The Gazette 1976

THE INCORPORATED LAW SOCIETY OF IRELAND GAZETTE JANUARY-FEBRUARY 1976 VOL. 70 NO. 1

National Prices Commission Inquiry into Solicitors' Remuneration At its meeting on 26th February, 1976, the Council of the Society considered the letter from the Prices Com- mission Consultant, Professor D. Lees, University of Nottingham, in which he sought the co-operation of the Profession in the compilation of certain further statistical information on solicitors' receipts and expenditure. (The recent newsletter carried a copy of this letter.) The Council urged those firms which are consulted by Professor Lees to supply him with as much of the desired information as is available. So that the Society will be completely au fait with analysis of all the material furnished to Professor Lees, the Council asks that a copy of whatever information is furnished should be forwarded at the same time to the Society's auditors, Messrs. Coopers & Lybrand, Fitzwilton House, Wilton Place, Dublin 2. In due course that firm will process the information and furnish the Society with whatever conclusions emerge.

Land Registry

PRESIDENT Patrick C. Moore Vice Presidents Bruce St. J. Blake Gerald Hickey Director General

the Registrar — of the Land Registry's requirements insofar as the lodgement of Ordnance Survey maps is concerned [(c) above]; (f) Delays (e.g. in processing deal- ings) would be kept as consistent as possible throughout the country i.e. there would not be inordinate delays in any one area; (g) Any criticisms (e.g. where in- ordinate delays occurred in any one area) would be transmitted to the Registrar periodically; (h) Where warranted, an effort would be made to improve the presentation of applications by solicitors; (i) All the staff and documents dealing with Co. Dublin registra- tions would be housed in one building if possible; (j) It would be inappropriate for the Land Registry to be involved in the setting up of a panel of architects and engineers who would prepare and certify maps in subdivision cases; (k) Consideration of having dupli- cates of maps made available at local offices would be deferred until the reconstruction of maps in the central office is completed; (1) The possibility of accepting documents by post in the Registry of Deeds would be considered by the Registrar; and (m) A further meeting would be held towards the end of October 1976, if possible.

THE third in a series of meetings being held periodically between the Department of Justice and the Society to discuss Land Registry matters was held on 5th February, 1976. The following is a summary of the matters agreed or requiring attention:- (a) Arranging of priority for First Registration of house purchase cases; (b) Clarification of the Land Registry position about solicitors' and counsel's certificates under the Land Registration Rules; Mr. Griffith promised to let Mr. Ivers have a note about this for publication in the GAZETTE. (This appears on page 22) (c) Deferment until 1st September 1976 of the Land Registry's insistence on the lodgment of Ordnance Survey maps with applications for transfers of part; (d) In the meantime, a meeting would be sought with the Ordnance Survey Office (at which the Law Society and the Department of Justice would be represented) to follow up the question of the service which will be needed from the Ordnance Survey Office by 1st September 1976 in connection with (c)—the meeting to be arranged by the Department of Justice; (e) The County and City Managers Association to be informed—by

James J. Ivers, M.Econ.Sc., M.B.A. Librarian & Editor of the Gazette Colum Gavan Duffy, M.A., LL.B. (N.U.I.) Officer Hours Monday to Friday, 9 a.m.—1 p.m.; 2.20 p.m.—5.30 p.m. Public, 9.30 a.m.— 1 p.m.; 2.30 p.m.— 4.30 p.m. Library Hours 9 a.m.—1.45 p.m.; 2.30 p.m.—5.30 p.m. Telephone 784533 Advertisements to : Advertising Manager, Incorporated Law Society, Four Courts, Dublin 7. The Editor welcomes articles, letters and other contributions for publication in the Gazette. PROFESSIONAL INDEMNITY INSURANCE AND COMPREHENSIVE OFFICE INSURANCE Available at low cost direct from the London Market to Members of the Law Society. Proposal forms for onward submis- sion by your practice direct to Lon- don are available at the Society's offices.

How toinvestyourclients 5 funds

The most important factor When it comes to investing client funds, and particularly so in the current economic climate, safety and security must be paramount con- siderations. Placing funds on deposit with a reputable and sound institution undoubtedly provides as near maximum safety as one can get, in a year of floating currency fluctuations, falling stock prices and many other un- certainties. Guinness +Mahon Ltd. werefounded in 1836, and nowform a part of the Guinness Peat Group, whose interests embrace not only merchant banking but commodity broking, mer chanting, insurance, food, shipping and aviation. Guinness +Mahon are a Scheduled Bank under the Solicitors Regulations Act, and are therefore an authorised recipient of clients' funds. Deposits with Guinness +Mahon also qualify as Auth- orised Investments under the Trustee {Authorised Investments) Act. Profitable growth Seeking sound growth undoubtedly forms part of the protection you can give your client's funds. Deposit interest rates with financial institutions can vary significantly, both from house to house, and according to the form of deposit selected. It pays to make certain that you are getting the best possible terms avail- able at the time. Guinness + Mahon offer extremely keen deposit rates for various types of deposits, and also go to great lengths in helping you choose the type or length of deposit that suits you best. A specific enquiry to Ian Kelly, the Deposits Manager, Dublin, or Peter Tuite, Manager, Cork, will give you an up-to-the-minute quota- tion, and any advice you might require. Professional expertise As a professional yourself, you will un- doubtedly appreciate a skilled, personal ap- proach to your own problems. The whole area of deposits and money markets is highly skilled, and it pays you to choose an institution whose expertise and connections reflect this.

Guinness +Mahon, as Merchant Bankers, can offer a particularly satisfactory service in this area. Deposits have always formed a significant part of their total business, and they have built up a formidable reputation for the skill and personal attention they can provide to each of their depositors. Flexibility The essence of merchant banking probably lies in the flexibility and innovativeness which merchant bankers can bring to the business of banking. Each transaction can be treated on its individual merits, and no run-of-the-mill solu- tions, which may not truly mirror the require- ments of the transaction, need be forced on it. Guinness +Mahon pride themselves on the imaginative and personal approach they can take to each problem. This important element of flexibility allows them to tailor your investment solution to your exact requirements. Reciprocality Business is a two-way affair. The institution you choose should be prepared to provide finance for your clients in appropriate cases. Guinness+Mahon are conscious that this is a perfectly legitimate requirement on your clients' part, and are very willing to consider proposals on a selective basis, provided in general that amounts exceed £10,000 and that the need is for short term working capital or finance of a bridging nature.

GUINNESS+MAHON LTD If you would like to receive further details on Deposit Rates, or information on our full range of services, please ring Ian Kelly at Dublin 782444 17 College Green, Dublin 2. Telex 5205

or Peter Tuite at Cork 54277 67 South Mall, Cork.Telex8469

GAZETTE

January-February 1976

ANNUAL GENERAL MEETING

THE President, Mr. William A. Osborne, took the Chair at 2.30 p.m. on Thursday, 27th November, 1975, in the Library of Solicitors' Buildings, Four Courts. The notice convening the meeting, and the minutes of the Ordinary General Meeting held in Westport in May, 1975, were taken as read, and were subsequently signed. The President then requested that the accounts and balance sheets for 1974-75 be adopted. This motion was formally proposed by Mr. Peter D. M. Prentice, seconded by Mr. John Nash, and was passed unanimously. Mr. Gerald Hickey then proposed, and Mr. Robert McD. Taylor seconded, the motion that Messrs. Coopers & Lybrand be appointed Auditors for the coming year. Report of the Scrutineers relating to Ballot for the Council 1975/76 A meeting of the scrutineers appointed at the Ordinary General Meeting of the Society held in May, 1974, together with the ex-officio scrutineers was held on 20th November, 1975. Nominations for ordinary membership of the Council were received from 38 candidates all of which were declared valid and the scrutineers directed that their names be placed on the ballot paper. The following candidates were duly nominated as provincial delegates in accordance with bye-law 29 (a) of the Society and were returned unopposed: Ulster—Peter Murphy, Munster—Dermot G. O'Donovan, A meeting of the scrutineers was held on Thursday, 20th November, 1975. The poll was conducted from 10.00 a.m. until 4.00 p.m. and the scrutiny was sub- sequently held The result of the ballot was as follows: The valid poll was 709. The following candidates received the number of votes placed after their names, and were elected: William A. Osborne 652, John F. Buckley 631, Mrs. Moya Quinlan 631, John Carrigan 598, Walter Beatty 595, Joseph L. Dundon 591, Patrick C. Moore 588, Thomas D. Shaw 585, Bruce St.J. Blake 570, Patrick Noonan 546, Anthony E. Collins 526, Maurice R. Curran 520, John Maher 513, Patrick F. O'Donnell 511, John B. Jermyn 505, William D. McEvoy 503, Robert McD. Taylor 500, Peter D. M. Prentice 493, Francis J. Lanigan 491, Laurence Cullen 480, John J. Nash 476, James W. O'Donovan 471, Donal G. Binchy 465, Michael P. Houlihan 464, David R. Pigot 464, Bren- dan A. McGrath 461, Gerald Hickey 460, William B. Allen 436, Adrian P. Bourke 432, Ernest J. Margetson 429, Miss Carmel Killeen 421. The foregoing candidates were returned as ordinary members of the Council for the year 1975/76. The following members also received the number of votes placed after their names: Gerard M. Doyle 413, Raymond T. Monaghan 404, Brian J. O'Connor 377, Eamonn P. King 362, Philip E. McCourt 333. Patrick J. Bergin 262, and Patrick J. O'Donovan 188. The President declared the result in accordance with the ballot. Report of the Council The President stated that, as last year, the Annual Report had been printed in the Gazette, and each Leinster—Christopher Hogan, Connaught—Patrick J. McEllin.

Report had been prepared by the Chairman of the Committee concerned. The President proposed the adoption of the President's and Council's Reports, which were on the same lines as last year. He wished to thank members of the Council, and particularly ordinary members who had been assigned to the Committees for the magnificent work they had undertaken during the year. The general motion "That the Report of the Council for 1975-76 be adopted" was moved by the President, seconded by Mr. P. Prentice and passed unanimously. The Report of each Committee was then taken separately. The adoption of the Report of the Registrar's Committee was proposed by Mr. Frank O'Donnell, who thanked all the members for their exceptional hard work due to adverse publicity. Mr. Quentin Crivon mentioned the fact that in many cases Solicitors' Accountant Certificates were in arrears in 1974 and 1975. If these were in order in 1973, surely it could be presumed that they were also in order in 1974 and in 1975, until the contrary was proved. The President said that meetings of the Committee had been held regularly, but the position was unsatis- factory. From January, 1976, the Regulations would have to be strictly enforced, and an up-to-date Accountant's Certificate would have to be presented before the licences would issue. In reply to Mr. Crivon, the President stated that an Indemnity Policy would not be required. In England, due to high premiums, the compulsory insurance scheme had not been a success. Mr. Crivon felt that the situation should be examined, as there appeared to be no difficulty in obtaining the statutory proofs. Mr. Anthony O hUadhaigh said he remembered that the attempt to include compulsory insurance when the Solicitors' Act 1954 was passed had been resisted by then then Government. Mr. Brendan O'Maoileoin was very con- cerned about press chicanery in its recent attacks upon the profession. He felt that the Profession should only entertain complaints by individuals, and seek redress against the Press through the Courts. The President said that they had ignored this unjustified publicity, and that the profession was generally now held in higher esteem. Mr. Patrick Noonan said that the President had acted in a masterly way in replying to criticism on Television. The Report was then adopted. The adoption of the Compensation Fund Com- mittee 's report was then proposed by Mr. Frank O'Donnell, and adopted unanimously. The adoption of the Report of the Privileges Committee was proposed by Mr. Michael Houlihan, who expressed the hope that the policies of members would be expanded. It was adopted unanimously. The adoption of the Report of the Parliamentary Committee was proposed by Mr. Peter Prentice, who thanked the members for their great assistance. This had been a year of great parliamentary activity par- ticularly in regard to tax law. This Report was passed. The adoption of the Report of the Finance Com- mittee was proposed by Mr. Gerald Hickey, who paid a special tribute to Mr. Healy for looking after the investments of the Society so carefully. Mr. Crivon, in referring to Blackhall Place, stated that an under- taking had been given to the members that its upkeep would not cost them one penny. The Report now mentioned a subscription of £20. The members were 3

GAZETTE

January-February 1976

in costs had been submitted to the Prices Commis- sion. Professor Lees would c omme nt on this applica- tion and report to the Prices Commission. Mr. O'Maoileoin c omme n t ed that, in view of current inflation, there should be a 700% increase and not merely one of 150%. The President replied that un f o r t un a t e ly Professor Lees was not prepared to r e commend any f u r t h er increase, but that he strongly advised any memb er who wished to put forward his views in requiring substantial increases to do so as soon as possible. Mr. O 'Ma hony, having mentioned that a ma n a g eme nt c on s u l t a nt was paid £160.00 per day, asked wh e t h er the Society could have regard to the work solicitors were performing. The President in reply stated t h at he had received a full memo r a n d um on the subject from the Dublin Solicitors' Bar Associ- ation and other Bar Associations. Meetings had also been arranged t h r oughout the c oun t ry with Professor Lees who had definitely been impressed with the position, and it would be for him to report direct to the Prices Commission. It was then likely that the Prices Commission would publish an Occasional Paper on the subject. The Costs Commi t t ee would be prepared to meet all experts. A questionnaire had been sent to all firms, b ut un f o r t un a t e ly only 10% replied. The first interim Report of Professor Lees is likely to be published in January, 1976. Interim increases will be sought if there is likely to be any delay. The Report was adopted. The President proposed the adoption of the Law Clerks Joint Labour Committee Report and com- me nd ed the work of Mr. Gerard Doyle and Mr. Ray Mon a h a n. The Re po rt was adopted. Mr. Walter Beatty then proposed the following resolution: " Th at the Gov e r nme nt be requested to give priority to the introduction of the necessary legislation to remove the liability for the pay- me nt by borrowers of the lending institutions legal fees in respect of loans for residential house purchase." The Council had already sent a similar resolution to the De p a r tme nt of Justice. Mr. F r a nk Lanigan seconded it. Mr. O'Maoileoin, in opposing the resolu- tion, said t h at lending institutions did not make vast profits. Messrs. Russell and McCarron also opposed the resolution. Mr. Maurice Curran, in supporting the resolution said that, apart f r om building societies, lending institutions included b a nks and insurance companies. Mr. Rob e rt Taylor also supported it. It was essential for the Society not to get a bad reputa- tion f r om the public. Mr. Crivon thought that the public should not be asked to pay the costs of borrowing. Mr. P. C. Moo re said that although the resolution was discriminatory against building societies, he sup- ported it on the basis t h at the proposal should change completely the conditions und er which borrowers were to pay lenders' costs; the law of mortgages required to be altered completely. As a result of this discussion, Mr. M. Curran proposed and Mr. W. Beatty seconded the proposal that this resolution be placed on the Agenda of the Ordinary General Meet- ing in May, and that it be meanwhile considered by the Council. The proposal was agreed to. Mr. O'Maoileoin proposed and Mr. O 'Ma h o ny seconded the proposal t h at Mr. Gavan Duffy be con- gratulated by the memb e rs of the Society upon having completed 25 years as Librarian of the Society, and that he be t h a nk ed for the services which he had pro-

entitled to a clear indication of the position. The President stated t h at this ma t t er had been fully dis- cussed at the We s t p o rt meeting. It was essential to find a c commoda t i on for the n ume r o us apprentices, and it was impossible to hazard guesses as regards the cost. Mr. James O ' Donovan, who as President had given this undertaking, stated t h at at the time it was t hought that, if we were going to keep the King's Hospital, it would not be necessary to impose any expenses on our memb e rs t owa r ds reconstruction or maintenance. As a result of the n ume r o us apprentices, it be c ame essential to ma ke full provision for them, and the Council was compelled to change its mind. Mr. Peter Prentice reminded the memb e rs that he had stated in 1974 t h at the King's Hospital would cost the Society plenty of money, b ut the new set of circum- stances made such expenditure inevitable. The Report was adopted. The Re po rt of the Court Offices and Costs Com- mittee was proposed by the President and adopted unanimously. The adoption of the Re po rt of the Court of Examiners was proposed by Mr. John Buckley, who praised in particular the work und e r t a k en by the Education Sub-Committee. Mr. John Carrigan con- gratulated Mr. Buckley upon the achievements of the Cou rt of Examiners in the past year. The Re po rt was adopted. The adoption of the Re po rt of the Public Relations Committee was proposed by Mr. Walter Beatty, who t h a n k ed the Public Relations Officer, Maxwell Sweeney, for his services. Mr. Brendan O'Maoileoin, in referring to the new tax legislation, stated that it would be necessary to cater for an informed public. Wh en he referred to the unconstitutionality of the Criminal Law Jurisdiction Bill, Mr. Carrigan proposed t h at this Bill be referred back for f u r t h er considera- tion. The Re p o rt was adopted. Th e adoption of the Re po rt of the Blackball Place Committee was moved by Mrs. Quinlan, and adopted unanimously. The adoption of the Re po rt of the Disciplinary Committee was moved by the President and adopted unanimously. The Re po rt of the E.E.C. Committee was moved by Mr. An t h o ny Collins. To an inquiry by Mr. O hUa dh a i gh wh e t h er the Society could provide a post- g r a du a te course in Commu n i ty Law for the older members, Mr. Collins stated t h at this would be diffi- cult to arrange, b ut he referred to the special courses available in Edinburgh, Ams t e r d am and Luxembourg. Mr. T. C. G. O 'Ma h o ny stated that it was difficult to assimilate Commu n i ty legislation, and t h at it would be impossible to read all the Commu n i ty literature issued. Mr. Collins stated the Commi t t ee was trying to gauge the amo u nt of this legislation which would affect Ireland, b ut it was a difficult problem. Mr. O ' Ma h o ny said that, although we had entered the Commu n i ty with our eyes open, it would be difficult to test the constitutionality of Commu n i ty legislation. The Re po rt was adopted. Th e Re po rt of the Company Law Committee was moved by the President, who explained t h at this was an i nd e p e nd e nt Commi t t ee dealing with mergers and monopolies, and t h at it had been complimented by the Minister for I ndu s t ry and Comme r c e. The Report was adopted. Th e President moved the adoption of the Library Re po rt which was passed. Mr. John Moloney moved the adoption of the Costs Committee Report. The President, in reply to ques- tions, stated t h at the application for the 150% increase

4

GAZETTE

January-February 1976

Patrick C. Moore, the President for 1975-76, was educated at Newbridge College and University College, Dublin. He was admitted as a solicitor in 1930, and became a member of the Council since 1965. He has practised successively at No. 35 and more recently at No. 17, South Great George's Street, Dublin 2. He is a founder member and solicitor to the Educational Building Society, and director of other companies.

Bruce St. John Blake, the Senior Vice-President for 1975-76. Son of the late Henry St. John Blake, solicitor, Galway. Aged 39 years. Educated at Glenstal Abbey and obtained a B.A. Degree (Honours) in University College Galway, in 1958, and an LL.B. Degree in 1960. Admitted a solicitor in 1962, and elected a member of the Council since 1966. Married in 1964 to Mary Grace Hanna, B.C.L., LL.B., solicitor. Practises at 93, Lower Bagot Street, Dublin, specialising in Labour Law. Founder member of the Society of Young Solicitors in 1965.

Gerald Hickey, the Junior Vice-President for 1975-76, is a son of the late James Hickey, Solicitor. Aged 49 years. Educated at Xavier School, and Trinity College, Dublin, he was admitted in 1948. He was elected as a member of the Council since 1967 and has been a partner of the firm of Messrs. Hickey & O'Reilly (now Hickey, Kirwan, Beauchamp & O'Reilly), Dollard House, Wellington Quay, Dublin 2, since 1950. Director of several companies.

January-February 1976

GAZETTE

ADDITIONAL MEMBERS OF THE COUNCIL FOR 1976

COMMITTEES OF THE COUNCIL, 1975-76

NOTE—The

President

and

Vice-Presidents

are

automatically on all Committees.

(1) New Ordinary Members elected to Full Council: Miss Carmel Killeen, Dublin Co Council, 11, Parnell Square, Dublin 2. Mr. Donal Binchy, Clonmel, Co. Tipperary. Mr. Adrian Bourke, Ballina, Co. Mayo. (2) Dublin Solicitors' Bar Association: Mr. Gerard Doyle, 50, Lower O'Connell Street, Dublin. Mr. Thomas Jackson, 28-30, Burlington Road. Dublin. Mr. Rory O'Donnell, 71 Wellington Road, Dublin. (3) Southern Law Association: Mr. John Moloney, 7 George's Quay, Cork. Mr. Nicholas Hughes, 9, South Mall, Cork. Mr. Brian Russell, 59, South Mall, Cork. Mr. Frank Daly, 19, South Mall, Cork. Mr. Nicholas Comyn, 12, South Mall, Cork. (4) Provincial Delegates: Ulster Mr. Peter Murphy, Ballybofey, Co. Donegal. Munster Mr. De rmot C. O'Donovan, Limerick. Leinster Mr. Christopher Hogan, Kilkenny. Connaught Mr. Patrick McEllin, Claremorris, Co. Mayo. (5) Northern Ireland Representatives: Messrs. W. B. Cummi ng (Ballymena), L. H. Boyd (Limavady), G. L. Cotton (Belfast), H. E. Pierce (Belfast), and J. A. Young (Law Agent, Belfast Corporation).

1 & 2. Registrars and Compensation Fund

Messrs. D. R. Pigot (Chairman), D. Binchy, G. M. Doyle, W. Beatty, M. R. Curran, W. A. Osborne, T. D. Shaw, P. F. O'Donnell, Mrs. M. Quinlan and Miss C Killeen. Finance Messrs. W. A. Osborne (Chairman), W. Beatty, P. F. O'Donnell, P. D. M. Prentice, and P. Murphy. Parliamentary Messrs. W. A. Osborne (Chairman), J. J. Nash, A. Bourke, J. Dundon, D. Binchy, J. W. O'Donovan, and W. B. Allen. Privileges Messrs. M. P. Houlihan (Chairman), W. B. Allen, J. Carrigan, T. Jackson,. J. B. Jermyn, J. Maher, G. Doyle, B. Russell, T. Shaw, N. Comyn and Miss C. Killeen. Court Offices and Costs Messrs. E. G. Margetson (Chairman), P. Murphy, F. Daly, C. Hogan, N. Hughes, P. McEllin, W. D. McEvoy, D. G. O'Donovan, R. McD. Taylor, F. Lanigan, W. A. Osborne, L. Cullen, P. Noonan, and J. J. Nash. Public Relations Messrs. W. Beatty (Chairman), Rory O'Donnell, T. Shaw, W. D. McEvoy, M. P. Houlihan, B. A. McGrath, P. Murphy, and Mrs. M. Quinlan. Premises Committee Mrs. M. Quinlan (Chairman), Messrs. T. Jack- son, E. J. Margetson, J. Dundon, P. D. M. Prentice, R. F. O'Donnell, and W. D. McEvoy. E.E.C. and International Affairs Messrs. A. E. Collins (Chairman), J. G. Moloney, J. B. Jermyn, J. Buckley, J. Fish, B. A. McGrath, and A. Bourke. Policy Messrs. J. Carrigan, P. D. M. Prentice, F. Lanigan, J. Maher, B. A. McGrath, J. J. Nash, P. Noonan, J. W. O'Donovan, R. McD. Taylor, W. A. Osborne, J. L. Dundon, P. C. Moore, G. Hickey and B. St. John Blake; plus Chairmen of Standing Committees. Education Messrs. J. Buckley (Chairman), J. Dundon, J. W. O'Donovan, M. Curran, Rory O'Donnell, and A. Bourke. Company Law Committee Messrs. B. O'Connor (Chairman), P. Kilroy, W. Beatty, M. G. Dickson, F. Daly, D. J. Bergin, L. Shelds, H. Fry, A. Collins, and Miss Mary Finlay.

3.

4.

5.

6.

7.

8.

Dates of Council Meetings: The following dates were agreed provisionally for 1976: January 22, February 26, April 1, May 7 (in Tralee), June 17, July 29, September 16, October 21, November 25 (A.G.M.), December 16.

9.

10.

Annual General Meeting (continued from page 4) vided. The resolution was passed unanimously. Mr. T. D. McLoughlin proposed t hat Mr. P. C. Moore, Senior Vice-President, take the Chaii. Mr. McLoughlin and Mr. Moore then thanked the Presi- dent for the valuable services which he had rendered the Society during the year. The President, in respond- ing, thanked the Council, Director General and staff. A resolution of thanks to the President was passed by all with acclamation. The Meeting then terminated at 4.15 p.m.

11.

12.

6

GAZETTE

January-February 1976

THE BUILDING SOCIETIES BILL 1975

Part II

by The President (Mr. P. C. Moore)

No. of votes

Management and Administration of Societies The provisions in this regard may be summarised as follows: Every Officer of a Society having the receipt or charge of any moneys belonging to a Society, shall provide a Bond in such sum as may be required by the Society to secure the Society against loss caused by such Officer's fraud or embezzlement and the Bond must be in such form as may be approved of by the Registrar and there must be at least one sufficient surety in the Bond. Alternatively a Fidelity Guarantee Insurance from an authorised or licensed Insurer will be acceptable (Section 39). A Society shall not have less than three Directors and a Society shall not have as a Director a Body Corporate (Section 40). A Director must disclose any interest he may have directly or indirectly in any Contract or proposed Con- tract with the Society and a Declaration of such interest shall be recorded in a special Book or Register kept by the Society for this purpose. The Annual Returns submitted to the Registrar must also contain a record of and details of loans made to a Director or a member of the family of an Officer or to a Body Coporate where an Officer or a member of his family held Shares of a nominal value exceeding 20 per cent of the Shares of such Body Corporate. It is further provided that where the Society approved a loan to a member of the family of an Officer, the terms, including the rate of interest and period of loan shall not be more favourable than those applicable when other loans are made by the Society. It appears that a Director may get special terms in respect of a loan as to rate of interest but a member of his family cannot get any special terms. The Accounts must also show payments made to a Director under the heading of "Emoluments" which is defined as including amounts paid to, or received by a Director for his services as a Director of the Society, or in respect of his services while Director of a Society in connection with the management of the Society's affairs and all other benefits, such as contributions under a Pension Scheme or compensation for loss of office. The Bill also prohibits the payment of tax free remuneration to Directors (see Section 45). The Bill than has detailed provisions dealing with disputes and the determination of disputes : (a) By arbitration; (b) By the Registrar; (c) By the Circuit Court. The Notice of Meetings, the right to attend Meetings and voting is also provided for and the only persons entitled to vote at a Meeting of a Society shall be all members, who at the end of the last financial year before the date of the Meeting, held Shares to which such voting rights attached which were issued by the Society, to a value of not less than £25.00. The voting table provided in the Bill is an interesting innovation, namely :

Not less than £25. and not exceeding £100 Exceeding £100 and not exceeding £500 Exceeding £500 and not exceeding £1,000 Exceeding £1,000 and not exceeding £3,000

1 2 3

4

Erceeding £3,000

5

(see Section 53). The Bill further provides for proxies, the right to demand a poll, and also sets forth the procedures deal- ing with the passing of a Special Resolution. The other provisions deal with the Annual General Meeting, the keeping of Books of Account, Directors' Report, Balance Sheet and filing of annual returns (see Sections 51 to 65 inclusive). The further provisions in this part of the Bill are the appointment of an Auditor and his removal from office, qualifications for the appointment of an Auditor and his submission of the annual and other returns. The Bill makes provision for the keeping of a Register of members and under Section 73 (6) a member of a Society has a right to inspect the Register if the Secre- tary of the Society is satisfied that the application is bona fide and having regard to the interests of the members as a whole and any other relevant circum- stances shall afford a member a reasonable facility for inspecting the Register and taking a copy of any names and addresses in the Register (Section 73). The Society must also keep a Register of Directors and this Register also shall be open for inspection by a member free of charge and by any other person on payment of the prescribed fee. Special provision is made in the Bill (Section 75) to the effect that a Society shall not give any commission in connection with the introduction of Mortgage busi- ness to the Society or in consideration of or in connec- tion with an Undertaking to introduce such business. There is a special provision in Section 75 to the effect that an Officer, Solicitor, or Surveyor of a Society shall not accept in addition to the remuneration authorised by the Rules of the Society, any commission, for or in connection with any loan made or proposed to be made by the Society. Auctioneers are also placed in a similar position. Ministerial Control Special provision is made under Section 76 of the Bill vesting Authority in the Minister after consultation with the Minister for Finance to make Regulations relating to the management of Societies, as he considers necessary or expedient for the purpose of securing their proper and efficient management or for the purpose of promoting the orderly and proper Regulations of Buil- ding Societies' business. This Section is likely to be controversial, as it vests very wide powers in the Minis- ter to regulate the expenditure of Societies, arising from its operation and management and also for a code of practice relating to Building Societies. Under Part 6 of the Act, Section 77, the Minister also has power when he considers it expedient, in the interests of the orderly and proper regulation of Building Society business and 7

January-February 1976

GAZETTE

of Friendly Societies shall for the purposes of the Act be the Registrar of Building Societies as well (Section 85). Further provision is made to enable the Minister for Finance to make moneys available to Building Soci- eties by borrowing on foot of a Guarantee by that Minister of such borrowings, so that the total amount outstanding of any moneys, the repayment of which is guaranteed under the relevant Section, does not exceed twenty million pounds. Further provision is made that any moneys advanced under such a Guarantee must be paid within a two-year period. Section 87 : Provision is made that the financial year for the Building Societies shall be ended on the 31st December, and that all existing accounting dates be brought into line within a period of eighteen months. Section 88 : The usual provision is made that a Certificate of Incorporation or registration or other document relating to a Society purporting to be signed by the Registrar shall in the absence of any evidence to the contrary be deemed to have been signed by the Registrar and shall be received in evidence accordingly and also that a printed document purporting to be a copy of the Rules of the Society and certified by an Officer of the Society, to be a true copy of its regis- tered Rules, shall, in the absence of any evidence to the contrary, be deemed to be a true copy of its Rules and shall be received in evidence accordingly. Section 91 of the Bill makes provision for the exemp- tion from stamp duties but this does not apply of course to Mortgages in excess of the £10,000,00 limit at the present time. Further provision is made in this part of the Bill for the punishment of offences and the breach of the Act and also provision in relation to Judgments against the Societies, the suspension and cancellation of registrations and the winding-up thereof, based on the provisions applicable under the Gomapnies Act, 1963. The final Section in the Bill is Section 96 which is a saving Section in respect of all things done and Instruments created under the repealed Legislation set out in the Schedule to the Act.

having regard to the demand for loans for house pur- chase and the financial needs of the housing programme, he may subject to the consent of the Minister for Finance make Regulations in relation to the purposes and amounts of loans by Societies and the conditions subject to which such loans may be made. This Section is also likely to be controversial delimiting as it does the powers of the Societies in the conduct of their business. Sections 76 and 77 in conjunction with Section 5 vest in the Minister virtual control of the Building Societies and their activity and, unlike the English Building Soci- eties Act of 1962 which spells out the Statutory limita- tions in detail, these Sections, as contemplated by the Bill, will enable the Minister to control the affairs and activities of Building Societies, their lending policy, the rates of interest on loans, the amount of advances and also all other matters relevent to national housing policy. As to how these Sections will in fact operate would be mere speculation and the future of the Building Society movement will in the final analysis depend on the confidence shown in it by the people as an attractive investment, giving a realistic return with security and ease of withdrawal. Th e Bill provides certain criteria which must be observed as security for loans on freehold and leasehold Estates and the valuation of the security for loans. Provision is made in the Bill to continue the prohi- bition of Building Societies from making advances on the security of freehold or leasehold Estate which is subject to a prior Mortgage unless the prior Mortgage is in favour of the Society making the loan (Section 80). There is an interesting provision in the Bill at Section 82 which lays down strict Rules for Societies to account to the Mortgagor after the realisation of a Mortgage within twenty-one days from the completion of the sale. Strangely enough no mention is made of puisne incum- brancers in the Section and the liability of the Societies to account to second and subsequent Mortgagees who may be entitled to the surplus rather than the Mort- gagor. This particular Section appears to be based on Section 36 of the English Building Societies Act, 1962, and there is a Sub-section in the English Act which would appear to give some authority to Building Soci- eties to account as Mortgagees in possession realising the property to see that the rights of puisne incumbrancers are protected. There appears to be no specific provision in the Sec- tion or in the English Section enabling Societies to lodge the proceeds of sale in Court under the provisions of the Trustee Act. It may well be that this right exists and express power to a Building Society would be very helpful to Societies, where difficult problems between contending puisne incumbrancers arise and in cases where liability is challenged by the Mortgagor. The Societies are bound to keep a record of all loans and all other relevant details in connection with the making of advances (Section 83). Section 84 provides for the operation of a receipt under the seal of the Society in lieu of a re-Conveyance both in registered and in unregistered land in like man- ner, as heretofore operated, under the provisions of Section 42 of the 1874 Act (Section 84). By way of general comment a number of provisions in the Bill bring Building Societies into line with the relevant provisions in the Companies' Act, 1963, and in this connection reference should be made to the expla- natory memorandum published with the Bill. We now pass to Part 7 of the Bill which is the final or tidying up part of the Bill dealing with miscellaneous ••ems. This part of the Bill provides that the Registrar 8

SAINT LUKE'S CANCER RESEARCH FUND

Gifts or legacies to assist this Fund are most gratefully recived by the Secretary, Esther Byrne, at "Oakland", Highfield Road, Rathgar Dublin 6. Telephone 976491. This Fund does not employ canvassers or collectors and is not associated with any other body in f und raising.

GAZETTE

January-February 1976

Generally speaking, the Legislation proposed by the Bill is welcome and timely. The protection of the public who invested money in Building Societies was a major concern of all interested in the movement and the ser- vice thereby for Members and Borrowers from the Society is self evident. There are some controversial proposals envisaged by the Bill particularly the powers vested in the Minister for Local Government and the Minister for Finance enabling the Ministers in certain circumstances whenever the Ministers consider it exped- ient, in the interests of the orderly and proper regula- tion of Building Society business and having regard to the demand for loans for home purchase and the finan- cial needs of the national housing programme. The affects of the Section in the Bill would appear to give to the Minister virtual control of the Building Society movement and its activities if and when the M inister in conjunction with the Minister for Finance considers it expedient to do so. As to whether this is in the best interests of the Building Society movement one must await developments and the operation of the Sec- tion and the Regulations made thereunder. The question as to whether borrowing members, or as they are usually called advanced members, of a Society should in fact be given membership status appears to be a matter entirely for the Rules of each individual Society, and in any event advanced mem- bers even though they may have a right under the Rules to attend General Meetings they would appear at most to have a voice only but no vote.

There appears to be no particular advantage so far as advanced members are concerned in being members of the Society as all their rights and obligations are merged in the Mortgage Contract itself, coupled with the Rules of the Society relevant to such Mortgage Contract, insofar as such Rules are referred to and incorporated in the Mortgage Contract. There is one final problem, namely the inspection of Mortgage Contracts in respect of completed premises for audit purposes at the end of each financial year, and it appears to be a formidable if not an impossible task from the point of view of Auditors having regard to the non-availability of such Contracts in Land Registry cases which now constitute a very big percen- tage of Building Society lending. Another provision of some consequence is the appli- cation of Section 45, Land Act 1965, which for some reason does not constitute Building Societies qualified persons like Banks and other Institutions referred to in that Section, thereby eliminating the expense and trouble of making Returns to the Land Commission under that particular Section on the usual quarterly basis in pursuance of general consents and adminis- trative costs thereby involved. The above is a general summary of the main provi- sions of the Bill and for further detail, reference should be made to the Bill itself and in particular to the very full and detailed explanatory Memorandum published along with the Bill. PROFESSIONAL FEES FOR R.T.A. PROCEEDINGS ARISING OUT OF ROAD ACCIDENTS as agreed with the Accident Offices Association 1. In the opinion of the Society £10.50 is the minimum proper fee which should be accepted by a member of the Society where written instruc- tions are given for either: (a) attending at a coroner's inquest, or (b) attending a court of summary jurisdiction to defend any proceedings under Sections 52 or 53 of the Road Traffic Act 1961 as amended by Sections 50 and 51 of the Road Traffic Act 1968, or (c) attending to observe such proceedings pro- vided that where proceedings are conducted in a town other than the town where the Solicitor has his principal office, there should be a reasonable addition for time and travelling expenses. 2. Where a report of the proceedings is required the minimum fee for the report should be £15.75. A report should contain the names of witnesses, a summary of the evidence of each, the decision of the Court and an appreciation of the effect of the evidence on the question of civil liability for damages. 3. The minimum fee does not apply in cases of exceptional difficulty or responsibility. Reasonable additional fees should be paid in such cases. 9

DEBT COLLECTION COSTS The Council of the Law Society has recommended the following scale of costs in relation to debt collections:—

10°/

up to £500 £500—£2,500

5%

By negotiation £2,500—upwards The necessity of making the arrangement in advance is emphasised.

BUILDING SOCIETY UNDERTAKINGS— Indemnity re Registered Land In Requisitions on Title to a member, a Building Society Solicitor included the following: an Under- taking was required from the purchaser that he would indemnify the mortgagee (The Building Society) and their solicitors against the consequences of non- registration, should registration be refused by the Land Registry for any reason whatsoever. Member, who was acting for the purchaser, objected to this requisition, and sought advice from the Council. In another case, a member, solicitor for the pur- chaser was required by a Building Society Solicitor to complete all the relevant Land Registry transactions relating to the title within 40 days. The Council disapproves of both of these practices.

GAZETTE

January-February 1976

EUROPEAN SECTION

Territorial protection Territorial protection is therefore justified against goods imported from a member state where the inven- tion in question is not patentable if the goods were manufactured there without the patentee's consent, express or implied (the Parke Davis case). It is justified against goods infringing the patent or trademark im- ported from outside the EEC or from another Member State, which have been produced and sold without the patentee's consent and in violation of his patent rights. And it seems fairly likely from statements made by the Court in the Centrafarm and Cafe Hag cases (although the point has not yet been directly decided), that terri- torial protection is permitted against goods produced under a similar patent or trade mark in another Mem- ber State where th£ original owners of the patents or marks were legally and economically independent: the case of similar patents and trade marks not having a common origin. In other words, unilateral exercise of rights not having a common origin with those rights, if any, under which the goods were produced elsewhere in the EEC, is permitted. On the other hand, national patent or trade mark rights cannot be used to prevent imports from another Member State of goods which have been legally marketed there by the patentee or trade mark owner or its licensee, or otherwise with its consent (e.g. by an associate company). In such a case the owner's exclusive right to the first sale has been satisfied, and the owner therefore has no right to divide up the Common Market. If this was not the law, the owners of patents or trade marks could partition off national markets and so prevent the unifying of the Common Market, though this would not be justified to protect the essence of the owner's rights. It follows that there are now considerable oppor- tunities for companies to buy patented or trade marked goods from the patentee or trade mark owner or his licensee (or after they have been sold for the first time) and to export them to other EEC Member States where the prices being charged by the local licensee are higher. This was what the Centrafarm company was doing. As a result of the Cafe Hag Case, the same rule applies (i e. territorial protection is not obtainable) where the consent was given by the previous owner of a trade mark, as well as by the present owner. Also, the person entitled to use the trade mark in one Member State may sell directly into any other Member State where a trade mark with the same origin exists. It is not yet clear that these two consequences of the Café Hag case apply also to patents. Owners in different Member States of "parallel" trade marks having the same origin may therefore need to differentiate their goods from those of the other owners by adding to the trade mark which is common to both. It is probable but not yet certain that these rules do not apply to the relatively unusual cases where two similar patents or trade marks were originally obtained by coincidence in different Member States by owners unconnected with one another (no common origin). Nor is it settled that the owner of a patent in say Ireland can use his Irish rights to prevent the import of goods manufactured in say Italy by a company un- connected with him if he never sought an Italian patent, or has allowed the relevant Italian patent to lapse. Clearly he could not do so if he had agreed to the manufacture in Italy, but he probably could obtain

Patent and Trade Mark Rights and Licences in Community Law

by John Temple Lang Introduction

This article is a short summary of a lecture given by John Temple Lang in Stockholm at a conference organised by the Federation of Swedish Industries and the University of Uppsala. The law of the EEC has greatly altered the position under patent, trade mark and knowhow law of many Irish companies, giving them new opportunities for ex- porting their patented and trade marked goods, and exposing them to new competition. It has also made illegal certain types of clauses restricting competition, which occur frequently in patent and similar licences, and therefore exposed companies to the risk of fines. This is a risk which should now be covered in a thorough audit. EEC law also offers companies a way of escaping from certain contractual restrictions on their growth which they may have agreed to in the past. The full text of the lecture is being published by the conference organisers. Defined rights to exercise patents and trade marks Many of the problems of reconciling the need for a unified Common Market with the national character of patent and trade mark laws have now been resolved. First, in a series of cases the Court of Justice of the European Communities has ruled on how far owners of patents and trade marks may exercise their rights to prevent goods made and marketed in the Community from being imported into a given Member State. Sec- ondly, the application of EEC law on restrictive prac- tices to patent licences is now becoming clearer. Apart from the classical arguments for competition and for antitrust laws to ensure that competition con- tinues, free competition was essential to create a single market out of first six, then nine, national markets. The benefits of competition in a larger market would not be obtained if companies could keep national frontiers in existence through market-sharing agree- ments or by using national patent or trade mark rights. Community rules on freedom to use patent and similar rights were not only an essential element in EEC anti- trust law, but an essential element in the uniting of Europe. Free competition to unify the Common Market is a means, not an ideology. Any method of maintaining national frontiers as barriers to trade is therefore looked at very critically by the EEC Commission and the Court. Article 36 EEC Treaty allows import restrictions in- sofar as necessary to protect industrial and commercial property, provided they do not form a disguised restric- tion on trade between Member States. Under the decision of the Court in the Centrafarm case, this means that national patent rights may be used to prevent importation of goods only in order to protect the patentee's exclusive right to use the invention and to put the resulting goods on the market for the first time either himself or by a licensee, and the correspond- ing right to prevent infringements. Similarly national trade mark rights may be used to exclude goods from a national market if this is necessary to protect the trade mark owners' exclusive right to sell the trademarked goods for the first time. 10