The Gazette 1989

GAZETTE

APRIL 1989

Practice

Notes

Deposits in sale

generally

The Incorporated Law Society of

Ireland General Conditions of Sale

provide that in a .sale by Auction

and a sale by Private Treaty, the

deposit monies are to be paid to the

Vendors' Solicitor as stakeholder.

It is the practice, in some

instances, for the Vendors'

Auctioneer or Estate Agent to hold

the whole or part of the deposit

monies pending the completion of

the transaction. In these instances,

the Vendors' Solicitor and the

Purchasers' Solicitor must advise

their respective clients of the

provisions of the Contract for Sale

relating to deposits and take

instructions on whether or not the

Auctioneer/Estate Agent is to hold

any part of the deposit monies,

pending the completion of the

transaction.

The Vendors' and Purchasers'

Solicitor must also advise their

clients of the risk to the deposit

monies in the event of the

Auctioneer/Estate Agent becoming

insolvent; in this regard it should be

noted that Auctioneers and Valuers

who are members of the IAVI

attract the protection of the IAVI

Compensation Fund. Clients should

also be advised that further pro-

tection may be afforded by having

the Auctioneer/Estate Agent hold

the monies in his possession as

stakeholder.

It must be emphasised that if the

instructions received vary the

General Conditions of Sale relating

to deposits, the contract should be

altered to reflect those instructions.

The Professional Purposes Com-

mittee feels that it would be good

and prudent for a Solicitor to obtain

an irrevocable authority and

instruction from a client prior to

discharging any outlays from the

proceeds of sale whether they had

been fees of an Auctioneer/Estate

Agent, Engineer or otherwise.

•

Professional Purposes Committee

Sale by Private Treaty

I sue of Contracts to Auctioneers

The Professional Purposes Com-

mittee has been considering the

prevalent practice of Solicitors

sending out to Auctioneers copies

of contracts for sale where

premises are for sale by private

treaty and not by auction. It

appears that Auctioneers fre-

quently seek contracts from the

Vendors' Solicitors in order to be in

a position to have them completed

by purchasers once a sale has been

agreed.

The Committee considers that

the best interests of the public and

Solicitors duty are not served by

the existence of this practice which

does not allow a Purchaser's

Solicitor a reasonable opportunity

or considering the pre-contract title

which is being offered before

advising his client as to whether he

should proceed to complete the

contract.

There must also be some doubt

as to whether a purchaser who

executes a contract presented to

him by an Auctioneer, without

having had the opportunity either

personally or through a solicitor of

inspecting the title documents

referred to in the first schedule of

the standard form of contract,

would be bound thereby.

The committee considers that a

party to a sale should have an

opportunity of having the Contract

vetted by a Solicitor before

executing same and recommends

that in Private Treaty Sales the

practice (where it exists) of sending

out copies of contracts to

Auctioneers be discontinued.

•

Professional Purposes Committee

Medical Negligence

Panel

(Ophthalmologists)

Members are referred to a Practice

Note which was issued in the

November 1987 issue of the

Society's Newsletter indicating

that the Society considered the

scheme offered by the Faculty of

Ophthalmology to be unsatis-

factory and that the Society no

longer recommended the scheme

to its members. The scheme

required the instruction of three

Ophthalmologists before a report

would issue in a case of alleged

medical negligence. The Society

has since entered into corre-

spondence with the Irish Ophthal-

mologics! Society and that Society

has agreed to operate a panel of

Expert Witnesses in medical

negligence cases on the basis that

a single expert witness would be

nominated. However, in exceptional

cases an expert witness would

have recourse to further opinions if

he required them.

The basis on which the panel will

operate is that Professor L. Collum

will act as a liaison for the panel

within the Royal College of

Surgeons.

The College has now furnished

the panel to the Society.

If members require the name of

an expert witness in this field they

are recommended to contact Miss

Anna Hegarty, Secretary of the

Litigation Committee.

•

Litigation

Committee

Practice Direction

The attention of practitioners is

directed to the changes effected by

Rules of the Superior Courts (No. 2)

1989 (S.I. No 20 of 1989] with

effect from 13th February 1989.

Setting down -

[0.36 r. 2(b)] Country Venues

Personal Injuries and

Fatal Injuries actions

may be set down for

trial by a judge only

at 7 country venues

- Waterford is now

added.

Circuit Appeals

(i) Notice of Appeal

(for Dublin sittings) is

to be lodged directly

in the Central Office

(Notice Office)

indorsed with

particulars of service

(Court fees £17). The

time for appeal is 10

days from the date

of the Circuit Court

Order, a certified

copy of which may

be lodged later.

(ii) Two books of

appeal with a

[0.61 r. 3(a)]

[0.61 r. 4]

131