33 / 462
GAZETTE
JAN/FEB 1993 '
"In the law of contract, the posting
of a letter was deemed to be an
acceptance of an offer even where in
one celebrated case the letter never
arrived. In my opinion, such a rule
must be applied to the transmission
by fax, given a much greater certainty
of receipt, when so much of the
human element has been eliminated.
In any event, a fax is now such an
accepted means of communication
that the courts should be very slow to
cast doubts on the efficacy of the
invention, when especially,
acknowledgement of receipt by
electronic means would be tantamount
to a recorded delivery in the
overground postal service."
In his judgment, in effect, Judge
McMenamin held that the defendant
had received the terms and
conditions of business which had
been sent by fax.
Correspondence
Editor,
Gazette,
Re: The Dean's Deed.
Dear Madam,
The article in the November
Gazette
on the centenary of the Registration
of Deeds system caught my eye,
but for none of the right reasons. It
was the photograph of a memorial
executed by The Dean himself,
Jonathan Swift, which interested
me.
The other parties to the deed can be
seen, without much difficulty, to be
ones Thomas Ash and St. George
Ash of Co. Meath and Dublin
respectively. St. George Ash (or
properly Ashe) was a very notable
figure, Provost of Trinity College,
co-founder of the Dublin Society,
later the RDS, and - JV Luce's
recent history of TCD tells us -
inventor of the coal briquette! He
also preached, on 9 January, 1693,
at the service for the first centenary
of Trinity College, which oddly
enough fell in 1693/94. Were last
years celebrations premature? The
writer proposes that we start all over
again!
Judge McMenamin in his judgment
referred to the case of
Hastie and
Jenkerson
-v-
McMahon
[1991] 1
All E.R. 255. In
McMahon,
the
Court of Appeal held that the
transmission of a document (other
than documents required to be
served personally or writs and other
documents which initiated
proceedings) by fax constituted a
good service, provided that it
could be proved that the document
had in fact been received in a
complete and legible state by the
person on whom service was
effected.
In
McMahon
the Court of Appeal
considered that since the purpose of
serving a document was to ensure
that its contents were available to
He and his brother Thomas were
apparently close friends of Swift.
The Dean, in one of his works, gives
as a footnote the following legalistic
tale, which he tells of Thomas:
Thomas Ashe was riding one day
from his home to Mullingar when it
came on to rain very heavily. He
came to an inn where he decided to
get shelter, refreshment and a rest
for his horse. Dismounting, he called
the ostler to take his coat which was
soaked through. " I will not sir,"
replied the man.
"Dammit, I'm drenched to the skin,
take my coat you . . . . " yelled
Tom.
" I will not, to my dying day" the
abused wretch replied "You know as
well as myself, sir, 'tis a felony to
strip an ash!"
Yours sincerely,
Robert Ashe,
Solicitor,
Griesemount,
Ballitore,
Co. Kildare.
•
the recipient, and whether it was
served in the conventional way or by
fax, the result was exactly the same
because although what was
transmitted was an electronic
message, what was produced, using
the recipient's machine and paper
was a document which the other
party intended should be served.
The Court of Appeal concluded
that service by fax could be good
service subject to any requirement
of the order requiring service of
the particular document and the
rules of the Supreme Court.
The written judgment of Judge
McMenamin is available in the
library of the Law Society.
•
Review of Guide
to Professional
Conduct
The President of the Law Society,
Raymond Monahan, has requested
the Professional Purposes Committee
to carry out a review of the
Guide to
Professional Conduct of Solicitors in
Ireland.
The Guide, which was
published in 1988, has eight chapters
dealing with various topics. The
Committee intends in the first
instance to deal with topics that
affect a solicitor's relationship with
other solicitors (i.e. chapter 7 of the
current Guide).
The Committee invites submissions
on this issue from individual
members or Bar Associations. The
revised Guide will become the
authoritative reference to
professional conduct.
All submissions should be forwarded
to
Therese Clarke,
Solicitor,
Secretary, Professional Purposes
Committee, Law Society, Blackhall
Place, Dublin 7.
The closing date for receipt of
submissions is 31 March, 1993.
•
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