47 / 264
GAZETTE
MARCH 1978
court or an agency of the state unless the Minister
of Justice for an important state reason relieves him
of this obligatioin. A lawyer cannot invoke his
obligation to keep secrets if, under the provisions of
the Criminal Code, he is bound to inform the
authorities of a committed crime."
That quotation is not invention. It is taken from a law
of one of the Eastern European countries. And it is
precisely because the law of the
ancien régime
required a
lawyer to disclose "anything menacing to the king" that
the law of France is as strict on this subject as it is.
The European Community has many obvious defects.
One of its merits is that it forces lawyers brought up in
different legal systems to look more closely at thier own
system to see what really matters and, perhaps, preserve
it before it is too late.
The vigorous action which has been and is being taken
by the CCBE and by national professional bodies has had
an effect in making the Community and national
authorities aware of the dangers inherent in ill-considered
action or legislation. It is important that individual
lawyers should be aware of them too.
On the immediate practical level, lawyers in Scotland
should be particularly careful in three respects. First, if a
client for whom they act is investigated by the EEC
Commission, steps should be taken to ensure that
correspondence which is "privileged" by UK standards is
not surrendered without a fight. Second, if they are
involved in advising clients in other countries, they should
bear in mind that the UK concept of "privilege" does not
apply. Third, they should, where possible, be careful to
distinguish in correspondence between letters which relate
to the management of their clients' affairs by themselves
as agents and letters which are intended to convey legal
advice. The former may be subject to seizure, the latter
ought not to be.
If there is doubt, the Law Society (or, in the case of
advocates, the Dean of Faculty) should be consulted.
This article has been reproducedfromthe "Journalofthe
Law Society of Scotland" with the kind permission of the
Scottish Law Society.
Fees Orders 1978
(1) Members are advised that a number of Fees Orders
came into force on the 8th day of March, 1978. The
average increase in Court fees in the Supreme Court,
High Court, Circuit Court and District Court is 77%
over those determined in 1970.
The Orders in question are:
(a) Supreme Court and High Court (Fees) Order,
1978. S.I. No. 42 of 1978.
(b) Circuit Court (Fees) Order, 1978. S.I. No. 43 of
1978.
(c) District Court (Fees) Order, 1978. S.I. No. 44 of
1978.
(d) District Court (Fees) (No. 2) Order, 1978. S.I.
No. 56 of 1978. The No. 2 Order outlines,
inter
alia,
the proceedings in respect of which no fees
are payable.
(2) The Criminal Justice (Legal Aid) (Amendment)
Regulations, 1978. S.I. No. 33 of 1978, provides for
changes in the fees and expenses payable to solicitors
under the Criminal Legal Aid Scheme.
(3) The fees in the Land Registry are also up but they are
not in force until the 3rd day of April, 1978. The
relevant Orders are:
(a) Land Registration Fees Order, 1978. S.I. No. 40
of 1978; and
(b) Land Registration Fees (No. 2) Order, 1978.
S.I. No. 74 of 1978.
(4) Circuit Court Rules (No. 1), 1978. S.I. No. 77 of.
1978, which came into operation on the 15th day of
March, 1978, provide for the discontinuance of the
need for a Certificate of Jurisdiction from the Probate
Registry in Circuit Court contentious probate
proceedings.
Irish Solicitors Appear in European Court
A significant step in the history of the solicitors' profes-
sion occurred this Winter. District Justice Bernard
Carroll of Cork had become the first District Justice to
state a case on a point of Community law to the Court of
Justice of the European Communities, last Summer. This
case,
Minister for Fisheries v Schonenberg,
was heard in
December, and Rory Conway became the first solicitor
from Ireland or Britain, other than solicitors employed by
the Commission, to appear before the Court. Since then
Liam Young of Dublin has appeared in another case,
Mulcahy v Commission.
Both solicitors referred to the
interest and the historic nature of the occasion. Mr.
Conway had the satisfaction of having his case decided in
his favour in February; the result of
Mulcahy v
Commission
is awaited.
The High Court has already stated several cases to
Luxembourg under Article 177 of the E.E.C. Treaty. The
Supreme Court and the Circuit Court have yet to do so.
A case involving the Northern Ireland Pigs Marketing
Board was to be sent to Luxembourg, but was settled, and
the papers were never sent, so there has yet to be a case
stated from Northern Ireland. Unlike the Schonenberg
case,
Mulcahy v Commission
involved proceedings issued
by Mr. Young directly in the Court of Justice, and was
not a case stated.
More and more points of Community law will come to
the notice of practitioners and their clients. (What may be
a case of professional negligence involving Community
law has arisen in Britain.) Many such questions will arise
in cases before the lower Courts, and the quickest and
cheapest way of dealing with them may well be, as it
certainly was in the Schonenberg case, to state a case to
the Court in Luxembourg immediately. Solicitors
therefore should be ready to argue questions of
Community law not only in the Irish Courts, but in
Luxembourg as well, when necessary. On the evidence to
date, they should be able to do it very well.
47