Campbell v Irish Bank Resolution Corporation Ltd
| Jurisdiction | Ireland |
| Judge | Mr. Justice Allen |
| Judgment Date | 30 April 2019 |
| Neutral Citation | [2019] IEHC 262 |
| Court | High Court |
| Docket Number | [2012 No. 13121 P.] |
| Date | 30 April 2019 |
[2019] IEHC 262
THE HIGH COURT
Allen J.
[2012 No. 13121 P.]
(IN SPECIAL LIQUIDATION)
AND
Negligence – Breach of contract – Breach of fiduciary duty – Defendant seeking the trial of a preliminary issue – Whether the plaintiff’s claim was statute barred
Facts: The plaintiff, Ms Campbell, very soon before, or very soon after, 21st December, 2006, invested €500,000 in a unit linked life assurance fund, managed by the second defendant, Anglo Irish Assurance Company Ltd as it then was, called the AIAC European Geared Property Fund (EGPF). It was a high risk investment. The plaintiff lost most of her money. By action commenced by plenary summons issued on 21st December, 2012, the plaintiff claimed damages for negligence, breach of contract, and breach of fiduciary duty. The plaintiff’s case was that she was not properly advised and was sold a financial product that was unsuitable for her. The first defendant, Irish Bank Resolution Corporation Ltd (in special liquidation), applied to the High Court for an order pursuant to O. 25, r. 1 of the Rules of the Superior Courts for the trial as a preliminary issue of law of the issue as to whether the plaintiff’s claim was statute barred by operation of the Statute of Limitations 1957. The defendant’s case was that the date of accrual of any cause of action was the date on which the plaintiff made her investment, which was prior to 21st December, 2006. The plaintiff argued that the date of her investment was a contested issue of fact, but the defendant countered that the date of accrual of the cause of action was a matter of law.
Held by Allen J that the facts in this case were not agreed. Allen J was not satisfied that the defendant had succeeded in identifying sufficient facts pleaded by the plaintiff as to allow a preliminary issue to be tried as to whether her claim was statute barred.
Allen J held that the application must be refused.
Application refused.
This is an application on behalf of the first defendant for an order pursuant to O. 25, r. 1 of the Rules of the Superior Courts for the trial as a preliminary issue of law of the issue as to whether the plaintiff's claim is statute barred by operation of the Statute of Limitations 1957, as amended.
Very soon before, or very soon after, 21st December, 2006, the plaintiff invested €500,000 in a unit linked life assurance fund, managed by the second defendant (Anglo Irish Assurance Company Limited as it then was) called the AIAC European Geared Property Fund (‘ EGPF’). It was a high risk investment. The plaintiff lost most of her money.
By this action, which was commenced by plenary summons issued on 21st December, 2012, the plaintiff claims damages for negligence, breach of contract, and breach of fiduciary duty. Essentially the plaintiff's case is that she was not properly advised and was sold a financial product that was unsuitable for her.
The defendant has pleaded that the action is statute barred. Essentially, the defendant's case is that the date of accrual of any cause of action was the date on which the plaintiff made her investment, which was prior to 21st December, 2006. The plaintiff argues that the date of her investment is a contested issue of fact, but the defendant counters that the date of accrual of the cause of action is a matter of law.
It is common case that at all times before she made her investment the plaintiff dealt with the first defendant (Anglo Irish Bank Corporation plc as it was then called) and that the investment was in a bond issued by the second defendant. The action was not progressed against the second defendant and I will refer to the first defendant as the defendant.
The plaintiff's case is that the money she invested in the bond was part of a €2 million award of damages for personal injuries which she had recovered in an action against Clare County Council. The plaintiff initially placed all of her money on deposit with AIB Bank. In early 2006 she went to Anglo Irish Bank Corporation plc (as the first defendant was then called) for investment advice. She was then assessed as having a low to medium attitude to risk. Her investment objectives were to protect her capital and fund her income in the short term and upon her retirement.
On 9th March, 2006 the defendant presented the plaintiff with an ‘ investment proposal’ which suggested a portfolio of low to medium risk assessments. The plaintiff did not then invest.
According to the statement of claim, the plaintiff met with a representative of the defendant ‘ in or about December, 2006’ and, following that meeting, on a date which is not specified in the statement of claim, made her investment in the EGPF. The plaintiff's case is that she was advised and encouraged to make the investment. Her case is that the investment was not suitable and that the defendant was guilty of negligence and breach of contract in recommending it to her.
The statement of claim was, I think it is fair to say, in some respects a bit woolly although perhaps not so woolly as to have justified the 32 page notice for particulars which was raised on behalf of the defendant on 4th August, 2016. Particulars were sought of virtually every plea in the statement of claim including, quite correctly, the precise date of the alleged meeting in December, 2006; the precise date upon which the plaintiff alleges she made her investment; and the precise date on which the plaintiff alleges that she had suffered loss and damage.
On 19th October, 2016 the plaintiff's solicitors delivered a 29 page document called replies to particulars, but which, in the main, did not answer the questions which had been asked. The precise date of the December, 2006 meeting was said (at para. 30.7) to be 12th December, 2006, although the precise date of the recommendation that the plaintiff invest in this fund was said (at para. 30.9) to be ‘ in or around December, 2006’.
The answer given to the question as to the precise date of the investment (at para. 31.1) was:-
‘31.1 The plaintiff received policy documentation – on the 16th January, 2007 – which was essential to the formation of the contract and which contained a cooling off period the effect of which [was that] the plaintiff had an option of rescinding the investment within 30 days from the date of the letter of the 16th January, 2007. The plaintiff's assent to the policy documents and the expiry of the cooling off period were necessary prerequisites to the formation of the contract between the plaintiff and defendant. The funds for the investment were received (sic.) on the 10th January, 2007’.
The answer given to the question as to when precisely the plaintiff alleged that the loss was suffered (at para. 47.1) was:
‘This information is within the knowledge of the first named defendant’.
The answer given to the request that the plaintiff confirm the date of her investment in the EGPF (at para. 47.3) was ‘ Please see reply to 31.1 above’.
By letter dated 28th October, 2016 the first defendant solicitors raised 82 rejoinders. On 11th November, 2016 the plaintiff's solicitors delivered replies to rejoinders. It is convenient to set out the material rejoinders and replies together.
‘Q50. In relation to the matters pleaded at para. 30.7 of the replies to particulars:
The alleged meeting on 12th December, 2006 is central to the plaintiff's claim and the plaintiff appears to allege that the representations or recommendations of Ms. Eileen Redmond at said meeting formed the basis of the plaintiff's decision to invest in EGPF. The plaintiff has grounded her claim in inter alia misrepresentation and negligent misstatement. It is essential that the plaintiff set out the nature of the representations made to the plaintiff at the said meeting and, as far as possible, the words used. It is plainly insufficient that this be left as a matter for evidence by which to ambush the first named defendant at the trial of the action.
A50. Eileen Redmond advised the plaintiff to invest in the fund.
Q51. In relation to the matters pleaded at para. 30.9 of the replies to particulars (which was the precise date of the recommendation):
This reply is deliberately evasive. The first named defendant requires the plaintiff to identify a specific date and this date is within the plaintiff's knowledge.
A51. In Dublin at the plaintiff's sister's house (sic.).
Q52. In relation to the matters pleaded at para. 31.1 of the replies to particulars (which was the precise date of the investment):
The plaintiff's reply at para. 31.4 is noted but fails to answer the particular sought. The request is repeated and please identify the date upon which a binding contract is said to have come into being.
A52. This has been satisfactorily replied to.
Q76. In relation to the matters pleaded at para. 47.1 of the replies to particulars (the date of the alleged loss).
This reply is deliberately evasive. The first named defendant does not require the plaintiff to inform it of what is within its own knowledge. The first named defendant requires the plaintiff to plead its case. Please confirm the date of the alleged loss.
A76. This information is within the knowledge of the first named defendant. However, without prejudice to the foregoing the plaintiff received a letter from the first named defendant dated 13th August, 2007 indicating that the plaintiff's investment had fallen.’
The first defendant was not satisfied with the replies to rejoinders and by notice of motion dated 28th November, 2016 applied for an order directing the plaintiff to give further and better particulars including (but by no means limited to)...
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