The Gazette 1990

GAZETTE

JANUARY/FEBRUARY 1990

Public should

generally be Solicitors -

Chief Justice

The Chief Justice, Mr. Jus t i ce Finlay, in an interesting reserved

judgment delivered on 6th October 1989 dealt with the question

of the appointment of Notaries Public. The particular applicant

concerned was a retired person who was not a lawyer but who was

already a Commissioner for Oaths and a Peace Commissioner. The

application was for his appointment as a Notary Public for the City

and County of Cork. The application was both supported and

opposed. In the course of his judgment the Chief Jus t i ce said:

'The first thing which is clear

beyond any demonstration is that

the applicant's personal reputation

for responsibility, integrity and

community service, all of which

would be relevant matters, is

beyond any question or challenge

and there is no suggestion that he

would not be for any responsible

position a responsible applicant. He

is not a lawyer, and whilst he has

recently gone to the trouble of

having himself instructed by an

academic lawyer with regard to the

particular duties or aspects of the

duties of a Notary Public, he is not

a person who has either qualified

as a lawyer or who has practised as

a lawyer. In that context, I am dis-

posed to follow precedents which

I find my two immediate prede-

cessors charged with this responsi-

bility have laid down, and that is

Chief Justice O'Dalaigh in the case

of Alfred McKeown, and Chief

Justice O'Higgins in the case of

James O'Connell. The principle laid

down by Chief Justice O'Dalaigh

and confirmed and accepted by

Chief Justice O'Higgins can be

shortly stated, as it was stated in

the judgment of Chief Justice

O'Higgins in O'Connell's case as

follows:

"The general rule confining the

office of Notary Public to

members of the Solicitors'

profession does not, I need

hardly say, arise from any desire

to favour members of the legal

profession. The reason for the

rule is the very practical one that

the discharge of the duties of

Notary Public may call for a

range of knowledge which is

assured by academic training

which precedes admission to the

Solicitors' profession, the office

of Notary Public is a high one in

the field of international ex-

hanges and its prestige will be

safeguarded by a close adher-

ence to the practice which my

predecessors have established."

That was a judgement of Chief

Justice O'Dalaigh which was

reported in 1965 Irish Jurist

Reports, in other words a judgment

on an application made in the year

1965. The applicant in that case

was a person who had significant

experience in that he was a chief

clerk in a County Registrar's office.

Chief Justice O'Higgins in deal-

ng with the O'Connell application

significantly being satisfied that

there was a need for a Notary

Public in the area dealt with the

application by in effect adjourning

it to see if a qualified lawyer would

apply to fill the gap.

I see no reason to depart from

that general principle laid down in

these two decisions. If anything

has occurred which might even

marginally alter the situation as I

would understand it, since these

two decisions were delivered by my

predecessors it is that a greater

legal significance, I believe, attches

to the work of a Notary in an

expanding European situation. It is

for that reason that recently in

dealing with an application I ex-

pressed in an 'ex tempore' debate

rather than any judgment or ruling,

I expressed the view that even a

fully-qualified Solicitor might be

more appropriately an applicant to

be appointed a Notary Public if he

or she had a significant number of

years' experience rather than being

a newly-qualified Solicitor.

In those circumstances, I must

look, in this case, as to whether

there is clear evidence of a need,

and if there is, whether there are

the exceptional circumstances

which would warrant the appoint-

ent of a person who is not a lawyer

as a Notary Public. I am satisfied,

having carefully considered this

matter, that there is not established

a need which would warrant the

appointment which is being sought.

An application was made

supported by an expansion which

is referred to in the affidavits of the

applicant which I accept, of in-

ustrial and other activities in the

Bishopstown and Western suburb

area of Cork, but that application

was made as recently as March of

1988, and notwithstanding signifi-

ant opposition, I decided that there

was a need and I appointed a fully

appropriate and qualified Solicitor.

His experience since that time

seems to me to be vital and of great

importance in this case. I must

accept, of course, the total

accuracy of my own Notaries'

information and I have no reason to

doubt it, and it is that though he is

readily available, both in and out of

his office in this area, there have

been an extremely limited number

of notarial acts which he has been

requested to carry out. In those

circumstances, I cannot see that a

need has been established. The

exceptional circumstance relied

upon by counsel for the applicant

in his careful submissions, namely,

that there is a very special need and

a very special capacity of the

applicant as a retired person whole-

time engaged in the functions of a

Commissioner for Oaths and Peace

Commissioner to fill it, does not

seem to me to be established either.

Therefore, with reluctance, of

course, I must refuse this applica-

on.'

SOLICITORS

BENEVOLENT

ASSOCIATION

NO T I CE

NOTICE IS HEREBY GIVEN that the

One Hundred and Twenty Sixth

Annual General Meeting of the

SOLICITORS BENEVOLENT ASSOCI-

ATION will be held at the Incor-

porated Law Society's Building,

Blackhall Place, Dublin, on Thursday

the 8th of March 1990 at 12 noon:

1. To consider the annual Report

and Accounts for the year

ended 30th November 1989.

2. To elect Directors.

3. To deal with other matters

appropriate to a General

Meeting.

Clare Leonard

Secretary