Doyle v C. & D. Providers (Wexford) Ltd

• Jurisdiction: Ireland
• Judgment Date: 08 November 1994
• Date: 08 November 1994
• Docket Number: [1992 No. 120]
• Court: High Court

Doyle v. C. & D. Providers (Wexford) Ltd.

Martin Doyle

Plaintiff

and

C. & D. Providers (Wexford) Limited

Defendant

[1992 No. 120]

High Court

Limitation of actions - Contract and tort - Action instituted after expiry of 6 years - Date on which the cause of action accrued - Date on which plaintiff became aware of cause of action - Statute of Limitations, 1957 (No. 6), s. 11 - Statute of Limitations (Amendment) Act, 1991 (No. 18), s. 3.

Practice and procedure - Pleadings - Amendment - Application to amend pleadings to incorporate allegation of fraud - Whether application to be allowed at hearing of appeal.

Section 11 of the Statute of Limitations, 1957, provides that actions based on simple contract and tort must be commenced within six years from the date on which the cause of action accrued. Section 71 of the Act of 1957, which is contained in Part V of the Act, states that where the action is based on the fraud of "the defendant or his agent or any person through whom he claims or his agent" or where the right of action "is concealed by any such person" the period of limitation shall not begin to run until the fraud is discovered or could "with reasonable diligence" have been discovered.

In September, 1981, the plaintiff purchased roofing slates from the defendant for the roofing of his dwelling house. The plaintiff alleged that in the course of time the roof slating became discoloured and deteriorated and the entire roof required to be re-slated. The plaintiff alleged that the deterioration in the condition of the slates was due to the fact that the defendant had supplied slates of an inferior quality to those specified in the contract and that this only became apparent several years after the slates had been supplied.

The plaintiff brought proceedings in the Circuit Court by way of civil bill dated the 28th November, 1991, more than ten years after the slates had been delivered, claiming damages for breach of contract and negligence. A preliminary objection was taken by the defendant who claimed, by way of defence, that the plaintiff's claim was by virtue of s. 11 of the Statute of Limitations, 1957, statute barred. The trial judge dismissed the plaintiff's claim on the basis that the action was statute barred and the plaintiff appealed to the High Court. At the hearing of the appeal in the High Court the plaintiff for the first time applied to amend the civil bill to incorporate an allegation of fraud on the part of the defendant.

Held by O'Hanlon J., in dismissing the appeal and refusing the plaintiff's application to amend the indorsement of claim, 1, that the amendment sought should not be allowed when the proceedings had come to a conclusion in the Circuit Court and a decision had been given by the learned Circuit Court Judge.

2. That the amendment was sought in reliance of evidence given on behalf of the defendant in the Circuit Court which could have been obtained at an earlier stage by the delivery of interrogatories and that the application should have...