proving the failure of moral duty places ahigh onus of proof on the applicant. This iswhere the applicant in B v S and McC failed. Inthis case, the testatrix had assets in excess of £1million. She had four children, all in their thir-ties and forties, of whom the plaintiff/appellantwas the youngest and the only son. The testatrixdecided to make equal provision for all fourchildren during her lifetime, as a result of whichthe plaintiff received company shares whichrealised approximately £275,000 in 1987.

Despite receiving such largesse, the plaintiffcontinued to be as unsuccessful in life as he hadbeen prior to that. He dropped out of universityin his first year. He then held various jobs andalso lived abroad for some time. His father sup-ported him financially in his business for awhile, but this too was unsuccessful. In 1983,again with financial help from his father, hereturned to university and completed an Artsdegree at Trinity College. In the mid-1980s, hedeveloped major problems – drink and drugaddiction. He married in 1988 and had threeyoung children. He and his family lived in ahouse which was given to him and one of hissisters by his father. By the time of his mother’sdeath in 1992, his marriage was in trouble andhe was unemployed.

Within a relatively short time of receiving the£275,000 from his mother, the plaintiff had dis-sipated practically the entire sum. By the time

his mother made her final will in 1992, therewas nothing left and the plaintiff was receivingsocial welfare assistance. He had no savingsand no property, other than the half-share in thehouse. When the testatrix made her last will in1997, she was fully aware of the plaintiff’s dif-ficulties and consciously decided not to helphim any further. She left the residue of herestate, valued at approximately £300,000, tofive named charities. The testatrix died in 1992.The son instituted proceedings for relief undersection 117 in the High Court, where his appli-cation was unsuccessful.

Essentially, the issues before the SupremeCourt on appeal were: did the testatrix fail inher moral duty to make proper provision for herson, knowing his difficult circumstances? andby refusing to help her child at his time of des-perate need, and by leaving a substantialamount of her estate to charities instead, did shebehave as less than a just and prudent parentought to have done? The Supreme Court,affirming the High Court order, effectivelyanswered ‘no’ to these questions.

The judgmentIn the majority judgment (delivered by MrJustice Keane, with Mr Justice Lynch agreeing),the Supreme Court held that it was beyondargument that the testatrix had made adequateand generous provision for the plaintiff in herlifetime. The test to be applied in section 117cases was not which of the alternative coursesthe court itself would adopt; rather, the appro-priate test was whether by her decision to optfor a particular course (to leave the residue ofher estate to charity and not to her son) theactions of the testatrix constituted a breach of

Section 117: the court can decide that the parent has done enough

DIPLOMA IN PROPERTY TAXLaw Society of Ireland

APPLICATION FORM

Please return completed form to: TP Kennedy, Education Officer, Law School, The Law Society, Blackhall Place, Dublin 7.

This extensive course in property tax for qualified solici-tors was first offered in October 1992. Participantshave found that the course has greatly enhanced their con-fidence and competence in dealing with the various taximplications of property transactions.

The first section of the course deals with the individualtaxes including CAT, CGT, income tax, VAT and stamp duty,and the impact of these taxes on trusts. The second part ofthe course deals with corporation tax and tax manage-ment, and helps solicitors to assess the inter-relationship ofvarious taxes on specific property transactions.

There are many benefits attached to securing an in-depthknowledge of the rules of tax. Solicitors can practise with agreater sense of confidence and security, as they will be lesslikely to fall victim to many tax pitfalls that result from themaze of existing tax legislation.

Course participantsThe diploma is open to solicitors and apprentices who havecompleted the Professional Course.

Timetable and venueThe course will be provided on Saturdays over 12 weeks.Lectures will run from 10am to 4.30pm. Examinations willbe held during the course.

Lecturing teamLecturers are either solicitors or accountants and areapproved by the Law Society.

MaterialsCandidates will be provided with the materials necessary tostudy for the diploma and will not be required to buy text-books.

FeeThe fee for the course is £450, which includes all materials,course attendance for approximately 50 hours of class con-tact and examination fees. £375 of the fee is refundable ifthe participant decides not to proceed with the course, andnotifies the Law Society before 1 December 1998. There isa non-refundable booking deposit of £75 payable on appli-cation.

NAME:

FIRM:

ADDRESS:

DX no: Telephone no: (Home) (Work)

Fax number:

Year qualified:

Signature:

Date:

I attach non-refundable booking deposit of £75

FINAL DATE FOR RECEIPT OF APPLICATIONS: 20 November 1998

PROPOSAL TO RUN THIS 12-WEEK COURSE IN CORK, COMMENCING FEBRUARY 1999

Copycatch!


INTELLECTUAL PROPERTYINTELLECTUAL PROPERTY

T he provisions of the Term Directive,transposed into Irish law by StatutoryInstrument No 158 of 1995 (theEuropean Communities (Term of Protection ofCopyright) Regulations), make significantchanges to the law relating to the duration ofthe period of copyright protection afforded toworks (literary, dramatic, musical and artistic)and subject matters (films, broadcasts andsound recordings) under the copyright legisla-tion.

Unfortunately, it appears that the regula-tions, as drafted, present new opportunities topersons other than the copyright owners toexploit the works of those whose rights thelegislators intended to enhance. It is also

A recent statutory instrument designed tostrengthen the rights ofcopyright owners mayhave had precisely theopposite effect. Niall

O’Hanlon explains how we slipped up in

implementing an EU directive properly andwhy the Governmentcould find itself in the

dock as a result

Copycatch!

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Issue july 98...Title Issue july 98 Author Nuala Redmond Created Date 3/20/2003 12:30:03 PM

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