1. McGarr Solicitors act in High Court proceedings for Brendan Philbin and Brid McGarry, (the 2nd and 5th Defendants) in the Corrib Gas Pipeline case.
2. Shell E & P Ireland Ltd issued proceedings against, inter alia, our clients seeking a permanent injunction and damages to assert the claim of Shell to be entitled to place a high pressure natural gas pipeline on the clients’ lands in County Mayo.
3. In the course of the proceedings Shell applied to the High court for an order of committal against Brendan Philbin and others, as a consequence of which he was committed to prison for 94 days.
4. The 2nd and 5th Defendants have counterclaimed in the proceedings against Shell and the Irish State for, inter alia, damages for breach of their property rights.
5. To press their claims against Shell and the State, the 2nd and 5th defendants sought an order for discovery of certain documents from Shell and the State.
6. On 31st July 2006 the High Court ordered Shell (the Plaintiff) and the State (defendants to the Counterclaims of the 2nd and 5th defendants) to make discovery of specified documents to Brendan Philbin and Brid McGarry, the 2nd and 5th Defendants respectively.
   The Plaintiff and the State were obliged to deliver the affidavits of discovery within 6 weeks of 31/7/06.
7. Each of the Plaintiff and the State have failed to comply with the order.
8. On 12th September 2006 McGarr solicitors acting for the 2nd and 5th Defendants advised the Plaintiff and the State that they were in default and advised a motion would issue to strike out the Plaintiff’s claim and the State’s defence respectively in the event of continued default.
9. The Plaintiff and the State remained on default and on 22nd September 2006 McGarr solicitors issued a motion seeking to have the Plaintiff’s claim and its defence to the counterclaim of the 2nd and 5th defendants struck out and similar relief against the State in respect of its defence.
10. The Plaintiff has responded by issuing a motion seeking an extension of time within which to comply with the order. It has also revealed that it intends to apply to the court for leave to discontinue its action agains all the defendants. It says it is actuated by motives connected with the desire to consult with the people of Rossport. However, it says it intends to install the Corrib gas upstream pipeline on a new route lying somewhere between the planned pipeline landfall and the Bellanaboy refinery site. It says it cannot currently define that route.
    It has offered to pay costs to date to the 2nd and 5th defendants if they discontinue their conterclaims. If not, the Plaintiff will defend the counterclaims and seek to set off the costs of (successfully) doing so against the costs which the 2nd and 5th defendants might be awarded by the courts as a result of the discontinuance by Shell.
11. Currently the Plaintiff is not agreeable to meet the concerns of the 2nd and 5th defendants regarding the safety of the pipeline due to its planned pressurisation.
12. Currently the 2nd and 5th defendants understand the Plaintiff will not or cannot confirm their property will not form part of the “new route�.
13. Currently the 2nd and 5th defendants understand the Plaintiff may avail of legislation (undefined and possibly yet to be enacted) to permit it to install its “new� pipeline
    When these matters came on for hearing in the High Court in the Four Courts in Dublin on 28/9/06 Shell were given leave to issue a Motion seeking leave of the court to discontinue its action. Only two of the defendants, agreed to the discontinuance. The Motion of the 2nd and 5th defendants was adjourned to that date, also for hearing.
14. Through their lawyers, the 2nd and 5th defendants asserted that the move by Shell was a vindication of them; that Shell had unilaterally decided on its course of action immediately after the making of the order for discovery in favour of the 2nd and 5th defendants and not for other reasons, and had previously had no compunction in prosecuting its wrongful claims, to seek, successfully, the imprisonment of Brendan Philbin in jail for 94 days.
15. The 2nd and 5th defendants denied that Shell’s case was “redundant� as claimed by its counsel. They asserted that their constitutional rights had been infringed by Shell and a unilateral discontinuance, allegedly to meet the concerns of the people of Rossport, should not be countenanced.

Further to previous enquiries the Department of Enterprise, Trade and Employment’s Intellectual Property Unit has come back to us with the following response.

1. Whether the government is supporting introduction of a Broadcaster’s copyright in the negotiations on the treaty

The European Community and its Member States, including Ireland, have supported the efforts over the past decade or so at WIPO to update the system established by the 1960 Rome Convention. Ireland signed the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations in June 1962, and ratified it in September 1979. It may be that some of the concerns here arise from the US not being a party to the Rome Convention. The 1960 Rome Convention would be widely regarded as being insufficient to deal with the intellectual property issues now arising, in particular, as a result of technological developments ; one example is that the digitization of signals and other technological developments since 1960 have made signal piracy and theft easier.

The recent meeting of the WIPO Standing Committee recommended to the next WIPO General Assembly (to commence on 25 September 2006) to decide that a Diplomatic Conference be convened in July 2007, with the aim of concluding a new Treaty. It is now expected that the proposed Treaty will only cover traditional broadcasting. The efforts made in recent years to expand the scope of a new treaty to internet-based web casting and simulcasting have been set aside for now in this context but these are thought likely to resurface separately at WIPO in the near future. Many developing countries had opposed the inclusion of web and simulcasting.

Ireland has long supported the efforts by WIPO, as the preamble to the current Draft Basic Proposal puts it, “to develop and maintain the protection of the rights of broadcasting organizations in a manner as effective and uniform as possible”). The preamble also recognizes “the need to maintain a balance between the rights of broadcasting organizations and the larger public interest, particularly education, research and access to information”. There are many NGO’s represented at the relevant meetings, and they regularly interact with the member states.

There is no question of the rights of existing classes of copyright and neighbouring rights holders being subjected or subordinated to new broadcasters’ IP rights. These other classes are principally the suppliers of content to the broadcasting industry, including composers and arrangers of music (primary copyright), dramatists (primary copyright), authors of literary works (primary copyright), authors of artistic works and films (primary copyright) and producers of sound recordings (neighbouring right). By “primary copyright” is meant exclusive rights to perform or permit others to perform certain acts such as copying, making available through the Internet or distribution, as compared with “neighbouring rights”

The intended measures to improve the (neighbouring right) IPRs of broadcasters internationally should not be seen as inconsistent with the preservation of the rights of existing rights of primary and secondary rights holders. While some non-broadcasting rights holders may have concerns that this may impact their position; WIPO Performances and Phonograms Treaty of 1996, adopted an enhancement of the Rome Convention system in an area (the rights of phonogram producers) that, under Rome, would have been regarded, in effect, as “linked at the hip” to broadcasters’ IP rights.

The EU, has adopted an intermediate position towards the coverage of online technology – whereby simultaneous online making available of material also made available to general or broadcasting organisations to members of the public – should be protected at the same level as broadcasts ; there are serious difficulties in the way of concluding a treaty that will add sufficient value to the effect of the Rome Convention in relation to the protection of broadcasters’ IP rights. Again, member states of the Rome Convention (including Ireland, and most if not all EC Member States) are precluded from the terms of that Treaty from committing themselves to international agreements falling short of the terms of Rome in relation to the rights of broadcasters, phonogram producers and the rights of performers.

2. Whether the Irish Government is represented at the negotiations by Irish Officials or by an organ of the European Union.

WIPO is the UN body dealing with IPR and all member countries attend its meetings
Ireland has normally attended all of its General Assemblies as well as the more specialized meetings egg SCCR meetings in this particular negotiation process. At these meetings it has been the norm that the Commission or the EU Council Presidency–in-Office speaks for the 25 Member States as well as the candidate member countries. However the EU Presidency or the Commission and the wider Group B (industrialized countries) do actively co-ordinate with Member States in advance of, and/or during meetings, to ensure that there are so far as possible shared approaches on identified issues.

At the WIPO meetings it is normal for all member countries of WIPO to be formally represented in their individual capacities. The European Commission has normally taken part up to now as an inter-Governmental organization. The EU process of co-coordinating positions is not a formal part of the WIPO process but still plays an important role for Community member states and the wider operation of WIPO. The practice of the Community in copyright matters is that Member States do all-possible to agree common position (even where mixed competency might be involved) in advance of a negotiation, and thereafter, to try to co-ordinate any revisions of position closely. All Member States are kept up to date on developments during WIPO meetings by way of consultations when appropriate. It is therefore usual, in the WIPO forum, for the Commission to speak for all Member States when intervention is deemed necessary, on the basis that all member States’ views and concerns have been taken into account earlier.

3. If the latter, would any agreed treaty signed be considered to have been signed by the EU, or merely as having been signed by the EU on behalf of its member states?

The member countries sign WIPO treaties in an individual capacity but in areas of clear EU competence such as copyright, the Community is increasingly now also signing and ratifying such in parallel with the member states. Again the current draft treaty text in this case includes three options but the SCCR has recommended that eligibility to become party to the Treaty should be unconditional, open for all Member States of WIPO, as well as for intergovernmental organizations. If a Treaty is agreed in this case, the present indication is that each WIPO member (including each EU Member State) would sign separately.

4. Finally

Please feel free to offer any views, comments or concerns on the draft treaty; the text of which is in Doc SCCR15/2 at

http://www.wipo.int/meetings/en/details.jsp?meeting_id=11264

There are for now a large number of alternative wordings and up to five alternatives in the case of some draft Articles. Further revisions and new versions of various articles are also still likely.

1. Are Pleadings public documents?

Answer:
No, in the sense that the public do not have a right of access to Pleadings.

2. Do the parties in the litigation have a right to make Pleadings public?

Answer:
Yes, subject to the necessity for care. Firstly, Pleadings contain allegations or assertions. Court proceedings are presumed to culminate in the production of evidence by a party to support the allegations contained within the Pleadings. The publication of claims of wrongdoing in a private dispute, subsequently unsubstantiated, would clearly be questionable. Indeed, publication of such claims would be a separate actionable wrong by the publisher.

3. Apart from reputation are there any other interests requiring protection?

Answer:
Yes. The administration of justice on occasion may need protection. Actions likely to interfere with the due administration of justice are undesirable and wrongful. In Ireland, it is settled law that the publication of extraneous matter or references before or during the course of a criminal trial, not being reportage of events occurring in the court room can be adjudicated a contempt of court.

4. Are there countervailing issues showing merit in the publication of Pleadings?

Answer:
Yes. In Ireland, with very, very rare exceptions, justice must be dispensed in public. However, oral transactions in court are often, in fact normally, impenetrable to members of the public or the press and the principle of public justice is not in fact observed. Recently the practice of the High court of reading its judgments in open court has been curtailed and the written judgment is handed out to the parties. This makes it more difficult for the press and the public to follow events.

5. Does the Irish High Court hold possession of Pleadings?

Answer:
No, the practice has changed. Nowadays the court office only receives the initiating document or summons. Subsequent pleadings are exchanged between the parties. This change is relatively recent. From the establishment of the court all pleadings were filed in the court office. These pleadings were emphatically not public documents. The public had no access to them with one exception. Members of one branch of the legal profession were permitted access to files regardless of whether they had a role in the dispute between the parties. This exception existed to facilitate the dissemination of legal drafting precedents to the legal profession. However, the privilege was confined to barristers and was denied to solicitors.

6. Is the High Court confined to adjudicating on private disputes?

Answer:
No. A substantial jurisdiction is vested in the court to adjudicate on public law issues, usually in the form of applications for “judicial review�. Wrongdoing or legal mistakes or maladministration can be brought before the High Court to be remedied. By definition, at least one of the parties to these disputes is a public body. Public bodies are accountable to the public in one way or another and issues relating to their functions are public business and the public have an interest in their outcome. They also have, of necessity, a right to see the issues as set out in the pleadings in order to understand the case.

7. Is an issue involving European Union law a special case?

Answer:
Yes. The European Court of Justice publishes a summary of the pleadings of the parties on the web. The pleading of any dispute turning on EU law should also be published.

Discarding things makes lawyers uncomfortable. There are good reasons to hold onto things, but eventually everything must go; forgetting is a part of memory.

But some things should not be forgotten. Consider the Statute Law Revision (Pre-1922) Act 2005.

Section 1 states “The statutes of Ireland, England, Great Britain and the United Kingdom of Great Britain and Ireland mentioned in the Schedule to this Act are repealed.�

What have we thown out? What have we lost?

Well, how will we manage without the Servants Act of 1715? Are there to be no more servants? Or is that issue settled with the repeal of the the Distress for services of 1297?

What of some statutes of uncertain date such as the Prerogativa Regis c. 11 entitled Lands of Idiots and the similarly titled Lands of Lunatics? Have we not lost something of great value here? Surely it is of value to know the places of origin of idiocy and lunacy?

Perhaps it is politically dangerous to repeal the Denial of subjection of England to Kings of France of 1340? What if the Kings of France make a comeback? Think of the effort of trimming and spinning required in that event.

We won’t even know how to address him now that we have repealed the Title of the King of 1485. Perhaps we will need the House of Lords Precedence of 1539 after all or be saved by the Legitimacy of the Queen of 1553? Yes, if we had not repealed them.

Why have we apparently endorsed a fraud with the repeal of the Adulteration of Coffee Act of 1718? Is adulteration a thing of the past in fact? Not likely: adulteration, perhaps, is cool and in?

Following consultation with our clients Digital Rights Ireland Limited, we are now making available the Plaintiff’s Statement of Claim in the case of Digital Rights Ireland Limited v The Minister for Justice and Law Reform, The Minister for Communications, Marine and Natural Resources and The Garda Commissioner in pdf format.

We have also added a link to the Statement of Claim to the previous list of pleadings in this case.

The WIPO is an agency of the United Nations based in Geneva. Currently a treaty is being negotiated there on ‘The Protection of Broadcasting Organisations’. Aspects of this treaty have provoked some concern by interested bodies.

To clarify Ireland’s position at the negotiations for this treaty, we contacted the Intellectual Property Unit of the Department of Enterprise, Trade and Employment. We reproduce the relevant sections of our query and their response, with the names of Officials redacted.

From McGarr Solicitors:

“I would be grateful if you could confirm whether the government supporting the introduction of a Broadcaster’s copyright in the negotiations on the above treaty and whether they are represented at the negotiations by Irish Officials or by an organ of the European Union.

If the latter, would any agreed treaty signed be considered to have been signed by the EU, or merely as having been signed by the EU on behalf of its member states?”

From The Department of Enterprise, Trade and Employment:

“While my colleague who is our Copyright expert is not currently in the office, I can tell you that the Irish Government is represented at the Copyright Committee meeting which is currently taking place in Geneva. I’m not immediately au fait with the negotiating position which is being assumed but can make further enquiries in this regard should you wish me to do so.

At these meetings it is normal for member countries of WIPO to be represented in their individual capacities. The European Commission is normally represented as an inter-Governmental organisation. In the case of all WIPO Treaties it is usual that member countries sign in an individual capacity. In the case of a minority of WIPO treaties e.g. the Madrid Protocol on the registration of trade marks, the European Community has also become a party to the Protocol. The Community could not in any way usurp an individual countries’ right to sign a treaty which is the point I think you are getting at.”

Link to the Current Draft of the Treaty.

Link to other negotiation documents.

McGarr Solicitors represent Digital Rights Ireland Limited in their action against the Minister for Justice and Law Reform, the Minister for Communications, Marine and Natural Resources and the Garda Commissioner’s data retention policies and actions.

Following consultation with our client, we are now making available the pleadings to date in this action in Adobe pdf format.

Digital Rights Ireland Limited Plenary Summons

Appearance entered by the Defendants

Statement of Claim of the Plaintiff

Welcome to the McGarr Solicitors website.

We are trying out something which we think is new for Ireland- a full solicitor’s website run through the WordPress software.

The permanent sections down the right hand side of the page under Our Practice will expand as we upload them.

This front page will contain copies of each of those permanent pages, but will also publish shorter pieces. Some of these may be responses to events of the day, or observations on some aspect of legal practice. We’ll learn what works as the site evolves.