O'Connell v Building and Allied Trades Union and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 12 June 2012
• Neutral Citation: [2012] IESC 36
• Court: Supreme Court
• Docket Number: [S.C. No. 226 of 2011]
• Date: 12 June 2012

[2012] IESC 36

THE SUPREME COURT

Denham C.J.

Fennelly J.

MacMenamin J.

RECORD NO 226/2011

O'Connell v Building & Allied Trades Union & Ors

BETWEEN

JOHN O'CONNELL

PLAINTIFF

AND

THE BUILDING AND ALLIED TRADES UNION, EDWARD MORRIS, PATRICK O'SHAUGHNESSY AND MICHAEL MCNAMARA

RSC O.15 r4

RSC O.15 r13

MESKELL v CIE 1973 IR 121

RSC O15 r5

RSC O.15 r7

O'DOMHNAILL v MERRICK 1984 1 IR 151

O'REILLY v GRANVILLE 1971 IR 90

HYNES v WESTERN HEALTH BOARD & CRONIN UNREP CLARKE 8.3.2006 2006/29/6275 2006 IEHC 55

BARRY v BUCKLEY 1981 IR 306

ALLIED IRISH COAL SUPPLIES LTD v POWELL DUFFRYN INTERNATIONAL FUELS 1998 2 IR 519

LIFF v PEASLEY 1980 1 WLR 781

KETTEMAN v HANSEL PROPERTIES LTD 1987 AC 189

SALOMAN v SALOMAN & CO 1897 AC 22

KINLON v CORAS IOMPAIR EIREANN 2006 I ILRM 22

PURCELL v TAYLOR UNREP PEART 26.5.2004 2004/42/9734 2004 IEHC 118

RSC O.15 r2

SANDY LANE HOTEL LTD v TIMES NEWSPAPERS LTD & ORS UNREP KEARNS 10.12.2010 2010/46/11583 2010 IEHC 443

PRACTICE & PROCEDURES

Parties

Joinder - Application to join co-defendant - Test to be applied - Standard of proof - Discretion - Whether possible to join party against whom claim potentially statute barred - Stage of proceedings at which question should be determined - O'Reilly v Granville [1971] IR 90 and Ó Domhnaill v Merrick [1984] IR 151 considered; Allied Irish Coal Supplies Ltd v. Powell Duffryn International Fuels Ltd [1998] 2 IR 519 distinguished; Hynes v Western Health Board [2006] IEHC 55, (Unrep, Clarke J, 8/3/2006) approved - Statute of Limitations 1957 (No 6) - Rules of the Superior Courts 1986 (SI 15/1986), O 15, rr 4, 5, 7, 13 and 14 - Plaintiff's appeal allowed (226/2011 - SC - 12/6/2012) [2012] IESC 36

O'Connell v Building and Allied Trades Union

Facts: The plaintiff was a mason and claimed that his exclusion of membership from the first defendant was causing him economic loss. He alleged that the Construction Industry Federation was a concurrent wrongdoer. An appeal was brought by the plaintiff against an Order of the High Court refusing him leave to join the Construction Industry Federation as a co-defendant. The Court considered the evidential requirements to join a co-defendant and the procedure to be adopted when the claim of the plaintiff might raise a time-limitation issue and whether the plaintiff could join a time-barred defendant, when time commenced and when the Court made a decision about the time-limitation.

Held by the Supreme Court per MacMenamin J. (Denham CJ, Fennelly J. concurring), that a court of first instance should not generally enter into an enquiry as to whether a claim was statute-barred at the motion to join the defendant. The Court would consider only whether the claim was manifestly statue-barred. If there was doubt as to the propriety of joinder or whether the claim was statute-barred the matter could be delay with by means of a preliminary issue. The court would consider the evidence in the circumstances and retained discretion to dismiss the application. The Court would uphold the appeal of the plaintiff and reverse the order of the High Court. The Court would grant an order joining the Construction Industry Federation as a co-defendant.

1 This appeal is brought by the plaintiff (a litigant in person) against an Order of the High Court refusing him leave to join the Director of the Construction Industry Federation ("CIF" or "the Federation"), as a co-defendant to their proceedings. The High Court decision was to dismiss the application on the basis that the claim against the Federation was statute barred. This judgment addresses, first, the evidential requirements under the Rules for an application to join a co-defendant; and second, the procedure to be adopted by a court on such an application, when the plaintiff's claim against such co-defendant may prima facie raise a time-limitation issue. The procedural questions are in turn addressed under three subheadings: (a) whether a plaintiff is entitled to join as apparently time barred defendant; (b) when does a time bar commence to run against a co-defendant; and (c) at what point should a court make decision in relation to a time-limitation question regarding a co-defendant?

The provisions in the Rules of the Superior Courts on the joinder of a co-defendant

2 Order 15 Rule 4 of the Rules of the Superior Courts provides:-

2 "4. All persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally, or in the alternative. Judgment may be given against one or more of such defendants as may be found to be liable, according to their respective liabilities, without any amendment."

3 Order 15 Rule 13 is likewise couched in broad terms. It provides:-

2 "13. No cause or matter shall be defeated by reason of the misjoinder or non joinder of parties and the court may in every cause or matter deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the names of any parties improperly joined, whether as plaintiffs or as defendants be struck out and that the names of any parties, whether plaintiffs or defendants who ought to be have been joined, or whose presence before the court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter, be added ..."

4 The case has a considerable history. The claim was initiated by plenary summons on 16 ^th October 2002. A statement of claim was delivered on 19 ^th February 2004. At all subsequent stages, up to the year 2009, the plaintiff was represented by solicitors. I turn first to the evidential test applicable in this motion. The material which flows is derived from the plaintiff's grounding affidavit and exhibits.

The evidential issue

5 The plaintiff is a mason by qualification. His case is that, since the year 1997, difficulties have arisen between himself and the first named defendant (hereinafter referred to as "BATU" or "the union"). The second, third and fourth named defendants were at all material times officials employed by BATU, but they are sued in their personal capacities.

6 As a preface to what follows, I emphasise that the case, made here by the plaintiff, has not been tested in evidence. What follows, therefore, are not findings of fact. The plaintiff's case is that he has wrongfully and unlawfully suffered economic loss as a consequence of being excluded from membership of the first named defendant. He pleads that the defendants intentionally or recklessly interfered with his trade as a mason, and his economic relations and activities in that trade. He says that, from the year 1997 onwards, the defendants have unlawfully advised builders not to employ him as he was not a member of BATU, and unless he conformed to membership pre-conditions laid down by that union. He alleges that the union has sought to insist that he operates under a tax regime chosen by it, and asserts it insists that he should work in employment only with bricklayers and masons who are also members of that union. He contends that, in late 1997, the second named defendant told him that he would not work as a bricklayer or mason in Limerick unless he observed certain directives imposed by BATU. He claims that he was provided with one probationary or temporary union card which was not renewed. He says that, since then, persons who employed him were threatened with on-site picketing which could lead to closure of such sites, and in turn lead any persons employing him to breach their own contracts with developers of land. The plaintiff says that builders who actually employed him were told to remove him from employment. He contends that the fourth named defendant, acting on his own behalf and in concert with the other defendants, arrived at one such site where the plaintiff was working, procured his dismissal, and that four other bricklayers on the site were advised to cease working there until the plaintiff was dismissed.

7 The plaintiff's claim is more particularised under a number of legal headings. He seeks damages for intentional or reckless interference with his trade, economic relations and activities. He alleges that the defendants have induced breaches of contract and engaged in intimidatory behaviour. He says he has been wrongfully excluded from membership of the trade union. He alleges that the defendants have conspired with each other, and with other persons to commit these torts. The plaintiff claims that there has been interference with his constitutional rights to associate and dissociate. (See Meskell v. CIE [1973] I.R. 121). While he did not so depose in his grounding affidavit, he has made clear his contention that those unlawful acts have continued up to the present day. On his case, as now presented therefore, these are alleged continuing wrongs. The statement of claim includes a claim for loss of earnings continuing into the future. The plaintiff also seeks reliefs by way of injunction, compelling the union to treat any application by him for renewal of his membership in accordance with natural and constitutional justice, and without preconditions.

8 There is a complex background to the dispute, partly reflected in a judicial review matter in which BATU was involved. In that case, the union was applicant, and the Labour Court the respondent; the Construction Industry Federation was a notice party (The High Court, Judicial Review No 1998/246 JR). These proceedings were initiated by a decision to grant leave to seek judicial review made by Barr J. on 22 ^nd June, 1998, and...