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THE SOCIETY
Proceedings of the Council
24th June 1971: The President in the chair, also pre-
sent Messrs W. B. Allen, Walter Beatty, Bruce St. J.
Blake, John Carrigan, Anthony E. Collins, Laurence
Cullen, Gerard M. Doyle, Joseph L. Dundon, James R.
C. Green, Gerald Hickey, Michael P. Houlihan, John B.
Jermyn, Francis J. Lanigan, Eunan McCarron, Patrick
J. McEllin, Patrick McEntee, Brendan A. McGrath,
John Maher, Gerald J. Moloney, Patrick G. Moore,
Desmond Moran, Senator John J. Nash, George A.
Nolan, Patrick Noonan, John G. O'Carroll, Peter E.
O'Connor, Rory O'Connor, Patrick F. O'Donnell,
James W. O'Donovan, William A. Osborne, David R.
Pigot, Peter D. M. Prentice, Mrs. Moya Quinlan,
Robert McD. Taylor, Ralph J. Walker.
The following was among the business transacted.
Income Tax Act 1967 Section 176.
The question of a solicitor's obligation to preserve pro-
fessional secrecy in regard to income which he may
receive in the form of deposit interest, rents or other-
wise and requests from inspectors of taxes for disclosure
of information about such matters was discussed with an
opinion from senior counsel as to a solicitor's professional
duties. Members have been receiving requests from the
inspectors throughout the country and have referred the
matter to the Society for advice.
Representatives of the Council discussed the matter
with senior officers of the Revenue Commissioners. As
the result of the discussion it was decided to refer the
matter back to Counsel for clarification of certain points
arising from his opinion and the matter will be on the
agenda of the Council at their next meeting.
Stakeholders
The Council considered on a report from a committee
a query which was received from a local bar association
as to the duties and rights of a stakeholder who
receives a deposit on the sale of property. The Associa-
tion enquired whether the solicitor or the auctioneer is
the proper person to act as stakeholder. The Society's
standard conditions of sale by private contract pro-
vide that the deposit is to be paid to the solicitor. On
sales by public auction the conditions may be adapted
to provide for payment of the deposit either to the
solicitor or to the auctioneer. As the matter is regulated
by the conditions of sale it is a matter for instructions
from the client in each case and where appropriate for
negotiations and action at Bar Association level. The
latest authority on the question of the incidence of loss
where the stakeholder defaults is the unreported
decision of Kenny J. in Lemas Investments Limited v
Harvey 26th January 1970 summarised in the Society's
Gazette of February 1970. It was there decided that
the vendor had to bear the loss. On the question of
interest on the deposit, there is authority for the pro-
position that the stakeholder is entitled to the interest
during the period between contract and completion.
The Council however decided not to express any opin-
ion or recommendations on the legal questions arising.
FURNISHING OF DOCUMENTS WITH
CONTRACTS
A member wrote to the Society drawing attention to
difficulties created for the purchaser's solicitor by the
increasing practice whereby copies of all documents of
title are furnished with the draft contract for approval.
This affords constructive notice to the purchaser of all
latent defects in title details of which may be discovered
by inspection of the documents. The purchaser's solici-
tor is placed in the position of having to investigate the
title before allowing the contract to be signed. In prac-
tice there is the added difficulty especially in the case of
a sale by public auction in that this examination must
be carried out within a limited time.
The Council stated that they disapprove of this prac-
tice. The correct practice is to furnish a copy of the root
of title only with the draft contract: when the contracts
have been exchanged copies of the remaining docu-
ments of title are furnished. If there are latent defects
in title the better practice is to set out the facts fully
and frankly in the contract and thereby give the pur-
chaser an opportunity to decide whether to take the
title offered or not.
THIRD PARTY PROCEDURE
The Council considered Order 16 Rule 1 (i) of the
Superior Courts Rules under which it is necessary for a
defendant to obtain leave of the Court to serve a third
party notice. The application for leave is made
ex parte
on affidavit.
In the view of the Council such application should
be unnecessary where the consent of the plaintiff in
writing is obtained. Where the plaintiff's consent is not
"forthcoming the application to the Count should be on
notice. The Council has suggested to the Superior
Courts Rules Committee that Order 16 Rule 1 should
be amended accordingly.
PARTICULARS DELIVERED STAMP
A member wrote to the Society and stated that he was
unable to obtain a short form S.T.20 which is lodged
with the Revenue Commissioners together with a copy
of the deed for retention when applying for the par-
ticulars delivered stamp. The Revenue Commission-
ers informed the Society that form S.T.20 was out of
print but on representations being made by the Society a
supply of the form has now been made available.
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