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GAZETTE
DECEMBER 1992
development is proceeding which is
authorised by Permission granted
under Part IV of the 1963 Act but
which has not been or is not being
carried out in conformity with the
Permission because of non
compliance with the requirements of
a Condition attached to the
Permission or for any other reason.
Again, application can be made
either to the High Court or to the
Circuit Court.
Section 19 of the 1992 Act has
effectively abolished the old
distinction which existed between
sub-section 1 cases and sub-section 2
cases under section 27 of the 1976
Act.
The time limits applying to section
27 may be summarised as follows:
(A) application for injunction to the
High Court or to the Circuit
Court in relation to development
carried out without Permission
shall not be made once five
years have passed from the date
on which the development was
substantially completed.
(B) application for injunction to the
High Court or to the Circuit
Court in relation to an
unauthorised use where no
Planning Permission at all has
been obtained for the change of
use shall not be made after five
years from the date when the use
first commenced, no matter
whether the use commenced on
or before 1 January, 1994 (the
date on which paragraph (g) of
s.19 (4) comes into operation.
(Commencement order S.I. No.
221/1992) The effect of this will
be that the five year period will
in some cases already have
expired, but an application for
an injunction can still be
brought before 1 January, 1994.
(C) application for injunction to the
High Court or to the Circuit
Court in relation to authorised
development where there is non
compliance with the Condition
cannot be made after the
expiration of five years. The five
year period starts to run at the
end of the life of the Planning
Permission that is to say, in a
normal case, the five year period
provided for under section 2 of
the 1982 Act or such greater
period as may have been
prescribed or such extended
period as may be allowed under
sections 2 and 4 respectively of
the 1982 Act. The effect of this
will be that the five year period
will in some cases already have
expired, but an application for
an injunction can still be
brought before 1 January, 1994.
John Gore-Grimes
Insider Dealing
The attention of practitioners is
drawn to the provisions of Statutory
Instrument No. 131 of 1992. This
Statutory Instrument takes the form
of a declaration expressed to be for
the purposes of "the removal of
doubt" that section 108 of the
Companies Act, 1990 does not apply
to dealing outside the State in
securities. Section 108 is the basic
provision under which insider
dealing is made unlawful.
Accordingly, it appears that even
where the securities being dealt in
are Irish securities and/or the parties
to the dealing are Irish, an insider
dealing effected outside the State is
not unlawful for the purposes of the
1990 Act and will therefore not
attract the civil liability provided for
in Section 109 of that Act."
Company and Commerical Law
Committee
Independent Medical
Examination of Plaintiffs
The Litigation Committee has sent
the following letter to the Irish
Medical Council:
"Dear Sir,
Independent medical examinations of
a plaintiff by a doctor or consultant
on behalf of the defendant is an
established practice in litigation
where a plaintiff is seeking
compensation for injury suffered
allegedly at the hands of the
defendant(s) his/their servants or
agents. Such independent medical
examinations are carried out in
consultation with the plaintiff's
doctor or consultant. Formerly, the
practice was for the plaintiff's doctor
or consultant to be physically present
at such an examination. In recent
years, that practice has largely been
departed from and more commonly
the defendant's doctor or consultant
consults with the plaintiff's doctor
or consultant by telephone or by
post prior to the examination taking
place. In these circumstances, the
plaintiff is examined alone by the
consultant or doctor for the
defendant.
The function to be discharged by the
defendant's doctor or consultant is
to establish the nature and extent of
the injuries allegedly sustained by
the plaintiff and it is well established
that no question should be asked of
the plaintiff during the course of the
examination the answer to which
might have a bearing on the issue of
liability between the parties to the
litigation. The reason for this is that
the proper forum for the
establishment of the facts and the
determination of the issues is the
court.
A number of communications have
been received in recent times from
solicitors concerned that at such
examinations questions are
occasionally asked which have a
bearing on the liability issue. It is
appreciated that a thin line divides
categories of questions directed to
establish what the nature and the
extent of the injuries are from
questions touching on the liability
issue, but it is precisely because the
defendant's doctor or consultant
must confine himself to the former
that consultation with the plaintiff's
doctor or consultant is an essential
part of the procedure whereunder
independent medical examinations
are carried out.
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