Angela Moynihan v Dairygold Co-operative Society Ltd

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 13 October 2006
• Neutral Citation: [2006] IEHC 318
• Docket Number: Record Number: No. 12417P/2002
• Court: High Court
• Date: 13 October 2006

MOYNIHAN v DAIRYGOLD CO-OPERATIVE SOCIETY LTD

Between:

Angela Moynihan

Plaintiff

And

Dairygold Co-operative Society Limited

Defendant

[2006] IEHC 318

Record Number: No. 12417P/2002

THE HIGH COURT

RSC O.8 r1

RSC O.8 r2

BEHAN v GOVERNOR & CO OF BANK OF IRELAND UNREP MORRIS 14.12.1995 1996/1/105

CHAMBERS v KENEFICK UNREP FINLAY-GEOGHEGAN 11.11.2005 2005 IEHC 402

O'BRIEN v FAHY T/A GREENHILLS RIDING SCHOOL UNREP SUPREME 21.3.1997 1997/11/3442

ROCHE v CLAYTON 1998 1 IR 596

O'DOMHNAILL v MERRICK 1984 IR 151

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

1 Mr Justice Michael Peartdelivered on the 13th day of October 2006:

2 The defendant has issued a Notice of Motion seeking to set aside my order dated 14 ^th November 2005 wherein I ordered that the Plenary Summons issued by the plaintiff on the 24th September 2002 be renewed for a period of six months from the date of the order. That application to renew the summons was made ex parte pursuant to O. 8, r.1 of the Rules of the Superior Courts, 1986 (hereinafter referred to as "the Rules" or "RSC").

3 The plaintiff claims that she fell on the 26 ^th September, 1999, as she was walking along the public highway just outside premises in County Cork which are owned by the above defendants. She claims that she tripped on a lip or unevenness on the road resulting from some faulty repair work following excavations at that locus. The claim would have been statute-barred if proceedings were not instituted before the 26 ^th September, 2002.

4 The plaintiff believed at the time that the body responsible for the road repairs in question and consequently for her injuries was Cork County Council, and it is to that body that solicitors acting on her behalf initially wrote by letter dated 12 ^th February, 2001 claiming damages and seeking an admission of liability. With that letter they enclosed what is described as "a map generally identifying the locus". It is not evident from the correspondence exhibited on this application whether or not there was a reply received to this letter, but one way or another a Civil Bill was served on the County Council on the 28 ^th May, 2001, and was issued out of the Cork Circuit Court Office on the following day the 29 ^th May, 2001. It would appear that the County Council served a Notice for Particulars without delay, because the plaintiffs solicitors wrote to the County Council's solicitors on the 13 ^th August 2001 stating that they had attended upon their client for the purpose of taking instructions in relation to Replies to a Notice for Particulars. That letter contained a concluding paragraph in which the plaintiff's solicitors stated:

"While the delivery of a Defence on your client's behalf does not arise pending the delivery of Replies to Particulars we would ask you to address the issue of liability. Does you [sic] client accept responsibility for the locus or will the defendant maintain that the locus was the responsibility of or in the occupation or control of another party? If so, we would ask that you would identify the other party concerned."

5 Clearly some doubt was lingering in the mind of the plaintiff's solicitor at that time, wherever it may have emanated from.

6 There seems to have been no response to that letter (certainly none was produced to the Court) until a letter dated 15 ^th August 2002 was written by the County Council's solicitor to the plaintiff's solicitor in which that solicitor states:

"We thank you for your letter dated 13 ^th of August and note the contents thereof. We are presently investigating the liability aspect of this matter and in particular as to whether we should join Dairygold Co-operative as a party to the proceedings. Once these investigations have been completed we will come back to you.

In the meantime we would appreciate if you could attend to the Reply to Particulars when you are able to do so."

7 I must say it has occurred to me that this letter may well be mistakenly dated 15 ^th August 2002, and may have been written on the 15 ^th August 2001 in reply to a letter dated only two days previously. I say that because there is no apology or other reference to a delay of one year in replying, and it responds to the matters raised in the plaintiff's letter dated 13 ^th August 2001, and does not make any particular issue of what would by August 2002 be a delay of well over a year in the furnishing of replies to particulars. However, no reference has been made by Counsel to this on the application before me, and I must therefore proceed on the basis that the correct date is 15 ^th August 2002.

8 Therefore it can be said that it was on receipt of that letter dated 15 ^th August 2002 that the plaintiff's solicitors were first told by the County Council that there was a possibility that Dairygold, the defendants in these proceedings, were potentially liable for the plaintiff's injuries.

9 The Court has been shown a letter dated 27 ^th May 2002 which passed internally within Cork County Council from the Assistant City Engineer to the Insurance Section wherein the former tells the latter that the area identified as the locus by the plaintiff's solicitors is not the responsibility of the County Council and that "this area of ground has been surfaced (since the time of the accident), as the entrance to Dairygold Co-op Stores. This work was not done by Cork County Council, I presume it was done by Dairygold"

10 The plaintiff's solicitor states in a grounding affidavit for the application for renewal of the Plenary Summons herein that "in or around 2002 the plaintiff's legal advisers were concerned that the land on which the accident occurred may be owned by Dairygold Co-operative Society Limited or that the excavation was carried out with the permission of or under the instruction of Dairygold. Therefore, the Plenary Summons in the within proceedings was issued in an attempt to protect the plaintiff's position under the Statute of Limitations. However, in an attempt to avoid unnecessary costs, the Plenary Summons was not served, and investigations were carried out as to the true ownership of the lands the subject of the proceedings."

11 It is clear, and is not controverted by the plaintiff, that the solicitors for the plaintiff did not at any time prior to the issue of these proceedings write to Dairygold putting them on notice of a possible claim and giving them details thereof. They simply issued the Plenary Summons to stop time running under the Statute, and held off serving same. Neither has the Court been informed of exactly what investigations were carried out by the plaintiff's solicitor in order to establish the ownership of the ground where this accident is alleged to have occurred. Perhaps a simple letter to Dairygold would have established the position. If not, perhaps an appropriate search in the County Council's offices would have revealed the position. But no such letter was written, save that the County Council's solicitors were asked the question. Clearly the County Council was able to satisfy itself as to the fact that it did not own the ground in question, and presumably that information could he obtained from information publically available if appropriate inquiries were made on the plaintiff's behalf.

12 Somewhat extraordinarily Cork County Council did not deliver its Defence until the 26 ^th August 2005. This Court has not been informed by the plaintiff as to what if any steps were taken to force the County Council to deliver its Defence. Given the fact that the Defence was delivered only in August 2005 one must assume that little effort was made in that regard. In that Defence, however, the County Council denies that it carried out the works at the entrance to Dairygold's premises, and they went on to plead that the locus is not in the ownership of the County Council, but they did not go further and plead that it is in the ownership of Dairygold. There are other pleas contained in the Defence, mainly by way of the usual traverse. The plaintiff's solicitor avers that it was following the delivery of this Defence that the plaintiff "is now anxious to serve the Plenary Summons in the within proceedings and to have the actions consolidated".

13 As I have already referred to, the application to renew the Summons herein was made ex parte to me on the 14 ^th November, 2005. Following the making of that order the plaintiff's solicitor wrote for the very first time to Dairygold by letter dated 5 ^th December 2005, putting them on notice of the claim. This is over six years following the alleged injury to the plaintiff. In that letter they stated also that the County Council's Defence was delivered only in August 2005 and that they are unable to say whether it is the County Council or Dairygold who are liable, and they call upon Dairygold to admit liability. The proceedings were served on Dairygold on the 12 ^th December 2005.

14 The defendants submit that if the County Council was able to form the view that they did not own the ground, there is no good reason shown why the plaintiff could not have discovered the same information without having to await the Defence of the County Council in 2005. The defendant also makes the point that the plaintiff chose to issue High Court proceedings on the 24 ^th September 2002 (the day prior to the expiration of the Statute) against Dairygold, instead of seeking to have them joined as a co-defendant to the Circuit Court proceedings already in existence against the County Council. I think that it is reasonable to infer from the lateness of the issue of these proceedings that somebody in the plaintiff's solicitors' office suddenly realised shortly before the 24 ^th September 2002 that the time had almost run under the Statute, and that it would not be possible in the short time available to make the appropriate...