The Gazette 1993

JAN/FEB 1993 '

GAZETTE

"In the law of contract, the posting of a letter was deemed to be an acceptance of an offer even where in one celebrated case the letter never arrived. In my opinion, such a rule must be applied to the transmission by fax, given a much greater certainty of receipt, when so much of the human element has been eliminated. In any event, a fax is now such an accepted means of communication that the courts should be very slow to cast doubts on the efficacy of the invention, when especially, acknowledgement of receipt by electronic means would be tantamount In his judgment, in effect, Judge McMenamin held that the defendant had received the terms and conditions of business which had been sent by fax. Correspondence to a recorded delivery in the overground postal service." The article in the November Gazette on the centenary of the Registration of Deeds system caught my eye, but for none of the right reasons. It was the photograph of a memorial executed by The Dean himself, Jonathan Swift, which interested me. The other parties to the deed can be seen, without much difficulty, to be ones Thomas Ash and St. George Ash of Co. Meath and Dublin respectively. St. George Ash (or properly Ashe) was a very notable figure, Provost of Trinity College, co-founder of the Dublin Society, later the RDS, and - JV Luce's recent history of TCD tells us - inventor of the coal briquette! He also preached, on 9 January, 1693, at the service for the first centenary of Trinity College, which oddly enough fell in 1693/94. Were last years celebrations premature? The writer proposes that we start all over again! Editor, Gazette, Re: The Dean's Deed. Dear Madam,

Judge McMenamin in his judgment referred to the case of Hastie and Jenkerson -v- McMahon [1991] 1 All E.R. 255. In McMahon, the Court of Appeal held that the transmission of a document (other than documents required to be served personally or writs and other documents which initiated proceedings) by fax constituted a good service, provided that it could be proved that the document had in fact been received in a complete and legible state by the person on whom service was effected. In McMahon the Court of Appeal considered that since the purpose of serving a document was to ensure that its contents were available to He and his brother Thomas were apparently close friends of Swift. The Dean, in one of his works, gives as a footnote the following legalistic tale, which he tells of Thomas: Thomas Ashe was riding one day from his home to Mullingar when it came on to rain very heavily. He came to an inn where he decided to get shelter, refreshment and a rest for his horse. Dismounting, he called the ostler to take his coat which was soaked through. " I will not sir," replied the man. "Dammit, I'm drenched to the skin, take my coat you . . . . " yelled Tom. " I will not, to my dying day" the abused wretch replied "You know as well as myself, sir, 'tis a felony to strip an ash!"

the recipient, and whether it was served in the conventional way or by fax, the result was exactly the same

because although what was transmitted was an electronic

message, what was produced, using the recipient's machine and paper was a document which the other party intended should be served. The Court of Appeal concluded that service by fax could be good service subject to any requirement of the order requiring service of the particular document and the rules of the Supreme Court. The written judgment of Judge McMenamin is available in the library of the Law Society. Review of Guide to Professional Conduct The President of the Law Society, Raymond Monahan, has requested the Professional Purposes Committee to carry out a review of the Guide to Professional Conduct of Solicitors in Ireland. The Guide, which was published in 1988, has eight chapters dealing with various topics. The Committee intends in the first instance to deal with topics that affect a solicitor's relationship with other solicitors (i.e. chapter 7 of the current Guide). The Committee invites submissions on this issue from individual members or Bar Associations. The revised Guide will become the authoritative reference to professional conduct. All submissions should be forwarded to Therese Clarke, Solicitor, Secretary, Professional Purposes Committee, Law Society, Blackhall Place, Dublin 7. •

Yours sincerely,

Robert Ashe, Solicitor, Griesemount, Ballitore, Co. Kildare.

The closing date for receipt of submissions is 31 March, 1993.

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