Limitations Overview

Cases

Hewitt -v- Health Service Executive

[2014] IEHC 300 (04 June 2014)

JUDGMENT of Ms. Justice Baker delivered on the 4th day of June, 2014
1. The plaintiff is the husband and personal representative in the estate of Dolores Hewitt, deceased, who died on 23rd June, 2010. By personal injuries summons dated 25th January, 2012, he issued proceedings pursuant to s. 7 of the Civil Liability Act 1961, and proceedings on behalf of himself and the other statutory dependants of the deceased for wrongful death pursuant to s. 48 of the Act of 1961.

2. The defendant has, by motion, sought that this Court would determine as a preliminary issue in these proceedings whether the plaintiff’s action is barred by the Statute of Limitations Act 1957 to 2000 (as amended). Certain facts are uncontroverted and may be briefly summarised.

3. The deceased had a history of breast cancer and was treated in 2001 at Our Lady’s Hospital Navan following which she made a full recovery. For monitoring purposes, she was required to attend at the hospital for review. She attended for radiological review in February 2007, when an ultrasound disclosed the existence of two lesions in her liver. Due to inadvertence on the part of the hospital no action was taken on foot of this report until a chance meeting with her surgeon five months later led to further scans which revealed further lesions in her liver. The deceased was treated for her secondary cancer, but sadly, eventually died from the cancer on 23rd June 2010.

4. It has been accepted by counsel for the plaintiff and the defendant that the deceased had sufficient knowledge of the wrongful act of the defendant for the purpose of s. 6(1) of the Statute of Limitations (Amendment) Act 1991 (“the 1991 Act”) in July 2007, and accordingly the two year statutory limitation period expired in July 2009. No action for personal injuries was commenced by the deceased in her own personal capacity prior to her death. The defendant submits that these actions commenced by the plaintiff as personal representative of the deceased were statute­ barred at the time of the institution of the proceedings.

5. Different legal considerations apply to the question of the running of the Statute of Limitations for each action commenced by the plaintiff, and I will deal with each in turn.
The action under s. 7 of the Civil Liability Act 1961
6. The defendant concedes that the deceased would, for two years after she discovered the failure of the hospital in July 2007, have had a cause of action for personal injuries arising from the delay of five months in acting upon the abnormal ultrasound. No proceedings were instituted and it common case, and cannot be doubted, that had proceedings been instituted, they could have been continued by the personal representative after the death of the deceased pursuant to s. 7 of the Civil Liability Act 1961. The relevant provisions are:

7.-(1) On the death of a person on or after the date of the passing of this Act all causes of action (other than excepted causes of action) vested in him shall survive for the benefit of his estate.
(2) Where, by virtue of subsection (1) of this section, a cause of action survives for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person shall not include exemplary damages, or damages for any pain or suffering or personal injury or for loss or diminution of expectation of life or happiness.

(3) Where-

(a) a cause of action survives by virtue of subsection (1) of this section for the benefit of the estate of a deceased person, and
(b) the death of such person has been caused by the circumstances which gave rise to such cause of action,

the damages recoverable for the benefit of his estate shall be calculated without reference to any loss or gain to his estate consequent on his death, except that a sum in respect of funeral expenses may be included.
(4) The rights conferred by this section for the benefit of the estate of a deceased person are in addition to the rights conferred on the dependants of deceased persons by Part III of the Act of 1936 and Part IV of this Act.

7. It is clear that s. 7 enables the personal representative of a deceased to continue an action already commenced by a deceased prior to his or her death. In that case, the personal representative will apply for an order substituting the personal representative as plaintiff in place of the deceased in the action already commenced. Section 7 also allows for the commencement by the personal representative of an action vested in the deceased at the date of death. Section 7(3) limits the class of damages which may be recovered by the personal representative on behalf of the estate and damages are to be calculated without any loss or gain to the estate consequent on death, except that a sum in respect of funeral expenses may be included. There is also an express exclusion by s. 7(2) such that no damages for pain, suffering, personal injury, loss or diminution of expectation of life or happiness, or exemplary damages may be claimed in such proceedings.
8. What s. 7 does is to preserve causes of action: the personal representative may continue an action already commenced by a deceased, or commence proceedings which the deceased could have commenced. The personal representative brings the action on behalf of the estate of the deceased and any damages will fall into the estate to be distributed under the rules of intestate or testate succession, as the case may be. The personal representative’s claim is not as broad as that which might have been maintained by the deceased during his or her lifetime and the action may not be continued in respect of personal injuries and the other classes excluded by s. 7(2), but is an action on behalf of the estate and preserves the rights of action of a deceased not concluded or litigated prior to death.

9. It is argued by the defendant that the cause of action which was vested in the deceased at the time of her death was already statute-barred at the date of death. The relevant time period for the institution of those proceedings was two years from the accrual of the cause of action or her date of knowledge, if later. This flows from the combined provisions of s. 3 of the Statute of Limitations (Amendment) Act 1991 (as amended by s. 7 of the Civil Liability and Courts Act 2004). The “date of knowledge of the plaintiff’, as defined by s. 2 of the Act of 1991, was July 2007. This was the date when she became aware of the error which had occurred and of the fact that her condition had deteriorated between the time of the first scan in February 2007, and the date she became aware that the results of that scan showed an abnormality. By the time the second set of investigations was carried out in July 2007, the secondary cancerous lesions had become widespread in the liver of the deceased. It has been accepted by counsel for the plaintiff that the deceased did have knowledge of her injuries, that the injuries were significant, and that the spread in the secondary cancerous lesions was attributable to the actions of the hospital in failing to notify her of the lesions found in February 2007, and in the failure to treat her between February and July 2007.

10. The plaintiff did have the requisite knowledge in July 2007, and from the date of that knowledge, time began to run against her for the purposes of commencing an action for damages, and the statutory time limit expired in July 2009. She did not commence proceedings within the time limited by statute and accordingly there existed at the date of her death no action which could be continued by the personal representative, nor was there vested in her any cause of action which could have been commenced by her personal representative on her behalf and on behalf of her estate. The plaintiffs claim under s. 7 of the Act of 1961 must fail, the action being statute­ barred.
Section 48 of the Civil Liability Act 1961
11. The revised s. 48 is as follows:

48. (1) Where the death of a person is caused by the wrongful act of another such as would have entitled the party injured, but for his death, to maintain an action and recover damages in respect thereof, the person who would have been so liable shall be liable to an action for damages for the benefit of the dependants of the deceased.
(2) Only one action for damages may be brought against the same person in respect of the death.

(3) The action may be brought by the personal representative of the deceased or, if at the expiration of six months from the death there is no personal representative or no action has been brought by the personal representative, by all or any of the dependants.

(4) The action, by whomsoever brought, shall be for the benefit of all the dependants.

(5) The plaintiff shall furnish the defendant with particulars of the person or persons for whom and on whose behalf the action is brought and of the nature of the claim in respect of which damages are sought to be recovered.

12. The plaintiff also maintains an action under s. 48 of the Act of 1961, an action generally called a fatal injury action or an action for wrongful death. This is a specific statutory cause of action which may be maintained on behalf of the dependants of a deceased person. Section 48 creates a cause of action, and in this it differs from s. 7 which merely preserves a cause of action commenced or entitled to be commenced by a person before his or her death. It displaced the then common law rule that “the death of a human being could not be complained of as an injury”, explained in Baker v. Bolton [1808] 1 Camp 493, and discussed at para. 42.01 of McMahon & Binchy, Law of Torts, 4th Ed. (Dublin, 2013). Early mitigation of the harshness of this rule was found in Lord Campbell’s Act of 1846. The current statutory right is contained in ss. 47 to 51 of the Act of 1961, as amended by the Civil Liability (Amendment) Act 1996. The class of person on whose behalf such an action may be brought was defined by legislation and extended by the Civil Partnership and Certain Rights and Obligations of Co-Habitants Act 2010. A dependant is now defined under legislation to be a spouse, civil partner, parent, grandparent, step­ parent, child, grandchild, stepchild, brother, sister, half-brother or half-sister of the deceased.
13. The dependants may claim in respect of solatium and for lost financial dependency if they can show the loss of a financial benefit which might reasonably have been expected, including household or other direct financial contributions, mortgage contribution, etc. and what might be called money’s-worth services such as housekeeping and childminding. Jurisprudence has evolved in assessing the quantum of such lost financial dependency. In Quinn v. Cashin [2005] IEHC 214, O’Donovan J. favoured a discount to account for a possibility that a plaintiff might marry in the future and accepted that the dependants could recover damages for services that the deceased would have provided “as a housekeeper, cleaner and general factotum around the house”. The dependants are also entitled to claim vouched funeral-related expenses. Hardiman J. obiter in Grant v. Roche Products (Ireland) Ltd. & Ors. [2008] 4 IR 679, expressed the possibility that the dependant could recover the costs incurred in investigating the cause of a fatal injury, in that case, the costs of expensive research in preparation for an inquest into the deceased’s death, which allegedly resulted from a condition caused by a prescription drug.

14. What are clear are the constituent elements of the statutory claim. The claim is brought by the dependants of a deceased person. It is limited to a measured amount for mental distress, funeral or other similar-type expenses, and damages calculated to compensate the dependants for their loss of financial dependency. In no sense is the quantum of damages true compensation to the deceased, nor does the measure of damages reflect the actual losses incurred by a deceased arising from the wrongful act. It is loss to the dependants that is actionable, not loss to the deceased or his or her estate. This distinction is so, even when one takes into account that by virtue of s. 7(2) of the Act of 1961, the cause of action which survives the death of a deceased does not include any claim for damages for pain or suffering or personal injury. A claim under s. 7 is a claim which may be maintained in respect of loss of earnings or medical expenses already incurred by the deceased at the date of death. But such a claim is not capable of being maintained under s. 48. An action by the dependants is a different cause of action. The loss of pecuniary benefits is the loss of those benefits which the dependants can show were their losses, and not the loss of the deceased.

15. The personal representative has a right to commence such an action. If an action is not commenced by the personal representative within six months of the death of the deceased, the action may be brought by all or any of the dependants. This is because the action is not one on behalf of the estate, but rather the action of the dependants for redress following the death of a loved one, and it is set out in s. 48(4); the action by whomsoever it is brought enures for the benefit of all the dependants, and the damages recoverable do not fall to be distributed in the estate, but as directed by the court.

16. The statutory fatal injuries claim is wholly statutory in origin and is not found in the common law. To borrow the words of Lord Blackburn dealing with the broadly similar s. 1 of the Fatal Accidents Act 1846 in the Vera Cruz 1884 10 App Cas 59 at 70-71 it is “new in its species, new in its quality, new in its principle, in every way new …. ”

17. Extraordinarily, and notwithstanding that legislation providing for a form of fatal injury action by statutory dependants has been in place since the middle of the nineteenth century, there is no decided case in the courts of England and Wales, or in Ireland, as to whether the running of a statutory time limit against a deceased would also bar the fatal injuries claim by the dependants.

18. McMahon and Binchy at para. 42.13 of their text Law of Torts, 4th Ed., suggest that the question could be decided either way:

“A question which has not been decided in the Irish courts as yet is whether the dependants ‘ action is lost if the deceased’s action has been settled or lost through becoming statute barred when he or she dies….Section 48(1) does not address the problem explicitly and the matter would appear to be open under the legislation.”
19. White in Irish Law of Damages for Personal Injuries and Death, Vol. 1 (Dublin, 1989) at para 8.3.08 suggests that
“[t]he fact that the deceased’s personal injuries claim in respect of the fatal injuries is statute-barred prior to his death, is … irrelevant. To hold otherwise could result in the dependants’ action being barred before their cause of action for wrongful death accrues. ”

Express statutory time limits
20. The Act of 1961, as amended, itself provides an express and clear statutory limitation period. Section 6 of the Statute of Limitations (Amendment) Act 1991, provides that an action under s. 48 of the Act of 1961 shall not be brought after the expiration of three years from:
(a) the date of death, or
(b) the date of knowledge of the person for whose benefit the action is brought, whichever is the later.

The three-year period was subsequently reduced to two years by s. 7 of the Civil Liability and Courts Act 2004, but the date from which the cause of action is stated to accrue was not changed. That date is either the date of death or the date of knowledge of the dependant. The legislation makes no reference to the date of accrual of the cause of action as is found in other provisions in the Statute of Limitations, including s. 3 of the Act of 1991. The original s. 48(6) merely stated that the action “shall be commenced within three years after the death”. Again, there is no reference to or mention to the accrual of the cause of action or the date of knowledge of the person injured.
21. The express statutory limitation provisions link the running of time to the date of death or knowledge of the dependants, not of the deceased. It says nothing to link the running of time to any operative limitation that would have run against the deceased. It is argued by counsel for the defendant that this link is made in s. 48(1) itself and I turn now to examine this in detail.
The meaning of the requirements in s. 48(1)
22. It is clear from the express language of s. 48(1), that the action by the dependants under s. 48 of the Act of 1961, may be maintained by the personal representative only had the deceased been entitled to “maintain the action and recover damages in respect thereof’. The plaintiff has a cause of action if it can be shown:

(a) that death was caused by the wrongful act of another, and
(b) that the action is one which the deceased would have been entitled to maintain during his or her lifetime and

(c) The deceased could have recovered damages for the wrongful act.

The expression “wrong” is defined in s. 2(1) of the Act of 1961, as meaning a tort, breach of contract or breach of trust. The action by the dependants must be justiciable; it must be an action in respect of a wrong known to law. The Act does not create a different class of action unknown to exist between persons or corporate bodies during their personal or corporate lives. The death of itself, even if a causative connection can be shown between an act and the death of the deceased, does not give rise to a cause of action in itself, but the section creates a statutory cause of action only if it can be shown that the action causing the death is wrongful in the sense that it is recognised as wrongful in law.
23. The action must be one that the party injured, but for his death, could have “maintained”. That phrase does no more than require that the cause of action must be one which gave rise to liability on the part of the defendant to the deceased i.e. the wrongful act would have been actionable and be a cause of action known to law.

24. Further, the test is stated in the conjunctive and the Act requires that the deceased could have recovered damages in the action had it been brought in his or her lifetime. Thus the statutory requirement is that the cause of action must not only be one justiciable by the deceased, but be in respect of a class of action for which damages are recoverable at law, that the form of redress for the wrong is damages, and that the deceased could have established liability and recovered damages. The conjunction is stated to require not merely that the cause of action be one recognised by law but that the deceased would have on the facts of an individual case recovered an award of damages. It is not sufficient then to show for example that the death was caused by a negligent act, one must show that negligence caused a loss capable of being measured in damages.

25. Counsel for the parties have furnished me with cases which, they submit, are authoritative although it is conceded that there is no Irish decision which is directly on point.
UK cases
26. There are two decisions of the old English Court of Appeal which are of note. In Williams v. Mersey Docks & Harbour Board [1905] 1 K.B. 804, the deceased suffered an injury in December 1902 which would have entitled him to institute proceedings within a period of six months pursuant to the Public Authorities Protection Act 1893. No such action was brought by the deceased, but following his death in December 1904, his widow instituted proceedings under the Fatal Accidents Act 1846 in February 1905 to recover damages arising out of the death of her husband. It was held by the Court of Appeal that the action could not be maintained, as the right of action of the deceased, if he were still alive would have been barred by the provisions of the Act of 1893 which fixed a six-month time limit from the happening of the event. Mathew L.J. stated the following at p. 808:

“The cases appear to establish the general principle that, where an action could not have been brought by the deceased person, it cannot be maintained in. respect of the same accident by his representative. In this case the deceased could not have maintained an action against the defendants at the time of his death, or at any time more than six months after the neglect which was said to have caused the injury to him.”
No express argument had been made in that case that a different cause of action had been given to the personal representative under the Fatal Accidents Act 1846, under which the widow sought to claim damages. There is express provision in Irish law to the contrary, and s. 7(4) of the 1991 Act expressly provides than an action under s. 7 on behalf of the estate is in addition to the rights conferred on the dependants under s. 48.
27. In Nunan v. Southern Railway Company 1924, 1 K.B. 223, Scrutton L.J. stated obiter the following at pp. 227 – 228:

“The Fatal Accidents Act has, I think, been interpreted by authorities which are binding on us, to mean that the dependants have a new cause of action, yet cannot recover on that cause of action unless the deceased had at the time of his death a right to maintain an action and recover damages for the act, neglect or default of which they complain. He may have lost such a right in a number of ways; he may have been guilty of contributory negligence; he may have made a contract by which he excluded himself from the right to claim damages …. Again he may have lost his right from failure to make a claim within the period limited by some statute; or he may have lost it by reason of a release by accord and satisfaction. In all these cases, if he could not have brought an action at the time of his death neither can his dependants.”
28. The House of Lords considered the question in the case of Pickett v. British Rail Engineering Ltd. [1980] AC 136, and referred expressly to Nunan v. Southern Railway Company and Williams v. Mersey Docks and Harbour Board. Lord Salmon pointed out that the issue as to whether a claim under the Fatal Accidents Act could be defeated by reason of the fact that the deceased had, in his or her lifetime, been barred by the Statute of Limitations had not yet been decided but took the view that the assumption that the action would be defeated “which has held the field for upwards of 100 years is probably correct”. Again his comments were obiter and Pickett v. British Rail Engineering Ltd. was a case where the deceased had already commenced the action during his lifetime and the action was reconstituted to name his widow as administrator of his estate. The action was akin to an action under s. 7 of the Act of 1961 and not an action under s. 48.
29. These decisions, while persuasive, are not binding on me and the decisions of the old Court of Appeal were given in a context where there was no statutory time limit expressly provided for the bringing of the fatal injuries claim. Such an express statutory provision exists in Ireland.
Irish Authorities
30. In Mahon v. Burke and the Midwestern Health Board [1991] 2 I.R. 495, the deceased had brought an action for negligence against the defendant but settled this before his death. His widow then brought proceedings under s. 48 of the 1961 Act in which she claimed damages for funeral expenses, mental distress, and loss of consortium and for loss to the dependants of the deceased arising from his death. Lavan J., on appeal from a Circuit Court order which allowed the plaintiffs claim in part, dismissed the appeal of the plaintiff and refused to award damages under the fatal injuries claim. Lavan J. expressly relied on Read v. Great Eastern Railway Company Ltd. [1868] L.R. 3 and Pickett v. British Rail Engineering Ltd.

31. Lavan J. considered the meaning and purpose of s. 7 of the Act of 1961, and described it as having abolished “the general common law rule that causes of action for tort vested in a person before his death do not survive his death.” Lavan J. is correct in this analysis and held that because the deceased had compromised his action for negligence against his employers prior to his death, that no action was vested in him at the date of his death that could be continued under s. 7. Lavan J. then considered the fatal injuries claim and held that such a claim could only arise if it was “vested in the deceased before his death which he had not compromised or sued to judgment.”

32. Lavan J. did not consider the question which has been raised before me in this case, namely, whether, if a deceased had not compromised or sued to judgment the wrongdoer prior to death, his dependants could sue under s. 48 of the Act of 1961. His focus was on the fact that the cause of action had already been compromised which meant that the deceased was no longer entitled to bring the action. Lavan J’s reason for this conclusion is critical. He said that to now allow the dependants to sue in respect of a wrongful act for which compensation had already been received would “subject a defendant to two actions arising from one cause of action.” His reasoning arose from considerations of res judicata and the fundamental principle that a defendant may not be sued twice in respect of one wrongful act.

33. Lavan J.’s decision was made by him as a High Court judge hearing a Circuit appeal and his decision is not binding on me. Further, the point was argued before him on the question, relevant only to a claim under s. 7, whether the right of action was “vested in the deceased before his death”. There is no requirement in s. 48 that the cause of action be vested in the deceased and the word “vested” is not used in that section at all.

34. In Farrell v. Coffey [2009] IEHC 537, Dunne J. heard a motion on behalf of a plaintiff to amend a statement of claim in proceedings commenced by a deceased prior to her death. The action was for medical negligence in respect of an alleged misdiagnosis of a cancerous condition. At the time of the proceedings, it was clear that she had a terminal illness. These proceedings were re-constituted in the name of her widower and personal representative and continued under s. 7 of the Act of 1961 but he brought a motion seeking liberty to amend the statement of claim to include a claim under s. 48 and as Dunne J described it, “transform the original personal injuries claim into a fatal injuries claim on his own behalf and on behalf of the statutory dependants”. Dunne J. refused to allow the amendment. She held that the plaintiff was attempting, by means of the proposed amendment, to “set up an entirely new case, i.e. a fatal injuries case, using the vehicle of the personal injuries case”. Such a change would have been a change “of significance in the nature of the proceedings” and could not be permitted.

35. Dunne J. analysed the nature of a fatal injuries claim and indicated that it was “different to” a personal injuries claim, even if the claim arises out of the same facts. This is so, she said, not merely because the nature of the claim is different, but also because the damages that flow from the facts are different.

36. While the precise dates are not clear from the judgment, it is clear that Mrs. Farrell had died on 24th October, 2005. Expressing the view that the fatal injuries proceedings would have been statute-barred at the issue of the notice of motion, the 31st March, 2008, Dunne J. says that no explanation had been given as to why the plaintiff sought to reconstitute the proceedings instead of issuing new fatal injuries proceedings “within an appropriate time”. She said that had this happened, those proceedings would not have been statute-barred. The plaintiff’s cause of action was one that arose in May 2001, when the incorrect diagnosis was made, and the relevant statutory time limit at that time was three years from that date. The deceased herself was statute barred at the date of her death but Dunne J. took the view, albeit obiter, that the fatal injury claim would not have been statute-barred, and her obiter view was that time began to run at the date of death.
Analysis
37. It seems to me that the cause of action, being one that can only accrue at the date of death of the deceased, cannot be one that becomes statute-barred before the date of death. The action and the cause of action in s. 48 is one created by statute and is an action of a different type from one which may be maintained by a person arising from a wrongful act during his or her life. The claim under s. 48 is a claim that may be maintained by the dependants of Mrs. Hewitt for solatium and damages insofar as they can show she would have provided either direct monetary or indirect service benefits to them during her life. Such an action may be maintained only if the person, making the contribution or whose death has caused the mental anguish, has died.

38. In that regard, the statement in the decision of the Supreme Court of South Dakota in Rowe v. Richards 35 S.D. 201, was referred to by counsel for both parties:

“We must confess our inability to grasp the logic of any course of so-called reasoning through which the conclusion is drawn that the husband simply because he may live to suffer from a physical injury and thus become vested with a cause of action for the violation of his own personal right, has an implied power to release a cause of action-one which has not then accrued; one which may never accrue; and one which from its very nature cannot accrue until his death; and one which, if it ever does accrue, will accrue in favour of his wife and be based solely upon a violation of a right vested solely in the wife.”
39. As a matter of logic, the action under s. 48 of the Act of 1961 is one that comes to exist in the dependants at the death of the deceased, and is not an action which could be barred by any time that might run before that date. The clear words of s. 6 of the Statute of Limitations (Amendment) Act 1991 provide that time runs at the date of death, or knowledge of the dependants, and does not link limitation to the knowledge of the deceased, or to other factors that might have barred her. For the reasons I have outlined I am not persuaded that this clear limitation period is altered or supplemented by the interpretation canvassed by counsel for the defendant as to the meaning of s. 48(1).
40. I prefer the interpretation that the provisions of s. 48(1) define the cause of action, and do not provide a limitation period linked to that which barred the deceased. Furthermore the decisions of the old Court of Appeal and of Lavan J. in Mahon v Burke and the Midwestern Health Board concern the risk of double recovery and no such concern arises in this case.
The Constitutional Dimension
41. The law of tort is, in certain circumstances, an important tool for the vindication of constitutional rights, as explained by Hogan J in D.F. v Garda Commissioner and Ors. [2014] IEHC 213 and my own judgment in P.R. v K.C. [2014] IEHC 126. In the light of the interplay between the Constitution and the law of torts, be they statutory or other torts, it seems to me that the statutory remedy afforded to the dependants of a deceased under Part IV of the Act of 1961, may properly be understood and interpreted in a manner which is consistent with the Constitution by considering that the cause of action arises on the death of the deceased and that action cannot have become statute-barred before the death of the injured person, as an alternative construction could mean that the action could become statute barred by an event or happening over which the dependants had no control.

42. In Grant v. Roche Products (Ireland) Ltd. [2008] IESC 35, a claim was brought by the statutory dependants of a deceased whom, it is alleged, died by his own hand as a consequence of taking a prescription drug, Roaccutane. The defendants had offered to settle the case for its full worth which the plaintiff rejected. The defendants brought a motion to strike out the proceedings as being pointless or an abuse of court process. Hardiman J. pointed out that Part IV of the 1961 Act must be construed in a manner compatible with the Constitution and said that the “plangent words” of Article 40.3 did require the right to life of each individual citizen, including the deceased whose dependants had brought the action, to be vindicated. He said that the obligation to vindicate the right of the deceased could include the right on the part of his dependants to seek that the court would determine the liability of the defendant for that death, and to pronounce such determination. He quoted with approval the dictum of Henchy J. in Hanrahan v. Merck Sharpe & Dohme (Ireland) Ltd. [1988] I.L.R.M .629, and pointed to the role of the law of torts in implementing the State’s duty under Article 40.3 and the Personal Rights Articles of the Constitution.

43. The fatal injuries claim created by the s. 48 of the Act of 1961, and recognised in s. 7(4) as being a separate right of the dependants, must be broadly interpreted in the light of the constitutional imperative so as not to exclude the persons entitled to bring a claim under the section by events which occur before the cause of action could have accrued.
Further constitutional consideration: fairness to a defendant
44. The action under s. 48 may be brought only if a causative connection can be shown between the death and the alleged wrongful act of a defendant. The fact of the causative connection will be tested by the evidence and as a matter of reason the longer the time that passes between the death and the alleged action causing the death the less likely the action is to succeed. Further the courts have evolved a considerable jurisprudence to deal with the question of fairness arising from a perceived delay on the part of a plaintiff in commencing an action, and that jurisprudence, and the jurisdiction of the court to strike out a claim offers ample protection to a defendant in the case where there is a long, unexplained and unjustified time lapse between the events giving rise to the cause of action and the commencement of proceedings
Conclusion
45. In the circumstances, I conclude that the cause of action under s. 48 of the Act of 1961 is a separate cause of action, different from that which might have been maintained by the plaintiff on behalf of the estate of the deceased under s. 7 of the Act of 1961. The action under s. 7 is statute-barred and was statute-barred before the death of the deceased. However, the action under s. 48 arose and came into existence only on the happening of the death of Mrs. Hewitt on 23rd June, 2010. Her statutory dependants had the right to bring a claim against the defendant in respect of her wrongful death up to two years after her death, and that action, having been commenced within the statutory time limit, is not statute-barred.

Moynihan v. Greensmyth

[1977] IR 55
O’Higgins C.J. 55
S.C.

As the Civil Liability Act, 1961, was passed after the Constitution of Ireland came into operation, the decision of the Supreme Court (consisting of O’Higgins C.J., Henchy, Griffin, Kenny and Parke JJ.) was pronounced by one of the judges of that Court in accordance with the provisions12 of Article 34, s. 4, sub-s. 5, of the Constitution.
17th June, 1977

O’Higgins C.J. , delivering the judgment of the Court:
The plaintiff, who is the appellant in this appeal, was under the age of 21 years when she was injured on the 6th August, 1966, while a passenger in a motor car driven by one William Greensmyth, who was himself killed in the occurrence. On the 5th August, 1969, the plaintiff, being still an infant and suing by her next friend, commenced these proceedings against the defendant as the personal representative of the late William Greensmyth. The plaintiff claims damages in respect of her injuries. She married on the 12th February, 1972, and an order amending the title of this action was duly made on the 31st January, 1975.
As the proceedings were not commenced within the period of two years after the death of the late William Greensmyth, as provided for in s. 9, sub-s. 2(b), of the Civil Liability Act, 1961, the defendant claimed that the proceedings were thereby statute barred. In reply, the plaintiff raised a question as to the constitutionality of s. 9, sub-s. 2(b), of the Act of 1961, and an issue on this question was ordered to be tried. This issue,13 came on for trial before Mr. Justice Murnaghan who held that the section was not unconstitutional and that the plaintiff’s action is statute barred. This appeal against his decision has been brought to this Court.
Before considering the constitutional aspects of this appeal, it is well to set out the historical background in relation to actions for tort against the estate of a deceased person and also the statutory provisions which, from time to time, applied in relation to the limitation of such actions.
At common law the maxim which applied in relation to personal actions was actio personalis moritur cum persona. This maxim expressed the rule that a personal representative of a deceased could not sue or be sued in his lifetime for any tort committed against or by the deceased. The only case in which, apart from breach of contract express or implied, a remedy for a wrongful act could be pursued against the estate of a deceased person was where the property, or the proceeds or value of property, belonging to another had been appropriated by the deceased and added
S.C.to his own estate. Certain modifications to this rule were made by statute but, generally speaking, the liability in respect of a tort terminated on the death of the wrongdoer.
The first major change took place in 1933 when compulsory motor insurance was introduced. By s. 171 of the Road Traffic Act, 1933, it was provided that the liability of any person for injury caused by him or his servant’s negligent driving of a mechanically propelled vehicle should not terminate with his death, but that it should continue to be a liability of his estate and be enforceable against his personal representative. By s. 6 of the Fatal Injuries Act, 1956, it was provided that, in the event of a fatal injury, the liability of a wrongdoer should not be limited to himself or be terminated by his death, but should be a liability of his estate. The Road Traffic Act, 1961, repealed the Act of 1933 but s. 117 of the Road Traffic Act, 1961, contains provisions similar to s. 171 of the repealed Act of 1933.
The Civil Liability Act, 1961, which was passed a few weeks after the Road Traffic Act, 1961, repealed both s. 117 of the Road Traffic Act, 1961, and the Fatal Injuries Act, 1956. In their place was enacted the provision14contained in s. 8 of the Civil Liability Act, 1961, with regard to causes of action subsisting against deceased persons, and in Part IV of the same Act with regard to fatal injuries. As to the limitation of actions, the former rules were those laid down in the Common Law Procedure Amendment Act (Ireland), 1853. Section 20 of that Act laid down different periods of limitation for different causes of action. Six years would have been the appropriate period in relation to the plaintiff’s claim. Section 22 of that Act provided that, where at the time of the accrual of such a right of action to any person such person was under 21 years of age, he or she could bring the action within six years after attaining that age. These provisions continued to apply until the Statute of Limitations, 1957, by which they were repealed.
By s. 11, sub-s. 2(b), of the Statute of 1957 a period of three years was provided as the period of limitation in an action, such as the plaintiff’s, where the claim is for damages for personal injuries based on negligence. Section 49 of the Statute of 1957 provides for an extension of time in case of disability, which includes infancy. In a claim such as the plaintiff’s, where the incapacity of infancy exists, this section has the effect that an action may be brought at any time before the expiration of three years after the plaintiff reaches the age of 21 years: see s. 49, sub-s. 2(a)(i), of the Statute of 1957. Therefore, the position was that, had the plaintiff’s accident occurred after the passing of the Statute of 1957 and before the enactment of the Civil Liability Act, 1961, it could not have become statute barred until the expiration of three years after the plaintiff reached the age of 21 years. The accident occurred on the 6th August, 1966, at which date the Civil Liability Act. 1961, was already law. Section 5 of that Act repealed s. 117 of the Road Traffic Act, 1961, and in its place there had been substituted the general provisions of s. 8 of the Civil Liability Act, 1961, by which it was provided that thenceforth all causes of action (other than excepted causes) subsisting against a person should on his death survive against his estate.
On the date of the plaintiff’s accident it was these provisions of s. 8 of the Civil Liability Act, 1961, and not the former provisions of s. 117 of the Road Traffic Act, 1961, which gave the plaintiff a right of action against the estate of the late William Greensmyth. However, the provisions of s. 8 of the Civil Liability Act, 1961, were followed and qualified by the provisions of s. 9 of the same Act. By s. 9 it is provided that no proceedings shall be maintainable in respect of any cause of action which has survived against the estate of a deceased person unless either”(a) proceedings against him in respect of that cause of action were commenced within the relevant period and were pending at the date of his death, or (b) proceedings are commenced in respect of that cause of action within the relevant period or within the period of two years after his death, whichever period first expires.” Sub-paragraph (a) applies only where proceedings had been commenced within the appropriate period laid down in s. 11 of the Statute of 1957 and were pending at the death; obviously this has no relevance in the plaintiff’s case. In her case, sub-paragraph(b) applies and the period of limitation laid down is two years from the death. As the death of the late William Greensmyth occurred in the accident in which the plaintiff was injured, the plaintiff’s proceedings (which were issued on the 5th August, 1969) were 12 months later than the period laid down in s. 9 of the Civil Liability Act, 1961.
In these circumstances it has been contended on behalf of the plaintiff that s. 9 of the Civil Liability Act, 1961, is repugnant to the Constitution because, in its enactment, the State failed to observe the duty (prescribed by Article 40, s. 3, sub-s. 2, of the Constitution) to protect from unjust attack the property rights of the plaintiff. Reliance was placed by counsel on behalf of the plaintiff on two decisions of this Court, namely, O’Brien v.Keogh 15 and O’Brien v. Manufacturing Engineering Co. Ltd. 16
In O’Brien v. Keogh 15 the Court considered the validity of sub-paragraph 2 of sub-s. (2)(a) of s. 49 of the Statute of 1957. That
sub-paragraph provided that the extension of time given in relation to incapacity would not apply unless it was proved that the person under incapacity was not in the custody of a parent when the right of action accrued. The Court held this sub-paragraph to be invalid because it offended against Article 40, s. 3, sub-s. 1, of the Constitution. The basis of this decision was that the common-law right of action of the infant plaintiff in that case was a property right which, the Court held, by reason of the enactment of the sub-paragraph of the Statute of 1957 had not been protected and vindicated by the State as it ought to have been under the provisions of Article 40, s. 3, sub-s. 1, of the Constitution.
In O’Brien v. Manufacturing Engineering Co. Ltd. 17 the Court was asked to consider the validity of s. 6, sub-s. 1, of the Workmen’s Compensation (Amendment) Act, 1953, having regard to the provisions of the Constitution. This section of the former Workmen’s Compensation code provided that an injured workman who had accepted compensation under the Workmen’s Compensation Acts could maintain a common-law action in respect of his injurybut only if he brought it within two years of the accident. As this provision made a distinction between injured workmen who had accepted compensation and other injured plaintiffs who had three years to sue under the Statute of 1957, it was contended that the sub-section offended both s. 1 and s. 3 of Article 40 of the Constitution. The Court held against these contentions, but accepted that a cause of action at common law for damages for personal injuries caused by negligence is a property right which is protected by the provisions of sub-s. 2 of s. 3 of Article 40 of the Constitution: see the portion of the judgment of the Court at p. 367 of the report.
In both O’Brien v. Keogh 18 and O’Brien v. Manufacturing Engineering Co. Ltd. 17 the Court acted on the assumption that a right to litigate a particular claim was a property right and that, as such, its protection was guaranteed by Article 40, s. 3, sub-s. 2, of the Constitution. In neither of those cases does it seem that the Court’s attention was directed to its earlier decisions in Foley v. Irish Land Commission 19 and in Attorney General v.Southern Industrial Trust Ltd. 20 In these cases it was held, in effect, that the property rights guaranteed by Article 40, s. 3, sub-s. 2, of the Constitution are not rights over particular items of property but are the property rights guaranteed by Article 43, namely, the natural right to the private ownership of external goods and the general right to transfer, bequeath and inherit property. To divest a citizen of the ownership of a particular item of
property in certain circumstances was held to be permissible under Article 43, s. 2, of the Constitution. If this opinion were to be adhered to, the reasoning underlying the decisions in the two O’Brien cases would seem to be incompatible with the Court’s ruling in Foley v. Irish Land Commission 21and Attorney General v. Southern Industrial Trust Ltd. 22 Accordingly, in order to give a comprehensive answer to the question posed by the present case, it would be necessary for the Court to give a considered ruling as to whether the right claimed by the plaintiff is a property right and, if so, whether it is one of the property rights guaranteed by Article 40, s. 3, sub-s. 2, of the Constitution. For that purpose it would be necessary to review the Court’s decisions in O’Brien v. Keogh 23; O’Brien v. Manufacturing Engineering Co. Ltd. 24; Attorney General v. Southern Industrial Trust Ltd. 22;and in earlier cases such as Foley v. Irish Land Commission 21 and Buckley and Others (Sinn Féin) v. The Attorney General 25not all of which decisions are reconcilable with each other.
However, counsel for the defendant and counsel for the Attorney General have conceded that the right claimed by the plaintiff is a property right and it has not been contended that such property right does not come within the category of property rights guaranteed by Article 40, s. 3, sub-s. 2, of the Constitution.
Therefore, the Court is constrained to decide this appeal on the basis of those two concessions or assumptions but it wishes to make it clear that, in doing so, it does not necessarily accept that those concessions or assumptions are well founded. The points have not been argued in this case, so the Court is unable to express any opinion on them. 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 23that s. 49, sub-s. 2(a)(ii), of the Statute of Limitations, 1957, is repugnant to the Constitution.
Proceeding, therefore, on the assumption that the right to sue claimed by the plaintiff is a property right which is guaranteed by Article 40, s. 3, sub-s. 2, of the Constitution, the question is whether that right has been subjected to unjust attack or whether there has been an injustice which required vindication by the State. It is noted that the guarantee of protection given by Article 40, s. 3, sub-s. 2, of the Constitution is qualified by the words “as best it may.” This implies circumstances in which the State may have to balance its protection of the right as against other obligations arising from regard for the common good.

As the law stood, prior to the passing of s. 9 of the Civil Liability Act, 1961, an infant could wait up to three years after attaining majority before suing the personal representative of a deceased motorist in respect of his negligent driving. This could mean that the administration of an estate might be greatly delayed or, alternatively, that after many years those entitled on a death might be subjected to a claim for damages of which there had been no prior notice. Obviously in such circumstances severe hardship might be caused and injustice done to innocent people. As the law then stood, this could only happen to those who represented, or shared in, the estate of a person who had been guilty of negligent driving. In relation to others the common-law rule continued to apply and liability terminated at the death of the wrongdoer.
When it was decided to provide generally for the survival of causes of action, a general limitation period of two years was provided in the impugned provisions of s. 9, sub-s. 2(b), of the Civil Liability Act, 1961. It was conceded in argument that this could not be regarded as an unjust attack on those not suffering from incapacity and that, in such circumstances, the period was reasonable and fair. In relation to those (such as the plaintiff) who at the time of the accrual of the cause of action are under 21 years of age, is a two-year period from the death of the wrongdoer so unreasonably short as to constitute an unjust attack on their rights? Bearing in mind the State’s duty to othersin particular those who represent the estate of the deceased, and beneficiariessome reasonable limitation on actions against the estate was obviously required. If the period of infancy were to form part of the period of limitation, as was formerly the case, then the danger of stale claims being brought would be very real and could constitute a serious threat to the rights of beneficiaries of the estate of a deceased. The alternative was to apply a period of limitation which would have general application. It had to be either one or the other; and it does not appear that any compromise was possible.
In these circumstances, in the view of the Court, having regard to the conflicting claims on the State’s protection, this sub-section cannot be regarded as constituting an unjust attack nor can its enactment be a failure to vindicate the alleged property rights of infants. In the view of the Court it has not been shown that the State has not fulfilled its obligations under Article 40, s. 3, sub-s. 2, to protect from unjust attack and, in the case of injustice done, to vindicate the property rights of the plaintiff. Accordingly, this appeal is dismissed.
The specific answer the Court will give to the question set out in the issue is that, on a consideration of even the restricted arguments put forward.
in this case, it has not been shown that s. 9 of the Civil Liability Act, 1961, is repugnant to Article 40, s. 3, sub-s. 2, of the Constitution; and that the plaintiff’s claim is, therefore, not statute barred.

First Southern Bank Ltd v Maher

[1990] 2 IR 477

 

Barron J.
18th June 1990

The plaintiff seeks to enforce a registered charge over certain lands in County Tipperary. In the year 1980, Daniel Maher was registered as full owner of these lands. In or about the month of October he agreed to restructure his then existing secured liabilities to the plaintiff. On foot of this agreement, on the 14th November, 1980, it is the plaintiff’s case that Daniel Maher and his wife, the defendant herein, executed jointly a promissory note for the sum of £12,745.53 repayable by twenty one instalments of £606.93 each payable on the 30th of the month in the months of May to November inclusive in each of the years 1981, 1982 and 1983, the first of such payments to be made on the 30th May, 1981. The promissory note further provided that in the event of default for a period of one month from its due date in payment of any of the instalments, the whole of the sum remaining payable under the promissory note should become immediately due and payable together with interest thereon at the rate of 2% per month. It is also the plaintiff’s case that on the 4th December, 1980, Daniel Maher executed a deed of charge over his lands and that the defendant consented in writing to the creation of the charge since it included the family home.
No monies were ever paid on foot of the promissory note. Daniel Maher died on the 21st July, 1983. On 13th September, 1984, the plaintiff demanded payment by letter addressed to the representatives of Daniel Maher of the sum of £17,580.40 which was then owing on foot of the promissory note. Letters of administration with the will annexed were issued to the defendant on the 14th December, 1987.
In defence to the plaintiff’s claim, the defendant contends inter alia that the claim is statute barred. That issue has been argued as a preliminary issue. The particular statute relied upon is the Civil Liability Act, 1961, ss. 8 and 9. Section 8, sub-s. 1 of the Act is as follows:
“On the death of a person on or after the date of the passing of this Act all causes of action (other than excepted causes of action) subsisting against him shall survive against his estate.”
So far as it is material, s. 9, sub-s. 2 provides as follows:
“No proceedings shall be maintainable in respect of any cause of action whatsoever which has survived against the estate of a deceased person unless . . .
(b) proceedings are commenced in respect of that cause of action within the relevant period or within the period of two years after his death, whichever period first expires,”
The cause of action based upon the promissory note being based upon contract would have survived against the estate of Daniel Maher and the relevant period in relation to it would have been six years. As this latter period would not have expired within two years of his death, the period within which proceedings should have been brought against the estate of Daniel Maher on foot of the promissory note was a period two years from the date of his death.
This is the defendant’s submission. She submits that under the terms of the promissory note the plaintiffs cause of action against the deceased arose following the failure to pay the first instalment within a month of its falling due and that this cause of action was subsisting at the date of his death. As no proceedings were taken within two years of his death it is submitted that the claim is now statute barred. The plaintiff’s answer is that under the terms of the registered charge the plaintiff’s right to enforce the security did not arise until the demand had been made in writing for the payment of the money owing.
At first sight it would appear that if the cause of action on foot of the promissory note is no longer enforceable, accordingly, any right of action accruing to the plaintiff on foot of the registered charge will equally be unenforceable. However it is not the cause of action which is extinguished by the operation of the Statute of Limitations but only the remedy whereby it may be enforced. Accordingly, if the plaintiff has a separate and distinct remedy giving rise to an independent right of action then the fact that the debt is no longer enforceable would not avail the defendant.
The essence of the plaintiff’s case is that its remedy on foot of its security did not become exercisable until after a demand in writing. In my view the draftsman of the security document was not sure what he was seeking to achieve. A document of this nature can be in the form of a master document governing generally the several types of transaction under which the liability being secured can arise. Alternatively, the document can create the security in relation to one particular transaction. In the present case, the draftsman presumably set out to prepare a document which would create a security in relation to monies recoverable under more than one transaction. If so, there was no need to set out as he did in clause 3 the rate of interest payable by the borrower. This would have been governed by the terms of the particular contract. The document makes provision for payment on demand in clause 1. This again was unnecessary because the time at which payment was required to be made would depend upon the particular transaction. In a sense, the draftsman recognized this by the manner in which clause 2 is drafted.
What it is submitted was intended was that for the purpose of enforcing the security no right of action arose until demand was made. I do not accept this submission. What was to be secured was money owing or to become owing. This appears both from the recital and from clause 4 creating the charge. The security was in place notwithstanding that no demand may have been made. There is nothing in the deed to suggest that such security could not be enforced until the demand was made. The document could have provided that notwithstanding the terms of the particular transactions under which monies became recoverable, no proceedings could be brought to raise the security until a demand had been made. Clause 2 explains the need for a demand in writing, either to call in a current account or in other circumstances where a right to call for payment had arisen as for example under a continuing guarantee. Here no such demand was necessary, the money became due and payable once there was default for a period of one month.
In the result it seems to me that the several remedies which the plaintiff may have had to enforce its security accrued once default had been made in payment. Even so, these proceedings are concerned only with the particular relief sought. It is a claim for possession under the provisions of s. 62, sub-s. 7 of the Registration of Title Act, 1964. Under that sub-section the right to seek possession arises “when repayment of the principal money secured by the instrument of charge has become due”. In my view “due” in this context means “due and payable”. This date was May, 1981. This cause of action was not pursued until more than two years after the date of the death of Daniel Maher and in my view is therefore barred by the provisions of s. 9, sub-s. 2 of the Civil Liability Act, 1961.

 

Bank of Ireland v Stafford

[2013] IEHC 546

JUDGMENT of Mr. Justice Brian J. McGovern delivered on the 28th day of November 2013
1. In this action, the plaintiff claims €5,358,026.12, together with interest and costs, on foot of a loan facility advanced by the plaintiff on 21st December, 2005, to the first, second and third named defendants and to Francis Gerard Stafford (Deceased) late of Kerlogue House, Kerlogue, County Wexford (“the Deceased”).

2. On 26th February, 2013, the first and second named defendants (who are husband and wife) settled the plaintiff’s claim against all the defendants by paying the sum of €3,506,776.06 plus interest and costs. The first and second named defendants served a notice of contribution and indemnity dated 25th March, 2013, on the third named defendant in her personal capacity, and on Mr. John O’Connor and Mr. Kieran Byrnes as executors of her late husband, Francis Gerard Stafford (“the Deceased”). It was subsequently agreed that the third named defendant would take over the proceedings on behalf of the executors.

3. The third named defendant denies any liability, either on her own behalf or as a representative of the estate of the Deceased on the following grounds:

(a) The proceedings are time-barred by virtue of s. 8 and s. 9 of the Civil Liability Act 1961;
(b) that the loan was a limited recourse loan, being limited to the security provided in respect of the asset comprising a car park at Paul Quay, Wexford;

(c) undue influence had been exerted on the defendant, and by extension, the third named defendant by the first name defendant;

(d) the Deceased did not have the mental capacity to execute the loan agreement and did so without the benefit of independent legal advice;

(e) if the third named defendant has a liability to the first and second named defendants, such contribution should be measured on a basis which is “fair and equitable” in accordance with the provisions of s. 21(2) of the Civil Liability Act 1961.

4. Before dealing with each of these issues in turn, it is necessary to look briefly at the background to the loan facility which was granted.
5. For many years prior to his death on 17th July, 2008, the Deceased and the first named defendant (who were brothers) carried on a number of joint business ventures. In or about 1999, they each acquired and equal share in Streamline Properties Ltd., an off-the-shelf company bought for the purpose of holding property. This company owned a site comprising approximately 1.75 acres at Paul Quay in Wexford. The company was granted planning permission to build a development comprising 73 apartments, approximately 40,000 sq. ft. of retail space, office space and a multi-storey car park containing 312 car park spaces. The project was to be funded by a bank loan and by capital invested by the defendants. The defendants were advised to purchase the car park site from the company for its market value and to employ the company to develop the site. The car park was purchased by the Drinagh Family Partnership, the Deceased and the third named defendant. The Drinagh Family Partnership comprised the first and second named defendants (who are husband and wife) as trustees of the Drinagh Family Trust (the beneficiaries of the trust being the first and second named defendants and their children). The Drinagh Family Partnership owned 80% of the property, with the Deceased and the third named defendants each owning 10%.

6. The plaintiff agreed to fund the development and negotiations were entered into with the plaintiff with regard to the provision of a limited recourse loan facility in 2003. It was envisaged that the limited recourse loan facility would be drawn down by Stonebridge Car Park Partnership. The partners were the three defendants and the Deceased. But it was ultimately agreed that the facility would be drawn down by the company. The car park was transferred to Stonebridge Car Park Partnership because there were significant capital allowances available on the building of multi-storey car parks and the first and second named defendants believed they would be able to use that vehicle to shelter other income from the rest of the development.

7. The defendants and the Deceased agreed to act as sureties for the company on the basis that their liability to the plaintiff was limited to the value of the site itself and the car park constructed on it. However, the Loan Sanction Committee of the plaintiff would not agree to an express stipulation in a letter of loan offer that the guarantees would be limited recourse only. The plaintiff agreed to issue loan facility letters providing that the borrower and sureties were jointly and severally liable to repay the loan in full and to provide side letters to indicate the true nature of the guarantees. The defendants claim that they were led to believe that their liability as sureties would be limited to the value of the car park.

8. It was understood that the car park would be completed by the end of 2005, and that the ownership of the car park would transfer to Stonebridge Car Park Partnership. The company agreed with Stonebridge Car Park Partnership to borrow the working capital necessary to fund the development and thereafter to invoice the partnership once the car park had been completed.

9. The construction of the car park was completed in December 2005, and it became necessary for the partners to raise finance to pay to the company the price of the construction. In particular, the partners were advised that it would be necessary to repay the company before the end of 2005 in order to avoid certain VAT liabilities which would involve a saving of approximately €750,000. Thus, it became necessary to arrange the loan in a short space of time.

10. An urgent request was made for a loan facility in the sum of €5,306,125. The request was made on 20th December, 2005, by way of an overdraft loan facility. The loan facility was advanced pursuant to a letter of offer dated 21st December, 2005, by way of a three-month loan facility for the purpose of paying the amount then due to Streamline Properties Ltd. for the construction of the car park. The three defendants and the Deceased accepted the terms of the loan facility letter and duly signed the form of acceptance on 22nd December, 2005.

11. The first named defendant says that he and the other defendants (including the Deceased) thought that the monies were advanced on the basis of limited recourse to the value of the car park. The first named defendant, having received legal advice, eventually accepted that this was not so, and that the loan was recoverable from the defendants (and the estate of the Deceased) jointly and severally on a full recourse basis. When he received this advice, he decided to settle the action, discharging the debt in full, and he now brings these proceedings against the third named defendant by way of contribution or indemnity in respect of her share and the share of the Deceased.

12. The letter of offer dated 21st December, 2005, had conditions attached. Clause 10 of the conditions provided for “events of default” and one of the events of default is the death of the borrower. The Deceased died on 17th July, 2008, and the third named defendant argues that the death was an event triggering default. She relies on s. 8 and s. 9 of the Civil Liability Act 1961.

13. Section 8 provides as follows:

“8.—(1) On the death of a person on or after the date of the passing of this Act all causes of action (other than excepted causes of action) subsisting against him shall survive against his estate.
(2) Where damage has been suffered by reason of any act in respect of which a cause of action would have subsisted against any person if he had not died before or at the same time as the damage was suffered, there shall be deemed, for the purposes of subsection (1) of this section, to have been subsisting against him before his death such cause of action in respect of that act as would have subsisted if he had died after the damage was suffered.”

14. Section 9 provides:
“9.—(1) In this section “the relevant period” means the period of limitation prescribed by the Statute of Limitations or any other limitation enactment.
(2) No proceedings shall be maintainable in respect of any cause of action whatsoever which has survived against the estate of a deceased person unless either—

(a) proceedings against him in respect of that cause of action were commenced within the relevant period and were pending at the date of his death, or
(b) proceedings are commenced in respect of that cause of action within the relevant period or within the period of two years after his death, whichever period first expires.”

The Deceased died on 17th July, 2008, and the summary summons was issued on 29th March, 2012. The first and second named defendants argue that the plaintiff’s claim against the Deceased and/or the first and second named defendants’ claim against the Deceased were not claims that survived against his estate within the meaning of the Civil Liability Act 1961. They rely on Bank of Ireland v. O’Keeffe [1987] I.R. 47, in which Baron J. held that the plaintiff’s claim on foot of a guarantee made against the estate of a deceased was not time-barred since the demand was made after the death of the Deceased and it was not a claim that survived against the Deceased’s estate within the meaning of the 1961 Act. He held that the plaintiff’s claim was triggered by the demand that was made after the Deceased’s death. Therefore, the limitation period prescribed by s. 9 of the 1961 Act did not apply. It seems to me that this is what occurred in the present case. The demand for payment was made after the Deceased’s death and was not a claim subsisting at his death or one that survived against the Deceased’s estate within the meaning of the 1961 Act. The monies did not fall due and were not repayable at any time prior to the Deceased’s death.
15. So far as the claim for contribution or indemnity against the Deceased is concerned, that claim could only arise after the plaintiff lawfully demanded repayment of the loan.

16. I reject the defence of the third named defendant based on the argument that the claim is time-barred. It is worth noting that when the Deceased’s estate was being administered, this debt was shown as a liability on the estate.

17. The facility letter of 21st December, 2005, showed that the borrowers were the defendants and the late Gerard Stafford. The sum of €5,306,125 was offered by way of a three-month loan facility in order to pay the outstanding amount to Streamline Properties Ltd. in respect of the building of the car park. The offer letter also stated that the facility would run off at 31st March, 2006, and that a restructure of capital plus interest was to be agreed in advance of this date. The security for the loan included a legal charge over the completed car park. The form of acceptance of the offer in the facility letter was signed by each of the defendants and the Deceased on 22nd December, 2005.

18. The original loan in respect of the car park was made on foot of a facility offered by the plaintiff in 2003. The loan facility was €5.1m and was part of an overall approval of €10m to fund the Paul Quay development. The 2003 facility was advanced to Streamline Properties Ltd. and was secured by way of a first legal charge over the entire site at Paul Quay. The car park site was owned by the defendants and the Deceased and the remainder of the site was owned by Streamline Properties Ltd. The Bank, therefore, required that the defendants and the Deceased would guarantee the sum of €5.1m borrowings of Streamline Properties, but limited the guarantee to the value of the site at Paul Quay.

19. While that may have been the position up until December 2005, it is clear that the facility granted on 21st December, 2005, was not a limited recourse facility.

20. The facility of 21st December, 2005, set out the security for the loan but did not state that the personal liability of the borrowers was limited to that security. The position appears to have been that the parties intended entering into a further arrangement in the following year but such an arrangement was not put in place because it was realised that the car park was not performing as well as anticipated. There is nothing ambiguous about the terms of the facility letter, and while all the borrowers may have understood or believed that it was a limited recourse loan, the evidence establishes that this is not in fact the case.

21. I now go on to consider the claims by the third named defendant that undue influence was exerted on the Deceased and, by extension, the third named defendant by the first named defendant and that the Deceased’s mental capacity was insufficient to fully understand the agreement which he entered into on 22nd December, 2005.

22. The Deceased suffered from Depression and a Bipolar Disorder. There was ample evidence to show that this was quite severe at times, although in recent years it appears to have been reasonably well controlled by medication. As a result, the Deceased’s last hospital admission was as far back as 1989. A lot of the credit for this must go to the third named defendant, Mrs. Marian Stafford. From the time of her marriage to the Deceased, it is clear that she cared for him assiduously and lovingly and she gave vivid evidence of how he would be affected by dark moods from time to time, and that while in such a state, he would spent long periods in bed or withdrawn from the world. I accept her evidence on this aspect of the case.

23. However, there was ample evidence from a number of witnesses from different walks of life who engaged with the deceased professionally and who said that he was at all times a gentleman and very conscientious in the manner in which he approached his business affairs. There was convincing evidence to show that when he was presented with business or legal documents, he took time to consider them carefully and frequently asked questions of his advisors, showing that he had a complete grasp of the business in hand. Apart from a number of witnesses who dealt with the Deceased in a professional capacity, the court heard evidence from a long-standing friend who was aware of his debilitating illness but stated that he was sound in his everyday activities and decisions although he was aware of his limitations and was careful to follow the medical regime ordained by his medical advisors. This witness never found any diminution in the Deceased’s mental capacity in the latter years of his life. The witness informed the court that after the Deceased married the third named defendant, he seemed more settled and relaxed in his approach to life. A statement of evidence of Mr. Christopher Dillon OSB, the Abbot emeritus of Glenstal Abbey, was admitted in evidence without the necessity of him being called. Abbot Dillon said that he always found the Deceased to be “extremely lucid and shrewdly cautious” about his proposals which involved funding various undertakings in Glensal Abbey. He stated that the Deceased informed him of his gradual withdrawal from the pressures of hands-on management of certain business enterprises and was concerned that his brother (the first named defendant) was burdened with managing businesses they jointly owned. He did not receive any impression that the deceased was pressurised by his brother in any way. On the contrary, he felt that they had a warm and loving relationship.

24. The first named defendant himself gave evidence of the relationship he had with his only sibling (the Deceased) and I am satisfied that it was a warm and loving relationship and that the first named defendant at all times looked out for the Deceased and took proper care of his interests.

25. I find no evidence to support the allegation of undue influence or lack of capacity on the part of the Deceased to understand the obligations he was assuming on accepting the terms of the facility offered on 21st December, 2005. Although a psychiatrist was called to give evidence, she said that she was unable to comment on the Deceased’s mental condition when he engaged in business affairs.

26. The third named defendant says that if she is found to be liable to the first and second named defendants that any contribution should be measured on the basis that it is “fair and equitable” in accordance with s. 21(2) of the Civil Liability Act 1961.

27. I am satisfied that the first named defendant has established on the balance of probabilities that the settlement which he reached with the Bank on behalf of all the borrowers was reasonable. In these proceedings, he seeks no more from the third named defendant than to recover the proportion of the liability to the Bank which the third named defendant and the Deceased would have had under the terms of the partnership arrangement. In those circumstances, what he is claiming is fair and equitable.

28. The parties have agreed the figures that apply if the first named defendant recovers on the basis claimed by him. They are as follows:

20% of amount drawn down by the first named defendant from Bank of Ireland on foot of a new facility, having settled with the plaintiff. This sum is €701,355.21.
One-third of the interest accrued to Bank of Ireland from the date of drawdown to date (€13,711.97) giving a liability of €4,570.66.

One-third of legal costs in putting in place security required by Bank of Ireland (Liam Hipwell & Co. €55,768) which amounts to a sum of €18,588.50.

The total of these figures is €724,514.37.

29. The first named defendant is entitled to contribution in such sum from the third named defendant.

 

Brady v Donegal County Council

[1989] I.L.R.M. 282
Costello J
The question for determination on the issue I have tried is whether s. 82(3A) of the Local Government (Planning and Development) Act 1963 (which puts a two-month time limit on applications to the court to question the validity of permission decisions of planning authorities) is unconstitutional. It arose in the following circumstances.

Mr Brady, the first-named plaintiff, owns a bungalow at Kill, Dunfanaghy, in the County of Donegal which he occupies from time to time as a holiday home. Archdeacon Knowles, the second-named plaintiff, also has a holiday home, close to Mr Brady’s. The other plaintiffs, Mr Connolly (who since the institution of these proceedings has died) and Miss Smyth resided permanently at Kill, not far from Mr Brady’s bungalow. The area is a rural one, served by a narrow winding country road from the main Portnablagh-Dunfanaghy road. Behind Mr Brady’s house and in front of that of Archdeacon Knowles is a field which for a number of years was used for grazing cattle. Recently it was purchased by Mrs Boyle, the second-named defendant. It is her plan for its development that has led to the present proceedings.

Unnoticed by any of the plaintiffs Mrs Boyle caused to be inserted in the issue of the Derry Journal of 1 October 1985 (a newspaper published in Northern Ireland) a notice in the Irish language evincing an intention to apply to the Donegal County Council (first-named defendants herein) for permission to use her field as a caravan park for the siting of ten caravans. She applied for permission and on 10 December 1985 the Council decided to grant it. It is that decision that the plaintiffs now challenge. None of them had seen the notice in the Derry Journal and so were unable to raise any objection to Mrs Boyle’s application. Sometime in the following January or February (the exact date cannot now be recalled) Mr Connolly’s wife overheard in a local shop in Portnablagh a conversation which indicated that a caravan park was to be built near Mr Brady’s house. Mr Connolly told Mr Brady and he and his co-plaintiffs decided to inquire as to whether planning permission had been obtained for the proposed development. As a precautionary measure, Mr Brady wrote on 17 February 1986 a letter of appeal to An Bord Pleanala (not then knowing whether permission had been obtained) and he received a reply on 26 February informing him that a grant of permission had been made on the 10 January 1986 and that his appeal to the Board was out of time. (This letter was in fact somewhat inaccurate; the decision of the planning authority had been made on 10 December 1985; its notification to Mrs Boyle had been dated 10 January 1986).

Until receipt of this letter the plaintiffs were unaware of the decision to grant Mrs Boyle permission to use her field as a caravan park. Subsequently, they obtained particulars of the date it had been obtained and learnt how the application had been advertised. On 8 May 1986 these proceedings were then instituted. In them the plaintiffs claim a declaration that the decision of 10 December was invalid because the Derry Journal was not a newspaper circulating in the Dunfanaghy area and that this breach of the planning regulations invalidated the permission. Their actions has had a chequered and unhappy career which I need not now detail. Mrs Boyle pleaded, inter alia, that as the proceedings were not instituted within two months of 10 December 1985 they are statute-barred by s. 82(3A) of the 1963 Planning Act. The plaintiffs replied that if this is so then the subsection is unconstitutional. They served a notice under O.60 r.1 RSC on the Attorney General and the issue they raised has been tried as a preliminary issue, with the validity of the subsection being argued by counsel for the Attorney General.

The parties agreed that five affidavits filed in earlier interlocutory proceedings could be used on this issue. I am not now required to make any finding of fact on them and I need only make two observations on them. Firstly, there is available to the plaintiffs evidence which would indicate (and establish, if accepted by the trial judge) that the Derry Journal did not circulate in the area on 1 October 1985 (the day on which Mrs Boyle’s notice appeared) and that accordingly Mrs Boyle had failed to comply with the requirements of Article 14 of the 1977 Planning Regulations (SI No. 65 of 1977). This failure would render the Council’s decision invalid (see, Cordaun Homestead v Kildare County Council [1983] ILRM 1). Secondly, the plaintiffs have sworn that they did not know of Mrs Boyle’s application for permission and did not know of the existence of the advertisement in the Derry Journal until some time after 10 February 1986 when the two-month time limit for challenging the decision of 10 December 1985 had expired. If they are correct in their assertion about the circulation of the Derry Journal then their ignorance of their cause of action is attributable to the defendant’s wrongdoing in failing to comply with the relevant statutory regulation.

The Local Government (Planning and Development) Act, 1963 and Article 40.3.2° of the Constitution
The sections of the 1963 Act and Regulations made thereunder relevant for the present issue are as follows:

(a) Mrs Boyle was required by s. 26 of the 1963 Act to apply to the County Council for permission to maintain a caravan park on her land and prior to that *286 application was required by Article 17 of the regulations to publish ‘notice of intention’ in a ‘newspaper circulating in the district’ (or by erecting a notice on her land). The council was required by Article 32(2) of the Regulations to notify within seven days any person who had submitted objections to its decision to grant a permission. This meant that had the plaintiffs been aware of Mrs Boyle’s application and objected to it (as undoubtedly they would) they would have been made aware of the Council’s decision in her favour. By virtue of s. 26(5)(c)(ii) of the 1963 Act they would have then had 21 days in which to appeal to An Bord Pleanala against it.

(b) The 1963 Act itself imposed no time limit on applications to the court to challenge the validity of the decisions of planning authorities; the impugned subsection was inserted by s. 42 of the Local Government (Planning and Development) Act 1976 which amended s. 81 of the 1963 Act by deleting subs. (1), (2) and (3) of the section and inserting new subsections, one of which reads:

3
(A) A person shall not by prohibition, certiorari or in any other legal proceedings whatsoever question the validity of—

(a) a decision of a planning authority on an application for permission or approval under Part IV of the Principal Act,…

unless the proceedings are instituted within the period of two months commencing on the date on which the decision is given.

(c) The plaintiffs case is that the right to challenge the validity of the Council’s decision is ‘a property right’ within the meaning of Article 40.3.2° of the Constitution, and that the Oireachtas has failed in its obligations under this Article by the insertion in the 1963 Act of the impugned subsection. It reads:

The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.

The argument is that the impugned subsection constitutes an unjust attack on the plaintiffs’ property rights and that the subsection is accordingly void. The Attorney General has not contested that the plaintiffs’ claim in this action is a ‘property right’; his case is that there was no unjust attack on it.

The legal principles applicable
It is a matter of everyday occurrence that the Oireachtas in its legislation is required to strike a balance between competing interests. Sometimes the interests which compete are, on the one hand, some requirement of the common good and, on the other, the interests of holders of some constitutionally entrenched right (of which the Planning Acts themselves afford a ready example, involving as they do a balance between the protection of the environment and the rights of the owners of private property). Sometimes the competing interests may be those of two different classes of individuals (as, for example, the interests of prospective plaintiffs in the enactment of legal claims which the Statute of Limitations Act 1957 sought to reconcile with the interests of prospective defendants in being protected from stale claims). In legislative provisions under review in this case the Oireachtas was not seeking to strike a balance between the rights of property owners wishing to develop their land on the one hand and the rights of adjoining property owners to the enjoyment of their property rights on the other. In Cavern Systems Ltd v Clontarf Residents’ Association [1984] ILRM 24, I explained why I thought the Oireachtas had inserted s. 82(3A) of the 1963 Act and counsel for the Attorney General in this case has agreed with what I then said. The 1976 Act established a system of appeals to a newly constituted Planning Board under which dissatisfied objectors had 21 days in which to appeal to the Board against a decision of a planning authority to which they objected.

At the same time the Oireachtas further amended the law by the insertion of s. 82(3A) of the 1963 Act. The purpose in imposing the two-month time limit which the new subsection contained was (i) to ensure in the national interest that uncertainty about development applications should be dispelled at the earliest possible date, and (ii) to make applicants for permission and planning authorities aware at an early date that a permission decision was being challenged in legal proceedings so as to enable applications for adjournments of planning appeals to be made and so avoid unnecessary costs and unnecessary waste of the time of public officials. Thus, the Oireachtas was balancing on the one hand the public interest in the application of certain aspects of the planning code and on the other the interests of those members of the public who were the holders of a constitutionally protected right to apply to the court to challenge the decisions of planning authorities.

The pre-1976 position was obviously unsatisfactory in that a challenge to the validity of a planning decision could be brought by way of application for certiorari within six months and by way of an application for declaratory relief within six years after it had been made. The plaintiffs herein do not quarrel with the imposition by the Oireachtas of a time-bar on the institution of judicial proceedings challenging the validity of such decisions; indeed they accept the two-month limitation as being a reasonable one provided it contained a saver to deal with exceptional cases such as the present one. In this connection they referred to the British Limitation Act of 1963. S. 2(1) of the earlier British Limitation Act 1939 (as amended) had imposed an absolute three year limit for bringing certain types of actions, but this absolute bar was modified by the 1963 Act which provided that by leave of the court personal injuries claims could be instituted or maintained notwithstanding the three year limitation period when it could be proved that material facts of a decisive character relating to the cause of action were outside the actual or constructive knowledge of the plaintiff until after the three year period or not earlier than twelve months before the end of that period. The plaintiffs here argue that the 1963 Planning Act should have contained a similar saver and that without it the Act is unconstitutional.

This argument finds support from, and indeed is based on, views expressed in the Supreme Court in Cahill v Sutton [1980] IR 269, a case dealing with the constitutional validity of a three-year limitation period in personal injury actions imposed by s. 11(2)(b) of the Statute of Limitations 1957. An issue on the constitutional validity of this limitation was tried by Finlay P (as he was then) in the High Court who found the statute valid. The plaintiff appealed, but the Supreme Court held that it was unnecessary to decide the point as the plaintiff had no locus standi to raise it. The plaintiff had submitted that the absence in the 1957 Act of a saver in favour of injured persons who through no fault of theirs were unaware of relevant facts until after the expiration of the limitation period had expired (similar to that contained in the British Limitation Act 1963) rendered the 1957 Act unconstitutional. On that submission Henchy J (with the agreement of three other members of the court) had this to say:

While in the circumstances of this case the Court is unable to rule on the validity of the claim against the constitutionality of section 11, sub-section 2(b) of the Act of 1957, it is proper to point out that the justice and fairness of attaching to that sub-section a saver such as was inserted by the British Parliament in section 1 of the Limitation Act, 1963, are so obvious that the enactment of our Parliament of a similar provision would merit urgent consideration. (p. 288).

Conclusions
Even if I were to construe Cahill v Sutton (as McCarthy J did in Norris v Attorney General [1984] IR 36 at 89) as having indicated that s. 11 of the 1957 Act without the saver was unconstitutional it would not follow that the two-month limitation in the section in the instant case was also unconstitutional; the two statutes are dealing with entirely different situations. The competing interests which the Oireachtas sought to reconcile by the 1957 Act were those of plaintiffs wishing to pursue a claim for damages for personal injuries on the one hand and defendants faced with the possibility of long-delayed claims on the other. Here the competing interests are those of potential plaintiffs desirous of challenging the validity of planning decisions on the one hand and certain public interest requirements on the other. But the views expressed in it are nonetheless of considerable relevance in this case. The Supreme Court drew attention to the justice in providing in a Limitation Act a saver in favour of plaintiffs whose ignorance of their cause of action was not attributable to any fault of theirs. A fortiorari, a limitation period which contains no saver of plaintiffs whose ignorance of their cause of action is attributable to the defedants wrong-doing would appear to be unjust and, very likely, unconstitutional.

Cahill v Sutton is relevant and helpful for another reason. Finlay J in the High Court (whose views on this point it was unnecessary for the Supreme Court to discuss) indicated the proper test to be applied when the court is considering the validity of limitation sections. He suggested that in the case before him he should firstly examine the statute against the background of the circumstances of the ordinary life in the country at the time the statute was enacted, to discover whether it provided a reasonable or unreasonable time limit, and then examine it in the light of the balance which the Legislature was required to hold between the rights of prospective plaintiffs and prospective defendants with a view to seeing whether the limitation period was a reasonable one (pages 273, 274). And so it seems to me that I should approach the issue for determination in this case generally, (a) by considering whether the plaintiffs have shown (and the onus is on them) that the two-month limitation period is unreasonable having regard to the competing interest which the Oireachtas was required to reconcile, and in particular, (b) whether the absence of a saver clause in the legislation which would enable the court to lift the two-month bar in favour of a plaintiff whose ignorance of a cause of action within the two month period was caused or contributed to by the defendant is unreasonable thus rendering the section constitutionally invalid.

A law which imposes a very short time limit which may well deprive a plaintiff of a judicial remedy before he knew he had a cause of action can obviously cause considerable hardship. But if the plaintiff’s ignorance of his rights during the short limitation period is caused by the defendant’s own wrong-doing and the law still imposes an absolute bar unaccompanied by any judicial discretion to raise it there must be very compelling reasons indeed to justify such a rigorous limitation on the exercise of a constitutionally protected right. The public interest in (a) the establishment at an early date of certainty in the development decisions of planning authorities and (b) the avoidance of unneccessary costs and wasteful appeals procedures is obviously a real one and could well justify the imposition of stringent time limits for the institution of court proceedings. But if the statute now being considered contained the suggested saver these objectives could be achieved in the vast majority of cases. Certainly the public interest would not be quite as well served by a law with the suggested saver as by the present law, but the loss of the public interest by the proposed modification would be slight while the gain in the protection of the plaintiff’s constitutionally protected rights would be very considerable. I conclude therefore that the present serious restriction on the exercise of the plaintiffs’ constitutional rights imposed by the two-month limitation period cannot reasonably be justified. Unmodified, the subsection is unreasonable; being unreasonable it is unconstitutional, and I will so declare.

Had attention been paid to what the Supreme Court said about the 1957 Limitation Act and steps taken to amend it I am sure that other statutes containing limitation periods such as the one I am considering would have been looked at also and their defects remedied. I therefore think that it is proper that the costs of this issue should be borne by the State.

I should perhaps explain by way of conclusion that in deciding the case I have not over-looked the other cases to which I was referred (O’Brien v Keogh [1972] IR 144; O’Brien v Manufacturing Engineering Co Ltd [1973] IR 334; Moynihan v Greensmyth [1977] IR 55; Electricity Supply Board v Gormley [1985] IR 144; Dreher v Irish Land Commission [1984] ILRM 94; Morgan v Park Developments [1983] ILRM 156; Inver Resources v Dublin Corporation [1988] ILRM 47). As I found the principles to be applied in Cahill v Sutton it seemed unnecessary to burden this judgment with citation of any other authorities.

SUPREME COURT
FINLAY CJ

(Henchy, Griffin, Hederman and McCarthy JJ concurring) delivered his judgment on 13 October 1988 saying: This is an appeal brought by the Attorney General as Notice Party against an order of the High Court dated 6 November 1987 wherein upon the trial of an issue it was declared that s. 82 (3A) of the Local Government (Planning and Development) 1963 (‘the Act of 1963’) was invalid, having regard to the provisions of the Constitution.

The Proceedings
By plenary summons issued on 8 May 1986 the plaintiffs sought against the defendants a declaration that no valid planning permission exists in respect of certain lands the property of the defendant Anna Boyle situate at Kill, Dunfanaghy, County Donegal, for the development of a caravan park or for any other development. The plaintiffs also claimed certain consequential injunctions and damages.

The defendants, the Donegal County Council, had on 10 December 1985 purported to decide to grant planning permission to the defendant Anna Boyle for the development of a caravan park on these lands and had purported to make the actual grant of such permission on 10 January 1986.

The plaintiffs’ claim was based on an allegation that this purported decision and grant were both invalid because the defendant Anna Boyle in applying for planning permission had given notice of her application only by inserting an advertisement in an edition of a newspaper entitled the Derry Journal which did not circulate in the district in which the lands are situate. It is alleged that the plaintiffs, all of whom own houses adjoining the defendant’s lands did not as a consequence of this inadequate notice become aware of the granting of permission until well after it had occurred.

The plaintiffs applied for an interlocutory injunction and filed affidavits in support of that application. The defendant Anna Boyle filed affidavits in opposition. It would appear that at that time or shortly thereafter the proceedings against the defendants the Donegal County Council were by consent discontinued.

By consent an order was made on 12 May 1986 which having recited certain undertakings on the part of both the plaintiffs and the defendant, adjourned the motion for an interlocutory injunction.

In the affidavits filed in connection with that motion, which were by consent used on the trial of the issue with which this Court is concerned, the plaintiff adduced prima facie evidence that the Derry Journal did not circulate in the relevant district, and the defendant Anna Boyle adduced prima facie evidence that it did.

The plaintiffs filed a statement of claim to which the defendant Anna Boyle filed a defence pleading as a preliminary matter that the plaintiffs’ claim was barred by the provisions of s. 82 (3A) of the 1963 Act. To this the plaintiffs replied that if their claim was barred by that subsection then that subsection was invalid having regard to the provisions of the Constitution.

The plaintiffs then served notice on the Attorney General pursuant to the provisions of Order 60, rule 1 of the Superior Court Rules.

The proceedings were apparently listed for hearing in February 1987 and struck out of the list for want of apearance by or on behalf of the plaintiffs. On 20 July 1987 by order of Costello J made on the motion of the plaintiffs the case was, subject to certain conditions, reinstated and by consent it was ordered that the issue as to the validity of s. 82(3A) of the 1963 Act be tried. In this order it was recited that counsel for the plaintiffs had intimated to the Court that ‘this was the only issue remaining to be determined in these proceedings’.

The issue was accordingly tried without objection on behalf of the Attorney General, regard being had to the affidavits already filed, but no determination of any disputed issues of fact being made.

The impugned subsection
S. 82(3A) of the Act of 1963 was inserted by s. 42 of the Local Government (Planning and Development) Act 1976 and reads as follows:

(3A) A person shall not by prohibition, certiorari or in any other legal proceedings whatsoever question the validity of—

(a) a decision of a planning authority on an application for a permission or approval under Part IV of the Principal Act,

(b) a decision of the Board on any appeal or an any reference,

(c) a decision of the Minister on any appeal, unless the proceedings are instituted within the period of two months commencing on the date on which the decision is given.

The High Court judgment
In the course of a reserved judgment Costello J held that if the plaintiffs succeeded in establishing that the edition of the Derry Journal in which the defendants’ application was advertised was not a newspaper circulating in the district where the lands are situtate that the defendant would have failed to comply with the requirements of Article 14 of the 1977 Planning Regulations and accordingly on the authority of the decision of this Court in Cordaun Homestead v Kildare County Council [1983] ILRM 1 the decision to grant permission would be invalid. He further decided that the plaintiffs’ right to challenge the validity of the planning decision was a constitutionally protected right. He determined that if the plaintiffs succeeded in establishing the fact that the relevant edition of the Derry Journal did not circulate in the district concerned that they would have established that the effect of the subsection in their case was to deprive them of a constitutionally protected right to secure a legal remedy before they knew they had a cause of action, their ignorance being caused or contributed to by the wrongdoing of the defendant.

A subsection, he decided, which contained no saver to avoid such a consequence could not be justified and constituted an unreasonable restriction which was a failure to protect a property right of the plaintiffs and was thus invalid, having regard to the provisions of the Constitution.

Grounds of appeal
The appellant in his notice of appeal relied upon a number of grounds.

Fundamental and, in a sense, preliminary amongst them was the assertion that unless and until the plaintiffs established as a fact that the Derry Journal did not circulate in the relevant district they have no locus standi to challenge the constitutional validity of the subsection on the grounds on which they do. A consequence of this it is said would be that the High Court had no jurisdiction to determine the issue as to the validity of the subsection and that accordingly the judgment and order of the High Court should be set aside.

It is quite clear that no such submission was made to the High Court although a passing reference was apparently made to the decision of this Court in Murphy v Roche & Ors [1987] IR 106. In his careful judgment Costello J does not therefore decide this legal issue which was not raised before him, and the appellant in relying on this ground is asking this Court to decide an issue of law not determined by the High Court.

Amongst the alternative grounds of appeal was a submission that the entitlement to challenge the validity of a decision made by a planning authority pursuant to the provisions of the Act of 1963 is not a property right within the meaning of the provisions of Article 40.3 of the Constitution. This could include a contention that the right to challenge the decision having been granted by statute could accordingly be limited or diminished by statute.

It is clear that this submission also was not made in the High Court and has therefore not been decided by the learned trial judge who in the course of his judgment states that ‘the Attorney General has not contested that the plaintiffs’ claim in the action is a property right’.

The decision
It has been decided by this court on a number of occasions that it is a fundamental principle of its appellate jurisdiction that it does not decide issues which have not been raised and decided in the court of trial.

If this were an action the decision in which affected only the parties to it, I could not conceive of any reason for departing from this principle. Adherence to it would, of course, debar this court from considering either of the two grounds of appeal which I have above set out.

Being, however, a challenge to the validity, having regard to the provisions of the Constitution of a law enacted by the Oireachtas, this is an action the decision in which affects every citizen.

I am satisfied that the correct approach to be adopted by this Court to an appeal in a constitutional action of this category is that it should consider every relevant ground of appeal irrespective of whether or not it raises an issue determined in the court below and either determine such issue or remit it to the High Court to be determined in the first instance.

To take any other course would be to risk reaching an incorrect conclusion on the constitutional validity of a statutory provision by reason of a default or irregularity in the proceedings in which it was raised.

I am therefore satisfied that this Court should first consider and determine whether in the absence of a finding of fact in favour of the plaintiffs establishing non-compliance by the defendant with Article 14 of the Planning Regulations 1977 the plaintiffs have any locus standi to challenge the validity of this subsection.

It is agreed by counsel of both sides that if the plaintiffs should fail to prove that the relevant edition of the Derry Journal was not ‘a newspaper circulating in the district in which the relevant land … is situate’ then the plaintiffs’ claim must fail in its entirety in this action. In that event the decision of the High Court and, if one were delivered, of this court, on the constitutional validity of the subsection would have been delivered on a moot. That is something which has been condemned by the decisions of this Court in Cahill v Sutton [1980] IR 269 and other cases, including the recent decision in Murphy v Roche [1987] IR 106.

In so far as the decision in Murphy v Roche allows for the ‘overriding consideration of doing justice between the parties’ I am satisfied that no such consideration arises in this case which would justify a departure from the general principle. The whole issue of constitutional validity depends in this case upon the submission with regard to the absence from the subsection of ‘a saver against an exceptional case such as the present one’. If the present case is not exceptional; if the advertisement was duly published and if the ignorance of the plaintiffs was not caused or contributed to by any act, wrongful or otherwise, of the defendant, then the absence of any saver from this subsection has not damnified the plaintiffs nor would its presence have been of advantage to them.

It may well be, and I express no decided view upon the point, that the nature and quality of the defendant’s conduct in addition to the bare issue of the circulation of the newspaper is a matter which should be determined before a proper legal decision on the validity of this subsection can be reached.

It would appear clear that the learned trial judge was induced to determine this issue without determining the necessary facts by both the indication given to him on behalf of the plaintiffs that no other issue remained for determination in the case and by the failure of the appellant to object before him to the course which was being adopted.

I am, however, driven to the conclusion for the reasons which I have set out that in so doing he erred because on the authorities to which I have referred, unless and until the facts were determined and unless and until they were determined in a particular way the plaintiffs had no locus standi to challenge the subsection.

I would, therefore, allow the appeal, set aside the judgment and order made herein in the High Court and remit the entire of the action for re-trial by the High Court.

 

 

Tuohy v Courtney

[1994] 2 ILRM 503 Finlay CJ
This Decision of the Court pronounced pursuant to Article 34.4.5° of the Constitution deals with two issues arising in this appeal.

It is an appeal brought by the plaintiff against the dismiss by order of the High Court of 5 October 1992 of his claim for a declaration that s. 11 of the Statute of Limitations 1957 (the 1957 Act) is inconsistent with the provisions of the Constitution and so much of a cross-appeal by the first and second named defendants (Downeys) against a finding made by Lynch J on the hearing of this action in the High Court that the plaintiff had sufficient locus standi in law to maintain and present a claim for the declaration of inconsistency with the Constitution.

The facts
In the month of September 1978 the plaintiff was anxious to purchase premises situate at 8 Annabella Terrace, Mallow, Co. Cork which were being advertised by auctioneers as for sale by private treaty. He instructed Downeys as the firm of solicitors on his behalf, firstly, to make a bid for the premises in the sum of £26,500 and secondly, if that bid was successful, to investigate the title, prepare the necessary documents and complete the sale.

The bid made by Downeys on behalf of the plaintiff was successful, a contract was submitted by the solicitors for the vendor and on the advice of Downeys was signed by the plaintiff in September 1978 having paid the appropriate deposit.

Subsequently, the title was investigated by Downeys and on the advice of Downeys the plaintiff paid the balance of the purchase money in December 1978 which was then put upon deposit and he was allowed into possession of the premises. Subsequently an assignment of the premises was on the advice of Downeys executed by the plaintiff and by his wife.

The plaintiff believed that he was purchasing a freehold interest in the premises in that he was purchasing by assignment a lease which could be converted into a freehold under the law applicable. In fact what he was purchasing was the unexpired term of a lease for 99 years from October 1919 in respect of which there was no right under any legal provision of renewal or of conversion into a freehold interest.

The learned trial judge in the High Court found that Downeys were negligent in failing to warn the plaintiff of the true nature of the title which he was acquiring in the sale and found that in fact the title he acquired was of very substantially less value than the purchase price which he had paid in 1978 of £26,500 and was not in general terms a good marketable title. The learned trial judge held that if the plaintiff was entitled to succeed and recover the damages which he had suffered as a result of the negligence of Downeys that they should be assessed in a total sum of £21,653.

The learned trial judge held on the evidence before him that whilst the plaintiff in the year 1983 became aware that the title which he had acquired was subject to certain covenants in the lease obliging him to paint and keep in repair the premises and to insure them, he did not become aware until he took the advice of different solicitors in the summer of 1985 of the true nature of the title which he had acquired and of the very substantial difference between its value and the value of a premises which was either freehold or held under a lease capable of being converted into a freehold. The learned trial judge further held that in effect the plaintiff could not reasonably be expected to have ascertained that fact before 1985.

Under the provisions of s. 11 of the Act of 1957 the plaintiff’s right of action accrued either in September or December of 1978 and the time limit for instituting proceedings either based in tort or breach of contract expired either in September or in December of 1984.

These proceedings were instituted by plenary summons issued on 10 April 1987.

It is clearly necessary for the court before reaching a decision on the issue of the constitutional validity of s. 11 of the 1957 Act to determine the question raised in Downeys’ cross-appeal of the locus standi of the plaintiff to maintain a claim for a declaration of inconsistency with the Constitution.

Issue of locus standi
The case made by Downeys in regard to this part of their cross-appeal was in short to assert that the findings of fact and inferences reached by Lynch J in the High Court were incorrect and that his application of the appropriate legal principles to them was also in error. The basic case being made by Downeys on this issue is that on the evidence the plaintiff having admitted that in 1983 he received and perused the title deeds at a time when the time limit had not yet expired and that he had observed at that time that he had got certain obligations by way of covenant in respect of painting, maintaining and insuring the premises that at law there must be imputed to him a knowledge of the accrual of the action and of the nature of the loss in broad terms which he had suffered and that therefore he was not a person who could assert as he sought to assert that he was not, and could not reasonably have been, aware of the accrual of the action until after the efflux of the time limit.

In reply to this on behalf of the plaintiff reliance was simply placed upon the correctness of the findings of fact and the inferences from them and the legal consequences flowing from them made by the learned trial judge in the course of his judgment.

The findings of Lynch J in the High Court relating to this issue may thus be summarised.

1. The plaintiff’s causes of action against the defendants Downeys whether they are founded in breach of contract or in tort accrued at the latest on 19 December 1978 and at the earliest on 19 September 1978.

2. By virtue of the provisions of s. 11 of the 1957 Act the plaintiff’s claims would accordingly have become time barred by either 18 September 1984 or by 18 December 1984.

3. This action was commenced by plenary summons issued on 10 April 1987.

4. The plaintiff became aware in March 1983 that the title which he acquired was a leasehold and not as he had thought a freehold title. He was annoyed at finding that he had additional obligations to insure, repair, and paint the premises, but as he would have to do these things anyway his annoyance would be fully assuaged by a modest reduction of Downeys’ bill of costs which reduction he sought on the basis that Downeys had been negligent.

5. Downeys were the plaintiff’s solicitors until the summer of 1985 when he instructed another firm of solicitors for the purpose of selling the premises at 8 Annabella Terrace.

6. Up to that time the plaintiff did not appreciate the true significance of the difference between the title he believed he was getting and what he actually got.

7. The plaintiff could not be ‘criticised for not consulting different solicitors earlier.’

These findings the court is satisfied in so far as they consist of findings of primary fact are fully supported by the evidence and in so far as they consist of inferences from the facts are correct inferences.

The court is satisfied that they constitute a finding by the learned trial judge that the plaintiff whilst aware of facts within the six year time limit which led him to the conclusion that the defendants Downeys had been negligent was unaware until after the expiry of the time limit that he had suffered any significant loss or damage which would warrant the institution of an action such as he eventually instituted in 1987.

The conclusions further appear to constitute a decision that the plaintiff could not by steps which he reasonably might have been expected to take have become aware of the true position and his true loss before the summer of 1985.

The basis of the plaintiff’s claim for the making of which his locus standi is challenged is briefly but accurately summarised by Lynch J in the following paragraph of his judgment which is contained at p. 33:

The plaintiff’s challenge to the constitutionality of s. 11 of the 1957 Act is on the basis that in his case the section has so operated as to time bar his action before he could reasonably be expected to have appreciated that he had any worthwhile or significant claim against Mr Courtney.

The court is quite satisfied that for the purpose of presenting such a claim the findings and conclusions reached by Lynch J which have just been summarised in this judgment constitute clear evidence of the existence of the plaintiff’s locus standi.

The cross-appeal of the defendants Downeys on this issue must therefore be dismissed.

Terms of s. 11 of the 1957 Act
The material provisions of s. 11 of the 1957 Act are as follows:

S. 11(1)(a) provides as follows:

The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued—

(a) actions founded on simple contract.

S. 11(2)(a) provides as follows:

Subject to paragraphs (b) and (c) of this subsection, 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.

Paragraph (b) of subs. (2) excepts from the six-year time limit actions involving claims for damages in respect of personal injuries and paragraph (c) of subs. (2) excepts actions claiming damages for slander.

In the course of the submissions made on behalf of the plaintiff in furtherance of the challenge to the constitutionality of s. 11 reliance was placed on the obiter dictum of Henchy J in Cahill v. Sutton [1980] IR 269 where (though the matter did not arise in any way for decision before the court in that case) he suggested that the justice and fairness of attaching to s. 11(2)(b) of the Act of 1957 (dealing with claims involving personal injuries) a saver for when the time limit might have expired before a plaintiff was or could reasonably have been aware of the accrual of the cause of action and the damage flowing from it, was so obvious that ‘the enactment by our parliament of a similar provision would merit urgent consideration.’ Reliance also was placed on the judgment of McCarthy J in Hegarty v. O’Loughran [1990] 1 IR 148; [1990] ILRM 403 where again though speaking obiter to the issues before the court the learned judge quoted with approval the criticisms of Henchy J of the Act of 1957 and those of Lord Reid in Cartledge v. E. Jopling & Sons Ltd [1963] AC 758 with regard to the English Statute of Limitations of 1939 containing a fixed time limit similar to the Irish provision and without any such saver.

Reliance was also placed upon the obvious approval of Carroll J in the High Court in the case of Morgan v. Park Developments Ltd [1983] ILRM 156 of the judgment of Lord Reid to which reference has just been made.

On behalf of the plaintiff it was further urged that the inherent jurisdiction of the courts to dismiss a plaintiff’s claim even if brought within a statutory time limit upon the basis that the actual delay in bringing it forward was so gross as to render it an injustice to the defendant to try and meet the case, constituted what was described as a safety net which made a fixed time limit without any saver for the plaintiff such as was being contended for, unbalanced and arbitrary and an apparent and unjustifiable inequality in the treatment in the Statute of Limitations of the position of a defendant and a plaintiff.

On behalf of both Downeys and the Attorney General the broad contention was that the provision of the Statute of Limitations and of any statute of limitations was a necessary and inevitable part of the procedure of courts and was a defence both in the interests of potential defendants and in the interests of the public good against the bringing of stale claims. The question as to the length of and in what way with regard to any particular type of claim a limit should be expressed; what possible categories of extension to a period of limitation should be provided; and the consequential balance between the position of the plaintiff and the defendant in any particular form of action were all matters of policy which were strictly under the Constitution within the power of the legislature and not of the judiciary. The courts it was said could not possibly intervene with regard to such questions of policy unless they were satisfied that the policy expressed in the Act was wholly arbitrary and wholly and unconstitutionally unfair to a person in the position of the plaintiff so as to lack any form of balance or any justification with regard to the common good. It was firmly submitted that this section even having regard to the position of such persons as the plaintiff could not be construed as coming within that category.

The court has carefully considered the issues thus raised and has come to the following conclusion.

Decision on the constitutional validity of the impugned section
The Act of 1957 is presumed to be consistent with the provisions of the Constitution until an inconsistency is clearly established to the satisfaction of the court and it is on that basis that the court has approached the making of this decision.

The first issue which must be determined is the precise nature of the constitutional right which the plaintiff claims has been wrongfully invaded.

The court is not satisfied that it is the constitutional right of access to the courts.

In his judgment delivered in this Court in the case of Oó Domhnaill v. Merrick [1984] IR 151; [1985] ILRM 40, Henchy J at p. 158/45 stated as follows:

Although the statute states that an action ‘shall not be brought’ after the expiration of the period of limitation, such a statutory embargo has always been interpreted by the courts as doing no more than barring a claim instituted after the expiration of the period of limitation if, and only if, a defendant pleads the statute in his defence. It is only when a defendant elects to rely on the statute as a defence that the statutory bar operates. Consequently, although a claim may be plainly, and on the face of the claim, brought after the expiry of the relevant period of limitation, the action will not be held to be statute barred unless the defendant elects by a plea in his defence to have it so treated. Thus, although the statute says that the action ‘shall not be brought’ after the statutory period such a prohibition in a statute of limitations has been construed, not as barring a right to sue, but as vesting in a defendant a right to elect, by pleading the statute, to defeat the remedy sought by the plaintiff.

So construed, the statute does not bear on a plaintiff’s right to sue , either within or after the period of limitation. What it affects is a plaintiff’s right to succeed if the action is brought after the relevant period of limitation has passed and if a defendant pleads the statute as a defence. In such circumstances the statute provides an absolute defence to that particular action.

Whilst that judgment dealt with the case of delay after the institution of proceedings within the applicable period of limitation the court is satisfied that it represents a correct analysis of the effect of the Statute of Limitations and adopts it for the purpose of this decision.

It clearly is inconsistent with the proposition that the effect of a statutory time limit is an invasion of the right to sue and therefore of the constitutional right of access to the courts.

Counsel for the Attorney General has in this case submitted that the true legal effect of s. 11 of the Act of 1957 is to restrict the right of a person to litigate which he accepts would be an unenumerated constitutional right. In the decision of this Court in O’Brien v. Keogh [1972] IR 144 pronounced by Ó Dálaigh CJ the right of an infant to maintain an action for damages for personal injuries caused by the negligent driving of a motorcar was similarly identified where at p. 155 of the decision he states:

Counsel for the Attorney General was right to concede that the right to litigate claims was a personal right of the citizen within Article 40 of the Constitution.

Interpreting the right to litigate in the case of a plaintiff at least, as the right to achieve by action in the courts the appropriate remedy upon proof of an actionable wrong causing damage or loss as recognised by law, this Court would accept both this analysis of the right which the plaintiff claims to have been invaded and the fact that it must constitute an unenumerated personal constitutional right.

As such it attracts the protection of Article 40.3.1° of the Constitution which provides:

The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

It was asserted on behalf of the plaintiff that in addition to being a personal right the plaintiff’s right to litigate was a property right and as such also attracted the protection of Article 40.3.2° of the Constitution which provides:

The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.

In the decision of this Court in O’Brien v. Keogh not only as has been mentioned was ‘the right to litigate’ identified as an unenumerated personal right but it was also apparently identified, though not expressly, as a property right where at p. 156 of the decision it was stated as follows:

The plaintiff’s second submission raises a more serious problem. Has the State in the provision which it has made with regard to infant citizens protected, as best it may, from unjust attack and, in the case of injustice done, vindicated the property rights of such citizens?

Furthermore, in that case the question as to whether the ultimate decision of the court condemning the impugned statutory provisions depended upon their invasion of the constitutional personal rights or property rights of the plaintiff is not resolved by the final declaration which simply states that the subsection ‘fails to match up to the guarantee’ contained in Article 40.3.

In the decision of this Court in O’Brien v. Manufacturing Engineering Co. Ltd [1973] IR 334 pronounced by Walsh J the right to pursue a cause of action at common law appears to have been accepted as a personal right and was expressly accepted as a property right, cf. pp. 366–7.

In Moynihan v. Greensmyth [1977] IR 55 O’Higgins CJ in pronouncing the decision of this Court drew attention to an apparent incompatibility between the decisions in the two O’Brien cases which have just been referred to and the decisions in Foley v. Irish Land Commission [1952] IR 118 and Attorney General v. Southern Industrial Trust Ltd (1957) 94 ILTR 161.

On the facts of this case, neither counsel for the plaintiff nor counsel for the defendants have been able to point to any material difference in the constitutional protection which would apply to this right to litigate if it were on the one hand considered to be exclusively an unenumerated personal right or on the other hand if it were considered to be exclusively a constitutional property right or indeed if it were considered to be both. The court is satisfied that no such difference exists on the particular facts and having regard to the particular rights involved in this case and it is neither necessary nor appropriate therefore in this decision to reconcile or adjudicate upon the apparent inconsistencies to which attention has been drawn. It may well indeed be that this controversy may remain academic as is suggested at p. 1064 of the third (1994) edition of Kelly on The Irish Constitution .

It has been agreed by counsel and in the opinion of the court quite correctly agreed that the Oireachtas in legislating for time limits on the bringing of actions is essentially engaged in a balancing of constitutional rights and duties. What has to be balanced is the constitutional right of the plaintiff to litigate against two other contesting rights or duties, firstly, the constitutional right of the defendant in his property to be protected against unjust or burdensome claims and secondly, the interest of the public constituting an interest or requirement of the common good which is involved in the avoidance of stale or delayed claims.

 

The court is satisfied that in a challenge to the constitutional validity of any statute in the enactment of which the Oireachtas has been engaged in such a balancing function, the role of the courts is not to impose their view of the correct or desirable balance in substitution for the view of the legislature as displayed in their legislation but rather to determine from an objective stance whether the balance contained in the impugned legislation is so contrary to reason and fairness as to constitute an unjust attack on some individual’s constitutional rights.

It is in accordance with these principles that the court approaches the ultimate task of deciding upon the constitutional validity of these impugned statutory provisions.

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 Ireland apparently both before and after the Act of Union and have continued from 1922 up to the present, cf. judgment of Griffin J in Hegarty v. O’Loughran [1990] 1 IR 148; [1990] ILRM 403 at p. 157/411.

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.

The counter balance to these objectives is the necessity as far as is practicable or as best it may for the State to ensure that such time limits do not unreasonably or unjustly impose hardship. Any time limit statutorily imposed upon the bringing of actions is potentially going to impose some hardship on some individual. What this Court must do is ascertain whether the extent and nature of such hardship are so undue and so unreasonable having regard to the proper objectives of the legislation as to make it constitutionally flawed.

It has been suggested that the facts of this case are almost unique and that what is described as a saver inserted in the time limiting provisions to meet those facts would if it had been inserted make no significant difference to the protection which the Act of 1957 affords to potential defendants.

It has also been suggested that the jurisdiction of the courts as laid down in Ó Domhnaill v. Merrick [1984] IR 151; [1985] ILRM 40 and Toal v. Duignan [1991] ILRM 135 and 140 to dismiss as unconstitutionally unjust, claims which are brought even within a statutory permitted time but which are in fact grossly delayed is a ‘safety net’ to protect the defendant sufficient to permit of a saver to protect the plaintiff who within the statutory time limit is unaware of his right of action. Such a ‘saver’ it is urged would not in any way significantly diminish the certainty or finality of the time limit.

The court does not accept that either of these contentions is of such strength as would make an inflexible time limit of six years for breach of contract and tort causing damage other than personal injuries clearly unconstitutional.

The period of six years is objectively viewed as a substantial period. Historically, it has remained unchanged for this type of action since the Common Law Procedure (Ireland) Act of 1853 and no shortening of it has been legislatively created notwithstanding the very significant increase in literacy, understanding of legal rights and sophistication which has as a matter of common knowledge occurred in the years since that time.

The Act of 1957 contains in Part III thereof extensions of the periods of limitation in cases of disability, acknowledgement, part payment, fraud and mistake. These extensions constitute a significant inroad on the certainty of finality provided by the Act.

The right of a defendant having been sued within a permitted time limit to plead a gross or unreasonable delay sufficient to lead to the dismiss of the action against him as an exercise by the courts of its inherent jurisdiction renders him much less secure and much less protected against loss than a fixed time limit subject to the extensions only which are already contained in the Act of 1957. To mount such a plea in an action of substance is a burdensome and expensive process leading as it has done in some of the cases which have been decided by this Court to a trial in the High Court and an appeal to this Court. The time scale of such proceedings is quite extensive and the period of anxiety and uncertainty for the defendant even if eventually he or she is successful will frequently be very great. Unless in cases which may not be frequent where the plaintiff has substantial assets such a proceeding which the defendant must mount to protect his position will be done completely at his own expense.

These considerations are but some of the matters which the Oireachtas could properly consider in reaching a decision which is the real nub of this case as to whether it should or should not add to the grounds of extension of limitation periods already contained in the Act of 1957 a ground of discoverability of the cause of action. Together with those considerations of course must go the consideration of examples of injustice such as appear to have occurred in this case.

For the Oireachtas to reach a decision either to add or not to add to the extensions of limitation periods contained in Part III of the Act of 1957 an extension relating to discoverability with regard to this particular time limit imposed by that Act, is a decision which in the view of this Court can be supported by just and reasonable policy decisions and is not accordingly a proper matter for judicial intervention.

It has not therefore been established to the satisfaction of the court that s. 11(1)(a) or s. 11(2)(a) of the Statute of Limitations 1957 is inconsistent with the Constitution and this appeal must accordingly be dismissed.

O’FLAHERTY J

(Finlay CJ, Egan, Blayney and Denham JJ concurring) delivered his judgment on 26 July 1994 saying: This judgment is concerned with the dismiss of the plaintiff’s claim for damages for negligence brought against the third and fourth named defendants (‘Moylans’) who were the solicitors for the vendor in the transaction in question and who had supplied to the plaintiff information — inaccurate information according to him — as regards the title to the premises 8 Annabella Terrace, Mallow.

Without calling on counsel for Moylans, the court intimated in the course of the hearing that the appeal of the plaintiff against Moylans should be dismissed.

I now set out the reasons why the appeal should be dismissed. It is pertinent to reiterate the function of this Court in reviewing findings of fact made by a High Court judge. The relevant principles have been outlined by this Court in the recent decisions: Hay v. O’Grady [1992] 1 IR 210; [1992] ILRM 689 and Best v. Wellcome Foundation Ltd [1993] 3 IR 421; [1992] ILRM 609 at pp. 482–3/642–3. The jurisdiction of this Court in reviewing findings of primary fact made by a trial judge is confined to determining whether the findings made are supported by credible evidence.

It was pleaded on behalf of the plaintiff in the statement of claim delivered on his behalf that he had a long standing personal and professional relationship with the Moylans, father and son, that is Richard Moylan and John Moylan. It is clear that the firm had acted for him in recent ejectment proceedings, for example.

The plaintiff attended on Mr John Moylan to ascertain the nature of the title to the premises. It was pleaded that Mr Moylan informed the plaintiff that the title in question was freehold title subject to a ground rent but that he explained that the grounds upon which the house was built were owned by a third party but that the house itself would be the property of the plaintiff. Having been asked by the manager of the branch of Allied Irish Bank plc at Mallow to ascertain details of the title it was pleaded, further, that the plaintiff visited Mr Moylan’s office again on 15 September 1978 and repeated his request for information concerning the title; that Mr Moylan again informed the plaintiff that the title was freehold title subject to a ground rent of £40 per annum for 99 years from 1923. In giving the said advice and information to the plaintiff it was pleaded that Mr Moylan was under a duty to exercise all due professional care, skill and diligence as well as having a fiduciary duty to represent accurately to the plaintiff the type of title which was the subject matter of the said sale particularly having regard to the trust and confidence which the plaintiff reposed in Mr Moylan, which trust and confidence was well known to Mr Moylan. Further, it was pleaded that Mr Moylan was fully aware that the plaintiff was borrowing money from the AIB for the purpose of completing the said purchase and was relying upon the information and advice which Mr Moylan gave to the plaintiff.

The statement of claim went on to plead that in giving the said advice and information to the plaintiff Mr Moylan was guilty of negligence and breach of duty in that the said title was not in fact a freehold title subject to a ground rent, but was on the contrary a leasehold interest only for a term of 99 years from 1 October 1919 at a yearly rent of £42.50. In advising and informing the plaintiff as aforesaid, it was pleaded that Mr Moylan negligently and in breach of duty omitted to make due and proper inquiries as to the nature of the said title or misunderstood the nature of the said title.

It is clear that there was a sharp conflict of evidence between the plaintiff and Mr Moylan as to what was said at the two meetings.

The learned trial judge with characteristic lucidity summarised this aspect of the case as follows:

The plaintiff called into Moylans first either on 14 or 15 September 1978 and spoke to Mr John Moylan. He then called to his bank and spoke to the manager who sent him back to Mr John Moylan to clarify as to whether the interest for sale was freehold or leasehold. The plaintiff called back to Mr John Moylan and had a further conversation with him and then returned to his bank manager and the application form was filled in by the manager at paragraph 8 thereof as follows:

Freehold. Ground Rent £40 p.a. for 99 years from 1923.

These conversations between the plaintiff and Mr John Moylan and the bank manager all took place either on 15 September 1978, the date of the loan application form, or the first one or two of them may have taken place on 14 September and the remaining conversations on 15 September 1978.

There is a sharp difference of recollection as to the content of the two conversations between the plaintiff and Mr John Moylan. The plaintiff says that on the first occasion Mr John Moylan told him that the title was a ground rent: he asked what that meant and was told that the ground was owned by Mrs Purcell but the house would always be his: he asked what would happen when the 99 years expired and was told there would be an increase in the ground rent. The plaintiff says that having been sent back by the manager Mr John Moylan told him that the title was freehold with a ground rent of £40 per annum for 99 years from 1923 and the plaintiff further says that he wrote this down in the presence of Mr John Moylan in a notebook which he kept for reminding himself of matters to be attended to mainly in connection with his practice as a veterinary surgeon.

Mr Moylan says that he was quite familiar with the title to the houses in Annabella Terrace in Mallow and he has no doubt that he told the plaintiff that the title was leasehold and moreover that he did not mention a ground rent. He says he would never have said that the ground belonged to Mrs Purcell but that the house would be the plaintiff’s and he further denied that the plaintiff wrote in his presence in the notebook produced. He was emphatic that he could not possibly have told the plaintiff twice that the title was freehold with his familiar knowledge of it as a leasehold litle. He was also emphatic that the entry in the plaintiff’s notebook is legal nonsense insofar as it refers both to a freehold and a term of 99 years from 1923 and moreover is wrong in its reference to freehold in the amount of the rent and in the year from which the 99 year term ran.

I interpose here to set out Mr Moylan’s full response in relation to this aspect of the case:

I could not under any circumstances have given that information; it is absolute nonsense; it means nothing. The amount of rent is wrong, the date of commencement of the lease is wrong and, most importantly, as far as I am concerned anyway, my Lord, it is legal nonsense to say it is freehold subject to a rent for ninety-nine years. The only freehold subject to [the] rent which I am aware of was a [fee] farm rent. I was perfectly well aware that this property was not held as a fee farm rent title.

The learned trial judge continued:

As regards the entry in the plaintiff’s notebook I am not satisfied that this was written in Mr John Moylan’s presence as the plaintiff believes and gave evidence. His recollection is wrong. The entry is squeezed in at the bottom of a page in the notebook in a space equal to three lines. On the next three pages there are notes regarding the then pending ejectment proceeding by the First National Building Society against the plaintiff in relation to the flat then occupied by the plaintiff at 49 Bank Place, Mallow. Those proceedings terminated on 12 September 1978 that is to say some two or three days before the plaintiff’s conversations with Mr John Moylan. If the plaintiff were noting down what Mr John Moylan was saying as he was speaking the plaintiff would have no idea as to how long his note might extend and would therefore have noted the conversation at the end of the then entries in the notebook with unlimited pages to accommodate a full note of what Mr Moylan would tell him regarding the title.

I think the probabilities are that the plaintiff’s note is a copy of the entry on the loan application form and not vice versa. The bank manager made no mention of seeing the notebook on either occasion much less copying the entry on the loan application form from the notebook. The plaintiff completely misunderstood what Mr Moylan had told him about the title. He went back to the manager and persuaded him that the appropriate entry on the loan application form was as already quoted in this judgment and which is as Mr John Moylan said legal nonsense. In this connection it is important to observe that there is no reference to rent simpliciter on the loan application form, even though at paragraph 8 of the form a leasehold title is contemplated as well as freeholds. There is a space immediately following a statement that a title is leasehold title for entering the amount of the ‘ground rent’ and not just ‘the rent’. It is from paragraph 8 of the loan application form that the plaintiff got the term ‘ground rent’ firmly fixed in his mind in relation to his conversation with Mr John Moylan.

It is worth describing exactly the relevant entry at paragraph 8 of the loan application form. First there are printed the words ‘freehold/leasehold’ and then follows a blank space. The word ‘freehold’ was originally crossed out by the manager leaving ‘leasehold’ standing. When the plaintiff returned after speaking to Mr John Moylan the second time the manager crossed out the word ‘leasehold’ and wrote in his own handwriting ‘freehold’ in the blank space.

Then come the printed words ‘ground rent £’ and in the blank space following there is typed 40. Then there is printed ‘P.A. for’ and in the blank space following is typed ‘99’. Then there is printed ‘years from’ and in the blank space following is typed ‘1923’.

Thus the line in paragraph 8 of the loan application form reads as already quoted:

Freehold — Ground Rent £40 P.A. for 99 years from 1923.

The entry as written by the plaintiff into his notebook reads:

Freehold — ground rent £40 per annum for 99 years from 1923.

Save that the words ‘per annum’ are written in full instead of the abbreviation ‘P.A.’ on the printed form the entry in the notebook is identical with the entry on the form. If the entry on the form were copied from the notebook it would be rather a coincidence that the order of the printed entries should have followed so conveniently and exactly the order in the notebook. There is no coincidence in the order in the notebook following the order on the form if the entry in the notebook were copied from the form and in that event it would be clear that the entry could be conveniently fitted into the three line space at the bottom of the page in the notebook preceding the entries about the ejectment proceedings from the flat at 49 Bank Place which clearly predated this entry in the notebook.

This case provides a classic example of the perils of hearsay evidence. The plaintiff purported to tell the bank manager what Mr John Moylan had told him as to the title and the manager accepted that and made what he thought were the appropriate though in fact garbled entries in the loan application form which then were copied back into his notebook by the plaintiff at some date not appearing from the evidence. What a pity that the bank manager did not short circuit the hearsay process by himself telephoning Mr John Moylan and getting the information at first hand.

By the time the bank through their legal department realised the unsatisfactory nature of the title which they had acquired as security their £16,800 had long since been lent and spent and all that they could do was to sit tight and hope for the best. It is little wonder that they appeared to be so helpful and accommodating to the plaintiff in arranging the payment off by him of the mortgage on No. 8 Annabella Terrace so that the only debt now owing by the plaintiff to them is well secured by a mortgage of Bearforest.

The plaintiff under cross-examination by counsel for Moylans stated for the first time that on one of the two occasions when he spoke to Mr John Moylan Mr Moylan looked up a textbook. Mr John Moylan strongly denied that this occurred and I think it is significant that the plaintiff made no mention of this allegation in examination in chief or in cross-examination by counsel for Mr Courtney. Not that looking up a textbook proves anything in particular but I presume that the plaintiff was implying that Mr John Moylan was not sure of the title and had to consult a textbook before telling the plaintiff what was its nature.

I am satisfied that the plaintiff did not properly understand what he was told by Mr John Moylan and believes that he was told as he stated in evidence. I am not satisfied that Mr Moylan who had sent off the contract to Mr Courtney with the title and interest for sale clearly and correctly stated thereon together with the actual title documents themselves on 13 September 1978 either the very day before or just two days before his conversations with the plaintiff misdescribed the title in the manner alleged or at all.

That being so the plaintiff’s claim against Moylans fails and must be dismissed.

In appealing against the finding of the High Court judge in this regard, counsel for the plaintiff makes the point that Moylans had acted for the plaintiff on a number of occasions in the past and that this was not adverted to in the judgment. But, in short, his submission (as well as the grounds of appeal lodged) amounts to this: that the learned trial judge wrongly preferred the evidence of John Moylan to the evidence of the plaintiff.

In my judgment, this case boils down fairly and squarely to a question of who was to be believed. The judge came to the conclusion that John Moylan was to be believed and he had good grounds for holding that he should be believed if for no other reason than that within a day or two before these meetings with the plaintiff Mr Moylan had prepared the contract and the documents of title in respect of the premises in debate all of which were found to be correct. As well as that, it is impossible to escape the conclusion that for Mr Moylan as a highly qualified solicitor to describe a premises as freehold but subject to a rent was ‘legal nonsense’ (aside from a fee farm grant to which the premises were not subject and to which Mr Moylan had adverted in the extract quoted from his evidence, above). Then there was the matter of the notebook entry.

In this case far from there being any doubt about the entitlement of the judge to prefer the evidence of Mr Moylan the surrounding circumstances overwhelmingly point to the correctness of his finding, in particular, having regard to the matters corroborating the correctness of Mr Moylan’s testimony that I have already indicated.

For these reasons, the plaintiff’s appeal as against the Moylans should stand dismissed.

 

McDonnell v. Ireland

[1998]
1 I.R. McDonnell v. Ireland
Carroll J. 137
H.C.

Thomas Hunter Ltd. v. James Fox & Co. Ltd. [1966] I.R. 520.
Tuohy v. Courtney [1994] 3 I.R. 1.

Carroll J.
19th January, 1996

The plaintiff was born on the 8th July, 1946, in Gibbstown Gaelteacht, County Meath. He joined the postal service at age sixteen, on the 9th October, 1963, as a postal clerk grade B. He became a fully established civil servant on the 6th April, 1964. In 1971 he transferred to Navan. On the 23rd May, 1974, he was arrested and charged with membership of the I.R.A. He was served with notice of suspension from duty the same day. He was tried on the 30th May, 1974, convicted by the Special Criminal Court and sentenced to one year imprisonment. He served nine months and was released on the 20th February, 1975. On conviction he was informed by letter dated the 3rd July, 1974, that he hadforfeited his position in the civil service under s. 34 of the Offences Against the State Act, 1939, with effect from the 30th May, 1974. He applied on the 12th March, 1975, to be reinstated in his former position, but he was informed on the 1st May, 1975, that his application could not be favourably considered. The letter referred to the notification given on the 3rd July, 1974, that he had forfeited his position in the public service as a result of his conviction. He worked at various jobs and then with his brother, a butcher in Navan. He has now taken over his brother’s shop in Navan on his own account.
After the establishment of the fourth defendant in 1984, the plaintiff wrote on the 27th March, 1984, to the chief executive officer applying for reinstatement, and saying he had not been involved for a considerable length of time in any political activities. The secretary of the fourth defendant replied on the 10th May, 1984, to say he had automatically forfeited his position with the Department of Posts and Telegraphs on conviction by the Special Criminal Court. He said he was not designated for the fourth defendant under s. 45 of the Postal and Telecommunications Services Act, 1983, by the Minister, and he said it was not possible to take him into the employment of the fourth defendant.
The next thing that happened was that the Supreme Court decided on the 11th July, 1991, in Cox v. Ireland [1992] 2 I.R. 503, that s. 34 of the Offences Against the State Act, 1939, was unconstitutional. Following that case, the plaintiff consulted a solicitor and issued these proceedings on the 1st October, 1991, that is, over sixteen and a half years after the purported forfeiture. The plaintiff claims that the purported dismissal was unconstitutional and of no legal effect. He claims damages from the first defendant for loss and damage occasioned to him in consequence of the breach of his constitutional rights resulting from the operation of the section, i.e. loss of income from the 23rd February, 1975, to date, and pension and gratuity entitlements.
The first three defendants deny the plaintiff’s allegations, and by way of special objection claim that no claim lies against them by reason of s. 2 of the Postal and Telecommunications Service (Amendment) Act, 1984, and that they should be discharged, and without prejudice they claim the plaintiff’s claim is statute barred, or alternatively the plaintiff is guilty oflaches.
The fourth defendant, An Post, while denying the plaintiff’s allegations, pleads that he was not designated by the Minister for employment by the fourth defendant, and that the fourth defendant did not exist in law until incorporated by virtue of the Postal and Telecommunications Services and Amendment Act, 1983, and it should be discharged. Without prejudice, it claims that the plaintiff’s claim is statute barred under the Statute of Limitations, 1957, or alternatively, the plaintiff is guilty oflaches.
The essence of the plaintiff’s argument is that he never ceased to be an established civil servant. Section 34 was unconstitutional ab initio – see Murphy v. The Attorney General [1982] I.R. 241 per Henchy J. at p. 313, therefore the section never operated and he never automatically forfeited his office as a civil servant.
The declarations sought in the general endorsement of claim are –
(1) that the purported termination of the plaintiff’s contract of employment with the third defendant was unconstitutional and void, and
(2) that the refusal of the third and fourth defendants to pay the plaintiff full incremental payments, superannuation, and other pension benefits, is unconstitutional and void.
Counsel for the plaintiff said the Statute of Limitations might apply to his capacity to recover his salary whether as monies due under a statute or as damages for breach of constitutional rights. He says the claim for declaration is not a claim for equitable relief, but a claim which must be granted ex debito justitiae. The Minister for Posts and Telegraphs ought to have designated the plaintiff under s. 41 (1) (a) to be an employee of the fourth defendant. Since he failed to do so, the plaintiff has remained an established civil servant.
Counsel for the first three defendants claims that the plaintiff’s claim is statute barred. He claims that even though breach of a constitutional right is not expressly referred to in the Statute of Limitations, it is nevertheless a tort, i.e. a civil wrong for which the normal remedy is an action for unliquidated damages. He cites Tate v. Minister for Social Welfare [1995] 1 I.R. 418, in which I held that the meaning of the word “tort” in the Statute of Limitations, which is not defined and which was sufficiently wide to include breaches of statutory duty, was sufficiently wide to cover breaches of obligation of the State under Community law. I also said such a breach approximates to a breach of constitutional duty.
I see no reason to change the views I expressed in that judgment. In my opinion, it flows logically that s. 11 (2) of the Statute of Limitations applies to breach of a constitutional right in the nature of a tort as it does to breaches of obligations of the State under Community law.
In Murphy v. The Attorney General [1982] I.R. 241 at pp. 313 to 315, Henchy J., allowed that factors such as prescription, waiver, estoppel,laches, a Statute of Limitations, res judicata or other matters, most of which may be proved under the heads of public policy, may debar a person from obtaining redress in courts for injury, pecuniary or otherwise, which would be justicable or redressable if such considerations had not intervened.
In my opinion, the plaintiff’s cause of action arose when he was notified that his position as a civil servant was forfeited. He failed to take action against the State at that time or even following the refusal by the Minister to reinstate him when he came out of prison. His application to the fourth defendant in 1984 does not affect the matter, and did not serve to revive any claim then barred. The right to apply after seven years for reconsideration given by s. 34 (5) of the Offences Against the State Act, 1939, was with the rest of that section void ab initio. The plaintiff had no contract with the fourth defendant and the fourth defendant was not obliged to employ him under s. 45 (1) of the Act of 1983 as he was not designated by the Minister.
There is merit in counsel for the plaintiff’s argument that the forfeiture was inoperative, but the argument applies only for as long as the cause of action is not barred. Once the cause of action was barred, the de factoforfeiture, which was an act done on foot of an unconstitutional law, became immune from suit. It follows that the plaintiff is not entitled to the declarations sought. It would be futile to make any declaration since no consequences could flow from it. Since the Statute of Limitations applies, laches does not arise.
With regard to the position of the fourth defendant, in my opinion there is no cause of action against it. As I have already said, the fourth defendant was not obliged to employ the plaintiff. The claim by the first three defendants, that the fourth defendant is liable under s. 2 (1) of the Act of 1984 does not stand up to examination. The purported automatic forfeiture of the plaintiff’s position as a civil servant in 1974, under s. 34 of the Offences Against the State Act, 1939, before vesting day, could not be described as the exercise of a function assigned to the fourth defendant. No exercise of any function was involved. The Offences Against the State Act, 1939, provided for automatic forfeiture. Therefore, in my opinion, the fourth defendant is successful in its plea. It has no liability to the first three defendants under s. 2 (1) of the Act of 1984 in respect of the application of the unconstitutional section. The plaintiff is barred by the Statute of Limitations, and in any event, the fourth defendant has no liability to him. Notice of appeal was filed on the 8th February, 1996. The appeal was heard by the Supreme Court (Hamilton C.J., O’Flaherty, Barrington, Keane and Barron JJ.) on the 10th April, 1997.
Eoghan Fitzsimons S.C. (with him EamonnCoffey ) for the plaintiff: The plaintiff’s claim is based on breach of his constitutional rights. The defence alleges that the claim is statute barred. Sections 10 and 11 of the Act of 1957 deal with the classes of action which were available at the time when the statute was enacted and there was no mention of a constitutional action. It was only established that a plaintiff could sue for breach of constitutional rights in Meskell v. Coras Iompair Éireann .The Statute of Limitations only limits rights from the day they were established which in this case was following the decision in Cox v. Ireland. The plaintiff is still a civil servant.
Hamilton C.J.
23rd July, 1997

I agree with the judgments about to be delivered.

O’Flaherty J.
I have read in advance the judgment that Keane J. will deliver and I agree with his reasons for holding that the appeal should be dismissed.

Like Keane J., I have difficulty in understanding what cause of action the plaintiff seeks to assert. As Keane J. will recount: during a time when the plaintiff was employed as a post office worker, he was also a member of an unlawful organisation. Even aside from the provisions of s. 34 of the Offences Against the State Act, 1939 (the Act of 1939) the Minister, on his release from prison, was most unlikely to have restored him to his previous employment. What the Court held in Cox v. Ireland [1992] 2 I.R. 503, in striking down s. 34 was that its provisions were impermissibly wide and indiscriminate. The Court did not proclaim anything as absurd as that the State is not entitled to protect itself in the case of those that it employs. Quite the contrary: as Finlay C.J., for the Court said at p. 522:-
“The Court is satisfied that the State is entitled, for the protection of public peace and order, and for the maintenance and stability of its own authority, by its laws to provide onerous and far-reaching penalties and forfeitures imposed as a major deterrent to the commission of crimes threatening such peace and order and State authority, and is also entitled to ensure as far as practicable that amongst those involved in the carrying out of the functions of the State, there is not included persons who commit such crimes.”
In any event, since the provision was in place when the plaintiff was prosecuted on the 30th May, 1974, he cannot now avail of its extirpation as giving him a cause of action. This is established in both the majority judgments, as well as in the minority judgment, of the Court in Murphy v. The Attorney General [1982] I.R. 241.
It will be recalled that in that case O’Higgins C.J., in his minority judgment, concluded th at under the Constitution a declaration as to the invalidity of a law or any provision thereof can only operate from the moment such invalidity is declared in the High Court or in the Supreme Court. He went on to hold that the requirement of an ordered society would have inclined his mind to such a conclusion aside altogether from his interpretation of the express provisions of the Constitution. The idea that a declaration of invalidity operated to say that the provision was void ab initio”would provide . . . the very antithesis of a true social order – an uneasy existence fraught with legal and constitutional uncertainty”.
The approach of the majority in Murphy v. The Attorney General [1982] I.R. 241, while holding that declarations of invalidity of legislation worked to make the impugned legislation void ab initio, produced more or less the same result. It was held that the plaintiff s were not entitled to recover tax paid by them for any period prior to the tax year 1978/1979, which was the tax year in respect of which the constitutionality of those sections was first effectively impugned. Since a claim had not been formulated by any other taxpayer impugning the sections in question or seeking the recovery of any taxes collected under them
“. . . in the events that have happened and for the reasons given in this judgment, no taxpayers other than the plaintiffs would have the standing necessary to maintain a claim that the State should reimburse them for any taxes collected under the condemned sections”, per Henchy J. at p. 324.
Griffin J. concurred in this view at p. 331:-
“When a statute has been declared to be voidab initio, it does not necessarily follow that what was done under and in pursuance of the condemned law will give to a person, who has in consequence suffered loss, a good cause of action in respect thereof. Notwithstanding the invalidity of the statute under which such act was done, the courts recognise the reality of the situation which arises in such cases, and that it may not be possible to undo what was done under the invalid statute – as it was put so succinctly during the argument, ‘the egg cannot be unscrambled’. In regard to this aspect of the case, and the plaintiffs’ right to recover the sums collected from them in excess of those which should properly have been collected from them if their incomes had not been aggregated, I have had the advantage of reading in advance the judgment of Mr. Justice Henchy and I agree with his conclusions and the reasons which he has stated therefor.”
The correct rule must be that laws should be observed until they are struck down as unconstitutional. Article 25.4.1 of the Constitution provides that:
“Every Bill shall become and be law as on and from the day on which it is signed by the President . . .”
and that, unless the contrary is expressed, that law is effective from that day forth. Following signature by the President, a public notice is published inIris Oifigiúil stating that the Bill has become law; (Article 25.4.2).
From that date, all citizens are required to tailor their conduct in such a way as to conform with the obligations of the particular statute. Members of society are given no discretion to disobey such law on the ground that it might later transpire that the law is invalid having regard to the provisions of the Constitution. Every judge on taking office promises to uphold “the Constitution and the laws”; the judge cannot have a mental reservation that he or she will uphold only those laws that will not someday be struck down as unconstitutional. We speak of something ashaving “the force of law”. As such, the law forms a cornerstone of rights and obligations which define how we live in an ordered society under the rule of law. A rule of constitutional interpretation, which preserves the distinct status of statute law which, as such, is necessitated by the requirements of an ordered society and by “the reality of situation” (to adopt Griffin J.’s phrase), should have the effect that laws must be observed until struck down as unconstitutional. The consequences of striking down legislation can only crystallise in respect of the immediate litigation which gave rise to the declaration of invalidity. This is what occurred in Murph y v. The Attorney General [1982] I.R. 241 as well as in Cox v. Ireland [1992] 2 I.R. 503.
As regards the applicability of the Statute of Limitations, and the declaration sought by the plaintiff that he is still a civil servant, I am in total agreement with the judgment of Keane J. and have nothing to add on these points.

Barrington J.
The plaintiff
This is an appeal against the order of Carroll J. made herein on the 19th January, 1996, dismissing the plaintiff’s claim.
The plaintiff was employed by the former Department of Posts and Telegraphs as a clerk and became a fully established civil servant on the 6th April, 1964. As such he held office “at the will and pleasure of the Government” but in fact, could only be removed from office by the Government. He could only cease to be an established civil servant by dying, or resigning, or retiring, or abandoning his office or being removed by the Government or by forfeiting his office under some statutory provision.
On the 30th May, 1974, the plaintiff was convicted by the Special Criminal Court of membership of the I.R.A. and was sentenced to twelve months imprisonment. He was released after serving nine months of this term.
The I.R.A. is a subversive organisation pledged to overthrow the Government and, no doubt, the Government had ample grounds to dismiss the plaintiff from their service. They did not however do so. Instead the plaintiff w as informed that, consequent upon his conviction,his office had been forfeited pursuant to the provisions of s. 34 of the Act of 1939.
In 1975, the plaintiff applied for reinstatement but was again confronted by section 34. In 1984, on the formation of the fourth defendant An Post, the plaintiff applied for employment with it, but was informed that having forfeited his office under s. 34 of the Act of 1939 he was not an official of the Department of Post and Telegraphs designated for appointment to the fourth defendant pursuant to the provisions of s. 45 of the Postal and Telecommunications Services Act, 1983.
On the 11th July, 1991, the Supreme Court found s. 34 of the Act of 1939 invalid having regard to the provisions of the Constitution.
On the 1st October, 1991, the plaintiff instituted the present proceedings.
The law
On these facts a number of legal questions arise. The first is the effect of the Supreme Court decision in Cox v. Ireland [1992] 2 I.R. 503, ruling s. 34 of the Act of 1939 invalid. Counsel on behalf of the plaintiff submits that the effect of the decision was to find s. 34 of the Act of 1939 invalid ab initio. This was the view of the majority of the Supreme Court in Murphy v. The Attorney General [1982] I.R. 241 and I respectfully agree. The wording of Article 15.4 of the Constitution appears to me to put the matter beyond doubt. Section 4 reads as follows:-
“1. The Oireachtas shall not enact any law which is in any respect repugnant to this Constitution or any provision thereof.
2. Every law enacted by the Oireachtas which is in any respect repugnant to this Constitution or to any provisions thereof, shall, but to the extent only of such repugnancy, be invalid”.
It appears to me that this can only be read as meaning that the relevant provision can never become a valid law because of it’s repugnancy to the Constitution.
Henchy J. put the matter forcefully in his judgment in Murphy v. The Attorney General [1982] I.R. 241, when he stated (at p. 313):-
“For all the foregoing reasons I am satisfied that the argument suggesting that it is for the Courts to say whether a statute or statutory provision, which has been held to have been enacted in breach of a constitutional limitation of the legislative power of the Oireachtas, should be held invalid prospectively or with only limited retrospectivity cannot prevail. Such enactments are, and have been consistently held to be, invalid from the time of their purported enactment because the Constitution, truly read and duly accorded the necessarily implied consequences of a breach of its legislative limitations, so ordains. Examples to the contrary, derived from the practice under other constitutions such as the United States of America, which depend on different constitutional provisions, different judicial options and different historical considerations cannot in my view, gainsay that conclusion.”
The next question is what was the appropriate relief for the plaintiff to claim. I cannot see that this creates any difficulty. The plaintiff could have done what any person who claims he was wrongfully deprived of an office could do. That is to say he could have sued, inter alia, for a declaration that he was entitled to hold the office, for an order for the payment of his arrears of salary or alternatively for damages for being wrongfully deprived of his office. If the Minister had pleaded s. 34 of the Act of 1939 in his defence, the plaintiff could have served notice on the Attorney General and claimed that s. 34 was invalid having regard to the provisions of the Constitution.
The plaintiff’s problem is that he did not do this. A point arrived in May, 1980, when the plaintiff’s claim insofar as it was based on tort or breach of duty became statute-barred and in so far as it claimed equitable relief became liable to be defeated by a plea oflaches.
Neither the plaintiff nor his superiors can be blamed for presuming that s. 34 of the Act of 1939 did not violate the Constitution. Counsel for the plaintiff submits that it would be unfair to invoke the doctrine of laches against the plaintiff who left school at the age of sixteen and could hardly, therefore, be expected to know his constitutional rights. On the other hand, the plaintiff had become a clerk in the public service and at the date of his conviction was under consideration for promotion. Later, he entered the butchering business and came to run his own butcher’s shop. So there can be no question of his being under any form of disability.
Confronted with these difficulties the plaintiff’s legal advisers have drafted an ingenious statement of claim which does not claim any declarations or any relief at common law. Instead it claims damages for alleged breach of the plaintiff’s constitutional rights. The constitutional rights alleged to have been infringed by the matters referred to are the plaintiff’s right to earn a livelihood and his property rights. Certain declarations had been sought in the endorsement on the plenary summons and the fact that these are dropped from the relief claimed in the statement of claim can hardly be accidental.
The gist of the plaintiff’s claim is that the Statute of Limitations does not apply to claims based on constitutional rights. The reason for this may be, the plaintiff’s claim, that while the Statute of Limitations dates from 1957 the first case in which damages for breach of constitutional rights were expressly awarded ( Meskell v. Coras Iompair Éireann [1973] I.R. 121) was not decided until 1972.
I do not think it is necessary to decide, for the purposes of th is case, whether all breaches of constitutional right are torts within the meaning of the Statute of Limitations. No doubt the terms have been used as interchangeable by judges when the distinction was not of any very great importance. No doubt also there have been cases where the common law provided no adequate remedy for breach of constitutional rights and where the courts have been prepared to fashion a remedy on the principle of ubi jus ibi remedium. Walsh J. said in Byrne v. Ireland [1972] I.R. 241 at p. 281:-
“Where the People by the Constitution create rights against the State or impose duties upon the State, a remedy to enforce these must be deemed to be also available.”
The same judge in Meskell v. Coras Iompair Éireann [1973] I.R. 121 at p. 132 put the matter as follows:-
“It has been said on a number of occasions in this Court, and most notably in the decision in Byrne v. Ireland [[1972] I.R. 241] that a right guaranteed by the Constitution or granted by the Constitution can be protected by action or enforced by action even though such action may not fit into any of the ordinary forms of action in either common law or equity and that the constitutional right carries within it its own right to a remedy or for the enforcement of it.” (emphasis added).
But in the passages quoted, Walsh J. was dealing with special or exceptional cases where the general body of the law provides no appropriate remedy. In the vast majority of cases legislation or the general body of the law will provide a remedy. When Article 50 of the Constitution carried forward the laws in force in Saorstát Éireann immediately prior to the date of the coming into operation of the Constitution, it presumably included the statutes of limitations and the equitable remedies then in force.
The general problem of resolving how constitutional rights are to be balanced against each other and reconciled with the exigencies of the common good is, in the first instance, a matter for the legislature. It is only when the legislature has failed in its constitutional duty to defend or vindicate a particular constitutional right pursuant to the provisions of Article 40.3 of the Constitution that this Court, as the court of last resort, will feel obliged to fashion its own remedy. If, however, a practical method of defending or vindicating the right already exists, at common law or by statute, there will be no need for this court to interfere.
It is interesting to recall that during the hearing in Byrne v. Ireland [1972] I.R. 241, the Supreme Court offered to adjourn the case if the Attorney General would give an undertaking that the Government would introduce legislation regulating the citizen’s right to sue the State and that it was only when this undertaking was not forthcoming that the Court proceeded to fashion its own remedy.
There is no doubt that constitutional rights do not need recognition by the legislature or by common law to be effective. If necessary the courts will define them and fashion a remedy for their breach. There may also be cases where the fact that a tort is also a breach of a constitutional right may be a reason for awarding exemplary or punitive damages.
But, at the same time, constitutional rights should not be regarded as wild cards which can be played at any time to defeat all existing rules. If the general law provides an adequate cause of action to vindicate a constitutional right it appears to me that the injured party cannot ask the court to devise a new and different cause of action. Thus the Constitution guarantees the citizen’s right to his or her good name but the cause of action to defend his or her good name is the action for defamation. The injured party, it appears to me, has to accept the action for defamation with all its incidents including the time limit within which the action must be commenced. Likewise the victim of careless driving has the action for negligence by means of which to vindicate his rights. But he must, generally, commence his action within three years. He cannot wait longer and then bring an action for breach of his constitutional right to bodily integrity.
So with the present plaintiff. If the State had purported to forfeit his office without having authority to do so, the law offered him a relief. But he could not wait indefinitely before claiming this relief particularly as the case was one concerning an office holder. This is so because in such a case the situation does not remain the same. An innocent third party may be appointed to the office. Moreover, had the plaintiff’s claim been successful, the Government might have wished to consider the question of dismissal. In fact, the situation changed radically with the establishment of the fourth defendant in 1983. In the unlikely event of the plaintiff’s claim still subsisting as a validly enforceable claim in 1983, it changed radically then. In 1983, the right of an office holder in the old Department of Posts and Telegraphs was changed into a right to be designated by the Minister for Posts and Telegraphs for employment by the fourth defendant. Even therefore had the plaintiff’s claim to be an office holder in the fourth defendant subsisted in 1983, it was then changed into a claim against the Minister to be designated for employment by the fourth defendant. That claim, if it ever existed, was out of time on the 1st October, 1991, when the plaintiff instituted the present proceedings.
In these circumstances I would dismiss the plaintiff’s appeal.

Keane J.
The plaintiff, who at the time of the hearing in the High Court, was aged 47, joined the postal service at the age of 16 and, on the 6th April, 1964, became an established civil servant in what was then the Department of Posts and Telegraphs. (The statutory functions of the Minister for Posts and Telegraphs are now vested in the third defendant and he and his statutory predecessor are hereafter referred to as “the Minister”). On the 23rd May, 1974, the plaintiff was arrested and charged with an offence under the Offence Against the State Act, 1939, (hereafter “the Act of 1939”) i.e. of being a member of an unlawful organisation, the I.R.A. He was served with notice of suspension from duty the same day, was tried on the 30th May, 1974, convicted by the Special Criminal Court and sentenced to imprisonment for 12 months. He served nine months and was released on the 20th February, 1975.
On the 3rd July, 1974, the plaintiff was informed in writing by the Minister that he had forfeited his position in the civil service under the provisions of s. 34 of the Act of 1939 with effect from the 30th May, 1974. After his release, he applied on the 12th March, 1975, to be reinstated in his former position, but was told on the 1st May, 1975, that his application could not be favourably considered.
After his release from prison, the plaintiff worked in a number of different jobs, but ultimately in 1977, was given employment by his brother who owned a butcher’s shop in Navan. In the same year, the plaintiff got married. His brother has since then moved out of the shop which the plaintiff now rents for his own business as a butcher.
In 1984, when the fourth defendant, An Post, was established, the plaintiff wrote to the chief executive seeking reinstatement. He was informed at that time by the chief executive that he was not the holder of an office designated under s. 45 of the Postal and Telecommunications Services Act, 1983, to be transferred to the fourth defendant. He was also reminded of the forfeiture which had taken place as a result of the operation of s. 34 of the Act of 1939.
I should perhaps point out that under the provisions of s. 34 of the Act of 1939, a person such as the plaintiff who is convicted by a Special Criminal Court of a scheduled offence for the purposes of Part IV of the Act not merely forfeits the office he was holding in the civil service or equivalent body at the time but is also disqualified from holding any similar office for a period of seven years from the date of his or her conviction. That seven year disqualification period had thus expired at the time the plaintiff applied for employment with the fourth defendant.
In Cox v. Ireland [1992] 2 I.R. 503, this Court held that s. 34 of the Act of 1939 was invalid having regard to the provisions of the Constitution, upholding a finding to the same effect in the High Court. The plaintiff, having become aware of that decision, thereupon instituted the present proceedings in which he claims, inter alia, damages from the first defendant in respect of the loss and damage alleged to have been occasioned to him as the result of what are described as the breach of his constitutional rights resulting from the “exercise and implementation” of the relevant statutory provisions. His claim against the first, second and third defendants was dismissed by Carroll J. in the High Court on t he ground that the action was statute barred by virtue of the Statute of Limitations, 1957. The learned judge also held that the fourth defendant was not under any liability to the plaintiff at any stage. The plaintiff has now appealed to this Court against the dismissal of his claim against the first, second, and third defendants.
It was agreed in the High Court that, in the event of the plaintiff being entitled to succeed, the damages to which he would be entitled for loss of earnings and superannuation rights would be in the sum of £198,491.
Section 34 (1) of the Act of 1939, as I have already noted, provides that whenever a person holding an office in the civil service or an equivalent office remunerated from public funds is convicted by a Special Criminal Court of a scheduled offence (such as membership of an unlawful organisation):-
“such person shall immediately on such conviction forfeit such office, employment, place or emolument and the same shall forthwith become and be vacant.”
Sub-section (2) provides that such person shall, immediately upon such conviction, also forfeit any pension or superannuation allowance to which they would otherwise be entitled out of public funds. Sub-section (3) provides for their disqualification from holding any office or employment remunerated from public funds for a period of seven years from the date of the conviction. Sub-section (5) enables the Government, in its absolute discretion, to remit, in whole or in part, any forfeiture or disqualification incurred under the section.
Giving the reasons of this Court in Cox v. Ireland [1992] 2 I.R. 50 3, for holding that these provisions were repugnant to the Constitution, Finlay C.J., having pointed out that they constituted “a major inroad” on the unenumerated constitutional rights of the persons affected to earn their living and also on certain property rights protected by the Constitution, went on at p. 522:-
“The Court is satisfied that the State is entitled, for the protection of public peace and order, and for the maintenance and stability of it own authority, by its laws to provide onerous and far-reaching penalties and forfeitures imposed as a major deterrent to the commission of crimes threatening such peace and order and State authority, and is also entitled to ensure as far as practicable that amongst those involved in the carrying out of the functions of the State, there is not included persons who commit such crimes.
The State must in its laws, as far as practicable, in pursuing these objectives, continue to protect the constitutional rights of the citizen.
The final issue in this case must, therefore, be as to whether the provisions of s. 34, when read in conjunction with the other relevant provisions of the Act of 1939, are established to the satisfaction of the court as constituting a failure of such protection not warranted by the objectives which it is sought to secure
The scheduling of offences pursuant to s. 36 of the Act under the categories of class, kind, or under any particular enactment, of necessity, as has occurred, involves the existence of offences of widely varying seriousness within any individual scheduling. To take but two examples arising from [the Offences Against the State Act, 1939 (Scheduled Offences) Order, 1972] the possession of a single sporting gun in respect of which an annual licence has not been renewed by the owner is an offence under the Firearms Acts, 1925 to 1971, as is also possession of an assault rifle with intent to endanger life. Similarly, the printing for reward of a document, other than the excepted documents, intended to be sold or distributed, without printing the name and address of the place of business of the printer on such document is an offence against s. 14 of [the Act of 1939], attracting a maximum fine of twenty-five pounds, as is also the maintaining of an armed force or a purported police force not authorised as such under the Constitution, for which the maximum penalty under s. 6 is now twenty years’ imprisonment (See s. 2, Criminal Law Act, 1976).
A citizen charged with one of the less serious offences coming within a category scheduled at a time when a Special Criminal Court is in existence, and tried for such offence by such Court and convicted, if he happens to be the holder of office or employment funded by the State, has no protection against the mandatory imposition of the forfeiture provisions contained in section 34. This is so even though he might be in a position to establish, not his innocence of the particular offence charged, but the fact that his motive or intention in committing it, or the circumstances under which it was committed, bore no relation at all to any question of the maintenance of public peace and order or the authority or stability of the State.”
Having gone on to point out that, in the case of such scheduled offences, a trial before a Special Criminal Court was automatic, unless the Attorney General or Director of Public Prosecutions directed otherwise, Finlay C .J. concluded at p. 524:-
“For these reasons it has been established to the satisfaction of the Court that, notwithstanding the fundamental interests of the State which the section seeks to protect, the provisions of s. 34 of the Act of 1939 fail as far as practicable to protect the constitutional rights of the citizen and are, accordingly, impermissibly wide and indiscriminate.”
It appears to have been accepted by the parties in the High Court that, as a result of this decision, the plaintiff had a cause of action against the first, second and third defendants and the principal issue appears to have been whether the plaintiff was precluded from maintaining the proceedings, either because they were statute barred or because oflaches. It should be noted, however, that in Cox v. Ireland [1992] 2 I.R. 503, while Barr J. found that the plaintiff in that case was entitled to damages in respect of the loss of his teaching post at a community school, he adjourned the further hearing on that issue to enable evidence to be adduced as to the damages. That part of his judgment does not appear to have been the subject of an appeal and, in the result, this Court was concerned only with the issue of the validity of the impugned section of the Act of 1939, having regard to the provisions of the Constitution.
In these proceedings, the plaintiff’s claim in the statement of claim was confined to “damages for breach of constitutional rights and loss and damage” together with “further and other relief”, interest and costs.

The plenary summons had, however, expressly claimed a declaration that what was described as”the purported termination of the plaintiff’s contract of employment” with the Minister was unconstitutional and void and that the refusal of the Minister and the fourth defendant to pay him his “full incremental payments”, superannuation and other pension benefits was unconstitutional and void.
Notwithstanding the apparent concession both in the High Court and in this Court that the plaintiff had a cause of action, I admit to some difficulty in understanding what that cause of action was. During the time that he was employed as a post office worker, he was also a member of an illegal paramilitary organisation which was conducting a campaign of murders, armed robberies and other crimes in this and the neighbouring jurisdiction, prosecuted with a view to overthrowing the democratically established institutions of the State, including the Department of State in which he was employed. He lost his job with the post office because of what was assumed to be the automatic forfeiture of his position effected under the Act of 1939. There is not the slightest reason to suppose that, had there been no provision such as s. 34 in the Act of 1939, the Minister, on his release from prison, would have restored him to his previous employment. On the contrary, all the evidence in the High Court was to the effect that the Minister was not prepared to take him back at any stage and the Government showed no disposition to exercise its supposed powers under the Act of 1939 to remit the forfeiture.
The nature of the offence for which the plaintiff was convicted was in stark contrast to the less serious offences to which Finlay C.J. drew attention in the passage from his judgment which I have already cited, such as the possession of a sporting gun in respect of which the licence has not been renewed by the owner. As Finlay C.J. pointed out, the State was entitled to ensure that, as far as practicable, persons employed under the State did not include those involved in criminal activities threatening peace and order and the authority of the State. They would have been so entitled in my view, even if s. 34 of the Act of 1939 had never been enacted.
It is true that, since the plaintiff lost his job in 1974, it has been held by this Court that a person, such as an established civil servant, who holds his office at the pleasure of the Government, is nonetheless entitled to the benefit of fair procedures before he is removed from such office: see Garvey v. Ireland [1981] I.R. 75. However, if the issue had to be resolved in the present case, I would have little difficulty in holding that, where a person is convicted of an offence such as that with which the plaintiff was charged, the Minister would have been entitled to take the view that removal from his post should be an automatic consequence of the conviction and that the form of hearing envisaged in Garvey v. Ireland [1981] I.R. 75, would be a redundant exercise.
In these circumstances, I fail to understand how it could be said that the plaintiff in this case was at any stage entitled to any damages for the alleged breach of his constitutional rights. Since, however, the case has at all times been argued on the basis that he was, but that the claim has been barred either by virtue of the Act of 1957 or because oflaches, I propose to deal with it on that basis.
Part II of the Act of 1957 is headed “PERIODS OF LIMITATION FOR DIFFERENT CLASSES OF ACTION”. Under the cross heading, Actions of contract and tort and certain other actions, s. 11 (2) provides that:-
“(a) Subject to paragraphs (b) and (c) of this subsection, 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.
(b) An action claiming damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under a statute or independently of any contract or any such provision), where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to any person, shall not be brought after the expiration of three years from the date on which the cause of action accrued.
(c) An action claiming damages for slander shall not be brought after the expiration of three years from the date on which the cause of action accrued.”
In the High Court, Carroll J. held that s. 11 (2) applies to an action founded on the breach of a constitutional right, applying the same reasoning as she had adopted in an earlier decision of Tate v. Minister for Social Welfare [1995]1 I.R. 418.
Counsel for the plaintiff submitted that, having regard to the judgments of the majority of this Court in Murphy v. The Attorney General [1982] I.R. 241, s. 34 of the Act of 1939 must be regarded as having been invalid ab initio and not simply as from the date when its invalidity was pronounced by the Court. It followed from this, he said, that the plaintiff had never ceased to be an established civil servant, since the purported implementation by the Minister of the invalid provision could not legally affect his status. It also followed that the plaintiff was entitled to the monies which he had lost as a result and which were due to the wrongful and unconstitutional infringement of his rights by the Minister.
Counsel for the plaintiff submitted that the limitation period in respect of actions founded on tort prescribed by s. 11 (2) of the Act of 1957 had no application to an action, such as the present, founded on a breach of the plaintiff’s constitutional rights. While it was true that s. 11 (2) (b) referred to an action for “breach of duty”, it was clear that those words were not intended to apply to a breach of constitutional duty. While he conceded that the words in parenthesis were, on first reading, sufficiently wide to embrace such a breach of duty, he urged that it was not until the decision of th is Court in Meskell v. Coras Iompair Éireann [1973] I.R. 121, that there had been an authoritative statement of the law which provided a foundation for an action for breach of constitutional duty, where no remedy was afforded to a plaintiff by the existingcorpus of tort law. He said that one could not reasonably attribute to the Oireachtas an intention to extend the effect of limitation statutes to a form of cause of action which was, at that stage of legal development, unknown to the law.
Counsel for the plaintiff further submitted that, insofar as there was any ambiguity in this regard in the Act of 1957, it should be construed in favour of the plaintiff. He said that it was clear from the judgment of this Court in Tuohy v. Courtney [1994] 3 I.R. 1, that the harshness inflicted by the operation of limitation statutes on individual plaintiffs could only be justified, in constitutional terms, by the right of the Oireachtas to determine where the balance lay between avoiding such apparent injustice while at the same time upholding the principles of public policy which required proceedings to be brought within specified limitation periods. It followed from that approach, he urged, that the Act of 1957 should be regarded as the equivalent of a penal statute and that any ambiguity in its provisions should be resolved in favour of the citizen who would otherwise be denied his constitutional right of access to the courts.
Counsel for the plaintiff also referred to passages from the judgments of Henchy J. in Hanrahan v. Merck, Sharp & Dohme (Ireland) Ltd. [1988] I.L.R.M. 629 and of Finlay C.J. in Conway v. Irish National Teachers Organisation [1991] 2 I.R. 305 which, he said, recognised a distinction between actions founded on tort and those arising from a breach of a constitutional duty where the law of tort offered no remedy.
On behalf of the defendants it was submitted that, to the extent that the State had been guilty of wrongdoing against the plaintiff, it had taken the form of the tortious action of the State in wrongfully forfeiting his employment as a civil servant in 1974. It followed, he submitted, that the statute began to run from the time when the damage was caused by the forfeiting of the plaintiff’s employment. He urged, in addition, that, if the plaintiff’s claim were well founded, it would be possible for litigants to circumvent the provisions of the Act of 1957 in cases to which it manifestly should apply by, for example, framing a running down action against the State as a claim for damages for the infringement of the plaintiff’s constitutional right to bodily integrity.
Counsel for the defendants further submitted that the trial judge, was, in any event, correct in treating a cause of action in respect of an alleged breach of constitutional rights as embraced by s. 11 (2) of the Act of 1957. He submitted that, in particular, there was no reason why the words”breach of duty” in the section should be given the narrow construction contended for on behalf of the plaintiff.
I have already indicated that I propose to approach the case on the basis that the plaintiff had an identifiable cause of action in 1974. If that cause of action was founded on the wrongful implementation by the Minister of the invalid provisions of the Act of 1939, it would seem to be equivalent to the tort of”misfeasance of public office”, which is helpfully discussed in Hogan & Morgan on Administrative Law in Ireland, 2nd ed. at page 643.
Since, however, such a tort is only committed where the act in question is performed either maliciously or with actual knowledge that it is committed without jurisdiction and with the known consequence that it would injure the plaintiff, it would be of no avail to the plaintiff in the present case. A similar approach was adopted by this Court in Pine Valley Developments Ltd. v. Minister for the Environment [1987] I.R. 23, where it was held that no action lay against the Minister for the Environment when he had granted on appeal a planning permission subsequently held to be ultra vires, in the absence of any knowledge at the relevant time on the part of the Minister that he was acting unlawfully. Since, however, no reliance was placed on this line of authority on behalf of the defendants, the case must be treated on the basis that the plaintiff had some form of action, however loosely defined and conceptually uncertain, for breach of his constitutional rights.
Is there any reason why such an action, whatever its legal parameters, should not be regarded as an action founded on tort within the meaning of s. 11 (2) of the Act of 1957? A tort is defined in Salmond & Heuston on the Law of Torts (20th ed.) at p.15 as:-

“some act done by the defendant whereby he has without just cause or excuse caused some form of harm to the plaintiff.”
The learned authors add:-
“The law of torts exists for the purpose of preventing men from hurting one another, whether in respect of their property, their persons, their reputations, or anything else which is theirs.”
Manifestly, as this and other leading textbooks demonstrate, the law, as it has evolved, has staked out the territory within which the law of torts holds sway with more precision. For a variety of reasons, damage which at first sight may seem to have been wrongfully inflicted may not be properly remediable in tort. Even where remediable, the proceedings may still require to be brought within the constraints of a different form of action, most conspicuously in the case of actions for breach of contract, with significant consequences in areas such as the assessment of damages. But subject to these limitations, which do not require exploration in the context of the present case, it may well be said that the English law of tort has, as a matter of history, demonstrated over the centuries a flexibility and a capacity to adapt to changing social conditions, even without legislative assistance, which made it the obvious instrument for the righting of civil wrongs when the Constitution was enacted in 1937.
The dynamic nature of the tort action was well understood when the Act of 1957 was enacted. It had been graphically illustrated by the manner in which the action for negligence outgrew the medieval constraints of the action for”trespass on the case”. The law had seen new species of tortious principles, such as the rule in Rylands v. Fletcher (1868) 2 H.L. 330, impose novel forms of liability on defendants. I see no reason to suppose that the Oireachtas legislated in 1957 on the basis that the law of tort was at that stage petrified for all time. It may be, however, – and surmise on the topic would be both unjustifiable and unprofitable – that the draughtsman did not envisage the extent to which the developing constitutional jurisprudence of the High Court and the Supreme Court in later decades would powerfully reinforce the progressive development of the law of civil wrongs.
I take by way of example the unenumerated constitutional right of privacy upheld in Kennedy v. Ireland [1987] I.R. 587. It is true that the courts in England have been hesitant in recognising that such a tort exists; see R. v. Khan [1996] 3 W.L.R. 162. But even in the absence of a written constitution, such a novel growth might, for all one knows, have flourished sturdily in this jurisdiction. The fact that it did so in the form of an action for infringement of a constitutional right does not prevent it, in my view, from being classified as a civil wrong. Indeed, I do not know of any other category to which it could be assigned. Specifically, it can be classified as a civil wrong which is not a breach of contract but which is remediable by an action for unliquidated damages and/or an injunction. The same considerations would apply to the cause of action alleged to be vested in the plaintiff in the present case for breach of his constitutional rights. On this view, the present action would seem to be appropriately described as an action in tort and, bearing in mind that, major legislative interventions such as the Civil Liability Act, 1961 apart, the law of torts – including the categorisation by name of specific forms of wrongdoing as torts – has been evolved by the courts, there is no obstacle to an action for damages for breach of a constitutional right being identified as such.
In Meskell v. Coras Iompair Éireann [1973] I.R. 121 Walsh J. said at p. 132:-
“It has been said on a number of occasions in this Court, and most notably in the decision in Byrne v. Ireland [[1972] I.R. 241] that a right guaranteed by the Constitution or granted by the Constitution can be protected by action or enforced by action even though such action may not fit into any of the ordinary forms of action in either common law or equity and that the constitutional right carries within it its own right to a remedy or for the enforcement of it.”
I think that passage is perfectly consistent with the constitutional right being protected b y a new form of action in tort, provided, of course, the form of action thus fashioned sufficiently protects the constitutional right in question.
Nor do I see any conflict between that view and the passage in the judgment of Henchy J. in Hanrahan v. Merck, Sharp & Dohme (Ireland) Ltd. [1988] 1 I.L.R.M. 629, on which counsel for the plaintiff relied. The learned judge pointed out that at p. 636:-
“A person may of course in the absence of a common law or statutory cause of action, sue directly for breach of a constitutional right (see Meskell v. Coras Iompair Éireann [1973] I.R. 121); but when he founds his action on an existing tort he is normally confined to the limitations of that tort. It might be different if it could be shown that the tort in question is basically ineffective to protect his constitutional right.”
There is nothing in that passage to suggest that where a plaintiff is obliged to have recourse to an action for breach of a constitutional right, because the existing corpus of tort law affords him no remedy, or an inadequate remedy, that action cannot in turn be described as an action in tort, albeit a tort not hitherto recognised by the law, within the meaning of, and for the purpose of, the Act of 1957.
Nor does the reference by Finlay C.J. in Conway v. Irish National Teachers Organisation [1991] 2 I.R. 305, to “damages in tort or for breach of a constitutional right”assist the plaintiff. The learned Chief Justice was solely concerned at that point in his judgment with considering the differing headings of damages recoverable in Irish law, whether in an action for tort in the conventional sense or in an action for breach of a constitutional right. Whether the second category, actions for breaches of constitutional rights, could appropriately be grouped under the heading of “actions in tort” in other contexts, such as the Act of 1957, was not under consideration in that case.
It may, of course, be the case that, in considering whether other features of the generalcorpus of tort law apply to actions in protection of constitutional rights, questions may arise which are not relevant in these proceedings. Professor William Binchy in an interesting essay (“Constitutional Remedies and the Law of Torts”; Human Rights and Constitutional Law; Essays in Honour of Brian Walsh (Dublin 1992)) has suggested that significant differences may arise in some contexts given that, as he argues, the English law of tort was traditionally concerned with providing redress for wrongs, whereas the Constitution is essentially concerned with the protection of rights. Again, however, it is unnecessary to embark on those uncharted seas. Whatever may be the position in regard to other possible defences, no one has been able to identify in this case any ground for supposing that an action for breach of a constitutional right which has all the indicia of an action in tort should have a different limitation period from that applicable to actions in tort generally, or indeed no limitation period at all, other than its origin in the Constitution itself, which is a classically circular argument. Nor could it be seriously argued that the fact that the action for breach of a constitutional right frequently takes the form of proceedings against organs of the State is of itself a reason for treating a limitation statute as inapplicable. Even if it were, it is to be borne in mind that, as is made clear by Meskell v. Coras Iompair Éireann [1973] I.R. 121, the defendant in such actions need not necessarily be an organ of the State.
In this context, it is worth recalling the policy considerations which underlie statutes of limitation such as the Act of 1957. They have been succinctly and comprehensively stated by Finlay C.J. in Tuohy v. Courtney [1994] 3 I.R. 1 as follows at p. 48:-“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 or 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.
The counter-balance to these objectives is the necessity, as far as is practicable or as best it may, for the State to ensure that such time limits do not unreasonably or unjustly impose hardship . . .”
I can se e no reason why an actress sunbathing in her back garden whose privacy is intruded upon by a long-range camera should defer proceedings until her old age to provide herself with a nest egg, while a young man or woman rendered a paraplegic by a drunken motorist must be cut off from suing after three years. The policy considerations identified by the learned Chief Justice in the passage which I have cited are applicable to actions such as the present as much as to actions founded on tort in the conventional sense.
I am satisfied that the decision of Carroll J. was correct in point of law and should be upheld.
There remains the plaintiff’s claim for a declaration that he is still an established civil servant. It is unnecessary to consider whether, if he still occupies such a status, the Minister would be entitled, provided he acts in accordance with natural justice, to dispense with his services either on the ground that there is no work available for him or that his conduct during the period he was employed precludes the Minister from maintaining him in that employment. It is sufficient to say that, whether the declaration sought by the plaintiff in this case is an equitable form of relief or, as claimed on his behalf, a remedy to which he is entitled ex debito justitiae, it must fall victim to the operation of an ancient legal maxim applicable in every sphere of the law: ex turpi causa non oritur actio. I would also agree that, in any event, as was made clear in Murphy v. The Attorney General [1982] I.R. 241, the fact that the provisions struck down were invalid ab initio does not have, as a necessary consequence, the vesting of a cause of action in the plaintiff.

I would dismiss the appeal.

Barron J.
The applicant joined the postal service in the year 1963 as a postal clerk grade B. He became an established civil servant in the same year. In May, 1974, he was arrested and charged with membership of the I.R.A. He was suspended from duty as of the date of his arrest. He was subsequently convicted of the offence with which he was charged and sentenced to twelve months imprisonment. He was released from prison in February, 1975. While in prison he was informed that he had forfeited his position under the provisions of s. 34 of the Act of 1939 with effect from the 30th May, 1974.
On his discharge from prison he applied to be reinstated. This application was refused upon the basis that he had forfeited his position. He subsequently applied in March, 1984, to be reinstated. At this stage the fourth defendant had been established by the Postal and Telecommunications Services (Amendment) Act, 1984, and he was informed that he had not been designated for employment by the fourth defendant in accordance with the provisions of that Act, and accordingly it was not possible to take him into employment with that body. In 1991, s. 34 of the Act of 1939 was declared to be unconstitutional in Cox v. Ireland [1992] 2 I.R. 503. The present proceedings followed soon after.
In Cox v. Ireland [1992] 2 I.R. 503, the plaintiff who had been employed as a vocational teacher at a community school was convicted by a Special Criminal Court of a scheduled offence, and sentenced to two years imprisonment. He served this sentence. On his release from prison he was informed that by virtue of the provisions of s. 34 of the Offences Against the State Act, 1939, he had forfeited his position together with all other benefits arising therefrom. He challenged this ruling. In the High Court, it was held that s. 34 was unconstitutional and that the plaintiff was entitled to damages for having been deprived of his teaching post. On appeal, the finding of unconstitutionality was upheld. The question of damages was remitted to the High Court.
In the instant case, the plaintiff seeks similar relief.
Since s. 34 has been declared to be unconstitutional, it must be regarded as void ab initio: see Murphy v. The Attorney General [1982] I.R. 241. As a result the plaintiff’s position as an established civil servant was never forfeited. Nor was his contract of employment ever terminated by any other lawful means. Although the question of reinstatement was considered in both 1975 and 1984, the plaintiff’s applications were rejected. On both occasions the refusal to reinstate the plaintiff was made against the background of the forfeiture which was believed to have occurred. While the probability suggests that the plaintiff would not have regained his employment in any event, this in the absence of a hearing as a matter of law is something which cannot be assumed. Nor can it be assumed that if it had been realised that his employment had not been forfeited that steps would have been taken to terminate it. The question now arises as to whether, since the plaintiff’s employment was never determined, he was still entitled to assert its existence at the date of the commencement of these proceedings.
In Murphy v. The Attorney General [1982] I.R. 241, this situation had to be addressed in relation to several sections of the Finance Act, 1963. The question which arose was whether or not the plaintiffs could recover the monies paid as taxes under the provisions of the sections which had been declared to be void.
That case was very different on the facts to this case. For that reason much of what was said in the judgment of Henchy J. with which Griffin and Parke JJ. agreed is not directly applicable. Nevertheless, it deals with the manner in which the courts should seek to address a problem created by a belief that particular statutory provisions were valid when, not only were they not valid, but were deemed never to have existed. Money had been paid in taxes pursuant to such provisions and the question arose as to the extent, if any, to which it could be recovered and by whom.
Having considered various equitable principles related inter alia to laches, estoppel and restitution, Henchy J. concluded this aspect of his judgment at p. 320 as follows:-
“Whether the taxpayer’s action be framed as a common-law action in quasi-contract for money had and received, or as an equitable claim for restitution of money by which the State was unjustly enriched, there is ample authority for the conclusion that the radical change of circumstances of the kind I have indicated would be sufficient to def eat, at least in part, the taxpayers’ claim: see Jones’s Change of Circumstances in Quasi-Contract (1957) 73 L.Q.R. 48.
In this case, whether the claim be treated as one in quasi- contract or as one in equity, I would consider the enforceable cause of action to have arisen at the beginning of the tax year 1978-9.”

In the instant case, apart from the basic finding of invalidity ab initio there are other factors which existed in Murphy v. The Attorney General [1982] I.R. 241. Admittedly, that case in its conclusion limited the date at which the cause of action to remedy what had occurred was found to have arisen. But the same principles should be applied to limit the period within which equitable relief should be permitted after such a cause of action has arisen. There was a bona fide belief on the part of the defendants’ predecessors in title that the plaintiff was no longer entitled to be employed in the postal service, a belief fostered by the absence of any claim to the contrary. Taking the definition oflaches accepted by Henchy J. in Murphy v. The Attorney General at p. 318 as “Laches essentially consists of a substantial lapse of time coupled with the existence of circumstances which make it inequitable to enforce the claim”, I would hold that in the absence of a prompt challenge following the refusal of the plaintiff’s first application for reinstatement made in 1975, any right to equitable relief would have been barred by laches.
Much of this case was argued upon the basis that the statute of limitations applied to breaches of constitutional rights. In my view, this is not the appropriate cause of action. Section 34 of the Act of 1939 was declared invalid having regard to the provisions of the Constitution because it did not adequately vindicate some of the unenumerated rights of the plaintiff under the Constitution. Once it was struck down, s. 34 did not affect any of his rights. His rights were affected by the purported operation of something which was null and void.
In Thomas Hunter Ltd. v. James Fox & Co. [1966] I.R. 520, the plaintiff as a condition of granting a licence to use a patented article for which it held the patent, sought to compel licensees to purchase from them other articles not covered by the patent. It was contended on behalf of the defendant that a provision to that effect in an agreement between the parties was illegal having regard to the provisions of the Industrial and Commercial Property (Protection) Act, 1927 and that accordingly the patent should be endorsed “licences of right”.
It was held by the Supreme Court that the term was illegal; that the impugned provision was void ab initio; but that as a result the defendant was allowed to do what it complained it was not entitled to do. Kingsmill Moore J. who gave the judgment of the Court said at p. 555:-
“I read sub-s. 1 as having the effect of making the condition void ab initio. It stands as if it had never been inserted. The jam manufacturers are in the position of persons who have a lease of the head without any restriction as to its use on any particular lids and they may use it on lids manufactured by Fox. Hunters may determine the agreement by serving the requisite notice and may substitute an agreement different in terms, seeking to recoup themselves by charging larger royalties, or in any other way which is legal. The legality of any such substitute agreement can be tested in future proceedings.
I am, however, unable to accede to the view of Mr. Justice Kenny that, since clause 5 is illegal, it involves an abuse of monopoly rights, under s. 43, sub-s. 2 (c), because the demand is not being met on reasonable terms, or under s. 43, sub-s. 2 (f) because the trade or industry in Saorstát Éireann of any person engaged therein has been unfairly prejudiced. Clause 5, being null and void ab initio, must be treated as ineffective and indeed non-existent. It can in my opinion have no operation to make terms unreasonable or to create unfair prejudice.”
Applying similar principles, s. 34 of the Act of 1939 never applied to the plaintiff and therefore could not have infringed his constitutional rights nor indeed any other right to which he was entitled. His position was never forfeited. The refusal to reinstate him was a breach of the terms of his contract. His cause of action in the instant case can only be based upon that breach. This view is enforced by the passage from the judgment of Henchy J. in Murphy v. The Attorney General [1982] I.R. 241, to which I have referred and which does not suggest in like circumstances any cause of action based upon breach of constitutional rights. Accepting the cause of action as being one for breach of contract, it has clearly been barred by the provisions of s. 11 (1) of the Act of 1957.
In Meskell v. Coras Iompair Éireann [1973] I.R. 121, Walsh J. dealt with the right of action for breach of a constitutional right as follows:-
“It has been said on a number of occasions in this Court, and most notably in the decision in Byrne v. Ireland [[1972] I.R. 241], that a right guaranteed by the Constitution or granted by the Constitution can be protected by action or enforced by action even though such action may not fit into any of the ordinary forms of action in either common law or equity and that the constitutional right carries within it its own right to a remedy or for the enforcement of it. Therefore, if a person has suffered damage by virtue of a breach of a constitutional right or the infringement of a constitutional right, that person is entitled to seek redress against the person or persons who have infringed that right. As was pointed out by Mr. Justice Budd in Educational Company of Ireland Ltd. v. Fitzpatrick (No. 2) [[1961] I.R. 345] it follows that ‘if one citizen has a right under the Constitution there exists a correlative duty on the part of other citizens to respect that right and not to interfere with it.’ He went on to say that the courts would act so as not to permit a person to be deprived of his constitutional rights and would see to it that those rights were protected.”
Here the plaintiff’s cause of action arises for breach of contract and any right of action in relation to any right guaranteed by the Constitution would be co-extensive with that right. For this reason it seems to me that on ce the statute of limitations applies to the right of action for breach of contract it equally applies to any co-extensive right in relation to the Constitution.
This is not a case where the cause of action stems solely from the provisions of the Constitution itself. Whether such cause of action would be barred under the statute of limitations is a question which I would reserve to another time.
In my view, the plaintiff’s claim is barred by both laches and the provisions of the statute of limitations. I would dismiss the appeal.

Lockwood v Attorney General

[2010] IEHC 430

JUDGMENT of Kearns P. delivered the 10th day of December, 2010

The plaintiff was the complainant in a prosecution for rape brought against J.W. by the Director of Public Prosecutions. The accused was arrested on the 22nd July, 1999 and the case was ultimately heard by the Central Criminal Court in May, 2003. It emerged during the course of the evidence at trial that, as a consequence of the unlawful arrest of J.W., certain admissions made by J.W. whilst in garda custody could not be placed before the jury. This difficulty arose because J.W. was arrested pursuant to the common law power of arrest for rape. However, at the time of the arrest, s. 3 of the Criminal Law Act 1997 had abolished the distinction between felonies and misdemeanours with the consequence that a garda member no longer had any common law power to arrest in respect of felonies. Thus whilst J.W. could have been arrested under s. 4 of the Criminal Justice Act 1984, this power was not exercised by the arresting garda on the occasion of the arrest. The learned trial judge (O’Higgins J.) thus held that J.W. was held in illegal custody in breach of his constitutional right to liberty and that any evidence obtained during the course of this illegal detention was, as a result, inadmissible in the proceedings before the Court.

The plaintiff understandably felt extremely aggrieved that, having been subjected to rape, and having undergone the ordeal of a trial in which she gave evidence, the prosecution’s case collapsed as a result of such a basic error on the part of the arresting garda.

As a result these proceedings were commenced by plenary summons on the 26th May, 2006. In the proceedings, the plaintiff claims damages arising from the alleged negligence and breach of duty of the defendants, notably the servants or agents of the third named defendant, in invoking a power of arrest that did not exist at the time of the purported arrest. The plaintiff asserts that the State has failed to vindicate her constitutional right to bodily integrity and to ensure that justice was achieved in her case.

Following the bringing of the proceedings, the defendants brought a motion to this Court for an order directing the trial of preliminary issues which effectively request that the Court should dismiss these proceedings on two grounds as follows:-

(1) The time limit for bringing the claim in question is statute barred by virtue of the Statute of Limitations 1957 as amended; and
(2) In the absence of mala fides in the performance of their investigative and prosecutorial functions, the Garda Síochána cannot be held liable in damages to the plaintiff in circumstances such as arose in the present case.

SUBMISSIONS MADE ON BEHALF OF THE PLAINTIFF
It was submitted on behalf of the plaintiff that her cause of action only accrued on the 28th May, 2003, when it became apparent to her for the first time during the course of the trial that the common law power of arrest had been wrongfully exercised in this case. She could not have known she had a cause of action until then and as the proceedings were issued within three years of that event, they could not be considered to be statute barred.
In relation to any supposed immunity from suit on the part of the Garda Síochána, counsel on behalf of the plaintiff submitted that where a citizen’s constitutional rights are infringed, a right to seek damages for such a breach exists when no other effective or sufficient remedy may be found (see The State (Quinn) v. Ryan [1965] I.R. 70; Byrne v. Ireland [1972] I.R. 241; and Meskell v. Córas Iompair Éireann [1973] I.R. 121).

Counsel further submitted that there was no doctrine of immunity available to the Garda Síochána which would afford a shield to them in all circumstances. It was submitted that the dictum of Costello P. in W. v. Ireland (No. 2) [1997] 2 IR 141 had been overtaken by more recent cases, including D.P.P. v. Cash [2007] IEHC 108; Hanahoe v. Hussey [1998] 3 IR 69; Gray v. Minister for Justice [2007] 2 IR 654; and Shortt v. Commissioner of An Garda Síochána [2007] 4 IR 587. Counsel for the plaintiff also placed reliance upon the recent decision of the European Court of Human Rights in McFarlane v. Ireland (no. 31333/06, 10 September 2010) as supporting the proposition that a claim for damages was sustainable on facts such as those which arose in the instant case.

A number of English cases were also opened to the Court, including Desmond v. The Chief Constable of Nottinghamshire Police [2009] EWHC 2362 (QB). While successive decisions of the House of Lords beginning with Hill v. Chief Constable of West Yorkshire [1989] AC 53 had held, as a matter of public policy, that police were immune from actions for negligence in respect of their activities in the investigation and suppression of crime, Wyn Williams J. observed as follows in Desmond at para. 42:-

“It seems to me that the following principles can be distilled from the authorities cited above. First, the police are immune from an action in negligence at the suit of an individual if the damage complained of was caused by an act or omission in furtherance of the investigation or suppression of crime (the core principle in Hill). Second, if the core principle is not engaged a duty of care may be imposed upon the police upon ‘ordinary principles’ if the police are directly involved in causing actionable damage to an individual. Third, the police can be held liable in negligence for damage (including pure economic loss) if they have assumed a responsibility to the individual in question to act with reasonable care.”
The plaintiff relied on this passage as supporting the proposition that the fact of gross negligence in the instant case was such as would entitle her to compensation.
Finally, counsel argued that in the case of Osman v. United Kingdom [1998] 29 EHRR 245, the European Court of Human Rights held that an immunity which the British police enjoyed from suit was incompatible with the guarantee of a fair hearing provided by Article 6 of the European Convention on Human Rights. Counsel further asserted that the present case was not one which could be seen as having the effect of encouraging defensive policing, but was instead a straightforward instance of negligence principles which every garda about to effect an arrest must be presumed to know. Nor were the present proceedings a collateral attack upon the verdict or acquittal. The plaintiff was not seeking to overturn the verdict in the criminal proceedings, but rather to obtain a remedy from the Court in respect of the State’s failure to ensure a proper arrest and trial.
SUBMISSIONS ON BEHALF OF THE DEFENDANTS
Counsel on behalf of the defendants adverted to three relevant dates in relation to the argument that the plaintiff’s claim was statute barred. The date of arrest of the accused was the 22nd July, 1999. The ruling of the Central Criminal Court to the effect that the arrest was unlawful was made on the 28th May, 2003. The plenary summons only issued on the 26th May, 2006. It was submitted on behalf of the defendants that time should be deemed to run from the date of the impugned arrest in 1999. If that contention was correct, the present proceedings had been brought outside the basic limitation period for a civil negligence claim.

In relation to the potential liability to suit of the Garda Síochána, it was the defendants’ submission that no liability arose because of the absence of a duty of care to the plaintiff in the particular circumstances rather than any immunity. Counsel submitted that the observations of Clarke J. in Osbourne v. Minister for Justice [2009] 3 IR 89 made it clear that, absent mala fides, a person against whom a power of arrest or search is exercised cannot successfully sue the gardaí for damages.

Counsel also noted various dicta in Glencar Exploration plc v. Mayo County Council (No. 2) [2002] 1 IR 84; Kennedy v. Law Society of Ireland (No. 4) [2005] 3 IR 228; and Keating v. Crowley [2010] IESC 29 in support of the argument that no cause of action for negligence lies against a public body in the absence of mala fides. A claim based on a complaint that there had been a failure to secure a conviction of an accused person was an entirely novel claim and it was submitted that no duty of care to prevent such an occurrence taking place could be said to exist.

Counsel for the defendants argued that, while every citizen is entitled to a fair system for the investigation of criminal offences, this could never amount to a guarantee of a perfect system, or one that would be error free. Equally, the State could not guarantee that every person who commits a crime would be successfully convicted at the end of a criminal trial. In this regard, counsel stressed that recognition of this fact was evidenced by the fact that there is a tort of malicious prosecution but not a tort of negligent prosecution.

Counsel also relied upon the judgment of Costello P. in W. v. Ireland (No. 2) [1997] 2 IR 141 as providing compelling public policy reasons why the Court should conclude that no existence of a duty of care arose as the result of the particular performance of a public function. Such had been the view of the House of Lords in Hill v. Chief Constable of West Yorkshire [1989] AC 53 and counsel submitted that the core principle of that case represents the law in this jurisdiction and had not been diluted by subsequent case law. In fact, the principles established in Hill were upheld by the House of Lords in Brooks v. Commissioner of Police of the Metropolis & Others [2005] 1 WLR 1495. In that case, the House of Lords held that, as a matter of public policy, police did not generally owe a duty of care to victims or witnesses in respect of their activities when investigating crime.

While it was true that the case of Osman v. United Kingdom [1998] 29 EHRR 245 suggested that striking out a tort claim against the police amounted to a violation of Article 6 of the European Convention on Human Rights, the decision in question was less than authoritative. In Z. & Ors. v. The United Kingdom [2002] 34 EHRR 3, the same court accepted that its ruling in Osman was based on an understanding of the law of negligence “which has to be reviewed in the light of the clarifications subsequently made by the domestic courts and notably by the House of Lords”.

Counsel concluded by noting that the law did not purport to deprive the plaintiff of a remedy, given that at all times it was open to the plaintiff to sue the accused directly for damages in a civil case.
DISCUSSION AND DECISION
The recent decision of the High Court (Clarke J.) in Osbourne v. Minister for Justice [2009] 3 IR 89 is of particular interest in determining whether or not a cause of action arises against the Garda Síochána in the absence of mala fides in the performance of their duties and functions. In that case, Clarke J. stated (at pp. 96-97):

“While it (The People (Attorney General) v. O’Brien [1965] I.R. 142) is concerned with the admissibility of evidence there is no reason, in my view, not to apply the overriding principle to the question of the consideration of any other consequences of reliance upon an invalid warrant. I am therefore satisfied that no claim in damages (whether for breach of constitutional rights or in tort) can be brought in respect of actions taken on foot of the warrant which though apparently valid was technically infirm, but was not relied upon in circumstances which amounted to, as Walsh J. put it in O’Brien, a ‘deliberate or conscious violation’ of the rights concerned. There could, of course, be a deliberate or conscious violation of rights where a false basis was put forward for obtaining the warrant or where a basis was put forward which, while correct on the facts, was one which the person seeking the warrant knew did not justify the grant of the warrant. Furthermore it is implicit from the judgments in O’Brien that reliance on a warrant which is subject to a technical defect but where that defect was known, prior to the execution of the warrant, by those involved in its execution might also amount to a deliberate or conscious violation of rights. Such an overall view of the entitlement to damages arising from the consequences of the execution of a warrant which is technically defective is, in my view, consistent with the jurisprudence of the courts in the analogous area of breach of statutory duty by officials or others charged with carrying out public functions. In such circumstances it is now well settled that damages do not arise in the absence of a deliberate and knowing breach of statutory obligation.”
In Kennedy v. The Law Society (No. 4) [2005] 3 IR 228, the Supreme Court applied the ruling in Glencar Exploration plc v. Mayo County Council (No. 2) [2002] 1 IR 84 to restate that, as a general rule there is no remedy in damages for an ultra vires act by a local authority outside of a claim for misfeasance in public office. As Geoghegan J. stated in the Supreme Court at p. 259 of his judgment:-
“As a general proposition, it can safely be said that, apart from exceptional circumstances, a body such as the first respondent, carrying out a public function in pursuance of a public duty, is not liable to a private individual in tort unless the authority, in so acting, has committed the tort of misfeasance in public office. I will be explaining this tort in more detail later on in this judgment but subjective mala fides is an essential feature of it. To allow damages to be awarded for breach of an alleged duty of care owed to the individual on the basis of what a reasonable person might have done (and therefore an objective test) would be to undermine the clear limits attached to the tort of misfeasance in public office.”
The case of W. v. Ireland (No. 2) [1997] 2 IR 141 also considered the nature of the duty of care to victims of crime. In that case the plaintiff and members of her family were victims of sexual abuse perpetrated by Fr. Brendan Smith. The offences were alleged to have been committed by the accused in Northern Ireland between 1982 and 1987. Extradition warrants had been forwarded from the authorities in Northern Ireland to the Garda Commissioner for execution. However, the Attorney General was required to give a direction that the Commissioner not execute the warrants unless the Attorney General considered there was a clear intention to prosecute and such an intention was founded on sufficient evidence as required by the Extradition Act 1965 as amended. The Court held that the Extradition Acts imposed no common law duty of care on the Attorney General in relation to the plaintiff. Furthermore, it was held that no statutory duty was imposed upon the Attorney General by virtue of the Extradition Acts in relation to the victims of crimes referred to in the warrant. At p. 160 of his judgment, Costello P. stated:-
“There are further compelling reasons why, in the public interest, the duty claimed by the plaintiff in this action should not be allowed. If a duty under the Act of 1965 exists it must logically follow (a) that the Attorney General would be under a similar duty in respect of any prosecutorial functions conferred on him by s. 5 of the Prosecution of Offences Act 1974 and (b) that in exercising his prosecutorial functions under that Act, the Director of Public Prosecutions would owe a like duty to all victims of crimes in the cases in which he is considering the institution of prosecution. Because of the inhibiting effect on the proper exercise by the Attorney General and the Director of Public Prosecutions of their prosecutorial functions, it would be contrary to the public interest that a duty of care at common law be imposed on them. So to conclude is not to submit to a ‘flood gates’ argument of doubtful validity, it is to accept the logical consequences, should the duty of care at common law be imposed in the execution by the Attorney General of his functions under the Act of 1965.”
The Court thus held that even if there had been a sufficient relationship of proximity and even if the kind of injury of which the plaintiff complained was reasonably foreseeable, it would be contrary to public policy to impose a duty of care on the Attorney General. Costello P. was at pains to point out in his judgment that the function conferred on the Attorney General by the statute created no relationship of any sort between him and the victims of crime referred to in the warrants under consideration. Costello P. was satisfied that it would be contrary to public policy to impose on the Attorney General a duty of care towards the plaintiff’s victims. Nor was there any constitutional duty to so do because the exigencies of the common good justified the court in declining to grant to the plaintiff a claim for damages for breach of duty not to infringe a right to bodily integrity in those particular circumstances.
I am satisfied that no action arises in the circumstances of this case for negligence against the gardaí in the absence of mala fides. I am satisfied also that within tort law a duty of care does not arise such as would create an entitlement to damages arising from the manner in which the gardaí conduct an investigation. As Barrington J. pointed out in McDonnell v. Ireland [1998] 1 I.R. 134 (at p. 148):

“[C]onstitutional rights should not be regarded as wild cards which can be played at any time to defeat all existing rules. If the general law provides adequate cause of action to vindicate a constitutional right it appears to me that the injured party cannot ask the court to devise a new and different cause of action.”
It was quite clear in the present case that there had been no mala fides and thus no cause of action in negligence. Therefore, there could be no basis for creating a cause of action based on alleged infringement of constitutional rights. As Murray C.J. pointed out in Keating v. Crowley [2010] IESC 29:-
“It is undoubtedly the case that in certain circumstances the State is liable to pay compensation to individuals for breach of their constitutional rights. This may be particularly so when the State at the time the damage was caused, was acting unlawfully and with mala fides or in misfeasance of public office.”
Given that it is my view that a claimant must establish mala fides to bring her claim within the law of tort within this jurisdiction, I am satisfied to conclude that no duty of care arises in respect of bona fide actions and decisions carried out by An Garda Síochána in the course of a criminal investigation and/or prosecution. Any other view would have quite alarming consequences. One might begin by enquiring where the duty of care would begin or end. Would the victim of a crime, such as that perpetrated on the plaintiff in the present case, be the only person with an entitlement to sue, or would any such entitlement extend to immediate members of her family or perhaps to some person who might have been a witness in the trial or a witness to the event itself? By the same token, the inhibiting nature of any such duty would effectively cripple the capacity of An Garda Síochána, or any other police force for that matter, to carry out its duties effectively and with expedition. It would be unacceptable that those charged with responsibility for the investigation and prosecution of crime should have to take legal advice at every hand’s turn in respect of every step in the criminal process. Any such approach would simply render the present system, struggling as it is with the multiple obligations imposed on the Garda Síochána in respect of those suspected of crime, to constraints of unimaginable proportions.
I have no hesitation therefore in granting the relief sought by the defendants in respect of this particular issue and holding that the plaintiff’s claim should be dismissed.

Insofar as the Statute of Limitations point is concerned, I would hold with the plaintiff’s contention that the clock could not be deemed to have commenced to run on any cause of action she might have had until such time as the plaintiff became aware of the particular error which gave rise to her complaint.

Tate v. Minister for Social Welfare

[1995] 1 I.L.R.M. 507 Carroll J

This claim arises out of Council Directive 79/7/EEC of 19 December 1978 dealing with the principle of equal treatment for men and women in matters of social security.

Article 4(1) of the directive provides that:

The principle of equal treatment means that there shall be no discrimination whatsoever on ground of sex either directly, or indirectly by reference in particular to marital or family status, in particular as concerns:

(i) the scope of the schemes and the conditions of access thereto,

(ii) the obligation to contribute and the calculation of contributions,

(iii) the calculation of benefits including increases due in respect of a spouse and for dependants and the conditions governing the duration and retention of entitlement to benefits.

Article 8 of the directive required the member states to implement the directive within six years of notification. The relevant date for Ireland was 23 December 1984.

Ireland did not implement any part of the directive by that date. Certain changes were made by the Social Welfare (No. 2) Act 1985, the provisions of which came into force on varying dates at the end of 1986. For the period between 23 December 1984 and the varying dates in 1986 the following differences existed in the treatment of married women and married men for matters coming within the directive.

(1) There was a difference in the personal rate of social welfare benefits.

(2) Men were entitled to receive employment benefits for 390 days whereas married women were only entitled to receive the same for 312 days.

(3) Married women had to show they had an adult dependant in order to qualify for unemployment assistance, whereas no such qualifying condition was imposed on married men.

(4) A married man was automatically entitled to an increase in his rate of benefit for an adult dependant if his wife lived with him or was wholly or mainly maintained by him. A married woman was only entitled to an increase if her husband was incapable of self-support and was wholly or mainly maintained by her.

(5) A married man was entitled to an automatic increase in his rate of benefit in respect of a qualified child who normally resided with him. A married woman had to show an incapacity on the part of the child’s father to self-support before she could claim an increase in respect of a child residing with her.

Following the coming into effect of the Social Welfare (No. 2) Act 1985, these five differences were removed prospectively. But the Minister for Social Welfare introduced the Social Welfare (Preservation of Rights) (No. 2) Regulations 1986 (SI No. 422 of 1986) which granted an increase in the rate of benefit up to a maximum of £20.00 for those who had been in receipt of an adult dependant allowance but who ceased to be entitled to the same after the coming into effect of the 1985 Act. The regulations were expressed to be transitional in nature and the provisions of same were renewed from time to time by subsequent orders made by the Minister for Social Welfare with a decreasing amount of benefit payable. They finally expired in July 1992. The benefits paid under these regulations were effectively only paid to married men as they were the only people who ceased to be entitled to adult dependency allowances by virtue of the 1985 Act. They only applied to persons who were in receipt of benefit in particular weeks in November 1986 and for so long as they were continuously in receipt of benefit.

On 24 March 1987 the European Court of Justice in an Article 177 reference in Case C-286/85 Cotter and McDermott v. Minister for Social Welfare (No. 1) [1987] ECR 1453 held that (1) Article 4(1) of Directive 79/7/EEC had direct effect from 23 December 1984 and (2) that in the absence of measures implementing article 4(1) women were entitled to have the same rules applied as are applied to married men.

Prior to that judgment Mrs Cotter and Mrs McDermott had instituted further proceedings seeking, inter alia, declarations that they were entitled to the same increases in their social welfare benefits as married men in their circumstances received before the entry into force of the Social Welfare (No. 2) Act 1985 and that they were entitled to the transitional compensatory payments which some men received after that date. The Supreme Court referred questions on these issues to the European Court of Justice.

On 13 March 1991 the Court of Justice held that after expiry of the period allowed for implementation of the directive, (1) where married men have automatically received increases and social security benefits in respect of a spouse and children deemed to be dependants without having to prove actual dependency, married women without actual dependants are entitled to the same increases even if in some circumstances that will result in double payment of the increases and (2) that where a transitional provision provides for compensatory payments to married men who have lost their entitlement to an increase in their social security benefits in respect of a spouse deemed to be dependant because actual dependency cannot be shown to exist, married women in the same family circumstances are entitled to the same payments even if that infringes the prohibition on unjust enrichment laid down by national law.

 

Subsequent to this judgment the State settled the claims of Mrs Cotter and Mrs McDermott by the payment of sums of money and costs without admission of liability.

On 22 July 1988 Mrs Teresa Emmott instituted judicial review proceedings against the State making essentially the same claims as Mrs Cotter and Mrs McDermott. The State took a preliminary point that her application for judicial review was out of time because of the provisions of O. 84, r. 21 of the Superior Court Rules. This provides:

(1) An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose, or six months where the relief sought is certiorari, unless the court considers that there is good reason for extending the period within which the application shall be made.

A question on the matter was referred by the High Court to the European Court of Justice pursuant to Article 177. On 25 July 1991 the Court of Justice held that the State was precluded from relying on national procedural rules relating to time limits for bringing proceedings so long as the Directive 79/7 had not been properly transposed into its domestic legal system.

This case too was settled without admission of liability.

On 18 June 1992 the Minister for Social Welfare made the European Communities (Social Welfare) Regulations 1992 (SI No. 152 of 1992), (the ‘1992 Regulations’), which granted some additional payments in respect of the differences in the rates of benefits paid to married men and married women between 1984 and 1986 but did not provide for all the differences.

For those who made claims under the 1992 Regulations they received:

1. The difference in the personal rate at which the social welfare benefits were paid to them between December 1984 and November 1986 and the personal rate paid to married men in similar circumstances during the same period.

2. Unemployment benefit for additional periods between 312 and 390 days at the rate paid to married men in the period 1984 to 1986, and

3. In some cases (where the husband was earning more than £50 per week) one half of the child dependency allowance a married man in similar family and social welfare circumstances would have received between December 1984 and November 1986. This was now part of what was called ‘household supplement’.

The payments made in 1993 (and in some cases 1994) were paid at the rates current between 1984 and 1986 and there was no provision for compensation by reason of the delay.

The 1992 Regulations did not make any provision for:

(1) Any payments to married women in respect of the transitional payments made to married men pursuant to the Social Welfare (Preservation of Rights) .

(2) There was no payment of the adult dependency allowance which was paid to married men between 1984 and 1986 because under the 1992 Regulations payment to the husband of this amount (as part of the household supplement) was deemed to be payment to the wife.

(3) There was no payment of an additional half of the child dependency allowance to women who received half under the 1992 Regulations to equate with what married men had received. There was no payment of any child dependency allowance to women with a dependant spouse or with a spouse on social welfare.

(4) For those entitled to unemployment assistance they were not paid at the relevant personal rate increased by an adult dependency allowance and the full child dependency allowance less the appropriate means test in accordance with the means test used by the Department of Social Welfare pre-November 1986 as married men in similar circumstances would have been paid. The 1992 Regulations deleted the special provision that applied to married women but placed a limit on the total amount payable to a couple and applied a post-November 1986 means test.

The plaintiffs all of whom are married women accordingly now claim declarations:

That they are entitled to receive the same benefits and to have the same rules applied to them that were paid and applied to married men in the same situation from 23 December 1984 under the Social Welfare Acts and Regulations 1981–1992.

That the State has failed to fully or properly implement Directive 79/7/EEC.

That the 1992 Regulations in particular articles 4 & 5 are ultra vires the powers of the Minister for Social Welfare and therefore null and void.

Alternatively that the 1992 Regulations are repugnant to Article 15.2 of the Constitution and are thereby null and void.

Alternatively that the 1992 Regulations are repugnant to Article 40.3 of the Constitution and are thereby null and void.

They claim damages for the failure by the State to fully or properly implement Directive 79/7/EEC, for breach of the duty of care and/or constitutional duty and/or statutory duty. They claim interest under the Courts Act 1981. The claim for an account was dropped.

The action by Esther Robinson and others originally comprised 79 plaintiffs. Of these nine discontinued the action, viz. Penelope Reilly, Jennifer Woods, Gemma Elders, Diana Delaney, Ann Smith, Mary Murray, Helen Kelleher, Margaret Fox and Imelda Hendrick. One of the plaintiffs, Elizabeth Hayden, died and is now represented by her husband and personal representative, James Hayden. In the action by Rosaleen McClean and Teresa Tate, the action by Rosaleen McClean was discontinued.

The following facts were admitted. The plaintiffs are persons who:

1. Were all married women on dates between 23 December 1984 and 21 November 1986 and subsequent thereto.

2. All had husbands living with them on dates between 23 December 1984 and 21 November 1986 and subsequent thereto.

3. Some of them had eligible children living with them between 23 December 1984 and 21 November 1986 and subsequent thereto.

Teresa Tate and 60 of the plaintiffs in the other action all fall into one or more of the following categories:

1. They were in receipt of social welfare benefits (unemployment, disability and invalidity) on dates between 23 December 1984 and 21 November 1986.

2. They had husbands in employment on dates between 23 December 1984 and 21 November 1986.

3. They had husbands in receipt of social welfare benefits on dates between 23 December 1984 and 21 November 1986.

4. They were in receipt of social welfare benefits in November 1986 on benefit weeks beginning 17, 19, 20 or 21 November 1986 and continued to be in receipt of social welfare benefits until various dates up to and including 31 July 1992.

The remaining ten plaintiffs, Mary Brennan, Noreen Clarke, Anne Dunne, Catherine Hughes, Marie O’Brien, Martina O’Brien, Pauline O’Connell, Margaret O’Rourke, Alice Stamp and Margaret Taaffe were unemployed but not in receipt of social welfare benefits on dates between 23 December 1984 and 21 November 1986.

The plaintiffs did not seek to prove the extent of each individual’s actual entitlement to social welfare benefit. That was left over to be dealt with as a matter of detail on an individual basis by the Department of Social Welfare. They sought recognition of their right to claim and to be paid if they were entitled.

Evidence was given by nine of the plaintiffs, as a sample of the different types of plaintiffs. Apart from Marian Redmond, these had heard about the equality arrears between 1991–1992.

A question arose about letters written to the department and replies thereto. According to the department’s records, six plaintiffs wrote to the Department of Social Welfare at different times between 1989 and 1992. These were Rose Teague, Kathleen Corcoran, Christina Murphy, Ann Berminghan, Teresa Dunne and Marie Shannon. Some letters were proved in evidence which were replies from the Department of Social Welfare concerning the implementation of the equal treatment provisions. In the letter to Marian Redmond (who was not on the department’s list) dated 2 October 1989 the department said:

However, while your interest has been duly noted no further action can be taken in relation to previous claims at this point in time until relevant issues which are before the courts have been adjudicated on.

Marian Redmond wrote again on 27 July 1991 and got no reply.

Another example was the reply to Mrs Theresa O’Donnell (also not on the department’s list) dated 23 March 1992 in which the department said:

While your interest has been noted, no further action is possible as the matter is still before the courts.

Mr Owen O’Broin, principal officer in the planning unit of the Department of Social Welfare was involved with the matter since August 1986. He gave evidence that the department had commenced calculating the cost of implementing the directive in 1985 in the context of the Cotter and McDermott case. Claims were made on an ongoing basis from 1987. The department did not process any claims. He agreed that the only message given to women who inquired was that the department could not do anything, as the matter was before the courts. In 1992 it was decided that provision would be made for equality for the period of delay. Prior to the decision to introduce the 1992 Regulations, decisions were made on an ongoing basis to defend proceedings or to settle without admission of liability. Since the case of Cotter and McDermott, 2,700 claims were settled.

Mr O’Broin supplied the figures on which a statistical analysis was made by Mr Bohan, assistant principal officer in the Department of Social Welfare responsible for the statistics section in the planning unit. Mr O’Broin said that the number of women actually paid under the 1992 Regulations were taken to be the number of potential beneficiaries. They identified those women who qualified for social welfare between December 1984 and 1986. The figure which formed the basis of the estimate was 69,152. This did not include the 2,700 women who settled. He arranged for a survey of a sample of the women concerned, computed the sample and gave it to Mr Bohan. The sample was done in two phases; initially with 200 and later with a further sample of another 200. The number of women who had initiated proceedings (apart from those who settled) was approximately 8,500.

Mr Bohan’s evidence as to the potential cost of paying arrears as claimed by the plaintiffs was objected to by Ms Finlay SC. Mr Fennelly SC for the State submitted that the European Court of Justice would have regard to the financial exposure of the Irish State. I allowed the evidence on the basis that, while it was not relevant before me, it might be relevant before the European Court of Justice. But I must emphasise that for the State to try and avoid its responsibilities on the basis of cost would not be acceptable in the courts in this State.

On the assumption that the number of potential beneficiaries would be based on the number of married women who received payments under the 1992 Regulations, Mr Bohan estimated that the net cost of payment for the period of delay of adult and child dependants’ allowance and also transitional payments would amount to £354,000,000 on one estimate or £265,000,000 on another estimate. The breakdown (rounded to the nearest million) was calculated as follows:

For the period of delayed payments of adult and child dependency benefits

£142,000,000

Less benefits already paid

£ 17,000,000

Balance

£125,000,000

Plus,

 

Transitional payments

£ 96,000,000

Plus, either

 

Interest under the Courts Act 1981

£133,000,000

Total

£354,000,000

or, Alternatively, estimated additional cost on a CPI basis

£ 44,000,000

Total

£265,000,000

These figures represent a worst case scenario. There was no estimate of the likely percentage of those entitled who would actually apply.

The first issue to be decided is whether the plaintiffs suffered discrimination by reason of the fact:

(a) That married men in similar circumstances received payments which they did not get and

(b) That the plaintiffs failed to get any additional payment in 1992 to compensate for late payment.

The State did not contest the plaintiffs’ claim about the continuation of discrimination after 23 December 1984 but submitted that the State fully implemented the directive prospectively from December 1986. The main arguments of the State were directed to the plea that the plaintiffs’ claims arising prior to six years before the issue of proceedings were statute-barred or that the plaintiffs were guilty of laches or that they did not suffer any damage.

It is established that Directive 79/7/EEC could be relied on from 23 December 1984 in the absence of implementation and that women were entitled to have the same rules applied as applied to married men in the same situation. (See Cotter and McDermott v. Minister for Social Welfare (No. 1) (24 March 1987) [1987] ECR 1453).

It is also established that where married men after 23 December 1984 automatically received benefits in respect of a spouse and children without having to prove actual dependency, married women are entitled to have the same rules applied even if this results in double payments. Also that where transitional provisions provided for compensatory payments to married men who had lost entitlement to a dependant wife’s allowance, married women in the same family circumstances were entitled to the same payment even if it infringed the prohibition on unjust enrichment laid down by law. (See Cotter and McDermott v. Minister for Social Welfare (No. 2) (31 March 1991) [1991] ECR-1 1155).

The claim that the State had fully implemented the directive prospectively from December 1986 cannot be sustained. The payments under the Preservation of Rights Orders cannot be ignored. It was not until July 1992 when these payments were eliminated that the State implemented the directive prospectively. The directive was binding as to the result to be achieved but left the choice of form to the national authorities. Until such time as the directive was implemented, the same rules as applied to men had to be applied to women since in the absence of compliance with the directive those rules remained the only valid point of reference. The State has only itself to blame. It not only failed to eliminate discrimination retrospectively in 1986 but it invented a new form of payment for men only which it continued to pay until July 1992.

Based on those principles the plaintiffs continue to suffer the following discrimination:

1. The residual discrimination in respect of the period 23 December 1984 to the end of 1986. This comprises, as already stated, failure to pay the entire adult dependency allowance, half, or in some cases all, the child dependency allowance and unemployment assistance in accordance with the pre-November 1986 means test.

2. Failure to pay the transitional compensatory payments to married women in the same circumstances as married men who received it from December 1984 to July 1992.

3. Since the payments made under the 1992 Regulations were paid at the rates current between 1984 and 1986 the question of provision for compensation by reason of delay arises (for example, the CPI shows that the value of £1 mid-November 1984 equalled £1.32 in mid-November 1993).

A relevant case to consider is the case of Marshall v. Southwest Hampshire Area Health Authority (No. 2) [1993] IRLR 445.

In that case one of the questions asked was whether compensation for damage sustained should include an award of interest on the principal amount from the date of the unlawful discrimination to the date when compensation is paid. The answer given by the European Court of Justice with regard to interest, was (at p. 449):

that full compensation for the loss and damage sustained as a result of discriminatory dismissal cannot leave out of account factors, such as the effluxion of time, which may in fact reduce its value. The award of interest, in accordance with the applicable national rules, must therefore be regarded as an essential component of compensation for the purposes of restoring real equality of treatment.

Therefore, on the basis that European law imputes an obligation to include an element of compensation where money due is reduced in real terms, the failure to include any compensation for late payment must also be viewed as continuing discrimination.

The next two issues are inter-related namely, what is the nature of the right conferred on the plaintiffs by the directive after the date for implementation is passed, and as a corollary to that, what is the nature of the wrong committed by the State in failing to implement the directive in time.

Ms Finlay submitted that the State is liable to compensate the plaintiffs for loss and damage suffered by reason of the State’s failure to implement the Directive 79/7/EEC. (See Francovich v. Italy (Case C-6, C-9/90) [1991] ECR-1 5357). The conditions for state liability where a member state has failed to take all the measures necessary to achieve the result prescribed by a directive, as laid down in that judgment, are fulfilled here:

1. The Directive 79/7/EEC entails a grant of rights to individuals,

2. It is possible to identify the content of those rights on the basis of the provisions of the directive, and

3. There is a causal link between the breach of the State’s obligation and the loss and damage suffered by the plaintiffs (see paragraph 40).

That judgment also provided that the nature of the plaintiffs’ entitlement to damages should be determined in accordance with national rules, which must not be less favourable than those relating to similar domestic claims and must not be framed so as to make it virtually impossible or excessively difficult to obtain compensation.

Ms Finlay submitted there are as yet no national rules relating to damages for a breach by the State of its obligations under community law, and that the State in continuing to fail to implement the directive fully is in breach of Article 40.3 of the Constitution. This provides:

1. The State guarantees in its laws to respect, and as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

2. The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen.

3. [not relevant].

She said the right acquired by an individual at the end of the period allowed for implementation was either a personal right or property right within the meaning of Article 40.3.

It was also pleaded that the minister owed a duty of care regarding the transposing of the directive into Irish law by 23 December 1984.

On the other hand Mr Fennelly submitted that the rights of the plaintiffs derive from the directive and not from the Constitution. The concept of the duty of care taken from the common law of negligence has no bearing on the legal issues in the case. The meaning and effect of the directive and the relevant treaty provisions are to be construed and interpreted by the European Court of Justice. The rights as interpreted by that court derive not from the Constitution or the legal order of a member state but from the directive construed in the light of the treaty. The directive has effect in Irish law by virtue of Article 29.4.3° of the Constitution and s. 2 of the European Communities Act 1972. The function of the constitutional amendment was to allow the entire body of European Community law to have effect in Ireland in spite of any provision in the Constitution. It did not confer any new constitutional right; rather its tendency is to qualify those rights.

I prefer Mr Fennelly’s view. We are concerned here with a whole new legal order.

The nature of the existence of state liability under community law is set out in Francovich v. Italy, paragraphs 31 to 37:

The existence of state liability as a matter of principle
31. It should be borne in mind at the outset that the EEC Treaty has created its own legal system, which is integrated into the legal systems of the member states and which their courts are bound to apply. The subjects of that legal system are not only the member states but also their nationals. Just as it imposes burdens on individuals, community law is also intended to give rise to rights which become part of their legal patrimony. Those rights arise not only where they are expressly granted by the treaty but also by virtue of obligations which the treaty imposes in a clearly defined manner both on individuals and on the member states and the community institutions (see the judgments in Case 26/62 Van Gend en Loos [1963] ECR 1 and Case 6/64 Costa v. ENEL [1964] ECR 585).

32. Furthermore, it has been consistently held that the national courts whose task it is to apply the provisions of community law in areas within their jurisdiction must ensure that those rules take full effect and must protect the rights which they confer on individuals (see in particular the judgments in Case 106/77 Amministrazione delle Finanze dello Stato v. Simmenthal [1978] ECR 629, paragraph 16, and Case C-213/89 Factortame [1990] ECR-1 2433, paragraph 19).

33. The full effectiveness of community rules would be impaired and the protection of the rights which they grant would be weakened if individuals were unable to obtain redress when their rights are infringed by a breach of community law for which a member state can be held responsible.

. The possibility of obtaining redress from the member state is particularly indispensable where, as in this case, the full effectiveness of community rules is subject to prior action on the part of the state and where, consequently, in the absence of such action, individuals cannot enforce before the national courts the rights conferred upon them by community law.

35. It follows that the principle whereby a state must be liable for loss and damage caused to individuals as a result of breaches of community law for which the state can be held responsible is inherent in the system of the treaty.

36. A further basis for the obligation of member states to make good such loss and damage is to be found in Article 5 of the treaty, under which the member states are required to take all appropriate measures, whether general or particular, to ensure fulfilment of their obligations under community law. Among these is the obligation to nullify the unlawful consequences of a breach of community law (see, in relation to the analogous provision of Article 86 of the ECSC Treaty, the judgment in Case 6/60 Humblet v. Belgium [1960] ECR 559).

37. It follows from all the foregoing that it is a principle of community law that the member states are obliged to make good loss and damage caused to individuals by breaches of community law for which they can be held responsible.

The European Communities Act 1972, s. 2 provides:

From 1 January 1973 the treaties governing the European Communities and the existing and future acts adopted by the institutions of those communities shall be binding on the State and shall be part of the domestic law thereof under the conditions laid down in those treaties.

This section is the conduit pipe through which community law became part of domestic law. The Constitution was amended to enable accession to the community, the European Communities Act 1972 was passed and the Treaty of Accession was agreed, and thereby the whole body of community law, past, present and future was incorporated into domestic law. But community law did not thereby become constitutional law or statute law. It is still community law governed by community law but with domestic effect. And it is in that form that it is part of domestic law.

In the case of Meagher v. Minister for Agriculture [1994] 1 IR 329; [1994] 1 ILRM 1, Blayney J touches on the matter when he says at p. 360/21–22:

The relevant directives here were binding on the State, from the moment they were adopted, ‘as to the results to be achieved’ …. So the State was bound to introduce effective sanctions, and if this necessitated adopting a measure which impliedly amended an existing statute, that measure would prevail over the statute because it was in substance a measure of community law. It is only in form that it is part of domestic law. It derives its force from the directive which is binding on the State as to the results to be achieved.

Therefore, the rights of the plaintiffs in this case come from the directive which had direct effect as from 23 December 1984 because the State failed in its obligation to implement the directive under Article 5 of the Treaty of Rome.

In my opinion, the concept of the duty of care under the law of negligence is not applicable. The plaintiffs’ claim does not arise as a breach of a constitutional right (as in Conway v. Irish National Teachers’ Organisation [1991] 1 IR 305; [1991] ILRM 497). The plaintiffs’ right to sue the State derives from the directive itself once the date for implementation had passed and this right must be interpreted in accordance with community law as enunciated by the European Court of Justice.

Therefore, as from 23 December 1984 the plaintiffs were entitled to rely on the provisions of the directive to preclude the application of any national provision inconsistent with article 4(1) of the directive (see Cotter and McDermott (No. 2), a right which was conferred by European law.

That being so, what was the nature of the wrong committed by the State in failing to implement the directive within the time limited? Here again the wrong belongs to the new order.

In my opinion, the wrong committed by the State in continuing the discrimination by failing to fully implement the directive is a wrong arising from community law which has domestic effect. It is not a breach of constitutional rights; it is not a breach of statutory duty and it is not a breach of the duty of care. It is a breach of a duty to implement the directive and it approximates to a breach of constitutional duty. Every type of action which would be available in the national domestic law to ensure the observance of national law is available to ensure observance of the directive once it took on the mantle of direct effect.

The next issue is whether the State can claim that the plaintiffs’ claim is statute-barred. This has two aspects,

(a) does the Statute of Limitations 1957 apply to this type of claim? and

(b) is the State precluded from relying on the statute by virtue of the Emmott case or by estoppel?

The State claims that it is entitled to rely on the Statute of Limitations 1957 to bar the right of the plaintiffs to recover any sum of money due in respect of the delay in implementation of the directive from 1984 to 1986 and also to bar any sum claimed in respect of the transitional compensatory payments paid to men which fell due more than six years before the issue of proceedings. In Mrs Tate’s case, the relevant date is 16 July 1987 and for the other plaintiffs 17 September 1987.

Mr Fennelly submitted that if this is a claim for money due under statute then s. 11(1)(e) applies. That provides:

The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued ….

(e) Actions to recover the sums recoverable by virtue of any enactment, other than … (does not apply).

If this is a claim for damages, s. 11(2)(a) applies. This provides:

Subject to paragraphs (b) and (c) of this subsection, 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.

Subparagraphs (b) and (c) do not apply.

Mr Fennelly submitted that this is an action founded in tort. A tort is a civil wrong and it is undefined in the Act. A breach of duty is mentioned in s. 11(2)(b), but only in the context of personal injuries. He claimed that the wrong first occurred on 24 January 1984. This was a breach of statutory duty imposed by the European Communities Act 1972. Although there is no specific provision in the Statute of Limitations for a breach of statutory duty, it is accepted that it is a tort (Ms Finlay agreed with this).

Mr Fennelly referred to the judgment of Lord Diplock in Garden Cottage Foods Ltd v. Milk Marketing Board [1983] 2 All ER 770 in reference toArticle 86 of the EC Treaty (concerning the prohibition of abuse of a dominant position) which had direct effect. He said (at p. 775) that a breach of duty imposed by Article 86 could be categorised in English law as a breach of statutory duty that is imposed not only for the purpose of promoting the general economic prosperity of the common market but also for the benefit of private individuals to whom loss or damage is caused by breach of that duty.

Mr Fennelly also referred to the case of Rewe-Zentralfinanz EG v. Landwirtschaftskammer für das Saarland (Case 33/76) [1976] ECR 1989) which concerned the refusal to repay the equivalent of customs duties wrongfully charged. It was held that in the then state of community law, there was nothing to prevent a citizen who contests before a national court a decision of a national authority on the ground that it is incompatible with community law, from being confronted with the defence that limitation periods laid down by national law have expired, it being understood that the procedural conditions governing the action may not be less favourable than those relating to similar actions of a domestic nature. (In this case, it was the period for challenging an administrative decision which had expired).

The court said (at paragraph 5) that in the absence of measures of harmonisation, the right conferred by community law must be exercised before the national courts in accordance with conditions laid down by national rules. The position would be different only if the conditions and time limits made it impossible in practice to exercise the rights which the national courts are obliged to protect. This is not the case where reasonable periods of limitation of actions are fixed. The laying down of such time limits with regard to actions of a fiscal nature is an application of the fundamental principle of legal certainty protecting both the taxpayer and the administration concerned.

Another case cited by Mr Fennelly is Rewe-Handelsgesellschaft Nord v. Hauptzollamt Kiel (Case 158/80) [1981] ECR 1805. It was stated (at paragraph 44) that:

although the treaty made it possible in a number of instances for private persons to bring direct action where appropriate before the Court of Justice, it was not intended to create new remedies in the national courts to ensure observation of community law other than those already laid down by national law. On the other hand, the system of legal protection established by the treaty, as set out in Article 177 in particular, implies that it must be possible for every type of action provided for by national law to be available for the purpose of ensuring observance of community provisions having direct effect, on the same conditions concerning the admissibility and procedure as would apply were it a question of ensuring observance of national law.

Ms Finlay on the other hand, submitted that there was no part of s. 11 which would bar the plaintiffs from applying to enforce their rights relying on the direct effect of the directive once the time for implementation had passed. She claimed two distinct causes of action:

1. Direct effect and

2. The State’s failure to implement the directive.

She said this is not a breach of statutory duty. The directive should have been implemented by December 1984, but since it was not, it had never been given analogous statutory force. It is a new cause of action emanating from community law and does not emanate from within the domestic legal system. She said the cause of action is a right to assert a right against the State and the relief sought is a separate question from the cause of action.

Ms Finlay argued that the other cause of action (i.e. failure to implement the directive) is not a tort since tort does not include a breach of duty imposed by European law which is not yet part of domestic law.

While Mr Fennelly says breach of constitutional duty is also a tort, Ms Finlay replies that the Supreme Court makes a distinction between torts and breach of constitutional rights. (See Conway v. INTO [1991] 1 IR 305 at p. 316 and Hanrahan v. Merck Sharp and Dohme (Ireland) Ltd [1988] ILRM 629 at p. 636).

It seems to me that Ms Finlay is correct in saying there are two distinct causes of action but I do not agree that the relief sought is a separate question. I think the relief sought indicates which cause of action is being pursued.

I agree there is a cause of action based on direct effect which entitles a person who is discriminated against to sue directly for the entitlement which is withheld relying on the directive to preclude the application of any national provision inconsistent with the directive.

If this were the cause of action being pursued, what the plaintiffs would have to claim would be the actual benefits awarded by the Social Welfare Acts and regulations to men in a similar situation on the basis that the same rules should be applied to them. Here it should be noted that among the ‘rules’ which would apply to men would be s. 11(1)(e) of the Statute of Limitations. This bars actions to recover sums recoverable by virtue of any enactment where the cause of action arose more than six years previously. On the basis that what is sauce for the gander, is sauce for the goose, this ‘rule’ would also have to apply to women making this type of claim.

However, the plaintiffs have based their claim squarely in damages and the claim for an account was dropped. Therefore the plaintiffs have opted for the cause of action based on the State’s failure to implement the directive.

So, is this a breach of statutory duty as claimed by Mr Fennelly or some other kind of tort which might or might not be included in the Statute of Limitations?

I do not accept that the breach of obligation by the State to implement the directive is a breach of statutory duty. It is, as I already said earlier, a wrong arising from community law which has domestic effect and approximates to a breach of constitutional duty. While the Supreme Court did speak separately of torts and breach of constitutional rights in Conway v. INTO, it was not in the context of the Statute of Limitations. I would be surprised if there was no limitation period affecting breach of constitutional rights. Just as the word ‘tort’ in the Statute of Limitations is sufficiently wide to embrace breach of statutory duty even though not specifically mentioned, so also, in my opinion, the word ‘tort’ is sufficiently wide to cover breaches of obligations of the State under community law. There is nothing strange in describing the State’s failure to fulfil its obligations under the treaty as a tort.

Therefore I am satisfied that s. 11(2) of the Statute of Limitations does apply to a breach of obligation to observe community law. This also means that the plea of laches is no longer relevant.

The next point by Ms Finlay is that if the Statute of Limitations does apply to this action there is a new cause of action by virtue of the 1992 Regulations. The State belatedly adopted measures in 1992 to implement the directive. In doing so they were obliged to respect the rights of individuals granted under the directive. The regulations are defective because they fail to fully implement the directive. She cited the case of M.A. De Weerd nee Rokes (24 February 1994 unreported):

A member state may not impose in national legislation intended to implement article 4 under the directive adopted after the expiry of the time limit set by the directive, conditions which deprive married women of the rights which they derive as from the expiry of that period, from the direct effect of that provision of community law.

She claims a fresh breach of duty occurred insofar as the 1992 Regulations failed to respect the plaintiffs’ rights. It is true that the regulations deprive married women of rights under the directive, therefore I accept the argument that a fresh cause of action arose. The regulations while purporting to provide for equality of treatment for the delay in implementation deprived women of the right to the full child allowance making provision only for half (and in some case for none) and they deprived women of the entire adult dependants’ allowance. They also changed the means test for social assistance.

Can it be said that failure to provide in the 1992 Regulations for payment of the transitional payments gave rise to a fresh cause of action? That I doubt. The failure to include any provision for the payment to women of the equivalent of the transitional payment is an omission not a positive act. Since there is no new positive act, I do not think there can be a fresh cause of action.

Since this means that transitional payments falling due more than six years before the action was brought are barred, that gives rise to the next question. Does the judgment in the Emmott case preclude the State from pleading the Statute of Limitations or has the law in that regard been changed by the two subsequent cases, Steenhorst-Neerings (27 October 1993) and Johnson v. C.A.O. (6 December 1994)?

Mr Fennelly conceded that on a literal reading of the Emmott case that the State could not succeed but he said the law has been changed by the two later cases.

The facts of the Emmott case are as follows. Mrs Emmott wrote on 24 March 1987 to get the same amount of benefits as those paid to a married man in an identical situation. On 16 June 1987 the minister replied that since the directive was still the subject of litigation before the High Court no decision could be taken. On 22 June 1988 she got leave to issue proceedings for judicial review of that decision and was met with a plea that she had failed to observe the time limit for instituting proceedings under O. 84, r. 21(1) of the Rules of the Superior Courts.

The question asked of the European Court of Justice was a general one, whether the ruling of the court in Cotter and McDermott (No. 1) was to be understood as meaning that in a claim relying on article 4(1)‘it is contrary to the general principles of community law for the relevant authorities of a member state to rely on national procedural rules, in particular, rules relating to time limits, in bringing claims in defence of that claim such as to restrict or refuse such compensation’.

 

The courts said that the laying down of reasonable time limits which if unobserved bar proceedings, in principle satisfies the condition, provided the conditions are no less favourable than those relating to similar actions of a domestic nature and not framed so as to render it virtually impossible to exercise rights conferred by community law. Although Article 189 paragraph (3) of the EEC Treaty leaves member states free to choose the means of implementing a directive, they must adopt within the framework of their national legal system all the measures necessary to ensure that the directive is fully effective.

Member states are required to ensure the full application of directives in sufficiently clear and precise manner so that where directives are intended to create rights for individuals, they can ascertain the full extent of those rights. So long as a directive has not been properly transposed into national law individuals are unable to ascertain the full extent of those rights.

The court said (at paragraphs 22 and 23):

(22) Only the proper transposition of the directive will bring that state of uncertainty to an end and it is only upon that transposition that the legal certainty which must exist if individuals are to be required to assert their rights is created.

(23) It follows that, until such time as a directive has been properly transposed, a defaulting member state may not rely on an individual’s delay in initiating proceedings against it in order to protect rights conferred upon him by the provisions of the directive and that a period laid down by national law within which proceedings must be initiated cannot begin to run before that time.

Those words are very clear. So do the cases of Steenhorst-Neerings and Johnson alter the law?

In the Steenhorst-Neerings case (27 October 1993), the European Court of Justice was asked whether community law precludes the application of a national rule of law according to which benefits for incapacity for work are paid not earlier than one year before the date of claim where an individual seeks to rely on rights conferred directly by article 4(1) of the Directive 79/7 with effect from 23 December 1984 and where on the date of claim the member state had not yet, properly transposed that provision into national law. Mrs Steenhorst-Neerings had applied for welfare benefits under the AAW (the general law on incapacity for work). That law provided that benefits are payable not earlier than one year before the date on which claimed or on which they are automatically granted.

The court distinguished the Emmott case by saying that Mrs Emmott relied on the judgment in Cotter and McDermott and the national authorities had declined to adjudicate on her claim because proceedings were pending before a national court and then claimed her proceedings were out of time even though the directive had still not been correctly transposed into national law. The court noted that unlike the rule of domestic law fixing time limits for bringing actions, the rule referred for a preliminary ruling in the Steenhorst case, did not affect the right of individuals to rely on Directive 79/7 in proceedings before the national courts against a defaulting member state. It merely limited the retroactive effect of claims made for the purpose of obtaining the relevant benefits.

The court also said at paragraph 22 that the Emmott judgment indicates that the requirement of a time limit which ensures administrative decisions cannot be challenged indefinitely, cannot prevail over the need to protect rights conferred on individuals by direct effect as long as the member state has not properly transposed the directive into national law. On the other hand it said the aim of the rule restricting the retroactive effect of claims for benefits for incapacity for work is quite different from that of a rule imposing mandatory time limits for bringing proceedings. Accordingly, the court answered the question by saying that community law did not preclude the application of a national rule of law whereby benefits for incapacity for work are payable not earlier than one year before the date of claim where the individual relies on article 4(1) of the Directive 79/7 and where the member state has not yet properly transposed that provision into national law.

In the Johnson case, Mrs Johnson had been entitled to an invalidity benefit (NCIB) which ceased to be payable when she began cohabiting with a male friend. A different test was applied to her than would have been applied to a man.

In 1984 invalidity benefit was abolished and a new severe disablement allowance (SDA) was introduced.

Persons entitled to the old NCIB automatically qualified without being required to prove that they satisfied the new conditions.

Mrs Johnson applied on 17 August 1987 for the SDA and was turned down. She made a claim before the European Court of Justice and it held that it had been possible since 23 December 1984 to rely on article 4 of Directive 79/7 in order to have set aside national regulations which made entitlement to a benefit subject to the previous submission of a claim in respect of a different benefit which had since been abolished and which had entailed a condition discriminating against female workers.

Following that case she was granted the SDA but only with effect from twelve months prior to her claim. This curtailment was based on a rule that said no person should be entitled in respect of any period more than twelve months before the date on which the claim is made.

She appealed and since there were the two decisions apparently conflicting, Emmott and Steenhorst-Neerings, the matter was referred to the European Court of Justice.

The court observed that in the Johnson case the wording of the contested rule showed it was of general application and it merely limited the period prior to the bringing of a claim in respect of which arrears of benefit are payable and did not make it virtually impossible to bring an action relying on community law.

 

The court said it was clear that the solution adopted in Emmott was justified by the special circumstances of that case in which a time bar had the result of depriving the applicant of any opportunity whatever to rely on her right to equal treatment.

It held the rule adversely affecting Mrs Johnson was similar to that at issue in the Steenhorst-Neerings case. Neither rule constituted a bar to proceedings. They merely limited the period prior to the bringing of the claim in respect of which arrears of benefit were payable.

In this case, while s. 11 of the Statute of Limitations does provide that no tort action shall be brought after the expiration of six years from the date on which the cause of action accrued, and so it is a ‘rule imposing mandatory time limits for bringing proceedings’, the reality is that where there is a continuing breach it too, in effect, limits the period in respect of which arrears of benefit can be claimed. The effect is that a claim can be made for six years’ arrears. This is very different to the original Emmott case where Mrs Emmott decided to proceed by way of judicial review and the time bar pleaded was one which applied to judicial review. If she had issued a plenary summons in 1988 she would not have been barred from claiming her entitlement from 24 December 1984.

So it appears to me that the reference in the Johnson case to the particular circumstances of the Emmott case makes me believe that it does not have the wide general application which it appears to have on first reading. Also bearing in mind the Rewe-Zentralfinanz case, it seems to me that the European Court of Justice would now find nothing wrong in having a limitation period of six years even though the directive has not yet fully been implemented.

It follows that I believe the Emmott case does not prevent the State from pleading the Statute of Limitations in respect of the transitional payments which fell due more than six years before the action was brought.

In respect of a small number of plaintiffs who made claims prior to the passing of the 1992 Regulations, it is pleaded that the State is estopped from relying on the Statute of Limitations to defeat their claims.

Mr Fennelly accepted that if these plaintiffs were misled by unambiguous promises that the State would not rely on the Statute of Limitations and therefore they did not issue proceedings within time, estoppel would apply but he said there was no such evidence. He cited Doran v. Thompson & Sons Ltd [1978] IR 223. In that case Henchy J at p. 225 gave the underlying reason for estoppel and said:

it would be dishonest or unconscionable for the defendant, having misled the plaintiff into a feeling of security on the issue of liability and, thereby, into a justifiable belief that the statute would not be used to defeat his claim, to escape liability by pleading the statute.

Nothing like that has happened here. The most the State did was to write saying no further action was possible because the matter was before the court. There were no words or conduct which could have misled any of these plaintiffs to infer liability would be admitted. Accordingly, this plea fails.

The next issue is what are the appropriate damages? Mr Fennelly said that damages are not appropriate at all. He said the amounts being claimed are greater than the plaintiffs would have been entitled to if the directive had been implemented in time. He said the plaintiffs are claiming the benefit of unjust enrichment and this goes beyond compensatory damages. He said the sums being claimed are not sums the plaintiffs were caused to lose, rather they are sums they gained. But this argument does not stand up to examination. What the plaintiffs are entitled to is to have the same rules applied to them as applied to married men in the same circumstances. That is their legal entitlement. As long as the State did not transpose the directive, the rules applying to men are the only reference. This means they are entitled to be paid the same sums that would have been paid to married men in the same situation,

(a) between December 1984 and the end of 1986 and,

(b) the transitional payments paid to married men from six years before an action was brought to July 1992.

The State cannot complain if there is any element of double payment or unjust enrichment since this was dealt with by the European Court of Justice in Cotter and McDermott (No. 2).

The plaintiffs are also entitled, following the judgment already mentioned in Marshall v. Southwest Hampshire Area Health Authority (No. 2) [1993] IRLR 445 to compensation for the delay in payment. I consider the best way to bring the payments due for earlier years up to date is to apply to them the consumer price index which has been admitted in evidence. This means that payment received will equate in real terms with the payments received in former years by their male counterparts. The amounts due as increased by the CPI are in fact nothing more than compensatory damages. There is no element of punitive or exemplary damages included. Even though the State has wriggled for ten years in its efforts to avoid paying the same to women as to men, in view of the very large sums involved, I do not intend to add any element of punitive or exemplary damages.

The question of referring the matter to the European Court of Justice for an opinion does not arise. Mr Fennelly asked that I would submit a case in relation to the interpretation of the Emmott, Steenhorst-Neerings and Johnson cases. Ms Finlay asked me not to. In the event, Mr Fennelly’s view of those cases prevailed, so I do not see any necessity for a reference by me.

The last issue is whether the 1992 Regulations are void on the basis that they are ultra vires the Minister for Social Welfare. His powers under s. 3 of the European Community Act 1972 are limited to making regulations enabling s. 2 of the Act to have effect, i.e. in furtherance of community law not in derogation of it. Mr Fennelly submitted there was nothing wrong with deeming payments to the husband to be payments to the wife and he said equality was given retrospectively in 1992 for the period of 1984/1986, neither of which submissions I would accept. He submitted that the court cannot eliminate certain provisions if what is left does not represent the legislative intent, i.e. the court cannot legislate by deletion.

However, I do not think it is necessary to declare the 1992 Regulations ultra vires and void. Money has been paid out under them even though this did not fully compensate for breach of the directive. I agree that the court should not legislate by deletion. The regulations are so convoluted that to delete any section or subsection could well have a domino effect on the whole edifice. What I do intend to do is to declare that the State is not entitled to rely on any portion of the 1992 Regulations which has the effect of not recognising the plaintiffs’ rights under the direct effect of the directive.

The relief which I will grant is:

(1) A declaration that the defendants have failed to fully or properly implement Directive 79/7/EEC.

(2) A declaration that the plaintiffs were entitled as from 23 December 1984 to receive the same benefits and to have the rules under the Social Welfare Acts and Regulations 1981–1992 that were paid and applied to married men in the said situation paid and applied to them.

(3) A declaration that the defendants are not entitled to rely on any portion of the European Communities (Social Welfare) Regulations 1992 (SI No. 152 of 1992) which has the effect of not recognising the plaintiffs’ rights under the direct effect of the directive.

(4) Damages equivalent to the benefits or assistance which married men in the same circumstances received and which they did not receive, for the period commencing 23 December 1984 and ending on the relevant date at the end of 1986 increased by the appropriate amount under the CPI to date of payment.

(5) Damages equivalent to the transitional payments which married men in the same circumstances received and which they did not receive, from 16 July 1987 for Teresa Tate and from 17 September 1987 for all other plaintiffs increased by the appropriate amount under the CPI to date of payment.

The plaintiffs will now have to apply to the Department of Social Welfare to have their applications for entitlement considered in the light of the declarations made.

Liberty to apply.

Murphy v. Ireland [1996] 2 I.L.R.M. 461 Carroll J

In this action the plaintiff claims damages for breach of constitutional rights. He was appointed to the post of assistant county engineer with Waterford County Council on 31 March 1970. He was convicted on 22 May 1973 on four counts connected with the importation of firearms and explosives in March 1973 in the MV Claudia. He was sentenced to two years’ imprisonment concurrent on each count, suspended on his entering into a bond and getting an independent surety and on condition that he keep the peace and be of good behaviour for two years.

The Department of Local Government wrote to the county manager of Waterford County Council on 12 September 1973, notifying the council of the forfeiture by the plaintiff of his position as assistant county engineer pursuant to s. 34(1) of the Offences Against the State Act 1939. The county secretary notified the plaintiff of this forfeiture on 14 September 1973, the date he received the letter. The plaintiff appealed to the government on 15 October 1973 to reinstate him, but this request was refused on 9 November 1973.

The plaintiff found different employment over the years at different times and is currently employed by the South Eastern Health Board as project co-ordinator for the new Regional Hospital at Ardkeen, County Waterford. After the Supreme Court gave its decision on 11 July 1991 in the case of Cox v. Ireland [1992] 2 IR 503, that s. 34 of the Offences Against the State Act 1939 was unconstitutional, the plaintiff issued these proceedings on 6 May 1993, i.e. almost 20 years after he had been notified of the forfeiture of his position.

The plaintiff gave some evidence of damage suffered as a result of the forfeiture. But by agreement, any question relating to proof of damage was left over until the question of the liability of the State was established.

This case is on all fours with a similar case, McDonnell v. Ireland [1996] 2 ILRM 222 in which I gave judgment on 19 January 1996. In that case, Mr McDonnell issued his proceedings over 16 and a half years after his position with the Department of Post and Telegraphs was forfeited in similar circumstances. He was unsuccessful. I held that the Statute of Limitations 1957, s. 11(2) applied to a breach of constitutional right in the nature of a tort. The word ‘tort’ was not defined in the Act and breach of statutory duty had always been considered to be included within the meaning of the word ‘tort’. I had held in Tate v. Minister for Social Welfare [1995] 1 IR 418; [1995] 1 ILRM 507 that the meaning of the word was sufficiently wide to include breach of obligations of the State under community law. So in McDonnell v. Ireland, I held that the word ‘tort’ was sufficiently wide to include breach of constitutional right. Not surprisingly, Mr Comyn SC for the State relied on the judgment in McDonnell v. Ireland. He said tort is a civil wrong for which damages are sought. He referred to Kelly, The Irish Constitution (3rd ed. at p. 707):

In the aftermath of Meskell v. CIE and in particular Walsh J’s remark therein that constitutional rights can be protected or enforced by action ‘even though such action may not fit into any of the ordinary forms of action in either common law or equity’, it was speculated that nominate torts such as assault, battery, libel and false imprisonment might disappear to be replaced by an ‘innominate claim for infringement of personal rights’. In fact nothing so dramatic as that has occurred; instead the courts have tended to take the view that the law of tort generally provides adequate protection for personal rights and that it is only in those cases where common law remedies are inadequate or non-existent that an action based directly on the Constitution would arise.

Mr Comyn said Meskell v. CIE [1973] IR 121 was a conspiracy case, based on tort and was not a pure constitutional case.

In the Cox case, no question of delay arose. The action was taken within six years from the cause of action. In this case the action of the State has all the hallmarks of the tort of procuring a breach of contract.

Alternatively, Mr Comyn said the doctrine of laches applies. The State would suffer an enormous prejudice if the claim was not disallowed. The amount claimed for special damages alone is very large (amounting to over half a million pounds). If the matter had been litigated within a reasonable time the actuarial calculations would have been very different. The acquiescence of the plaintiff over such a long period must disentitle him to recover damages.

He referred to Henchy J in Murphy v. Attorney General [1982] IR 241 at p. 314:

For a variety of reasons, the law recognizes that in certain circumstances, no matter how unfounded in law certain conduct may have been, no matter how unwarranted its operation in a particular case, what has happened has happened and cannot, or should not, be undone.

In that case, Henchy J held that the doctrine of laches applied.

Mr Rogers SC for the plaintiff submitted that there was no express statutory provision which barred the plaintiff’s action. The Statute of Limitations could not be invoked to impose a limitation on a constitutional action. There is nothing to warrant the interpretation that a constitutional action is limited by the passage of time. There is no definition of tort in the Statute of Limitations by contrast to the Civil Liability Act 1961 (s. 2) which defines a wrong as a tort, breach of contract or breach of trust. This Act provides a code for the adjudication of wrongs. The code defines a wrong but does not include a constitutional wrong. Since there was no express provision for a constitutional wrong in the statutory code, therefore, the Oireachtas intended that there should not be one. The Statute of Limitations at no stage adopted an inclusive definition of wrong. It identifies specific torts.

Mr Rogers claims that the reasoning in O’Hanrahan v. Merck Sharp and Dohme [1988] ILRM 629 at p. 636 shows there is a clear distinction between a tort and breach of a constitutional right.

He said the Minister for the Environment and the secretary for the county council had no option but to apply the provisions of s. 34 until it was declared unconstitutional. There was a presumption of constitutionality on which a citizen could also rely. Therefore, a cause of action could not accrue in respect of a wrong that is presumed not to be a wrong. (See also East Donegal Co-Operative Livestock Marts Ltd v. Attorney General [1970] IR 317 at p. 341.) He said this question is also vital in connection with laches.

Mr Rogers cited the principles set out by Finlay CJ at p. 573 in State (Trimbole) v. Governor of Mountjoy Prison [1985] IR 550 that the courts have an interest and positive duty to protect persons against the invasion of their constitutional rights; if invaded to restore the person as far as possible to the position he would have been in if his rights had not been invaded and to ensure that those who consciously and deliberately violate the rights of citizens do not obtain the planned results of that invasion.

Mr Rogers also quoted Murphy v. Attorney General [1982] IR 241 at p. 313 where Henchy J said that a person damnified by the operation of an invalid provision will normally be accorded by the courts all permitted and necessary redress.

He submitted that laches cannot be presumed unless public policy has been proved.

Another point he made was that the wrong was a continuing wrong and that the plaintiff did not know of it until the Supreme Court decision in the Cox case.

In my opinion, the arguments put forward by Mr Rogers do not persuade me that I was wrong in the case of McDonnell v. Ireland.

In the case of O’Hanrahan v. Merck Sharp and Dohme, Henchy J says at p. 636:

So far as I am aware, the constitutional provisions relied on have never been used in the courts to shape the form of any existing tort or to change the normal onus of proof. The implementation of those constitutional rights is primarily a matter for the State and the courts are entitled to intervene only when there has been a failure to implement or, where the implementation relied on is plainly inadequate, to effectuate the constitutional guarantee in question. In many torts — for example, negligence, defamation, trespass to person or property — a plaintiff may give evidence of what he claims to be a breach of a constitutional right, but he may fail in the action because of what is usually a matter of onus of proof or because of some other legal or technical defence. A person may of course in the absence of a common law or statutory cause of action, sue directly for a breach of a constitutional right (see Meskell v. 2CIE [1973] IR 121); but when he founds his action on an existing tort he is normally confined to the limitations of that tort. It might be different if it could be shown that the tort in question is basically ineffective to protect his constitutional right.

To my mind, that passage confirms the view that where the existing law of tort provides adequate protection for the enforcement of constitutional rights, the State has implemented its duty under Article 40.3.1° of the Constitution ‘as far as practicable by its laws to defend and vindicate the personal rights of the citizen’. If the plaintiff’s constitutional rights are protected by being able to sue under the law of tort, then the statutory limitation periods applicable to torts must also apply. It is only in the absence of a common law or statutory cause of action that there is a necessity to sue directly for a breach of constitutional right (as happened in Kearney v. Minister for Justice [1986] IR 116; [1987] ILRM 52 where it was held that non-delivery of letters in prison was not a tort but was an unjustified infringement of a constitutional right).

There is no substance in the plaintiff’s argument that there was no cause of action until he knew that s. 34 had been held to be unconstitutional. He had the right to bring proceedings once he was notified that his job was forfeited. But he had to bring such action within the statutory period. The forfeiture complained of was a single act not a continuing wrong. The principle set out by Finlay CJ in State (Trimbole) v. Governor of Mountjoy Prison, of course applies to every infringement of constitutional rights but subject to the proviso that lapse of time may afford a defence to the wrongdoer.

If I am wrong about the Statute of Limitations applying to breaches of constitutional rights in the nature of a tort, then the plaintiff has been guilty of laches. In Murphy v. Attorney General Henchy J referred at pp. 318–19 to the definition of laches in Snell’s Principles of Equity (27th ed., p. 35) ‘Laches essentially consists of a substantial lapse of time coupled with the existence of circumstances which make it inequitable to enforce the claim’. He said:

What is a substantial lapse of time’ must depend on the circumstances of the particular case. I would consider that a tax payer who allowed his PAYE tax contributions to be deducted from his earnings, every week or every month, for the whole of a tax year, without bringing proceedings to assert the unconstitutionality of such deductions, should (in the absence of exceptional and excusing circumstances) be held barred from recovering the sums unwarrantedly collected during that tax year.

Certainly in this case, if the Statute of Limitations does not apply, then the doctrine of laches must apply. I do not think that proof of public policy is necessary. The matter speaks for itself. If the plaintiff did nothing for 20 years resulting in an extremely large claim for damages based on actuarial evidence that, in my view, is sufficient proof that the State has been prejudiced.

 

Blehein v Minister for Health

[2013] IEHC 319

Judgment of Ms. Justice Laffoy delivered on 26th day of June, 2013.
The 2010 judgment
1. In my judgment (under neutral citation [2010] IEHC 329) in this matter delivered on 24th August, 2010 (the 2010 judgment), I outlined the nature and procedural history of the proceedings and the issue then before the Court. In summary, in a judgment delivered on 7th December, 2004 in the High Court by Carroll J. (which is reported at [2004] 3 IR 610), the Court had found that s. 260 of the Mental Treatment Act 1945 (the Act of 1945) was unconstitutional having regard to Article 6 and Article 34 of the Constitution. On appeal by the defendants against that order, the Supreme Court, in a judgment dated 10th July, 2008 (reported at [2009] 1 IR 275), dismissed the appeal and affirmed the order of the High Court. The proceedings were subsequently re-entered in the High Court with the consent of the defendants. The issue which this Court addressed in the 2010 judgment was what relief or remedy (if any), as a matter of law, flowed from the decision of the Supreme Court, that is to say, whether or not, and to what extent, the declaration as to the invalidity of s. 260 gave rise to any further remedy and, if so, the nature of the remedy. In reality, the focus of the issue was whether the plaintiff is entitled to damages against the defendants in addition to the declaration of invalidity in these proceedings.

2. The outcome of the consideration of that issue by this Court in the 2010 judgment was inconclusive. The source of the inconclusivity primarily was concerns raised by a passage in the judgment of Henchy J. in Murphy v. Attorney General [1982] I.R. 241 (at p. 314), which is quoted in para. 6.3 of the 2010 judgment, and which was emphasised by counsel for the defendants. Henchy J. stated that it is not a universal rule that what is being done in pursuance of a law which has being held to be invalid for constitutional or other reasons will necessarily give a good cause of action. He stated that the law has to recognise that there may be “transcendent considerations” which make it “undesirable, impractical, or impossible” to correct “prejudice suffered at the hands of those who act without legal justification, where legal justification is required”. While I concluded that it would be neither impractical nor impossible to determine whether the plaintiff had a good cause of action for damages, I concluded that it would be undesirable to embark on a determination of the fundamental issue as to whether there were other “transcendent considerations” which militated against a determination that the plaintiff had a good cause of action for damages at that stage of the proceedings because, in effect, the Court would have been doing so in the abstract and, in any event, there might be factors which rendered such a determination unnecessary. One of those factors was the defendants’ reliance on the Statute of Limitations as a defence to the plaintiff’s claim for damages in the proceedings. The concerns of the Court were bolstered by the recent observations of Murray C.J. in D.K. v Crowley (now reported at [2011] 1 ILRM 309) quoted in para. 9.6 of the 2010 judgment.

3. Accordingly, the decision recorded at the end of the 2010 judgment (at para. 12.12) was to postpone a finding on the issue before the Court until issues, such as the defendants’ reliance on the Statute of Limitations 1957 (the Act of 1957), as amended, had been considered by reference to relevant evidence because, having regard to the observations of Murray C.J. in D.K. v. Crowley [2011] 1 ILRM 309, if the Court had to assess damages, the legal basis for liability of the State would have to be determined by the Court with regard to each head of damages.

4. The matter was before the Court for mention on at least four occasions subsequent to the 2010 judgment and prior to 4th February, 2011. During that period there had been correspondence between the Chief State Solicitor, on behalf of the defendants, and the plaintiff, who is a personal litigant, in relation to how the matters raised by the Court in the 2010 judgment should be addressed. When the matter came before the Court on 4th February, 2011 it became apparent that there was a misunderstanding as to what was to happen on that day. The matter was adjourned until 18th March, 2011. However, the Court gave directions as to what was to happen on 18th March, 2011, having regard to submissions which had been made by both the plaintiff and counsel for the defendants. The Court acceded to a suggestion made by counsel on behalf of the defendants that on 18th March, 2013 the plaintiff should personally give evidence to the Court as to the factual matters underlying his claim for damages in these proceedings and should not be inhibited in that regard, but that as regards cross-examination of the plaintiff by counsel for the defendants, the cross-examination should be limited to effectively two discrete issues: first, the implications of the existence of proceedings initiated by the plaintiff in 1993, details of which will be set out later, which were not prosecuted by the plaintiff, on the plaintiff’s entitlements to damages against the defendants in these proceedings; and, secondly, the implications of the Act of 1957 on the plaintiff’s claim for damages against the defendants in these proceedings.
The evidence
5. The plaintiff’s evidence was given to the Court over two days: on 18th March, 2011 and on 27th May, 2011. There is a transcript available of each hearing.

6. In broad terms, the basis of the plaintiff’s claim for damages in these proceedings is that, because of the existence of s. 260 of the Act of 1945, the repeal of which did not become effective until 1st November, 2006, he was precluded by the courts from pursuing three actions, which are referred to in the 2010 judgment as the 1997 proceedings, 1998 proceedings and the 1999 proceedings, in which he was seeking damages for wrongs alleged to be perpetrated by the defendants in those proceedings against him. In broad terms, the factual basis of the plaintiff’s claim for damages against the defendants in the 1997 proceedings and in the proposed 1998 proceedings and the proposed 1999 proceedings was that on three occasions the plaintiff was involuntarily admitted, in other words, wrongfully committed to The St. John of God Hospital, Stillorgan, Co. Dublin (the Hospital), and was detained there and was treated during the period of detention in a manner which infringed his personal rights under the Constitution.

7. The three periods during which the plaintiff was in the Hospital were:

(a) from 25th February, 1984 to 16th May, 1984;
(b) from 29th January, 1987 to 16th April, 1987; and

(c) from 17th January, 1991 to 7th February, 1991.

The plaintiff put before the Court a copy of each of the three orders made pursuant to s. 185 of the Act of 1945 on foot of which he was admitted to and detained in the Hospital. Each order was made on the application of Patricia Blehein, who was his wife, to whom the plaintiff referred as his “estranged wife”. The first was certified by Dr. Sean G. Murphy (Dr. Murphy) and Dr. S. Ahmed (Dr. Ahmed) on 25th February, 1984. The second was certified by Dr. Murphy and Dr. Fionnuala Kennedy (Dr. Kennedy) on 29th January, 1987. The third was certified by Dr. Murphy and Dr. Kennedy on 17th January, 1991. The plaintiff gave evidence as to the circumstances surrounding his admission to the Hospital and how he was transported to the Hospital. He also gave evidence of his treatment in the Hospital and, in particular, the drugs he was prescribed on the basis of case notes and other documentation of the Hospital. The plaintiff expressed his opinion on the inappropriateness of his treatment by reference to various medical publications.
8. In cross-examination, the plaintiff acknowledged that in the period from 1984 to 1990 he had consulted and had sought the services of at least four firms of solicitors in relation to his admission to and detention in the Hospital. He had been examined by a psychiatrist at the request of one firm during the first period of detention.

9. Five months after he was discharged from the Hospital for the last time, the plaintiff, by letter dated 8th July, 1991, wrote to Dr. Dermot Walsh, Inspector of Mental Hospitals. In that letter, the plaintiff outlined his complaint about the following matters:

(a) the manner in which he was “committed” to the Hospital on 25th February, 1984, stating that Dr. Ahmed did not see him;
(b) the diagnosis and treatment he was given in the Hospital, which he contended deprived him of his powers of recollection and reasoning until the summer of 1986;

(c) that he was “committed” to the Hospital in January 1987, without any semblance of examination;

(d) that in the Hospital the same diagnosis was made and the same treatment given although more effectively, as his powers and reasoning did not return until December 1989;

(e) that on 17th January, 1991 he was again “arrested and committed” to the Hospital, without any semblance of examination.

The plaintiff contended that the diagnosis was erroneous and his “committals”, and detentions and the treatments he was given were wrong. He queried whether, as Inspector of Mental Hospitals, the addressee would be able to give him any assistance. The relevance of that letter is that, by reference to it, counsel for the defendants explored the plaintiff’s state of knowledge on 8th July, 1991. The plaintiff acknowledged that his state of mind as of that date was that, in relation to each period in the Hospital, his prior examination by doctors was not correct.
10. The plaintiff also acknowledged that in December 1992 he had written to the Attorney General requesting him to seek a High Court injunction to suspend the operation of s. 260, or whatever application he might deem appropriate to make, pending the full hearing in regard to its constitutionality. The Attorney General did not accede to the request. The emphasis laid by counsel for the defendants on that letter was to demonstrate the plaintiff’s knowledge of the complaints he tried to litigate subsequently at that time, in support of the defendants’ contention that the causes of action he sought to litigate in the 1997 proceedings, the 1998 proceedings and the 1999 proceedings were statute-barred when they were initiated.
Proceedings initiated by the plaintiff
11. The evidence adduced threw light on the various proceedings initiated by the plaintiff prior to the initiation of these proceedings. In this judgment, the Court is not concerned with the judicial review proceedings referred to at para. 3.4(a) of the 2010 judgment, which did not come within the ambit of s. 260 of the Act of 1945. Nor is the Court concerned with the proceedings initiated in 1995 (the 1995 proceedings) by the plaintiff against the Minister for Health, Ireland and the Attorney General (Record No. 1995 No. 8934P), which are referred to in para. 1.11 of the 2010 judgment, save to refer to one factual matter. My understanding is that the appeal to the Supreme Court against the order of this Court made in those proceedings on 16th March, 2009 refusing to re-enter the 1995 proceedings before the High Court is still pending.

12. The evidence given by the plaintiff to the Court on 18th March, 2011 and 27th May, 2011 elaborated on the circumstances and the facts surrounding the other proceedings initiated by the plaintiff. Chronologically, the earliest were proceedings between the plaintiff, as plaintiff, and Dr. Murphy and Dr. Kennedy, as defendants, Record No. 1993 No. 8449P (the 1993 proceedings). It is appropriate to consider those proceedings, which were not addressed in the 2010 judgment, first.
The 1993 proceedings
13. When the 1993 proceedings were initiated by the issue of a plenary summons on 17th December, 1993 Garrett Sheehan & Co., Solicitors, were acting for the plaintiff and it is clear that senior counsel and junior counsel were involved and, indeed, the names of senior counsel and junior counsel are on the statement of claim. On the basis of the evidence before the Court, the procedural steps taken in those proceedings were as outlined in the following paragraphs.

14. As I have recorded, the plenary summons was issued on 17th December, 1993 and it claimed the following reliefs:

(a) damages for assault, false imprisonment, battery, breach of statutory duty, trespass, libel and slander, negligence and breach of duty (including breach of statutory duty) on the part of the defendants on or about 17th January, 1991; and
(b) damages for violation by the defendants of the plaintiff’s constitutional right to bodily integrity, good name, freedom of expression, liberty, violation of the inviolability of the dwelling, the right to earn a livelihood, and constitutional and natural justice.

15. In the statement of claim, the date of delivery of which is not clear, it was pleaded that on 28th February, 1984 the plaintiff was “involuntarily committed” to the Hospital and detained there until 16th May, 1984 and that the application for committal was made by the plaintiff’s wife and that it was accompanied by two certificates in statutory form, one of which was signed by Dr. Murphy. It was also pleaded that on 29th January, 1987 the plaintiff was “involuntarily committed” to the Hospital and that the application for the committal order was made by the plaintiff’s wife and accompanied by two certificates in the prescribed form signed by Dr. Murphy and Dr. Kennedy. The drugs prescribed for the plaintiff while he was in the Hospital and while he was attending Dr. Murphy after his release up to December 1988 were referred to. The circumstances in which the plaintiff was brought to the Hospital on the 17th January, 1991 were then outlined in detail. The completion of the certificates for the purposes of s. 185 of the Act of 1945 by Dr. Murphy and Dr. Kennedy was pleaded and it was pleaded that at the material time the plaintiff was not mentally ill or, alternatively, that he was not suffering from a mental illness which necessitated him being voluntarily committed to a psychiatric institution. It was alleged that the certification in the 1991 proceedings was made negligently and in breach of duty and that it constituted false imprisonment, assault, battery, trespass to the person and libel of the plaintiff and that it constituted a violation of the plaintiff’s constitutional rights to bodily integrity, liberty, the right to a good name, the right to freely express his convictions and opinions, the right to the inviolability of the dwelling home and his right to constitutional and natural justice. It was pleaded that as a consequence of those acts the plaintiff had suffered personal injury, loss and damage and that his reputation had been seriously damaged and he had suffered considerable distress and embarrassment. There followed particulars of negligence and breach of duty and particulars of personal injury, loss and damage. It was specifically pleaded that, as a result of the drugs with which the plaintiff was treated in the Hospital, he had suffered severe side effects, which were outlined. The only relief sought in the statement of claim apart from interest and costs was damages.
16. The defence of both defendants, who had single representation, was delivered on 15th March, 1995. In the defence, the defendants denied all of the allegations of wrongdoing against them.

17. The initiation of the 1993 proceedings had been preceded by an application to the Court (under record No. 1993 No. 54 IA), wherein the plaintiff sought leave to institute the 1993 proceedings. The application was grounded on an affidavit sworn by the plaintiff on 2nd December, 1993 and filed on his behalf by Garrett Sheehan & Co., Solicitors, on 3rd December, 1993. By order of the Court (Lynch J.) made on 13th December, 1993, it was ordered pursuant to s. 260 of the Act of 1945 that the plaintiff was at liberty to institute the 1993 proceedings.

18. The plaintiff put before the Court a letter dated 25th September, 1996 from Garrett Sheehan & Co. to him, which was in response to a letter from the plaintiff dated 10th September, 1996. It would appear that the plaintiff had requested Garrett Sheehan & Co. to include a challenge to the constitutionality of s. 260 of the Act of 1945 in the 1993 proceedings. The response of his then solicitors was that the plaintiff did not have “locus standi” to challenge the constitutionality of s. 260 and that, in any event, s. 185 and s. 186 of the Act of 1945 were being challenged in the plaintiff’s case against the State, which was a reference to the 1995 proceedings, which were then being prosecuted. The plaintiff’s evidence was that, although he disagreed with the advice he had been given, he had to take notice of it.

19. By order of the High Court (Johnson J.) made on 30th March, 1998, it was declared that Garrett Sheehan & Co. had ceased to be solicitors acting on behalf of the plaintiff in the 1993 proceedings. That order had been preceded by another order of the High Court (O’Sullivan J.) made the previous month, that is to say, on 2nd February, 1998, wherein it was ordered that Garrett Sheehan & Co. had ceased to act as solicitors for the plaintiff in the 1995 proceedings in which a declaration was sought that s. 185 and s. 186 of the Act of 1945 were invalid having regard to the provisions of the Constitution. While the plaintiff sought to re-enter the 1995 proceedings, as set out in para. 1.11 of the 2010 judgment, no steps were taken in the 1993 proceedings after Garrett Sheehan & Co. had ceased to act.

20. In cross-examining the plaintiff on 18th March, 2011, counsel for the defendants explored why the allegations of wrongdoing in the 1993 proceedings were made in respect of what the plaintiff alleged had happened in 1991 only, and not in relation to what he alleged had happened in 1984 or 1987. The plaintiff’s response was that it was done on the basis of legal advice. Shortly thereafter, the plaintiff volunteered the following information to the Court: that “the urgency with the 1993 case was to ensure that it would be within the Statute of Limitations and other periods of detention were excluded for fear they might put the case at risk of the Statute of Limitations”. At the hearing on 27th May, 2011, the plaintiff questioned the accuracy of the portion of the transcript which recorded that evidence and he suggested that what I have quoted was put to him by counsel for the defendants. Having considered the transcript carefully, I am of the view that it is a correct record of the evidence given. The position of the plaintiff on 27th May, 2011 was that it was on the basis of the legal advice he had obtained, rather than his own belief, that claims were not pursued in respect of the events of 1984 and 1987 in the 1993 proceedings. In relation to the exchanges between the plaintiff and counsel for the defendants on that issue, and, indeed, on all of the issues raised, it is appropriate to record that I found the plaintiff to be an honest, truthful witness and his cross-examination by counsel for the defendants was conducted in a proper manner with due regard to the fact that he was a personal litigant. In the course of the evidence, further light was thrown on the subsequent proceedings initiated by the plaintiff and I propose considering that evidence briefly.
The 1997 proceedings
21. As I recorded at para. 3.4(b) of the 2010 judgment, the 1997 proceedings were plenary proceedings between the plaintiff, as plaintiff, and the Hospital, as defendant. The plenary summons was issued on 30th July, 1997 by the plaintiff as a personal litigant. A statement of claim was delivered on 18th August, 1997. In the statement of claim the plaintiff’s detention against his will in the Hospital in 1984, 1987 and 1991 was pleaded. It is clear from the various declaratory reliefs sought by the plaintiff in the statement of claim that he was alleging wrongdoing by the Hospital in relation to each of those periods of detention. For instance, he sought a declaration that he was detained “against his will in violation of the principles of fair procedures, contrary to natural and constitutional justice and in complete disregard of the provisions of the Constitution of Ireland, 1937”. Apart from the declarations sought, which number in excess of twenty, the plaintiff claimed damages simpliciter, interests and costs. In substance, the particulars of personal injury, loss and damage set out in the statement of claim mirror the particulars in the statement of claim in the 1993 proceedings, although framed in different terms. However, it is quite clear that the plaintiff was claiming in respect of injuries alleged to have been incurred between 1984 and 1990. On the basis of the declaratory relief sought, it would appear that the wrongdoing on the part of the Hospital which the plaintiff was alleging included –

(a) breach of his personal rights protected by the Constitution, for example, his right to earn a livelihood, his right to privacy and his right to his good name;
(b) that his detention and his treatment with drugs constituted assault, battery and trespass to the person; and

(c) that he had been subjected to torture, inhumane and degrading treatment contrary to natural and constitutional justice.

22. The circumstance in which the matter came before the High Court (Kelly J.) on 3rd November, 1997 was that the plaintiff had brought a motion for judgment in default of appearance against the defendant. Counsel for the defendant had argued that the plaintiff’s proceedings were not in order by reason of the fact that they been commenced without necessary leave having been obtained pursuant to the provisions of s. 260 of the Act of 1945. As leave had not been obtained, the proceedings were struck out. The order of the Supreme Court dismissing the appeal brought by the plaintiff and affirming the order of the High Court was dated 20th May, 1998.
23. In the course of cross-examination, the plaintiff acknowledged that the 1997 proceedings were directed to each of his periods of detention in the Hospital in 1984, 1987 and 1991,
The 1998 proceedings
24. As is clear from the outline contained in para. 3.4(c) of the 2010 judgment, the 1998 proceedings constituted an application in an intended action for leave to issue proceedings under s. 260 of the Act of 1945 against the defendants identified later. While the original notice of motion is not before the Court, it would appear that the application was initiated in late 1998. In any event, the grounding affidavit was sworn by the plaintiff on 2nd November, 1998. The draft of the proposed plenary summons exhibited in the grounding affidavit is not before the Court either. However, the reliefs claimed by the plaintiff are outlined in the judgment of Keane C.J. on the plaintiff’s appeal against the order of the High Court (Geoghegan J.) made on 8th July, 1999 refusing leave. In his judgment (reported at [2000] 3 I.R. 359), Keane C.J. outlined the reliefs sought (at p. 361). The declaratory reliefs sought related solely to the events of 1987 and the specific allegations of wrongdoing which may be extrapolated from the declarations sought are:

(a) that in January 1987, on separate dates, the first and second defendants (Dr. Murphy and Dr. Kennedy) issued medical certificates in relation to the plaintiff which were libellous and defamatory and led to his unlawful arrest and detention;
(b) that each of the defendants conspired to deprive the plaintiff of his constitutional rights, including his right to personal liberty; and

(c) that the privacy of the plaintiff’s dwelling was violated and that the plaintiff had been “libelled, slandered, damnified and defamed” by the actions of each of the defendants.

It is recorded by Keane C.J. that the plaintiff was additionally claiming damages, costs and interest.
25. The defendants in the 1998 proceedings were:

(a) Dr. Murphy;
(b) Dr. Kennedy;

(c) Patricia Blehein, the plaintiff’s estranged wife; and

(d) Richard Quinlivan, Thomas O’Connor and Desmond Nolan, members of An Garda Síochána.

Affidavits in response to the plaintiff’s application were sworn and filed in the 1998 proceedings. The same solicitors (Arthur Cox) acted for Dr. Murphy and Dr. Kennedy as were on record for them in the 1993 proceedings. In his first affidavit sworn on 11th June, 1998, Dr. Murphy averred that the reliefs sought in respect of the events which allegedly occurred in January 1987 were statute-barred. Similarly, in each of the affidavits sworn by members of An Garda Síochána, it was asserted that the proceedings were statute-barred pursuant to the provisions of the Act of 1957.
26. In his evidence, the plaintiff agreed with counsel for the defendants that the proposed proceedings related to events in 1987 only. They did not contain any complaint about his period of detention in 1984, because his legal advice at that point was that they were too far removed and that they would have been statute-barred.
The 1999 proceedings
27. There is little additional factual evidence in relation to the 1999 proceedings, the nature of which was outlined in para. 3.4(d) of the 2010 judgment, than was before the Court previously. However, on the basis of what is averred to in the replying affidavit dated 19th November, 1999 sworn by Ray Leonard, the Secretary Manager of the Hospital, it seems that the plaintiff’s complaints related to his periods of detention in the Hospital in 1984, 1987 and 1991. That is borne out by the outline of the terms of the draft plenary summons, which are set out in the judgment of McGuinness J. delivered in the Supreme Court on 31st May, 2002 referred to later. A comparison of that outline with the endorsement of claim on the plenary summons in the 1997 proceedings indicates that, subject to one variation, the plaintiff was seeking precisely the same reliefs against the Hospital in the proposed 1999 proceedings as he had claimed in the 1997 proceedings. The variation, according to the judgment of McGuinness J. (at pp. 2 and 3), was that the first relief the plaintiff sought was a declaration that “the orders for detention of the Plaintiff in . . . [the] Hospital . . . made by the Defendant his (sic) servants and/or agents on 26th February, 1984, on 30th January, 1987, and on 18th January, 1991 are fraudulent documents”. The plaintiff also sought a declaration that the detention of the plaintiff during the three periods in issue “was grounded on fraudulent misrepresentation; was effected without statutory authority . . .”.

28. The judgment of the High Court (O’Sullivan J.) in the 1999 proceedings was delivered on 6th July, 2000 and the order refusing the application under s. 260 was dated 18th July, 2000. The plaintiff’s appeal to the Supreme Court against that refusal was dismissed. As stated earlier, the judgment in the Supreme Court was delivered by McGuinness J. on 31st May, 2002. The history of the proceedings in the High Court after 6th July, 2000 is set out in the judgment of McGuinness J. and it was pointed out in the judgment (at p. 11) that there were two aspects to the plaintiff’s appeal: he sought to have his application pursuant to s. 260 remitted to the High Court for the purpose of trying his challenge to the constitutionality of s. 260; or, alternatively, he sought to overturn the order of the High Court refusing him leave to bring proceedings against the Hospital on the terms set out in the draft plenary summons. The Supreme Court affirmed the order of O’Sullivan J. and dismissed the appeal. As regards the intended challenge to the constitutionality of s. 260, McGuinness J. stated that the wording of s. 260(1) did not, on its face, apply to such a challenge, and the plaintiff did not require leave to initiate such proceedings. He could commence new proceedings by plenary summons in order to challenge the constitutionality of the section, but that was for him to decide.

29. The plaintiff did embark on the course signposted by McGuinness J. It will be recalled that these proceedings were initiated by plenary summons which issued on 11th July, 2002.
Limitation period: relevant legislation
30. The core argument advanced on behalf of the defendants in the most recent hearings in these proceedings was that the limitation period governing the 1997 proceedings and the intended actions in the 1998 proceedings and in the 1999 proceedings was governed by s. 11(2) of the Act of 1957. Counsel for the defendants referred to the provisions of that sub-section, which provide as follows:

“(a) Subject to paragraphs (b) and (c) of this subsection, 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.
(b) An action claiming damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under a statute or independently of any contract or any such provision), where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to any person, shall not be brought after the expiration of three years from the date on which the cause of action accrued.

(c) An action claiming damages for slander shall not be brought after the expiration of three years from the date on which the cause of action accrued.”

Counsel for the defendants added emphasis to the elements of subs. (2) which are underlined in the above quotation.
31. For completeness, it is appropriate to record that counsel for the defendants apprised the Court of the fact that the Supreme Court has held in Devlin v. Roche [2002] 2 IR 360 that the three year limitation period applicable to negligence and nuisance actions does not apply to actions for intentional trespass to the person. The limitation period in respect of such actions is six years.

32. As counsel for the defendants pointed out, paragraph (b) of subs. (2) of s. 11 was amended by the Statute of Limitations (Amendment) Act 1991 (the Act of 1991) and also by the Civil Liability and Courts Act 2004, s. 7. The amendment effected in the Act of 1991 was that, in the case of an action claiming damages in respect of personal injuries, the limitation period is three years “from the date on which the cause of action accrued or the date of knowledge (if later) of the person injured”. As counsel for the defendants submitted, in the application on the statutory time limits for bringing proceedings, knowledge is irrelevant other than in relation to a claim for personal injuries.

33. Counsel for the defendants also drew the Court’s attention to s. 49 of the Act of 1957, which deals with the extension of the limitation period in case of disability. In s. 48 of the Act of 1957 the meaning of “under a disability” for the purposes of the Act is set out. A person is under a disability while, inter alia, “of unsound mind”. Sub-section (2) of s. 48 provides as follows:

“For the purposes of subsection (1) of this section but without prejudice to the generality thereof, a person shall be conclusively presumed to be of unsound mind while he is detained in pursuance of any enactment authorising the detention of persons of unsound mind . . ..”
It is important that I emphasise that I am not ignoring the fact that a fundamental plank of the plaintiff’s case is that he was not at any material time of unsound mind. Indeed, as had been noted earlier, it was pleaded in the statement of claim in the 1993 proceedings that he was not mentally ill, or, alternatively, that he was not suffering from a mental illness which necessitated him being involuntarily committed to the Hospital. Notwithstanding having acknowledged that, it is appropriate to refer to paragraph (a) of subs. (1) of s. 49 which provides:
“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.”
In the case of claims for personal injuries and slander, s. 1(a) has effect as if, for the words “six years”, there were substituted the words “three years” (s. 49(2) and (3)).
34. In order to determine the application of the relevant statutory provisions to the plaintiff’s claims in the 1997 proceedings, the 1998 proceedings, the 1999 proceedings and in these proceedings it is necessary to consider whether a claim for damages for breach of constitutional rights, including such a claim against the State, is subject to statutory time limits for bringing such a claim and, if so, how such an action is characterised for the purposes of the application of the relevant statutory provisions.
Time limitation on actions for breach of constitutional rights?
35. In their submissions, counsel for the defendants relied primarily on the analysis of the law contained in the judgment of Keane J. in McDonnell v. Ireland [1998] 1 I.R. 134. That case was discussed at para. 10 in the 2010 judgment. For the avoidance of doubt, I reiterate what I stated at para. 10.2, albeit in a different context. Given that the decision of the Supreme Court in that case was based on a claim by a litigant who had not successfully challenged the validity of the impugned provision, unlike the position of the plaintiff who has successfully challenged the validity of s. 260 having regard to the provisions of the Constitution, the decision in that case is of no precedential relevance to the issue before this Court. However, I am of the view that the judgment of Keane J. does give guidance to the Court on the issue now under consideration.

36. As he indicated, the analysis of the law conducted by Keane J. was predicated on the plaintiff in that case having had an identifiable cause of action in 1974 in respect of which he initiated proceedings in 1991 following the decision of the Supreme Court in Cox v. Ireland [1992] 2 I.R. 503. He stated (at p. 156) that the case before him must be treated on the basis that the plaintiff had some form of action, however loosely defined and conceptually uncertain, for breach of his constitutional rights and he posed the following rhetorical question: is there any reason why such action, whatever its legal parameters, should not be regarded as an action founded on tort within the meaning of s. 11(2) of the Act of 1957? In answering that question, he considered the manner in which a tort is defined in the leading English text book on the subject (Salmond & Heuston on The Law of Torts (20th Ed.)). He also discussed the manner in which the law of tort had evolved, suggesting that the English law of tort had, as a matter of history, demonstrated over the centuries a flexibility and a capacity to adapt to changing social conditions, even without legislative assistance, which made it the obvious instrument for the righting of civil wrongs when the Constitution was enacted in 1937. Keane J. observed that the dynamic nature of the tort action was well understood when the Act of 1957 was enacted, although he did recognise the possibility that the draughtsman “did not envisage the extent to which the developing constitutional jurisprudence of the High Court and the Supreme Court in later decades would powerfully reinforce the progressive development of the law of civil wrongs”. Keane J. then outlined aspects of that jurisprudence which are of particular relevance in relation to the issue this Court has to determine.

37. First, he referred to the decision in Kennedy v. Ireland [1987] I.R. 587, where the unenumerated constitutional right of privacy was upheld, and in which, although Keane J. did not advert to this, each of the plaintiffs was awarded damages. Keane J. reasoned that the form of action which gave rise to that result “can be classified as a civil wrong, which is not a breach of contract, but which is remediable by an action for unliquidated damages and/or injunction”. The same considerations applied to the case before him for breach of constitutional rights, which he considered could appropriately be described as an action in tort.

38. Secondly, having quoted the passage from the judgment of Walsh J. in Meskell v. Córas Iompair Éireann [1973] I.R. 121, at p. 132, where Walsh J. recorded that on numerous occasions the Supreme Court has stated that –

“. . . a right guaranteed by the Constitution or granted by the Constitution can be protected by action or enforced by action even though such action may not fit into any of the ordinary forms of action in either common law or equity and that the constitutional right carries within it its own right to a remedy or for the enforcement of it”,
Keane J. observed that the passage was perfectly consistent with the constitutional right being protected by a new form of action in tort.
39. Thirdly, Keane J. observed that he did not see any conflict between that observation and the passage in the judgment of Henchy J. in Hanrahan v. Merck Sharp & Dohme (Ireland) Limited [1988] ILRM 629, where it was stated (at p. 636):

“A person may of course in the absence of a common law or statutory cause of action, sue directly for breach of a constitutional right (see Meskell v Córas Iompair Éireann . . .); but when he founds his action on an existing tort he is normally confined to the limitations of that tort. It might be different if it could be shown that the tort in question is basically ineffective to protect his constitutional right.”
Keane J. stated that there was nothing in that passage to suggest that where a plaintiff is obliged to have recourse to an action for breach of a constitutional right, because the existing corpus of tort law affords him no remedy, or an inadequate remedy, that action cannot in turn be described as an action in tort, albeit a tort not hitherto recognised by the law, within the meaning of, and for the purpose of, the Act of 1957.
40. On the question of the appropriate limitation period, Keane J. stated (at p. 159):

“Whatever may be the position in regard to other possible defences, no one has been able to identify in this case any ground for supposing that an action for breach of a constitutional right which has all the indicia of an action in tort should have a different limitation period from that applicable to actions in tort generally, or indeed no limitation period at all, other than its origin in the Constitution itself, which is a classically circular argument. Nor could it be seriously argued that the fact that the action for breach of a constitutional right frequently takes the form of proceedings against organs of the State is of itself a reason for treating a limitation statute as inapplicable. Even if it were, it is to be borne in mind that, as is made clear by Meskell v. Córas Iompair Éireann . . ., the defendant in such actions need not necessarily be an organ of the State.”
In that context, Keane J. recalled the policy considerations which underlie statutes of limitations such as the Act of 1957, quoting from the judgment of Finlay C.J. in Tuohy v. Courtney [1994] 3 I.R. 1 (at p. 48), where it was stated that the primary purpose would appear to be to protect defendants against stale claims and avoid injustices which might occur to them were they asked to defend themselves from claims which were not notified to them within a reasonable time. Keane J. stated that that policy consideration and the other policy considerations identified by Finlay C.J. in the passage he had quoted were applicable to actions such as the case before him as much as to actions founded on tort in the conventional sense.
41. On the basis of the foregoing analysis, Keane J. stated that he was satisfied that the decision of the High Court (Carroll J.), which held that breach of a constitutional right was a tort and that the plaintiff’s claim was statute-barred pursuant to s. 11(2) of the Act of 1957, was correct and should be upheld. As counsel for the defendants pointed out, in his judgment in McDonnell v. Ireland, Barrington J. did not find it necessary to decide, for the purposes of that case, whether all breaches of constitutional rights are torts within the meaning of the Act of 1957.

42. While counsel for the defendants did not refer to any authority on the application of the Act of 1957 to actions for breach of constitutional rights later in time than McDonnell v. Ireland, it is interesting to note that in J.M. Kelly The Irish Constitution (4th Ed.), which was published in 2003, it is stated as follows (at para. 8.2.75):

“It is, however, now plain that damages may be awarded against the State for breach of constitutional rights. Thus, damages have been awarded for breach of the constitutional rights to communicate; property; privacy; fair procedure; liberty and education. Such an action for damages for breach of constitutional rights is regarded as a tort, so that the ordinary limitation periods etc. apply.”
The authority cited for the last sentence is McDonnell v. Ireland.
43. Before attempting to apply the law to the facts of this case, I think it is appropriate to consider the nature of a defence that a claim is statute-barred.
Nature of defence that claim is statute-barred
44. In Tuohy v. Courtney [1994] 3 I.R. 1, against the background of determining an issue as to the constitutionality of s. 11 of the Act of 1957, in delivering the judgment of the Supreme Court, Finlay C.J. quoted the following passage from the judgment of Henchy J. in O’Domhnaill v. Merrick [1984] I.R. 151 (at p. 158):

“Although the statute states that an action ‘shall not be brought’ after the expiration of the period of limitation, such a statutory embargo has always been interpreted by the courts as doing no more than barring a claim instituted after the expiration of the period of limitation if, and only if, a defendant pleads the statute in his defence. It is only when a defendant elects to rely on the statute as a defence that the statutory bar operates. Consequently, although a claim may be plainly, and on the face of the claim, brought after the expiry of the relevant period of limitation, the action will not be held to be statute barred unless the defendant elects by a plea in his defence to have it so treated.
Thus, although the statute says that the action ‘shall not be brought’ after the statutory period, such a prohibition in a statute of limitations has been construed not as barring a right to sue but as vesting in a defendant a right to elect, by pleading the statute, to defeat the remedy sought by the plaintiff.

So construed, the statute does not bear on a plaintiff’s right to sue, either within or after the period of limitation. What it affects is a plaintiff’s right to succeed if the action is brought after the relevant period of limitation has passed and if a defendant pleads the statute as a defence. In such circumstances the statute provides an absolute defence to that particular action.”

(Emphasis in original)

Finlay C.J. stated that, while the judgment in O’Domhnaill v. Merrick dealt with a case of delay after the institution of proceedings within the applicable period of limitation, the Supreme Court was satisfied that it represented a correct analysis of the effect of the Act of 1957, which the Supreme Court adopted.
Application of O’Domhnaill v. Merrick principle to plaintiff’s claim in proceedings he was prevented from prosecuting
45. The position, of course, in this case is that the proceedings which the existence on the statute book, and the presumed validity, of s. 260(1) of the Act of 1945 effectively precluded the plaintiff from prosecuting, the 1997 proceedings, the 1998 proceedings and the 1999 proceedings, never got to the stage at which the defendants in those proceedings would have had to elect to plead the statute against the plaintiff. That being the case, it seems to me that the Court has to determine whether, as a matter of probability, the defendants in those actions would have pleaded the statute, if the proceedings had reached the point where the defendants were delivering a defence. For the following reasons, I think that the Court is entitled to find that, as a matter of probability, each of the defendants would have pleaded the statute.

46. First, all of the defendants in the 1997 proceedings, the 1998 proceedings and the 1999 proceedings had actively resisted the attempts by the plaintiff to prosecute the proceedings against them. The 1997 proceedings were struck out following an application on behalf of the defendant, the Hospital, that s. 260(1) had not been complied with. In the case of the 1998 proceedings and in the case of the 1999 proceedings all of the defendants in each appeared and filed affidavits in response to the plaintiff’s application for leave under s. 260(1). It is reasonable to infer that all of the defendants would have defended the proceedings against them by relying on every defence open to them, if the plaintiff had been permitted to prosecute the proceedings.

47. Secondly, Dr. Murphy and Dr. Kennedy were defendants in the 1993 proceedings which were pending when the 1998 proceedings were initiated. When faced with the prospect of being defendants in the 1998 proceedings and having to defend actions which occurred in 1987, more than ten years earlier, it would have been reasonable for their legal advisers to infer that when the 1993 proceedings were initiated, as he testified was the case, the plaintiff had been advised that any action he had in relation to the events of 1984 and 1987 were statute-barred. In any event, in responding to the plaintiff’s application for leave under s. 260(1) in 1998, as has been recorded earlier, Dr. Murphy averred that any claim of the plaintiff arising out of the events of 1987 was statute-barred. Dr. Murphy and Dr. Kennedy were represented by the same firm of solicitors, Arthur Cox, in opposing the application in the 1998 proceedings. It is reasonable to infer that the Act of 1957 would have been pleaded on behalf of both Dr. Murphy and Dr. Kennedy, if the plaintiff had been given leave to prosecute the 1998 proceedings. All of the other defendants in the 1998 proceedings, other than the plaintiff’s wife, responded to the application for leave by averring that the claims arising out of the 1987 events were statute-barred. Again, it is reasonable to infer that those defendants would have pleaded the statute.

48. Thirdly, in responding to the plaintiff’s application for leave to issue the 1999 proceedings, Mr. Leonard, on behalf of the Hospital, in his affidavit addressed factual matters in relation to the plaintiff’s admission to the Hospital in 1984, 1987 and 1991 by reference to the affidavit of the plaintiff grounding his application. The content of his affidavit was directed to supporting his final averment that the Hospital had not acted in bad faith or without reasonable care towards the plaintiff, which was the primary issue which would have had to be addressed on the plaintiff’s application. Given that more than eight and a half years had elapsed since the plaintiff’s final discharge from the Hospital before the application in the 1999 proceedings was initiated, and that the Hospital had been the defendant in the 1997 proceedings which had been initiated over two years previously and had been struck out, I think it is reasonable to infer that, if the plaintiff had been given leave to issue the 1999 proceedings, the Hospital would have defended the proceedings on the basis of all defences open to it, including the defence that the plaintiff’s claim was statute-barred.

49. Having come to the conclusion that, as a matter of probability, all of the defendants in the 1997 proceedings, the proposed 1998 proceedings and the proposed 1999 proceedings would have defended the proceedings against them on the basis that the plaintiff was statute-barred, it is necessary now to consider whether the defendants would have been successful in that plea.
Application of the Act of 1957 to plaintiff’s claim in proceedings he was prevented from prosecuting
50. If the plaintiff had been permitted to pursue the 1997 proceedings, the 1998 proceedings and the 1999 proceedings and if, as I have found would have occurred on the balance of probabilities, the defendants in those proceedings defended the proceedings on the basis that the plaintiff’s claims were statute-barred, I believe that there are substantial grounds for concluding that the defendants would have been successful in their pleas.

51. As regards the accrual of his causes of action, the period covered by the most recent series of complaints against the various defendants was the period from 17th January, 1991 to 7th February, 1991, when the plaintiff was discharged from the Hospital. On the assumption that the plaintiff could have responded (even if, as the evidence suggests, he would not have so responded) to a plea that the claims were statute-barred on the basis that he was under a disability within the meaning of s. 49 of the Act of 1957, it is clear on the evidence that he had ceased to be under disability at least by 8th July, 1991 when he wrote the letter of that date, the contents of which have been outlined earlier, to the Inspector of Mental Hospitals, which was expressed to be a repetition of a letter he had written on 21st June, 1991, which he feared had got mislaid in the post. Accordingly, the plaintiff’s cause of action against all of the defendants which he subsequently sued or attempted to sue from 1997 onwards accrued on 8th July, 1991, if not earlier.

52. As regards the relevant limitation period, some of the causes of action which the plaintiff attempted to pursue in those proceedings were actions for damages for personal injuries in respect of which the relevant limitation period was three years from the date on which the cause of action accrued. However, an analysis of the pleadings or the proposed pleadings in those proceedings also disclosed that the plaintiff pleaded or proposed pleading other causes of action in respect of which the relevant limitation period was six years. Looking at the claims and the proposed claims in the round, at most, the plaintiff had six years from 8th July, 1991 in which to initiate proceedings in respect of the claims so as to avoid a successful plea that his claims were statute-barred. All of the proceedings or proposed proceedings, which the plaintiff was precluded from prosecuting, were initiated (in the case of the 1997 proceedings) or were the subject of applications under s. 260 which were initiated (in the case of the 1998 proceedings and the 1999 proceedings) beyond that period. The earliest, the 1997 proceedings, were initiated by a plenary summons which issued on 30th July, 1997.

53. In the 2010 judgment, at para. 11.6, I quoted from the judgment of Keane C.J. in Blehein v. Murphy (No. 2) [2000] 3 I.R. 359 (at p. 366), in which, apropos of the proposed 1998 proceedings, Keane C.J. stated that it was quite clear that any proceedings which were instituted at that time, that is to say, in July 2000, would be well outside the limitation period prescribed by the Act of 1957 and that none of the provisions of that Act or the Act of 1991 enabling proceedings to be brought outside the limitation period in cases of fraud, mistake or (in the case of personal injuries) lack of knowledge, relied on by the plaintiff, had any application to the facts of the proposed 1998 proceedings. However, Keane C.J. recognised that, if leave were granted, it might be that the defendant would prefer to contest the action on the merits and not plead the Statute of Limitations.

54. On the basis of the evidence now before the Court, I have concluded that, as a matter of probability, the defendants would have pleaded the statute. It is of interest to note that on the appeal to the Supreme Court in Blehein v. Murphy (No. 2), Murphy J. also addressed the question of the Act of 1957 stating (at p. 371):

“Furthermore, I might add, there is a degree of unreality about the application. Counsel on behalf of the intended defendants informed the court that it would be the intention of his clients to plead the Statute of Limitations, 1957, if the plaintiff was given liberty to take proceedings against any of them. It would be difficult to imagine a case in which such a plea would be more appropriate. The affidavits already sworn demonstrate the difficulty which the intended defendants would have in seeking to match their honest recollection of events which took place on a day more than twelve years ago against that of the plaintiff who understandably feels intensely about those events and the beliefs or allegations based on them. There is, too, the particular fact that the plaintiff’s brother, Brendan, who was present on that critical date and to whom the first defendant claims to have spoken on several occasions prior to the 29th January, 1987, has since died. In the words of Henchy J. in Sheehan v. Amond [1982] I.R. 235 at p. 239, the events in dispute have been:-

‘. . . allowed so to fade into the dim uncertainties of the past as to be beyond the reach of fair litigation.’

It is entirely understandable that the Statute of Limitations, 1957, should protect all defendants against litigation of that nature.”
55. Finally, I have not overlooked the fact that in the endorsement of claim in the proposed plenary summons in the 1999 proceedings, as outlined in the judgment of McGuinness J. referred to earlier, the concept of fraudulent activity on the part of the defendant, that is to say, the Hospital, appeared for the first time and had not been alleged in the 1997 proceedings against the Hospital, although a statement of claim had been delivered in those proceedings. Therefore, I consider it is reasonable to conclude that the plaintiff could not have maintained the claim against the Hospital on the basis of the alleged fraudulent conduct, if he had been granted leave to issue the 1999 proceedings against the Hospital.
Implications of existence of 1993 proceedings
56. The course of the 1993 proceedings has been outlined earlier. It will be recalled that those proceedings, in respect of which leave had been given by the High Court pursuant to s. 260(1) before they were initiated, were against Dr. Murphy and Dr. Kennedy. They were still in existence when the plaintiff sought leave to issue the 1998 proceedings, which included Dr. Murphy and Dr. Kennedy as defendants. The position adopted on behalf of the defendants was that a claim for damages against the State cannot arise, as a matter of principle, in these proceedings in relation to an action for which leave was, in fact, given, but not pursued, that it to say, the 1993 proceedings. That is because the plaintiff was not, as a matter of fact or law, disadvantaged by the provisions of s. 260(1) of the Act of 1945 in those proceedings, in that leave was, in fact, granted. While there appears to be a causation issue lurking beneath that submission, which, in an appropriate factual context, would have to be addressed, I have come to the conclusion that it does not have to be addressed on the facts of this case. The plaintiff’s claim in the 1993 proceedings against Dr. Murphy and Dr. Kennedy related to the events in 1991, not to the events of 1987 which were to be the subject of the proposed 1998 proceedings, although, of course, the narrative in the statement of claim in the 1993 proceedings outlined the factual situation from 1984 onwards. Therefore, I have come to the conclusion that it is not appropriate to attach weight to that submission.
Conclusion
57. Having outlined the factual background to, the procedural course of, and the outcome of the various proceedings which the plaintiff was precluded from prosecuting because of judicial decisions made pursuant to s. 260 of the Act of 1945, it is appropriate at this juncture to review the plaintiff’s case as pleaded in the statement of claim in these proceedings, insofar as it supports a claim for damages, and the defendants’ response to it.

58. The plaintiff has pleaded in paragraph 7 of the statement of claim that as a result of the arrests, incarcerations, intoxications, conditional releases and dilution of his property rights, he sustained severe personal injury, loss and damage which he proceeded to particularise. Save in one respect, the particulars related to the manner of the plaintiff’s committal to the Hospital, and his detention and treatment in the Hospital, during the periods in issue. The exception relates to orders made by the Circuit Court in Galway in family law proceedings on 23rd July, 1998. The plaintiff has pleaded that he was “greatly prejudiced” in defending the application in the Circuit Court “by the legal disabilities imposed upon him” by s. 260. While the plaintiff has sought to link the reliefs sought against him in the family law proceedings to the events in 1984, 1987 and 1991, it is difficult to discern any causal link between those events and the limited information before this Court as to what happened in the Circuit Court.

59. As has been recorded in the 2010 judgment, at para. 12.11, the defendants have pleaded that, as regards any personal injury, loss or damage alleged to have been sustained by the plaintiff, the proceedings are statute-barred by virtue of s. 11(2) of the Act of 1957, as amended by s. 3(1) of the Act of 1991. That plea addresses the plaintiff’s claim for damages for personal injury, which, in reality, is the only claim for damages expressly particularised by the plaintiff in the statement of claim.

60. The response of the plaintiff in his reply was that personal rights guaranteed to him by the Constitution are not subject to, nor amenable to, valid limitation by statute. Having regard to the current jurisdiction of the Superior Courts, which I have outlined earlier, that contention does not stand up to scrutiny. The plaintiff further pleaded that such delay as had occurred was caused by the defendants in their enactment and administration of the provisions of s. 260 of the Act of 1945 and that, accordingly, the Act of 1957 was not a defence. My note of the plaintiff’s final observation to the Court on the hearing of submissions on this aspect of his claim reflected that last plea. He submitted that, as a matter of commonsense, the Act of 1957 could not be a barrier to him recovering damages, because s. 260 “tied my hands behind me”.

61. While the existence of s. 260(1) of the Act of 1945 and its enforcement by the High Court and the Supreme Court in the 1997 proceedings, the 1998 proceedings and the 1999 proceedings did prevent the plaintiff from prosecuting the claims made, or proposed to be made in those proceedings, the reality is that by the time the earliest of those proceedings was initiated the claims the plaintiff wished to pursue were statute-barred. Therefore, even if the plaintiff’s causes of action in those proceedings or proposed proceedings had the prospect of being successful against the defendants or proposed defendants, as I have found, the probability is that the defendants would have pleaded the Act of 1957 and, if they had done so, it would have been found that the plaintiff’s claims were statute-barred. Therefore, the plaintiff has not established that any loss or damage consequential on the events of 1984, 1987 and 1991, which are the basis of his complaints, has been incurred by him, or has flowed from, or is a consequence of the decisions made by the Superior Courts in the 1997 proceedings, the 1998 proceedings and the 1999 proceedings, which precluded him from prosecuting those proceedings.

62. Apart from his claim for personal injury, loss and damage, the only other matter pleaded by the plaintiff in the statement of claim in these proceedings which could conceivably give rise to an entitlement to damages arises from his contention that the decisions in the 1997 proceedings, the 1998 proceedings and the 1999 proceedings were in violation of his right of access to justice and his right to natural and constitutional justice and the fact that he has pleaded specifically in relation to the effect of the decisions in the 1998 proceedings and in the 1999 proceedings on him that he –

“. . . felt greatly humiliated and demoted to the rank of a second class citizen in being obliged to make the said Application for leave to exercise the most fundamental right in a democracy and he was greatly prejudiced in so doing by the legal disabilities imposed upon him by the said section 260.”
Broadly speaking, what the plaintiff complains of there can be characterised as an assertion that he has been personally hurt and he has been prejudiced in that his reputation has been adversely affected by having had to bring applications under s. 260. If the plaintiff has an entitlement to damages by reason of the Supreme Court having effectively found in these proceedings that the statutory requirement that he seek leave under s. 260(1) infringed his constitutional right to access to the Court, in my view, what has been pleaded as to the consequences of the necessity to bring applications under s. 260 and the refusal of the courts to accede to the applications, does not seem to be a basis for awarding him damages or any redress beyond the redress which the plaintiff has obtained, that is to say, a declaration of invalidity of s. 260.
63. While it is wholly understandable that the plaintiff harbours a grievance as to the outcome of the applications he brought to get leave to bring the 1998 proceedings and the 1999 proceedings, which were refused, given that s. 260 was subsequently held to be invalid having regard to the provisions of the Constitution, and that he considers that he has been prejudiced and has suffered damage to his person and reputation as a consequence of that outcome, it is important to remember the circumstances in which the plaintiff’s applications were unsuccessful. On those applications, the High Court and the Supreme Court were applying a statutory provision which enjoyed the presumption of constitutionality. The provision they were applying had been in force for in excess of fifty years when the plaintiff brought his applications. It is clear from the documentation before the Court that the plaintiff got a full hearing both in the High Court and in the Supreme Court on each of the applications and he got reasoned decisions from each court. Indeed, it was obviously the final decision, the judgment of McGuinness J. on 1999 proceedings, which triggered these proceedings. When the plaintiff challenged the constitutionality of s. 260 in these proceedings, even though the challenge was obviously strenuously opposed by the defendants, he was successful in both the High Court and in the Supreme Court. The result was a declaration that s. 260 was invalid having regard to the provisions of the Constitution. Without, I trust, sounding condescending, that was a very significant achievement for a litigant in person.

64. Of more significance, however, in the context of his claim for damages is that the plaintiff’s engagement with organs of the State in relation to the wrong of which he complains, namely, the fact that he had to seek leave under s. 260, which was subsequently found to be invalid, to prosecute the proceedings he wished to prosecute, was with the High Court and the Supreme Court. The outcome which gave rise to the feelings of hurt and the prejudice which he has outlined came about, to use the words of Murray C.J. in D.K. v. Crowley, from “acts bona fide done by a judge exercising his jurisdiction under a law which at the time enjoyed the presumption of constitutionality”.

65. The plaintiff’s constitutional rights were clearly vindicated by the declaration of the invalidity of s. 260(1) having regard to the provisions of the Constitution. That declaration of itself was sufficient to redress the wrongdoing against him of which he complains, including the hurt to his person and the prejudice to his reputation which he has asserted were the result of the necessity to bring applications under s. 260 and the outcome of those applications. It is a matter of public record that the plaintiff should not have been required to bring the applications, so that his reputation has been wholly vindicated in the eyes of the public.
Order
66. There will be an order declaring that the plaintiff does not have an entitlement to an award of damages against the defendants in these proceedings.

 

Costello v Commissioner of An Garda Síochána

[2007] I.E.H.C. 330
Judgment of Miss Justice Laffoy delivered on 3rd October, 2007.

The procedural background

In these proceedings, which were commenced by plenary summons which issued on 21st December, 2005, the plaintiffs claim, inter alia, the following reliefs:
(a) damages for trespass to the person in the form of harassment, watching and besetting and intimidation;
(b) damages for the repeated unlawful arrest of the first named plaintiff based on an allegation that the defendant “misused in a colourable and illegal fashion” provisions of the road traffic and narcotics legislation;
(c) damages for criminal slander; and
(d) certain permanent injunctive relief, including a permanent injunction restraining the defendant from watching and besetting the plaintiffs at their home.
There is in being an interlocutory injunction made on 29th December, 2005 by consent of the parties, wherein it was ordered that the defendant, his servants or agents, be restrained pending the trial of the action or until further order from entering the plaintiffs’ home except under authority of a warrant or at the request of a member of the household. That order also provided for expedition in the delivery of pleadings.
Unfortunately, an expeditious disposition of this matter has not been achieved. The plaintiffs delivered their statement of claim on 13th January, 2006. In para. 6 thereof the plaintiffs alleged that they had been subjected to watching and besetting, harassment and intimidation over the previous ten years. Thirty-two instances of the alleged wrongful behaviour were then set out. In para. 8 the plaintiffs alleged the exacerbation and elevation of the unlawful campaign through the course of 2005 and particularised fourteen instances of the behaviour complained of. In a notice for particulars dated 26th January, 2006 the defendants sought particulars of certain matters alleged in the statement of claim, items 1 to 98 whereof focused exclusively on the allegations in para. 6 of the statement of claim. Replies to the particulars were furnished on 8th March, 2006. The defendant’s defence, which was delivered on 22nd March, 2006 raised, by way of preliminary points, the following matters of defence:
(1) insofar as the plaintiffs complain of the matters set out in para. 6 of the statement of claim, the claims are so unclear, vague and imprecise as to prejudice the defendant in the conduct of the action and that the plaintiffs are thereby precluded or estopped from maintaining any cause of action in the proceedings in respect thereof;
(2) insofar as the plaintiffs complain of matters pre-dating 22nd December, 1999, any possible cause of action arising therefrom as claimed in the proceedings is statute barred by virtue of s. 11 of the Statute of Limitations, 1957 (the Act of 1957), as amended; and
(3) insofar as the plaintiffs complain of matters pre-dating 22nd December, 2002 to ground a claim of damages for slander, any such cause of action as pleaded is statute barred by virtue of s. 11 of the Act of 1957.

The application
Two applications came on for hearing on 12th June, 2007. The first, chronologically, was the plaintiff’s motion for discovery against the defendant. That motion was dealt with on 12th June, 2007.
The second was the defendant’s application on foot of a notice of motion of 4th May, 2006 seeking the following orders:
(i) An order pursuant to O. 19, r. 27, of the Rules of the Superior Courts, 1986 (the Rules) striking out para. 6 of the statement of claim either in its entirety or in part.
(ii) An order striking out those parts of para. 6 of the statement of claim which relate to matters which pre-date 22nd December, 1999, as any possible cause of action arising therefrom as claimed in the proceedings is statute barred by virtue of s. 11 of the Act of 1957.
(iii) An order striking out those parts of para. 6 of the statement of claim which relate to matters which ground a claim for damages for slander which pre-date 22nd December, 2002, as any possible cause of action arising therefrom as claimed in the proceedings is statute barred by virtue of s. 11 of the Act of 1957.
It is that second application which is the subject of this judgment. The application was grounded on the affidavit of Garda Superintendent Seamus Kane, sworn on 3rd May, 2006, which helpfully collated the information contained in the statement of claim and in the reply to the notice for particulars in relation to each of the incidents complained of in para. 6. The information was analysed in the affidavit in which it was pointed out that, in relation to twenty five incidents of alleged harassment no date was given, other than that they related to a time span of ten years prior to the initiation of the proceedings, and, in relation to seven of those incidents, the location of the incident was not identified.
The plaintiffs did not file an affidavit in response to the affidavit of Superintendent Kane. However, in the affidavit grounding the plaintiffs’ application for discovery, which was an affidavit sworn on 11th April, 2006 by the plaintiffs’ solicitor, Sean Costello, the defendant’s motion was anticipated. This occurred because the defendant was constrained to bring a motion seeking an extension of time for delivering its defence and in the proceedings on that motion the court was apprised of the defendant’s intention to bring an application to strike out certain parts of the statement of claim. The order made on that motion by Clarke J. on 27th March, 2006 gave directions as to the time frame governing the issue of any further notice of motion. As it happened, the plaintiff’s motion for discovery issued before the defendant’s motion to strike out. What I consider to be of relevance for present purposes is the line adopted by the plaintiffs to the anticipated motion. It was that it amounted to an abuse of process, in that the defendant had not raised rejoinders on the replies to the notice for particulars with a view to eliminating the vagueness complained of. That point had been made by the plaintiffs’ solicitors in a letter of 23rd March, 2006, a copy of which was exhibited in Mr. Costello’s affidavit, which was filed before the defendant’s motion issued.
The course normally adopted by a litigant in civil litigation, if the opposing party fails to furnish replies to a notice for particulars, is to bring a motion under O. 19, r. 7, of the Rules to compel the opponent to furnish replies. Indeed, in footnote 86 on p. 147 of Delaney and McGrath on Civil Procedure in the Superior Courts it is pointed out that the proper course of action is to bring a motion to compel replies rather than a motion to strike out the pleading on the grounds that it fails to disclose a reasonable cause of action, citing Tromso Sparebank v. Beirne (the High Court, Costello J., Unreported, 14th March, 1988). Accordingly having heard the defendant’s application on 12th June, 2007, on 13th June, 2007 I made an order that the plaintiffs should have until 20th July, 2007 to furnish further and better particulars of the incidents itemised in para. 6 of the statement of claim and I adjourned the defendant’s application to 31st July, 2007.
In their further replies, which were dated 20th July, 2007, the plaintiffs gave some further particulars in relation to some of the incidents itemised.
The purpose of this judgment is to rule on the defendant’s application in the light of those further replies.

Conclusions on application to strike out on ground claims statute barred
As I indicated at the hearing on 12th June, 2006, in my view, the application to strike out on the ground that whatever claims may arise out of para. 6 of the statement of claim are statute barred is misconceived.
A plea that a claim is statute barred is a matter of defence. It can be dealt with in one of two ways. It can be disposed of by way of the trial of a preliminary issue of law under O. 25, r. 1 of the Rules or under O. 34, r. 2 of the Rules provided the relevant facts are agreed or established. The alternative is that the plea is dealt with in the course of the trial of the action.
Accordingly, insofar as the defendant seeks to strike out in reliance on the Act of 1957, the application is refused.
Conclusions on application to strike out pursuant to O. 19, r. 27.
Order 19, r. 27 provides as follows:
“The court may at any stage of the proceedings order to be struck out or amended any matter in any endorsement or pleading which may be unnecessary or scandalous, or which may tend to prejudice, embarrass, or delay the fair trial of the action; …”
As is pointed out in a passage in Delaney and McGrath (at p.191) relied on by counsel for the defendant, although the rule is broadly drafted, it is directed towards three main problems: where a party pleads unnecessary matters; scandalous pleadings; and prejudicial pleadings, i.e. pleadings which may delay, embarrass or otherwise prejudice the fair trial of an action, as, for example, where a party fails to plead his case with sufficient clarity and particularity such that the opposing party does not know the case that he has to meet. As is pointed out by Delaney and McGrath (at p. 192) a pleading may also be embarrassing where it introduces wholly immaterial matters which would lead to the introduction of irrelevant evidence at the trial of the action.
At the commencement of the hearing on 12th June, 2007, counsel for the defendant informed the court that he had been told by counsel for the plaintiffs that, while the plaintiffs intended adducing evidence of the non-particularised incidents complained of in para. 6, they are not pursuing any a claim in respect thereof. Counsel for the defendant properly pointed out that no such distinction was apparent on the pleading. Counsel for the plaintiffs informed the court that he was in a position to concede that, in relation to the portions of para. 6 which offend the Act of 1957, claims are not being pursued. However, he was not in a position to identify such portions. Counsel for the defendant’s response was that, insofar as the plaintiffs are making allegations as part of the factual matrix, whether the allegations are the subject of claims or not, the defendant is entitled to particulars of them, so that the defendant is in a position to deal with the allegations.
The concession mooted by counsel for the plaintiffs is utterly meaningless, given that the plaintiffs are not in a position to identify which of the non-particularised incidents itemised in para. 6 of the statement of claim are acknowledged to have occurred outside the relevant prescribed limitation period. The defendant is entitled to sufficient particulars of every allegation of wrongdoing which the plaintiffs assert in the statement of claim to enable the defendant to make the decisions involved in the proper defence of the action, for example, by distinguishing between allegations it will have to address and allegations it may not have to address on the ground that the claims are statute barred. In relation to a particular incident of alleged wrongdoing, it is not sufficient for the plaintiffs merely to fix the incident in a time frame of ten years prior to the commencement of the proceedings.
In the case of sub-paras. (i), (ii), (iii), (iv), (vi), (vii), (viii), (ix), (xiii), (xiv), (xvi), (xvii), (xviii), (xix), (xx), (xxi), (xxii), (xxiv), (xxv), (xxvi), (xxviii), (xxix), (xxx), (xxxi), and (xxxii), of para. 6, the date of the incident has not been identified even by reference to the year in which it is alleged to have taken place. In my view, because of that lack of particularity, the fair trial of the action is likely to be prejudiced. Therefore, those portions of para. 6 of the statement of claim must be struck out.
In relation to the remainder of the incidents itemised in para. 6, in my view, the plaintiffs have particularised each incident sufficiently to enable the defendant to decide on how to deal with the relevant allegation, either by taking procedural steps in advance of the trial or at the trial. Therefore, those sub-paragraphs must stand, unless the plaintiffs consent to some of them being struck out. With a view to avoiding further pre-trial procedures and the risk of costs, the plaintiffs may consider it prudent to consent to some of those sub-paragraphs being struck out. However, that is a matter for them.

Whearty t/a Whearty Brothers v. Agricultural Credit Corporation Ltd

., High Court, October 31, 1997 McCracken J.

JUDGMENT of Mr Justice McCracken delivered on the 1st October 1997

1. This is an action which concerns an allegedly defective agricultural machine purchased by the Plaintiffs from the second Defendant and manufactured by the third Defendant, which purchase was financed by the first Defendant. The action was listed before the President of the High Court on the 24th June, 1994 in a list of cases to explain the delay in bringing the case to hearing, and as nobody attended on behalf of any of the parties, the action was struck out. This is a Motion to re-enter the proceedings in the non- Jury list.

2. The case has an appalling history of delay and inaction. It was commenced by way of Plenary Summons against the first and second Defendants on the 23rd August, 1980, and a Statement of Claim against those Defendants was delivered on the 15th January, 1981. The first Defendant filed a Defence relatively speedily on the 21st May, 1981 and a reply to that Defence was delivered on the 10th April, 1983. The second Defendant did not file a Defence at that stage, but served two notices for particulars, the second of which was replied to by the Plaintiff on the 30th, July 1982. On the 11th October, 1983 the second Defendant filed a Defence and shortly thereafter sought a Motion to join the third Defendant as a Third Party. The Plaintiff delivered a reply to the second Defendant’s Defence on the 12th December, 1983 and very shortly afterwards served Notice of Trial. Thus by January 1984 Pleadings has been closed against both the first and second Defendants and Notice of Trial had been served, and the only matter which appeared to be outstanding was the third party proceedings by the second Defendant. By Order of 27th February, 1984 the second Defendant was given leave to issue and serve out of the jurisdiction on the third Defendant a Third Party Notice, which was duly done, and on the 3rd May, 1984 the Third Party entered an appearance. Subsequently, the Plaintiffs applied to have the then Third Party joined as a Defendant, and by Order dated the 3rd December, 1984 the present third Defendant was joined.

3. This necessitated an amended Statement of Claim which was delivered on the 14th March, 1985. Both the first and third Defendants then raised particulars, and on the 25th July, 1986 the third Defendant filed its Defence. The Statement of Claim was reamended on the 11th February, 1987 and further particulars were sought, primarily by the third Defendant, and in particular there was a notice dated the 24th August, 1987. It appears that some time in the mid 1980s, and I do not have the exact date, the second Defendant went into liquidation, and has taken no further part in these proceedings.

4. At this stage, over 10 years ago, while it could not be said that the case had proceeded with any great speed, at least there had been some kind of constant movement. However, matters then came to a complete halt. The notices for particulars were not replied to, nor did the Defendants take any steps to obtain an Order requiring the Plaintiffs to reply. Some four and a half years of total inaction passed, and on the 13th February, 1992 the Plaintiffs served a notice of intention to proceed. Even this did not generate any action on behalf of the Defendants, and on the 6th October, 1992 the Plaintiffs finally replied to the first Defendant’s notice for particulars and on the 30th October, 1992 replied to the third Defendant’s notice for particulars. This was shortly followed by a notice of trial on the 2nd November, 1992. This finally jolted the third Defendant into action and further particulars were sought by it in relation to damages. These were replied to, although not altogether to the Defendant’s satisfaction, by the 21st January, 1993 and on the 1st April, 1993 the Plaintiff brought a Motion for discovery against the Defendants. The third Defendant sought a cross order and in due course discovery was ordered and Affidavits of discovery were sworn, the Plaintiffs’ Affidavit being sworn on the 7th September, 1993. It should be said in fairness to the third Defendant that its correspondence in relation to particulars in 1992 and 1993 was expressly without prejudice to that Defendant’s right to seek a remedy in relation to the delay. During 1994 there was contact between the Plaintiffs’ Solicitors and the third Defendant’s Solicitors in relation to inspection to the Plaintiffs’ documents, which inspection finally took place in December 1994 by an agricultural consultant engaged on behalf of the third Defendant. At this stage all parties were unaware that the action had in fact been struck out in June 1994. In March 1995 the Plaintiffs’ Solicitors wrote to the third Defendant’s Solicitors giving certain further particulars, and nothing then happened until May 1996 when the Plaintiffs’ Solicitors intimated to the third Defendant’s Solicitors that a Certificate of Readiness was about to filed. At this stage the third Defendant’s Solicitors informed the Plaintiffs’ Solicitors that the matter had been struck out in June 1994. This Motion was brought to reinstate the proceedings in January 1997.

5. Both the first and third Defendants are objecting to the proceedings being re-entered on the grounds of the delay on the part of the Plaintiffs. They say that I should treat this case as if they had brought a Motion to strike out the proceedings, and say that the same principles apply to reinstating the case as would have applied had they brought such a Motion. I accept this as largely correct, except that the fact that neither of the Defendants sought to strike out the proceedings is a relevant matter in reaching my decision.

6. The principles to be applied by a Court in considering whether to strike out proceedings for delay are now well settled. They were first enumerated by Finlay P., as he then was, in Rainsford -v- Corporation of Limerick , which is unreported, but the relevant portion of which can be found as a note in (1984) I.R. 153. These principles have been approved of by the Supreme Court in O’Domhnaill -v- Merrick (1984) I.R. 151, and in two recent Supreme Court decisions, namely Primor Plc -v- Stokes Kennedy Crowley (1996) 2 I.R. 459 and the unreported decision In The Matter of Southern Mineral Oil Limited (In Liquidation) and In The Matter of Silk Oil (Ireland) Limited ( In Liquidation) in which judgments were delivered on the 22nd July, 1997. These principles are:-

“(1) Enquiry should be made as to whether the delay on the part of the person seeking to proceed has been firstly inordinate and, even if inordinate, whether it has been inexcusable. The onus of establishing that delay has both inordinate and inexcusable would appear to lie on the party seeking a dimiss and opposing a continuance of the proceedings.

(2) Where a delay has not been both inordinate and inexcusable, it would appear that there are no real grounds for dismissing the proceedings.

(3) Even where the delay has been both inordinate and inexcusable the Court must further proceed to exercise a judgment on whether in its discretion on the facts the balance of justice is in favour of, or against, the proceeding of the case. Delay on the part of a defendant seeking a dismiss of the action and to some extent a failure on his part to exercise his right to apply at any given time for the dismiss of an action for want of prosecution may be an ingredient in the exercise by the Court of its discretion.

(4) Whilst the party acting through a Solicitor must to an extent be
vicariously liable for the activity or inactivity of his Solicitor, consideration of the extent of the litigant’s personal blamewortheness for delay is material to the exercise of the Court’s discretion.”

7. The Plaintiffs’ Solicitor, in his replying Affidavit in this application, has sought to excuse the delay between August 1987 and October 1992 by saying that he did not have the material available to him to reply to the notice for particulars, and that he returned all the documents to the Plaintiffs to enable them to do so, and advised them to consult their accountants and farm advisers. He says that he was informed by the first named Plaintiff that some of the documentation got mislaid in the accountants’ office, and there was great difficulty in undertaking the necessary work to obtain the information. It is interesting to note that there is no Affidavit sworn by any of the Plaintiffs, or by their accountant.

8. I have no doubt that the delays which have taken place are inordinate. Furthermore, I do not consider that they are in any way excused by the matters set out in the Affidavits of the Plaintiffs’ Solicitor. This is particularly so as the last notices for particulars do not even appear to have been acknowledged by the Plaintiffs’ Solicitor, and no explanation of the alleged difficulties was given to the Defendants. The delay in this case was clearly both inordinate and inexcusable.

9. Before considering whether I should nevertheless exercise my discretion in favour of the Plaintiffs, I would also comment on the fourth principle set out in the Rainsford case. It is said, and I fully accept it, that the Plaintiffs, who are agricultural contractors, carried out their business in a very informal way, frequently working for friends and neighbours, and that they did not keep proper records of their financial affairs. They certainly ought to have done so, and to this extent it could be said that they are blameworthy. However, there is no suggestion that either their Solicitors, their accountants or their agricultural advisers in any way pressed them or imbued them with any sense of urgency.

10. Accountants frequently have to produce figures based on very scanty records and they usually manage to do so within a reasonable time, albeit that their figures are protected by caveats of various sorts. I also note that there is no correspondence exhibited by the Plaintiffs’ Solicitor wherein he urges the Plaintiffs to act speedily, or indeed warns them of the dangers of delay. Accordingly, while some blame may be laid at the door of the Plaintiffs themselves, I think that by far the greatest blame for the delay in this case must rest with their advisers.

11. The third principle in the Rainsford case is expressed as being that a Court ” must further proceed to exercise a judgment on whether in its discretion on the facts the balance of justice is in favour, or against, the proceeding of the case”. In O’Domhnaill -v- Merrick Henchy J. put it slightly differently when he said at page 157 :-

“Whether delay should be treated as barring the prosecution of a claim must inevitably depend on the particular circumstances of a case. However, where, as in this case, the delay has been inordinate and inexcusable, such delay is not likely to be overlooked unless there are countervailing circumstances, such as conduct akin to acquiescence on the part of the defendant, or inability on the part of an infant plaintiff to control or terminate the delay of his or her agent. In all cases the problem of the Courtwould seem to be to strike a balance between a plaintiff’s need to carry on his or her delayed claim against a defendant and the defendant’s basic right not to be subjected to a claim which he or she could not reasonably be expected to defend .”

12. Whichever way one looks at it, the Court undoubtedly has to carry out a balancing exercise. It has to balance the right of a litigant who has suffered loss to have access to the Courts, and to obtain the appropriate remedy, against the equally important right of a litigant who is being sued to present its defence fully and comprehensively. In the present case Mr. Hardiman BL on behalf of the first Defendant makes the case that his client has no means of defending the claim in relation to the quantum of damages, and said that if they had known that the Plaintiffs did not have any adequate records they could perhaps have instructed private investigators to try to find out locally the volume of business done by the Plaintiffs. He says that the first Defendants are now blindfold. While in some cases such an argument might well have a lot of merit, in my view it does not apply in the present case.

13. A Statement of Claim was served on the first Defendant on the 15th January, 1981, and it would appear that the first Defendant did not seek any particulars of the damages claimed until the 15th May, 1985, by which time the trail would have been long since cold.

14. With regard to the third Defendant, Mr. Gleeson BL argues that, after this length of time, witnesses’ recollections may be very poor or non-existent, and they could not be expected to recollect a machine which they had not seen for some seventeen years.

15. As the machine was apparently repossessed by the first Defendant in 1981, the Plaintiffs may well suffer the same difficulties. However, it is a very real objection which I will consider further.

16. In addition to this, Mr. Gleeson points out that the sales representive on behalf of the second Defendant, namely Michael Sheridan, is now deceased, and the Plaintiffs’ claim is in part based on express representations made by him. If the second Defendant was still a live party in this action, that would be a very real impediment to it. However, the ultimate Statement of Claim alleges that oral representations were made on behalf of the second Defendant, but in relation to the third Defendant, the representations alleged are those contained in its brochure, and not express verbal representations by any person on behalf of the third Defendant. The brochures are, of course, still available, and therefore there can be no dispute about the nature of any representations made by the third Defendant, and I do not think that the death of Mr. Sheridan will seriously prejudice them.

17. I now come to what I consider to be the countervailing circumstances in this case. This is not a case in which the Defendants or any of them initiated an application to the Court to strike out the proceedings. These proceedings were struck out because nobody, including the Defendants, appeared when the case was listed. Furthermore, while the delays are, in my view, inexcusable, particularly in relation to the period from 1987 to 1992, neither of the Defendants took any step to strike out the proceedings or indeed to obtain an Order compelling the Plaintiffs to reply to the notices for particulars. I think it is quiet clear that the Defendants hoped or assumed that the case had gone away, and felt they might be better served by doing nothing. While it is perfectly open to them to take this attitude, if the case does not go away then they must suffer the consequences. Procedures exist for a Defendant who feels he is prejudiced by delay to have the case struck out, and if such Defendant chooses not to use those procedures, this must very much weaken any case of prejudice due to delay being made on its behalf. Furthermore, while the third Defendant did sound warning notes that they were keeping their options open in relation to applying to the Court for relief due to delay, in April 1993 when the Plaintiffs sought discovery against it, instead of opposing that application or seeking to have the proceedings struck out at that stage, the third Defendant in fact brought a cross-motion for discovery. It was only at this stage that it discovered the true position with regard to the Plaintiffs’ documentation. If it had sought discovery in 1986, when the pleadings against it were closed, the situation might have been very different.

18. Balancing the right of the Plaintiffs to have their case heard by the Court against any prejudice which may be caused to the Defendants, I am quiet satisfied that the balance is in favour of the Plaintiffs, particularly having regard to the inaction of the Defendants themselves, which is one of the matters expressed in the third principle set out in the Rainsford case as being an ingredient in the exercise by the Court of its discretion. Accordingly, I will order that the proceedings herein be re-entered and, in sofar as it is necessary, give liberty to the Plaintiffs to serve a Notice of Intention to proceed. As there are still some outstanding Pleadings, I will hear arguments from Counsel as to the exact form the Order should take.

Moloney v Lacey Building and Civil Engineering Ltd

[2010] IEHC 8
JUDGMENT of Mr. Justice Clarke delivered on the 21st January, 2010

1. Introduction
1.1 This is an application under O. 8 of the Rules of the Superior Courts to set aside an order made by Peart J. renewing the plenary summons in these proceedings for a period of six months from the date of the order concerned.

1.2 The plenary summons was issued originally on 9th January, 2004. On 11th May, 2009, Peart J. made the relevant order renewing the summons for a six month period from that date. The second, third and fourth named defendants now seek to have the order of Peart J. set aside. I turn first to the relevant facts and procedural history.

2. Facts and Procedural History
2.1 The second and third named defendants are founding members of the firm know as Meehan Levins Partnership. That firm was initially engaged by the plaintiffs (“the Moloneys”) in 1996 to design a dwelling house at Tara Hill, Gorey, County Wexford (“the property”). The Moloneys also appointed the first named defendants, Lacey Building and Civil Engineering Limited (“the Contractor”) to construct the property. In March, 1999 the Meehan Levins Partnership incorporated as a limited liability company in the form of the fourth named defendant, Meehan Levins Partnership Limited, (together with the second and third named defendants, “the Architects”).

2.2 On 28th February, 2002, the Moloneys terminated the relevant retainer with the Architects and the Contractor by letter (“the termination letter”). The reasons for the termination were stated as being purported defects in the construction of the property and the timeliness and the quality of the Contractors’ workmanship. So far as the Architects are concerned, complaint was made as to the supervision of the works by the Architects. In addition, complaint was made that architects’ certificates were furnished in circumstances where it was alleged that it was clear that the Contractor had not properly carried out the works. By a separate letter of the 28th February, 2002, the Moloneys also terminated their agreement with the Contractor. Apart from a letter of the 14th March, 2002, from the Meehan Levins Partnership asserting that any problems were the responsibility of the Contractor nothing happened for over a year until, in the context of indicating that proceedings were being finalised, a suggestion concerning an inspection was raised on behalf of the Moloneys. A number of further items of correspondence passed on which nothing much turns, but by letter of the 22nd July, 2004, a more detailed complaint was made by solicitors acting on behalf of the Moloneys specifying what were said to be defects in the construction drawings and specifications and again threatening proceedings. At this stage solicitors were instructed on behalf of the Architects and an expert, Mr. Brian O’Connell, was nominated to conduct an inspection which appears to have taken place as a joint inspection on the 14th October, 2004. Nothing much again appears to have happened until 2006 when there is a further exchange of correspondence, some of which it will be necessary to refer to in more detail subsequently.

2.3 In the meantime, a plenary summons issued on the 9th January, 2004. Save for some mention in the 2006 correspondence to which I have just referred, no intimation of the existence of such proceedings was given on behalf of the Moloneys to the Architects. As is clear the summons was not, in fact, served either within the six month period required by the Rules or for a period of over five years thereafter prior to the application to Peart J. to renew the summons.

2.4 The reason given for the failure to serve the plenary summons within the time prescribed by the Rules of the Superior Courts was that the solicitor for the Moloneys was said to be awaiting a report from an expert to advise on the issue of liability and intended to serve a statement of claim at the same time as the summons. It is asserted by the Architects that this does not constitute a good reason for the failure to serve the plenary summons in a timely fashion.

2.5 To date, no statement of claim has been provided. The report of the relevant expert, Mr. Brendan McGing, structural surveyor, was issued in 2006. It was Mr. McGing’s opinion that the property might have to be demolished in order to rectify problems which he identified. That report was delivered to the solicitors for the Architects on 12th May, 2008, with a letter setting out that the solicitors for the Moloneys had been instructed to go ahead with the proceedings against the defendants. It also appears that certain further expert reports may have been recommended or sought at different times.

2.6 An application was made, in the ordinary way, ex parte to Peart J. on the 11th May, 2009, for an order renewing the plenary summons. Without reaching a definitive conclusion as to the precise date on which any cause of action, which the Moloneys may have had, originally accrued, it seems unlikely that any such cause of action could have post-dated the termination of the Architects retainer on the 28th February, 2002. On that basis, it seems almost certain that any proceedings of the type contemplated in this case would have become statute barred in February, 2008. The application to Peart J. was, in that context, made some fifteen months after the proceedings would otherwise have become statute barred. The application was, thus, made some nine months after the last date when a summons issued within the limitation period could have been served without being renewed.

2.7 It should also be noted that, while the proceedings remain in being against the Contractor, it would appear, on the basis of what I was told at the hearing of the application, that it is not considered that there is any point in pursuing the Contractor in these proceedings. In any event, subsequent to the order of Peart J., an application to set aside the order renewing the summons was brought by notice of motion dated the 9th July, 2009. This judgment is directed to the issues which arose on that motion. In that context, it is appropriate to commence by summarising the submissions of both parties.

3. The Architects’ Submissions
3.1 The Architects set out the basis for the relief sought as follows:-

(a) The plenary summons was issued some five years and four months before its renewal was sought and obtained;
(b) It is said that no good reason has been put forward as to why the summons should be renewed;

(c) The Architects are, it is said, still unaware of the exact allegations made against them;

(d) Given the passage of time, the fading of memory is likely to and may well prejudice the Architects in their defence; and

(e) The relevant expert’s report was available in 2006 but the application to renew was not made until May 2009, without explanation for this delay.

3.2 The Architects assert that the termination letter gave no indication of what claim, if any, was to be made against them. The Architects further assert that, at the time when the solicitors for the Moloneys claim that they were awaiting the expert report of Mr McGing, the Moloneys already had other expert reports sufficient, at least, to allow proceedings to be commenced.
3.3 It is submitted that there is no good reason to explain the delay in the service of the plenary summons.

4. The Moloneys Submissions
4.1 Solicitors for the Moloneys assert that there was no prejudice to the Architects in having the plenary summons renewed where, it is said, the Architects were aware of the Moloneys claims since the termination letter, and had engaged in correspondence concerning the nature and extent of the Moloneys complaints and carried out inspections of the property. Against that background it is now necessary to turn to the provisions of the Rules and the relevant jurisprudence.

5. Order 8 of the Rules of the Superior Courts
5.1 Order 8 provides as follows:-

“1. No original summons shall be in force for more than twelve months from the day of the date thereof, including the day of such date; but if any defendant therein named shall not have been served therewith, the plaintiff may apply before the expiration of twelve months to the Master for leave to renew the summons. After the expiration of twelve months, an application to extend time for leave to renew the summons shall be made to the Court. The Court or the Master, as the case may be, if satisfied that reasonable efforts have been made to serve such defendant, or for other good reason, may order that the original or concurrent summons be renewed for six months from the date of such renewal inclusive, and so from time to time during the currency of the renewed summons. The summons shall in such case be renewed by being stamped with the date of the day, month and year of such renewal; such stamp to be provided and kept for that purpose in the Central Office and to be impressed upon the summons by the proper officer, upon delivery to him by the plaintiff or his solicitor of a memorandum in the Form No. 4 in Appendix A, Part I; and a summons so renewed shall remain in force and be available to prevent the operation of any statute whereby a time for the commencement of the action may be limited and for all other purposes from the date of the issuing of the original summons.
2. In any case where a summons has been renewed on an ex parte application, any defendant shall be at liberty before entering an appearance to serve notice of motion to set aside such order.”

5.2 It has been suggested that, when bringing an application under O. 8, r. 2, a defendant needs to adduce new evidence or information so as to satisfy the court that, had the relevant facts been known at the initial hearing, the summons would not have been renewed; see the judgment of Morris J. in Behan v. Bank of Ireland (Unreported, High Court, 14th December, 1995).
5.3 However, Finlay Geoghegan J. in Chambers v. Kenefick [2007] 3 I.R. 526, came to a somewhat different view where, at p. 529, she states:-

“It is necessary for me to consider whether the approach of Morris J. sets out in full the proper approach of the High Court on hearing an application under O. 8, r. 2. With respect to Morris J. it appears to me that it does not set out the full circumstances in which the court may consider an application under O. 8, r. 2. It appears to me that, in addition to the approach set out by Morris J., it is open to a defendant, by submission, to seek to demonstrate to the court that, even on the facts before the judge hearing the ex parte application, upon a proper application of the relevant legal principles the order for renewal should not be made. This appears to me to be necessary having regard to the purpose of an application under O. 8, r. 2. It only relates to orders which have been made ex parte. On any ex parte application by a plaintiff, a defendant has not had an opportunity of making submissions to the court as to why the court should not exercise its discretion under O. 8, r. 1 to renew a summons. It appears to me that the purpose of including O. 8, r. 2 is to accord to a defendant fair procedures in the High Court, and to permit a defendant where he considers it necessary to make submissions to a judge, even on what might be described as an agreed set of facts, that the court should not exercise its discretion to renew a summons, and therefore I propose considering this application from the defendant on that basis.”

5.4 In Bingham v. Crowley [2008] IEHC 453, Feeney J. agreed with the reasoning of Finlay Geoghegan J., and accepted that the defendants in that case had demonstrated that the order should not have been made in the first instance on the basis of the facts then before the court. I also agree that the proper approach is as identified by Finlay Geoghegan J. in Chambers.
5.5 The legal principles governing the exercise of the jurisdiction to renew a plenary summons are, in my view, as summarised by Finlay Geoghegan J. in Chambers at p. 530 of her decision, as follows:-

“Firstly, the court should consider is there a good reason to renew the summons. That good reason need not be referable to the service of the summons. Secondly, if the court is satisfied that there are facts and circumstances which either do or potentially constitute a good reason to renew the summons then the court should move to what is sometimes referred to as the second limb of considering whether, because of the good reason, it is in the interests of justice between the parties to make an order for the renewal of the summons. Thirdly, in considering the question of whether it is in the interests of justice as between the parties to renew the summons because of the identified good reason, the court will consider the balance of hardship for each of the parties if the order for renewal is or is not made.”

5.6 In Bingham v. Crowley, the plaintiffs, parents of a deceased person, sought to renew a summons in respect of a medical negligence claim. The plaintiffs claimed, inter alia, that the summons was not served as they were awaiting further expert medical opinion. Feeney J. noted that it was not averred that such opinion impacted on the ability to serve the summons and concluded as follows, at para. 34:-

“The Court is satisfied that the opinion of the first named plaintiff that additional reports were required from further medical experts was not a good reason for the non service of the plenary summons.”

5.7 On the basis of the judgment of Feeney J. in Bingham, it seems clear that the absence of an appropriate expert report may provide, in certain circumstances, a “good reason” for not serving a plenary summons pending the receipt of such a report. However, it is clear that the absence of an appropriate expert report will only justify a failure to serve a plenary summons where the existence of the report concerned would be reasonably necessary in order to justify the commencement of proceedings in the first place. There is ample authority for the proposition that it is appropriate for a party considering suing for professional negligence to have obtained a sufficient expert report in advance of commencing such proceedings such as would warrant forming the view that there was a prima facie case of negligence against the professional person concerned. Likewise, in Green v. Triangle Developments Ltd [2008] IEHC 52, I noted that the existence of such a report would be necessary before a third party claim was brought in professional negligence. However, I also noted in Green that, in the context of the obligation to seek to join a third party as soon as was reasonably practicable, the mere fact that a required expert report was not available would not form a justifiable basis for any more delay than was reasonably necessary to procure the expert report concerned. A similar view as to the need to carry out appropriate investigations in a reasonably timely manner can be found in the judgment of Dunne J. in Creevy v. Barry Kinsella & Ors [2008] IEHC 100.
5.8 In summary, therefore, insofar as the absence of an appropriate expert report may be put forward as a good reason for not serving a plenary summons, it seems to me to follow that the expert report concerned must be reasonably necessary in order to justify the decision to responsibly maintain proceedings in the first place, rather than be necessary in order take further steps in the proceedings (such as the drafting of a statement of claim or bringing the case to trial) and, it must also be established that any delay occasioned by the absence of the expert report concerned was reasonable in all the circumstances, such that appropriate expedition was used by the party placing reliance on the absence of the expert report concerned, in attempting to procure same.

5.9 Finally, before going on to the facts of this case, I should note that some reliance was placed by counsel for the Architects on cases such as Gilroy v. Flynn [2005] ILRM 290, Allergan Pharmaceuticals (Ireland) Ltd v. Noel Deane Roofing and Cladding Ltd [2006] IEHC 215 and Stephens v. Paul Flynn Ltd [2005] IEHC 148 and [2008] IESC 4, where both this Court and the Supreme Court had to consider applications for dismissal for want of prosecution. It would be fair to summarise the jurisprudence which emerges from those cases as imposing a stricter view in relation to delay. While the test to be applied in the context of an application to dismiss for want of prosecution is not identical to the test to be applied in a renewal application there are, in my view, significant similarities. In the case of the delay jurisprudence, it is clear that the first question that must be asked is as to whether there was inordinate or inexcusable delay. The extent of the delay which is necessary to invoke the jurisdiction in the first place (i.e. delay which might be considered to be inordinate) has no parallel in the renewal jurisprudence for a summons needs to be renewed if it is not served within the specified period of six months. However, there are at least some parallels between the question of whether any delay which may be inordinate might be regarded as excusable (as arises in the delay jurisprudence), and whether there may be said to be a “good reason” for the renewal of the summons in the renewal jurisprudence. Likewise, it is clear that when the first hurdle is surmounted in either case, the court then has to go on to consider the general justice of the case, which consideration is likely to involve many of the same matters (such as degree of delay, prejudice, and the like) whether a dismissal for want of prosecution case or a renewal case is under consideration.

5.10 I am, therefore, satisfied that the general tightening up of the approach of the courts to delay which can be identified in the dismissal for want of prosecution jurisprudence applies also to cases involving an application to renew a summons, such that the question of whether a reason put forward may be deemed a “good” reason may be looked at with greater scrutiny and, the factors which can properly be taken into account in assessing the balance of justice may need to be looked at from a perspective that places a greater emphasis on the need to move with expedition.

5.11 In addition, it does have to be remembered that the policy behind the existence of a statute of limitations in the first place is that proceedings of various types are required, as a matter law, to be commenced within a specific period of time. It is worthy of some note that, in proceedings commenced in the Circuit Court, it is, for all practical purposes, necessary to move to the service of civil bill before the proceedings can properly be said to have commenced. The possibility that Circuit Court proceedings can, therefore, be said to have been commenced in circumstances where the relevant defendant has not received a formal notification of the commencement of the proceedings concerned, does not, in practice, exist. It seems to me that an application for the renewal of a summons in this Court needs to be viewed against the background of the statutory policy that proceedings must be commenced within the relevant limitation period. The purpose behind that policy is to prevent claims from being brought outside what has been determined to be a reasonable period for the category of case concerned. Given that proceedings in this Court are said to have been commenced once issued, it follows that it is possible to formally notify a defendant (by service) of the existence of proceedings outside the limitation period. Obviously any summons issued less than six months prior to the expiry of the relevant limitation period can be served outside that limitation period without any renewal. However, it, nonetheless, seems to me that a court in considering an application for renewal should pay significant attention to the fact that the policy behind the statute of limitations is that a defendant be aware in a formal sense that proceedings have been commenced, either within the statutory period or within a short time thereafter. In that context, it is illustrative to look at the “good reason” identified by Finlay Geoghegan J. in Chambers where the defendant concerned had been sent a copy of the relevant plenary summons but where same had not been formally served so that the defendant concerned was fully aware of the existence of proceedings even though there had been a technical failure to effect formal service. It seems to me that a renewal of a summons outside the limitation period so as to further extend the time (by reference to the limitation period) within which service can be affected, amounts at least to a stretching of the principles behind the existence of a statute of limitations in the first place. Such considerations should, in my view, inform decisions relating to both the question of what might be taken to be a “good” reason for the renewal of a summons and also in weighing the factors that might be put in the balance in considering where the balance of justice lies.

5.12 It also seems clear from Roche v. Clayton [1998] 1 I.R. 596, that it is not a good reason to renew a summons simply to prevent the defendant availing of the statute of limitations. In that case, O’Flaherty J., speaking for the Supreme Court, and having made reference to McCooey v. Minister for Finance [1971] I.R. 159 and, in particular, O’Brien v. Fahy (Unreported, Supreme Court, Barrington J., 21st March, 1997) noted that the statute of limitations must be available on a reciprocal basis to both sides of any litigation. To the extent, therefore, that Baulk v. Irish National Insurance Company Limited [1969] I.R. 66, might give rise to a possible argument to the effect that the fact that the plaintiff might otherwise be statute barred can provide good reason on its own, it seems to me that subsequent Supreme Court authority makes it clear that that argument is not tenable. It follows that the “good reason” must be more than a simple need to renew the summons so as to avoid the defendant being able to rely on the statute. It does seem that the history of events up to the time when the statute might have applied, and in particular, the extent to which the potential defendant knew of the existence of the claim and most especially, the fact that proceedings had been brought on foot of it, can constitute good reasons for the purposes of the Rules.

5.13 I should, in passing, comment that I do not consider that it is appropriate to characterise a failure to renew a summons as amounting to a penalty for procedural mishap. To so characterise it would, in seems to me, be to place little or no weight on the policy considerations behind the statute of limitations in the first place. The statute creates a situation where the issuing of proceedings one day after the limitation period leaves the relevant defendant with a complete defence, whereas the issuing of the same proceedings two days earlier would allow the proceedings to be considered on the merits. There are, as I have pointed out, very good policy reasons why a threshold is imposed. To regard a failure, for no explicable reason, to serve the summons within six months or at least within six months of the date when the statute expires, as merely a procedural mishap would seem to me to afford far too little weight to the policy behind the statute.

5.14 Likewise, it seems to me that the policy inherent in the statute of limitations requires that proceedings be commenced and, thus, be tried within a reasonable proximity to the events giving rise to the relevant claim. Part of the reason behind that policy is that injustice may be caused if proceedings are not formally commenced in a timely manner, thus causing problems for the defendant. However, it seems to me that another aspect of the relevant policy is to assist in ensuring that cases come to trial sufficiently close to the events giving rise to the relevant proceedings so as to minimise the risk of injustice. In that context, and to the extent that such matters are capable of assessment at that stage, it seems to me that, in balancing the interests of justice in a renewal application, the court should have regard to any real risk of prejudice.

5.15 Against the background of those principles, I now turn to the facts of this case.

6. Application to the Facts of this Case
6.1 On behalf of the Moloneys it is said that it was desired to serve a statement of claim with the plenary summons and that, for those reasons, it was considered necessary to obtain further and more detailed expert reports in order to facilitate the drafting of the statement of claim concerned. While that may be so, there does not seem to me to be any legitimate basis for a contention that the Moloneys were not in possession of a sufficient expert report to warrant the commencement of professional negligence proceedings against the Architects as of the date of the issue of the plenary summons in this case. I am not, therefore, satisfied that the absence of expert reports affords, on the facts of this case, a “good reason” for the plenary summons not having been served within the period provided by the rules, and the absence of such expert reports does not, therefore, in my view, amount to a good reason for renewing the summons in this case.

6.2 It is further said that there was some notification on behalf of the Moloneys to the Architects of the fact that a summons was issued. That part of the correspondence which passed between the parties in early 2006 can be so interpreted, is undoubtedly correct. However, it is equally clear from the immediate replying correspondence on behalf of the Architects that the relevant correspondence was not interpreted by them as meaning that proceedings had, in fact, been issued. In the circumstances it does not seem to me that it is appropriate to approach this case as being one where the Architects were on any meaningful notice of the fact that proceedings had, in fact, been commenced rather than that proceedings were being threatened. A letter from the Moloneys solicitors of the 30th January, 2006, does refer to “the High Court proceedings instituted against your client and the builder”. However, a reply from the Architects’ solicitors of the 28th February, 2006, notes “that it is your intention to issue proceedings” and confirms a willingness and authority to accept service. It also needs to be noted that, apart from some brief correspondence in the succeeding months (terminating on the 26th May, 2006) concerning an inspection of the premises, the correspondence between the respective solicitors went silent from in or about that time until well after the statute of limitations would have expired, with the relevant correspondence recommencing in May, 2008. That recommenced correspondence was immediately replied to on behalf of the Architects by a letter of the 4th June, which puts squarely in issue the fact that the proceedings had become statute barred.

6.3 In all the circumstances, I am not satisfied that this is a case where it can properly be said that the Architects knew or, ought to have known, that proceedings had been commenced.

6.4 It is, of course, the case that, at least to some extent, a claim had been intimated on behalf of the Moloneys. However, it is fair to say that the correspondence between the parties can reasonably be characterised as sparse so that while the possibility of a claim had been intimated, same did not appear to have been pursued with any significant vigour, and the correspondence peters out in 2006 without any contact between the parties between then and the time when the statute would have expired in February, 2008. It would not have been unreasonable for the Architects to consider that the matter had been let drop by that stage.

6.5 In circumstances where, therefore, I am not satisfied that any acceptable explanation has been given for the failure to serve the summons well before the time when application to renew was made to Peart J., the fact that I am satisfied that it can not be said that Architects were in any meaningful sense on notice that proceedings had been commenced rather than that a claim had been intimated, and the fact that even to the extent that a claim had been intimated, same had only been particularised to a limited extent and the trail had been allowed to run cold for a significant period prior to the expiry of the limitation period, the only real reason that can be asserted for renewal is that the Moloneys claim would otherwise be statute barred. As already indicated that, by itself, is not a good reason.

6.6 In all those circumstances, I am not satisfied that a good reason has been established for the renewal of the summons in this case. Lest I be wrong in that consideration, I should also touch on questions concerning where the balance of justice might be said to lie.

6.7 I am satisfied that there would be a significant risk of prejudice to the Architects should these proceedings now be permitted to continue. While it is true to say that the Architects were given early notice, in general terms, of the complaints made by the Moloneys and had, again in the those general terms, an opportunity to inspect the premises, which opportunity was availed of, it nonetheless needs to be noted that a case such as this is likely either to turn on or to be significantly influenced by, many points of detail. To take but one general issue it is clear that the complaints made by the Moloneys originally involved accusations both against the Contractor and the Architects. There may, of course, be circumstances where both a contractor and a firm of architects may be liable in respect of the same defects given whatever level of supervision the architects concerned were contractually obliged to exercise. However, it also is the case that in many proceedings involving a claim against both a contractor and a firm of architects, certain items where liability can be established may be attributed solely to one or the other, having regard to whether it can be said that the problem stemmed from a failure to construct properly in accordance with plans or a design defect. It is inevitable that the ability to deal with questions of detail which could be highly material to the question of whether any particular item of claim could properly be said to arise from a liability on the part of the contractor on the one hand, or the architect on the other hand, must have been significantly impaired by the passage of time and in particular the fact that the claim, which it would appear will now be made if these proceedings are permitted to continue, will involve the filing of detailed particulars, at least some of which will undoubtedly come to the attention of the Architects for the first time some eight or nine years after their retainer was terminated. As an example, the first intimation that it might be necessary to knock and rebuild the property is of very recent origin. Issues concerning whether such a consequence really arises, whether, if so, it was always necessary or has been caused or contributed to by delay and whether that consequence is attributable to any fault on the part of the Architects may well require detailed analysis. Given the recent appearance of this aspect of the case the risk of prejudice is obvious. In those circumstances, it seems to me that there is a real risk of prejudice.

6.8 In addition, it seems to me that it is appropriate to take into account the particularly long delay after the issue of the plenary summons and before its renewal which is shown on the facts of this case. In addition, the fact that the application to renew occurred well over a year after the last date on which the statute of limitations could be said to have expired, seems to me to identify the delay in this case as being particularly excessive.

6.9 Having regard, therefore, to the particularly long, and in my view unexplained, delay not just from the time when the plenary summons was issued but also from the time when the statue of limitation expired and, indeed, the last time (being six months after the statute expired) when it could reasonably be expected that a summons issued within the statute could be served, coupled with the real risk of prejudice to the Architects on the facts of this case, I am satisfied that the balance of justice would not, in any event, favour the renewal of the summons in this case.

6.10 In assessing, in accordance with the test identified by Finlay Geoghegan J. in Chambers, the balance of hardship it also needs to be noted that the Moloneys have instituted proceedings (which are currently held up pending this judgment) against their former solicitors for negligence. The jurisprudence concerning dismissal for want of prosecution makes clear that the fact that a plaintiff may have a legitimate complaint against his advisers (and to be able to make claim in that regard) is a relevant factor which leans against absolving a party for failures on the part of those advisers.

7. Conclusions
7.1 I have, therefore, come to the view that there is no good reason for the renewal of the summons in this case.

7.2 Even if I had been satisfied that there was a good reason I have, for the reasons which I have sought to identify, come to the view that the balance of justice in all the circumstances would not have favoured the renewal of the summons. There will, therefore, be an order setting aside the previous order made by Peart J. renewing the summons.

Doyle v Gibney

[2011] IEHC 10

JUDGMENT of Mr. Justice Hogan delivered on the 18th January, 2011
1. Should this Court permit the plaintiff to continue with proceedings which issued in 1997 and which relate to events which are alleged to have occurred in 1991 even though almost no steps have been taken by her to prosecute this litigation for the last thirteen years? This is the issue which now presents itself in the two motions whereby the second and third named defendants, while seeking slightly different relief, both effectively ask the Court to strike out these proceedings on the grounds of inordinate delay.

2. The plaintiff was born in January, 1972. She appears to have been a very promising swimmer and she was a member of prominent Dublin swimming club, Trojan Swimming Club. That club organised a training camp in Orlando, Florida in 1991. The essence of the plaintiff’s case is that she was sexually assaulted by the first defendant while at that camp and that the others defendants were negligent in their role or supervision of the first defendant or the camp. In September 1997, the plaintiff’s then solicitors wrote to both the Irish Amateur Swimming Association (“IASA”) and to the Olympic Council of Ireland (“OCI”) setting out the details of the claim. A month later, a plenary summons (which had issued on 27th April, 1997) was served on both IASA and the OCI. The respective solicitors for both organisations wrote to inform the plaintiff’s solicitors that their respective clients were limited companies, so that the service was invalid. Both sets of solicitors suggested that the proceedings should be amended to reflect the corporate status of their respective clients.

3. As it happens, the plaintiff’s solicitors took up this suggestion, with the result that the Master of the High Court made an order on 24th June, 1998, granting the plaintiff liberty to amend the title of the proceedings. That order was further amended on 11th November, 1998, whereby the time for the service of the summons was extended for a further three weeks. For reasons which are not easy to fathom, neither defendant was ever served – either at that point or at any stage thereafter – until December 2009, some eleven years later. It appears that in July, 2009 an application was made ex parte to this Court (Peart J.) to renew the summons and on 13th July, 2009, Peart J. made an order pursuant to O. 8, r. 1 renewing the summons for a six month period.

4. Following the service of the summons, the two defendants took a slightly different approach to this turn of events. IASA filed an appearance and then brought a motion in which the principal relief sought is that the proceedings should be struck out by reason of inordinate and inexcusable delay in both the commencement and prosecution of the proceedings. The OCI did not actually file an appearance, but they instead elected to bring a motion pursuant to O. 8, r.2 whereby they sought to have the order of Peart J. renewing the summons set aside. Nothing really turns on these different approaches, since the relevant principles are in many respects concurrent and overlapping. I propose to deal first with the application to set aside the order renewing the summons.
The OCI motion
5. As we have just seen, OCI move the court pursuant to O. 8, r. 2, which is in the following terms:

“In any case where a summons has been renewed on an ex parte application, any defendant shall be at liberty before entering an appearance to serve notice of motion to set aside such order.”
6. Order 8, r. 1 provides that the High Court may:
“if satisfied that reasonable efforts have been made to serve such defendant, or other good reason, may order that that the original or concurrent summons be renewed for six months from the date of such renewal inclusive, and so from time to time during the currency of the renewed summons.”
7. Apart from the fact of the order itself, as it happens I know very little about what transpired before Peart J. There is no note of what happened before him and the papers in this motion do not disclose the basis on which it was urged that a “good reason” existed which would have justified the renewal of the summons. This is relevant because even if I considered it appropriate to do so, these facts alone would make the test articulated by Morris J. in Behan v. Bank of Ireland (High Court, 14th December, 1995) difficult – if not altogether impossible – to apply in the present case.
8. In Behan, Morris J. held that any party moving the court under O. 8., r. 2 must demonstrate:

“that facts exist which significantly alter the nature of the plaintiff’s application to the extent of satisfying the court that, had these facts been known at the original hearing, the order would not have been made.”
9. This view, has, however, fallen into disfavour since the judgment of Finlay Geoghegan J. in Chambers v. Keneflick [2005] IEHC 402, [2007] 3 I.R. 526 where she stated ([2007] 3 I.R. 526 at 529) that this test:
“does not set out the full set of circumstances in which the court may consider an application under O. 8, r.2. It appears to me that, in addition to the approach set out by Morris J., it is open to a defendant, by submission, to seek to demonstrate to the court that, even on the facts before the judge hearing the ex parte application, upon a proper application of the relevant legal principles the order for renewal should not be made.”
10. Finlay Geoghegan J. went on to add that O. 8, r. 2 must be regarded as giving effect to the constitutional principle of basic fairness of procedures and that, accordingly, the rule was required to be construed in that fashion.
11. I respectfully agree with this analysis and I note that similar views were also expressed by Feeney J. in Bingham v. Crowley [2008] IEHC 453, by Peart J. in O’Keeffe v. G & T Crampton Ltd. [2009] IEHC 366 and by Clarke J. in Moloney v. Lacey Building and Civil Engineering Ltd., 21 January 2010. I would merely add that, in my opinion, the approach taken by Morris J. in Behan cannot be regarded as having survived two separate Supreme Court decisions, Adam v. Minister for Justice [2001] 3 IR 53 and DK v. Crowley [2002] 2 I.R. 744.

12. Adam was concerned with the status of the ex parte grant of leave in judicial review proceedings. The judgments of McGuinness and Hardiman JJ. both stress the provisional nature of any orders made ex parte and how, in the interests of fair procedures, a person affected by such orders must have the right to apply to the High Court have such orders set aside. The judgment of the Supreme Court in DK is, perhaps, even more in point. In DK the Supreme Court held that s. 3 of the Domestic Violence Act 1996, was unconstitutional, chiefly because the section empowered the District Court to make a barring order ex parte without any of the necessary safeguards, such as would attend the grant of an interim injunction in the High Court. Specifically, the Court considered that the fact that the barring order was open-ended was itself an objectionable factor which pointed to the existence of a disproportionate interference with the right to fair procedures. It was true that a person affected by the order could apply to discharge such an order, but even then this effectively reversed the burden of proof. As Keane C.J. explained ([2002] 2 I.R. 744 at 760):

“It is undoubtedly the case that the respondent may apply to the court at any time to have the interim order discharged or varied. No reason has been advanced, however, presumably because there is none, as to why the legislature should have imposed on respondents in this particular form of litigation, with all its draconian consequences, the obligation to take the initiative in issuing proceedings in order to obtain the discharge of an order granted in his or her absence which, it may be, should never have been granted in the first place. It has not been demonstrated that the remedy of an interim order granted on an ex parte basis would be in some sense seriously weakened if the interim order thus obtained were to be of a limited duration only, thus requiring the applicant, at the earliest practicable opportunity, to satisfy the court in the presence of the opposing party that the order was properly granted and should now be continued in force.”
13. On this basis, therefore, any order made ex parte renewing a summons must, in the words of Hardiman J. in Adam, be regarded as being in the nature of a provisional order. Perhaps just as importantly, if O. 8, r. 2 is to be construed – as it must be – in the light of East Donegal principles (East Donegal Co-Operative Ltd. v. Attorney General [1970] IR 317) and if it is given a construction which conforms with that basic constitutional guarantee, then it follows as a minimum that a judge hearing a matter inter partes cannot be bound or constrained by any view formed by the judge who granted the order ex parte.
14. While accepting that the decision to renew a summons may not be strictly comparable in all respects with a decision to grant an injunction, as it happens the question of whether the summons in this case should be renewed is a decision of immense importance to all parties to this litigation. It may equally be instructive to observe that where an interim injunction is granted ex parte by this Court, it has never been the case that at the subsequent hearing of the application for interlocutory relief the Court would be somehow bound to continue the injunction unless it were shown that new material had come to light which would have affected the original decision to grant the interim relief. For all the reasons expressed in cases as different in their own way as Chambers, Adam and DK, I believe that the same must be true – at least by way of analogy – so far as applications under O.8, r.2. It follows that, with the benefit of an inter partes hearing, it falls to me to consider the matter afresh.

15. In the light of this, one may thus again pose the question starkly: what “good reason” could there possibly be for renewing a summons after an interval of eleven years? It is important to note here that no steps whatever were taken by the plaintiff in the interval. I do not overlook the fact that there may possibly have been difficulties in serving the first defendant (who appears to reside in the United States). But none of this could excuse the pall of inactivity which appears to have descended on this case from a relatively early stage.

16. Article 34.1 of the Constitution assigns the administration of justice to the courts. Quite apart from any considerations of the personal rights contained in Article 40, the speedy and efficient dispatch of civil litigation is of necessity an inherent feature of the court’s jurisdiction under Article 34.1 if. As I ventured to suggest in my own judgment in O’Connor v. Neurendale Ltd. [2010] IEHC 387, this constitutional imperative means that the courts have a jurisdiction (and, in an appropriate cases, a duty) to exercise their powers in a way which will best ensure that a litigant’s right to a hearing within a reasonable time is best vouchsafed. In any event, and for good measure, the same right is guaranteed by Article 6 ECHR: see Gilroy v. Flynn [2005] 1 ILRM 290 and McFarlane v. Ireland [2010] ECHR 1272.

17. Against that background, it would be almost impossible to envisage circumstances in which the courts could or should be prepared to resurrect this litigation by renewing the summons after such a remarkable lapse of time, not least given that nothing at all has happened in the interval between November, 1998 and July, 2009. Certainly, nothing by way of explanation has been offered.

18. To make matters even worse, it should be recalled that the events complained of were said to have occurred in July, 1991 at a time when the plaintiff was of full age. The plenary summons was issued in April, 1997 towards the end of a (not ungenerous) limitation period. By virtue of O.8, r.1 the plaintiff had 12 months in which to serve the summons and the first intimation which the OCI had that a claim was to be made was in September 1997, some two months after the limitation period had already expired, even if the summons had already issued some five months earlier. These considerations made it all the more incumbent on the plaintiff to proceed with speed: cf. the comments of Henchy J. regarding the duties imposed on a plaintiff who has commenced the litigation towards the end of a limitation period in Sheehan v. Amond [1982] I.R. 235 at 237.

19. As it happens, therefore, the renewal of the summons in November, 1998 meant that the time for service was extended at time when the limitation period had already expired some seventeen months earlier. Of course, once the summons has been issued within the limitation period, the plaintiff has twelve months within which to effect service: see O. 8, r.1. In other circumstances, one might however query whether it was even appropriate to have sanctioned a further extension of the time permitted for service at a time when the limitation period had expired. As Clarke J. put it (at para. 5.11) in Moloney:

“It seems to me that a renewal of a summons outside the limitation period so as to further extend the time (by reference to the limitation period) within which service can be effected, amounts at least to a stretching of the principles behind the existence of a statute of limitations in the first place. Such considerations should, in my view, inform decisions relating to both the question of what might be taken to be a ‘good’ reason for the renewal of a summons and also in weighing the factors that might be put in the balance in considering whether the balance of justice lies.”
20. Whatever reservations one might have about the renewal of the summons in November, 1998 at a time when the limitation period had expired over a year previously, a further subsequent delay of over eleven years for the service of a summons is plainly unsustainable if the courts are not to permit the legislative policy choices underpinning the Statute of Limitations indirectly to be set at naught.
21. For all of these reasons, in view of this striking delay, I find myself coerced by fundamental constitutional (and, for that matter, ECHR) principles to set aside the order of Peart J. which renewed the summons. Any other conclusion would be manifestly at odds with the courts’ fundamental duty under Article 34.1 to ensure the timely administration of justice. Nor could the OCI be realistically expected to defend a case on the merits after a lapse of well nigh twenty years. In any event, no obvious “good reason” for renewing the summons under O. 8, r.1 has been advanced.
The IASA motion
22. Similar considerations apply in the case of IASA motion. So far as this motion is concerned, the application is to strike out the proceedings pursuant to the Court’s inherent jurisdiction on the grounds of inordinate and inexcusable delay. For the reasons already set out, it is self evident that the delay has been inordinate and no excuse could plausibly be advanced by way of explanation.

23. In these circumstances, I can move immediately to the third limb of the Primor test (Primor plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459) and consider the balance of justice as between the parties.

24. The risk of injustice and prejudice to IASA is obvious. Quite apart from the inherent unfairness of being required to defend a case on the merits after the passage of a remarkably long period of time which was entirely caused by the inaction of the plaintiff, the affidavit of Ms. Sarah Keane sets out concisely the particular prejudice which IASA are likely to suffer as a result. Specifically, IASA has been re-structured during the intervening years and it is plain that the present members of the IASA Board knew nothing of this claim prior to the receipt of the plenary summons in December, 2009.

25. Further prejudice is likely to be caused by reason of the fact that IASA could not now realistically seek to join a potential third party, the Trojan Swimming Club, to the proceedings. Moreover, while many abuse claims arising from the sexual abuse of female swimmers were settled in 2008, IASA also reached a settlement at the same time with its insurers in respect of these claims. The consequence of this is that IASA has no insurance cover which would be available to meet a new claim of this kind. Quite obviously, IASA is prejudiced by reason of the fact that had it been aware of this existing claim in 2008 it might have been able to factor this issue into the settlement equation, but this opportunity has now vanished.

26. The plaintiff will naturally suffer prejudice if the summons is not renewed. Thus, if her substantive case is correct, she has been the victim of reprehensible conduct which cannot now be the subject of an adjudication by this court. Of course, it has been clear for some time that merely because the proceedings would otherwise be statute-barred cannot in itself be a ground for holding that a plaintiff has suffered such prejudice such that the third limb of the Primor test must be resolved in her favour. As Clarke J. said in Rogers v. Michelin Tyres plc [2005] IEHC 294:

“…..it is proper to take into account the extent to which these proceedings are important to the plaintiff. However in weighing that factor I have also have to have regard to the judgment of Henchy J. in O’Domhnaill v. Merrick [1984] I.R. 151 where at page 159 it is implicit that the court took into account “that it has not been submitted on behalf of the plaintiff that it would not be possible for her to take an alternative course to this action for the purposes of recovering damages or compensation.” It seems clear, therefore, that in a case where the entire responsibility for delay rests upon a professional advisor the court can and should take into account the fact that the plaintiff may have an alternative means of enforcing his or her rights.”
27. As it happens, I know nothing of the reasons why the plaintiff’s case made absolutely no progress for this eleven year period from November, 1998 to July, 2009. She has chosen to put no explanation before the court for such gross delay, save to say in the most general way that by reason of the delay on the part of her former solicitors she was obliged to instruct a new firm of solicitors and that in March, 2008 she commenced separate proceedings her former solicitor for professional negligence. The pleadings in those proceedings have closed and a notice for trial has been served.
28. One may therefore look at the question of prejudice in the following way. If the plaintiff was personally culpable for the delay (by, for example, not giving appropriate instructions to her solicitors), then she is not in a position to complain if the third limb of the Primor test is resolved against her. If, on the other hand, the fault is that of her legal advisers, then the fact that she is pursuing a professional negligence action against her former solicitors is a factor which, as both O’Domhnaill and Moloney make clear, I am entitled to take into account in assessing the question of prejudice. Thus, the fact that she may have an alternative remedy significantly mitigates the potential prejudice which she would otherwise suffer.

29. Whichever way one looks at the matter, it is plain that the prejudice which IASA will suffer significantly outweighs the prejudice which would be visited on the plaintiff by reason of a gross delay which – it must again be recalled – she has not explained.
Conclusions
30. It was for these reasons that I acceded to the application of the OCI to set aside the renewal of the summons under O.8, r.2 and to the application of IASA to strike out the proceedings on the grounds of inordinate and inexcusable delay.

 

Flood v Dunnes Stores Ltd

[2012] IEHC 206

JUDGMENT of Mr. Justice Birmingham delivered the 27th day of April, 2012
1. At issue before the Court are two motions, one brought by the plaintiff for judgment in default of defence dated 18th March 2011, which was returnable for the 11th July 2011, and one brought by the defendant dated the 4th November 2011, returnable for the 16thJanuary 2012. The motion brought by the defendant is something of a hybrid in that it seeks to set-aside an order made by Peart J. ex parte on 22nd March 2010, renewing a plenary summons and it also seeks the dismissal of the proceedings by reason of inordinate and inexcusable delay. Ancillary reliefs are also sought. Although the motion brought by the defendant is later in time it is the motion that has been argued because it has the capacity to determine the other motion.

2. By way of background it should be explained that the plaintiff was employed as a restaurant worker at the Timepiece Restaurant in Cornelscourt, Dublin and it is her case that she was involved in an accident at work on 29th/30th May 2001. It appears, on her account, that on that occasion she was unloading a tray of crockery from a dishwasher when she suffered a wrenching type injury giving rise to a back injury.

3. On the 14th February 2002, the plaintiff consulted her solicitor, Mr. Gerard Lambe. On the 21st February 2002, he wrote to the defendant at Cornelscourt Shopping Centre. There followed an exchange of correspondence over the following months which concluded with a letter of the 6th June 2002 from Dunnes Stores’ head office at St. Stephen’s Street, Dublin which indicated that proceedings could be served on Dunnes Stores at its registered offices and that they would instruct solicitors to enter an appearance.

4. At that stage there was a break in activity and then on the 13th May 2004, a plenary summons was issued. This has been described as a protective writ. It was of course issued shortly before the statutory limitation period would have expired.

5. On the 22nd March 2010, there was an application to Peart J. to renew that summons, an application brought almost six years after the summons had been issued. Peart J. ordered the summons be renewed for six months.

6. In seeking to explain the delay in serving the plenary summons, there has been reference to a difficulty in obtaining a medical report. In that regard the plaintiff was first seen by an orthopaedic surgeon on 23rd May 2002, having been referred to him by her G.P. Prior to that, on the 21st February 2002, the plaintiffs solicitor wrote to the orthopaedic surgeon who was due to see her and requested a medical report. A medical report was ultimately received only in December 2006.

7. The plaintiff had an amount of contact with the orthopaedic surgeon between the 23rd May 2002, when she first saw him and February 2003, when an MRI scan was carried out which showed a small disc protrusion between the fifth lumbar and first sacral vertebrae. In May 2003, the orthopaedic surgeon discussed with the plaintiff the possibility of having an epidural but it appears that she was not called for one. She next saw the surgeon on 18th May, 2006, when, according to the report subsequently obtained, her signs and symptoms were unchanged from the picture seen in 2003.

8. It does not appear that there was any follow-up to the request for her medical report of February, 2002 to which there was no response. The next development on that front was that a letter seeking the report dated the 11th September, 2006, from her solicitor was sent, which he arranged for the plaintiff to hand deliver. Of interest is that the letter includes the following observation:-

“Further as I did not hear further from my client until recently in the matter, I presumed that she either did not intend to proceed further or in the alternative that her condition was unrelated to the accident of which she complained to me”.
9. When a medical report was obtained dated 20th November, 2006, which included an opinion that, given the mode of onset of symptoms, it would appear that the disc prolapse occurred when she was lifting the heavy tray laden with crockery, the plaintiff was already significantly out of time for serving the plenary summons as the time for serving it had expired in May, 2005. In those circumstances one might have expected an immediate application to renew but that did not occur. An affidavit was sworn by the plaintiff on the 22nd May, 2007, in preparation for such an application and, indeed, this affidavit was before the Court when the application was eventually moved on the 22nd March, 2010, but until then no application was moved.
10. The affidavit sworn by the plaintiff on the 22nd May 2007 was furnished to the defendant some days later. Then in December 2007, the plaintiff informed the defendant of an intention to seek the extension of time for service on 21st January, 2008. Dunnes Stores’ headquarters raised the point that correspondence was being addressed to the manager of the Cornelscourt store when all such communication relating to personal injury claims should be directed to the registered offices and sought copies of earlier correspondence. A copy of an earlier letter was furnished as requested. A letter from the solicitor for the plaintiff dated 21st January, 2008, concluded “I look forward to hearing further from you herein and in the interim will withhold Application to Court pending same and further notification to you”. On 5th February, 2008, the Head oflnsurance for Dunnes Stores in a letter commented that they were taking legal advice in the matter. At this stage there was a further break in activity until 15th February, 2010, when the solicitor for the plaintiff again wrote to the Head of Insurance indicating that if liability was in dispute that he would proceed with an application to extend the time for service. The application to extend time was, as we have seen, made on 22nd March, 2010.

11. Thereafter the plaintiff sought a defence and when this was not forthcoming, following a number of requests, brought the motion returnable for the 11th July 2011. On that day counsel for the defendant appeared in Court and sought to defer the motion as it was intended to bring an application to set-aside the extension of time that the plaintiff had obtained. That this might be how the defendant would respond if an extension of time was obtained on an ex parte basis had been flagged in earlier correspondence.

12. I have indicated that there are two legs to the motion brought by the defendant. I propose to deal first with the question of the renewal of the plenary summons. The approach that a court should take to this issue has been concisely stated by Finlay Geoghehan J. in Chambers v. Kenefick [2007] 3 I.R. 526. At para. 8 of her judgment she commented:-

“Firstly, the court should consider is there a good reason to renew the summons. That good reason need not be referable to the service of the summons. Secondly, if the court is satisfied that there are facts and circumstances which either do or potentially constitute a good reason to renew the summons then the court should move to what is sometimes referred to as the second limb of considering whether, because of the good reason, it is in the interests of justice between the parties to make an order for the renewal of the summons. Thirdly, in considering the question of whether it is in the interests of justice as between the parties to renew the summons because of the identified good reason, the court will consider the balance of hardship for each of the parties if the order for renewal is or is not made.”
13. There are therefore three elements to the task in hand:
(1) Identifying whether there is good reason to renew the summons;
(2) Considering whether the interests of justice are served by providing for renewal of the summons and;

(3) Considering whether it is appropriate to renew the summons having regard to a determination of where the balance of hardship applies for both sides, if the order for renewal is or is not made. This is really a sub-issue of issue two.

Dealing with the question of whether there is good reason to renew the summons, the first matter that strikes one is that it is sought to renew the summons almost six years after it was issued and almost five years after the period for service had expired. I find the explanation offered, that there was difficulty in obtaining a medical report to link the plaintiff’s symptoms with the incident, less than convincing. The correspondence in 2002, makes clear that the plaintiff was unequivocally linking the immediate onset of symptoms with an incident at work. That might have been regarded as sufficient to serve the summons which had been issued just before the statutory period expired. If a medical report was required one might have been obtained from her general practitioner or, if it was felt necessary to have an opinion from a surgeon a reminder could have been sent, following up on the letter of February, 2002. I am not convinced that there was any good reason why the summons could not have been served before it expired. In addition, I do not believe that the time lapse between the 20th November, 2006, the date of the medical report, and the application to the High Court on 22nd March, 2010, can be justified. I accept that there was an amount of contact with the defendant between May 2007, and February 2008, but I cannot see this really provides any explanation for the extent of the delay. In the circumstances I am driven to the conclusion that there is no good reason for extending the time for service of the summons and for renewing the summons.
14. Lest I be wrong, I propose to address the question of where the interests of justice lie. However, before doing so, I want to turn to the aspect of the application that seeks to dismiss or strike out the proceedings by reason of inexcusable and inordinate delay. The test to be applied on an application to strike out is well established. In Rainsford v. Limerick Corporation [1995] 2 ILRM 561, Finlay P., as he then was, held that it should be determined first whether there has been an inordinate and inexcusable delay on the part of the plaintiff. Where such a delay has been established the court must then go on to consider how to exercise its discretion as to whether to dismiss or not. In this regard, the court should have regard to whether the balance of justice favours allowing the action to proceed or the dismissal of the action. In the case of O’Domhnaill v. Merrick [1984] 1 I.R. 151, the Supreme Court clarified that where there has been inordinate and inexcusable delay the plaintiff is required to identify countervailing circumstances if the case is not to be dismissed. The matter was put in the following way:-

“Whether delay should be treated as barring the prosecution of a claim must inevitably depend on the particular circumstances of a case. However, where, as in this case, the delay has been inordinate and inexcusable, such delay is not likely to be overlooked unless there are countervailing circumstances, such as conduct akin to acquiescence on the part of the defendant, or inability on the part of an infant plaintiff to control or terminate the delay of his or her agent.”
15. How the court will set about its task was addressed by the Supreme Court in the case of Primor v. Stokes Kennedy Crowley [1996] 2 I.R. 459, where Hamilton C.J. referred to the factors that will be taken into account in determining where lies the balance of justice in the following terms:-
“In considering this latter obligation the court is entitled to take into consideration and have regard to

(i) the implied constitutional principles of basic fairness of procedures,
(ii) whether the delay and consequent prejudice in the special facts of the case are such as to make it unfair to the defendant to allow the action to proceed and to make it just to strike out the plaintiffs action,

(iii) any delay on the part of the defendant – because litigation is a two party operation, the conduct of both parties should be looked at,

(iv) whether any delay or conduct of the defendant amounts to acquiescence on the part of the defendant in the plaintiffs delay,

(v) the fact the conduct by the defendant which induces the plaintiff to incur further expense in pursuing the action does not, in law, constitute an absolute bar preventing the defendant from obtaining a striking out order but is relevant factor to be taken into account by the judge in exercising his discretion whether or not to strike out the claim, the weight to be attached to such conduct depending upon all the circumstances of the particular case.”

In this case I am in no doubt but that there has been delay that is inordinate. That the case is only at statement of claim/motion for judgment in default of defence stage, almost eleven years after the occurrence of the alleged incident is, by any standards, inordinate. As to whether the delay is also inexcusable, I take the view that the delay has not been excused by reason of the delay in obtaining a medical report or by reason of the contact that the plaintiffs solicitor was having with the defendant in 2007.
16. However, it remains necessary to consider where the balance of justice lies. As I have pointed out, that is relevant to both legs of the application brought by the defendant.

17. At the outset I should say that I do not believe that any countervailing circumstances as contemplated by cases such as O’Domhnaill v. Merrick have been identified. I do not believe there is any basis for suggesting that the defendant has acquiesced in the delay. Such delay as has occurred is not attributable to the acts or omissions of the defendant but to the plaintiffs conduct of the litigation. I would add just one qualification, I do not believe that the defendant was justified in failing to respond to correspondence seeking delivery of a defence, and the failure to deal with this correspondence contributed to a situation where a motion for judgment issued which involves some element of costs. However, I do not see this as a matter that disentitles the plaintiff to relief, though it is an issue that might be considered in the context of an application for costs.

18. The affidavit as sworn by the solicitor for the defendant has raised the question of prejudice. However, at least one staff member who may be a possible witness is still employed by the defendant and no specific witness has been positively established to be unavailable. On the other hand, how sharp or reliable memories will be at this stage must be open to serious question. In that regard, it is of significance that we are not dealing with a dramatic and traumatic incident which might be expected to be seared on the memory of all who witnessed it. So far as the medical aspect of the case is concerned, the defendant must be disadvantaged in seeking to explore whether the link between the incident and ongoing symptoms of the plaintiff is established. It is true that the defendant might have chosen to have the plaintiff medically examined when proceedings were first intimated by the plaintiff’s solicitor but it is not surprising, and indeed I would have thought that it accorded with normal practice, that this did not take place until proceedings were served. Overall the plaintiffs delay makes it considerably more difficult for the defendant to engage in any meaningful way with the case that it faces. This may not be a case where the evocative language of some of the older cases about “justice being put to the hazard” is appropriate, but the defendant’s capacity to defend has been affected; it is a case of justice being impaired and diminished.

19. On the other side of the equation, the plaintiff on the evidence to date has had a difficult time, and her symptoms have persisted for a significant period. The findings of two MRI scans suggest a relatively significant injury. In these circumstances it would clearly be preferable if she could litigate her complaints to a conclusion. However, the fact that has not happened is not the fault of the defendant. It is the case that if the plaintiff now seeks to serve fresh proceedings, it is likely she will be met with a plea that the case is statute barred. However, since Roche v. Clayton [1998] 1 I.R. 596, it is clear that it is not a good reason to renew a summons simply to prevent the defendant availing of the statute of limitations for, as the Supreme Court pointed out, the statute of limitations must be available on a reciprocal basis to both sides in any litigation. Such a situation in my view could not be consistent with the interests of justice. In these circumstances I propose to set aside the order that was made ex parte and decline to renew the summons. In these circumstances, it is strictly speaking not necessary to decide the question of whether the proceedings ought to be dismissed by reason of delay, however, it will be apparent from what I have stated that I would be minded to dismiss the proceedings if that situation was reached.

Monahan v Byrne

[2016] IECA 10

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 20th day of January 2016
1. This is an appeal from the decision of the High Court (Hedigan J.) delivered on 27th April 2015 ([2015] IEHC 263) whereby he allowed an appeal from the Master of the High Court and set aside an order renewing the plenary summons which grounded these proceedings and which itself was dated 7th June 2012.

2. At the close of the hearing on 17th November 2015 this Court indicated that it would dismiss the appeal and give its reasons for that decision at a later date. The reasons for this decision are now set out in this judgment.

3. The issue arises in the following way: The defendants are a firm of solicitors practising in Drogheda, Co. Louth. The plaintiff is a former client of the defendants and in these proceedings he claims damages for breach of contract, breach of fiduciary duty and misrepresentation. The claim itself relates to a contract for the purchase of land on 14th June 2006. The plaintiff contends that he and another individual, Mr. Ray White, jointly borrowed some €2.2m. from Allied Irish Banks which was secured by certain mortgaged property. €1m. of this sum was then paid to the plaintiff. It is said that a further €1.08m. was then paid to the defendants on trust for the plaintiff.

4. The essence of the complaint made against the defendants is that €790,500 of these monies were paid by them to Mr. White on 30th June 2006 and a further sum of €146,250 was paid on 16th August 2006. It is said that these payments were unauthorised and amounted to a breach of duty. The plaintiff further contends that through the wrongdoing of the defendants the plaintiff was made liable jointly and severally with Mr White to AIB in the amount of €2,338,097. On the 11th of April 2012 AIB called in the debt.

5. If the plaintiff is correct, then his cause of action crystallised immediately with these wrongful payments so that the six year limitation period in both contract and tort had almost expired by the time the proceedings were actually issued on 7th June 2012. Critically, however, the summons was not actually served on the defendants during the twelve month period permitted by Ord 8, r.1 RSC. The summons would accordingly have expired unless it had been renewed on or before 6th June 2013. On the 4th June 2013 the Master of the High Court made an order ex parte on the application of the plaintiff’s solicitors extending the time for the service of the summons for six months.

6. The first defendant was served on 2nd December 2013, the day before the renewed summons was due to expire. The second defendant was served on the 6th December 2013. On 9th June 2014 the plaintiff’s solicitors provided the defendants’ solicitors with a copy of the affidavit grounding the application, this having been requested a few weeks earlier. Some six weeks later the defendants issued a motion seeking an order pursuant to Ord. 8, r.2 seeking to have the service of the summons set aside.
The reasons for the delay and the judgment of Hedigan J.
7. The reasons given for the various delays relate to both the incompleteness of the conveyancing file and a reluctance on the part of the plaintiff’s then solicitor to sue fellow professionals who were also based in Drogheda. So far as the former reason is concerned, it appears that at their request, a complete file had been furnished by the defendants to the solicitors for the plaintiff on the 10th of June 2011. It was understood at that point that the plaintiff intended to sue Mr White.

8. It appears, however, that the file (or, at least, important parts of it) went astray in the course of the transfer of that file from the plaintiff’s solicitors to a new firm of solicitors in December 2012. It is not clear, however, that the difficulties regarding the file posed a real impediment to the issue and service of the summons. It may be noted that in the course of his judgment in the High Court Hedigan J. observed that:

“….the file remained incomplete even when the renewed summons was eventually served on the first defendant on the 3rd of December 2013. This reason of incompleteness of the file is not an acceptable one. The renewed summons was served while the file remained incomplete. Service of the summons issued on the 7th of June 2012 might just as readily have been made at any time up to the 6th of June 2013.”
9. Hedigan J. thus concluded that the absence of a complete file did not, in fact, cause or contribute to the delay in serving the proceedings. While he observed that there might well have been a reluctance on the part of the plaintiff’s then solicitor to sue fellow professionals working in the locality, this could not objectively justify the delay in effecting the service. Hedigan J. concluded that the plaintiff had not provided any “good reason” within the meaning of Ord. 8, r. 1 such as would have justified the renewal of the summons and he accordingly set it aside.
The provisions of Order 8, rr. 1 and 2
10. Before considering the reasons given by Hedigan J. in his judgment to justify the setting aside of the renewal of the summons, it may be convenient to set out the provisions of Order 8, rr. 1 and 2. Rule 1 states:

“No original summons shall be in force for more than twelve months from the day of the date thereof, including the day of such date; but if any defendant therein named shall not have been served therewith, the plaintiff may apply before the expiration of twelve months to the Master for leave to renew the summons. After the expiration of twelve months, an application to extend time for leave to renew the summons shall be made to the Court. The Court or the Master, as the case may be, if satisfied that reasonable efforts have been made to serve such defendant, or for other good reason, may order that the original or concurrent summons be renewed for six months from the date of such renewal inclusive, and so from time to time during the currency of the renewed summons….”
11. Rule 2 provides:
“In any case where a summons has been renewed on an ex parte application, any defendant shall be at liberty before entering an appearance to serve notice of motion to set aside such order.”

Whether the ex parte order should be set aside
12. It is clear that any ex parte order renewing a summons can at most have a provisional status, since by definition the court will not yet have had an opportunity of hearing the other side who almost by definition will be affected by the making of such an ex parte order. The provisional status of ex parte orders is true as a matter of general law (Adam v. Minister for Justice [2001] 3 IR 53), but, in any event, constitutionally mandated principles of fair procedures require that such orders cannot be accorded any higher legal status: see, e.g., DK v. Crowley [2002] 2 I.R. 744. This point was confirmed in the specific context of Ord. 8, r.2 by Finlay Geoghegan J. in Chambers v. Kenefick [2007] 3 I.R. 526, 529 and by my own decision as a judge of the High Court in Doyle v. Gibney [2010] IEHC 10.
13. It is clear from the decision in Chambers that the court should first assess whether there was “good reason” within the meaning of Ord. 8, r.1 to order renewal of the summons. As Finlay Geoghegan J. made clear in her judgment in Chambers, the “good reason” in question is not necessarily referable to the service of the summons. If it finds the existence of such good reason, the court should then consider whether it is in the interests of justice that it should so order. In doing this the court should consider the balance of hardship for each of the parties.

14. The question as to how the court should assess whether the plaintiff had established “some other good reason” was examined by Peart J. in Moynahan v. Dairygold Cooperative Society Ltd. [2006] IEHC 318 where he stated:

“It is important to note the reference in Ord.8, r.1 is to ‘other good reason’ (my emphasis). It does not state simply ‘any reason’. The court must therefore consider whether there is a reason offered as to why the summons ought to be renewed, and whether that is a good reason. That task requires the court in the present case to form a view as to whether the reason offered is one which justifies the inaction which occurred, especially in circumstances where it is now alleged that the delay has caused prejudice to the defendant’s ability to defend, and, in effect extend the limitation period under the Statute of Limitations from three years to over six years….the court is required in my view to reach the conclusion not only as to what is the true reason why the summons was not served within the proper time, but also to conclude that that reason justifies the failure to serve. It is in that sense that the word ‘good’ must be read.”
15. Applying that test I must ask myself whether the reasons offered here for the renewal of the summons constitute a good reason. There are essentially three reasons advanced by the plaintiff for this purpose.
16. First, the file was mislaid and/or was incomplete as a result of which the new solicitor was not happy to take on the file. Second, the solicitor for the plaintiff was reluctant to sue his colleague in his own town for professional negligence. Third, there was a real risk that the plaintiff’s claim would become statute barred if the summons was not renewed beyond the 6th of June 2013. These reasons may be considered in turn.
The incomplete nature of the file
17. As Hedigan J. noted in his judgment, no reason has been advanced to explain the delay between June and December 2012. As to the delay beyond that period, all the court is told is that the file was transferred to the new set of solicitors in December 2012. In the course of transfer of the file between solicitors it has been stated that it became apparent that documentation was missing and thus the file was incomplete. The new firm of solicitors then refused to file a notice of change of solicitors until this happened.

18. It should be noted that at their request, a complete file had been furnished by the defendants to the then solicitors for the plaintiff on the 10th of June 2011. This was documentation which was provided on the basis that the plaintiff intended to sue Mr White. At some point thereafter – probably in the course of the transfer as between solicitors – key documentation contained in the file went missing. What is critical, however, is that the file remained incomplete, even when the renewed summons was eventually served on the first defendant on the 3rd of December 2013.

19. All of this suggests that, viewed objectively, the absence of a complete file was not a real impediment to the service of the proceedings. In these circumstances, this does not amount to a “good reason” within the meaning of Ord. 8, r.1.
The reluctance on the part of the former solicitor to act again local colleagues
20. There is no doubt at all but that at a human level the unwillingness of the former solicitor to issue proceedings against other solicitors practising in his home town is a most understandable one. It must nevertheless have been obvious for some time that the plaintiff’s claim was pointing increasingly in that direction. In those circumstances, viewed objectively, it was incumbent on the plaintiff’s solicitor to arrange for another solicitor to act against his local colleagues if he was himself unwilling to do so. It ought to have been obvious that considerable urgency attached to this matter, since the proceedings were actually issued within – at best – weeks of the six year limitation period expiring.

21. In view of the provisions of Ord. 8, r. 1 the plaintiff had the (not ungenerous) period of 12 months within which to serve these proceedings on the defendants as of right. Whatever difficulties may have attended to the incomplete file, it is very hard to justify the failure to serve the proceedings within that period given the urgency which attached to the matter.

22. In these circumstances, the reluctance to sue local solicitors cannot constitute a “good reason” within the meaning of Ord. 8, r. 1.
The risk that the plaintiff’s claim would now be statute-barred if the order is set aside
23. It is true that there are two Supreme Court decisions which might suggest that the fact that a plaintiff’s action might otherwise be statute-barred is itself a good reason for the purposes of Ord. 8, r.1: see Baulk v. Irish National Insurance Company Ltd [1969] I.R. 66 and McCooey v. Minister for Finance [1971] I.R. 159. But it is equally clear that these two decisions have been effectively qualified by a series of subsequent cases, even if they have not been formally overruled by the Supreme Court. As Clarke J. stated in Moloney v. Lacey Building and Civil Engineering Ltd. [2010] IEHC 8, [2010] 4 IR 417, 428:

“To the extent, therefore, that Baulk v. Irish National Insurance Co. Ltd. [1969] I.R. 66 might give rise to a possible argument to the effect that the plaintiff might otherwise be statute-barred can provide good reason on its own, it seems to me that subsequent Supreme Court authority makes it clear that that argument is not tenable.”
24. All of this has come about in a context where the courts have become increasingly conscious of their obligations derived from Article 34.1 of the Constitution to ensure that the judicial mandate to administer justice is discharged in an efficient and timely fashion.
25. The first of the two Supreme Court decisions to which Clarke J. alluded in Maloney is O’Brien v. Fahy, Supreme Court, 21 March 1997. In that case Barrington J. stressed that the fact that a claim might otherwise be statute-barred could not in itself be dispositive in a case of this sort. In that case the accident happened on 24th July, 1988, the summons was not issued until 23rd July, 1991 and the first intimation that proceedings were contemplated against the defendant was given on 5th June, 1992 approximately four years after the date of the accident. (The relevant limitation period for personal injuries at the time was three years). Barrington J. stated as follows:

“It appears to me that the lapse of such a time without knowing that claim was going to be made is something which itself implies prejudice and when the defendant and her solicitor are prepared to swear affidavits that in fact it is not a theoretical prejudice but an actual prejudice which the defendant would suffer, one must set that against the loss to the plaintiff, if as a result of a refusal to renew the summons which is out of time, her claim becomes statute barred. Unfortunately, for the plaintiff, it appears to me that the balance of justice is in the circumstances of the present case in favour of refusing to extend the time for service of the summons……”
26. The second case is Roche v. Clayton [1998] 1 I.R. 596. In that case O’Flaherty J. stated as follows ([1998] 1 I.R. 596, 600):-
“It is not a good reason in the light of O’Brien v. Fahy to renew a summons simply to prevent the defendant availing of the Statute of Limitations. The Statute of Limitations must be available on a reciprocal basis to both sides of any litigation.”
27. It is accordingly clear from this case-law that the fact that an action might otherwise be statute-barred does not in itself constitute a “good reason” within the meaning of Ord. 8, r.1 by which a summons should be renewed.
28. Recent decisions have also stressed that the renewal of a summons outside of a limitation period is to some degree at odds with an underlying principle of the Statute of Limitations itself, namely, that a defendant is entitled to assume that he will not face the prospect of litigation after the expiration of a fixed passage of time.

29. A good example of this judicial concern is supplied by the decision of Laffoy J. in O’Reilly v. Northern Telecom (Ireland) Ltd. [1998] IEHC 168, [1999] 1 IR 214. In that case the plaintiff issued proceedings against his employer claiming damages for personal injuries just before the expiration of the relevant limitation period. The summons was not served within the twelve month period prescribed by Ord. 8, r.1. The plaintiff sought to renewed the summons after a lapse of some two and a half years, but Laffoy J. set aside the renewal of the summons saying ([1999] 1 IR 214, 219):

“The plaintiff has not established any good reason for his failure to serve the summons within the one year period prescribed in Ord. 8, r. 1. His explanation that he feared he would jeopardise his position with the defendant if he instituted proceedings rings hollow. In any event, if an excuse of that nature was countenanced, the time strictures imposed by the Statute of Limitations 1957 could easily be set at naught.”
30. A similar point was made by Peart J. in Moynahan and by O’Sullivan J. in Allergan Pharmaceuticals (Ireland) Ltd. v. Noel Deane Roofing [2006] IEHC 215, [2009] 4 IR 438, 450. Similar anxieties were also expressed by Clarke J. in Moloney v. Lacey Building and Civil Engineering Ltd. [2010] IEHC 8, [2010] 4 IR 417 when he said ([2010] 4 IR 417, 428):
“It seems to me that a renewal of a summons outside the limitation period so as to further extend the time (by reference to the limitation period) within which service can be effected, amounts at least to a stretching of the principles behind the existence of a Statute of Limitations in the first place. Such considerations should, in my view, inform decisions relating to both the question of what might be taken to be a ‘good’ reason for the renewal of a summons and also in weighing the factors that might be put in the balance in considering where the balance of justice lies.”
31. It follows, therefore, that the fact that the action might otherwise be statute-barred is not in itself a good reason such as might justify the court renewing the summons for the purposes of Ord. 8, r. 1. If it did, then this might have the effect whereby, in the words of Laffoy J. in O’Reilly, the “time strictures imposed by the Statute of Limitations 1957 could easily be set at naught.”
The defendants’ delay in moving to have the renewal of the summons set aside
32. It remains to address the plaintiff’s submission that the defendants have delayed unduly in making the application to have the renewal of the summons set aside. It was contended that the defendants should not have waited four and a half months from service of the renewed summons before requesting on the 15th of April 2014 a copy of the affidavit grounding the application to renew the summons.

33. Just as Hedigan J. observed in his judgment, I agree that ideally the defendants should have moved within days of the service by the plaintiff upon the first defendant in December 2013. But I likewise agree with the conclusion of Hedigan J. that a delay of seven months before bringing the set aside application is not a sufficient delay in these circumstances such as would disentitle the defendants from bringing this application.

Conclusions

34. For all the reasons stated, it must be concluded that the plaintiff has not advanced any “good reason” within the meaning of Ord. 8, r. 1 such as would have justified a renewal of the summons and that Hedigan J. was correct in so finding. It was for these reasons that this Court dismissed the appeal of the plaintiff and affirmed the decision of the High Court setting aside the renewal of the summons.

O’Connor v Nurendale Ltd

[2010] IEHC 387

JUDGMENT of Mr. Justice Hogan delivered on the 22nd day of October, 2010

1. This is an appeal from an order of Her Honour Judge Linnane dated 20th April, 2010 whereby she refused to set aside the default judgment obtained by the plaintiff on 12th April, 2010. In his civil bill dated 4th November, 2010, the plaintiff claimed that on the 5th November, 2007, the defendant had offloaded a skip which had the effect of damaging the plinth stone supporting the cast iron railings surrounding a site at St. George’s Church, Hardwicke Place, Dublin 1, thereby causing serious damage to a wall below. The plaintiff is the owner of these premises and it is contended that there was displacement of the stone capping and partial collapse of the wall. The plaintiff now claims damages in the sum of €18,846. It is only fair to record that liability is denied in full by the defendant.

2. The defendant entered an appearance on 19th February, 2009. There then followed several exchanges involving requests for further particulars but, as no defence had been delivered, on 26th November, 2009, the Circuit Court ordered that the defendant deliver a defence within two weeks of that date. No defence was filed within the time stipulated and the plaintiff brought a further motion seeking judgment in default of defence. This culminated in a further order of the Circuit Court on 9th February, 2010, allowing the defendant yet a further two weeks to deliver its defence. That period of time also elapsed without a defence having been filed and the plaintiff was compelled to bring yet a further motion seeking judgment in default. This culminated in a default judgment which was given in favour of the plaintiff on 12th April, 2010.

3. The solicitor for the defendant has very fairly acknowledged that the third motion for judgment was duly served on her office on the 16th March, 2010. She has averred on affidavit that, by reason of human error, the matter was not attended to by her office in a diligent fashion. This had the unfortunate result that the defendant was unrepresented at the hearing on 12th April, 2010, which resulted in the default judgment against her client. A complicating factor was that the defendant’s counsel had been quite seriously ill for at least some of the relevant time. Once the existence of the default judgment came to the attention of the defendant’s solicitor, she immediately set about issuing a motion seeking to have that judgment set aside. However, as already indicated, Her Honour Judge Linnane subsequently refused to set aside the default judgment and it is in those circumstances that the present appeal comes before me.

4. With much hesitation and not a little reluctance, I have come to the view that this appeal ought to be allowed, albeit on strict terms which I will later outline in this judgment. Article 34.1 of the Constitution guarantees the plaintiff a right of access to the courts. That right would, indeed, be a hollow one if there was no effective mechanism whereby a summary judgment could not be obtained in the case of a defendant who was in default of pleading. There is, accordingly, to some extent at least, a constitutional duty cast upon the courts as guardians of the judicial power of the State to ensure that litigation is conducted in a timely and efficient fashion so as to ensure that this right of access to the courts is, to adapt the words of O’Byrne J. in Buckley v. Attorney General [1950] I.R. 67, 81, given “life and reality”. There are, in any event, parallel duties of timeliness and efficiency cast upon the State so far as the conduct of litigation is concerned by virtue of Article 6 of the European Convention of Human Rights: see, e.g., Gilroy v. Flynn [2004] IESC 98, [2005] 1 ILRM 29 and McFarlane v. Ireland [2010] ECHR 1272. None of this, however, requires that the judicial discretion to strike out for want of defence must be exercised in an unbending, mechanical or unforgiving fashion. Quite the contrary: the courts must, to some extent, accommodate ordinary human frailties, failings and foibles, at least where it is possible to do so without material injustice to the other party.

5. It is not in dispute but that in the present case, the solicitor for the defendant genuinely made an error which she has candidly – and very commendably – admitted in her affidavit. It would be likewise unfair not to give some weight to the fact that counsel for the defendant was at the time suffering from a serious illness from which he has happily now recovered. All these factors suggest that the discretion permitting the defendant to defend the case on the merits should be exercised in its favour, as but for this error, one may reasonably (even if, in the circumstances, somewhat charitably) assume that a defence would have been filed in advance of the return date for the third motion.

6. Of course, I am not unmindful of the fact that these unsatisfactory delays must have been maddeningly frustrating for the plaintiff. Yet, unfortunate as these delays have been, I feel that I could not prevent the defendant from defending the case on the merits unless I was satisfied that the plaintiff s case was either (a) unanswerable (or, at all events, very nearly so) or (b) that he would have suffered irremediable prejudice as a result of the defendant’s delays.

7. As to (a), I am not in a position to form any judgment on the merits and no evidence is before me as would enable me to form the view on a summary basis that the plaintiff’s claim was unanswerable or nearly so. Indeed, since no evidence was tendered on this point at all, I must abstain from expressing any view on the merits of this dispute. In the course of oral argument Ms. Carroll, counsel for the plaintiff, urged me to have regard to the fact that the defendant did not avail of an opportunity to inspect the site immediately after the incident, but even accepting this to be the case, I cannot see that this has any direct bearing on the strength or otherwise of the plaintiff’s case.

8. As to (b), the plaintiff’s position is already protected inasmuch as Her Honour Judge Linnane directed that the defendant lodge the sum of €18,066.25 in court pending the outcome of this appeal as a condition of obtaining a stay on execution of the summary judgment. It will be a condition of the leave to defend which I propose to grant to the defendant that this sum (which approximates to the full value of the sum claimed by the plaintiff) remain lodged in court pending the determination of these proceedings. I further direct that the defendant be allowed one week from today’s date to deliver a defence. I might add that I cannot presently envisage circumstances in which that time period would be further extended.

9. Furthermore, subject to hearing counsel on the point, I propose also to award the costs of this appeal to the plaintiff. In this way, I trust that the mutual rights and interest of the plaintiff and defendant to this litigation can be fairly balanced and safeguarded. For good measure, I would further direct that once pleadings are closed – which I trust will be in very early course – the plaintiff should have liberty to apply to the Circuit Court for the earliest available trial date convenient to the parties.

 

Bank of Scotland (Ireland) Ltd v Mannion

[2010] IEHC 419

Judgment of Miss Justice Laffoy delivered on the 18th day of November, 2010.

1. The proceedings
1.1 In these proceedings, which were initiated by special summons which issued on 9th July, 2008, the plaintiff, as mortgagee, sought an order for possession of certain properties set out in the schedule thereto, which included premises at Doughiska, Merlin Park, Galway, being all the property comprised in Folio 32638F of the Register of Freeholders County Galway. On 19th August, 2008 an appearance was entered on behalf of the defendants by Bruen Glynn & Co. (the defendants’ former solicitors), who remained on record for the defendants until January 2010 when notice of change of solicitor was filed and the defendants’ current solicitors came on record. No affidavit responding to the plaintiff’s claim was filed on behalf of the defendants. However, there was correspondence between the defendants’ former solicitors and the plaintiff’s solicitors, as a result of which a supplemental affidavit sworn by Patrick Walzer on 16th April, 2009 clarified the properties in respect of which the plaintiff was seeking an order for possession with a view to eliminating duplication in the schedule to the special summons, which arose from the fact that some of the properties, including the lands registered on Folio 32638F, County Galway, were comprised in separate mortgages executed by the defendants in 2002 and 2005 in favour of the plaintiff.

1.2 By order of this Court made on 29th April, 2009 by MacMenamin J. it was ordered that the defendants forthwith upon service of the order upon them deliver up to the plaintiff possession of the properties described in the schedule to the special summons, including the lands registered on Folio 32638F, County Galway. The order recited that it was made on the application of counsel for the plaintiff by consent of the parties.

2. The application
2.1 On this application the defendants seek an order setting aside the portion of the order of 29th April, 2009 insofar as it relates to the defendants’ family home at Doughiska, being a portion of the property comprised in Folio 32638F, County Galway (the disputed premises). The basis on which the defendants seek to have the disputed premises excluded from the order is that they contend that they did not consent to an order for possession in relation to those premises. The chain of events on which the defendants rely as in support of that proposition is as follows:

(a) The defendants appointed Mr. Finbarr Jones who has described himself as “mediator” in the affidavit sworn by him on this application, a family friend, as a mediator in discussions with the plaintiff “arising out of their defaulted mortgages … and the sale of the properties which were mortgaged”. In that capacity, Mr. Jones attended a meeting with the defendants at the plaintiff’s offices in Dublin on 2nd April, 2009. There is a factual dispute between Mr. Jones and Jean Desmond, a manager with the plaintiff, as to whether there was a discussion at that meeting about excluding the family home from the disposal of the assets comprised in the mortgages held by the plaintiff from the defendants. Ms. Desmond has averred that she has no recollection of such a request by the defendants.
(b) In any event, by letter dated 22nd April 2009 directly to the plaintiff’s office in Galway, the defendants’ former solicitors referred to a letter dated 17th April, 2007 from the plaintiff’s solicitors “wherein it is stated that the property at Doughiska be split to exclude the family home”. The defendants’ former solicitors suggested that an amendment of the summons could be applied for when the matter would be before the Court on the following Monday “whereby the family home at Doughiska could be excluded from the list of properties on the Summons”.

(c) On 23rd April, 2009 the defendants’ former solicitors wrote to the plaintiff’s solicitors stating that they still awaited hearing from the plaintiff “in relation to the family home at Doughiska as to whether same is to be excluded from the Order for Possession being sought next Monday”. They referred to the letter of 17th April, 2007. They also enclosed their proposed “Consent to the Order”. The consent was in letter form and was addressed to the plaintiff’s solicitors. In it, the defendants’ former solicitors consented to an order for possession of all the property set out in the schedule to the special summons as amended by Mr. Walzer’s affidavit sworn on 16th April, 2009 “EXCEPTING AND EXCLUDING therefrom the family home situate at Doughiska … being part of Folio 32638F, County Galway as outlined on the map attached hereto”.

(d) The response of the plaintiff’s solicitors in their letter of 24th April, 2009 was that under no circumstances would the plaintiff agree to the exclusion of any part of Folio 32638F, County Galway for the orders for possession being sought on the following Monday. It was stated that the consent furnished was not acceptable on the basis of the exclusion. The defendants’ former solicitors were invited to furnish a consent to the making of all of the orders. It was stated that the plaintiff would be proceeding to seek orders for possession on all of the properties on the following Monday.

(e) By letter dated 24th April, 2009 to the plaintiff’s solicitors the defendants’ former solicitors, in that capacity, consented to an order for possession of all of the properties set out in the schedule to the special summons as amended by Mr. Walzer’s affidavit of 16th April, 2009. It was on foot of that letter that counsel for the plaintiff sought the consent order which was made on 29th April, 2009.

2.2 The position of the defendants is that the defendants’ former solicitors did not have authority from them to consent to an order for possession over the disputed premises. All the Court knows of the defendants’ former solicitors’ version of events is what is stated in two letters from the defendants’ former solicitors to the defendants, which have been exhibited in the affidavit of the second defendant sworn on 18th April, 2010 grounding this application. The earlier letter was dated 4th November, 2009. In that letter, the member of the firm dealing with the matter stated that when she received the letter of 24th April, 2009 from the plaintiff’s solicitors stating that the plaintiff would not agree to the exclusion of the disputed premises, she got in touch with Mr. Jones and it was agreed that she should send the plaintiff’s solicitors the full consent and she did so. She also stated that she understood from talking to Mr. Jones that he had an agreement with the plaintiff that it would not enforce the order immediately and that there would be a certain amount of time given to the defendants to try and sell the properties. As counsel for the defendants pointed out, the later letter, which was dated 7th January, 2010, is inconsistent with the letter of 4th November, 2009. In the later letter, having referred to the response of the plaintiff’s solicitors in their letter dated 24th April, 2009, it is stated by the writer that she then got in touch with Mr. Jones and with the defendants and after consultation with the defendants and Mr. Jones she was instructed to send them, meaning the plaintiff’s solicitors, “the full consent” and she did so on 24th April, 2009 and sent a copy to Ms. Desmond. The inconsistency is that there was no reference in the earlier letter to contact with the defendants in relation to the attitude of the plaintiff as disclosed in its solicitors’ letter of 24th April, 2009.
2.3 In his affidavit Mr. Jones has averred that he “never put forward any form of consent for possession of” the disputed property, contrary to what is indicated in the letters of 4th November, 2009 and 7th January, 2010. The second defendant has averred in her grounding affidavit on this application that the letter of consent dated 24th April, 2009 was given “despite [the defendants’] wishes”.

2.4 There is a conflict on the evidence put before the Court by the defendants as to whether the defendants’ former solicitors had authority to consent to an order for possession in relation to the disputed premises. It is a conflict which, as counsel for the defendants acknowledged, the Court cannot resolve on this application. From the perspective of the plaintiff, the defendants’ former solicitors were their agents, being the solicitors on record for them in these proceedings, and in that capacity they gave a clear and unequivocal letter of consent to an order for possession being made in relation to all of the property set out in the schedule to the special summons, including the disputed premises. In my view, the plaintiff is entitled to maintain that position.

2.5 The objective of the defendants in seeking to have the disputed premises excluded from the order of 29th April, 2010 is so that they will have an opportunity to defend the plaintiff’s claim for possession in relation to that property on the ground that the plaintiff does not have security over it. Counsel for the defendants expressed confidence in being able to demonstrate that the plaintiff does not have security over the disputed premises. The plaintiff, on the other hand, contends that it does have security. The resolution of that contest does not arise on this application.

3. The law
3.1 The law on the jurisdiction of the courts to amend or set aside judgments and orders is outlined in Delany and McGrath on Civil Procedure in the Superior Courts (2nd Ed.) at paragraphs 22-17 to 22-38, where a number of circumstances in which the jurisdiction has been recognised are identified. Understandably, the Court’s jurisdiction under Order 28, rule 11 of the Rules of the Superior Courts 1986, the so called “slip rule”, is not invoked by the defendants. It is the Court’s inherent jurisdiction to amend or vary an order which the defendants have invoked and they rely, in particular, on the decision of the Supreme Court in Belville Holdings Ltd. v. Revenue Commissioners [1994] 1 ILRM 29.

3.2 In delivering judgment in the Belville Holdings Ltd. case, Finlay C.J. undoubtedly recognised that there exists a fundamental jurisdiction in a court to amend an order which it has previously made, even though the order is in the form of a final order and has been perfected. While the Supreme Court was unable to identify any Irish authority in point, Finlay C.J. stated that the position and principles appeared to be accurately stated in the judgment of Romer J. in Ainsworth v. Wilding [1896] 1 Ch. 673, quoting the following passage at p. 677:

“So far as I am aware, the only cases in which the court can interfere after the passing and entering of the judgment are these:

(1) Where there has been an accidental slip in the judgment as drawn up, in which case the court has power to rectify it under O.28, r. 11;
(2) When the court itself finds that the judgment as drawn up does not correctly state what the court actually decided and intended.”

Finlay C.J. also quoted the following passages from the judgments in In re Swire 30 Ch. D 239, which were quoted by Romer J. at p. 678:
“Cotton L.J. says: ‘It is only in special circumstances that the court will interfere with an order which has been passed and entered, except in cases of a mere slip or verbal inaccuracy, yet in my opinion the court has jurisdiction over its own records, and if it finds that the order as passed and entered contains an adjudication upon that which the court in fact has never adjudicated upon, then, in my opinion it has jurisdiction, which it will in a proper case exercise, to correct its record, that it may be in accordance with the order really pronounced’.
Lindley L.J. says: ‘If it is once made out that the order, whether passed and entered or not, does not express the order actually made, the Court has ample jurisdiction to set that right, whether it arises from a clerical slip or not’.

And Bowen L.J. says: ‘An order, as it seems to me, even when passed and entered, may be amended by the court so as to carry out the intention and express the meaning of the court at the time when the order was made, provided the amendment be made without injustice or on terms which preclude injustice’.”

Finlay C.J. went on to state:
“I am satisfied that these expressions of opinion validly represent what the true common law principle is concerning this question. I would emphasise, however, that it is only in special or unusual circumstances that an amendment of an order passed and perfected, where the order is of a final nature, should be made by the court. The finality of proceedings both at the level of trial and, possibly more particularly, at the level of ultimate appeal is of fundamental importance to the certainty of the administration of law and should not be lightly breached.”
3.3 While the context of the decision in the Belville Holdings Ltd. case was very different to the context here, it does illustrate the application of the principle and its limited nature. It concerned a case stated from an Appeal Commissioner to the High Court under the Income Tax Act 1967. In the High Court, on the question of law raised in the case stated – whether the Appeal Commissioner was correct in holding that notional fees attributable to services afforded by the appellant company to its subsidiaries should be taken into account in computing the tax profits or losses of the parent company for the tax period in question – it was held that, while it was correct that notional fees should be taken into account, the actual notional fees fixed by the Appeal Commissioner were not justified. However, the question posed in the case stated was answered in the negative. The issue which was before the Supreme Court was whether an order, which was made by the High Court three years after the initial order, directing that the initial order should be amended by the addition of a direction that the appeal should be re-entered before the Appeal Commissioner so that it could be determined having regard to the previous finding of the Court, was made without jurisdiction, as the appellant company contended. The Supreme Court held that the later order did not come within the common law principle which Finlay C.J. had outlined and set aside that order as having been made in error and deleted the variation which had been made to the initial order.
3.4 Delany and McGrath (at paragraph 22-29 et seq.) address another category of special or unusual circumstances in which a court will set aside a final order to protect constitutional rights and they quote the following passage from the judgment of Denham J. (at p. 544) in In re Greendale Developments Ltd. (No. 3) [2000] 2 I.R. 514 as a useful summary of the circumstances in which this jurisdiction may be exercised:

“The Supreme Court has a jurisdiction to protect constitutional rights and justice. This jurisdiction extends to an inherent duty to protect constitutional justice even in a case where there has been what appears to be a final judgment and order. A very heavy onus rests on a person seeking to have such jurisdiction exercised. It would only be in most exceptional circumstances that the Supreme Court would consider whether a final judgment or order should be rescinded or varied. Such a jurisdiction is dictated by the necessity of justice. A case will only be reopened where, through no fault of the party, he or she has been subject to a breach of constitutional rights.”
3.5 In L.P. v. M. P. (Appeal) [2002] 1 IR 219, Murray J., as he then was, explored the jurisdiction recognised in the Greendale Developments Ltd. case and addressed the position of a final order of the High Court in the following passage (at p. 231):
“While the judgments of this court in In re Greendale Developments Ltd. (No. 3) … specifically recognised, in the light of Article 34.4.6º, the inherent jurisdiction of this court to afford a remedy in respect of its own orders to which the exceptional circumstances referred to apply, I think it must follow that there is an inherent jurisdiction in the High Court to provide a similar remedy at first instance in the same circumstances in respect of a final and unappealable order of the High Court. Of course these considerations do not apply to decisions of the High Court which are subject to appeal in the ordinary way. There, appeal is the remedy ….”
3.6 Finally, Delany and McGrath (at paragraph 22-36 et seq.) recognise another category of circumstances in which a final order may be set aside by a court, that is to say, when it has been obtained by fraud. As Murphy J. stated in Tassan Din v. Banco Ambrosiano S.P.A. [1991] I.R. 569 at p. 580, in a passage which was referred to by Murray J. in L.P. v. M. P. (at p. 228):
“The acceptance … that a decision of the Supreme Court can be set aside for fraud … does not truly represent an exception to this constitutional provision. An order obtained by fraud is a mere nullity.”
The constitutional provision in question is Article 34.4.6º of the Constitution, which provides the decision of the Supreme Court shall in all cases be final and conclusive. As to what is meant by fraud in this context, Murphy J. referred to the speech of Lord Wilberforce in The Ampthill Peerage [1977] A.C. 547 where it is stated (at p. 571) that “[t]here must be conscious and deliberate dishonesty and the declaration must be obtained by it”.

4. Application of the law to the facts
4.1 It is important to reiterate that even on the defendants’ own evidence there is a conflict as to whether the defendants’ former solicitors had authority to consent to an order for possession which included the disputed premises. It was suggested by counsel for the defendants that the Court should conduct an inquiry as to whether there was authority to give the consent embodied in the letter of 24th April, 2009 to encompass the disputed premises and that the process should accommodate the plaintiff in seeking discovery against the defendants and that the solicitor who wrote the letter of 24th April, 2009 should be called as a witness and the plaintiff should be afforded an opportunity to cross-examine. I am satisfied that the Court has no jurisdiction to embark on such a process.

4.2 As regards the application of the common law principle identified and applied in the Belville Holdings Ltd. case, it is not the case here that the order of 29th April, 2009 does not correctly state what the Court actually decided and intended. The contrary is the case. The order of the Court reflects the consent as to the making of the order which was furnished to the plaintiff’s solicitors by the defendants’ former solicitors.

4.3 This case is not within the category of most exceptional circumstances in which a court will set aside or vary its final judgment in order to protect constitutional rights and justice and to ensure that a breach of constitutional rights is not perpetrated. In this case, the High Court made a consent order at the request of the plaintiff, which was acting, as it was entitled to do, on the letter of consent from the defendants’ former solicitors, who were on record for the defendants in the proceedings. This is not a case in which the defendants, through no fault of theirs, have been subject to a breach of constitutional rights. On the contrary, if it is the case that the defendants’ former solicitors did not have authority to consent to an order for possession which encompassed the disputed premises, and at the risk of unnecessary repetition it must be pointed out that there is a conflict of evidence on this point, in the inter partes context with which the Court was concerned on 29th April, 2010, the fault of the agent of the defendants, the former solicitors on record for them, must be attributed to the defendants, as counsel for the plaintiff submitted. Accordingly, the jurisdiction which the Supreme Court recognised in In re Greendale Developments (No. 3) is not applicable in this case.

4.4 In requesting the Court to make the consent order, which included the disputed premises, counsel for the plaintiff acted on the letter of 24th April, 2009 from the solicitors on record for the defendants, that is to say, the defendants’ former solicitors. It is beyond doubt that this is not a case in which there was a conscious and deliberate dishonesty in obtaining the Court order. The conduct of the plaintiff is unimpeachable, even if it is the case that the defendants’ former solicitors did not have authority to consent to an order for possession in relation to the disputed premises.

4.5 In summary, the Court has no jurisdiction whatsoever to vary the order of 29th April, 2009 and this application is wholly misconceived. It would be inappropriate to address and I express no opinion on the submission made by counsel for the defendants that, were they to bring a separate action against the plaintiff to set aside the agreement underlying the order of 29th April, 2010, they would be met with a plea of res judicata, which, as was made clear by its counsel, the plaintiff would seek to rely on. That scenario is entirely hypothetical.

5. Order
5.1 There will be an order dismissing the plaintiff’s application.

Kelly v UCD

[2010] IEHC 48

JUDGMENT of Mr. Justice William M. McKechnie delivered on the 26th day of February, 2010:
1. The within decision is given in response to a motion brought by the plaintiff herein, namely Mr. Patrick Kelly, on 22nd February 2010 seeking:

“An order amending the order perfected on 8th December 2009 ‘so as to carry out the intention and express the meaning of the Court at the time when the order was made…’.”

In the supporting affidavit Mr. Kelly contends that the Order made and perfected on 8th December 2009, does not properly reflect this Court’s ruling or its intention of that date. In support of what he asserts was the Court’s intention on that date he exhibits the transcript of the appearance before the Court where the Order was discussed, on 8th December 2009.
2. For the purposes of clarity the Order, dated the 8th December 2009, should be set out. The Order states, inter alia:

“The Court doth Order in mandatory form that the Plaintiff do forthwith remove or have removed from any website any link reference or assertion of availability relating to or touching upon any documentation or communication covered or affected by the Order of this Honourable Court dated 26th November 2009 in the within proceedings whether such website be controlled by the Plaintiff or otherwise and in particular inter alia the links and assertions of availability of such documents contained on:
i) www.scribd.com
ii) www.docstoc.com

iii) www.trinitycollegevisitors.0catch.com

Including any sub-domains therein.
AND IT IS FURTHER ORDERED that the said Plaintiff his servants and agents and all persons having notice of the making of this Order forthwith be restrained and prohibited from further publishing any link reference or assertion of availability relating to or touching upon any document or communication covered or affected by the aforesaid Order on any website whether controlled by the Plaintiff or otherwise or in any form whatsoever.”

The Order of 26th November 2009 (perfected on 27th November 2009), referred to in the above-recited Order related to the removal from the internet by Mr. Kelly of certain specified and other allegations contained in an affidavit of 11th November 2009 and legal submissions of 12th November 2009 which had as their object or effect the scandalising or undermining of the reputation or authority of the Court.
3. Following the making of the Order of the 26th November 2009, the defendant returned to Court on 8th December 2009 to bring to the Court’s attention matters which it felt were in contravention of that Order. In particular the defendant noted that on Mr. Kelly’s website it was explicitly stated that the materials directed to be removed were still available on other websites on the internet. Mr. Kelly, on his site informed all who accessed it that:

“The above documents are available from other sites on the internet. Patrick Kelly is not responsible for the publication or circulation after the 26th November, 2009, of those documents on the internet.”

Mr. Kelly’s response was that it was inevitable that in the time between first putting the documents on the internet and the Order for the removal of their content they may have been distributed by others unknown to him, and over whom he had no control; hence the hearing and resulting Order of 8th December 2009.
4. Mr. Kelly complains that this Order does not represent the ruling of the Court, as evidenced by the transcript of the 8th December 2009, there otherwise being no written record of it, apart from the Order. He takes particular issue with the phrase “whether controlled by the Plaintiff or not”. He claims that he would be unable to remove anything from websites which he does not control.

5. I concur with the authorities Mr. Kelly has placed before me in relation to the Court’s jurisdiction to alter or amend its own Orders, and agree fully with their contents. It is clear that the Court has jurisdiction to alter or amend an Order once it has been perfected:

i) Where there has been an accidental slip in the order as drawn up (the slip rule);
ii) When the Court itself finds that the order does not correctly state what the Court actually decided and intended.

See the judgment of Finlay C.J. in Belville Holdings Ltd. v. Revenue Commissioners [1994] ILRM 29, quoted with approval by McGuiness J. in G McG v. D W (No. 2) [2000] 1 ILRM 121. Finlay C.J. quoted from the decision of Romer J. in Ainsworth v. Wilding [1896] 1 Ch. 673, who firstly commented on the decision of the Court of Appeal in In re Swire (1885) 30 Ch. D 239 (CA):

“Cotton LJ says ‘it is only in special circumstances that the Court will interfere with an Order which has been passed and entered except in cases of a mere slip or verbal inaccuracy, yet in my opinion the Court has jurisdiction over its own records, and if it finds that the Order as passed and entered contains an adjudication upon that which the Court in fact has never adjudicated upon, then, in my opinion, it has jurisdiction, which it will in a proper case exercise, to correct its record, that it may be in accordance with the Order really pronounced.
Lindey LJ says ‘if it is once made out that the Order, whether passed and entered or not, does not express the Order actually made, the Court has ample jurisdiction to set that right, whether it arises from a clerical slip or not.’

And Bohan LJ says ‘an Order as it seems to me, even when passed and entered, may be amended by the Court so as to carry out the intention and express meaning of the Court at the time when the Order was made, provided the amendment can be made without injustice or in terms which preclude injustice.’

I am satisfied that these expressions of opinion validly represent what the true common law principle is concerning this question.”

I would fully agree with the above statement of the Court’s jurisdiction. The Court may alter or amend an Order where it is required under the slip rule or, in exceptional circumstances, where it does not accurately represent the judgment and intention of the Court.
6. Before continuing I would firstly state that there is a rationale behind the inclusion of the impugned phrase in the Order of the 8th December 2009. The Plaintiff herein has in the past sought to rely on the fact that he does not control a website, so as to insulate himself from consequences which would otherwise flow if he did. Despite the undoubted fact that the relevant materials contained on such sites were provided by him, nevertheless he claims that once he has distributed such information, he is at all times thereafter immune from judicial scrutiny because he cannot remove the material since he does not “control” the websites. For that reason it was necessary to include those words within the Order so that the Plaintiff could not rely on the fact that he did not “control” the website to circumvent any Order this Court might make in relation to non-publication. It was also clear to the Court that Mr. Kelly was informing people through the affected websites that although material had been removed it was “available from other sites on the internet”. Such redirection, even to sites not controlled by the plaintiff, was therefore well within the Court’s comprehension.

7. Nonetheless it is clear that one of the Plaintiff’s concerns relates to a situation where a website of which he has no knowledge publishes materials covered by the Order. I must say that in this regard his concerns are not merited. When looking at the law of contempt for breach of an order, it is clear that, in general, where it is alleged that a party has breached an order, they will only be held liable for that breach where:

“the disobedience is more than casual or accidental and unintentional.” (Heatons Transport (St. Helens) Limited v. Transport and General Workers Union [1973] 1 AC 15, Roskill L.J.)

Thus although a party may unintentionally breach an Order where they carry out an act which is within the four walls of an Order, where that breach is “casual, accidental or unintentional”, it will not be found to be a breach of the Order. This is consistent with the Court’s interpretation of the word “wilful” in Stancomb v. Trowbridge UDC [1910] 2 Ch. 190.
8. Furthermore, if a breach of a Court order is alleged, the breach must be proved beyond reasonable doubt. As stated by the Court in Competition Authority v. Licensed Vintners Association & Ors. [2009] IEHC 439:

“The overwhelming preponderance of case law is to this effect: Re Bramblevale Ltd. is a clear-cut example espousing the higher standard: National Irish Bank Ltd. is a clear-cut example of the application of this standard in practice; Keane J, as he then was, despite very strong circumstantial evidence of a breach, refused to attach as the required matters had not been established beyond a reasonable doubt. The only contrary view of note is Millett J’s decision in Chelsea Man Plc., where the standard of “degree and impression” is suggested. If that view cannot be explained by reference to its own facts, and if the citation of Bramblevale and Dean to the court would have made no difference, then respectfully I would have to prefer the alternative view. I believe that the criticism offered of that decision by Arlidge, Eady & Smith is sound and accords with established practice. Moreover, I have to say that even if this area had not been touched by authority, I would have come to the same conclusion on first principles.”

9. In those circumstances it may be implied that if a website existed of which the Plaintiff had no knowledge, be it actual, constructive or implied, which breached the terms of the Order, he could not be held in contempt because of its mere existence. In this respect I am therefore entirely confident that the Order does not breach Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms, as alleged by the Plaintiff or at all.

10. As with all statutory interpretation, an Order of the Court should be interpreted, so far as is possible, in a way which does not breach the Constitution. Obviously if the Order cannot be applied in a constitutional manner it could not possibly stand. However, I am quite satisfied as to the constitutional propriety of the Order in question. The main aim of the Order is to prevent Mr. Kelly from publishing the materials referred to, or to have published through others, such materials. In that respect the phrase “whether controlled by the Plaintiff or not” was deliberately placed in the Order as previously stated. It may be taken that if the Plaintiff had no knowledge, either actual, constructive or implied, of the impugned action he would not breach the order; this is implicit in all Orders of the Court, as such would clearly be inequitable and unjust. However, were he to pass materials on to another, who in turn placed them on a website which the Plaintiff had no control over, or should he find the material on another’s site and inform people of such on his websites, he should not be protected merely by virtue of the fact that he does not control it. Should a situation arise, where material covered by the Order became available, through whatever means, on another’s website and this came to the Plaintiff’s attention, it would be prudent for him to bring the Order of 8th December 2009 to the attention of such persons publishing the material, so that they might themselves remove such material. Should they not do so they will breach the terms of the Order.

11. I would also note that there is a practical distinction to be made between a judgment or ruling and an order. A judgment or ruling makes findings of facts in a certain legal context and comes to a conclusion thereon. The order is designed to give practical effect in the implementing process of such conclusions. It would be unusual, although not unknown, for a judgment to explicitly state the precise way in which the directions and intentions of the Court should be recorded for this purpose: such is a matter for the order. In this respect the Order of 8th December 2009 was drafted in accordance with standard practice.

12. In his grounding affidavit, Mr. Kelly mentions, in abbreviated form, certain passages from the transcript of the 8th December 2009. The following statement from the Court, however, should also be noted:

“I propose to make an order in mandatory form directing and compelling Mr. Kelly forthwith to take all steps to remove or have removed from any website the information which I will specify contained in page 12, or any like information indicating links to the above matter. I will also make an order permanently restraining and prohibiting him from inserting on the websites that I have mentioned that information or any like or similar information, and I will further consider the matter and revert to the parties.”

The Court, following a question from Mr. Kelly clarified for him that on that occasion the Order was:

“directed towards removing any reference to the availability of the documents which you have referred to on other sites.”

13. It is therefore clear that the aim of judgment was to have removed from any website the materials covered by the Order, and any references thereto. The exact terms of the Order were therefore put in place to cover the eventualities which the judgment foresaw. It is not overarching, and it fundamentally reflects both what the Court said and what it intended.

14. I am therefore satisfied that the Order made and perfected on 8th December 2009 accurately reflects the Court’s intention and its ruling, and that it does not breach either the Constitution or any provision of the European Convention on Human Rights. Again I would add, for the benefit of Mr. Kelly, that should materials appear on websites which he has absolutely no connection with, and which he has absolutely no knowledge of, he will not be held liable for the unconnected actions of others. Nonetheless should such sites come to his attention it would be prudent for him to notify those persons of the existence of the Order and request them to remove such materials.

15. In those circumstances, the Court can see no reason to alter or amend the Order perfected on 8th December 2009 to reflect, or even better reflect, the Court’s intention and ruling, and Mr. Kelly’s application is hereby refused and the Order stands as is.

Butler v Regan

, High Court, July 1, 2004
JUDGMENT of Mr. Justice Henry J. Abbott delivered the 1st day of July 2004
The plaintiff who was then an insurance inspector by occupation was seriously injured in a car crash on 29th February, 1980. The defendant was at all material times a Consultant Orthopaedic Surgeon attached to Jervis Street Hospital, Dublin and treated the orthopaedic aspects of the plaintiff’s injuries received in the car crash in Jervis Street Hospital. The plaintiff initiated proceedings claiming compensation for the personal injuries loss and damage suffered by him by reason of the car crash and for the purpose of these proceedings the defendant wrote and furnished to the plaintiff three medical reports dated 14th May, 1980, 24th November, 1980, and 11th February, 1982.
On 15th February, 1984, the plaintiff compromised his action in respect of the car crash for the sum of £71,843.10 in respect of general damages and £13,156.90 in respect of special damage together with costs of the proceedings. In these proceedings the plaintiff claims damages for personal injuries loss and damage suffered by the plaintiff by reason of the negligence and breach of duty on the part of the defendant in failing to properly, adequately or fully examine diagnose, treat and advise the plaintiff or report to the plaintiff’s legal representatives upon all of the injuries and their likely sequalae as a result whereof the compromise of the action of the plaintiff in relation to his car crash was under value and as a result whereof the plaintiff also suffered personal injuries in the general nature of depression. The defence is a full denial as appropriate with a plea of contributory negligence together with a plea that the plaintiff’s action is barred by the operation of the Statute of Limitations and without prejudice to the defence that it is barred by reason of the prolonged, inordinate and inexcusable delay on the part of the plaintiff.
ISSUE OF DELAY
Some of the more important dates in relation to delay in this case are as follows:-
16th February 1987 Plenary summons issued
12th February 1988 Order for renewal of plenary summons
17th June 1988 Plenary summons served
9th September 1991 Plaintiff’s notice of intention to proceed
8th October 1992 Plaintiff’s notice of intention to proceed
25th January 1996 Plaintiff’ notice of intention to proceed
21st November 1996 Statement of claim delivered
28th July 1997 Amended statement of claim
5th November 1999 Defendant’s notice of intention to proceed
4th January 2000 Plaintiff’s notice of intention to proceed
When this case came into the personal injuries list it was delayed by unavailability of witnesses and the foot and mouth crisis and by notice of motion dated 10th December, 2001, the defendant sought an order from the judge in charge of the list directing the trial of a preliminary issue between the plaintiff and the defendant as to whether the plaintiff has been guilty or had been guilty of such an inordinate and excusable delay in the prosecution of his claim, as to cause prejudice to the defendant and thereby deprive the defendant of fully and properly defending the claim made against him.
This action came on for hearing before me on 16th April, 2002, and whereas there was a difference of opinion as between counsel in relation as to whether the judge in charge of the list had adjourned the hearing of the notice of motion in relation to an application for a direction as to a preliminary issue to be heard prior to the hearing action or whether the issue was adjourned to the hearing of the action simplicter as part of the defence in the case. I decided to hear a preliminary application by counsel for the defendant to have the notice of motion dealt with prior to the hearing of the action because, by that stage, it was clear that the defence were alleging that the defendant was unable to give evidence, although the correspondence and affidavits leading up to that date had not been so explicit about this fact.
Having heard evidence from the plaintiff in relation to the delay issue and submissions on behalf of both the plaintiff and the defendant I made a ruling that I would not deal with the issue of delay and prejudice as a preliminary issue but would deal with the issue of delay and prejudice in the hearing as a matter of defence.
It is appropriate that I would set out the reasons I gave for such ruling which are as follows:-
“I can make a decision in relation to the application by Mr. Keane to have the issue of delay dealt with as a preliminary issue made prior to the substantive hearing as between the plaintiff and the defendant …
The point of departure in relation to the issue which I have to decide at the present moment is the order of Johnson J. in respect of a motion by the defendant to have the preliminary issue heard some time ago. I am informed by Mr. Keane Senior Counsel that the order of Johnson J. was that the issue as to whether there should be a preliminary issue should be decided by the trial judge. Mr. McGrath Senior Counsel would have a different recollection of the order of Johnson J., to the effect that the decision was the preliminary issue and the defence of delay were to be part of the defence of the action. To my mind it does not matter which interpretation is put on the order, and I would not require any evidence in relation to what happened in court that day (although there does not seem to be any formal order before the court), for the reason that even if Mr. McGrath’s interpretation is accepted, circumstances have now changed, and I hold that the order was an interlocutory order, which could be reviewed by me by reason of changed circumstances, which arise from the fact that Mr. Regan, the defendant, now appears not to be in a position to give evidence.
The matter which assists me greatly in resolving the issue is the correspondence passing between the parties, from the plaintiff’s solicitors dated 3rd April, 2002, to the defendant’s solicitor and the defendant’s letter of 4th April, 2001, in reply to that. The letters have been opened to the court already and it is sufficient for me to refer to and quote the part of the reply of the 4th April, 2001, which impresses me in relation to the defendant’s attitude at that time. I quote from paragraph 2:-
‘If we are unsuccessful in our application, the subject matter of the preliminary issue, the evidence given by Mr. Regan at the hearing of the preliminary issue would all have to be duplicated in July. If the same judge were to hear the case in its entirety then such a duplication will not occur.’
This indicates to me that the defendants did not have any great difficulty with lack of duplication arising from the delay issue being heard at the one time with the trial of the action.
The situation that the defendants should therefore be considered as from 4th April, 2001, rather than from 1988 or even before, and without having regard to the long delay of nine years which by any account was quite a long delay. I am at this stage, without reaching a concluded view, somewhat impressed by the quotations from Halsbury Volume 16 opened to me by Mr. McGrath indicating that a defendant does have to shoulder some of the responsibility. Against that is to be taken into account the decision of Finlay C.J. on 4th February, 1993, in Celtic Ceramics Limited and Others v. IDA and Kenneth Hunt (ex tempore, Supreme Court, 4th February, 1993) in which, at p. 7 of the report he indicated clearly that it was for the plaintiff who must bring forward this litigation and there were available to him a number of different alternative methods of so doing. I think these are two contrary stands of legal authority which in the end during the course of case I consider that I should balance and resolve, but, certainly, combined at this stage, they do not indicate to me that I should immediately decide to have a preliminary issue in this case.
The fact that I am looking at the correspondence of April, 2001 as indicating that there was a certain agreement that the case should go forward, as suggested by Johnson J., eventually, as one incorporating all issues in the one hearing, is the basis on which I proceed then to deal with the unfortunate set of circumstances where the defendant, Mr. Regan, cannot give evidence. I find that given that circumstances have changed just over the course of a year during which both parties were anxious enough to have the case get a hearing and in circumstances where the case was not heard, through no great fault of any of the parties, but primarily due to foot and mouth, it would seem to me that the case is one where the plaintiff is entitled to go on notwithstanding that the defendant is not in a position to give evidence.
If the defendant had unfortunately died, I accept that under the Civil Liability Act, 1961, the claim of the plaintiff would not abate and would not die with the defendant and the case could have proceeded against the personal representative of the defendant. But, in so deciding, I have to be aware and I think it is important for the parties to be aware, that the court would find itself in a position where it would be inclined to jealously guard the interests of the person under a disability such as the defendant, it is generally regarded as an obligation in relation to a deceased person but I think that any person under a disability would have to have his or her interests jealously guarded by the court in relation to the hearing.
For these reasons, I would refuse the application by Mr. Keane for the issue of delay and prejudice to be dealt with as a preliminary hearing and I would, with some misgivings, accept the solution proposed by Johnson J. that the issue of delay and prejudice would be dealt with in the hearing of the case as a matter of defence. How that is to be done is a matter for the practitioners and I will be listening to any submissions that have to be made from time to time in relation to how that actually will be done. In making my decision I do not minimise the problems that might arise there, but that is the decision.”
The case proceeded for a number of days following and evidence was heard.

The following authorities were open to me in relation to delay:-
Rainsford v. Limerick Corporation [1995] 2 I.L.R.M. 561
Sheehan v. Amond [1982] I.R. 235
Guerin v. Guerin & Anor. [1992] 2 I.R. 287
Primor v. Stokes Kennedy Crowley & Oliver Free & Co. [1996] 2 I.R. 459
Hogan v. Jones & Ors. [1994] I.L.R.M. 512
Southern Mineral Oil Ltd. v. Cooney [1997] 3 I.R. 459
Martin v. Moy Contractors Ltd & Ors. (Unreported, Supreme Court, 11th February, 1999)
Dunne v. E.S.B. (Unreported, High Court, Laffoy J., 19th October, 1999)
Margaret Collins v. Bus Atha Cliath (Unreported, Supreme Court, Murphy J., 22nd October, 1999)
Duignan v. Carway (Unreported, High Court, O’Donovan J., 27th July, 2000)
Celtic Ceramics Ltd. & Ors. v. I.D.A. & Hunt (ex tempore, Supreme Court, Finlay C.J., 4th February, 1993)
Ó Domhnail v. Merrick [1984] I.R. 151
Toal v. Duignan (No. 1) [1991] I.L.R.M. 135
Jonathan Kelly v. Edward Cullen and Mid Western Health Board (Unreported, Supreme Court, Barron J., 27th July, 1998)
Stollznow v. Calvert, (1980) N.S.W.L.R. 749.
The submissions on behalf of the plaintiff consisted of inviting the court to see where the delay, while perhaps inordinate, was excusable and in instances where there was further delay which may be viewed to be inordinate and without excuse, the plaintiff submitted that such disadvantages ought to be considered in the light of conduct by way of acquiescence on the part of the defendants in the conduct of the action amounting to or akin to estoppel, such to disentitle the defendants to have the plaintiff’s claim dismissed by reason of delay.

Counsel on behalf of the defendants relied on the dicta of the Supreme Court in Ó Domhnail v. Merrick [1984] I.R. 151, Celtic Ceramics Ltd. & Ors. v. I.D.A. & Ors. (ex tempore, Supreme Court, 4th February, 1993), Brennan v. Western Health Board & Anor.(Unreported, High Court, Macken J., 18th July, 1999), and Brennan v. Fitzpatrick & Anor. (Unreported, Supreme Court, 23rd November, 2000), and stated that the period of time of delay which amounted to inordinate delay as held in these cases were greatly exceeded by the periods of delay in the plaintiff’s case. The standard urged upon the court was stated by Denham J. in Brennan v. Fitzpatrick & Anor. at pp. 9-10 as follows:-

“The inordinate delay has given rise to a substantial risk that it is not possible to have a fair trial and the delay is likely to have caused serious prejudice to the defendants. On balance the justice of the situation was in favour of dismissing the proceedings.”
The Law
From the authorities it is clear that the principles of law relevant to the consideration of the issues raised in applications for dismissal by reason of delay may be summarised in the criteria set out in the judgment of Hamilton C.J. in Primor Plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459 at pp 475-476 as follows:-
“(a) the courts have an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests of justice require them to do so;
(b) it must, in the first instance, be established by the party seeking a dismissal of proceedings for want of prosecution on the ground of delay in the prosecution thereof, that the delay was inordinate and inexcusable;
(c) Even where the delay has been inordinate and inexcusable the court must exercise a judgment on whether, in its discretion, on the facts the balance of justice is in favour of or against proceeding of the case;
(d) In considering this latter obligation the court is entitled to take into consideration and have regard to
(i) the implied constitutional principles of basic fairness of procedures,
(ii) whether the delay and consequent prejudice in the special facts of the case are such as to make it unfair to the defendant to allow the action to proceed and to make it just to strike out the plaintiff’s action,
(iii) any delay on the part of the defendant – because litigation is a two-party operation, the conduct of both parties should be looked at,
(iv) whether any delay or conduct of the defendant amounts to acquiescence on the part of the defendant in the plaintiff’s delay,
(v) the fact that conduct by the defendant which induces the plaintiff to incur further expense in pursuing the action does not, in law, constitute an absolute bar preventing the defendant from obtaining a strike out order but is a relevant factor to be taken into account by the judge in exercising his discretion whether or not to strike out the claim, the weight to be attached to such conduct depending upon all the circumstances of the particular case,
(vi) whether the delay gives rise to a substantial risk that it is not possible to have a fair trial or is likely to cause or have caused serious prejudice to the defendant,
(vii) the fact that the prejudice to the defendant referred to in (vi) may arise in many ways and be other than that merely caused by the delay, including damage to a defendant’s reputation and business.”
One of the distinguishing factors of all the Irish authorities cited, is that all deal with the question as to whether there was a substantial risk that it was not possible to have a fair trial á la Brennan v. Fitzpatrick & Ors. (Unreported, Supreme Court, 23rd November, 2000). The cases are thus concerned with assessment of a risk in advance of a trial. What has to be considered by me in this judgment is whether ex post facto the trial, there was sufficient fairness to satisfy the criteria under the Constitution for a fair trial. In this particular situation where the trial has proceeded to the end of a hearing, two factors emerge which are of considerable weight in deciding how delay should affect the outcome as follows:-
the weight to be given to the fact that, notwithstanding a long delay, the defendant never found it possible to make an application for a dismissal, for lack or want of prosecution or a strike out by reason of delay, and thus led the plaintiff into a situation where the full expense of a lengthy and difficult trial was undertaken and
what test is to be applied by the court in relation to ascertaining whether there was in fact a fair trial in relation to the issues raised in view of the delay and possible prejudices arising therefrom and a quantum leap in prejudice which presumptively and in fact may arise from the inability of the defendant to give evidence and consequent implied inability or severe restriction in relation to giving instructions.
In relation to the second question, posed by me in this judgment, the Irish authorities and the submissions made by the parties have not illuminated what test the court might apply to determining whether the trial satisfied the criteria of fairness indicated by Primor v. Stokes Kennedy Crowley [1996] 2 I.R. 459 and the other cases, when the court subjects the decision as to whether the plaintiff’s claim is to be barred for delay having regard for the overall test of having a fair trial, in the event of the plaintiff having passed the other tests relating to a strike out for delay. I considered this test of fairness in the context of the statutory mandate of the Commission to Inquire into Sexual Abuse in the case of dead and disabled persons in Murray and Gibson v. Commission to Inquire into Child Abuse, Minister for Education and Science and the Attorney General (Unreported 27th day of January, 2004). In that case I examined the manner in which the courts had dealt with claims against deceased persons, at pp. 103 to 108 of the judgment:-
“It is appropriate, therefore, to examine in more detail how the courts have tested the evidence in cases which have been allowed by the courts to proceed against deceased persons. In Babingtons County Court Practice 2nd in relation to the proofs necessary to obtain a primary degree for the administration of an estate on the application of a creditor he has stated at page 41:-
‘A claim against the estate of a deceased person is not to be allowed on the uncorroborated evidence of the claimant: Clegg v Clegg 22 I.L.T.R. 42; Re Harnett 17 L.R. Ir. 543, in which case, Chaterton V.C. said that the rule was of universal application, and did not depend on the character or position of the claimant. Where a deceased person, whose estate was being administered, had accepted a bill, in which the drawer’s name had not been filled in, the personal representative of the deceased holder who had filled in the drawer’s name was allowed to prove for the amount of the bill without further proof of the debt beyond evidence that the accepter was to some extent indebted to the drawer Re Duffy, deceased, 5 L.R. Ir. 92. Shop-books in the handwriting of the plaintiff are corroboration of the plaintiff’s claim; Ward v. Harold 27 I.L.T.R. 115.’
Later when dealing with adjudication of debts and claims against an estate on the taking of accounts under the County Courts (Ireland) Orders, 1890 it is stated at page 357 “The evidence of the claimant must be corroborated”. In Carltons, The Jurisdiction and Procedure of the County Courts in Ireland, at p. 1179 it is stated:-
‘In proving a claim against the assets of a deceased person, the rule of equity, that the evidence of the claimant must be corroborated, now applies at law as well as an equity – Ferris v Hannah (Circuit Court) 13 I.L.T.R. 127; Re Duffy 5 L.R.I. 92; Boak v Moore 7 L.R.I. 322; Re Harnett 17 L.R.I. 543.’
In Practice and Procedure in Administration Mortgages Suits in Ireland by John W Scanlan (1963) it is stated at p. 53 in relation to proof of debts against the estate of a deceased:-
‘Corroboration is not required but it is desirable. There is no rule of law requiring it although there is only the evidence of a living claimant against deceased debtor such evidence, if it is convincing need not be corroborated’ (and cites as authorities Re: Harnett (1886) 17 L.R.I. 543, Healey v. Bright [1936] 70 I.L.T.R. 224, Somers v. Erskine [1944] I.R. 368 (Supreme Court), Coughlan v. Corcoran (1950) 84 I.L.T.S.J. 84).
In giving the judgment of the Supreme Court in Somers v. Erskine (No. 2) [1944] I.R. 368 O’Byrne J. at p. 385 of the judgment said:-
‘It was also contended by Mr. Walker that this is a claim against the estate of a deceased person, and he relied upon the rule, which he alleges, is recognised in Courts of Equity, that such claims ought not to be allowed without corroborative evidence. He referred us to the statement of this rule by Chatterton V.C. in Re: Hartnett 70 L.R.I.R. 543 at page 547 ‘The invariable practice of this Court has been for years that claims against the estates of deceased persons cannot be sustained without corroborative evidence’. When, however he was pressed at the conclusion of the case, counsel did not contend that this was essential as matter of law as distinguished from a rule of prudence. Some parts of the plaintiff’s case at the trial were not supported by corroborative evidence but, nevertheless, we are of opinion that the trial judge was, in law, entitled to accept these matters on the uncorroborated testimony of the plaintiff, and we see no reason for differing from him on that matter”.
The so called rule of prudence might be explained by the following reference in Williams on Executors and Administrators 9th ed. 1893 Part IV Book II p. 1658:-
“It has been said that in the case of a conflict of evidence between living and dead persons there must be corroboration to establish a claim advanced by a living person against the estate of a dead person, but there is no rule of English law laying down such a proposition. The statement of a living man is not to be disbelieved because there is no corroboration, although in the necessary absence through death of one of the parties to the transaction, it is natural that in considering the statement of the survivor, we should look for corroboration in support of it; but if the evidence given by the living man brings conviction to the Tribunal which has to try the question, then there is no rule of law which prevents that conviction being acted upon. The rule, such as it is, is a rule of prudence rather than of law, and applies to cases of alleged debt as well as to cases of alleged gift, and in an action tried by a jury it is the duty of the Judge to recommend the jury to disregard the unsupported evidence of the claimant; but if they should decline to do so, and should find for the claimant, quaere if their verdict could be interfered with. In the case of Hill v. Wilson L.R.8 CH 888 which, however, was a case where parol evidence was tendered for the purpose of altering the terms of a written contract made with the deceased, Lord Justice James said: ‘The evidence given is the parol evidence of the maker of a promissory note as to a conversation alleged to have taken place between himself and the person to whom the note was given, that person being dead. Even if such evidence be legally admissible for any purpose, the interests of mankind, in my opinion, imperatively require that, unless corroborated, it should be wholly disregarded. Nobody would be safe in respect of its pecuniary transactions if legal documents found in his possession at the time of his death, and endeavoured to be enforced by his executors could be set aside, or varied, or altered by the parol evidence of the person who had bound himself. It would be very easy of course for anybody who owed a testator a debt to say, “I met the testator, and he promised he would not sue,” “I met the testator and I gave him the money”, “I met the testator, and in the consideration of something he agreed to relieve me”. The interests of justice and the interests of mankind require that such evidence should be wholly disregarded.’
In McCarnon v. McCarnon (Unreported, Supreme Court, 13th February, 1997) Murphy J. noted that the claim of the plaintiff against the estate of the deceased was viewed by the trial judge (Carroll J.) “with a critical eye” and Murphy J. went on to state:-
‘As the learned trial judge recognised, judicial decisions have always proceeded on the evidence in relation to claims against the estate of a deceased person should be carefully investigated.’
In Carter v. Ross (Unreported, High Court, Murphy J., 8th December, 2000) the frequency of claims against farmers or the estates of farmers in respect of promises to pay for work done either by cash or land was highlighted as follows by Murphy J.:-
“In this jurisdiction there is a long history of this kind of situation, because of the age, structure, emigration etc. An example is the situation of the elderly farmer living alone in a small holding and helped by neighbours in the days before social welfare. What often gave rise to great difficulty was that the farmer would then bequeath to the farm to some unknown person or relative living overseas. The courts have always recognised that one cannot convert charity into the right to receive property. But the courts have been satisfied when work had been done by a relative or nephew not just on some general expectation but on a very specific ground that the relative or nephew would be given the land. Normally, there is the problem that the deceased is no longer there to deny the promise.”
In neither of the two modern Irish texts the Law of Evidence in Ireland by Caroline Fennell and Evidence by Ruth Cannon and Niall Nelligan is the test for corroboration in a civil claim against a deceased person mentioned although in Phipson, Evidence, 15th Ed. (2000) it is as stated at p. 306:-
’13-11 It is a rule of practice that courts will not act upon the uncorroborated testimony of such claimants unless convinced that such testimony is true.’
From the footnote and authorities it would seem that this is not the most “stringent” test and probably equates to the test in Somers v. Erskine.
From the foregoing authorities I am of opinion that in the absence of other convincing evidence the courts would be very reluctant as a matter of prudence to allow a claim against a deceased person unless it was corroborated in relevant material respects. This standard bears many similarities in terms of discretion with the standard now applicable to the warning on corroboration to be given at the discretion of the trial judge to the jury in trials relating to the evidence of sexual offence victims under s. 7 of Criminal Law Rape (Amendment) Act, 1990.”
From the foregoing I consider that by reason of the position of the defendant who is now presumptively and almost axiomatically prejudiced by reason of his inability to give evidence and hence proper instructions, the corroborative tests applied to claims against deceased persons ought to be applied to him and this view is consistent with the ex tempore judgment given in relation to the direction regarding the question of a preliminary issue in this case. In Guerin v. Guerin [1992] 2 I.R. 287 Costello J. held that the inordinate delay by the plaintiff’s parents and by the plaintiff in instituting proceedings should be excused by the court in view of their failure to appreciate that they had a cause of action, coming as they did from a socially-deprived background. The fact that the plaintiff was an ordinary citizen and not a businessman or corporation with many resources was also considered by Finnegan J. in Silverdale and Hewitts Travel Agency Ltd. v. Italia Tour Ltd. (Unreported, High Court, 7th November, 2000), where he stressed that in considering a party’s personal blameworthiness the court must look at the circumstances of the party, he stated at pp 4-5 that:- “In the case of an infant plaintiff this circumstance will most likely justify delay during minority:… [s]uch considerations have little application to the plaintiff in the present case which is a considerable commercial enterprise and must be expected to pursue litigation of a commercial nature with reasonable expedition and to that end take steps to ensure that it’s legal advisors act in an appropriately expeditious manner.”
An indication as to how the expression “inexcusable” is defined may be seen from the judgment of Geoghegan J. in Truck & Machinery Sales Ltd. v. General Accident Fire and Assurance Corporation Plc. (Unreported, High Court, Geoghegan J., 12th November, 1999) at pp. 4-5 as follows:-
“Strictly speaking it would seem to me that the excuses relied on should relate in some way to the actual proceedings in hand because an opposing party can hardly be expected to stand aside and wait while the other party resolves its problems which have nothing to do with the litigation. Nevertheless I am satisfied that all the surrounding circumstances including so called excuses based on extraneous activities must to some extent be taken into account and weighed in the balance in finally considering whether justice requires that the action be struck out or allowed to proceed.”
Conclusion: Delay
Whereas the delay between issue of plenary summons and delivery of statement of claim may be explained by the difficulty of obtaining a medical report, given the reluctance of Mr. Sheehan to become involved in any litigation, the delay by any standards is inordinate. From the date of delivery of the statement of claim until the case was ready for hearing in 2000 there was further inordinate delay, but from the time the case was ready for hearing the delay may be as much due to listing difficulties arising from various factors including foot and mouth and acquiescence “akin to estoppel” on the part of the defendant. The total delay on the part of the plaintiff in this case is unquestionably inordinate to a very great degree. The question as to whether it is excusable presents a further test by which the conduct of the plaintiff is to be examined, while delay in obtaining medical reports, examination by foreign experts and normal delays of litigation arising from exchange of legal documentation between the parties, may count for a significant part of the delay and render it excusable, a more controversial question arose in relation to a significant part of this delay arising from sheer inertia on the part of the plaintiff to further process the claim and to engage with his claim as one would expect of a reasonable litigant, by reason of a type of mental block akin to depression in respect of which other factors such as gastro-intestinal trouble, work pressures, neighbour troubles and, (to a lesser extent) the pressure of a young family particularly one boy with cerebral palsy. I consider that while the extraneous factors had an impact on the plaintiff and may have slowed down his processing of the claim, I do consider that having regard to the obsessive and perfectionist approach of the plaintiff to his affairs, that the claim itself became an oppressive presence for him in the psychological sense and that the delay, even though at times exacerbated by external factors, still related to causes which to a substantial extent were arising from the action itself.
Consequently I find, notwithstanding the exceptionally inordinate delay, that such delay is excusable from the point of view of determining whether the action should proceed if other conditions for a proper and fair forensic investigation of the allegations of the plaintiff are present. Adding weight to this decision is the consideration that the defendants were guilty of a significant degree of acquiescence “akin to estoppel” from the time the case was ready for hearing. However, in view of the fact that the case was heard in its entirety the court must have regard to the manner in which courts have processed claims against deceased persons, having regard to the inability of the defendant in this case to give evidence and hence effective instructions.
I thus consider that it is appropriate in assessing the evidence in this case that I would set out a template or guide for so doing, having regard to the practice and jurisprudence of the courts referred to earlier in this judgment. This template and guide is as follows,
Evidence of claims by the plaintiff should not be accepted unless:-
(1) It is backed by clear hospital records, doctors’ reports, records of the case including counsel’s opinion, doctors’ reports, hospital records, X-rays and X-ray reports and like documentation.
(2) It is consistent with the numerous letters, memoranda and notes made by the plaintiff not for the purpose of self-corroboration but more from the point of view of discounting the plaintiff’s claim if it is not mirrored in detail in the copious documentation created by himself at material times.
(3) There is a clear clinical/mechanical indication of a serious injury from the indicators and symptoms available to the defendant and which were not obvious from a lay person’s examination of the report in respect of the more dramatic injury such as the knee and the ankle.
(4) The plaintiff had no opportunity from the documentation presented to him for obtaining a second view in relation to injuries in respect of which the prognosis was manifestly uncertain.
(5) It is consistent with the other evidence in the case.
(6) It is consistent with medical texts of the early 1980s.
Liability
1. Personal Injuries
The plaintiff claims damages for personal injuries allegedly suffered by reason of the negligence of the defendant in failing to advise him of the risk of arthritis by reason of the fact that he alleges that he suffered depression from the disappointment of being told in 1986 by Mr. Sheehan that he had arthritis in the right hip. Mr. McGrath S.C., counsel for the plaintiff, passionately submitted that if persons could receive compensation arising from shock from witnessing either directly or indirectly shocking and catastrophic injuries in circumstances such as are described in Mullally v. Dublin Bus [1992] 1 I.L.R.M.1, why then can persons such as the plaintiff not be more arguably compensated where their shock is more immediately referable to serious injuries suffered by themselves rather than third persons who may be close to them. No authority was put forward in respect of this proposition in this jurisdiction. I am more inclined to accept the authorities put forward by counsel for the defendant and hold that personal injuries are too remote to be compensatable in a claim of this kind. In any event I consider that by reason of the fact that the plaintiff had been exposed to a seriously threatening injury to his ankle and awareness of its consequences even without arthodesis he had plenty of cause to get depressed after his return to work. Instead he was reasonably successful on his return to employment, and highly successful in competitive table tennis. This initial good mental and emotional recovery after a serious injury renders it improbable that he suffered depression on being told of further injuries. It is much more probable that his acknowledged depression arose from other unfortunate experiences.
ECONOMIC LOSS
In McGrath v. Kiely & Anor. [1965] I.R. 497 it was held by Henchy J. that a surgeon who failed to report aspects of injury which resulted in the sum recovered by a litigant in subsequent litigation being reduced, was liable for the loss arising from the reduction of the award by reason of such omission. This authority was not challenged by the defendant and I consider that it rules the facts of the present case, if it is found that the defendant was negligent in complying with his contract to report the plaintiff’s injuries to the plaintiff’s solicitors for the purpose of the case arising from his car accident.
On the basis of the template described by me above for the testing of evidence in this case, I find that the only basis upon which the defendant is liable is in respect of the non-reporting to the plaintiff’s solicitors of the probability or at least the serious possibility of severe arthritis in the right hip leading to a possible or probable necessity for hip replacement at some future date for the following reasons:-
1. The defendant in his reports referred to complaints of the plaintiff relating to clicking and stiffness in his hip.
2. While the orthopaedic ward hospital notes indicate at the 10th September, 1980 that x-ray was for “[F]emur to include hip. Femur to include knee.” The report from the next x-ray dated 19th November, 1980 reports “fracture in the upper femur shows well advanced union in good position.” This shows from the record (which was acknowledged by Mr. B. Lane General Surgeon in the Ward where the plaintiff was being treated in his evidence to be the record of the plaintiff’s treatment) that the plaintiff’s right hip was a matter to be considered and being considered by the defendant, and that the x-ray report did not specifically address concerns about the hip joint.
3. The evidence of Messrs. Strachan and Norris, orthopaedic specialists for the defendant, that the defendant should have had regard to the force of the impact on the right knee causing disruption of the cartilage of the right hip indicates that the defendant should have had regard to ordinary standards of care with regard to this aspect of bio-mechanics giving rise to a risk of the right hip being affected by the tremendous linear force applied from the knee along the hip giving rise to severe femoral fractures, if he had made any enquiries as to how the fractures occurred.
4. The evidence of Dr. Denis Wood in relation to the transmission of force upwards from the knee to the hip by reason of the linear force created by the partially overlapping head on nature of the collision in which the plaintiff suffered his injuries.
5. I reject the plaintiff’s evidence that he made complaints to the defendant about pain in both his right and left hips as I have been unable to find within any documentation emerging from him in either his own notes, his letters or Mr. Robinson’s report indicating that he made any complaint about the left hip before or around the time when the defendants medical legal reports were being prepared. The complaint about arthritis in the knee is not something in respect of which the defendant should be blamed as the injury to the knee was patent, severe, and clear to the plaintiff and his legal advisors that complications could arise in the future. In any event the medical evidence in relation to the present condition of the plaintiff’s right knee is far from indicating that the injury is anymore serious than it might have been anticipated at the time of reporting of the defendant.
6. Similarly, if the plaintiff now has further complaints in relation to his ankle injury these may not be attributable to the defendant as the ankle injury was severe and patent which prompted the plaintiff to seek and receive a second opinion specifically upon the subject and the defendant cannot be blamed if such second opinion did not elucidate all the possibilities.
7. The additional injuries and fracture to the sternum were not matters according to Mr. Lane for which the defendant was responsible as orthopaedic surgeon and while he did report on broken ribs in his reports this fact should not fix the defendant with liability in respect of the non ? reporting of the fractured sternum.
8. The degenerative changes in the plaintiff’s back are not matters which should be considered separately from the right hip issue as both the degeneration of the back and degeneration of the left hip may be regarded as consequences of compensatory posture arising from the initial right hip injury.
9. While the evidence was inconclusive as to whether joint space of the left hip was narrower than the joined hip of the right hip, I consider that as these measurements arise many years after the plaintiff sustained the initial injury, that comparisons and possible apparent contradiction involving joint spaces are not helpful. I find that the evidence of Messrs. Norris and Strachan relating to the crucial nature of a clinical diagnosis based on symptoms is the best indicator of hip injury arising from accidental trauma rather than ageing process.
10. I consider that the evidence in the case does not leave me in a situation of having to decide between one authentic but conflicting school of thought as might be envisaged in the judgment of Finlay C.J. in Dunne v. The National Maternity Hospital & Anor. [1998] I.R. 91, rather I consider that, the weight of the evidence points me in one direction only to the facts. In relation to the balance of the injuries which were alleged by the plaintiff to have been overlooked by Mr. Regan, I consider that they are of such minor consequence that they would not have had the consequence of moving a settlement away from the threshold it reached in 1984 and thus should not be taken into consideration in this case.
11. The view of Messrs Norris & Strachan is consistent with at least one orthopaedic textbook of the early 1980s.
STATUTE OF LIMITATIONS
As the claim is sustained only in relation to economic loss and not personal
injuries, the six year period of limitation applies from date of accrual of action. As the right of return accrued (at the earliest) on the date of last medical report in 1982, the proceedings were commenced within the six year period thereafter and hence the claim as accepted by this Court is not statute barred.
DAMAGES
Having regard to the approach of Henchy J. in McGrath v. Kiely & Anor. [1965] I.R. 497 the plaintiff is entitled to the difference between the settlement he might have obtained had the defendant reported fully and properly on his right hip to his legal advisors and the settlement sum actually obtained by him. The settlement of over £70,000 in general damages was a significant and generous settlement for the injuries disclosed by the medical reports. However, it was given on the basis that the plaintiff received from his employers, (who were also the insurers of the defendant being sued in respect of the car crash), a letter of comfort in relation to the security of his employment notwithstanding his manifestly severe ankle injuries. There is no doubt that had the severity of the plaintiff’s hip injuries being notified by the defendant in his reports prior to the settlement that either the amount of the settlement would have been increased or a more extensive and elaborate letter of comfort would have been given by the defendants or a combination of such altered reaction could have been obtained by way of overall settlement by the plaintiff. At this stage, it matters little whether the improved settlement in those circumstances would have included an extended letter of comfort, as such an extended letter of comfort would in itself have an economic value, however translated into monetary terms. The addition of the hip injuries would have been a significantly new element in the settlement, on the basis of no letter of comfort, I would consider, having regard that in 1984 the standard of Sinnott v. Quinnworth Ltd and Others [1984] 1 I.L.R.M. 1 indicating that the maximum compensation which a plaintiff might hope for in respect of general damages for the most catastrophic injuries would have been £150,000 and having regard to the fact that additional (even severe) injuries do not add to settlement values in strictly arithmetical terms the most likely increase of the value of the settlement from the point of view of general damages would have been £15,000. In addition, it would be likely that an attempt would have been made to negotiate either an actuarial figure for loss of earnings sometime in the future by reason of disability or loss of employment prospects, or to negotiate an overall loss of job prospects figure. In addition there may well have been some estimate of prospective costs of hip replacements.
Having regard to the actuarial evidence adduced on behalf of the plaintiff I consider that the appropriate manner of calculating the present value of damages attributable to these items of loss should be to apply whatever actuarial multiplier might foreseeably have been used in 1984 to deal with any feared loss arising from the deterioration of the hips. The plaintiff’s actuary suggested in evidence that plaintiffs historical losses and the actuarial value of his present losses should be calculated and discounted back for the purpose of ascertaining the value of such losses at the date of the settlement in 1984. I reject this approach for two reasons – firstly, the damages would have been assessed in 1984 in the light of expectations in 1984 and in the light of mortality tables facing the plaintiff in 1984, and secondly the consistency tests put to the plaintiff’s actuary in cross examination by counsel for the defendant were not met. I also reject the use of historical losses as a means for deciding the quantum in relation to these factors. The fact that the Oireachtas have provided for interest to be awarded on damages not arising from personal injuries is strong authority for this proposition that for all its theoretical weaknesses an award of interest under the Courts Act, 1981 is the most appropriate method of dealing with the matter, especially as the government has from time to time altered by statutory instrument the rate of interest to be awarded having regard to underlying monetary and economic conditions. The only guide of expectations at the time of negotiation in relation to loss of wages was a note made by the plaintiff in respect of his negotiations in relation to the loss of £65 per month in relation to the worst possible consequences of his ankle injury. Having regard to the evidence and the experience of the plaintiff, I consider that hip replacement and adverse consequences to the plaintiff’s employment might not have been probable until the plaintiff was 48 to 52 and similarly expenditure on hip operations might not occur until that time. The plaintiff’s actuary clarified in evidence when requested that the multiplier would be in the region of £200 per week lost. On this basis, a figure based on actuarial calculations for prospective loss of wages would have been in the region of £13,000. Alternatively, it would have been reasonable for such sum to be added on a non actuarial-mathematical basis on the basis of general loss of job prospects.
On the basis that there could reasonably be a probability of at least two hip operations the present value of same (at date of trial) would have been in the region of £9,200. This would probably be represented by a sum in the region of £3,000 in 1984 and it would be strongly discounted by reason of the fact that a hip operation would not be imminent. Hence, I consider the sum of £2,000 at most, to have been a likely contingency figure for hip operations in any settlement that would have incorporated an arthritic injury to the plaintiff’s hips. Back operations and knee operations would not have been foreseeable in 1984 as the reporting literature from the defendant and Mr. Robinson do not allude to any secondary problems arising there, notwithstanding that the ankle injury would manifestly have given rise to some posture difficulties similar to those presented by a degenerating hip. I consider that the damages in this case may be summarised and totalled as follows in 1984 monetary damages:-
Loss to settlement in respect of general damages £15,000
Probable actuarial loss – loss of job prospects £13,000
Contingency sum in relation to hip operations in the future £2,000
Total £30,000
CONTRIBUTORY NEGLIGENCE
In relation to the pleas and submissions of the defendant in relation to contributory negligence on the part of the plaintiff, I consider that a plea of contributory negligence in this case is not sustainable by reason of the fact that the defendant did not bring the hip injury into sufficient focus to place an onus on the plaintiff or his advisors to receive clarification. Also the action was settled on the basis of a settlement at full value on the advice of two eminent and experienced senior counsel who were in 1984 best positioned to judge whether the case should be moved forward by setting it down for trial and advising on proofs for same rather than settle on the basis of full value when the opportunity arose.
APPLICABILITY OF COURTS INTEREST
Counsel for the defendant submitted that courts interest, if it is to be awarded, should not be awarded in respect of periods in which the plaintiff was guilty of delay. While I am aware that this has been an approach of the courts to the award of interest, I am satisfied that it is not an appropriate approach in this case for the following reasons:-
No authority was advanced for the practice.
There is no provision in the Act specifically directing that that is how the discretion is to be exercised in every case.
If the plaintiff had obtained judgment many years ago and had to rely on a judgment mortgage to recover same, the sum due under the judgment mortgage would carry interest on the same basis as Courts Act interest without being subject to any test for delay.
The fact that the Executive endeavours through changing the rate applicable to reflect economic and monetary circumstances and is empowered to do so by the Courts Act, 1981 indicates that it was the intention of the Oireachtas for Courts Act interest to be a neutral measure insofar as it was practicable to protect successful plaintiffs against the ravages of inflation and change in economic conditions.
To apply the jurisprudence of delay debated in this case in the manner so as to penalise a plaintiff in regard to interest where the plaintiff was more guilty of delay than the defendant would be to penalise the plaintiff using a system of jurisprudence which many of the authorities clearly say was not developed for the purpose of punishing plaintiffs.
The defendant had the use of some of the amount of the judgment for investment purposes or did not have a cost of interest.
Accordingly I am prepared to give judgment for the plaintiff against the defendant for the sum of €38,092.15 damages being the equivalent of £30,000 and interest pursuant to the Courts Act, 1981 from 16th February, 1987, the date of issue of the High Court plenary summon, to date the judgment.
I will await submissions of counsel in relation to costs and their calculation of interest as ordered before finalising the order of the court.

 

Alfie Smith v Ireland, the Attorney General and the Pigs and Bacon Commission

1982 No. 1113P

High Court

11 February 1983

[1983] I.L.R.M. 300
(Finlay P)

FINLAY P

delivered his judgment on 11 February 1983 saying: This is a claim brought by the plaintiff by way of summary summons against the defendants for the sum of 16,320 together with interest. The claim is in respect of a deduction suffered by the plaintiff from what he alleges should have been the minimum statutory price payable to him by various bacon factories in the year 1972 in respect of pigs sold and delivered by him to those factories. Deduction was made pursuant to certain statutory instruments made by the defendants, the Pigs and Bacon Commission, with the concurrence of the Minister for Agriculture, pursuant to a power vested in the Commission by the provisions of the Pigs and Bacon Acts, 1935 to 1961. Those instruments are SI Nos. 94, 109 and 293 respectively of 1972 which are in identical terms with varying minimum prices fixed. In the course of each of those Instruments the Pigs and *302 Bacon Commission purported to provide in the Schedule an exclusion from the minimum prices fixed, of the price for pigs in respect of which the Minister for Agriculture and Fisheries was not satisfied that the pigs were produced in the State. The plaintiffs claim is based on the fact that those orders, and in particular that provision in the Schedule, were invalid and ultra vires; constituted a breach of duty on the part of the defendants to him the plaintiff; and was the cause of the loss claimed by him.

The summons herein was issued on 19 February 1982, and the plaintiff by Notice of Motion dated 11 March 1982 applied to the Master of the High Court for liberty to enter final judgment. The matter came before Barrington J on 12 July 1982, and he then made an Order that the action should stand adjourned for plenary hearing without pleadings.

In the affidavits filed on behalf of the defendants, each of them indicated a defence to the plaintiffs claim on the basis that the action was statute barred, and in addition the first and second named defendants put the plaintiff on proof of the quantities of pigs alleged to have been delivered to the bacon factories during 1972 and also denied negligence.

When the matter came for hearing before me counsel on behalf of the first two defendants indicated that in the event of the court holding that the plaintiffs claim was not statute barred, that those defendants would accept liability for the sum claimed by the plaintiff and that judgment by consent could be entered against them for that amount. Counsel on behalf of the plaintiff also indicated to me at the outset of the proceedings before me that the plaintiff was not pursuing the claim in negligence against any of the defendants.

The sole issue therefore which arose for determination by me was as to whether the claim of the plaintiff against these defendants was barred by virtue of the provisions of the Statute of Limitations, 1957. By consent of the parties I tried that issue on the affidavits and the exhibits therein referred to and on the oral evidence of one witness, Mr. Fitzsimons, with regard to the admissibility of one letter.

FACTS
The facts on which this matter falls to be determined having regard to the affidavits, the exhibits therein referred to and the concessions made by the parties before me may thus be summarised. The plaintiff is a pig dealer who in the year 1972 was engaged in the activity of purchasing pigs and selling them to licensed bacon curing factories. In the year 1972, he sold and delivered to five separate licensed bacon curing factories a total of 2,720 pigs in respect of each of which he received a price which was 6.00 less than the minimun statutory price on the ground that the Minister for Agriculture was not satisfied as to the origin of each of the said pigs. The loss thus incurred by him was 16,320.

In the ordinary way, payment for pigs delivered to a licensed bacon curing factory became due upon delivery and was usually made within approximately 14 days of delivery. The 2,720 pigs in respect of which this claim arose were delivered between 12 April 1972 and 21 November 1972.

On 2 May 1972, solicitors acting on behalf of the plaintiff wrote to the Secretary of the Department of Agriculture and Fisheries in the following terms:

We act for Mr. Alfred Smith of Virginia, Co. Cavan. Our client instructs us that he is involved in the buying and selling of pigs, and that in recent times he has sold a number of pigs to the following factories:-

Claremorris Bacon Co. Ltd.

James Hanley Sons, Rooskey

McCarren Co., Cavan

Buttles of Enniscorthy.

It has now transpired that as a result of information or an order from your Department to these companies, a sum of 6.00 per pig has been stopped on foot of the sale of a substantial number of the pigs to these factories, and as a result our client is at a considerable loss of revenue. He is, therefore, unable to purchase or acquire his usual stock of animals. In addition, the information given to these factories has caused serious damage to our clients reputation and trustworthiness, and are a serious reflection on him.

Accordingly, we are instructed that our clients business is suffering serious damage, his reputation as a pig dealer has been jeopardised, and we are instructed to state that unless you instruct the bacon factories concerned to pay the full amount of the retention money forthwith to him, proceedings will be issued for recovery of same. Unless we hear satisfactorily from you within seven days from this date our client will take proceedings to recover all his loss and damage.

This letter was simply acknowledged on 5 May 1972 and received a full reply on 6 June 1972 in the following terms:

With reference to your letter of 2 May about pigs sold to certain bacon factories by Mr. Alfred Smith, Virginia, Co. Cavan, I am directed by the Minister for Agriculture and Fisheries to state that as part of measures to counter serious damage caused by cross-Border smuggling of pigs from the Six Counties this Department has required bacon curers to keep detailed daily records of data from their suppliers as to the sources of all pigs delivered to them. In cases in which the Department is not satisfied as to the reliability of the data furnished regarding the origin of pigs, an appropriate deduction of subsidy at the rate of 6.00 per pig is made by the Pigs and Bacon Commission in respect of the curers pigmeat exports. In this connection, the bacon curers, as announced publicly by the Irish Bacon Curers Society some time ago, made it clear to all suppliers that it would be an express condition of purchase of all pigs by them that any export subsidy disallowed to them by the Commission will be passed on by them for the account of the pig suppliers concerned, all pigs supplied to them being deemed to be sold by the suppliers subject to that condition. Any deductions made in respect of pigs supplied to curers by Mr. Smith were made on the foregoing basis where this Department was not satisfied as to the reliability of the data furnished regarding the origin of the pigs.

On 16 October 1972, the plaintiff himself wrote to the Department of Agriculture and Fisheries referring to a recent telephone conversation in which he stated he was asked to write with details concerning his pigs and set out much detail concerning the pigs which had been sold by him, and in particular stated where they had been purchased by him and from whom. The letter concluded with the following paragraphs:

You will note from this letter Mr. Brennan that I am asking you to pay me the sum of 6,402.00 which is owed to me and which your Department has been the means of withholding. I cannot afford to be at this loss, and unless some attempt is made to settle this matter I am passing the matter along to someone more competent to deal with it on my behalf. You have also stopped other subsidies you had not any reason for withholding, and I shall be writing to you shortly about these. I trust you will give this letter your most urgent attention as I need the money that is owed to me to continue in my business.

That letter was replied to by the Department on 19 October 1972 in the following terms:

I am directed by the Minister for Agriculture and Fisheries to acknowledge the receipt of your letter of the 16th October about pigs supplied to factories. You will appreciate that in view of the number of separate deliveries involved it will take some time to examine the position fully. A further letter will issue as soon as possible.

It would appear that no further letter did at that time or for some years issue from the Department of Agriculture and Fisheries, but in 1972 one John McCrumlish instituted proceedings against the Pigs and Bacon Commission and the Minister for Agriculture and Fisheries claiming inter alia a declaration that the statutory instruments already referred to in this judgment fixing the minimum price for pigs in 1972 were invalid and ultra vires insofar as they purported to exclude from those minimum prices pigs the origin of which had not been established to the satisfiaction of the Minister. Those proceedings came on for hearing before Gannon J, and by agreement of the parties, he heard as a separate preliminary issue that question as to the validity of the statutory instruments concerned. By judgment delivered on 28 May 1975 Gannon J held that portion of those Instruments to be invalid and ultra vires, but otherwise (with the exclusion of that portion) upheld the validity of the minimum price orders. Against that judgment, no appeal was brought by either of the defendants.

The next correspondence between the parties in this case appears to have been a letter written by the plaintiff himself on 30 December 1975 to the Department of Agriculture and Fisheries in the following terms:

I am writing you to know what is holding my cheque for money stopped on pigs in 1972 and 1973 at 6 per pig. May 28th, 1975 Justice Gannon in reserved judgment said that the order to stop this money by your Department was invalid. Since then I rang Mr. Coyle and Brennan three or four times to know when I was getting my money, and they seem not to know the full position as they say it is your legal advisors that is holding the payment up. In my opinion they have no grounds to hold other peoples money and it is unjust in the eyes of God and Man. As time is passing on you have this money held for so long you give me no other option only to take your Departments back into Court for my money and interest and damages to my whole business for the period involved. I give seven days notice from the date you receive this letter that I will take you back into court unless I receive your cheque.

To that letter a reply was written by the Department on 5 January 1976 in the following terms:

I am directed by the Minister for Agriculture and Fisheries to acknowledge receipt of your letter of 30 December 1975 which was received in this Division on 2 January 1976 about the disallowance of pigmeat export subsidy on pigs supplied to various bacon factories by you in 1972 and 1973.

The matter is receiving attention and a further reply will issue to you as soon as possible.

No further reply did in fact issue and there was no further correspondence between the parties. In 1978, however, on the evidence, I am satisfied that the plaintiff sought the assistance of Mr Jim Fitzsimons, TD who was a member of Dail Eireann in his area. Mr Fitzsimons gave evidence before me, and whilst he felt that it was possible that he had written to the then Minister for Agriculture concerning Mr Smiths complaint and the complaint of other persons in a like position it seems to me more probable, though the matter is not very material, that he made a verbal representation to the Minister for Agriculture. In any event, the Minister for Agriculture who was then Deputy Gibbons replies to Deputy Fitzsimons on 29 August 1978 in the following terms:

I wish to refer further to your recent representations on behalf of pig merchants from whom export subsidies have been withheld under measures taken by my Department in 1972 to counter cross-border smuggling of pigs from the Six Counties.

The position is that the High Court gave judgment on a point of law arising in a particular case in which pigmeat export subsidies were disallowed but, as yet, the court has not heard evidence or made a determination on the matters of fact in connection with the withholding of the subsidies. In the circumstances the question of releasing any disallowed subsidies cannot be considered at the present time.

The plaintiff himself wrote a further letter to the Department of Agriculture on 24 June 1980 reiterating his claim for money stopped on pigs at 6 each in the years 1972 and 1973 though not quantifying that claim, and seeking payment of the monies due to him. To that letter there does not appear to have been any reply.

On 8 September 1980 solicitors on behalf of the plaintiff wrote to the Department of Agriculture referring to previous correspondence, reiterating a claim for the return of the monies with interest without quantifying them, and threatening to institute proceedings within seven days from the date of that letter. By letter of 12 September 1980 the Department of Agriculture replied to the solicitors concerned noting the contents of their letter, and informing them that the correspondence had been referred to the Pigs and Bacon Commission for their attention. To that letter a further reply was sent by the solicitors on behalf of the plaintiff strongly protesting against this action, but nothing I am satisfied turns on the precise terms of that letter. A reply was received reiterating that it was a matter for the Pigs and Bacon Commission.

A letter was then written by solicitors on behalf of the Pigs and Bacon Commission on 5 November 1980 in the following terms:

I act for the Pigs and Bacon Commission and I understand that you act for a Mr Alfred Smith, Dean Ard, Virginia, Co. Cavan, and a copy of your letter of the 13th ult. addressed to the Department of Agriculture has been forwarded to me.

It would appear that your client indicated to the Department that he had a claim arising out of alleged disallowance of a pigmeat export subsidy. It would appear that any such claim by your client would have long since been statute barred under the Statute of Limitations.

Further correspondence ensued between the solicitor for the plaintif and the solicitor for the Pigs and Bacon Commission on which nothing turns in the issue before me, and these proceedings were then instituted as I have already indicated by a summons issued on 19 February 1982. The only other fact which may be material is that I was informed by counsel, though the matter was not strictly proved before me, that the claim for money damages by Mr McCrumlish in his proceedings was eventually settled by a consent order before Gannon J in 1980.

THE LAW
The plaintiffs claim in effect consists of a series of causes of action, the first of which arose I am satisfied as a matter of law in the month of April, or at the latest, May of 1972, and the last of which arose at the latest in the month of December 1972. Prima facie, therefore, I am satisfied that by virtue of the provisions of s. 11 of the Statute of Limitations, 1957 no part of the claim could be brought after December 1978. By virtue of s. 3(1) of the 1957 Act that period of limitation applied to proceedings by or against a State authority, and therefore applied to the proceedings before me against these three defendants in like manner as if these three defendants were private individuals.

The plaintiff, seeking to avoid this apparent limitation of his claim, relied through his counsel upon the following submissions:

1. That the letter written by the Department of Agriculture and Fisheries of 5 January 1976 which I have already quoted constituted an acknowledgement on behalf of these defendants in writing of this claim within the meaning of the Act of 1957, and that the letter written by the Minister for Agriculture on 29 August 1978 constituted a further acknowledgement of a claim which was still alive, and that therefore the statute does not apply.

2. In the alternative, it was submitted that the entire of the correspondence constituted representations on behalf of these defendants that they would not raise against the plaintiff any defence of a time limit, and that they would eventually deal with and accept liability for the amount of his claim which induced the plaintiff to abstain from the institution of proceedings to his disadvantage, and that they are therefore estopped from now pleading the Statute of Limitations.

3. Thirdly, it was submitted that over and above the equitable doctrine of estoppel, that certain principles enshrined in European Community law and in particular the prohibition therein contained against the defeating of legitimate expectation and against discrimination or inequality in the treatment of the producers and traders in agricultural products which form part of our domestic law by reason of our membership of the European Economic Community make it unlawful for the defendants who are State authorities now to plead the Statute of Limitations.

PLEA OF ACKNOWLEDGMENT
By virtue of Section 56(1) of the Statute of Limitations, 1957 it is provided as follows:

Where (a) any right of action has accrued to recover any debt, and (b) the person liable therefor acknowledges the debt, the right of action shall be deemed to have accrued on and not before the date of the acknowledgement.

It is submitted that the letter written on behalf of the Department of Agriculture and Fisheries on 5 January 1976 constituted an acknowledgment of this debt. I must reject this submission on two grounds. Firstly, it was contended that the reference in the first paragraph of that letter to a disallowance of pigmeat export subsidy, read in conjunction with a letter from the Department of 6 June 1972 which justified that disallowance solely on the basis of the provisions contained in the Statutory Instruments which by the decision of Gannon J were held to be invalid, must be taken as being properly construed as an acceptance or acknowledgement that the disallowance was not only without statutory authority but that it created a liability which was being accepted by or on behalf of the Minister for the repayment of the sums disallowed. I cannot so construe this letter. The first paragraph of it appears to me patently to be no more than a paragraph indicating the letter to which it is a reply and identifying the subject matter of the claim or assertion contained in that letter. The only assurance contained in the letter is of a further communication and it would appear to me to be quite impossible to construe the letter as the acceptance of a liability or the acknowledgement of a debt. Secondly, I am satisfied that the views expressed by Lord Denning MR in Good v Parry [1963] 2 All ER 59, are correct and are applicable to s. 56 of the Act of 1957, where at Page 61 of the report he states:

In order to be an acknowledgement, however the debt must be quantified in figures or at all events it must be liquidated in this sense that it is capable of ascertainment by calculation or by extrinsic evidence without further agreement of the parties.

The plaintiff did not and could not submit that the correspondence to which I have referred constituted an acknowledgement of an identified debt which had been quantified. There had not been at the time that letter was written any quantification made by the plaintiff of the entire of the claim which is now before me. It was submitted, however, that by reason of the fact that the plaintiffs claim can be quantified by multiplying the number of pigs in respect of which the deduction was made by the amount of the deduction namely, 6 per pig, that it was capable of being quantified by extrinsic evidence without further agreement. Reliance in this context was also placed on the fact that the defendants do not seek in the event of the plea of the statute being unsuccessful to dispute the amount of the claim. I am satisfied that this submission must fail. The fact that there is a method of proving a plaintiffs claim and of calculating from that method the amount of the claim is not the extrinsic evidence without further agreement referred to in the judgment which I have quoted. What must exist is that extrinsic evidence at the time of the acknowledgement, and I cannot infer from the conduct of these defendants at this stage in relying only on one defence any acknowledgement made in 1976 as to the amount of the debt.

I am therefore satisfied that the plea of avoidance of the statute by acknowledgement must fail.

With regard to the plea of estoppel, particular reliance was placed upon the decision in Crabb v Arun District Council [1975] 3 All ER 865. That is a decision of the Court of Appeal consisting of Lord Denning MR, Lawton and Scarman LJJ in which the court was unanimous. In the course of his judgment Lord Denning MR, outlining the circumstances under which an equitable estoppel might arise, stated as follows:

Short of an actual promise, if he, by his words or conduct, so behaves as to lead another to believe that he will not insist on his strict legal rights knowing or intending that the other will act on that belief and he does so act, that again will raise an equity in favour of the other, and it is for a court of equity to say in what way the equity may be satisfied. (at 871)

In the course of his judgment Scarman LJ at Page 876 quoted with approval from the judgment of Fry J in Willmott v Barber (1880) 15 Ch.D 96 as follows:

It has been said that the acquiescence which will deprive a man of his legal rights must amount to fraud, and in my view that is an abbreviated statement of a very true proposition. A man is not to be deprived of his legal rights unless he has acted in such a way as would make it fraudulent for him to set up those rights. What, then, are the elements or requisites necessary to constitute fraud of that description? In the first place the plaintiff must have made a mistake as to his legal rights. Secondly, the plaintiff must have expended some money or have have done some act (not necessarily upon the defendants land) on the faith of his mistaken belief. Thirdly, the defendant, the possessor of the legal right, must know of the existence of his own right which is inconsistent with the right claimed by the plaintiff. If he does not know of it he is in the same position as the plaintiff, and the doctrine of acquiesence is founded upon conduct with a knowledge of your legal rights. Fourthly, the defendant, the possessor of the legal right, must know of the plaintiffs mistaken belief of his rights. If he does not, there is nothing which calls upon him to assert his own rights. Lastly, (if I may digress, this is the important element as far as this appeal is concerned) the defendant, the possessor of the legal right, must have encouraged the plaintiff in his expenditure of money or in the other acts which he has done, either directly or by abstaining from asserting his legal right.

Although these two portions of the judgments in Crabb v Arun DC do not deal with any case involving the plea of the Statute of Limitations, I am satisfied that they are a correct statement of the general law of equitable estoppel upon which the plaintiff relies in this case, and that they are consistent one with the other.

Accepting them as I do on the facts of this case I am satisfied that the plaintiff has failed to establish that the defendant is debarred by any form of equitable estoppel from now pleading the Statute of Limitations.

I cannot read the entire of this correspondence, and in particular the two letters of 1976 and 1978 upon which special reliance is placed on behalf of the plaintiff, as either being calculated or intended to lead the plaintiff to believe that the defendants would not insist on their strict legal rights or as constituting an encouragement of the plaintiff to act on that belief. The terms of the letter of January 1976 seem to me no more than the most common form of a postponing letter to be found either in the equipment of bureaucracy or in the common usage of solicitors for defendants. Equally the letter from the Minister for Agriculture of 1978 seems clearly to me to indicate not only a postponement of any decision as to whether to accept liability for any payment to the plaintiff, but to specifically mention that the matter remained in doubt having regard to the state of the action brought by Mr McCrumlish. No evidence was given by the plaintiff before me in this action, and I have no evidence to suggest either that he was aware of the existence of a time limit of the claim which he had nor have I any positive evidence that he was induced to refrain from the institution of proceeding by reason of the correspondence which had taken place though I am asked to infer this latter conclusion from the terms of the correspondence itself.

I am therefore satisfied that the claim to avoid the provisions of the Statute of Limitations by reason of equitable estoppel must fail.

With regard to the third submission made on behalf of the plaintiff, I am satisfied that the following is the position.

By virtue of the provisions of s. 2 of the European Communities Act, 1972 it was provided as follows:

From the first day of January 1973 the Treaties governing the European Communities and the existing and future Acts adopted by the institutions of those Communities shall be binding on the State and shall be part of the dbmestic law thereof under the conditions laid down in those Treaties.

The deductions made by the Pigs and Bacon Commission at the request or under the direction of the Minister for Agriculture and Fisheries from the payments to the Plaintiff in respect of which he now claims all occurred prior to 1 January 1973. The plaintiffs reliance on the provisions of the Treaties governing the European Communities and the jurisprudence developed from them must therefore be not in regard to the original deductions but specifically and solely in regard to the decision of these defendants to plead in answer to the plaintiffs claim the Statute of Limitations. It was urged upon me that in particular the general provisions of the Treaties and the law thereunder prohibiting the defeat by a govenment agency of the legitimate expectation of a producer or trader in agricultural goods and the prohibition against discrimination or inequality in the treatment by a government agency of producers or traders in agricultural goods prohibits these defendants from now pleading the statute. It is suggested that the legitimate expectation which was in the plaintiff was that he would not be dealt with differently from Mr McCrumlish, and that the inequality or discrimination which has arisen is that he was.

Even if I were satisfied that the prohibitions and provisions contained in the European Community Law to which I have referred applied to the right of government or a government agency to rely upon a statutory time limit which was expressly applicable to them, and I would reserve my decision on this point, I am not satisfied that there has been established in this case a legitimate expectation or an inequality or discrimination. Mr McCrumlish instituted proceedings promptly upon suffering a deduction similar to that suffered by the plaintiff. He instituted such proceedings taking upon himself the burden and risks of establishing the invalidity of the statutory instruments concerned. He pursued those proceedings to their ultimate conclusion with success. That he should have been dealt with by the defendants by discharging their liability even on a consent or agreed basis was in a sense inevitable and was not a concession on their part.

I do not consider that there are any grounds for reaching a conclusion that the plaintiff who instituted no proceedings within the time limited by law, had any legitimate expectation that he would be dealt with in a manner identical or similar to that of Mr McCrumlish. Furthermore, I see no inequality in treatment between the case of a person instituting the appropriate proceedings within the time limited and the necessary and inevitable liability thus established against the defendants in such a case and the case of a person who fails to institute proceedings within the time limited. For these reasons, I am satisfied that this further submission on behalf of the plaintiff must fail in this case.

I am accordingly satisfied that the plaintiffs claim herein is barred by virtue of the provisions of the Statute of Limitations of 1957 and must be dismissed.