The Law Reform Commission
AN COIMISIÚN UM ATHCHÓIRIÚ AN DLÍ
TWENTY FIRST REPORT
The Law Reform Commission
I.P.C. House, 35–39 Shelbourne Road, Ballsbridge, Dublin 4
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© Copyright The Law Reform Commission 2000
First Published May 2000
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TABLE OF CONTENTS
TABLE OF CONTENTS
On 22nd February 2000 I succeeded, as President of the Law Reform Commission, the Honourable Mr Justice Vivian Lavan who had been appointed in July 1998. In succeeding Judge Lavan, I wish to pay tribute to his leadership and work as President.
In August 1999, the Honourable Dr Turlough O'Donnell, former Lord Justice of Appeal in Northern Ireland, completed his term of office as a member of the Commission. We thank him for the contribution which he made from his wealth of experience. In his place we welcome Professor Finbarr McAuley who is Jean Monnet Professor of European Criminal Justice, at U.C.D.
In other ways, too, 1999 was a time of transition. In the first place while by the end of 1998 we had moved into new premises in Ballsbridge, substantial refurbishments were being carried out throughout 1999. These are now virtually complete. The year 1999 was also the first year of operation of the Commission's Strategy and Business Plan, 1999 to 2001. In addition, following the expiry of Dr Gerard Quinn's term of office as Director of Research in December 1998, he was replaced, as from July 1999, by Professor David Gwynn Morgan.
This is, therefore, a good time for stock-taking. It is plain to see that, compared to the mid-70s when the Commission was established and our First Programme was settled, the rate of change in society in general has quickened and, in response, there are now many agencies, whether permanent or ad hoc, which are, in one way or another, interested in law reform. In 1999, for instance, we had informal meetings with the Honourable Mrs Justice Susan Denham in her capacity as a member of the Courts Service. And we are in continuing contact with appropriate members of: the office of the Attorney General, the Department of Justice, Equality and Law Reform and other Departments of State, not least by way of the Attorney General's Consultative Committee. The Departments, are the bodies which are primarily charged with the duty of implementing the reforms which we propose in our Reports.
Against this background of change, it is well to re-state our approach. We see our role as enriching the democratic debate, in the following ways:
Our Second Programme for Law Reform will shortly undergo the statutory process of consultation between the Commission and the Attorney General before submission to the Government. This will indicate the basis on which we intend to co-operate with others who are interested in law reform and those who are responsible for the implementation of our recommendations.
I look forward during my term of Office as President, to working with my fellow Commissioners, towards an improvement of the laws of our country.
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Ar an 22ú Feabhra 2000, ceapadh mar Uachtaráan ar an gCoimisiún mé, in ionad an Bhreithimh Vivian Lavan. Ceapadh siúd i Mí Iúil 1998 agus ba mhaith liom a cheannaireacht agus a chuid oibre a mholadh.
I Mí Lúnasa 1999, d'fhágamar slán ag an Uasal Turlough O'Donnell, a raibh a thréimhse mar Choimisinéir curtha isteach aige. Gabhaimid buíochas leis ar son na cabhrach a thug sé dúinn; roinn se linn an saineolas a chruinnigh sé le linn dó bheith ag cleachtadh dlí agus le linn dó bheith ina Bhreitheamh ar an gCúirt Athchomhairc i dTuaisceart na hEireann. Ina áit siúd, cuirimid fáilte roimh an Ollamh Finbarr McAuley, Ollamh Jean Monnet le Ceartas Coiriúil i gColáiste na hOllscoile, Baile Átha Cliath.
Ar bhealaí eile, leis, ba thréimhse athrúcháin í an bhliain 1999. Ar an gcéad dul síos, bíodh is gur aistríomar ag deireadh na bliana 1998 go dtí ceannáras nua i nDroichead na Dothra, níor mhór ár gcuid oifigí a athfheistiú le linn 1999. Tá an obair seo tagtha chun críche anois, nach mór. Ba sa bhliain 1999 a cuireadh ár bPlean Gnó 1999–2001 i bhfeidhm don chéad uair. Chomh maith leis sin, ceapadh an t-Ollamh David Gwynn Morgan mar Chomhairleoir Taighde i Mi Iúil 1999.
Is maith is fiú, mar sin, cinéal stocáirimh a dhéanamh anois. Is léir go bhfuil an gnáthshaol ag athrú níos tapúla ná mar a bhí sé i lár na seachtóidí, nuair a bunaíodh an Coimisiún agus nuair a leagadh amach ár gcéad Chlár Oibre. Na laethanta seo tá suim ag roinnt mhaith gníomhairí, ar bhealach éigin, in athchóiriú an dlí. Sa bhliain 1999, mar shampla, bhí cruinnithe neamhfhoirmeálta againn leis an mBreitheamh Susan Denham, ina cumas mar bhall de Sheirbhís na gCúirteanna. Táimid i dteagmháil i gcónaí, trí mheán Choiste Comhaireach an Ard-Aighne agus trí mheáin eile, le baill d'Oifig an Ard-Aighne, den Roinn Dlí agus Cirt, Comhionannais agus Athchóirithe Dlí, agus de Ranna Stáit eile. Is ar na Ranna Stáit atá an dualgas ár moltaí chun athchóiriú an dlí a chur i bhfeidhm.
I measc na nathruithe seo, is fiú cur sios a thabhairt ar ár gcuspóir. Tá se d'aidhm againn an díospóireacht sa daonlathas a shaibhriú, ar na bealaí seo:
Is gearr go gcuirfear tús leis an bpróiseas comhairleach statúideach, idir an Ard-Aighne agus an Coimisiún, maidir leis an Dara Clár Oibre atá leagtha amach againn agus a chuirfear faoi bhraíd an Rialtais. Léireoidh sé seo an tslí ar cóir dúinn comhoibriú le gníomhairí eile a bhfuil suim acu in athchóiriú an dlí agus le gníomhairi a chuirfidh ár moltaí i bhfeidhm.
Táim ag súil le bheith ag saothni leis na Coimisinéiri eile, le linn dom bheith im Uachtarán, chun feabhas a chur ar dhlíthe na tíre seo.
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This Report covers the period from 1 January to 31 December 1999. It is addressed to the Attorney General pursuant to section 6 of the Law Reform Commission Act, 1975. The Report details the work undertaken by the Commission in 1999, its publications and action taken in areas covered by its Reports during the year.
The Law Reform Commission consists of a President, one full-time Commissioner and three part-time Commissioners.
The President of the Commission was The Hon. Mr Justice Vivian Lavan, Judge of the High Court.
The other Commissioners holding office were:
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The Director of Research in 1999 was David Gwynn Morgan LL.B, LL.M, Ph.D., Barrister-at-Law. Professor Gwynn Morgan holds the position on secondment from his position as Professor of Law at University College Cork. He commenced his work with the Law Reform Commission on July 1. The position of Director of Research was vacant for the preceding six months.
The Secretary to the Commission was John Quirke.
The Researchers during 1999 were as follows:
Ms Leesha O'Driscoll, BCL, LLM (European Law), Barrister-at-Law and Ms Róisín Pillay, Barrister-at-Law, LLB, LLM (Cantab.), Barrister-at-Law. (each throughout the year).
Ms Lia O'Hegarty, BCL, LLM (Mich.), LLM (Harv.)(until September).
Ms Bairbre O'Neill BCL, LLM. (as from September).
Mr Rory White BCL, BCL (Oxon.) (September 6th – October 4th)
Ms Siobhan Stack LLB, LLM, Barrister at Law (Gazumping; March-May) and Ms Laura Rattigan LLB, LLM, Barrister at law (Child Physical Abuse Limitations Period; August-November). These two staff researchers were retained as part-time researchers for the specific projects indicated.
Legal Information Manager was Ms Helen Bradley, BA, MPhil, MLIS. The Assistant Librarian was Ms Marina Greer, BA (Mod), HDipLIS.
Ms Emily Gibson BCL, LLM, acted as archivist during September-Jan 2000
Clerical Staff: Ms Deborah McAdams (Private Secretary to the President); Ms Dympna Forde, Mr Jim Healy and Ms Susan Fitzpatrick (for part of the year in each case).
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The Law Reform Commission was established as a statutory body corporate by the Law Reform Commission Act, 1975.
Section 4 (1) of the Act states:
“The Commission shall keep the law under review, and in accordance with the provisions of this Act, shall undertake examinations and conduct research with a view to reforming the law, and formulate proposals for law reform.”
As is elaborated on subsequent pages, the content of the Commission's research is determined and directed in two primary ways:
First, by a Programme for Law Reform: Section 4 (2) (a) of the Act requires the Commission, in consultation with the Attorney General, from time to time to prepare, for submission by the Taoiseach to the Government, programmes for the examination of different branches of the law, with a view to their reform. If a programme prepared by the Commission is approved (with or without amendment) by the Government, the Commission will examine and research the subjects set out in it and, if appropriate, formulate and submit to the Taoiseach proposals for the reform of the law in those areas under section 4(2)(b).
Second, by references from the Attorney General: Section 4(2)(c) of the Act provides that the Attorney General may request the Commission to examine and research a particular area of the law and, further, may request that proposals for reform in that area be submitted to him. The Commission must comply with such a request whether or not such area of the law is included in the programme submitted by the Commission and approved of by the Government
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Subsequent to its establishment, and pursuant to the provisions of the Act, the Commission prepared its first programme for the examination of different branches of the law, which was subsequently approved by the Government. Copies of the First Programme for Examination of Certain Branches of the Law with a View to their Reform were laid before both Houses of the Oireachtas on 4 January 1977.
The First Programme for Law Reform envisaged an extensive examination of the law. Among the general areas included in the programme were:
The majority of the topics, in so far as they were considered to call for proposals for law reform, have now been dealt with in reports by the Commission. Details of reports (and associated consultation papers) on topics in the First Programme for Law Reform are contained in APPENDIX A.
Work on the formulation of a new programme for law reform which set the agenda for the Commission's work over a specified period was virtually completed in 1999. The suggestions obtained during the consultation process which began in 1998 were considered by the Consultative Committee referred to below (see “Organisation, Management and Resources”) throughout 1999.
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Research undertaken at the request of the Attorney General forms a substantial part of the Commission's work. Details of Consultation Papers and Reports published to date on matters examined pursuant to references from the Attorney General are contained in APPENDIX B.
In May 1999, the Attorney General addressed the following request to the Commission:
“I hereby request the Law Reform Commission to undertake an examination of, and research in relation to, the law on limitation of civil actions as it relates to actions arising out of the abuse (other than sexual abuse) of children, the principles governing the matter and the approaches to the matter in other jurisdictions. And in particular, I request you to undertake research into the following aspects:
I hereby request you to submit to me recommendations for reform in respect of such law (if any) as the Law Reform Commission considers appropriate”.
Substantial work was done in 1999 on a Consultation Paper in response to this request. The background to it included proceedings in the Oireachtas on the Statute of Limitations (Amendment) Bill, 1998, which until it was amended included both child non-sexual abuse (now removed) and child sexual abuse, and of a Government decision to establish a specialist Commission to Inquire into Child Abuse generally, under the chairman of Miss Justice Laffoy of the High Court. That Commission's terms of reference is expected to be much wider, and in the main different, to that of the Law Reform Commission and legislation to establish it is awaited.
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The Commission's reports and consultation papers are based on careful and thorough research. In the course of research on any topic, consideration is given to caselaw, legislation, jurisprudence and academic writings, both domestic and international. The Commission gives particular attention to the laws of comparable jurisdictions, as well as to proposals put forward by law reform bodies in these jurisdictions.
The consultation process is of central importance to the Commission's work. Consultation may take several forms. In the initial stages of its research, the Commission may meet with professionals working in a particular area, or representatives of interest groups. The Commission will then, in most cases, prepare a consultation paper (known up to 1985 as a working paper), which will either be published, or, if the subject is a specialised one, distributed to relevant experts. The Commission will seek written submissions from interested parties on the provisional recommendations made in the consultation paper. These submissions will be taken into account in the drafting of the final report on the subject, and any issues or concerns they raise will be dealt with in the report. In some cases, before the drafting of the final report, a seminar will be held (on which see page 14), to which the Commission may invite interested parties, or those who have made submissions.
Under its establishing Act the Commission may set up Working Groups to examine particular areas of the law.
The Working Group on Land Law and Conveyancing Law was set up in 1987, in response to a request by the Attorney General for an examination by the Commission of certain aspects of conveyancing law and practice. The Working Group has met regularly (usually every four weeks) to review the law in that area and has published six reports to date.
In December 1998, Commissioner Ms Rickard-Clarke, while remaining a member of the Group, stepped down as Convenor and was replaced in that role by Commissioner Mr Arthur F. Plunkett.
The other members of the Group in 1999 were:
Ms Leesha O'Driscoll (up to September) and Ms Bairbre O'Neill (as from September) acted as Secretary/Researcher to the group.
During June and October, meetings were held at the Hague Conference on Private International Law to discuss a draft Hague Convention on International Jurisdiction and the effects of Foreign Judgments in Civil and Commercial Matters. A specialist Working Group was formed and met five times (in September-October) to identify issues of importance to Ireland and to consider what approach the Irish representatives ought to take.
The members of the working group were as follows
The Law Reform Commission wishes to record its profound appreciation of the contribution which the members of each of these two Working Groups have made, on a voluntary basis, to the Commission's examination of difficult and technical areas of the law. The research initiated and scrutinised by these Groups is described below at pages 14 and 15.
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In 1999 the Commission, which had moved to a new premises at the end of 1998, proceeded with the refurbishment of the premises and with the commissioning of a modern IT system (on each of which see below). In addition, the preparation of the Commission's detailed proposals for its Second Programme of Law Reform was virtually completed. The Commission has also implemented its intention to augment its research team by retaining additional researchers on short-term contract and this offers a welcome improvement in the Commission's capacity to respond effectively to the demands of the day.
With the completion of the alterations and refurbishments required in order to make full use of the new premises, the Commission's medium-term requirements for office accommodation will be catered for with satisfactory provision for a separate library and conference room (by comparison with the Ardilaun Centre where the library and conference room were one). There is some room for future expansion and a number of car-parking spaces are available to accommodate visitors to the Commission.
Following the adoption, in 1998, of the Commission's Information Technology Plan and the implementation of the first phase of the computerisation project. (the installation of a Windows NT network), work on the development of the project proceeded in 1999. Both the number of legal databases available to researchers and ease of access to all available databases have been substantially increased and improved. An IT driven library system involving an important co-operative initiative with other public law offices is in course of development (see “Library” below). A high quality Law Reform Commission website to improve public knowledge of the Commission's work and facilitate fruitful relations with other Law Reform bodies and the academic world is proposed.
Following extensive consultation between the Commission and the Attorney General on the Final Report of the Review of Organisation and Management of the Law Reform Commission, the Government announced in March 1998 the establishment of a Consultative Committee under the auspices of the Office of the Attorney General comprising representatives of certain Government Departments, the Bar Council, the Law Society as well as the Commission. The function of the Consultative Committee is to assist the Attorney General in his consultations with the Commission in relation to the Second Programme (and subsequent Programmes) and in the selection of specific topics for reference to the Commission, and to monitor the implementation of the Commission's recommendations. The Committee held several meetings during the course of 1999 and its report to the Attorney General, on the Second Programme, is all but complete. In 2000, it is to go on to consider a system by which the implementation of the Commission's recommendations can best be monitored. The Commission considers this function of the Consultative Committee to be a most important one as it ought to give a valuable impetus to the actual reform of the law.
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The Library has continued to develop under the administration of Ms Helen Bradley, the Legal Information Manager. In January 1999 Ms Marina Greer was appointed Library Assistant on a part-time basis. In November, she assumed the new full-time position of Assistant Librarian. The library staff work in consultation with the research team to provide access to hard-copy and electronic resources.
The installation of new library shelving and the re-housing of the collection in the Commission's new premises was completed. The review of the existing collection continued resulting in the subscription to new titles, in both paper and electronic format.
A Library Committee was established which provides a regular forum for representatives of the Commission, the research team, and administration to meet with the Legal Information Manager to discuss library business.
Options for installing an electronic library system were examined. It was decided to share the Unicorn Collection Management System already implemented at the Office of the Attorney General. As this step is also being taken by the Office of the Chief State Solicitor, a multi-library system will result in which each library can operate independently whilst benefiting from shared OPAC (online public access catalogue) and cataloguing modules. It is expected that the initial implementation will be completed in the first half of 2000. Following implementation of the new system, the process of re-cataloguing the library collection and re-classifying to the Moys Classification scheme will commence.
Ms Emily Gibson was employed during September 1999 – January 2000, to collect and catalogue all the preparatory material used in the Commission's Reports and Consultation Papers since its origin so that these will be readily accessible for use in the future.
The Library's collection includes books, legal journals, law reports, official publications, legislation, Irish unreported judgments and a unique collection of law reform materials from around the world.
The range of services provided by the Library during the past year has included a current awareness service, training, document delivery and a research support/information service. Staff have responded to external requests for information as increasing interest in the collection has been shown by staff from Government Departments and other law libraries.
Document delivery is provided for by subscription to the information service at Trinity College Library, Dublin, the Institute Advanced Legal Studies, London and the inside web service of the British Library. The implementation of electronic research facilities was completed and the research team now have networked access to the internet, lexis-nexis and Lawlink, and Eurolaw, Current Legal Information and the Irish Statute book on CD-ROM.
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The grant-in-aid approved by the Minister for Finance on the recommendation of the Attorney General represents almost the entirety of the Commission's income. Under the present accounting procedure, monies are drawn down on a monthly basis from the grant-in-aid with the consent of the Accounting Officer who is the Director General in the Attorney General's Office. The only other income derives from the sale of publications. It should be noted however that many publications are not sold but are distributed free to members of the judiciary, members of the Oireachtas and legal scholars, as well as to libraries in various countries and to law reform agencies worldwide who in turn provide the Commission with copies of their work.
The expenses of the Law Reform Commission include rent and premises overheads, salaries of Commissioners and staff, emoluments of external researchers retained for specific tasks, the maintenance of the law library and the holding, from time to time, of public seminars.
There were no late payments by the Law Reform Commission during 1999.
The Secretary keeps all current liabilities of the Commission under review with a view to their prompt discharge. The appropriate payments by the Commission in accordance with its internal procedures are made by cheque on a week-to-week basis.
Standard payment periods are not specified in written contracts.
Throughout 1999 the Law Reform Commission was in compliance with the Prompt Payment of Accounts Act, 1997.
The payment procedures outlined above were operational throughout this period. While these practices can only provide reasonable and not absolute assurance against material non-compliance with the Act, they would appear to have worked very well, in particular in view of the fact that there were no late payments during the period under review.
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By 31 December 1999, the Commission had, since its inception, formulated and submitted to the Taoiseach or the Attorney General:
fifty-eight Reports containing proposals for reform of the law (as well as an examination of the law of Bail);
eleven Working Papers;
fifteen Consultation Papers;
twenty Reports in accordance with section 6 of the Law Reform Commission Act, 1975; and
a number of specialised papers for limited circulation.
•Report on Gazumping (LRC 59–1999)
The Report, published in August, examines the practice of vendors of residential property requiring booking deposits from prospective purchasers. It investigates what protection could be afforded to those purchasers in situations where the vendor later refuses to sell or seeks a higher price than that initially agreed. Because the Report was informed by the responses to a Questionnaire, sent to all relevant professional bodies and consumer associations and others, as well as by consultation with members of the Commission's Land Law and Conveyancing Working Group, it was published directly, without going through the stage of a consultation paper. The Report, which attracted a good deal of interest in the news media, is being considered by the Minister for the Environment, and Local Government and the Director of Consumer Affairs in order to decide what action to take (See Dail Debates: vol. 513, col. 153: 26 Jan, 2000)
•Statutory Drafting and Interpretation: Plain Language and the Law (LRC – CP14, 1999)
This Consultation Paper, published in July, makes a number of provisional recommendations which aim to improve the accessibility of legislation and make it easier to understand. Given the huge importance to the citizen of knowing his or her rights and duties, this is a vital area of law. The subject has attracted a good deal of interest and debate within and outside the profession and the seminar on the topic, to be held early in 2000, is eagerly awaited.
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• The Deducibility of Collateral Benefits from Awards of Damages under Section 2 of the Civil Liability (Amendment) Act, 1964 (LRC–CP15–1999).
The issue to which this Paper, published in August was addressed was that at present, in assessing the amount of personal injury awards, courts often do not take it into account that the plaintiff will also receive a welfare benefit or an insurance payment, on foot of the same injury. The paper makes a number of provisional recommendations which are intended to ensure that plaintiffs are not compensated twice for the same loss.
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A Consultation Paper is currently being prepared on the mens rea of homicide. Consideration is being given to two separate, but connected issues. The first of these is a possible definition of manslaughter which might include reference to both commission and omission of a negligent nature. The other is whether the Non-Fatal Offences Against the Person Act, 1997, requires amendment to cater, more extensively in the criminal law, for endangerment, that is acts or omissions which create substantial risks of death or serious harm. In addition, following a number of deaths in the work-place in Ireland, preparatory work was begun on reform of the law of corporate manslaughter.
In February, Mr Paul McCutcheon LL.M. a senior lecturer at University of Limerick, gave a seminar on “Towards a Criminal Code”.
The Commission had published a Consultation Paper on this topic in April 1998 and on 27 January, 1999, a seminar was held at the R.D.S. to consider it. The Report on this topic will be published shortly.
The Commission had published a Consultation Paper in December 1998, on the law of limitations as it applies to claims in contract and tort in respect of latent damage other than personal injury. On 23 March, 1999, the paper was considered at a seminar held at the R.D.S.. The writing of the Report is at an advanced stage and a draft is presently being considered by the Commission.
The Statute of Limitations (Am.) Bill 1998 which has reached an advanced stage in the Houses of the Oireachtas provides for a special limitations regime where a person is taking civil action because of sexual abuse during childhood. In May 1999 The Attorney General referred to the Commission the issue of reform of the law of limitations as it affects cases arising out of childhood abuse, which is not sexual in character. Work on this subject is well advanced, and publication of a Consultation Paper is expected shortly.
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The Working Group met on nine occasions in 1999 and among the topics discussed were the following:
During the year the Working Group worked on the preparation of three further Reports, on the Rule against Perpetuities and Cognate Rules, Variation of Trusts and miscellaneous issues of Land Law and Conveyancing Law.
The Commission has added a new method of work to the process of law reform. The Commission considers that there are many minor and uncontroversial, but valuable legal reforms which can be implemented, in a timely fashion, without the need for extensive research or a lengthy report.
Accordingly, following consultation with the Attorney General, it was decided that proposals for Law Reform (Miscellaneous Provisions) Bills should be formulated by the Commission to implement such measures on an annual basis. (The Commission would welcome proposals for reforms of this character from Government Departments, the judiciary, practising or academic lawyers or interested lay-persons.)
In August 1999 the Commission submitted its proposals for a first Bill of this type to the Attorney General. A number of recommendations of the Commission in the area of Land and Conveyancing Law were submitted, along with proposals for amendments in Family Law, Succession Law and Commercial Law. Work is proceeding on the preparation of proposals for a second such Bill.
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The Commission continued its work in conjunction with the Hague Conference on Private International Law.
Mr Arthur F Plunkett, Commissioner, and Ms Lia O'Hegarty, Researcher, with Ms Jennifer Payne of the Attorney General's office attended as the members of the Irish delegation at this Special Commission of the Hague Conference during 10–18 June. Mr Plunkett and Professor David Gwynn Morgan also attended, with Ms Payne, as the Irish delegation, during the later session in 24–31 October.
At each of these meetings the representatives from the Commission participated in the preparation and negotiation of a draft International Convention which would provide for a common for both the exercise of international jurisdiction and the recognition and enforcement of foreign judgments, in civil and commercial matters.
Ms Leesha O'Driscoll, Researcher, attended on behalf of the Commission the public hearing convened by the European Commission, on 4th November 1999 on the subject of e-commerce. The particular question which arises is whether it is the court of the jurisdiction of the buyer or the seller which is to be allocated jurisdiction in respect of disputes arising out of an e-commerce transaction. The scale of the legal problem is magnified by the world-wide character of the web. Its resolution is of special importance here because of the value of e-commerce to the Irish economy. The context in which the question arises is the revision of the (Brussels) Convention on Jurisdiction and the Enforcement of Judgement in Civil and Commercial Matters (1968) but the issue will also make an impact upon the Hague Conference (referred to above).
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Taken together, the cases of D.P.P. v G.,  IR 587 and D.P.P. v J.R., (Central Criminal Court, 5 December 1995), had suggested that where the accused has pleaded guilty a judge might be precluded from imposing a maximum sentence. In its Report on Sentencing (LRC 53–1996), the Commission recommended that a guilty plea should merely guide, rather than constrain, the Judge and that this point should be clarified by the courts (Recommendation 15).
Now the point has been given legislative force in section 29 (2) of the Criminal Justice Act, 1999, which states,
“To avoid doubt, it is hereby declared that subsection (1) shall not preclude a court from passing the maximum sentence prescribed by law for an offence if, notwithstanding the plea of guilty, the court is satisfied that there are exceptional circumstances relating to the offence which warrant the maximum sentence.”
In 1995 the Commission published a report on The Hague Convention abolishing the requirement of legalisation for Foreign Public Documents (LRC 48 – 1995). The Convention sought to simplify the formalities which had to be fulfilled before a public document would be accepted as proof of its contents in a foreign state. Specifically, the Convention sought to abolish the requirement known as diplomatic or consular 'legalisation', whereby, before such a foreign document could be effective in the Irish court, foreign diplomatic and consular agents in Ireland were required to verify the authenticity of:
The Convention introduced a simpler system, based on the 'apostille' which is issued by the competent authority in the originating state. If issued and executed in a contracting state in accordance with the Convention, the apostille alone and without further proof would be taken as evidence of any facts stated therein, unless the contrary was shown.
At paragraph 8.22 of its 1995 Report, the Commission recommended that the Convention could be effectively implemented by altering the Rules of the Superior Courts to this effect. This recommendation was implemented by Rules of the Superior Courts (No.1) (Proof of Foreign Diplomatic, Consular and Public Documents) 1999 – SI No 3 of 1999, which amended Order 39 by the insertion of Parts VII-IX thereof. Part IX, Rule 54(2) now states:
“A document which purports to be an apostille duly issued and executed in accordance with the Convention shall without further proof be deemed to be such and shall be admissible as evidence of the facts stated therein unless the contrary is shown.”
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The Statutory Instrument also implements two parallel conventions, namely, the European Convention on the Abolition of Legalisation of Documents Executed by Diplomatic or Consular Officers, 1968 and the Convention Abolishing the Legalisation of Documents in the Member States of the European Communities, 1987, each of which was discussed in the 1995 Report, at pp.25–32.
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The Law Reform Commission is pleased that 1999 marked a continuation of the good relations which it enjoys with its sister bodies. In February, Ms Judena Goldring, Director of the Northern Ireland Law Reform Advisory Committee and Mr Michael Foster, Secretary visited the Commission.
In November, 1999, two of the Commissioners and the Director of Research had an informal meeting with Ms Justice Denham who was Chairperson of the Working Group on a Courts Commission and is presently the Supreme Court member on the Board of the Courts Service. The purpose of this meeting was to examine areas of mutual interest, in which the Courts Service wishes to encourage reform, and in which the Law Reform Commission can appropriately play a part in research and in policy formulation. Examples might be: alternative dispute resolution; Woolf-type reforms; class actions; reform of aspects of the law of evidence.
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|MATTER EXAMINED||RESULTING REPORTS*|
|Administrative Law||Working Paper 8–1979 – Judicial Review of Administrative Action|
|Animals||Report on Civil Liability for Animals (LRC 2–1982)|
|Conflict of Laws||Report on Domicile and Habitual Residence as Connecting Factors in the Conflict of Laws (LRC 7–1983)|
|Report on the Recognition of Foreign Divorces and Legal Separations (LRC 10–1985)|
|Report on the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (LRC 16–1985)|
|Report on Private International Law Aspects of Capacity to Marry and Choice of Law Proceedings for Nullity of Marriage (LRC 19–1985)|
|Report on Jurisdiction in Proceedings for Nullity of Marriage (LRC 20–1985)|
|Report on the Service of Documents Abroad re. Civil Proceedings (LRC 22–1987)|
|Report on the Recognition of Foreign Adoption Decrees (LRC 29–1989)|
|Report on the Hague Convention on Succession to the Estates of Deceased Persons (LRC 36–1991)|
|Report on the Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents (LRC 48–1995)|
|Report on the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (LRC 55–1997)|
|THIS IS AN ORIGINAL PAGE-BREAK:||PAGE NUMBER=19|
|Report on the Implementation of the Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption, 1993 (LRC 58–1998)|
|Criminal Law||Report on Vagrancy and Related Offences (LRC 11–1985)|
|Report on Offences under the Dublin Police Acts and Related Offences (LRC 14–1985)|
|Report on Intoxication (LRC 51–1995)|
|Evidence||Report on the Rule against Hearsay in Civil Cases (LRC 25–1988)|
|Report on the Competence and Compellability of Spouses as Witnesses (LRC 13–1985)|
|Report on Oaths and Affirmations (LRC 34–1990)|
|Family Law||Working Paper No. 4, 1978 – The Law Relating to Breach of Promise of Marriage|
|Working Paper No. 5, 1978 – The Law Relating to Criminal Conversation and the Enticement and Harbouring of a Spouse|
|Working Paper No. 6, 1979 – The Law Relating to Seduction and the Enticement and Harbouring of a Child|
|Working Paper No. 7, 1979 – The Law Relating to Loss of Consortium and Loss of Services of a Child|
|First Report on Family Law (LRC 1–1981)|
|Report on Illegitimacy (LRC 4–1982)|
|Report on the Age of Majority, the Age for Marriage, and Connected Subjects (LRC 5–1983)|
|Report on the Restitution of Conjugal Rights, Jactitation of Marriage and Related Matters (LRC 6–1983)|
|THIS IS AN ORIGINAL PAGE-BREAK:||PAGE NUMBER=20|
|Report on Divorce a Mensa Et Thoro and Related Matters (LRC 8–1983)|
|Report on Nullity of Marriage (LRC 9–1984)|
|Report on Family Courts (LRC 52–1996)|
|Privacy||Report on Privacy: Surveillance and the Interception of Communications (LRC 57–1998)|
|Sales||Working Paper No. 1–1977 – The Law Relating to the Liability of Builders, Vendors and Lessors for the Quality and Fitness of Premises|
|Report on Defective Premises (LRC 3–1982)|
|Report on Minors' Contracts (LRC 15–1985)|
|Report on the UN (Vienna) Convention on Contracts for the International Sale of Goods 1980 (LRC 42–1992)|
|Statute Law||Statutory Drafting and Interpretation: Plain Language and the Law (LRC – CP14,1999)|
|THIS IS AN ORIGINAL PAGE-BREAK:||PAGE NUMBER=21|
|MATTERS REFERRED||RESULTING REPORTS|
|Conveyancing Law and Practice, and where this could lead to savings for house purposes (referred 1987).||Report on Land Law and Conveyancing Law: (1) General Proposals (LRC 30–1989)|
|Report on Land Law and Conveyancing Law (2) Enduring Powers of Attorney (LRC 31–1989)|
|Report on Land Law and Conveyancing Law (3) Passing the Risk from Vendor to Purchaser (LRC 39–1991)|
|Report on Land Law and Conveyancing Law (4) The Service of Completion Notices (LRC 40–1991)|
|Report on Land Law and Conveyancing Law (5) Further General Proposals (LRC 44–1992)|
|Report on Interests of Vendor and Purchaser in Land during Period between Contract and Completion (LRC 49–1995)|
|Report on Land Law and Conveyancing Law (6): Further General Proposals Including the Execution of Deeds (LRC 56–1998)|
|The Law relating to Sheriffs, the collection of taxes and debt collection (referred 1987).||Report on Debt Collection: (1) the Law Relating to Sheriffs (LRC 27–1988)|
|Report on Debt Collection: (2) Retention of Title|
|The Law relating to compensation for personal injuries cases including in particular:|
|(1) provision for periodic payments and the making of provisional awards (referred 1987); and||Report on the Statute of Limitations in Cases of Latent Personal Injuries (LRC 21–1987)|
|(2) the Statute of Limitations in cases of latent Personal Injury.||Report on Personal Injuries: Periodic Payments and Structured Settlements (LRC 54–1996)|
|THIS IS AN ORIGINAL PAGE-BREAK:||PAGE NUMBER=22|
|Aspects of Criminal Law, including:||Report on Receiving Stolen Property (LRC 23–1987)|
|(1) sentencing policy;|
|Report on Malicious Damage (LRC 26–1988)|
|(2) indexation of fines;|
|Report on the Confiscation of the Proceeds of Crime (LRC 35–1991)|
|(3) confiscating the proceeds of crime; and|
|(4) whether there is need to revise or update the law relating to the various offences which are mainly governed by pre-1922 legislation, including, in particular, the laws relating to dishonesty, malicious damage and offences against the person (referred 1987).||Report on the Indexation of Fines (LRC 37–1991)|
|Report on the Crime of Libel (LRC 41–1991)|
|Report on the Law Relating to Dishonesty (LRC 43–1992)|
|Report on Non-Fatal Offences against the Person (LRC 45–1994)|
|Report on Sentencing (LRC 53–1996)|
|Sexual Offences Generally (Including in particular the law relating to rape and the sexual abuse of children) (referred 1987).|
|Report on Rape and Allied Offences (LRC 24–1988)|
|Report on Child Sexual Abuse (LRC 32–1990)|
|Report on Sexual Offences Against the Mentally Handicapped (LRC 33–1990)|
|The Law of defamation and contempt of court (referred 1989).||Report on the Civil Law of Defamation (LRC 38–1991)|
|Report on Contempt of Court (LRC 47–1994)|
|The law relating to occupiers' liability (referred 1992).||Report on Occupiers' Liability (LRC 46–1994)|
|The Law relating to Bail (referred 1994).||Report on an Examination of the Law of Bail (LRC 50–1995)|
|Aggravated, Exemplary and Restitutionary Damages (referred 1997).||Consultation Paper on Aggravated, Exemplary and Restitutionary Damages (1998)|
|The Statutes of Limitation in cases in contract and tort involving latent damage other than personal injury (referred 1997)||Consultation Paper on the Statutes of Limitation: Claims in Contract and Tort in respect of Latent Damage (other than Personal Injury) (1998)|
|THIS IS AN ORIGINAL PAGE-BREAK:||PAGE NUMBER=23|
|'Gazumping'||Report on Gazumping (LRC 59–1999)|
|Overlap between damages award in personal injuries action and other benefits received by the plaintiff.||The Deductibility of Collateral Benefits from Awards of Damages under Section 2 of the Civil Liability (Amendment) Act, 1964 (LRC-CP15–1999).|
|THIS IS AN ORIGINAL PAGE-BREAK:||PAGE NUMBER=24|
(The implementing legislation listed in the chart does not necessarily implement all the recommendations of the corresponding report in full. In many cases only some of the report's recommendations have been implemented by the legislation; in others the Commission's recommendations have been implemented only in a modified form.)
|First Report on Family Law||Family Law Act, 1981|
|Report on Civil Liability for Animals||Animals Act, 1985|
|Report on Illegitimacy||Status of Children Act, 1987|
|Report on the Age of Majority, the Age for Marriage, and Connected Subjects||Age of Majority Act, 1985|
|Family Law Act, 1995|
|Report on Restitution of Conjugal Rights, Jactitation of Marriage, and Related Matters||Family Law Act, 1988|
|Family Law Act, 1995|
|Report on Domicile and Habitual Residence as Connecting Factors in the Conflict of Laws||Domicile and Recognition of Foreign Divorces Act, 1986|
|Report on Divorce a Mensa et Thoro and Related Matters||Judicial Separation and Family Reform Act, 1989|
|Report on the Recognition of Foreign Divorces and Legal Separations||Domicile and Recognition of Foreign Divorces Act, 1986|
|Report on Vagrancy and Related Offences||Housing Act, 1988|
|Criminal Law (Sexual Offences) Act, 1993|
|Criminal Justice (Public Order) Act, 1994|
|Report on the Hague Convention on the Civil Aspects of International Child Abduction and Some Related Matters||Child Abduction and Enforcement of Custody Orders Act, 1991|
|Report on the Competence and Compellability of Witnesses||Criminal Evidence Act, 1992|
|THIS IS AN ORIGINAL PAGE-BREAK:||PAGE NUMBER=25|
|Report on Offences Under the Dublin Police Acts and Related Offences||Criminal Justice (Public Order Act), 1994|
|Report on Jurisdiction in Proceedings for Nullity of Marriage, Recognition of Foreign Nullity Decrees and the Hague Convention on the Celebration and Recognition of the Validity of Marriages||Family Law Act, 1995|
|Report on Receiving Stolen Property||Larceny Act, 1990|
|Criminal Justice Act, 1993|
|Criminal Evidence Act, 1992|
|Criminal Justice (No. 3) Act, 1994|
|Report on the Statute of Limitations: Claims in respect of Latent Personal Injuries||Statute of Limitations (Amendment) Act, 1991|
|Report on the Service of Documents Abroad re Civil Proceedings (Hague Convention)||Hague Convention ratified 1994 Rules of the Superior Courts (no.3), 1994|
|(S.I. No. 101 of 1994)|
|District Court (Service Abroad of Documents in Civil or Commercial Matters) Rules, 1994 (S.I. No. 120 of 1994), now consolidated in District Court Rules (S.I. No.93 of 1997)|
|Report on Rape and Allied Offences||Criminal Law (Rape) (Amendment) Act, 1990|
|Criminal Justice Act, 1993|
|Report on Malicious Damage||Criminal Damage Act, 1991|
|Criminal Justice Act, 1993|
|Report on the Recognition of Foreign Adoption Decrees||Adoption Act, 1991|
|Report on Land Law and Conveyancing Law: (1) General Proposals||Landlord and Tenant (Amendment) Act, 1994|
|Family Law Act, 1995|
|THIS IS AN ORIGINAL PAGE-BREAK:||PAGE NUMBER=26|
|Report on Land Law and Conveyancing: (2) Enduring Powers of Attorney||Powers of Attorney Act, 1996|
|Report on Child Sexual Abuse||Child Care Act, 1991|
|Criminal Evidence Act, 1992|
|Criminal Law (Sexual Offences) Act, 1993|
|Domestic Violence Act, 1996 Criminal Justice (Miscellaneous Provisions) Act, 1997|
|Protection for Persons Reporting Child Abuse Act, 1998|
|Report on Sexual Offences Against the Mentally Handicapped||Criminal Law (Sexual Offences) Act, 1993|
|Criminal Justice (Miscellaneous Provisions) Act, 1997|
|Report on the Confiscation of the Proceeds of Crime||Criminal Justice (No. 3) Act, 1994|
|Report on Non-Fatal Offences Against the Person||Non-Fatal Offences Against the Person Act, 1997|
|Report on Occupiers' Liability||Occupiers' Liability Act, 1995|
|Examination of the Law of Bail||Bail Act, 1997|
|Report on Family Courts||Children Act, 1997|
|Report on Sentencing||Criminal Justice Act 1999|
|Report on Abolishing Requirement of Legalisation of Foreign Public Documents (Hague Convention)||Rules of the Superior Courts (No.1) (Proof of Foreign Diplomatic, Consular and Public Documents) 1999 –SI No 3 of 1999|
|THIS IS AN ORIGINAL PAGE-BREAK:||PAGE NUMBER=27|
The Law Reform Commission
AN COIMISIÚN UM ATHCHÓIRIÚ AN DLÍ
IPC House, 35–39 Shelbourne Road, Ballsbridge, Dublin 4, Ireland
Telephone 353 1 637 7600 Fax 353 1 637 7601
First Programme for Examination of Certain Branches of the Law with a View to their Reform (December 1976) (Prl. 5984) [out of print] [10p Net]
Working Paper No. 1–1977, The Law Relating to the Liability of Builders, Vendors and Lessors for the Quality and Fitness of Premises (June 1977) [£1.50 Net]
Working Paper No. 2–1977, The Law Relating to the Age of Majority, the Age for Marriage and Some Connected Subjects (November 1977) [£1.00 Net]
Working Paper No. 3–1977, Civil Liability for Animals (November 1977) [£2.50 Net]
First (Annual) Report (1977) (Prl. 6961) [40p Net]
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Working Paper No. 5–1978, The Law Relating to Criminal Conversation and the Enticement and Harbouring of a Spouse (December 1978) [£1.00 Net]
Working Paper No. 6–1979, The Law Relating to Seduction and the Enticement and Harbouring of a Child (February 1979) [£1.50 Net]
Working Paper No. 7–1979, The Law Relating to Loss of Consortium and Loss of Services of a Child (March 1979) [£1.00 Net]
Working Paper No. 8–1979, Judicial Review of Administrative Action: the Problem of Remedies (December 1979) [£1.50 Net]
Second (Annual) Report (1978/79) (Prl. 8855) [75p Net]
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Third (Annual) Report (1980) (Prl. 9733) [75p Net]
|THIS IS AN ORIGINAL PAGE-BREAK:||PAGE NUMBER=29|
First Report on Family Law – Criminal Conversation, Enticement and Harbouring of a Spouse or Child, Loss of Consortium, Personal Injury to a Child, Seduction of a Child, Matrimonial Property and Breach of Promise of Marriage (LRC 1–1981) (March 1981) [£2.00 Net]
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Fourth (Annual) Report (1981) (PI. 742) [75p Net]
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Report on Domicile and Habitual Residence as Connecting Factors in the Conflict of Laws (LRC 7–1983) (December 1983) [£1.50 Net]
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Sixth (Annual) Report (1983) (Pl. 2622) [£1.00 Net]
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Working Paper No. 11–1984, Recognition of Foreign Divorces and Legal Separations (October 1984) [£2.00 Net]
Seventh (Annual) Report (1984) (Pl. 3313) [£1.00 Net]
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|THIS IS AN ORIGINAL PAGE-BREAK:||PAGE NUMBER=30|
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Report on the Liability in Tort of Minors and the Liability of Parents for Damage Caused by Minors (LRC 17–1985) (September 1985) [£3.00 Net]
Report on the Liability in Tort of Mentally Disabled Persons (LRC 18–1985) (September 1985) [£2.00 Net]
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Eighth (Annual) Report (1985) (Pl. 4281) [£1.00 Net]
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Consultation Paper on Rape (December 1987) [£6.00 Net]
Report on the Service of Documents Abroad re Civil Proceedings –the Hague Convention (LRC 22–1987) (December 1987) [£2.00 Net]
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Ninth (Annual) Report (1986–1987) (Pl. 5625) [£1.50 Net]
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Report on Malicious Damage (LRC 26–1988) (September 1988) [£4.00 Net]
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Tenth (Annual) Report (1988) (Pl. 6542) [£1.50 Net]
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|THIS IS AN ORIGINAL PAGE-BREAK:||PAGE NUMBER=31|
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Eleventh (Annual) Report (1989) (Pl. 7448) [£1.50 Net]
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Report on Oaths and Affirmations (LRC 34–1990) (December 1990) [£5.00 Net]
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Twelfth (Annual) Report (1990) (Pl. 8292) [£1.50 Net]
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Report on United Nations (Vienna) Convention on Contracts for the International Sale of Goods 1980 (LRC 42–1992) (May 1992) [£8.00 Net]
Thirteenth (Annual) Report (1991) (Pl. 9214) [£2.00 Net]
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Sixteenth (Annual) Report (1994) (PN. 1919) [£ 2.00 Net]
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|THIS IS AN ORIGINAL PAGE-BREAK:||PAGE NUMBER=33|
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|THIS IS AN ORIGINAL PAGE-BREAK:||PAGE NUMBER=34|