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GAZETTE
CORRESPONDENCE
12 South Mall,
Cork.
28th November, 1978
The Editor,
Law Society Gazette Office,
Dublin 7.
Dear Sir,
Further to my letter of the 22nd September, 19781 feel
it appropriate to draw attention to the House of Lords
decision in the case of
Saif Ali
v
Sydney Mitchell and
Co., and Others.
In 1977 the Court of Appeal ruled that
there was no distinction between the immunity of a
barrister from an action for professional negligence at the
suit of a client in respect of his conduct and management
of a case in Court, and in respect of advising on litigation
about the case out of Court. That decision was based
mainly on public policy although there were many who
felt that it was in fact contrary to public policy to allow
barristers such a wide immunity whilst other professional
men had to answer their acts of negligence and could
claim no such immunity.
The House of Lords heard the appeal in the
Saif Ali
case last term and Judgment has just been delivered. By a
majority of 3 to 2 it has been held that a barrister can be
subject to a claim for professional negligence for advice
given or work done negligently before a case comes to
trial. The test to be applied is that which was laid down by
Mr. Justice McCarthy in the New Zealand case of
Rees
v
Sinclair
1974. In that case Mr. Justice McCarthy said "I
cannot narrow the protection to what is done in Court; it
must be wider than that and must include some pre-trial
work. Each piece of before trial work should, however, be
tested against the one rule; that the protection exists only
where the particular work is so intimately connected with
the conduct of the case in Court that it can fairly be a
preliminary decision affecting the way that case is to
conducted when it comes to a hearing. The protection
should not be given any wider application than is
absolutely necessary in the interests of the administration
of justice; that is why I would not be prepared to include
anything which does not come within the test I have
stated."
Yours faithfully,
Rory F. Conway.
NATIONWIDE INVESTIGATIONS
(Laurence Beggs)
126 BROADFORD RISE
BALLINTEER
DUBLIN 16
Phone 989964
DECEMBER 1978
The Agricultural Credit
Corporation Limited,
Box 111,
ACC House,
Upper Hatch Street,
Dublin 2.
Telephone 780644.
10th December, 1978
Dear Editor,
I was interested to note that in the October 1978
Gazette you carried an article by Vincent Crowley on the
Agricultural Credit Act, 1978.
I would like to congratulate Mr. Crowley on his
synopsis of the main provisions of this Act but, at the
same time, feel that perhaps a somewhat erroneous
impression was created in relation to the part of the Act
which deals with Charging Orders.
In this particular regard Mr. Crowley's opening
comment was as follows — "this part of the Act is the
most far-reaching, progressive and controversial section
of the Act." I would go along with the reference to far-
reaching and progressive but could hardly accept that the
section in question would introduce controversy. What is
being attempted here is the introduction of a system
whereby the Agricultural Credit Corporation ("the
Corporation") having advanced monies to an individual,
could charge the lands subsequent to such issue with the
repayment of the funds in question. Any element of
controversy that might appear in such a practice is, I feel,
substantially diminished by sub-section 5 of section 54,
which was not mentioned in Mr. Crowley's article. This
particular sub-section provides that a Charging Order
may be made only with the consent of the person to
whom the funds have been advanced. Perhaps the
controversy which Mr. Crowley had in mind arises from
the Corporation's ability to make such an Order in
respect of advances for permanent improvement purposes
to a non-registered owner who is in occupation of
registered land. Advances of this nature automatically
increase the value of the land and the question of
ownership is not, therefore, of paramount importance.
However, it is intended to proceed on this basis only
where I am reasonably satisfied that title has been acquired
by the person to whom the advance is made.
I would like to make it quite clear that one of the
primary motives behind the introduction of such a system
is to enable the Corporation tp issue funds more speedily and
allow the borrower's legal adviser to deal with any minor
problems on the title to the lands charged without the
additional pressure of a client frantically seeking the issue of
funds.
When the legislation was being introduced, time
constraints did not permit the issue of an explanatory
memorandum. For this reason, and because a number of
Solicitors had asked me for guidelines on some sections
contained in the Act, I prepared a short commentary on
its main provisions. If any members of the Society would
be interested in obtaining a copy of this commentary, they
might drop me a line and I will send on a copy.
Yours sincerely,
Dermot F. Jones,
Solicitor.
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