Time Limit Extensions
Cases
Moffat v. Bank of Ireland
High Court, November 17, 2000,
JUDGMENT of the Honourable Mr. Finnegan delivered on the 17th day of November 2000.
1. The first named Plaintiff resides at Toomona Tulsk County Roscommon and is a farmer. The second named Plaintiff resides separately in the same townland and is a housewife although at times relevant to this action she engaged in employment outside the home. The Plaintiffs appear in person and have acted personally throughout these proceedings.
2. The first named Plaintiff maintained his bank accounts with the Defendants branch at Castlerea County Roscommon. In July 1978 the first named Plaintiff agreed to purchase Toomona House and some 75 acres of land at Toomona Tulsk County Roscommon and for that purpose obtained bridging finance from the Defendant against the proposed sale of other lands. The facility granted by the Defendant was in the amount of £180,000.00 for a period of six months. The facility was secured by way of Solicitors undertaking in respect of:-
(i) The title deeds to the premises being acquired,
(ii) The title deeds of 36 acres 22 perches at Willesgrove County Roscommon,
(iii) The title deeds of 34 acres 3 roods at Lisawaddy County Roscommon,
(iv) The title deeds of a farm at Ashbrook County Roscommon,
(v) The proceeds of sale of 113 acres at Lisboy County Roscommon,
(vi) The proceeds of sale of 51 acres at Tomroe County Roscommon.
3. As I understand it it was the intention that the first named Plaintiff would sell lands and reduce his borrowing. At this time agriculture land was achieving a very high price per acre but before any sale as envisaged could be negotiated the price fell sharply. In reaction to this the first named Plaintiff delayed the sale of lands awaiting a recovery in the price of agricultural land and this coupled with upward movement in interest rates resulted in the amount due by the first named Plaintiff to the Defendant remaining at a substantial level notwithstanding payments made in reduction of his overall liability from time to time.
4. On the 11th June, 1983 Toomona house was destroyed by fire. By that date the first named Plaintiff’s accounts were a cause of serious concern to the Defendant. The amount of the first named Plaintiff’s indebtedness amounted to some £120,000.00.
5. In July 1978 through the agency of the manager of the Defendant’s branch at Castlerea, Mr. Stewart, Toomona house (but the not the contents thereof) was insured in the amount of £76,500.00. The Defendant’s interest was noted on the policy. As of 1st June, 1982 contents cover in the amount £15,000.00 had been added to the policy. The amount of cover was thereafter increased and at the date of the fire was as follows:-
Buildings £120,000.00
Contents £ 20,000.00
6. On the 18th August, 1983 the first named Plaintiff’s agent communicated to him the insurers proposals to settle his claim under the policy on the basis of reinstatement, replacement or cash settlement. The first named Plaintiff opted for the last mentioned and on the 29th November, 1983 the Defendant received from the insurers a cheque in the amount of £106,495.00 payable to the first named Plaintiff and the Defendant jointly. The sum was calculated as follows:-
1. Buildings £ 85,000.00
2. Contents £ 21,495.00
£106,495.00
7. The cheque was lodged by the Defendant to the account of the first named Plaintiff in reduction of his liabilities but without the first named Plaintiff endorsing the same. The Defendant notified the first named Plaintiff by letter dated 29th November, 1983 that this had been done. The first named Plaintiff had expected the cheque to come to him and had hoped to negotiate with the Defendant to have the same apportioned some of the proceeds of the insurance claim going in reduction of his liabilities and some to the first named Plaintiff himself to facilitate his trading and towards the provision of a family home. However the first named Plaintiff made no protest at the time. These proceedings were issued on the 24th November, 1997 some fourteen years and three months after the cheque was so applied by the Defendant. The substantive relief claimed therein and argued before me is essentially for damages for conversion. The Defendant in these circumstance in its defence relies upon the Statue of Limitations 1957. While no reply was delivered by the Plaintiffs, before me they sought to rely upon the provisions of the Statute of Limitations 1957 Section 71 and 72. The Defendant to its credit came to Court prepared to meet this case and did not seek to confine the Plaintiffs to their proceedings.
8. The Statute of Limitations in the relevant provisions provides for delayed commencement of the running of time as follows:-
SECTION 71
9. Where the action is based on fraud or the right of action is fraudulently concealed.
SECTION 72
10. Where the action is for relief from the consequences of mistake.
11. I have very careful considered the evidence adduced by the Plaintiffs. They failed to establish any basis for the plea of fraud, fraudulent concealment or mistake in that the first named Plaintiff had full knowledge of all the circumstances attending the Defendants conduct upon receipt by him of the letter from the Defendant dated 29th November, 1993 and the period of limitation runs from the date of receipt of that letter at the latest. In these circumstances the claim of the first named Plaintiff must fail as being statute barred. Accordingly I dismiss the claim of the first named Plaintiff.
12. The second named Plaintiff’s claim is on a different basis. I accept the evidence that she was the owner of the greater part of the contents of Toomona house. The settlement cheque insofar as it related to the contents was payable to the first named Plaintiff in trust for her the policy having been effected by the first named Plaintiff in trust for her to that extent:- See MacGillivray and Parkington sixth edition paragraph 150 et seq.. The trust is however one implied by law and not an express trust and accordingly time will run against the second named Plaintiff from the date of conversion: the plea of the statute raised by the Defendant must succeed as the provisions of Section 71 and 72 cannot be called in aid by her. The bank did not and could not reasonably be expected to avert to the possibility that the second named Plaintiff might have an interest in the proceeds of the contents insurance. In these circumstances a claim against the bank for knowing assistance of the first named Plaintiff’s breach of trust and knowing receipt of the second named Plaintiff’s share of the settlement cheque in breach of trust does not lie:
See Lipkin Gorman v Karpnale Limited and Anor [1992] 4 All E.R. 512 and Bank of Credit and Commerce International (Overseas) Limited (In Liquidation) and Anor v Akindele [2000] 4 All E.R. 321 . In aid of the second named Plaintiff I raised the possibility of such a claim with Counsel for the Defendant without prejudice to any submission by him that such was not open on the pleadings and the possibility of such a claim lying was fully argued. As to conversion the limitation period is six years. There is no evidence to support an extension of that period on the grounds of fraud, fraudulent concealment or mistake. Accordingly I dismiss the second named Plaintiff’s claim.
13. The pleadings raise a number of other issues:-
Family Home Protection Act 1976. I find that the Act has no application to the proceeds of a fire insurance policy whether on buildings or contents,
Infringement of the rights of the Plaintiff under the Constitutional Article 40.3.1 and 2.
14. No evidence was adduced and other than to mention Article 40.3 no argument advanced as the manner in which it is alleged that the rights of the Plaintiffs have been infringed. I find that there has been no infringement of the rights of the Plaintiffs or either of them by the Defendant. Accordingly I dismissed the Plaintiffs’ claim.
Murphy v McInerney Construction Ltd
[2008] I.E.H.C. 323
JUDGMENT delivered by Ms. Justice Dunne on the 22nd day of October 2008
The plaintiffs claim damages against the first named defendant for negligence and breach of duty arising out of the construction of and repair to a dwelling house at 1 Muckross Close, Powerscourt, Co. Waterford. They also claim damages for negligence breach of duty and breach of contract arising out of an inspection and survey of 1 Muckross Close, Powerscourt, Co. Waterford prior to their purchase of that dwelling house. The inspection concerned took place on the 25th of September, 1997. It is now conceded by the plaintiffs that the claim against the second named defendant arising in respect of an alleged breach of contract based on the inspection and survey of the dwelling house by the second named defendant on the 25th September, 1997, is statute barred.
The principal complaint made by the plaintiffs against the first named defendant as set out in the statement of claim is that the first named defendant was negligent and in breach of duty in constructing the property in May 1987. In 1996 it is alleged that the first named defendant acknowledged defects in the structure of the property to its then owner and agreed with the then owner to carry out repairs and remedial works to the property. Thus it is alleged that the first named defendant was negligent and in breach of duty in constructing the property and in effecting the said repair and remedial work thereto.
Insofar as the second named defendant is concerned it is pleaded that he was negligent and in breach of duty in the inspection and examination of the property and in preparation of his report on the structural condition of the property for the plaintiffs which report was furnished on the 25th September 1997.
Each of the defendants herein has pleaded that these proceedings are statute barred under and by virtue of the Statute of Limitations 1957. The reply to the defence in each case is similar and I will quote expressly from that furnished to the defence of the first named defendant, where it is pleaded as follows:-
“It is denied the plaintiffs’ claim is barred by the provisions of
s. 11(2)(a) of the Statute of Limitations Act (sic) 1957, or at all. The plaintiffs will contend their cause of action accrued upon the discovery of the first named defendant’s negligence and breach of duty when the latent defects in the property became manifest and within six years prior to the issue of the within proceedings.”
Section 11(2)(a) of the Statute of Limitations 1957, as amended, provides:-
“Subject to paragraph (c) of this subsection and to subsection 3 (1) of the Statute of Limitations (Amendment) Act 1991, an action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued.”
An order was made on the 26th November, 2007 directing the trial of a preliminary issue as to whether or not the plaintiffs’ claim is statute barred. Certain facts have been agreed by the parties for the purpose of the trial of this preliminary issue. They are as follows:-
1. That the first named defendant constructed No. 1 Muckross Close, Powerscourt, Co. Waterford in 1987 and that in 1996 the first named defendant acknowledged defects in the structure of the property to its then owner, George McDonald and agreed with Mr. McDonald to carry out repairs and remedial works to the property.
2. That in or about the month of September 1997, the plaintiffs were desirous of purchasing a property known as No. 1 Muckross Close, Powerscourt, Co. Waterford.
3. That in September 1997, the plaintiffs retained the second named defendant to inspect the aforesaid property and to advise on its structural condition prior to the completion of negotiations with the purchase of the property in consideration of the sum of €145.20.
4. That on the 25th September, 1997, the second named defendant furnished his report of that date to the plaintiffs’ solicitor which concluded that the principle structural elements of the property were deemed to be in good structural order with no apparent defects.
5. That it was a term or condition of the contract of retainer between the plaintiffs and the second named defendant and/or the second named defendant warranted and represented that he had and would exercise all reasonable care, skill and diligence as a consultant engineering the inspection and examination of the property and in furnishing his report on the structural condition of the property.
6. That the second named defendant acted in breach of contract, negligently and in breach of duty in failing to exercise all due care, skill and diligence in the inspection and examination of the property and in the preparation of his report.
7. That the first named defendant was negligent and in breach of duty in constructing the property and in affecting the said repair and remedial work thereto.
8. That the particulars of loss are as pleaded.
9. That these proceedings commenced by issue of plenary summons on the 30th September, 2004.
So far as those agreed facts are concerned, those in relation to the alleged breach of contract of the second named defendant are no longer of any relevance, given the acceptance that the claim against the second named defendant in respect of breach of contract is statute barred.
The principal point made on behalf of the defendants herein is that the house in question was constructed in 1987, remedial works were carried out in 1996 and any defects now complained of in the structure or indeed in relation to the remedial works carried out were in existence at that time and indeed in 1997, when the property was purchased by the plaintiffs. Thus, they say, the period of six years had expired since the cause of action accrued and that the proceedings were issued more than six years after the cause of action accrued. The plaintiffs contend that the cause of action against the first and second named defendants in negligence accrued when the latent defects in the property became manifest or as it was put in the affidavit of Rory O’Connor, solicitor, sworn herein on the 19th November, 2007, on behalf of the plaintiffs referring to the plea contained in the Reply to Defence:-
“Therein the plaintiffs rely on the contention that their cause of action accrued upon discovery of the first named defendant’s negligence and breach of duty, when the latent defects in the property became apparent and when they became aware of the first named defendant’s negligence and breach of duty which discovery occurred within six years prior to the issue of the within proceedings.”
Thus, it can be seen that the plaintiffs contend that the statute does not run until the date of the discovery of the defects alleged. Each of the defendants in their respective submissions have rejected this contention and have relied on the Supreme Court decision in the case of Hegarty v. O’Loughran [1990] 1 I.R. 14, in which the Supreme Court rejected the concept of a discoverability test and held that the Statute of Limitations runs from the date on which damage happens or occurs and not on the date that the damage or defect was discoverable.
Prior to the decision of the Supreme Court in the case of Hegarty v. O’Loughran, the interpretation of s. 11(2)(a) of the Statute of Limitations was considered in the case of Morgan v. Park Developments Limited [1983] ILRM 156. The facts of that case are not dissimilar from those of the present case. In that case the plaintiff had purchased a house from the defendants in 1962. Shortly after moving into the house, the plaintiff notified the defendants of defects which had occurred in the premises. The defendants repaired the defects including a large crack in the corner of the house which reappeared and required further repairs by the defendants in 1965. The plaintiff was informed that the crack was merely a settlement crack and that it would take some years to settle. Nothing further was done by the plaintiff until 1975 when he had an extension built to the house and his contractor unsuccessfully attempted to repair the wall. In 1979 he consulted an architect who told him that the problem was with the foundations of the house which had resulted in a major structural fault. Proceedings were issued in 1980 and the defendants claimed that the plaintiff’s case was statute barred and that the proper date of accrual of a right of action was when the damage had occurred and when the breach of contract was committed. The plaintiff submitted that the date of accrual was when the damage was discoverable and that this had been postponed by reason of a representation made by the defendant’s agent, who had lulled the plaintiff into a false sense of security by saying that the crack was a settlement crack and that this was sufficient to preclude the defendants from pleading the statute. It was held in that case that the date of accrual in the action for negligence in the building of a house is the date the defect either was discovered or should have reasonably been discovered. It was further held that the date of accrual of the right of action under the plaintiff’s contract with the defendant was the date in 1965, when the defendants had finished the remedial works. In the circumstances of that case the court was of the view that the plaintiff’s claim was statute barred and the view expressed by the defendant’s foreman as to the nature of the crack in the wall was held to be merely a statement of opinion and not sufficient to enable the plaintiff to prove fraudulent concealment. In the course of her judgment at p. 160 Carroll J. made the following comment:-
“However, it seems to me that the provisions regarding fraud or mistake do not preclude the interpretation which takes the date of discoverability as the date of accrual. In my opinion the provisions of s. 71 can co-exist with that interpretation. Therefore of the two possible interpretations I prefer the one adopted in the Sparham-Souter case which has the date of discoverability as the date of accrual. Whatever hardship there may be to a defendant in dealing with a claim years afterwards, it must be less than the hardship to a plaintiff whose action is barred before he knows he has one. The latter interpretation appears to me indefensible in the light of the constitution.
Accordingly I hold that the date of accrual in an action for negligence in the building of a house is the date of discoverability, meaning the date the defect either was discovered or should reasonably have been discovered.”
In that case a particular feature was the issue of concealment and the provisions of s. 71(1) of the Statute of Limitations which provides as follows:-
“Where, in the case of an action for which a period of limitation is fixed by this Act, either –
(a) the action is based on the fraud of the defendant or his agent or of any person through whom he claims or his agent, or
(b) the right of action is concealed by the fraud of any such person, the period of limitation shall not begin to run until the plaintiff has discovered the fraud or could with reasonable diligence have discovered it.”
The concealment in that case relied on but rejected as insufficient to amount to fraudulent concealment was the statement by the defendant’s agent, the site foreman that the crack was merely a settlement crack that would take some years to settle.
In the course of her judgment in that case Carroll J. referred, inter alia, to the decision in Pirelli General Cable Works Limited v. Oscar Faber and Partners [1983] 2 W.L.R. 6 in which the House of Lords held that the accrual of a right of action in actions for negligence in the construction or design of a building was the date the damage came into existence and not the date when the damage was discovered or should with reasonable diligence have been discovered. That decision is one which has been characterised in the English courts as producing a result that is “harsh and absurd”. The House of Lords in the Pirelli case applied the decision of the House of Lords in the case of Cartledge v. E.F. Jopling and Sons Limited [1963] A.C. 758, which held that s. 26 of the Limitation Act 1939, (which was similar in terms to s. 71 of the 1957 Statute of Limitations), made it impossible to hold that a cause of action ought not to accrue until the injury is discovered. Carroll J. declined to follow the decisions of the English courts referred to above. She was of the view that a law that could be characterised as “harsh and absurd” could not be constitutional. (See p. 160 of her judgement.)
Notwithstanding the views of Carroll J., the decision in the case of Cartledge v. E. F. Jopling and Sons was approved by the Supreme Court in the case of Hegarty v. O’Loughran, referred to above, in the course of which the Supreme Court overruled the decision of the High Court in Morgan v. Park Developments. The facts of the Hegarty case are somewhat different in that it concerned an action for damages for personal injury. In that case the plaintiff underwent surgery to her nose performed by the first defendant in 1973. Because the surgery was unsuccessful in 1974, the second named defendant performed a remedial operation which subsequently began to deteriorate by 1976. Proceedings were instituted against both defendants in 1982, claiming damages for personal injuries. The defendants denied negligence and pleaded that the claim was statute barred by reason of the provision of s. 11(2)(b) of the Act of 1957. It was held in the High Court that the date on which the cause of action accrued was the date on which the act causing the injury was committed and that therefore the plaintiff’s claim was statute barred. That decision was appealed to the Supreme Court and it was argued that the court should adopt an interpretation of s. 11(2)(b) consistent with the provisions of the Constitution of Ireland 1937 and that an interpretation of “accrual of the cause of action” such that the date of accrual could arise before the plaintiff was aware of the existence of the cause of action failed to vindicate the plaintiff’s constitutional right to litigate. It was held by the Supreme Court, inter alia, that the cause of action accrued at the time when provable personal injury capable of attracting compensation occurred to the plaintiff which was the completion of the tort alleged to have been committed against her; that the tort of negligence was not complete until damage had been caused by the defendant’s wrongful act; that since the provisions of s. 71 of the Act of 1957, provided that in the case of fraud, time did not begin to run against a plaintiff until the fraud was discovered or could, with reasonable diligence have been discovered, by implication in cases where there was no allegation of fraud, time began to run whether or not the damage could have been discovered; that the presumption in favour of a constitutionally valid construction of a statute only applied where there were two or more possible interpretations of a statute and the provisions of s. 11(2)(b) were so clear that only one interpretation was open to the court; that it was not unconstitutional for the legislature to set a time limit (even if such limit was absolute) within which a particular action had to be brought, that such limit represented a balance between the plaintiff’s right to litigate and the defendant’s interest in certainty in relation to potential liability.
Finlay C.J., in the course of his judgment, expressly rejected the decision of Carroll J. in the case of Morgan v. Park Developments at p. 155 of his judgment, when, having referred to the decision in Cartledge v. E.F. Jopling and Son, he stated:-
“Carroll J. in the course of her judgment in Morgan v. Park Developments [1983] I.L.R.M. 156, dealing with the decision in Carthledge v. E.F. Jopling and Son [1963] A.C. 758, and the decision in Pirelli General Cables Limited v. Faber [1983] 1 AC 1, which followed that case, pointed out that the position in our law was different from that in the law of England by reason of our Constitution and the existence of a presumption of constitutional validity in the construction of the statutes of the Oireachtas. This distinction is correctly identified but becomes relevant only if there are two or more alternative constructions of the statutory provisions open.
After careful consideration I find that I must disagree with Carroll J. in the conclusion reached by her in Morgan v. Park Developments [1983] ILRM 156, that two or more alternative constructions of s. 11(2)(a) of the Act of 1957, are open and if I reach that conclusion I must also find it impossible to conclude that two alternative constructions of the provisions of s. 11(2)(b) of that Act are open.”
He went on to comment:-
“In legislation creating a time limit for the commencement of actions, the time provided for any particular type of action; the absolute or unqualified nature of the limit; whether the court is vested with a discretion in certain cases in the interest of justice; and the special instances, if any, in which exceptions from the general time limit are provided, are, with others, all matters in the formulation of which the legislation must seek to balance between, on the one hand, the desirability of enabling persons with causes of action to litigate them, and on the other hand the desirability of finality and certainty in the potential liability which citizens may incur into the future.
It is quite clear that what is sometimes classified as the harshness and injustice of the person failing to bring a cause of action to trial by reason of exceeding a time limit not due to his or her own particular fault, may well be counterbalanced by the harshness and injustice of a defendant called upon to defend himself at a time when by the passage of years his recollection, the availability of his witnesses and even documentary evidence relevant to a claim in contract or tort have disappeared.”
He went on to conclude:-
“…that the proper construction of this subsection is that contended for on behalf of the defendants and that it is that the time limit commenced to run at the time when a provable personal injury, capable of attracting compensation, occurred to the plaintiff which was the completion of the tort alleged to be committed against her.”
In the same case Griffin J. at p. 158 of his judgment stated:-
“The period of limitation therefore begins to run from the date on which the cause of action accrued, i.e. when a complete and available cause of action first comes into existence. When a wrongful act is actionable per se without proof of damage, as in, for example, libel, assault or trespass to land or goods, the statute runs from the time at which the act was committed. However, when the wrong is not actionable without actual damage, as in the case of negligence, the cause of action is not complete and the period of limitation cannot begin to run until that damage happens or occurs.”
In the course of the submissions made by counsel on all sides herein, reference was made to number of decisions in which the concept of a discoverability test has been considered. It was considered in the case of Touhy v. Courtney [1994] 3 I.R. 1, a case in which the interpretation of the phrase “the date on which the cause of action accrued” was considered and in which the Supreme Court also had to consider the issue of the constitutionality of the Statute of Limitations 1957. That case upheld the constitutionality of the limitation period at issue and it was further noted in that case that the legislature was not obliged to introduce a “date of discoverability” rule by way of exception to the periods of limitation provided for by the Act of 1957, merely because of the fact that there existed a jurisdiction in the courts to dismiss a claim against a defendant (if brought within a limitation period) on the grounds that there had been gross delay in instituting the proceedings. Subsequently in the case of Doyle v. C. & D. Providers (Wexford) Limited [1994] 3 I.R. 57, O’Hanlon J. commented on the state of the law as follows:-
“The relevant provisions of the Statute of Limitations, 1957, which apply in relation to actions in contract and tort are to be found in s. 11 of the Act, which provides that actions founded on simple contract and actions founded on tort (with certain exceptions which do not apply) ‘shall not be brought after the expiration of six years from the date on which the cause of action accrued.’
The interpretation of the phrase ‘the date on which the cause of action accrued’ was considered by the court in the cases referred to and the constitutionality of the limitation period was challenged in Touhy v. Courtney [1994] 3 I.R. 1, but unsuccessfully.
The strictness of the rule was ameliorated in relation to claims for damages for personal injuries in the Act of 1991, s. 3 of which provided that time should begin to run from the date on which the cause of action accrued ‘or the date of knowledge (if later) of the person injured’. However, this left unchanged the general rule already recited in relation to other claims based on breach of contract and tort. The justification for the failure of the Oireachtas to relax the stringent rule of limitation in such other actions, even in relation to cases where the plaintiff did not become aware of the damage caused for a long time after the cause of action accrued, through no fault of his own, is spelt out in the judgment of the Supreme Court, delivered by Finlay C.J., in Touhy v. Courtney [1994] 3 I.R. 1.”
In the light of those decisions, is there any possibility that the plaintiffs’ case herein is not statute barred? Is the contention in the Reply to Defence correct, namely, that the cause of action accrued when the latent defects in their property became manifest and apparent and when they became aware that the defendants were negligent and in breach of duty, as suggested. It is worth recalling the words used by Finlay C.J. in the case of Touhy v. Courtney referred to above at p. 47, where he stated:-
“It cannot be disputed that a person whose right to seek a legal remedy for wrong is barred by a statutory time limit before he, without fault or neglect on his part, becomes aware of the existence of that right has suffered a severe apparent injustice and would be entitled reasonably to entertain a major sense of grievance.
So to state however does not of itself solve the question as to whether a statute which in a sense permits that to occur is by that fact inconsistent with the Constitution.
Statutes of limitation have been part of the legal system in Ireland for very many years and were a feature of the system of law operating in force in Ireland apparently both before and after the Act of Union and have continued from 1922 up to the present (cf. the judgment of Griffin J. in Hegarty v. O’Loughran [1990] 1 IR 148 at p. 157).
The primary purpose would appear to be, firstly, to protect defendants against stale claims and avoid the injustices which might occur to them were they asked to defend themselves from claims which were not notified to them within a reasonable time.
Secondly, they are designed to promote as far as possible expeditious trials of action so that a court may have before it as the material upon which it must make its decision oral evidence which has the accuracy of recent recollection and documentary proof which is complete, features which must make a major contribution to the correctness and justice of the decision arrived at.
Thirdly, they are designed to promote as far as possible and proper a certainty of finality in potential claims which will permit individuals to arrange their affairs whether on a domestic, commercial or professional level in reliance to the maximum extent possible upon the absence of unknown or unexpected liabilities.”
Thus it would appear that the position in law is clear. However, reliance has been placed by counsel on behalf of the plaintiffs on the decision of the High Court in the case of O’Donnell v. Kilsarin Concrete Limited [2002] 1 ILRM 551, a decision of Herbert J. and on the case of Invercargill City Council v. Hamlin [1996] AC 624, a decision of the Privy Council. Before considering that decision, I want to look at the decision in the case of O’Donnell v. Kilsarrin Concrete Limited referred to above. In that case the plaintiffs entered into a contract with the second defendant to build a dwelling house in May 1987. An Architect’s Certificate of Practical Completion was issued in March 1988. In 1991, cracks appeared in the outside walls. The area was re-plastered and no further difficulties arose until 1997 when a civil engineer was consulted by the Architect after cracking in the plaster in the same area was discovered. This cracking was due to the presence of a certain mineral in the concrete block. The engineer was satisfied that these cracks were of “recent origin” but it was unable to express any opinion on the 1991 cracking. He accepted that the concrete blocks were unsuitable and defective from the outset. In June 1999, the plaintiffs claimed damages for a breach of contract and negligence against the defendants. It was held that the plaintiffs were statute barred from a action for breach of contract but not statute barred from taking an action for negligence in that the cause of action in contract accrued when the breach of contract occurred and time for the purposes of the statute of limitation ran from the time of the occurrence of that breach. Secondly it was held that in the case of negligence, time began to run once the damage occurred. The court expressly followed the decision of the Supreme Court in the case of Touhy v. Courtney. In the course of his judgment, it was noted by Herbert J. that counsel for the plaintiffs in that case argued that the damage did not occur until 1997 or 1998, and that accordingly their cause of action did not accrue until then. Counsel for the defendants argued that the damage occurred in 1988 or alternatively in 1991 and that accordingly the plaintiff’s right to recover in tort is time barred. Herbert J. concluded at p. 191 of the judgment as follows:-
“In the present case, I am satisfied on the evidence that the damage only came into existence not long prior to October 1998, or in the terminology used by Geoghegan J. was not manifest until then. It is not necessary for the court to express an opinion on the vexed question of ‘discoverability’, because in this case the damage having come into existence not long prior to October 1998, it was drawn to the attention of Mr. Lawlor in May 1998 and by Mr. McLoughlin in October 1998 and the plenary summons was issued on the 4th June, 1999, well within the limitation period.”
In those circumstances it was found that the cause of action in negligence was not time barred. The reference in that passage to Geoghegan J. is a decision of the High Court (Geoghegan J.) in the case of Irish Equine Foundation Limited v. Robinson [1999] I.R. 442. That was a case in which a construction of an equine centre took place. A certificate of completion was issued in March 1986, with a final certificate in November 1987. Water started leaking through the ceiling in 1991 and the plaintiff issued proceedings in January 1996. The statute was raised as a defence. The plaintiff claimed that, as there had been no manifestation of the damage until the leak had occurred, the limitation period only ran from that time. It was held by the High Court that the defects in the building could have been detected by experts at any stage after the construction of the building. The defects had manifested themselves from the time the building had been erected and the statutory period had commenced running from then. At p. 448 of his judgment Geoghegan J. stated:-
“It would seem to me that if the roof, the subject matter of this action, was defectively designed for the reasons suggested by the plaintiff, this would have been manifest at any time to any expert who examined it. I agree with the submission in this regard made by counsel for R.K. & D., that if experts with the same qualifications as these defendants had been retained just after the roof was constructed to inspect and report and, assuming that the plaintiff’s allegations are correct, they could and would have reported that the roof was defectively designed. I am satisfied, therefore, that in so far as this action is founded on negligence in the design of the roof, it is clearly statute barred.”
Geoghegan J. further commented as follows at pp. 444 – 445 of his judgment:-
“It is obvious from those dates that the action in contract is clearly statute barred. It is trite law that the limitation period commences on the date of the breach of contract and not on the date when the damage is caused. In other words, a breach of contract per se gives rise to a cause of action. The only question which I have to consider, therefore, is whether the action in so far as it is founded on tort, (i.e. the tort of negligence) is likewise statute barred. The contention of the plaintiff is that there was no damage, or at least no damage manifested itself, until the ingress of water through the ceiling of the centre in late 1991. If the period commenced on that date then, quite obviously, the action in so far as it is founded on tort is not statute barred.
It is common case that discoverability, as such, cannot be relevant in considering what is the appropriate commencement date in respect of the limitation period. On this point at least, the view of the House of Lords taken in Pirelli v. Oscar Faber & Partners [1983] 2 A.C. 1, represents Irish law also. This is quite clear from the decision of the Supreme Court in Hegarty v. O’Loughran [1990] 1 IR 148, even though that particular case dealt with personal injuries and not damage to a building. The reasoning contained in the several judgments in Hegarty v. O’Loughran and the criticism voiced of the decision of Carroll J. in Morgan v. Park Developments [1983] I.L.R.M. 156, indicate beyond doubt that the Supreme Court rejects the discoverability test no matter what the nature of the damage claimed is.”
It is interesting to contrast that view of Geoghegan J. with the views expressed by Herbert J. on the “vexed question of discoverability”. I have to say that having regard to the various decisions to which reference has already been made, I find it difficult to come to any conclusion other than that the question of a discoverability test simply does not arise. It is quite clear from the authorities referred to above that a discoverability test does not avail a plaintiff when dealing with a plea that a claim is statute barred under Irish law.
As mentioned above, counsel on behalf of the plaintiffs also placed reliance on the decision in the case of Invercargill City Council v. Hamlin [1996] AC 624. In that case a firm of builders in New Zealand built a house for the plaintiffs in 1972. During the course of its construction a building inspector employed by the City Council carried out a number of inspections as required by the city bye laws and approved the foundations. In 1974 cracks began to appear in the building and in 1989 the plaintiff called in another builder who told him that the foundations were defective. In 1990 the plaintiff commenced proceedings against the builders and the Council seeking a sum as the cost of repairs. It was held, inter alia, that in the particular context of latent damage to a building that the plaintiffs claim was for economic loss rather than for physical damage to the house or foundations; that such loss occurred only when the market value of the house had been depreciated by reason of the defective foundations having been discovered, the measure of the loss being the cost of repairs if it was reasonable to repair or that depreciation in the market value if it was not; and that, accordingly, the judge had applied the correct test under the law of New Zealand in holding that the plaintiffs cause of action had accrued when the defects would have become apparent to any reasonable home owner and, since there were no grounds for disturbing the findings of fact, the plaintiff’s action had been brought in time and the Council were liable for damages in negligence. The Privy Council declined to follow the decision in Pirrelli. Particular emphasis was laid on the fact that the loss in the case was economic loss which occurred only when the market value of the house concerned had been depreciated by reason of the defective foundations having been discovered. In the course of the judgment of the Privy Council in that case, Lord Lloyd of Berwick commented at p. 648 as follows:-
“In other words, the cause of action accrues when the cracks become so bad, or the defects so obvious, that any reasonable home owner would call in an expert. Since the defects would then be obvious to a potential buyer or his expert, that marks the moment when the market value of the building is depreciated and therefore when the economic loss occurs. Their Lordships do not think it is possible to define the moment more accurately. The measure of the loss would then be the cost of repairs, if it is reasonable to repair, or the depreciation in the market value if it is not. . . .
This approach avoids almost all the practical and theoretical difficulties to which the academic commentators have drawn attention, and which led to the rejection of the Pirrelli decision [1983] 2 A.C. 1, by the Supreme Court of Canada in the Kamloops case, 10 D.L.R. (4) 641. The approach is consistent with the underlying principle that a cause of action accrues when, but not before, all the elements necessary to support the plaintiff’s claim are in existence. For in the case of a latent defect in a building the element of loss or damage which is necessary to support a claim for economic loss in tort does not exist so long as the market value of the house is unaffected. Whether or not it is right to describe an undiscoverable crack as damage, it clearly cannot affect the value of the building on the market. The existence of such a crack is thus irrelevant to the cause of action.”
He went on to comment:-
“It is regrettable that there should be any divergence between English and New Zealand law on a point of fundamental principle. Whether the Pirrelli case, [1983] 2 A.C. 1, should still be regarded as good law in England is not for their Lordships to say. What is clear is that it is not good law in New Zealand.”
It is my view that the decision does not assist this Court in reaching a decision. The law in this jurisdiction is clear as to the interpretation of the Statute of Limitations. In any event, the plaintiffs have not sought to make out a case for damages for economic loss in their pleadings.
The phrase “the date on which the cause of action accrued” is key to the determination of the issue that arises in this case. The interpretation of that phrase has been considered by the courts in this jurisdiction and the Supreme Court has made clear how it should be determined. It is necessary in applying the interpretation of that phrase to consider the facts of this case. One of the points made by counsel on behalf of the plaintiffs was that the cause of action was not complete until such time as it was clear that the cracks in the property were structural. This did not become known to the plaintiffs until 2000 when a further inspection was carried out in respect of the property. It was argued that until this time the plaintiffs could not have sued. The plaintiffs when purchasing the property in 1997 took the prudent course of having the property surveyed. Although there were visible cracks apparent at that time it was not clear to the plaintiffs that the cracks were structural. In this context I think it is important to consider and look at the particulars raised on behalf of the second named defendant in this respect and the replies thereto.
In a letter of the 21st March, 2006, the following particulars were raised and replies were furnished on the 14th July, 2006, as follows:-
“5. Particularise (a) the remedial works which had been carried out to the property, reference to which is made a para. 8.2 of the statement of claim; and (b) the condition or efficacy of the same as at 25th September, 1997.
Reply: The plaintiffs will furnish full details of the remedial works carried out to the property upon obtaining discovery from the first named defendant. Without prejudice, the plaintiffs believe that settlement cracks in the upstairs portion of the property were repaired by the first named defendant over the duration of a number of days. The condition of the remedial works as and at the 25th September, 1997, will be furnished upon receipt of discovery from the first named defendant.
6. Specify the manner in which the second named defendant’s inspection and examination of the property was “inadequate” as pleaded at para. 8.3 of the statement of claim.
Reply: The second named defendant’s inspection and examination was inadequate in that he failed to identify and ascertain that remedial works had been carried out to the property and failed to attach any or any adequate significance to the cracks he observed in the structure.
10. State whether it is alleged by the plaintiff’s that the defects referred to in the two preceding paragraphs were (a) manifest and (b) ought to have been evident to the second named defendant.
Reply: We refer you to the second named defendant’s report attached herewith. The second named defendant noted some cracks which “were not considered to be any cause for alarm or any cause of immediate threat to the integrity of the structure, nevertheless ought to be attended to”. The two areas were (a) on the external face of the garage wall and (b) on the plasterwork of the chimney. The plaintiff asserts that the second named defendant noted the cracks in question, but failed to attach any or any adequate or proper significance to same.”
Having regard to the pleadings in this case and the facts agreed before me I cannot come to the conclusion that the cause of action against the first and second named defendants accrued within the six years prior to the issue of these proceedings. There is nothing whatsoever to suggest that the damage complained of occurred within that time-frame. What is contended is that “the latent defects became manifest” within the time frame. That is nothing short of a discoverability test. Contrary to the position as set out and found by Herbert J. in the case of O’Donnell v. Kilsarin Concrete Limited, this is not a case where one could say that the damage was of recent origin.
The words of McCarthy J. in the case of Hegarty v O’Loughran at p.164 are apposite:-
“The fundamental principle is that words in a statute must be given their ordinary meaning and, for myself, I am unable to conclude that a cause of action accrues on the date of discovery of its existence rather than on the date on which, if it had been discovered, proceedings could lawfully have been instituted. I recognise the unfairness, the harshness, the obscurantism that underlies this rule, but it is there and will remain there unless qualified by the legislature or invalidated root and branch by this Court.”
As mentioned above, the rule has been qualified by the legislature in the case of personal injuries actions but the attempt in Tuohy v Courtney to invalidate the rule failed. Unfortunately, it follows that the plaintiffs’ claim is statute barred.
I want to deal briefly with one final matter raised on behalf of the plaintiffs in the written and oral submissions. It was suggested that the underlying causes for the development of the structural defects were hidden and concealed from the plaintiffs, both after the initial construction works and by the subsequent remedial works. Accordingly it was contended on behalf of the plaintiffs that the defects were “concealed” within the meaning of s. 71 of the Statute of Limitations 1957. It was also contended that this was unconscionable and thus brought s. 71 into play. Counsel for the first named defendant took particular issue to this argument being made. It was pointed out that the plaintiffs had not raised any issue in their pleadings in respect of s. 71 of the Statute of Limitations 1957. I have to say that I accept that submission. In order to rely on s. 71, the plaintiffs would have had to lay the ground for making such an assertion. No attempt to do so has been made either in the pleadings themselves or in any other appropriate way. There are simply no facts before the court that could lead to such a conclusion. In those circumstances, s. 71 cannot be relied upon by the plaintiffs.
O’Sullivan v Rogan
, practising as Rogan and Morgan Solicitors [2009] IEHC 456
Judgment of Mr. Justice Hedigan delivered on the 16th day of October, 2009.
1. The plaintiff in the within proceedings is a retired farmer now aged 90 years and residing at Fatima Nursing Home, Tralee, Co. Kerry.
2. The defendants are solicitors practising under the name of Rogan and Moran solicitors of New Street, Cahirciveen, Co. Kerry.
3. In the within proceedings the plaintiff claims damages for negligence, misrepresentation, breach of contract, breach of duty and breach of statutory duty. The claim arises from a transaction involving the sale of lands which transaction was concluded on the 19th March, 1999. The claim is that the defendants failed to properly advise the plaintiff in transferring his property at a substantial undervalue which amounted to divesting himself of his entire property.
4. A plenary summons was issued on the 1st September, 2008. On the 5th September, 2008 a statement of claim was served. On the 8th September, 2008 an appearance was entered and on the 17th February, 2009 a defence was entered. This defence denied all allegations and pleaded both contributory negligence and also that the proceedings were statute-barred. In a reply dated the 16th March, 2009 the plaintiff pleaded that the case was not statute-barred in particular because of the fraudulent concealment of a cause of action on the part of the plaintiff. They relied upon s. 71 of the Statute of Limitations, 1957. This statutory provision is as follows:-
“71(1) Where, in the case of an action for which a period of limitation is fixed by this Act, either –
(a) the action is based on the fraud of the defendant or his agent or of any person through whom he claims or his agent, or
(b) the right of action is concealed by the fraud of any such person,
the period of limitation shall not begin to run until the plaintiff has discovered the fraud or could with reasonable diligence have discovered it.”
5. The motion before the Court is to strike out the proceedings as being statute-barred. This motion is by way of the determination of a preliminary issue. The trial of the preliminary issue was directed by Mr. Justice Ryan on the 22nd June, 2009. I am told this order is not available.
6. The plaintiff has emphasised that he is not making a case for damages for fraud but alleges that the failure of the defendants to advise the plaintiff at the time, i.e. March, 1999, that he had a cause of action against them due to their failure to properly advise him on the transaction involved amounted to a fraudulent concealment.
7. It is agreed the normal limitation period would be six years and that therefore time should have run on the 18th March, 2005. This being so the proceedings would be three years and five months out of time. If, however, they were proceedings to which s. 71 of the Statute of Limitations applied then the proceedings would not be barred because the date of discovery of the action the plaintiff had was not until some time later. It seems to be accepted that if this later date is to be found by the Court as the date of discovery of the alleged fraudulent concealment then the proceedings are caught by s. 71 and are not, therefore, statute-barred.
8. The gravamen of the plaintiff’s argument is that the defendants well knew that they were not properly advising the plaintiff and although fraud is not alleged, this amounts to conduct which is covered by the definition of “fraudulent concealment”.
9. The defendant who is the moving party argues that the plea of fraudulent concealment is, in fact, nothing more than the claim of negligence that was pleaded in the statement of claim. The plaintiff, it is argued, has done no more than repeat the allegation of negligence.
10. I am referred to and have considered the judgments in Kitchen v. Royal Air Force Association [1958] 1 WLR 563, (pp.572 – 573), Heffernan v. O’Herlihy [1998] IEHC 211, Applegate v. Moss [1971] 1 QB 406, Keane v. Victor Parsons & Co [1973] 1 WLR 29 and J. MacH & J.M. [2004] IEHC 32.
In the most unusual facts of this case it is not clear, nor can it be at this preliminary stage, just what the precise actions were surrounding the events which gave rise to these proceedings. It seems clear there was a long standing relationship of solicitor and client in place. It is claimed the solicitors did not properly advise the plaintiff who was then 80 years old and as a result he divested himself of all his property for little or no return. Concealment of the fact that what the solicitors did or failed to do could amount to a cause of action against them in favour of the plaintiff is the fraudulent concealment within the meaning of s. 71 upon which the plaintiff relies.
11. In Kitchen v. Royal Air Force Association, Lord Evershed said therein when dealing with s. 26(b) of the United Kingdom Limitations Act 1939 which had equivalent wording to s. 71 of the Statute of Limitations, 1957:-
“It is now clear … that the word “fraud” in s. 26(b) of the Limitation Act 1939 is by no means limited to common law fraud or deceit. Equally, it is clear, having regard to the decision in Beaman v. A.R.T.S. Ltd. that no degree of moral turpitude is necessary to establish fraud within the section. What is covered by equitable fraud is a matter which Lord Hardwicke did not attempt to define 200 years ago and I certainly shall not attempt to do so now, but it is, I think, clear that the phrase covers conduct which, having regard to some special relationship between the two parties concerned, is an unconscionable thing for the one to do towards the other.”
Considering the same section further in Applegate v. Moss [1971] 1 QB 406, the Master of the Rolls Lord Denning said that s. 26 of the Limitation Act 1939, applied whenever the defendant’s conduct had been such:-
“as to hide from the plaintiff the existence of his right of action, in such circumstances that it would be inequitable to allow the defendant to rely on the lapse of time as a bar to the claim.”
12. The conduct which might amount to fraudulent concealment was further considered by Denning M.R. in Keane v. Victor Parsons & Co. [1973] 1 WLR 29 (at pp. 33-34):-
“In order to show that he concealed the right of action by fraud, it is not necessary to show that he took active steps to conceal his wrongdoing or breach of contract. It is sufficient that he knowingly committed and did not tell the owner anything about it. He did the wrong or committed the wrong secretly. By saying nothing he kept it secret. He conceals the right of action. He conceals it by fraud as those words have been interpreted in the cases. To this word ‘knowingly’ there must be added ‘recklessly’.”
At page 34 the Master of the Rolls continued:-
“If however the defendant was quite unaware that he was committing a wrong or a breach of contract it would be different. So if by an honest blunder he unwittingly commits a wrong …, or a breach of contract … then he could avail himself of the Statute of Limitations.”
This decision has been approved of in the Irish jurisdiction in McDonald v. McBain [1991] ILRM 764.
13. What exactly was the conduct of the defendants in this case at the time? It is not clear and I believe cannot become clear until the full facts of the case are teased out. If it turns out that what occurred amounts to the kind of conduct referred to in Kitchen, Applegate and Keane, then it may well be that s. 71 will apply and save the plaintiff from the statute. If, on the other hand, it is found to be conduct which whilst negligent was unattended by fraudulent or deceitful behaviour then, as pointed out by Denning M.R. at p. 34 of Victor Parsons, the defendant may avail himself of the statute.
Decision
14. Owing to the centrality of the defendants’ conduct in relation to the events at the time and owing to the inevitable conflicts in relation thereto which can only be resolved by plenary hearing, I cannot come at a preliminary stage to any conclusion as to whether s. 71 applies. I will therefore remit the issue to plenary hearing. It seems to me that it is only when the facts of this case are fully teased out that it will be clear whether s. 71 applies or not.
For the sake of clarity I hold the plea of fraudulent concealment has been properly particularised by letter of 7th May, 2009 and now remains to be proved at plenary hearing.
Task Construction Ltd v Devine practising as BCM Hanby Wallace & Company
[2009] IEHC 74
JUDGMENT delivered by Ms. Justice Dunne on the 30th day of January 2009
The proceedings herein were commenced by plenary summons issued on the 1st March, 2007. An undated statement of claim was delivered containing some 71 paragraphs. A notice of motion was issued on behalf of the defendant on the 18th April, 2007. That motion first came before me for hearing on the 4th June, 2008. At that hearing I made an order joining Mr. Edward Gaffney as a plaintiff in the proceedings. The relief sought in the notice of motion sought as follows:-
“(1) An Order dismissing or striking out the plaintiffs’ claim on the basis that the subject matter of the claim is res judicata and/or that the plaintiff is estopped from bringing the claim because of issue estoppel.
(2) In the alternative, an Order, pursuant to the inherent jurisdiction of this honourable Court, dismissing or striking out the plaintiffs’ claim that it amounts to an abuse of the process of this honourable Court.
(3) An Order, pursuant to Order 19, rule 27 of the Rules of the Superior Courts, or alternatively pursuant to the inherent jurisdiction of his Honourable Court, striking out the entire of the plaintiffs’ statement of claim or such part thereof as to this Honourable Court seems fit on the basis that it is scandalous.
(4) An Order pursuant to the provisions of the Statute of Limitations 1957 dismissing the plaintiffs’ action on the basis that it is statute-barred.
(5) An Order restraining the plaintiffs from instituting any further proceedings against the defendant without first obtaining leave of the Court.”
Further ancillary relief was sought.
Following the hearing on that occasion I declined to make the order sought at para. 1 of the notice of motion. I was however, satisfied that the statement of claim of the plaintiffs as before the Court was scandalous and an abuse of the process of the Court and on that basis I determined that part of the statement of claim be struck out, namely, paras. 34 to 70. That left before the Court paras. 1 to 33 inclusive and para. 71 of the statement of claim. I then directed the plaintiff to deliver an amended statement of claim to reflect the order made by me and I adjourned the balance of the motion, namely an issue as to the Statute of Limitations to be heard at a later date. The matter then appeared before me from time to time for mention. Ultimately, the matter came back before me for hearing in relation to the outstanding issue on the notice of motion on the 17th December, 2008.
As I have mentioned the matter came back before me on a number of occasions for mention. This was to ensure that the amended statement of claim had been delivered and to allow a defence to be filed before the issue of the Statute of Limitations was heard and determined. It transpired that there was some confusion on the part of the plaintiffs as to what steps were required to be taken. This is perhaps understandable as the company was not represented before the Court and Mr. Gaffney appeared on his own behalf. At one of the “for mention” hearings, it became apparent that the plaintiffs had delivered a further amended statement of claim to the defendant. This statement of claim contained some six paragraphs (there was some dispute about this – initially, it appears that a three paragraph statement of claim was received by the defendant but I accept that the plaintiffs at all times intended to rely and tried to provide the defendant with a six paragraph statement of claim. Some mishap or confusion led to the defendant only receiving the first three paragraphs of that statement of claim.) In any event, I pointed out to Mr. Gaffney that he could not simply deliver a further statement of claim without leave of the Court. As it was indicated to me that the plaintiffs intended to rely on that statement of claim, I gave leave to the plaintiffs to deal with the matter on the basis that they were now relying on the six paragraph statement of claim. A defence was delivered on the 24th June, 2008 in which inter alia, the Statue of Limitations was pleaded.
An affidavit of William B. Devine was sworn on the 25th July, 2008 setting out the basis of the application to dismiss the proceedings on the grounds that the same are statute-barred. Five affidavits were sworn by Mr. Gaffney in response – on the 1st July, 2008, a second affidavit on the 1st July, 2008, the 7th July, 2008, the 30th September, 2008 and the 10th November, 2008. I do not propose at this point to refer in detail to the affidavits save to say this: in each of the affidavits sworn herein by Mr. Gaffney subsequent to the hearing on the 4th June, 2008, it is stated that the ruling of the Court on that date was to refuse the relief sought in paras. 1, 2, 4, 5 and 6 of the defendant’s notice of motion. The affidavits go on to state:-
“That the issue of the Statute of Limitations does not apply as the pleading of stamp duty is re-stated and that cause of action did not occur until February 2006 when I first saw the purported Deed of 24th September, 1986.”
Given the various averments to the like effect in the affidavit sworn by Mr. Gaffney, it is clear that he is under a serious misapprehension as to what occurred on the 4th June, 2008. That aspect of the defendant’s motion was not refused but adjourned pending the completion of the pleadings in the case as I have stated above. Having clarified that aspect of the matter for the benefit of Mr. Gaffney on the 17th December, 2008, I proceeded to hear the application to dismiss the proceedings on the basis that the same are statute barred. For ease of reference I think it would be helpful to set out in full the statement of claim now relied on by the plaintiffs:-
“1. On or about the 24th September, 1986, the defendant, William B. Devine, as solicitor for the first named plaintiff did, negligently prepare and execute a Deed of Transfer for the sale of his client’s property at 4A, Knocklyon Road, Templeogue, Dublin, 16, which served to dispose of the property for the sum of £6,000 when at the time the property was valued at £60,000.
2. In the circumstances the plaintiff suffered a loss of 90% of the value of the property, in an act that was ultra vires the object of the client, a limited liability company.
3. The plaintiff claims compensation in the amount of 90% of the value of the property at December, 2006, the date of the plaintiffs notification of proceedings, in the sum of €2,880,000 being 90% of the then value of €3,200,000.
4. The plaintiff re-states the claim that there was an insufficient stamping on the purported deed of transfer and, as such, constitutes Revenue fraud.
5. In the circumstance the matter of part 10 – 127 of the Stamp Duty Consolidation Act 1999 will apply.
6. In the circumstances the matter of s. 8(3 and 4), of the Stamp Duty Act 1999 will apply”.
As is apparent from the above, it is contended by the plaintiffs that the defendant negligently prepared a Deed of Transfer for the sale of a property at 4A, Knocklyon Road, Templeogue, at a sum of £6,000 at a time when the property was valued at £60,000. The loss alleged to accrue to the plaintiff is now said to be €2,880,000 as of December, 2006. The loss is said to be that of “the plaintiff” although it is not entirely clear from the statement of claim how the second named plaintiff is affected by the alleged loss. It is also contended that the Deed of Transfer was insufficiently stamped and that this amounts to a fraud on the Revenue.
The defendant herein swore an affidavit on the 25th June, 2008. That affidavit deals with the issue of the Statute of Limitations in the context of the amended statement of claim. In his affidavit, the defendant set out the background to this matter. Between 1981 to 1987, he acted as a solicitor for the first named plaintiff and its directors, Kenneth Gaffney and Helena Gaffney. Helena Gaffney (now deceased) was the mother of Edward and Kenneth Gaffney. In 1986, certain lands, part of Folio 9679, County Dublin, were transferred from the first named plaintiff to Helena Gaffney. This transfer is at the heart of these proceedings. The Deed of Transfer was exhibited in an affidavit sworn by Edward Gaffney on the 7th July, 2008. It is stated in the deed of transfer that it is in respect of all the property in Folio 9679 of the Register of Freeholders. The address of Mrs. Gaffney is given as 4, Knocklyon Road, and it is certified that the transaction does not have a value in excess of £6,000. In correspondence between the Land Registry and the defendant which is also exhibited in the same affidavit, it appears that the Land Registry was informed that the transfer was in respect of all of the lands in the Folio and that the lands consisted of a building site.
The defendant in his affidavit set out in detail the findings of Her Honour Judge Linnane in Circuit Court proceedings in which the history of ownership of the property is outlined by the learned Circuit Court Judge in her judgment at p. 2 as follows:-
“Task Construction Limited was registered as full owner in 1982. The defendant and his mother were directors of that company and by Deed of Transfer dated the 24th September, 1986 the premises in question together with a plot of land to the rear was transferred to the second named plaintiff and she was registered as full owner in 1988. The defendant’s solicitor dealt with that transaction. In or around 2002 the plot to the rear was transferred by the second named plaintiff to the defendant and by transfer dated the 19th June, 2003 the second named plaintiff executed a voluntary transfer of the house into the joint names of herself and the first named plaintiff. On the 5th February, 2004 the second named plaintiff executed an enduring power of attorney in favour of the first named plaintiff.”
The second named plaintiff in those proceedings was Helena Gaffney and the defendant was Kenneth Gaffney.
I do not think it is necessary to outline in detail the full history of the lengthy disputes involving Kenneth Gaffney, Task Construction Limited, Helena Gaffney and William B. Devine, save and insofar as it may be necessary for the purpose of considering whether or not these proceedings are statute barred. However, to the extent that it is necessary, it may be relevant to deal with some further details as to the background to this matter in order to bring the situation up to date.
As can be seen from the passage quoted above from the judgment of Her Honour Judge Linnane in 2002, a plot of land to the rear of 4 or 4A Knocklyon Road, was transferred by Helena Gaffney to Kenneth Gaffney. By a transfer dated the 19th June, 2003, a voluntary transfer at the property at 4A Knocklyon Road, into the joint names of Helena Gaffney and her daughter, Alice Dorris took place. It seems to me to be clear that the genesis of these proceedings springs from the effect of that transfer. As a result of that transfer, Alice Dorris became the sole owner to that property on her mother’s death, with the result that Edward and Kenneth Gaffney derived no benefit from that property on the death of their mother.
The transfer to Kenneth Gaffney of the site to the rear of the property in 2002, contained the following recital:-
“Helena Gaffney, . . . the registered owner in consideration of the natural love and affection she has for her son Kenneth Gaffney . . . hereby transfers as beneficial owner part of the property contained in Folio 9679 County Dublin . . . to her son.”
A map was attached to the transfer showing the plot to be transferred.
The amended statement of claim relied on by the plaintiffs herein alleges negligence against the defendant in the preparation of the Deed of Transfer of the property at 4A Knocklyon Road, in 1986. On the face of it, the claim is statute barred. In order to avoid the apparent affect of the statute of limitations, it is pleaded that there was insufficient stamp duty paid on the Deed of Transfer and that this amounts to revenue fraud. The statement of claim then goes on to say as follows:-
“5. In the circumstances the matter of part 10 – 127 of the Stamp Duty Consolidation Act 1999, will apply.
6. In the circumstances the matter in s. 8(3) and (4) of the Stamp Duty Consolidation Act 1999, will apply.”
The argument of the plaintiffs appears to be that in the stamping of the Deed of Transfer insufficient duty was paid on the transfer and that this amounts to a fraud on the Revenue, thus preventing the Statute of Limitations from barring the proceedings. Section 71(1) of the Statute of Limitations 1957, provides as follows:-
“Where, in the case of an action for which a period of limitation is fixed by this Act, either
(a) the action is based on the fraud of the defendant or his agent or of any person through whom he claims or his agent, or
(b) the right of action is concealed by the fraud of any such person,
the period of limitation shall not begin to run until the plaintiff has discovered the fraud or could with reasonable diligence have discovered it.”
The first point to note is that in considering the affect of s. 71 and the postponement of the limitation period by reason of fraud, the claim by the plaintiff must involve a claim for damages against a defendant who has caused a loss to the plaintiff as a result of the alleged fraud. Alternatively it must be shown that the right of action has been concealed by the fraud of the defendant. In these proceedings, the alleged fraud could only be a fraud on the Revenue if indeed there is any fraud. It is impossible to see how such an alleged fraud could have occasioned any loss to the plaintiffs or either of them. It any event, even if there was a fraud on the Revenue, and I am far from convinced that there was, despite the many affidavits sworn herein by Mr. Edward Gaffney, such a fraud is a matter for the Revenue to pursue – not the plaintiffs herein.
In the course of the statement of claim reference was made to the provisions of the Stamp Duty Consolidation Act, 1999. Whilst it is a Consolidation Act it expressly provides at s. 160(2) as follows:-
“This Act shall not apply in relation to stamp duty on –
(a) instruments specified in Schedule 1 which were executed before the date of the passing of this Act.”
Accordingly the Stamp Duty Consolidation Act 1999, has not bearing on the stamping of the Deed of Transfer of 1986. Mr. Conlon, in his submissions on behalf of the defendant pointed out that the Deed was stamped in accordance with the terms of the Stamp Act 1891. Section 12(5) of that Act provides as follows:-
“Every instrument stamped with a particular stamp denoting either that it is not chargeable with any duty or is duly stamped, shall be admissible in evidence and available for all purpose notwithstanding any objection relating to duty.”
I cannot see any basis on the papers before me, bearing in mind the allegations contained in the affidavit of Mr. Gaffney and the submissions made herein by both parties to reach the conclusion that there was a fraud on the plaintiffs within the meaning of s. 71(1) of the Statute of Limitations 1957, as amended, such that the present proceedings are not statute barred. The allegation before the court is that there was a fraud on the Revenue in the amount of stamp duty payable on the Deed of Transfer. I am far from satisfied that such a fraud has occurred, but even if it was the case that there had been such a fraud, that does not assist the plaintiffs in the circumstances of this case.
I noted previously that Mr. Gaffney avers in the course of his affidavit to the fact that the cause action “did not occur until February 2006, when I first saw the purported Deed of the 24th September, 1986”. The cause of action alleged in this case is negligence in the preparation and execution of that Deed. The Deed was executed on the 24th September, 1986. Assuming for the sake of argument that there was negligence on the part of the defendant, the tort was complete in September 1986. That is when the cause of action accrued to any party who suffered a loss as a result of the alleged negligence. Mr. Gaffney seems to be attempting introduce a test of “discoverability”. This is a concept that has been rejected by the courts in a number of cases, eg. Morgan v. Park Developments Limited [1983] I.L.R.M. 156, Hegarty v. O’Loughran [1990] 1 I.R. 14, Doyle v. C. and D. Providers (Wexford) Limited [1994] 3 I.R. 57 and Touhy v. Courtney [1994] 3 I.R. 1. It is clear from those authorities that in a case such as this, the test of discoverability does not apply.
Finally I should note that even if there was the alleged negligence on the part of the defendant and even if the proceedings are not statute barred. It is difficult to see what if any loss was caused to the second named plaintiff herein as a result of the alleged or any negligence.
In conclusion I am satisfied that these proceedings are statute barred.
Moore v Moore
[2010] IEHC 462
JUDGMENT of Mr. Justice Roderick Murphy delivered the 10th day of December, 2010
1. Background
The plaintiff was born on the 29th February, 1939, and died on the 16th October, 2010, after the hearing of this action. Her family were from Drogheda.
On the 14th May, 1960, the plaintiff married Eamon Russell and the parties resided for some time in the United Kingdom. The first and second named defendants believed that a decree of divorce was granted on the 22nd July, 1968 in England. The plaintiff maintains that the marriage was dissolved on the 23rd October, 1968 and that some years later on the 19th June, 1981, a church nullity was granted.
In any event the plaintiff had, in the meantime, returned to Ireland and commenced employment around 1970 with John Gabriel Moore, who was then a widower with two children. The plaintiff married Mr. Moore in 1971, when those children were aged four and two respectively.
The plaintiff and Mr. Moore ultimately lived in 100 Mount Tallant Ave., Harold’s Cross, which was purchased with the aid of a mortgage from the Educational Building Society (“EBS”), in the joint names of the plaintiff and Mr. Moore. The EBS loan was for £4,800 and, it would appear, that the premises were bought for a sum of some £6,000. Title thereto is registered in Folio 30984L of the Register of Leaseholders where the parties were registered as co-owners on the 20th February, 1978.
Unhappy differences arose between the parties and on the 2nd July, 1982, the plaintiff says that, due to the violence of Mr. Moore, she was forced to leave the premises. At no stage did she receive any maintenance. She applied for and was granted a Deserted Wife’s Allowance of which she was in receipt until 1988, when she moved to Antwerp. The plaintiff continued to reside in Antwerp until 2002. She suffered two severe illnesses from cancer and ultimately returned to Drogheda where she resided with her mother at 5 Laburnum Square, North Road, Drogheda, from 2002 until the date of her death on 16th October, 2010.
Mr. Moore continued residing at 100 Mount Tallant Ave, until the date of his death on the 5th January, 1996. He died intestate and was described as a widower on his death certificate. The first and second named defendants were then aged approximately 29 and 27 years respectively. The Grant of Letters of administration issued to the first and second named defendants on the 24th May, 2002, over six years after their father’s death. Meanwhile, the Inland Revenue affidavit sworn by the first and second named defendants on the 12th March, 2001, described Mr. Moore as a widower. The net value of his estate was given at £56,841. The value of the Mount Tallant premises was given as £60,000 subject to a loan in favour of the EBS of £4,313. The only other asset was monies in National Irish Bank of £2,400.
By letter dated the 25th November, 1983, four months after leaving 100 Mount Tallant Avenue and over twelve years before Mr. Moore’s death, the plaintiff’s solicitor wrote to Mr. Moore in connection with her interest in the property. That letter stated that their client was then anxious to realise her share in the property and sought suggestions as to how this might be achieved. No reply was received to that letter.
Following the death of Mr. Moore, the defendants, and in particular the first named defendant continued to reside in and occupy the premises.
The first named defendant gave evidence of having made enquiries about the whereabouts of the plaintiff. Those enquiries included writing a letter to the plaintiff’s original family home in Drogheda. Subsequently a death certificate of a Maureen Moore, aged 57 years, who died on the 21st January, 1995, was obtained.
In May 2001, the first and second named defendants made an application to the Land Registry in respect of the lands comprised in the relevant Folio in order to have the entries thereon reflect what they said was the fact that the deceased was the sole owner of the property on the date of his death on the 5th January, 1996. The affidavit was sworn by the first and second named defendant and contained the following averment:
“We say that the said Maureen Moore died on the 21st January, 1995, thus severing the joint tenancy. We beg to refer to the death certificate of the said Maureen Moore upon which we have signed our name prior to the swearing thereof.”
Five months after the grant of letters of administration was issued, the first and second named defendants agreed to sell 100 Mount Tallant Avenue. Pursuant to a contract for sale by transfer for value dated the 23rd October, 2002, the premises were transferred to the third named defendant and she became the registered owner on that date.
2. Pleadings
The plaintiff’s summons issued on the 22nd November, 2007, in which she sought a declaration that upon the death of the said John Moore, deceased, she was entitled to register it as full owner of the premises and also sought a declaration that the first and second named defendants wrongfully converted the title deeds to the property to their own use and benefit by the purported sale of the property; that good title did not pass to the third named defendant; that the first and second named defendants were unjustly enriched by the purported sale of the property and held the proceeds of the property in trust for the plaintiff.
An amended defence of the first and second named defendants was delivered on the 13th January, 2010.
In that defence the defendants say that if the plaintiff is the lawful widow of the deceased, which was not admitted, the defendants contend that in or about the summer of 1981, that she left and abandoned the premises and discontinued possession thereof and continued to be out of occupation and possession for upwards of twelve years or thereafter. The deceased was in sole and exclusive beneficial occupation and possession for upwards of twelve years with no acknowledgement made by him in respect of the plaintiff’s title to the premises. By virtue of the Statute of Limitations 1957, and in particular ss. 21 and 24 thereof, the plaintiff’s title was extinguished. The defendants further denied that at the time of the death of the deceased, the plaintiff was joint owner of the premises. Any claim that the plaintiff may have had to the estate of the deceased was statute barred prior to the institution of the proceedings herein under s. 126 of the Succession Act 1965.
The amended defence further pleaded that if on the death of the deceased on the 5th January, 1996, the plaintiff had any estate or interest in the premises, that the purchase with the aid of a loan from the EBS secured a charge on the premises. Following the departure of the plaintiff from the premises in 1982, the deceased continued to repay monies and so acquired an additional equitable estate or interest. The first and second named defendants, in paying and discharging the balance to the EBS are entitled to credit without prejudice to their denial that the plaintiff had no estate or interest. Moreover, the first named defendant and his family were in occupation of the premises and carried out works and improvements and is entitled to any sum out of the estate of the deceased in respect thereof.
The defence of the third named defendant was delivered on the 3rd June, 2008. The third named defendant says that she is the registered owner of, but does not presently reside at the premises and is a stranger to the allegation that the plaintiff is the lawful widow of the deceased.
The third named defendant admitted that at the time of the death both the deceased and the plaintiff were registered as joint owners, but denied that upon the death of the deceased, the full legal and beneficial interest in the property vested in the plaintiff. That defendant denied the allegation that the first and second named defendants had not title in the property or that “title did not vest in the third named defendant”. The title of the plaintiff in the property had been extinguished and the plaintiff was not entitled to the relief claimed or to any relief.
Issue was joined in the reply of the plaintiff dated the 14th October, 2008. It was denied that the third named defendant had absolute title; that the defendants had been in possession adversely to the plaintiff. The plaintiff maintained that the first and second named defendants were estopped from raising a claim of adverse possession or from maintaining that the claim to the proceeds of sale is statute barred.
The plaintiff also, on the 14th October, 2008, joined issue and denied that the third named defendant and her predecessor in title held the property for more than twelve years prior to the January 1996, or prior to the institution of the proceedings or that the plaintiffs title had been extinguished.
By amended reply on the 10th February, 2009, the plaintiff pleaded that the first and second named defendants obtained a death certificate which they knew or ought to have known was not the death certificate of the plaintiff. Relying on the same, these defendants sought to amend the register so as to reflect a false position whereby the said John Moore was shown as at the date of his death having been the sole person beneficially entitled to the said premises, thus enabling them as the personal representatives to deal with the property and dispose of the same to the third named defendant, notwithstanding the interest of the plaintiff.
The amended reply was copied into an amended statement of claim of the 11th May, 2010. An amended defence of the first and second named defendants to the amended statement of claim was delivered on the 26th May, 2010, denying that they knew or ought to have known that the copy death certificate was not that of the plaintiff; that they were guilty of any fraudulent act or fraudulently relied on the death certificate or were guilty of deceit or fraud in the conversion of the property and, in any event that the title of the plaintiff had become statute barred prior to the date upon which they had obtained the death certificate.
The amended reply of the 8th June, 2010, pleaded estoppel.
3. Plaintiff’s Submissions
The plaintiff submitted that the averment that Maureen Moore died on 21st January, 1995, without severing the joint tenancy was an acknowledgement that the first named defendant did not have any interest in the share of the plaintiff’s joint tenancy. The Inland Revenue affidavit sworn on 12th March 2001, maintained that stance.
The sale by the first and second named defendants to the third named defendant was on the basis that the former were the personal representatives of John Moore, as last surviving joint tenant, who, at the date of his death, was absolutely entitled to the property.
At the time of the completion of that sale, in October 2002, the plaintiff had already returned to the jurisdiction, even though she did not seek to trace the said John Moore until 2006 when she said she contacted John Moore’s brother who informed her that John Moore had died on 5th January, 1996.
The plaintiff’s case was that there was no basis for believing, either in 1996 or in 2001, that the plaintiff had died. The first and second named defendants knew the address of the plaintiff’s home, having written a letter to that address in 1996. They also knew the address of the plaintiff’s former solicitor. The first two defendants were at least careless as to whether the Death Certificate related to the plaintiff.
It was not pleaded by the first two defendants that a severance had taken place after the death of the Maureen Moore who died on 21st January, 1995. The plaintiff, as surviving joint tenant, would have been entitled to the entirety of the premises on survivorship, subject to the mortgage then due to the EBS. A period of twelve years did not elapse between the death of John Moore, on 5th January, 1996, and the issue of proceedings on 2nd November, 2007, a period of over eleven years, just short of twelve years.
The plaintiff claimed, accordingly, to be entitled to rectification of the Register, pursuant to the provisions of s. 31 of the Registration of Title Act 1964. The court has to consider the defence of the third named defendant in that regard.
The first and second defendants rely on the provisions of s. 55 of the Registration of Title Act 1964 whereby the registration operates as a conveyance free from all rights. It is submitted that this is subject to the provisions of s. 31, which provides for the conclusiveness of the register.
The second basis of the claim is that the interest of the plaintiff in the premises was statute barred from the time she left the premises in 1982 up to the time of the date of death of John Moore in 1996.
However, the plaintiff’s evidence was that she was forced to leave the premises and was subsequently in receipt of a Deserted Wife’s Allowance and accordingly, the statute could not run against her.
The affidavit of May 2003 acknowledged, that the joint tenancy was valid and subsisting as of 21st January, 1995. In the course of their role as personal representatives of their father, the defendants had sold the premises to the third named defendant. Accordingly, the premises should have passed by way of survivorship to the plaintiff. There could be no sale by these defendants in the course of administration of the estate.
Moreover, any claim in respect of the Statute of Limitations 1957, would be defeated where there existed fraud, which, it is alleged, was present in the actions of the first and second named defendant.
Adverse possession must be acquired other than by way of force, stealth or consent.
The uncontested evidence of the plaintiff was that she had to leave the premises as a result of the cruelty and violence of the co-tenant. There was constructive desertion. The acknowledgment by the first and second named defendants in relation to the non-severance of the co-tenancy is inconsistent with adverse possession.
Those defendants did not proceed on the basis that either John Moore or themselves had statute barred the plaintiff’s interests. Both these defendants are estopped from alleging that the plaintiff had been statute barred. Estoppel is when one is precluded and forbidden in law to speak against his own act or deed. These two defendants’ evidence in relation to what contradicted what they averred to in 2001 and 2002 should be disregarded by the Court.
The first and second named defendants described their father as a widower at the time of his death in 1996. No explanation is available as to why they assumed that, as of that date, the plaintiff, who would have then been fifty-nine years of age, had, in fact, pre-deceased the said John Moore. No attempts were made to enquire from family or friends. Maureen Moore, who died on 21st January, 1995, was described as a married woman with an address at Kilmacud in Dublin. The defendants could have made enquiries. There was a discrepancy between the Marriage Certificate of the plaintiff with the deceased from the age of Maureen Moore of Kilmacud. No step was taken to verify the accuracy of the Death Certificate.
The third named defendant was on notice that the Death Certificate referred to someone who died at an entirely different address, notwithstanding that the statutory declaration indicated that the plaintiff and the deceased had resided in the premises as man and wife. No attempt was made to clarify that issue.
While the third named defendant does not, in her defence, rely on the provisions of s. 55 of the Registration of Title Act 1964, the first and second named defendants seek to do so. However, the third named defendant was on enquiry and with reasonable enquiries could have ascertained the true picture.
4. First and Second Named Defendants Case
The defendants pleaded that the plaintiff’s title was extinguished by virtue of s. 21 of the Statute of Limitations 1957.
That section provides that a tenant who is in exclusive possession, after 1833, is not deemed to possess on behalf of his co-owners. The order of common law that the unity and possession among co-owners meant that if one co-owner occupied the whole of the land then that, by itself, did not constitute adverse possession. That rule was abolished by s. 12 of the Real Property Limitation Act 1833, the position is now set out in s. 21 of the Statute of Limitations 1957. This provides that if one co-owner is in possession of “the entirety or more than his or their undivided share or shares of such land for his or their own benefit”, then such possession shall not be deemed to have been possession of the persons not in possession.
Reference was also made to the judgment of Laffoy J. in Tracey Enterprises, McAdam Limited v. Thomas Drury [2006] IEHC 381, and judgment of Clarke J. in Dunne v. Iarnród Éireann and CIE (Unreported, High Court, 7th September, 2007).
5. Decision in relation to first and second named defendants
The first two defendants submitted that the title of the plaintiff to any estate or interest in the premises was statute barred on 5th January, 1996, when Mr. Moore died. At that point they say that there was no question of fraud.
Section 71 of the Statute of Limitations 1957, is an express provision postponing the date of the accrual of the cause of action in cases involving fraud to the date when the fraud was, or could with reasonable diligence have been, discovered. The statute provides that where the action is either “based on” or “concealed by” the fraud of the defendant, the limitation period does not begin to run until the plaintiff either discovered the fraud or could, with reasonable diligence, have discovered it.
The classic statement on the meaning of fraud is attributed to Lord Evershed M.R. in Kitchen v Royal Air Force Association [1958] 1 W.L.R. 563, 572 – 573, which was in the context of s. 26(b) of the Limitation Act 1939, that it was by no means limited to common law fraud or deceit. In that case there was concealment from the plaintiff by the second named defendants who were acting as her solicitors of what was being proposed to the plaintiff “a necessary consequence, the concealment”.
“A necessary consequence of the concealment (as the second defendant must have realised, if they had given any thought to the matter at all) was a concealment also from the plaintiff of the real effect of their having thrown away – and I use that word deliberately – any case which she might have possessed under the Fatal Accidents Acts in May 1946. Does, however, that concealment amount to fraud? There is no finding, and no justification for any finding of dishonesty as that word is ordinarily understood. It is now clear, however, that the word ‘fraud’ in s. 26(b) of the Limitation Act 1939, is by no means limited to common law fraud or deceit. Equally it is clear, having regard to the decision in Beaman v ARTS Ltd [1949] 1 All E.R. 465, that no degree of moral turpitude is necessary to establish fraud within the section. What is covered by equitable fraud is a matter which Lord Hardwicke did not attempt to define two hundred years ago, and I certainly shall not attempt to do so now, but it is, I think clear that the phrase covers conduct which having regard to some special relationship between the two parties concerned, is an unconscionable thing for the one to do towards the other.”
Has there been a fraud or concealment? If so who concealed what from whom? Was there a special relationship between the defendants and the plaintiff? It is easier to answer the latter question in the affirmative: the first and second defendants as personal representatives of their father did have a special relationship with the plaintiff.
What did they aver? That there was no severance of the tenancy before the death of the other Maureen Moore? Did they conceal thereby that the plaintiff was possibly alive?
While fraud has been alleged it has to be examined in terms of two letters in 1996, from the first and second named defendants’ solicitors to Vincent Hoey and P.C. Moore seeking the address of the plaintiff. Furthermore, there was a letter to nursing homes and to whom the first and second named defendants made enquiries.
The Court agrees that the plaintiff’s cause of action was not based on the fraud of the defendants. Moreover, the cause of action was not concealed by the fraud of any such person. The plaintiff could, at any time, by using any reasonable diligence have ascertained years earlier that the said John Moore was dead.
I am satisfied from the evidence that they did attempt to ascertain the whereabouts of the plaintiff. They may have been less than thorough in identifying the Maureen Moore who died the year before their father with the plaintiff, their foster mother. Notwithstanding, there was no evidence of fraud or concealment.
The fraud alleged, which is against the first and second named defendants in relation to the procurement of the death certificate of the Maureen Moore who died on the 21st January, 1995, is accordingly, not established.
The first and second named defendants contended that the title of the plaintiff to any estate or interest in the premises was statute barred long before they located the death certificate. There was no issue of fraud before obtaining the death certificate.
The plaintiff had left and remained out of upwards of twelve years from the premises and, accordingly, s. 21 of the Statute of Limitations 1957, applies.
The plaintiff says that her dispossession of the property was caused by the conduct of the deceased. She was acknowledged as a deserted wife.
Moreover, the plaintiff submits that the first and second named defendants are estopped by their conduct in relation to the averments in the Inland Revenue Affidavit, that the joint tenancy was not severed until the death of the other Maureen Moore.
However, the defendants say that the plaintiff is a stranger to the estoppel in the declaration. It is not a statement of fact communicated to the representee which determined a change of position by the plaintiff.
There was no acknowledgment by the deceased of the plaintiff’s rights in or over the house such as to apply s. 55 of the Statute.
Adverse possession by spouses would appear to be in a different category from adverse possession by others, including squatters. Keelan v Garvey [1925] 1 I.R. 1 is authority for the rule a person cannot be in adverse possession to his or her spouse, even where there has been desertion.
In that case, the plaintiff had inherited lands from his father in 1896, and had married in 1897. Following quarrels with his wife, left the farm later that year and did not return until 1923 after the death of his wife. His wife had continued to reside at and manage the farm until her death. She had an agreement for the purchase of the holding under the provisions of the Irish Land Act 1903. In 1909 the holding was vested in her by fiat of the Land Commission and she was registered in the Land Registry as owner and fee simple, subject to equities which were later, on her application, cancelled.
His wife had, by her will, devised and bequeathed the farm to her brother. The plaintiff claimed to be beneficially entitled to the farm.
The Supreme Court (Kennedy C.J., O’Connor and FitzGibbon JJ.) held that the plaintiff never ceased to be in possession of the farm, that his wife never entered into possession adversely to him; that she was provided with the residence and with support on his farm in fulfilment of his marital obligations; and that the Statute of Limitations never ran against him. Accordingly his wife’s executor was the trustee of the legal estate for him. It was held that the register should be rectified accordingly.
In that case, Mrs. Keelan was not a joint tenant. Her only entitlement was to right of residence. Before she died she was in occupation as spouse and not as a joint tenant.
Keelan v. Garvey was considered almost twenty years later in Re. Daily [1944] N.I. 1 and both cases are commented on by Lyall, “Land Law in Ireland” 3rd Ed. 2010.
The owner of registered lands lived on the lands with his wife and two children until 1928, when, owing to disagreements with his wife, he left with her approval and lived elsewhere without making any claim or without any acknowledgment of right.
The Court of Appeal held that but for the provision of the Local Registration of Title (Ireland) Act 1891, the right of the registered owner would be statute barred.
In the present case the plaintiff was joint tenant. Her husband could not have been in adverse possession to her legal entitlement.
Moreover, the first and second defendants are estopped from denying that the joint tenancy had severed. While there was no evidence of fraud or concealment there was clearly a mistake as to the identity of the Maureen Moore who died the year before their father. The court is satisfied that within a year after the plaintiff became aware of her husband’s death, when she was so informed by his brother in 2006, she commenced proceedings.
It is then necessary, absent fraud or concealment, to examine the effects of the first and second named defendants’ mistake.
“Section 72 of the Statute of Limitations 1957 states as follows:
72(1) Where, in the case of any action for which a period of limitation is fixed by this Act, the action is for relief from the consequences of mistake, the period of limitation shall not begin to run until the plaintiff has discovered the mistake or could with reasonable diligence have discovered it.
(2) Nothing in subsection (1) of this section shall enable any action to be brought to recover, or enforce any charge against, or set aside any transaction affecting, any property which has been purchased for valuable consideration, subsequently to the transaction in which the mistake was made, by a person who did not know or have reason to believe that the mistake was made.”
Wylie (Fourth Edition) at 23.25 comments on s. 72 of the Statute of Limitations as follows:
“. . . the general rule is that mistake does not stop time running (Re Jones’s Estate [1914] 1 I.R. 188) and squatter’s rights are often acquired by such means, e.g., where neighbouring landowners make a mistake as to where the boundary lies between their adjoining lands. However, where the action in question is for relief from the consequences of mistake, time does not run until the plaintiff discovers the mistake, or could have done so with reasonable diligence. (Statute of Limitations 1957, s 72(1)). In the case of land, relief for mistake usually involves an application for equitable relief, i.e., rescission or rectification, and as such is not subject to the statute of limitations anyway. Like all equitable relief, on the other hand, it is subject to the doctrine of laches.”
Brady & Kerr at pages 196 – 198:
“Time does not begin to run until the plaintiff has discovered his mistake or could have discovered it with reasonable diligence. The language of s. 72(1) is narrower in scope than that in s. 71(1) and it is the fact of a mistake and not its concealment which gives rise to the equitable relief. Caselaw suggests that the mistake must be an essential ingredient to the cause of action.”
While Brady and Kerr refer to the plaintiff’s mistake, nothing in the provision would suggest that it is restricted to a mistake on the part of the plaintiff.
In Phillips-Higgins v Harper ([1954] 1 QB 411) it was held that the equivalent English provision is limited to cases where mistake forms part of the cause of action, but does not extend to cases where the plaintiff was mistaken as to, or ignorant of, his rights (Canny, Limitation of Actions at 10-23). The mistake of the first and second defendants was the receipt and use of a death certificate of a different person by the name of Maureen Moore in or around 2001 / 2002. The joint tenancy was not severed by the time the other Maureen Moore died on 21st January 1995, it was still not severed by the time Mr Moore died in 1996.
Would s. 72 of the Statute of Limitations have applied in these circumstances? Brady and Kerr in “The Limitations of Action” (2nd Ed. 1994) state that the mistake must be an essential ingredient to the cause of action. As a result of the receipt and use of the incorrect death certificate, the Folio was changed and the property sold after the Grant of Letters of Administration was obtained. This prevented the plaintiff asserting her rights (s. 72(2) also supports this), because of the right of the third defendant and that of her bank.
A consequence of the first and second defendants’ mistake was that the plaintiff was not located and contacted on her late husband’s death. The first and second named defendants acknowledge in the Inland Revenue Affidavit (sworn on the 12th March 2001) that the plaintiff was his spouse. However in pleadings they refer to her “alleged widowhood” and state that they do not admit that she was his widow and that they require proof of same. If those defendants had not made the mistake in relation to the death certificate, and had located the plaintiff, she would have been able to attempt to assert her rights at that stage.
The court is satisfied that the joint tenancy was not severed by the time Mr Moore died, twelve years have not passed from the date of his death because time has ceased to run on the 11th year with the issuing of the summons.
There were two consequences of the mistake: the Folio was amended, and the plaintiff was not told about her estranged husband’s death. The plaintiff would have been the party to take out the grant of letters of administration, or alternatively to renounce her right to do so. There is no indication in the papers before the court as to what the personal representatives (the first and second defendants) swore in the Oath of Administration Intestate, which is the document setting out the correct history of entitlement of the applicant to extract the Grant.
If the plaintiff was not statute barred, the defendants’ mistake resulted in the plaintiff not getting the property which was the subject of the joint tenancy on survivorship, because severance had not occurred. However, if she was statute barred, the joint tenancy was severed and it was solely Mr Moore’s, the property would go into his estate and she should become entitled to her legal share of his estate under the Succession Act 1965, as he died intestate. Therefore the defendants’ mistake resulted in the plaintiff not being able to take out the grant of letters of administration and she did not get her legal share of her late husband’s estate (the property having gone back into his estate by reason of her having become statute barred and the joint tenancy being severed). For this reason it would seem that there might be an entitlement to damages and costs.
Personal representatives are not only obliged to perform their duties but to perform them diligently or at least prudently. The duty of diligence that a personal representative owes to creditors and beneficiaries commences from the date of the grant, and continues while gathering in and preserving the assets and when administering and distributing the estate among the persons entitled. (See Keating on Probate at 17 -01)
6. The Position of the Third Named Defendant
Even if the first and second named defendants were estopped from raising the Statute of Limitations against the plaintiff, no estoppel arises against the third named defendant who is entitled to rely upon the Statute.
Moreover the register is conclusive evidence of title. If the plaintiff sustained loss as result of fraud then the plaintiff may be entitled to compensation under the provisions of s. 120 of the Registration of Title 1964.
The plaintiff is not entitled to any order under s. 31 of the Registration of Title Act 1964, rectifying the register in circumstances where the third named defendant was a bona fide purchaser for value without notice of the alleged fraud
Moreover, the present registered charge holder, Ulster Bank Ireland Limited, is also a bona fide purchaser for value without notice of the alleged fraud.
The court is satisfied that estoppel cannot apply, particularly in relation to the third named defendant, but also in relation to the first and second named defendants as the plaintiff is a stranger to the estoppel in that no communication was made to her.
In relation to the third named defendant the registration of title is, pursuant to s. 31(1) of the Registration of Title Act conclusive evidence of the title of the owner to the land as appearing on the register. This is further strengthened by the provisions of s. 55, which deems the instrument of transfer to operate as a conveyance by deed within the meaning of the Conveyancing Acts.
Moreover, the repudiation of a contract is impossible where third parties have intervened and acquired rights thereunder for value. As a bona fide purchaser for value, the third named defendant had charged the property to Ulster Bank Limited, who is not a party. The charge held by the bank cannot be rescinded or removed.
The court refuses the plaintiff’s claim as against the third named defendant.
The court will hear the parties regarding the issue of damages resulting from the mistake which deprived the plaintiff of her interest.
EAO v Daughters of Charity of St Vincent de Paul
[2015] IECA 226
JUDGMENT of Mr. Justice Gerard Hogan delivered on the 21st day of October 2015
1. This is an appeal brought by the plaintiff against the decision of Kearns P. striking out her claim against the first named defendant, the Daughters of Charity, on the grounds that they were statute-barred and also by reason of inordinate and inexcusable delay: see EAO v. Daughters of Charity [2015] IEHC 68. The plaintiff also seeks to adduce new evidence on this appeal. It is important to make clear that the plaintiff’s claim against the second and third named defendants remains in being.
2. There is no doubt but that the plaintiff’s life has been a very difficult one. She was born in 1947 and from the age of six was placed in the care of various institutions and industrial schools. In or about June 1968 the plaintiff contends that she was in the care of an institution operated by the second defendant located at High Park, Drumcondra, Dublin 9 when, while absent from the institution for a time, she was raped by a person unknown and became pregnant. Upon discovering that she was pregnant, the plaintiff claims that she was sent to reside at a so-called ‘mother and baby home’ known as St. Patrick’s, Navan Road, Dublin 7. The plaintiff claims that this institution was managed and operated by the Daughters of Charity, a religious order.
3. The plaintiff gave birth to a son at St. James’ Hospital on 2nd March 1969 and shortly thereafter returned to St. Patrick’s. She alleges that she was separated from her son and was only allowed to see him for the purposes of feeding. She further claims that she was precluded from bonding with her son or developing any natural relationship with him.
4. The essence of her claim is that in May 1969 the plaintiff claims that the Daughters of Charity informed her that her son was being put up for adoption, a course of action to which she says that she was steadfastly opposed. The plaintiff furthers says that her son was taken from her at the beginning of July 1969 and that she was not afforded an opportunity to say goodbye. The plaintiff subsequently obtained documents under the Data Protection Acts after these proceedings had been commenced appeared to indicate that the plaintiff signed various relevant consent documents on the 5th May 1969 and the 1st October 1969.
5. After signing the first of the consent forms the plaintiff returned to the second defendant in Drumcondra where she continued working in the ‘Magdalene laundries’. Some months later, the plaintiff maintains that she was presented with the final adoption papers and was informed by a Sister Columba that should she fail to sign them she would be “put out on the street”. The plaintiff contends that due to the undue influence and duress she was placed under, she felt compelled to sign the adoption papers. The plaintiff subsequently left the institution in Drumcondra and went on to marry and have seven other children.
6. If the plaintiff’s account is correct, then there is no doubt but that she led an extremely difficult life which was beset by tragedy. This is apparently borne out by a psychiatric report prepared by Dr. Maireád O’Leary. In that report Dr O’Leary states that the plaintiff was institutionalised in very harsh environments throughout her life until she was approximately twenty two years old and has limited insight into how appalling her life was. She had no freedom, was physically abused and frightened, and was forced to work very hard for no remuneration.
7. The plaintiff states that she feels deeply ashamed and embarrassed by the adoption of her first son and she thinks about him regularly. There is added poignancy in the fact that some time during 2008 the plaintiff, with the assistance of one of her children, set about trying to locate her son. She subsequently discovered that he had passed away in 2004.
8. The plaintiff commenced the present proceedings on 30th September 2013. She claimed damages for personal injury and psychological and mental distress arising from the negligence, breach of duty and breach of constitutional rights arising from the adoption of the plaintiff’s son. She further pleaded that she was entitled to rely on ss. 71 and 72 of the Statute of Limitations 1957 as the defendants were guilty of conduct of a “fraudulent nature.”
9. At the time of the institution of the plaintiff’s claim, the relevant limitation period for a personal injury action was six years. It is not, I think, really disputed but that, subject to the question of whether the running of time should be postponed, the action is otherwise statute-barred. The first question, therefore, is whether there is any basis on which it could be said that there has been any concealed fraud (in the special sense in which that term is used in s. 71(1)(b) of the Statute of Limitations 1957)(“the 1957 Act”) on the part of the first defendant such as would operate to take the present proceedings outside the scope of the limitation period otherwise prescribed by the Statute of Limitation.
Relevant statutory provisions
10. For this purpose the plaintiff relies on s. 71 of the 1957 Act. Section 71 relates to the postponement of a limitation period in cases of fraud and provides as follows –
“(1) Where, in the case of an action for which a period of limitation is fixed by this Act, either:-
(a) the action is based on the fraud of the defendant or his agent or of any person through whom he claims or his agent, or
(b) the right of action is concealed by the fraud of any such person,
the period of limitation shall not begin to run until the plaintiff has discovered the fraud or could with reasonable diligence have discovered it.”
11. The provisions of the Adoption Act 1952 (“the 1952 Act”) are also relevant in this context as this was the statutory provision which was in force at the time when the plaintiff’s child was handed over for adoption in 1969. Section 14 of the 1952 Act deals with consents to adoption:
“(1) An adoption order shall not be made without the consent of every person being the child’s mother or guardian or having charge of or control over the child, unless the [Adoption] Board dispenses with any such consent in accordance with this section.
(2) The Board may dispense with the consent of any person if the Board is satisfied that that person is incapable by reason of mental infirmity of giving consent or cannot be found.
(3) The consent of a ward of court shall not be dispensed with except with the sanction of the Court.
(4) A person may give consent to the making of an adoption order without knowing the identity of the applicant for the order.
(5) A consent shall be given in writing in the prescribed form.
(6) A consent may be withdrawn at any time before the making of an adoption order.”
12. Section 15(1) of the 1952 Act provides so far as the mother’s consent is concerned that:
“(1) A consent shall not be valid unless it is given after the child has attained the age of six months and not earlier than three months before the application for adoption.”
The decision of the High Court
13. In his judgment Kearns P. found that the plaintiff’s claim was statute-barred and that, in any event, he would have struck it out on the ground of inordinate and inexcusable delay. So far as the statute-barred point was concerned, Kearns P. stated:
“In her substantive claim the plaintiff alleges that her infant son was taken away from her and given up for adoption without her consent. The tragic details of the case as presented by the plaintiff are unfortunately not unique and bear resemblance to a number of well publicised cases which have in recent years caused the role of various State and religious institutions in the adoption process, as it operated in this country in the past, to be closely scrutinised. However, it is not the function of this Court at this stage to offer any view on the merits or veracity of the plaintiff’s claim. The first matter which the Court must consider is whether or not the plaintiff’s claim is barred by operation of the Statute of Limitations 1957 (as amended).
The plaintiff’s claim was instituted some forty four years after the events complained of allegedly occurred and is, therefore, prima facie statute barred. However, counsel for the plaintiff seeks to rely on section 71 of the Statute in order to postpone the relevant limitation period. It is submitted that the first defendant concealed details of an informal system which operated in breach of the requirements of s. 15(1) of the Adoption Act 1952 in order to prematurely obtain consent from mothers for the adoption of their children. The plaintiff submits that the first defendant’s role in this process only became known to the plaintiff through third party disclosures. Counsel for the defendant, on the other hand, submits that valid consent for the adoption was given to the Health Authority on the 1st October, 1969 and that this was within the terms of s. 15(1). Any consent documents purported to be relied upon by the plaintiff did not permit any adoption to occur and, in any event, were known to the plaintiff.
The Court is satisfied that an informal process operated in this case whereby the plaintiff, described on various documentation by the defendants as an ‘illegitimate’ mother, was asked to provide interim consent for the adoption of her child until such time as valid consent could be obtained pursuant to the requirements of the Adoption Act. I am also satisfied that in the plaintiff’s case the first defendant was an active participant in this highly questionable process. However, it is clear that the plaintiff, who was an adult at the time these events occurred, was fully aware of all of the matters now complained of including the alleged undue influence and duress. She signed an ‘interim’ consent form in May 1969 and provided formal consent in October 1969. In my view there is no indication that the first defendant perpetrated a fraud or fraudulently concealed anything from the plaintiff such as would cause section 71 of the Statute to become operative. I am satisfied that, even had this system not been known to the plaintiff, with reasonable diligence the documents and details of the procedure now sought to be relied upon by the plaintiff could have become known to her before they were finally obtained from TULSA on the 13th November, 2014.
For that reason, I am satisfied that the plaintiff’s claim was commenced out of time and is statute barred.”
14. While it was not strictly necessary for him to do so, Kearns P. also expressed the view that even if the action had not been statute-barred he would have dismissed the action on the grounds of undue delay. Even making all due allowances for the plaintiff’s own difficult personal circumstances, Kearns P. concluded that the delay in commencing the proceedings was inordinate and inexcusable, i.e., thus satisfying the first two limbs of the three tests prescribed by the Supreme Court Primor plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459. So far as the third element of the test was concerned, Kearns P. stated:
“Furthermore, as so much time has elapsed from the time these events occurred, and as various persons who would have been in a position to provide important evidence are now either deceased or likely to have a limited recollection of events, had it been required to do so the Court would have dismissed the claim on the balance of justice having regard to the first defendant’s inability to defend the proceedings.”
15. Before considering the plaintiff’s appeal against this decision, it may be convenient first to deal with her application to admit further evidence. By notice of motion dated 25th June 2015 the plaintiff sought to leave pursuant to Ord. 86A, r.4 to admit new evidence.
The application to admit new evidence
16. Ord. 86A, r. 4 of the Rules of the Superior Courts 1986 (as amended) provides in relevant part that:
“Subject to the provisions of the Constitution and of statute:-
(a) the Court of Appeal has on appeal full discretionary power to receive further evidence on questions of fact, and may receive such evidence by oral examination in court, by affidavit, or by deposition taken before an examiner or commissioner,
(b) further evidence may be given without special leave on any appeal from an interlocutory judgment or order or in any case as to matters which have occurred after the date of the decision from which the appeal is brought,
(c) on any appeal from a final judgment or order, further evidence (save as to matters subsequent as mentioned in paragraph (b)) may be admitted on special grounds only, and only with the special leave of the Court of Appeal (obtained by application by motion on notice setting out the special grounds)…”
17. It is clear from the decision of the Supreme Court in Minister for Agriculture, Food and Forestry v. Alte Leipzeiger Versicherung AG [2000] IESC 13, [2000] 4 IR 32 that the judgment of Kearns P. was a final order. In Alte Leipziger the question was whether a decision of the High Court striking out proceedings for want of jurisdiction was an interlocutory order in that sense in which that term had been used in the (old) version of the Ord. 58 dealing with appeals from the High Court to the Supreme Court. A majority of the Supreme Court held that it was not an interlocutory order in this sense, with the consequence that special leave was required before fresh or new evidence could be admitted.
18. By a parity of reasoning it would have to be acknowledged that the order of Kearns P. was a final order in that sense. Adopting the language of Hardiman J. in Alte Leipziger, it can be said the decision of the High Court “finally disposes of a particular issue between the parties” inasmuch as Kearns P. held that the proceedings must be dismissed insofar as they were statute-barred. A further consequence of this conclusion is that the plaintiff is required to obtain the “special leave” of this Court before such new evidence can properly be adduced.
19. The test for the admission of new evidence pursuant to the special leave of the appellate court were set out by Finlay C.J. in Murphy v. Minister for Defence [1991] 2 I.R. 161, 164. In that case the Supreme Court held that the party wishing to adduce new evidence for this purpose must satisfy three tests. First, the evidence must have been in existence at the time of the trial and “must have been such that it could not have been obtained with reasonable diligence for use at the trial.” Second, the evidence must be such that, if given, “it would probably have an important influence on the result of the case, even though it need not be decisive.” Third, the new evidence must be apparently credible.
20. The new evidence sought to be adduced is a letter dated 26th September 1969 sent by St. Louise Adoption Society to the Sister in Charge at St. Patrick’s Home. The letter recites that the plaintiff’s son was discharged to the care of a named couple at a named address “with a view to adoption.” The letter-writer continued:
“An Bord Uchtála has now requested the authority to have the form of consent to adoption completed by the child’s mother in the manner prescribed by statute….Please have Form 4 completed by the child’s mother as soon as possible.”
21. In my judgment, the first and third limbs of the test have been readily satisfied in the present case. So far as the first limb is concerned, the uncontradicted evidence from the plaintiff’s solicitor is that the letter was contained in a bundle of documents which another (named) solicitor found earlier this year unattended in the solicitor’s writing room in the Four Courts. As the other solicitor was aware of the former’s involvement in this case and as the bundle of documents related to these proceedings, the latter assumed that these papers were the property of the plaintiff’s solicitor and forwarded the documents to him
22. The letter was obviously in existence at the time of the trial and it seems fair to assume that but for this chance discovery of the bundle of documents by the other solicitor who mistakenly assumed that the documents belonged to the plaintiff’s solicitor the letter would never have come to light. In these circumstances, it can be said that the document would not have been available at the trial even with reasonable diligence.
23. The third limb is also satisfied since the letter is obviously authentic and inherently credible.
24. So far as the second requirement is concerned, it is not clear that the letter “would probably have an important influence on the result of the case . . .” Indeed, there is every reason to believe that it would not do so if only by reason of the fact the first named defendant’s application to dismiss the plaintiff’s claim must be determined, as was done by Kearns P., upon the claim as actually pleaded by her. At hearing of the appeal before this Court it was submitted that the additional letter showed the continuing involvement of the first named defendant in the adoption process even after the plaintiff had left St. Patrick’s home. The claim as pleaded, however, against the first named defendant (and the other defendants) at paras. 10 and 11 of the statement of claim includes claims for breach of duty in allegedly forcing the plaintiff to give up her son for adoption without proper consultation or informed consent. Kearns P. determined the application to strike out the proceedings upon the assumption that the plaintiff would be able to show – as she pleaded in the statement of claim – that the first named defendant “was an active participant in this highly questionable process”.
25. It is true that the letter in question referred to the requests for interim consent which formed part of the adoptive process. Taken at face value this would indeed tend to support the plaintiff’s contention that the first named defendant was actively involved in the adoption process, even after the plaintiff had left St. Patrick’s home. It must nonetheless be recalled that – as I have just stated – Kearns P. had already proceeded upon that particular assumption for the purposes of his judgment. In this context, therefore, the letter adds nothing new since, at best from the plaintiff’s perspective, it would simply help to prove a fact which the courts have already assumed in her favour for the purposes of determining whether the proceedings are statute-barred.
26. Nevertheless, given the particularly unfortunate circumstances of the plaintiff and in order that she may be reassured that the Court has taken all matters which she has now put before the Court into account, I propose, as an exceptional measure, to treat this letter as part of the relevant evidence for the purpose of determining this appeal.
Whether the action is statute-barred
27. There is no doubt but that as the proceedings were commenced some forty four years after the events complained of this action for personal injuries and breach of constitutional rights is prima facie statute-barred. The real question is whether it can be said that the present case can be brought within the concealed fraud exception provided for in s. 71 of the 1957 Act.
28. In his judgment Kearns P. found that there was ample evidence to suggest that the first named defendant was actively involved in what he described as the “highly questionable process” of obtaining an interim consent from the mothers of new born infants pending the execution of the formal consent.
29. The Oireachtas had clearly stipulated the circumstances in which a mother could give consent by providing in s. 15 of the Adoption Act 1952:
“A consent shall not be valid unless it is given after the child has attained the age of six months and not earlier than three months before the application for adoption.”
30. This was an important and vital legislative safeguard which was designed to ensure that the consent of the mother was freely given and that a decision of this kind – with life changing implications for both the mother and the child – was not taken in the immediate aftermath of labour and delivery. For the purposes of this appeal I will assume that if the matter ever came to trial that the plaintiff would be able to demonstrate that the consent requirements contained in s. 15 of the 1952 Act were either invalidly circumvented or otherwise not met and that such gave rise to a cause of action whether in negligence, breach of duty of breach of constitutional rights.
Concealed fraud
31. While the plaintiff accordingly knew of the underlying facts (i.e., she was being required to give an interim consent to the adoption), she maintains that she was unaware that this practice of giving advance consent to an adoption was unlawful or that no proper consent had been given. In effect, therefore, her case is that those involved in the adoption process impliedly represented to her that what was happening was routine, regular and lawful when, viewed objectively, they ought to have realised that the practice was totally irregular and unlawful.
32. Does failure to address the legal rights of the plaintiff in the manner thus alleged amount to concealed fraud such as would postpone the running of time for the purposes of s. 71 of the 1957 Act? Section 71(1)(b) of the 1957 Act provides:
“Where in the case of an action for which a period of limitation is fixed by this Act…
(a) the right of action is concealed by the fraud of the defendant or his agent…
the period of limitation shall not begin to run until the plaintiff has discovered fraud or could with reasonable diligence have discovered it.”
33. It is clear from the authorities and, not least, the historical development of the law in the period leading up to the enactment of the Statute of Limitations in 1957 that the phrase “concealed by the fraud of…” does not refer to fraud in the common law sense of the term or, indeed, that it is not even necessary to establish any moral turpitude in order to establish fraud within the section. Prior to the enactment of the Judicature Acts equity and common law had different rules for concealed fraud. At common law, time ran from the date of the wrongful act unless the concealment itself was a wrongful act. The position in equity was different in that time only ran from the date on which the concealed wrong was discovered.
34. Section 28(11) of the Supreme Court of Judicature (Ireland) Act 1877 provided that in the case of conflict as between law and equity the equitable rule should prevail. In one of early post-Judicature Acts decisions the English Court of Appeal held that in actions where there were concurrent remedies at law and in equity, the effect of the corresponding section (s. 24(4)) contained in the (English) Supreme Court of Judicature Act 1873 was that the equitable rule should prevail: see Gibbs v. Guild (1882) 9 Q.B.D. 59.
35. Over time, however, the courts applied the equitable rule as to fraudulent concealment to purely common law actions: see, e.g., Oelkers v. Ellis [1914] 2 K.B. 139, Lynn v. Bamber [1930] 2 K.B. 72, Legh v. Legh (1930) 143 L.T. 151 and Brunyate, “Fraud and the Statutes of Limitations” (1930) 4 Camb. L.J. 174: see generally the helpful analysis of this issue found in the judgment of La Forest J. in M(K.) v. M(H.) [1992] 3 S.C.R. 6. When, therefore, the British Parliament enacted the Limitation Act 1939, the reference in s. 26(b) of that Act to concealed fraud was a reference to the equitable understanding of concealed fraud which, by that stage, had already become established in the English courts, irrespective of whether the cause of action at issue was at common law or equitable in origin. This historical understanding must, accordingly, inform the interpretation of the corresponding (and substantially identical) provisions of s. 71 of the 1957 Act.
36. The leading authority on the meaning of fraudulent concealment is Kitchen v. Royal Air Forces Association [1958] 1 W.L.R. 563, 572-573 where Lord Evershed, M.R. stated:
“It is now clear . . . that the word “fraud” in s. 26(b) of the Limitation Act, 1939, is by no means limited to common law fraud or deceit. Equally, it is clear, having regard to the decision in Beaman v. A.R.T.S. Ltd. [1949] 1 All E.R. 465, that no degree of moral turpitude is necessary to establish fraud within the section. What is covered by equitable fraud is a matter which Lord Hardwicke did not attempt to define two hundred years ago, and I certainly shall not attempt to do so now, but it is, I think, clear that the phrase covers conduct which, having regard to some special relationship between the two parties concerned, is an unconscionable thing for the one to do towards the other.”
37. In King v. Victor Parsons & Co. [1973] 1 W.L.R. 29, 33-34 Lord Denning M.R. observed that:
“The word ‘fraud’ here is not used in the common law sense. It is used in the equitable sense to denote conduct by the defendant or his agent such that it would be ‘against conscience’ for him to avail himself of the lapse of time. The cases show that, if a man knowingly commits a wrong (such as digging underground another man’s coal); or a breach of contract (such as putting in bad foundations to a house), in such circumstances that it is unlikely to be found out for many a long day, he cannot rely on the Statute of Limitations as a bar to the claim…. In order to show that he ‘concealed’ the right of action ‘by fraud’, it is not necessary to show that he took active steps to conceal his wrongdoing or breach of contract. It is sufficient that he knowingly committed it and did not tell the owner anything about it. He did the wrong or committed the breach secretly. By saying nothing he keeps it secret. He conceals the right of action. He conceals it by ‘fraud’ as those words have been interpreted in the cases. To this word ‘knowingly’ there must be added recklessly’: see Beaman v ARTS Ltd [1949] 1 KB 550, 565-566. Like the man who turns a blind eye. He is aware that what he is doing may well be a wrong, or a breach of contract, but he takes the risk of it being so. He refrains from further inquiry least it should prove to be correct: and says nothing about it. The court will not allow him to get away with conduct of that kind. It may be that he has no dishonest motive: but that does not matter. He has kept the plaintiff out of the knowledge of his right of action: and that is enough: see Kitchen v Royal Air Force Association [1958] 1 W.L.R. 563. If the defendant was, however, quite unaware that he was committing a wrong or a breach of contract, it would be different. So if by an honest blunder he unwittingly commits a wrong (by digging another man’s coal), or a breach of contract (by putting in an insufficient foundation) then he could avail himself of the Statute of Limitations” (emphasis added).”
38. The judgment of Lord Evershed M.R. in Kitchen demonstrates that the concealment of facts which, if disclosed, would have brought to light a cause of action may, also amount to a concealment by fraud. That case concerned a claim by a client against a solicitor and the English Court of Appeal concluded that the solicitor concealed facts from the plaintiff which, if disclosed, would have brought to light her true rights against the appellant’s solicitors. The Court held that this amounted to concealment by fraud within the meaning of the English Limitations Act 1939.
39. Counsel for the plaintiff referred us to the more recent formulation by Stratton L.J. in the Alberta Court of Appeal, Canada in Photinopoulos v. Photinopoulos 54 D.L.R. (4th) 372, where, having referred to the earlier English authorities, the judge stated:
“Those cases show that ‘fraud’ is not used in the common law sense. It is used in the equitable sense to denote conduct by the defendant or its agent such that it would be ‘against conscience’ for him to avail himself of the lapse of time. The section applies whenever the conduct of the defendant or his agent has been such as to hide from the plaintiff the existence of his right of action, in such circumstances as it would be inequitable to allow the defendant to rely on the lapse of time as a bar to the claim.”
40. These authorities (with the exception of Photinopoulos) were referred to and applied by Carroll J. in this jurisdiction in Morgan v. Park Developments [1983] I.L.R.M. 156.
41. In the light of the authorities, it is clear, therefore, that for s. 71(1)(b) of the 1957 Act to apply, there must be concealment either of wrongful conduct which gives rise to the cause of action or a failure by the defendant or his agent to disclose facts known only to the defendant which, if disclosed, would found a cause of action such that it would be inequitable to permit the defendant to rely upon the Stature of Limitations.
42. I agree with Kearns P. that the evidence before the High Court does not establish that there was concealment by or on behalf of the first named defendant of the wrongful conduct alleged against it in relation to the cause of action pleaded. There is equally no evidence that the first named defendant failed to disclose relevant facts known only to it which, if disclosed, would have founded the cause of action pleaded. Nothing in the letter of the 26th September, 1969 (which, exceptionally, I have decided to admit as additional evidence on this appeal) changes this view. The facts giving rise to the plaintiff’s cause of action pleaded against the first named defendant were known to her at the time they occurred.
43. Counsel for the plaintiff submitted that the first defendant was in a relationship with the plaintiff such that it gave rise to fiduciary obligations (albeit not expressly pleaded) to inform her of her statutory and other legal rights. He further submitted that the first defendant’s failure to inform her of the fact that the procedures allegedly followed by them (and others) in relation to the adoption of her son were in breach of her legal rights constitutes concealment by fraud for the purposes of s. 71 of the Act of 1957. Counsel, nevertheless, cited no authority in support of the proposition that a failure by a defendant positively to inform a plaintiff that the former’s conduct was in breach of the latter’s legal rights amounts to a concealment of a right of action by fraud within the meaning of s. 71(1)(b) of the 1957 Act.
44. Whilst the failure to inform the plaintiff of her rights under the Adoptions Acts may well have amounted to a breach of duty and, therefore, to give rise to a cause of action, it is not concealment by fraud of the plaintiff’s cause of action against the first defendant for breach of the alleged duty in the sense I have just described. There was no concealment either of actions taken by or on behalf of the first defendant or of facts known only to it which if disclosed would demonstrate the existence of a cause of action.
45. In many ways the plaintiff’s real complaint was that at the time she did not realise that what was being done at the time was illegal and that no one in authority took any steps to ensure that she was made aware of her legal entitlements. This, however, does not amount to concealed fraud in the sense in which that term is used in s. 71(1)(b) of the 1957 Act, as a failure to disclose the illegality or potential illegality of actions openly taken cannot be considered in itself to amount to the concealment of a right of action: see to this effect the comments of Lord Evershed M.R. in Kitchen [1957] 1 W.L.R. 563, 570.
46. It would, of course, be different were the conduct in question to be furtive or surreptitious, such as was found to be the case in Bulli Coal Mining Co. v. Osborne [1899] AC 351, a case where the defendant had taken coal over a long period by means of “a wilful and secret underground trespass.” Different considerations also arise where the defendant commits an intentional tort (such as conversion) and fails to disclose these facts to the plaintiff. An example here is supplied by Beaman v. ARTS Ltd. [1949] 1 K.B. 650, a case where, at the onset of the Second World War, the plaintiff had deposited goods for safekeeping with the defendants. In the course of the war the defendants disposed of the goods and converted to them to their own use. They nevertheless had failed to inform the plaintiff that they had wrongly disposed of the goods even though they knew that she was abroad for the duration of the war.
47. It is clear, therefore, the fraud must either consist of conduct which is concealed from the plaintiff or of the failure to disclose the existence of facts known only to the defendant which, if disclosed, would found a cause of action. In the present case, the plaintiff knew that she was being asked to give an informal consent to the adoption and that the child was less than six months old at the time it was given up for adoption in July 1969. The plaintiff was thus aware of all the critical facts necessary to found the cause of action. It is equally true that the first named defendant did not disclose that their conduct was or might have been illegal, but, for the reasons just stated, this in itself does not amount to fraudulent concealment within the meaning of s. 71(1) of the 1957 Act.
Conclusions
48. It is accordingly clear that the plaintiff’s claim is statute-barred as against the first defendant. Since in this respect this claim is thereby doomed to fail, it follows, therefore, that I would uphold the decision of Kearns P. to dismiss the plaintiff’s claim against the first defendant. In these circumstances it is unnecessary to consider the further part of his judgment relating to delay.
49. No one who has heard the plaintiff’s narrative in this case could be other than deeply moved by the poignant and tragic facts which this appeal discloses. The appeal must nonetheless be dealt with in accordance with law and since the action as against the first defendant is so plainly statute-barred, I must therefore dismiss the appeal.
In the Estate of Flood; Flood v. Flood,
High Court 1999 Macken J
1. The Special Summons served in these proceedings seeks an order that the Court should remove the Defendant from his position as Executor of the estate of the late Christopher Flood, and appoint an alternative in his place because the Plaintiffs are dissatisfied with his administration of the estate.
Christopher Flood, of Borris, in County of Carlow, died on the 28 July 1996. He had made a will on the 11 July 1989, and probate issued on the 27 November 1997. While the will named three executors, two declined to act and probate issued to the Defendant as Executor.
Both the Plaintiffs and the Defendant are brothers and all three are children of the late Christopher Flood. There are several affidavits filed in the matter, all or almost all by children of the late Christopher Flood, and it is obvious that there is a clear dispute and what I might call a regrettable dividing line between several siblings on the one hand and other siblings (or their spouses) on the other hand.
Although there are reliefs listed in the Special Summons, for the moment, what I am asked to decide is whether at this stage, it is proper or appropriate that the Defendant should continue to act as Executor of the estate of the late Christopher Flood in circumstances where it is alleged the Defendant borrowed money from his late father. It is alleged by the Plaintiffs that the repayment of this loan is money now due to the estate, and that the Defendant has refused to acknowledge this. In the circumstances, it is said by the Plaintiffs that this stance of the Defendant is in conflict with his role as executor, because as such executor he is obliged to get in all the assets for the estate, being a trustee thereof for the beneficiaries.
The Plaintiffs submit that, if the Defendant were removed and another person appointed to act as administrator, it is the case that such person would then seek to recover the monies alleged by the Plaintiff to be due to the estate from the Defendant.
Mr Howard submits for the Plaintiff that the authorities on misconduct are sufficient to remove an executor, and cites In re: Loveday (1900) P 155 in support of the same, and the Irish cases of Spencer v Kinsella [1996] 1 ILRM 401 and Arnott v Arnott, 58 ILTR 145. Under this latter decision, it is open to the court to remove a trustee if his position is detrimental to the beneficiaries.
Mr Howard submits that the Plaintiffs position is prejudiced by the Executor’s current position, and the stance he has adopted and he relies on S 10 (3) of the Succession Act 1965.
Essentially, the dispute between the Plaintiffs and the Defendant boils down to this. In early 1989 or thereabouts, it is alleged that the late Christopher Flood transferred money to the Defendant. It amounted to a sum of more than £40,000.00 in total. It is not disputed that a sum of money passed from him to the Defendant, and the exact sum is not significantly in dispute.
What is certainly in dispute is the nature of the transaction between the Defendant and his late father Christopher Flood. It is claimed by the Defendant that the money was given as a gift, not as a loan, and that it is not money recoverable by the estate at all. In the circumstances it is said by the Defendant, no conflict could exist.
Numerous affidavits have been filed all from the several children of the late Christopher Flood, together with one affidavit from a Father Nicholas Moore, on behalf of the Plaintiffs, as to certain matters, which arose in 1994.
Leaving aside altogether the question as to whether the monies were a loan or a gift for the moment, the following factual matters can be gleaned from the affidavits and from the additional information, which I sought as to the purchase of lands referred to by the Defendant:
1. The late Christopher Flood had a bank account with The Bank of Ireland, in, I believe, Borris, Co Carlow.
2. In 1988 Mr Flood was discussing with his then Solicitors, John J Duggan & Co, of Carlow, his entitlement, if any, to secure a State pension.
3. Mr Flood had apparently spoken to his then bank manager as to the possible options, which he might consider if he wished to pursue his claim to a pension. Among these was one by which his money would remain mine” and would be released to the siblings (his children) on death.
4. In early January 1989, according to a copy of a withdrawal docket, he withdrew the sum of £37,000.
5. That £37,000 was then immediately lodged into a joint account in the names of Flood/Parsons bearing account number ‘– 33921″. This docket seems to me to be one, which was written, by a bank official because of the manner in which it was completed.
6. A duplicate statement of that account, being number 82033921, and in the name of “Mary Parsons” but headed (in hand) ‘-A/C Jack Flood & Mary Parsons” discloses that that account existed since 1984, and by’ the end of 1988 there was no money in the account. This statement shows the following additional information:
(a) an additional sum was transferred from Mr Christopher Flood’s account in the amount of £5432.42 making a total transfer by the end of January 1989 (Including interest) of £42687.36.
(b) from that account a sum of 40,000 was debited, and withdrawn or transferred in late 1989.
(c) the remaining sum continued to have interest accruing on it, and no withdrawals took place, at least until the end of 1994, the last date appearing on the statement.
7. Of the £40.000, £10.000 was lodged into an account in the name of “Jack Flood”, at the end of 1989, at the Bank of Ireland, where it remained, untouched but accruing interest until 1991, when the entire sum together with interest, was withdrawn. It amounted to £11.271.80.
8. The balance of 30,000 was sent to The Investment Bank of Ireland, by the Defendant, for investment into an IBI Lifetime Portfolio. Receipt for this was acknowledged by letter of the 25 October 1989 from the Bank.
9. The affidavits do not disclose when, if ever, this money was redeemed or realised, though this appears to have happened at some time prior to the death of the late Christopher Flood.
10. The Defendant purchased certain lands in Carlow. The date of the contract for the purchase of this was the 29 October 1991, and the date of closing was March 1993. The price was 177.000.
11. The Inland Revenue Affidavit filed on behalf of the Defendant avers to the fact that in 1989 the late Christopher Flood gave, by way of gift, the sum of £18,500 to each of the Defendant and Mary Parsons.
I now return to the affidavits. There is a conflict of fact on the affidavits. For the Plaintiffs, affidavits have been filed by Sylvester Flood, Brian Flood, Elizabeth Sheehan and Fr Nicholas Moore, and on behalf of the Defendants, by Jack Flood, Michael Flood, Mary Parsons, James Flood and Thomas Flood.
On behalf of the Plaintiff it is said that the true interpretation of the events which have occurred is that the monies were placed in an account where the late Christopher Flood had access to them, although in the names of two children, that there was no independent use of the funds for all the time they were in the joint names of the Defendant and his sister Mary Parsons, that there was never a gift to the Defendant, but that when the Defendant wanted to purchase lands in 1991 or in 1993, he sought and obtained a loan of the monies in question, and that this is due to the estate. It is also said by the Plaintiffs that the Defendant acknowledged, on more than one occasion, that the monies were a loan, both to his siblings — or some of them — and also to Father Nicholas Moore, who has sworn an affidavit to that effect.
The acknowledgement to Father Moore came in 1994, prior to the death of the late Christopher Flood in 1996 and not long after the closing of the sale of lands to the Defendant (in respect of which the Defendant admitted he used the monies). Further in relation to the purchase of the lands, Brian Flood has sworn on affidavit that he was approached by the Defendant seeking a loan for the purchase, agreed to give the money, but the matter did not come up again. The Defendant in his affidavit acknowledges that this occurred. Mr Brian Flood says that this approach was made in October 1991.
On behalf of the Defendant it is said that the monies were left to him and Mary Parsons. On affidavit the Defendant states that his father was “making a gift to us jointly of the said sum.” This appears to be at odds with the averment in the Inland Revenue Affidavit that a sum of £18,500 was given to each of Mary Parsons and Jack Flood. The Defendant and Mary Parsons say that Christopher Flood never controlled the monies once they were transferred in 1989. However, it does seem to be unusual that, if the monies were truly owned by the Defendant and Mary Parsons, it would be necessary at all for the Defendant to have asked another brother for monies which he admits he did, in the precise amount which was involved, namely, £30,000. If he owned one half of the full monies of nearly £43,000 it seems odd that that was not the first port of call for borrowing which the Defendant needed. I make no finding on this of course, but believe it is a matter for consideration at the end of the day.
The Defendant contends that in order to set aside the gift claim made by him it would be necessary to establish that the monies were given in trust, and that such a trust will not be implied but must be found in express words. It is argued on this point that a presumption lies in favour of the parties holding the monies in their own names, which would defeat a claim that a resulting trust had been created. The defendant therefore says that if it was a gift the limitation period has caused any cause of action to be extinguished.
The Defendant further says that he does not recall saying to any of the persons who claimed it to be so, that he had received the monies as a loan, although the Defendant is careful not to deny that he said so. The Defendant also swears he does not recall admitting to any of those parties, including Father Moore, that a sum of 7000 had been repaid.
What is curious about this sum of £7000 is that it is the exact sum, which the Defendant acknowledges he returned, not to his late father Christopher Flood, but to his sister Mary Parsons. I do not find it coincidental that this figure is reflected in both sets of affidavits. What is clearly not admitted by the Defendant on affidavit is that he said anything about the sum of £7000, even by way of repayment to Mary Parsons, although there would have been no difficulty in doing so, were the Defendant’s contention, and that of Mary Parsons correct, namely that monies were given as gift. Indeed, in the context of such a gift, the explanation that a sum had been borrowed from Mary Parsons, and a sum repaid to her, would not have gone amiss, and would be consistent with the Defendant’s contention.
The Defendant does, however, argue that there was no admission of the type, which is required to extend the limitation period pursuant to the provisions of the Statute of Limitations, because of course any such admission, must be made in writing and must be made to the person to whom the debt is owed. It is certain that there is no evidence that any such admission was made in writing, and also there is no evidence whatsoever that any such admissions was ever made to the late Christopher Flood, deceased. In these circumstances, it is said, that even if it was originally a loan, and therefore a debt, which would have been repayable, the time limit has expired and no cause of action exists in respect of those monies by virtue of any supposed extension of the limitation period arising from what the Plaintiff calls “an admission”.
I am unable to say, on the affidavit evidence that the sum was or was not given by the late Christopher Flood to the Defendant and his sister by means of a gift or by means of a loan. However, I am of the view that there is a sufficient question mark over the transfer of the funds to justify considering the appointment of an alternative person as administrator of the estate of the late Christopher Flood. It is not appropriate to do so, unless the circumstances do, in fact, warrant it, and the court should be slow to accede to such an application. Mr O’Doul on behalf of the Defendant argued that the Court’s jurisdiction to revoke a grant should only be exercised in circumstances of serious misconduct and that no such misconduct exits here. He also argues that it should not be invoked if the Plaintiffs evidence on the matter is not strong.
Before therefore acceding to the application, I now turn to further argument made on behalf of the Defendant that the court should not accede to the request, even if there were grounds to do so, because any claim, which did exist, has been extinguished by virtue of the Statute of Limitations.
This involves a consideration of the likely dates when the monies were advanced, or utilised, both before and after the death of the late Christopher Flood, and the effect, if any, of the claim that the Defendant acknowledged that it was indeed a loan and not a gift.
The key dates appear as follows:-
(a) In late 1989 a sum of money was transferred from the account of Christopher Flood into an account, at that time in the name of Mary Parsons, subsequently designated as being a joint account in the names of the Defendant and Mary Parsons;
(b) The monies were utilised in part to secure investment funds with growth value, and most of the balance remained in a separate account in the joint names, leaving a small sum in the original Mary Parsons account;
Brew v Brew
Queen’s Bench Division.
3 November 1898
[1899] 33 I.L.T.R 22
Johnson, Murphy, Boyd, Kenny JJ.
Application that the plaintiff, Bridget Brew, be at liberty to issue execution against the defendant, Francis Brew, jun., on foot of a judgment dated 1st May, 1884 (more than 12 years before the present proceeding), for £248 9s. 11d., and interest thereon from 16th Aug., 1886, making in all £267 9s. 11d., being the balance now due on foot of said judgment. On 1st May, 1884, the plaintiff obtained a judgment against Francis Brew, sen., and Francis Brew, jun., for £305 16s. 4d. On 16th Aug, 1886, a seizure was made by the sheriff of the County Clare of certain cattle of Francis Brew, sen., under a writ of fi. fa. issued on said judgment; and the cattle having been sold, a sum of £126 5s. 6d. was paid on foot of said judgment on 18th Aug., 1886 (less than 12 years before the present proceeding). On 17th Sept., 1886, said judgment was registered as a mortgage against certain lands to which Francis Brew, sen., was then entitled. Francis Brew, sen., died on 13th Nov., 1892, and on his death Francis Brew, jun., became entitled to the lands, and on 18th March said judgment was registered as a mortgage against the interest of Francis Brew, jun., who was now in possession of the lands and had cattle thereon.
W. F. Kenny, in support of the application.— The payment by the sheriff in 1886 is a part payment by one of the defendants, and, being within 12 years, takes the case out of the Statute of Limitations:
Evans v. O’Donnell, 19 Ir. L. T. R. 53;
Cronin v. Dennehy, 3 Ir. L. T. & S. J. 157;
Ir. R. 3 C. L. 289;
Evert v. Robinson, 28 L. J. N. S. 24;
In re Kingston’s Estate, 3 Ir. L. T. & S. J. 514;
Ir. R. 3 Eq. 485;
Corbett’s Estate, 7 Ir. L. T. R. 68;
Morgan v. Rowlands, L. R. 7 Q. B. 493;
Bailie v. Irwin, 1897, 2 Ir. R. 614;
Allison v. Frisby, 43 Ch. D. 106;
Chinnery v. Evans, 11 H. of L. Cas. 115;
Leahy v. DeMoleyns, 1896, 1 Ir. R. 206;
Wall v. Walsh, Ir. R. 4 C. L. 103;
Condon’s Estate, 29 L. R. Ir. 199;
Irish Land Commission v. Judkins, 24 L. R. Ir. 40;
Irish Land Commission v. White, 30 Ir. L. T. R. 97;
1896, 2 Ir. R. 410;
3 & 4 Will. IV., c. 27, s. 40;
Com. Law Proced. Act, 1853, ss. 20, 23, 24;
37 & 38 Vict., c. 57, s. 8.
Cullinan, contra. —
Green v. Humphries, 26 Ch. D. 474;
Mitchell’s Case, L. R. 6 Ch. App. 822;
Tanner v. Smart, 6 B. & C. 603;
Morgan v. Rowlands, L. R. 7 Q. B. 493.
Cur. ad. vult.
Johnson, J.
It is conceded by counsel for Francis Brew that if the payment by the sheriff keeps the payment alive against Francis Brew, sen., it has the same virtue and effect against the defendant, Francis Brew, jun. The question requiring to be judicially decided was propounded by Lord Westbury in the argument of Chinnery v. *22 Evans; he says: “Suppose an action and a judgment and execution thereon, would payment by the sheriff be a payment within the statute?”— i.e., the statute of 1833, s. 40, now altered by the statute of 1874, ss. 8, 9, substituting 12 for 20 years. The solution of that question depends on the true construction of these statutory provisions. The Act of 1874 provides by s. 8 that no proceedings shall be brought to recover any sum of money secured by any judgment but within 12 years next after a present right to receive the same shall have accrued to some person capable of giving a discharge for or release of the same, “unless,” &c., following the words of the Act of 1833, s. 40. The statutes of 1833, s. 40, and 1874, s. 8, deal with two distinct matters in the saving clause—viz., “payment” or “acknowledgment.” In the argument before us the defendant’s counsel relied on Morgan v. Rowlands to establish the proposition that the payment in 1886 by Francis Brew, sen., of part of the judgment debt under compulsion of the execution was not such an acknowledgment as that a promise to pay the residue of the judgment debt could be inferred from it, but that was an action on a simple contract, a promissory note, and the statutes then under consideration were 10 Chas. I., Sess. 2, c. 6, and 9 Geo. IV., c. 14, while we are considering the construction of the Acts of 1833, s. 40, and 1874, s. 8, and the question is whether or not the words in the saving clause of those sections, “by the person by whom the same shall be payable or his agent,” apply both to the making of the payment and also to the acknowledgment, or are limited to the acknowledgment, and, further, what payment will satisfy the statutory requirement. In Chinnery v. Evans Lord Westbury expresses his opinion that these words apply to the payment as well as to the acknowledgment, but Lord Cranworth, in the same case, says. [Reads from judgment at p. 138.] This was the opinion of the Master of the Rolls in Ireland in Hornan v. Andrews, 1 Ir. Ch. R., at p. 112, and of Jessell, M.R., and Brett, L.J., in Harlock v. Ashberry, 19 C. D. 539. [Having referred in extenso to In re Frisby, 43 C. D. 106, and Lewin v. Wilson, 11 App. Cas. 639, his Lordship continued.] Taking then the construction of “payment” in the Act of 1874, s. 8, to be that expressed by these eminent judges differing from Lord Westbury, the practical question to be decided on the present motion is—Was the payment of £126 to the plaintiff under the execution a payment which prevents the bar of the statute? The answer is in principle to be found in the decision in Chinnery v. Evans, which covers the present case. Lord Cranworth, on the construction of s. 40 of the Act of 1833, that it says nothing as to the person by whom it is to be made, after pointing out that payment by a stranger would not be payment at all, but would be gifts made by the stranger, says, “But the payments in this case were not payments by a stranger, for though a Receiver, appointed under the Act 11 & 12 Geo. III., c. 10, is an officer of the Court, yet he is certainly no stranger to the mortgagor, but a person paying for him, and on his account, what he is bound to pay.” It is not contended that the office of a sheriff executing a writ of the Common Law Courts is precisely analogous to the duty of a Receiver appointed under the Mortgage Act. But in executing a writ issued on a judgment the sheriff is the officer of the Court. Resistance to the sheriff in the execution may be a contempt of the Court in which the judgment is recovered on which the writ issued. The fi. fa. lodged by the plaintiff with the sheriff for execution and levy commands the sheriff of the chattels of the defendant in his Bailiwick to cause to be paid the sum in the writ, and to have the money before the Court immediately after the execution of the writ, to be paid to the plaintiff in pursuance of the judgment. Whether it is by the agency of a Receiver or sheriff the payment is made to the creditor on foot of the debt which the debtor is bound in law to pay, and out of the debtor’s rents or chattels for the debtor, and on his account, and to the extent of such payment the debtor is discharged from so much of the judgment debt. Such payments by a sheriff are not payments by a stranger to the judgment debtor, but are payments out of the debtor’s chattels “by a person paying for him, and on his account, what he is bound to pay.” For these reasons I am of opinion this motion ought to be granted.
Kenny, J.
The only question for our consideration now is whether what may be regarded as a compulsory payment, under a levy by the sheriff, pursuant to the judgment, is a payment within the saving words of the statute, so as to prevent the latter from being a bar. The statute applicable to the case is the Real Property Limitation Act, 1874 (37 & 38 Vict., c. 57), s. 8, which in terms is identical with the provisions of 3 & 4 Will. IV., c. 27, s. 40, with the exception that a twelve years’ period of limitation is substituted for the twenty years provided by the latter Act. Both sections, while referring to “payment” and “acknowledgment in writing” in the same sentence, use the word payment without any qualification as to the person by whom such “payment” is to be made. In marked contrast to this general provision for “payment” is the saving for “acknowledgment,” which must be “given in writing, signed by the person by whom the same shall be payable, or his agent.” This difference is the more remarkable when it is remembered that though the Statute of Limitations (10 Chas. I., sess. 2, c. 6, Ir.) contained no saving clause, the Courts held that a “part payment” would avoid the effect of the statute, provided there was nothing in the circumstances under which the payment took place that would rebut the implication of a promise to pay the *23 remainder of the debt. The part payment was regarded as an acknowledgment of the existence of the debt from which the law implied a promise to pay. [Having referred to Cronin v. Dennehy, Ir. R. 3 C. L. 289; and Harlock v. Ashberry, his Lordship continued.] It has been held by the Court of Appeal, in Harlock v. Ashberry, that the principle which underlay all the Statutes of Limitations is that payment must be an admission of right, and that it must be made by a person bound or, at least, entitled to pay, and Lord Hobhouse, in Lewin v. Wilson, says that in dealing with “payments” in a colonial statute equivalent to s. 8 of the Act of 1874, “a wider range of exposition is allowable, and has been taken,” than was allowable in construing an “acknowledgment.” In accordance with this wider interpretation of “part payment,” it has been settled by numerous cases that a part payment by a Receiver appointed at the instance of a mortgagee, or by the Landed Estates Court, is sufficient to take a case out of the Statute, and that payment by one of two conusors of a judgment, or by one of two covenantors in a mortgage, will keep the debt alive against the other (Corbett’s Estate; Bailie v. Irwin). I find that in Chinnery v. Evans and Cronin v. Dennehy the very case is put interrogatively in argument, as to whether receipt of the amount of a sheriff’s levy, as in the present case, would not constitute a “part payment” within the Act, and the suggestion met with no dissent from the Court; while in Corbett’s Estate the late Judge Flanagan expressed the clear opinion that such a “part payment” was within the saving clause of the Act of Will. IV. Morgan v. Rowlands is not an authority for a refusal of the application. I think there has been a “part payment” of principal within s. 8 of the Act of 1874, and that the plaintiff is now entitled to issue execution against the surviving defendant.
Murphy and Boyd, JJ., concurred.
Mary Ellen Campbell v Bernard J Ward and Patrick McArdle
1978 No. 4261P
High Court
28 April 1981
[1981] I.L.R.M. 60
CARROLL J
delivered her judgment on 28 April 1981 saying: … By virtue of the decision of the Supreme Court in the case of O’Brien v Keogh [1972] IR 44, s.49(2)(a)(ii) of the Statute of Limitations 1957 was held to be unconstitutional.
In the case of Moynihan v Greensmith [1977] IR 55 the Supreme Court, in its judgment delivered by the learned Chief Justice, indicated that the decisions in O’Brien v Keogh and in a later case of O’Brien v Manufacturing Engineering Co Ltd [1973] IR 344 seemed to be incompatible with the court’s rulings in Foley v The Irish Land Commission [1952] IR 118 and the Attorney General v Southern Industrial Trust Limited (1957 94 ILTR 161) and it is stated as follows at page 71: ‘In particular the court reserves for a case in which the point has been duly raised and argued the question whether it was correctly decided in O’Brien v Keogh that section 49 sub-section 2(a)(ii) of the Statute of Limitations 1957, is repugnant to the Constitution.’
I do not consider that these words give me liberty to hear any arguments as to whether the case of O’Brien v Keogh was correctly decided. I consider that I am bound by the existing decision of the Supreme Court in that case until such time as the Supreme Court reviews its decision.
Accordingly, following the existing decision in O’Brien v Keogh which holds that section 49 (2)(a)(ii) of the Statute of Limitations 1957 is unconstitutional, I hold that the plaintiff’s claim is not statute barred having been commenced by the issue of proceedings within three years of her ceasing to be under the disability of infancy, in accordance with section 49(1)(a) and section 49(2)(a).
In re Synge, deceased
Scott v Synge
Court of Appeal.
14 July 1891
[1891] 25 I.L.T.R 50
Lord Ashbourne C., Porter M.R., FitzGibbon L.J.
July 14, 1891
Statute of Limitations (3 & 4 Wm. IV., c. 27, s. 40)—Judgment creditor—Acknowledgment—Part payment—Assignment in trust for benefit of creditors to maintain policy of assurance—Receipt of income by trustee—Payment of premiums.
A. and B. were judgment creditors of S. S. in 1852 assigned his life interest in certain rents and funds to a trustee upon trust to maintain therewith a policy of assurance on his life and accumulate the residue, if any, until his death, and after his decease to distribute the fund among A. and B., and others, his creditors. S. died in 1882: *50
Held (reversing the decision of Chatterton, V.C.), that the payment by the trustee from time to time of the premiums on the policy were part payments by the debtor, and prevented the operation of the Statute of Limitations:
Held (affirming the Vice-Chancellor), that an acknowledgment in writing of a debt as due must, in order to satisfy the statute, be more than a mere vague reference to debts in general. Millington v. Thompson (3 Ir. Ch. Rep. 236) distinguished.
Appeal from an order of the Vice-Chancellor disallowing the claims of M. E. Archdall and of Messrs. Hallowes and Hamilton against the general personal estate of E. Synge, deceased.
In Hilary Term, 1849, Wm. Archdall obtained a judgment in the Queen’s Bench against E. Synge for £2,307 13s. 10d. and costs. A policy for £1,000 on E. Synge’s life had been effected in 1822 by Archdall to secure the debt represented by this judgment. In the same term, 1849, Robert Simpson obtained a judgment in the Queen’s Bench against E. Synge for £500 and costs. At the date of the deed of trust next mentioned there was due on foot of this judgment debt a balance of £239 5s. Od. By a deed of trust dated 21st May, 1852, made between E. Synge, W. Digges La Touche, and several of Synge’s creditors (including Archdall and Simpson), whose names and claims were set out in a schedule; reciting that E. Synge was indebted to divers persons, that some of said creditors had issued a writ against his person but had consented to withdraw same provided this deed was executed, and that E. Synge was entitled to a life interest in certain lands and also in certain stocks and funds: E. Synge assigned to W. D. La Touche his interest in the premises, upon trust, inter alia, to apply the income thereof to pay himself 2½ per cent. upon the collection of dividends, and 5 per cent. upon the collection of rents, and the amount of any expenses properly incurred by him, then to pay the premiums on the above-mentioned policy for £1,000, then to effect a policy of assurance on E. Synge’s life for £4,000, or such lesser sum as the trust funds should be sufficient to effect and maintain, and to pay the premiums thereon, and lastly, to invest and accumulate the residue, if any, at compound interest until the death of E. Synge, and upon his death to hold the proceeds of the policy for £4,000 and such accumulations upon trust, to distribute same rateably among the several creditors named in the schedule and their assigns, in proportion to the debts then remaining due to them, so far as the same should be then unsecured by any policy effected by any creditor individually for his own security: Provided that nothing should prejudice or prevent the several creditors from proceeding to recover their demands out of the landed or other property of E. Synge not the subject-matter of this deed: Agreed, that if any creditor should adopt any proceeding against the person of E. Synge with a view to having him arrested, such creditor should forfeit all benefit under this deed: Provided that if there should be any residue after the several named creditors were satisfied then such residue should be applied to discharge what might then be owing to F. H. S., “who is now the last creditor in point of time of said E. Synge”: Provided that the majority of the named creditors might, with E. Synge’s assent, cancel this deed and have another executed: Other covenants not here material.
By his will, dated 10th May, 1879, E. Synge appointed the plaintiff his executor, and after reciting— “Whereas many years since I effected insurances upon my life as collateral security for the payment of certain incumbrances affecting my life estate, most of which have now been paid off, and whereas one of the said insurances was effected with the London Assurance Corporation for £4,000 (according to the best of my recollection), and I expect and believe that a considerable portion of the amount to become payable thereunder upon my decease will remain after the payment of the amount due on foot of the incumbrance to which said policy is applicable;” the testator bequeathed such sum or sums of money as he might be entitled to in respect of said policy, and bequeathed and devised all his other property, subject to certain legacies, to M. B. for her sole use and benefit. The testator died on the 6th January, 1882, and probate was granted to the plaintiff on the 19th October, 1886. M. B. predeceased E. Synge, and with a view to determine the validity of the claims which form the subject-matter of this appeal, an action was instituted in May, 1890, against the defendant, G. C. Synge, one of next-of-kin, praying that the personal estate of the testator might be administered by the Court and the trusts of his will carried into execution. It appeared that the proceeds of the policy for £4,000 were paid after Synge’s death by the London Assurance Corporation to W. D. La Touche, and were lodged by him in the Munster Bank to his credit as trustee of the deed of 1852. La Touche died shortly afterwards, leaving a balance in the bank to his credit on foot of the trust funds. No payment was, however, made to the judgment creditors now claiming. The usual administration decree was granted, and, pursuant to posting, two claims, amongst others, were sent in—one by M. E. Archdall, the other by Messrs. Hallowes & Hamilton.
M. E. Archdall claimed as executor of Wm. Archdall under the first mentioned judgment. Upon Synge’s death he had been paid £1,000 by the Insurance Co., and now sought to prove for the balance of his debt and interest, £264 4s. 4d., against the general personal estate of the testator.
Messrs. Hallowes & Hamilton, as assignees of Robert Simpson, claimed under the other judgment above mentioned for a sum of £349 19s 7d.
On behalf of the plaintiff it was contended, before the Chief Clerk, that these claims were statute-barred. The question was referred to the Vice-Chancellor for his decision, and was argued before his Lordship on the 9th June, 1891. It was there urged on behalf of the claimants that the recitals in Synge’s will contained a sufficient acknowledgment of the debts, that the payments of rent and income to the trustee, and the payments on foot of premiums by the trustee, constituted part payments on account of the debts, and that thus the statute did not run during the testator’s life.
His Lordship held that the words of the will were only a vague recital of certain incumbrances, and did not amount to an acknowledgment of debts remaining unpaid and due within the meaning of the statute. Millington v. Thompson (3 Ir. Ch. R. 236) was clearly distinguishable. Synge ceased by the operation of the trust deed to be the person entitled to the rents and income of the trust property. La Touche did not receive such income as agent for Synge, and it could not be considered that the payments to La Touche by the persons liable to pay the rents, dividends, &c., assigned by the deed, could be considered as payments by Synge to the several creditors. The case was distin *51 guishable from that of payments by a Receiver under the Court, and that of the possession of a mortgagee. No interest was reserved in the deed to the debtor, and the trustee did not, and could not, make any payment to the creditors during Synge’s life. The payments made by La Touche on foot of the policy for £4,000 could not be held to be payments to the several creditors. The deed of 1852 expressly provided that the creditors were not prevented from taking proceedings to recover their debts. They could have taken such proceedings at any time, and could have thus prevented the bar of the statute.
Representation
Sergeant Jellet, Q.C., and Bell for the appellants.
Kenny, Q.C., and J. Stanley for the respondents.
The following cases were cited:—
Chinnery v. Evans’ 11 H. L. Rep. 115;
Cooke v. Smith, 45 Ch. D. 38;
Salter v. Cavanagh, 1 D. & Welsh. 668;
Carrol v. Darcy, 10 Ir. Eq. Rep. 321;
Millington v. Thompson’ 3 Ir. Ch. Rep. 236;
Moodie v. Bannister, 4 Drew. 432;
Cronin v. Dennehy, Ir. R. 3 C. L. 289;
Brocklehurst v. Jessop, 7 Sim. 438;
Cockburn v. Edwards, 18 Ch. D. 449;
Darby and Bosanquet on Limitations, p. 77;
3 & 4 Wm. IV., c. 27, s. 40;
Common Law Procedure Act, 1853, sec. 23.
Lord Ashbourne, C.
On the 15th May, 1890, Mr. Bindon Scott instituted an action to administer the personal estate of the testator, Synge, and to carry the trusts of his will into execution. A decree was made, and when the matter came into the office two claims were putin. One was by Mr. Mervyn Archdall, who claimed on foot of a judgment of Hilary Term, 1849, for £2,307 13s. 10d. and costs, collaterally secured by a policy of insurance. The amount of the policy, £1,000, had been paid to him, and his claim was therefore for the balance of his judgment-debt and interest, £264 4s. 4d. The other claim was one put forward by Messrs. Hallowes and Hamilton, as assignees of one Simpson, on foot of a judgment of the same date for £500 and costs, upon which the sum of £349 19s. 7d. was still due.
It appears from the statement of claim that these judgment creditors, whose claims are now before us, were mentioned in the schedule to a certain deed of trust executed by the testator in the year 1852. [His Lordship then stated the purport of the deed of 21st May, 1852.]
We have present to our minds all the arguments which have been addressed to us, but it is necessary to remember that this deed contains no release whatever, and provides that the creditors may exercise their other rights. Now that being broadly the position of things, the statement of claim mentions no difficulty, and raises no point upon the statute; but, when the documents come into the office, the plaintiff points out that the deed of 1852 is nearly 40 years old, and that the parties are thus barred by the statute. The creditors reply: No; there has been an acknowledgment, and there has been part payment.
I pass away at once from the acknowledgment. That is a point upon which I shall not rest my judgment. I do not say that I do not feel the force of the arguments used here, but I do not think that this would be a satisfactory ground for our decision. Suppose the will had stated.—“I believe all my debts have been paid off save £50,” or “save £100,” that could not be taken as an acknowledgment; and I do not think that the acknowledgment contained in the will is clear enough for a reliable decision.
Upon the other aspect of the argument—namely, whether the statute was running from the year 1852, the construction of the trust deed must be the governing principle of our judgment. We have been asked, on behalf of the personal representative, to say that Synge, upon signing that document, became an absolute stranger to the estate, that he cut away all connection with the trustee, and was out of the business altogether. I cannot look upon the matter in that way. Counsel, when pressed, were forced to admit that Synge had a resulting trust under the deed, and that he could have called upon La Touche for an account; for La Touche was agent or receiver, or whatever else one may choose to call him, as is plain from the fact that he deducted a very substantial percentage from Synge’s resulting interest. It is, therefore, extremely difficult to deny that all his acts and payments would enure to the benefit of the parties to the deed, so as to bar the statute of limitations. We were reminded that a payment must be on foot of principal or interest. We are of opinion, however, that the payment of the premiums de anno in annum, being made for the benefit of the creditors, must be taken as part payment to them, and that as they could have applied the income in reduction of their principal and interest, so they could choose to have it applied, with their consent, to create a fund which would ultimately discharge the whole. The debt was kept alive down to 1882 by the payment of these premiums. This, in itself, would suffice to support my judgment. I think that if it were necessary an argument could also be founded on the fact that on Synge’s death the principal money was paid to the trustee who filled the position I have indicated. For it could be thus argued that, as this money came into his hands and was payable pro rata among the creditors, this fact would be sufficient to take the case out of the statute. In my opinion, the decision that the operation of the statute was not barred in any way was erroneous, and must therefore be reversed.
Porter, M.R.
I am of the same opinion. The decision of the Vice-Chancellor upon the question of acknowledgment is right. Without throwing any doubt at all on Millington v. Thompson (ubi sup.) it in my opinion differs entirely from the case before us. There was there a distinct acknowledgment of the name of the creditor, and of the amount and nature of the debt. The only way in which acknowledgment can be here spelled out of the will is by the words— “After payment of the amount due on foot of the incumbrances to which said policy is applicable.” It is contended that in this way, i.e. referentially, we might arrive at an admission by the testator of these debts. But, in my opinion, there is nothing in the will to incorporate the deed of 1852 at all. The language is too vague to be interpreted as an acknowledgment; and, therefore, upon that ground I should come to the conclusion that the decision should be affirmed; but as to the question of part payment, I am of opinion that the Vice-Chancellor was wrong.
I prefer to deal with the question in Simpson’s case. There was there no actual money payment to the owners of the judgment. It in this way differs from Archdall’s claim, but in the former—the claim of Messrs. Hallowes and Hamilton, although there has been no payment to them, yet in the course of dealing payments took place after the receipt of income—that is, payment of the premiums,—and these payments were by the terms of the deed payments on account of principal and interest in respect of the debts referred to in the schedule.
No doubt, upon no occasion when the rents and *52 dividends were received or paid over was there any allocation—“So much is for interest and so much for principal.” That was not necessary. The entire scope of the deed made La Touche trustee for the creditors, but also for the debtor; and he was the agent of the debtor as well as of the creditors—of the one to receive, of the other to pay.
His duty under the deed was to collect the rents and dividends and to keep up the policy, and, if there was any surplus, to accumulate it at compound interest for the payment of the creditors. In law that was a payment to the creditors themselves, and was on account of the debts mentioned in the schedule to the deed.
To simplify the case,—If there had been only one creditor, and the debtor had a life estate, if the creditor was pressing, the debtor might have arranged, as here, that a trustee should take the rents and profits; and it might have been arranged that he should apply them to keep down the interest on the debt. That would keep the debt alive. Or instead, as might be more convenient, owing to the uncertainty of the duration of the life estate, the debtor’s life might be insured, and then in law the receipt and application of the rents, with the sanction of the debtor—not for payment of the debt, but for the purpose of constituting a fund in the future for the payment of it—would go to a reduction of the liability, and would, in my opinion, keep the debt alive. This is the ground of my judgment, and I do not decide upon the other point. I think that each half-year there was in effect a payment by Synge in pursuance of his obligation, and it certainly was the intention of the deed to keep the debts alive, and to provide a fund for their extinction.
I am glad to be able to arrive at this conclusion, for I do not think that any of the parties could have dreamed for a moment that the statute was running from the execution of the deed in 1852; and although the executor now thinks right to set up the statute, he never thought of doing so at the date of the action, but intended merely to have an investigation into these claims. If after more than 30 years the statute should now be relied upon, it would not be consistent with common honesty, and our decision might open the door to fraud.
FitzGibbon, L.J.
The satisfaction expressed by the Master of the Rolls would be no doubt shared, if he were here to share it, by Mr. Synge of Rathmore, if we may judge by his will, since he there states that he expects and believes that most of the debts covered by the policy had been paid off.
It would be very hard to say that there was any sufficient acknowledgment expressed in the will of a continuing liability in respect of these debts, upon which one could base an indebitatus assumpsit; and it would be very hard to say that the acknowledgment was sufficiently specific. But the will only emphasises the fact that the testator thought that he had no claim whatever upon the £4,000 until after the payment of the incumbrances to which the policy was applicable. That is, he considered the policy as a fund set apart for the payment of the debts included in the deed of 1852. This being so, what is the nature of that deed? Our difference from the Vice-Chancellor is as to the scope and meaning of the deed. It was not a complete assignment. The shape of it is the very contrary. The creditors do not covenant to abstain from any proceedings, but there is a provision that if any of them do take certain proceedings, such creditor is to forfeit the benefit of the deed. Thus, in consideration of the debtor assigning his life interests in trust, forbearance was given to him during his lifetime. There is not a word in the deed to show that, if the fund proved insufficient, the debtor was in any way to be released or discharged. The creditors promised to wait. They were to get from the policy when it was realised as much as was due to them, but if there was a deficit they were not bound not to look elsewhere. If there was a surplus income, it was by a kind of corollary directed to be applied by the trustee to accumulate a fund which was to pay the creditors as much as it could pay after Synge’s death.
There was laches and hanging back after the death, but it did not amount to twelve years, and during the testator’s lifetime there was no lying by on the part of the creditors. That is the point as between us and the Vice-Chancellor. There is no difference in the two cases. Archdall had a policy which was taken out in his own name, but it was maintained out of the same fund, and under the provisions of the same deed.
These parties are, therefore, entitled to have their claims allowed. We must, however, be cautious as to the form of our order. The first claim is for £349 19s. 7d. “out of the personal estate now being administered.” In the Statement of Claim Mr. Bindon Scott says he only received about £750, and no part of the policy. Now, in the inquiry as to the outstanding personal estate the policy should come into the account. Mr. La Touche had it in his hands at the date of his death, and anything which was done subsequently was not by him or his executor, but by the bank. Proper steps must be taken in the administration suit as to the distribution of this fund pro tanto among the creditors mentioned in the deed, and therefore these creditors can duly claim here for the residue of their debt. Now, we may effect our purpose by declaring that these claims be allowed, and that the parties be declared entitled to payment of their demands out of the general estate so far as on taking the accounts in this matter they shall appear not to be discharged out of the proceeds of the fund in the deed of 1852 mentioned.
As to the costs, I do not think that, having regard to the fact that the executor succeeded in the Court below, any priority should be given to either party.
Rohan v Bord na Móna
[1991] ILRM 123 Barron J
On 13 February 1985 the plaintiff received serious head and facial injuries as a result of an explosion which occurred while he was at work in the employment of the defendant. Solicitors were consulted and a preliminary letter on his behalf was sent to the defendant on 2 May 1985. An examination of the plaintiff by a neurologist appointed by the defendant was arranged and took place in the month of November 1986. In the same month the plaintiff signed an authority to his solicitors to hand over the papers to another firm. These solicitors do not appear to have taken up the papers until 1988. On 1 August of that year they wrote a letter to the defendant claiming damages. Proceedings however were not issued until 8 September 1988.
Pleadings have now been completed. In its defence the defendant has pleaded that the plaintiff’s cause of action is barred by lapse of time. In the reply, it is pleaded that time has not run because the plaintiff was at the time of the accident and continuously since then has been a person of unsound mind within the meaning of s. 48(1)(b) of the Statute of Limitations 1957. This issue has now been heard by me on oral evidence. Two main questions arise for determination:
(1) Whether the plaintiff became as a result of his injuries on the date of the accident and has since remained a person of unsound mind, and
(2) If so, whether his cause of action is nevertheless statute barred.
Evidence was given by Dr John O’Dwyer, a consultant neuroradiologist attached to Beaumont Hospital. He interpreted and explained a CAT scan taken of the plaintiff’s brain on 20 June 1988. This showed abnormalities of the brain. The skull had been fractured in the frontal area and the ventricles of the brain were enlarged. This latter indicated a loss of brain cells and was of such a nature as to indicate serious brain damage, which is irreversible. In the acute phase, there would have been swelling and accumulation of blood and fluid causing the cavities to contract. As the damaged tissue disappeared the cavities expanded to include the area where the damage occurred. In his opinion, the injury which he diagnosed was instantaneous and sustained at the time of the accident. It was not caused by disease. I accept Dr O’Dwyer’s evidence in full. His expertise was not questioned nor did the defendant call any witness in this specialty.
Dr John Phillips, a consultant neurosurgeon, gave evidence on behalf of the defendant. The plaintiff had been referred to him by the plaintiff’s surgeon for a second opinion. He saw him on 26 February 1985. He was recovering well from a compound fracture of the skull extending through the lining of the brain. When he examined him he was alert and oriented. He did not examine him as to his degree of mental capacity, but he believes that he would have noted any strange behavioural aspects. He saw him again in 1988. He had made a satisfactory physical recovery, but there was evidence of an anxiety state. There was no indication that he was of unsound mind nor incapable of managing his own affairs, but he did accept that there was a degree of organic brain damage.
Dealing with the CAT scan, Dr Phillips was of the opinion that successive scans show a changing picture. He said that there was initial damage which then became subject to the body’s healing mechanism which might repair cells which had not been totally destroyed and that the full picture could not be ascertained until this process had concluded. It seems to me that if damaged cells can be repaired in this fashion, that the condition of the plaintiff can only have improved over his condition immediately following the accident. Nevertheless, Dr Phillips disagrees with the evidence of Dr O’Dwyer in this regard and insofar as there is a conflict I prefer the evidence of Dr O’Dwyer.
Dr Liam Hannafy, a consultant psychiatrist with the Midland Health Board, gave evidence on behalf of the plaintiff. He examined the plaintiff on 30 January 1989 and saw him also on 15 March 1990. He was suffering from frontal lobe syndrome. Both frontal lobes showed atrophic changes and damage had occurred also in the medial area of the brain where his two hemispheres meet. With such damage, intellectual impairment must be expected.
He found the plaintiff apathetic and disinterested. He was told that he had been a lively, extroverted family man, that he was now lacking in judgment and behaved in a silly vacuous manner. In his opinion, he was not capable of managing his affairs or looking after money. His condition would have been caused instanteously by the accident and would not have been progressive. This condition was static. He was suffering also from a reactive depression which affected him from time to time to a greater or lesser extent. His underlying intellectual capacity was irreversible and static.
On cross-examination he did not accept that the finding that the plaintiff was alert and oriented was inconsistent with his findings. He said that memory loss was static and unlikely to deteriorate. The fact that it appeared to be worse on some occasions than others arose from his reactive depression and not from changing intellectual impairment. He said that findings by nurses or doctors would not deal with psychological matters unless there was something for which they were specifically looking. Unsoundness of mind was not immediately noticeable to laymen and even to some doctors. I accept Dr Hannafy’s evidence in full and where it conflicts with the evidence of Dr Phillips I prefer that of Dr Hannafy.
Evidence for the defendant was also given by Dr Sean Murphy, a consultant neurologist attached to the Mater Hospital. He saw him first in November 1986. He had had a very severe head injury. Loss of hearing in his left ear and loss of smell would not improve. He found him slow in his responses but he thought he understood the questions put to him. He was withdrawn and apathetic but nothing to indicate a major change in personality. He saw him again in July 1988. He was surprised he was so well having regard to his injuries. He had no difficulty in conversing with him and did not notice any significant mental loss. If he had thought his problems were primarily pyschiatric, he would have recommended a referral to a psychiatrist. Many of his symptons such as memory loss, irritability and poor concentration he attributed to the pending legal action.
While I accept his evidence, it was in my view to some extent coloured by his assessment of the plaintiff as someone seeking damages and so he found no cause to query his underlying intellectual capacity. I prefer however the views of Dr Hannafy.
Evidence as to the plaintiff’s intellectual capacity was given by Professor John McKenna, a clinical psychologist. He found the plaintiff to have an IQ which showed him to be mildly mentally handicapped. His view of him psychologically was very similar to that of Dr Hannafy. He did not regard him as being capable of making judgments on his own behalf nor capable of managing his own affairs. He thought that he would be unable to look after himself in unfamiliar surroundings. He could work under supervision but could not use his own initiative. I accept his evidence in full.
Evidence as to the effect of his accident on the plaintiff was given by his brother-in-law, Charles Wynne, who had known him since the plaintiff was twelve and he was seventeen. He was a normal young man, generous, good humoured and caring for others. He was a doer, his skills being mainly in manual work. He had had various jobs until he became employed by the defendant in 1972. In 1979 he had designed his own house and been involved in all aspects of its construction save the electrics and the plumbing. He would have met him between once and twice a week.
He saw him in the intensive care ward the day after his accident. He was beyond recognition and he did not want to look at him. His eye was the worst and he was unconscious. He did not know where he was for several weeks.
There was now a very considerable change in him. Life passes him by. He has no interest in affairs nor in his children. He is like a child. He has to be told what to wear, everything has to be pointed out to him. He can go shopping, but only if he is told what to buy and for how much. He is subdued in himself. He is the same now as when he left hospital.
The plaintiff’s solicitor gave evidence. The plaintiff came to his office on 16 April 1985 with his wife and his uncle. He was slow in answering but there was nothing which led him to believe that he had any mental incapacity. Arrangements were made for the plaintiff to show him the scene of the accident, but he did not turn up. He thinks he saw the plaintiff on his own on another occasion but has no attendance of such meeting.
From this evidence I am satisfied that the plaintiff suffered a very severe head injury and that he now suffers from intellectual impairment which places him in the mildly mentally handicapped class. There was no evidence of any previous head injury. I am satisfied that he is unable to manage his own affairs, and that he is now in law a person of unsound mind. I am also satisfied that this condition arose the instant he sustained his injuries and that such condition has continued to the present. I must now pass to consider the legal effect of this incapacity in the circumstances of this case.
For the purpose of the Statute of Limitations 1957 a person shall be under a disability while he is of unsound mind: s. 48(1)(b). S. 49 provides for an extension of the limitation period in the case of persons under a disability. The material portion of the section so far as these proceedings are concerned is contained in s. 49(1)(a) which is as follows:
If, on the date when any right of action accrued for which a period of limitation is fixed by this Act, the person to whom it accrued was under a disability, the action may, subject to the subsequent provisions of this section, be brought at any time before the expiration of six years from the date when the person ceased to be under a disability or died, whichever event first occurred, notwithstanding that the period of limitation has expired.
The plaintiff’s cause of action accrued when the alleged wrongful act caused him damage. This date was clearly 13 February 1985. On that date, he was on my finding of fact a person of unsound mind and so under a disability. Accordingly, his action may be brought at any time before the expiration of six years — by virtue of the provisions of s. 49(2)(a)(i), three years — from the date when he ceases to be under disability or dies.
In Kirby v Leather [1965] 2 QB 367 the plaintiff there suffered similar injuries to those of the plaintiff in the present case with similar consequences. The court accepted as a fact that the moment when the injuries were sustained he became and thereafter remained of unsound mind. None of the members of the court had any doubt but that on the date of the accident he was of unsound mind.
Mr McGrath SC has submitted that this is an incorrect construction of the statutory provision and that it was intended to apply only to persons who were of unsound mind already at the time of the incident giving rise to the cause of action. This seems an unlikely intention on the part of the Oireachtas. The purpose of the provision is to save a cause of action for someone to whom it has accrued but because of a disability may be unable to pursue it. If so, it is immaterial whether the plaintiff was at the date of the accident or immediately as a result thereof became of unsound mind. He requires the same protection in either case. Whether or not this is what the Oireachtas intended is not in any event to be decided by a presumption. The intention must be determined from the words used. Taking the words ‘on the date’ in their normal meaning, this means at any time on such date. I see no reason for seeking any other construction.
In these circumstances the plaintiff’s proceedings were not brought out of time.