The Gazette 1989

GAZETTE

MARCH 1989

this

Issue

Viewpoint

Defective Building Work:

Who should pay?

From the President

Younger Members' News 83

Eurlegal

Data Protection Act 1988 89

Practice Notes

People and Places

Jurisdiction of Courts and

Enforcement of Judgments

(European Communities)

Act, 1988

Obituaries

106

Book Reviews

107

Professional Information

109

Executive Editor:

Mary Gaynor

Committee:

Geraldine Clarke, Chairman

Eamonn G. Hall,

Vice

-Chairman

John F. Buckley

Gary Byrne

Patrick McMahon

Charles R. M. Meredith

Daire Murphy

John Schutte

Advertising:

Seán Ó hOisín. Telephone: 3 0 5 2 36

3 0 7 8 60

Printing:

Turner's Printing Co. Ltd., Longford.

The views expressed in this publication,

save where otherwise indicated, are the

views of the contributors and not

necessarily the views of the Council of

the Society.

The appearance of an advertisement in

this publication does not necessarily

indicate approval by the Society for the

product or service advertised.

Published at Blackhall Place, Dublin 7.

Tel.: 710711.

Telex: 31219.

Fax: 710704.

GAZETT

INCORPORATE D

LAWSOCIETY

OF IRELAND

Vol. 83 No. 3

March 198

Viewpoint

The sight of the serried ranks of the

judicial and bar establishment in

England and Wales ranging them-

selves to oppose the Lord Chan-

cellor's proposals for radical

alterations to the organisation of

the profession of advocate is

fascinating. The piquancy of the

situation is enhanced by the fact

that Lord Mackay's political master

is herself a member of the Bar.

Two of the principal changes

proposed in the Green Papers, the

abolition of the Bar's exclusive right

of existence in the Higher Courts

and the entitlement of Lawyers to

take cases on a "no foal no fee

basis", are not novel in this

jurisdiction. Solicitors have of

course had the full right of

audience in the High Courts here

since 1971. While the UK is not

noted for looking beyond its own

shores for examples when it is

preparing legislation, it may be that

the limited effect of the extension

of the right of audience to solicitors

in this jurisdiction has persuaded

the Lord Chancellor to propose a

more radical and complicated

system for England and Wales.

The creation of a new profession

of advocate, open to barristers,

solicitors and indeed non lawyers

who meet the educational criteria

seems certain to create further

unnecessary bureaucracy. Develop-

ments in other Common Law juris-

dictions, in Australia and Canada,

seem to have brought about a

change in the advocacy profession

by evolution rather than by the

imposition of complex new struc-

tures. In some of these jurisdictions

the normal progress to the status

of specialist advocate is by way of

what we would call the solicitors'

profession. Having spent a number

of years as "solicitors" some elect

to become specialist advocates in

the Barristers' profession.

Another proposal to permit law-

yers to enter into multi disciplinary

practices has brought forth one of

the more bizarre comments. Sir

Gordon Borrie, the Director of Fair

Trading in the UK who has been a

vociferous advocate of breaking

down restrictive practices in the

professions has strenuously objec-

ted to barristers being permitted to

enter into partnership with solicitors.

It might have been thought that

this type of partnership would have

been the most obvious develop-

ment if the intention is to provide

more ready access to legal services

for the lay man.

It would be amusing to watch

these events from the safety of a

neighbouring jurisdiction were it

not for the usual danger of "spill

over". It may be no bad time for us

to consider how effective the

provision of legal services is in

Ireland and whether any structural

changes need to be made par-

ticularly in relation to the provision

of advocacy services.

It has been suggested that actual

or anticipated disapproval by judges

has discouraged solicitors from

exercising their rights of advocacy

to any great extent in the higher

Courts. It is difficult to quantify the

extent of the basis for this sug-

gestion. Another explanation may

be that there are in fact only a small

number of solicitors who would

regard themselves as sufficiently

skilled in advocacy to warrant their

conducting cases, particularly in

the High Court. In addition there is

the cost factor. Only the most

modest firm of solicitors will have

such low operational costs as

members of the Bar. While the level

of fees charged by some barristers

does not always reflect their low

operating costs, nonetheless it is a

factor which enables them to

compete on a price basis, certainly

at the Circuit Court level.

Much has been made of the need

to preserve the independence of

the Bar but is it not time that the

Bar looked again at whether its

services could be more sensibly

provided by partnerships or associ-

ations of Barristers rather than by

the exclusively independent prac-

titioner.

•