Emery v Daly Derham Donnelly Solicitors & Peart & Company Solicitors
| Jurisdiction | Ireland |
| Judge | Hanna J. |
| Judgment Date | 12 December 2014 |
| Neutral Citation | [2014] IEHC 661 |
| Court | High Court |
| Date | 12 December 2014 |
[2014] IEHC 661
THE HIGH COURT
AND
Tort – Negligence – Damages & Restitution – Practice & Procedures – Statute of Limitations Act 1957 – Delay
Facts: The second named defendant sought an order dismissing the claim of the plaintiff against the second named defendant on the ground that it was barred by the Statute of Limitations Act, 1957, or an order directing a trial of preliminary issue regarding whether the claim of the plaintiff against the second named defendant would be time barred.
Mr. Justice Hanna dismissed the claim of the plaintiff against the second named defendant. The Court held that the rule governing the time-barred actions as envisaged under s. 11 of the Statute of Limitations Act, 1957, that the actions founded on simple contract must fail if instituted after expiry of six years from the date on which cause of action accrued, was crystal clear. The Court observed that its discretion to condone the delay must be rarely used keeping in lieu the facts and circumstances of the case and it must not be used in false and vexatious cases and where the plaintiff had recourse to some other means of justice. The Court found that the plaintiff had already availed the benefit against his claim against the first named defendant, who in essence contracted the services of the second named defendant to ensure progression of the case of the plaintiff. The Court found that any services, if any, for which the second named defendant could have been liable were rendered 14 years prior and hence, cause of action was clearly time barred.
Hanna J. delivered on the 12th day of December 2014
By notice of motion the second named Defendant seeks an order pursuant to the inherent jurisdiction of the Court dismissing the Plaintiffs claim against the second named Defendant on the grounds that the claim is bound to fail by reason of the Statue of Limitations Act 1957 or an order directing a trial of a preliminary issue as to whether the Plaintiff's claim against the second named Defendant is statute barred and dismissing the Plaintiff's claim against the second named Defendant if the action is determined to be statute barred.
The Plaintiff's claim is for damages for negligence arising from the alleged negligence, and/or breach of contract on the part of the Defendants. The Plaintiff engaged the first named Defendant to institute proceedings in a tort action he wished to take. The first named Defendant retained the services of the second named Defendant to act as "Town Agents" for said action. The Plaintiff alleges that the Defendants failed to progress this case and thus obstructed his efforts to achieve justice.
The Plaintiff, Mr Timothy Emery, is a retired businessman and full time carer from Fountainstown in Co. Cork. Previously Mr Emery operated a roofing business in Cork. He stored his equipment and materials for this business at a premises which he alleges was under the control of a limited liability company, namely Marina Estate Company Limited. In or about the year of 1986 he alleges that these premises were closed and secured by a parent company of Marina Estate Company Limited. He claims his equipment and materials were wrongfully locked inside the compound and he was unable to recover them.
The Plaintiff retained the first named Defendant, practicing solicitors, to institute proceedings on his behalf to recover damages for breach of contract, negligence and breach of duty against Marina Estate Company Limited and a number of related companies allegedly involved in the operation of the compound in which his chattels were secured. The first named Defendant in turn engaged the services of the second named Defendant, Peart & Co, also practicing solicitors, to act as their "Town Agents" in the case.
Proceedings were instituted against Marina Commercial Park and others by plenary summons dated 12 th day of January 1994. Notice of trial was served on the 3rd day of November 1997. A notice of intention to proceed was served upon the Defendants on the 6th day of November 1998 and a new notice of trial was served on the 9 th day of December 1998. A certificate of readiness was obtained from counsel in May 1999 which said certificate was lodged in the Central Office of the High Court Dublin on the 26 th day of May 1999. In July 1999 the Proceedings issued on behalf of the Plaintiff were struck out by the High Court for non appearance. Thus ended that set of proceedings.
There then followed a number of years of protracted dispute between the Plaintiff, who now appears before me as a personal litigant, and the first named Defendant. It appears that, in addition to his complaints concerning that Defendant, the Plaintiff turned his attention to the second named Defendant as he learned more about that part's involvement as agent and whose alleged default increasingly became revealed to him as information, documentary and otherwise, came to his knowledge. What we do know for sure is that the Plaintiff instituted an earlier set of proceedings against the first named Defendant but not against the second named Defendant. This occurred in 2003. A Statement of Claim in those proceedings was delivered in October of that year. Mr. James Connolly S.C. on behalf of the second named Defendant and moving party in this application informed me that the claims enunciated in the 2003 proceedings as against the defendant therein named completely overlap those levelled against both Defendants in the present proceedings. Mr. Emery did not demur in any respect from this assertion. These proceedings are still in being.
In addition to the foregoing, the plaintiff invoked the Incorporated Law Society's complaints/disciplinary mechanism against his former solicitors, the first named Defendant. This was a protracted affair, ending in the Supreme Court and without apparent satisfaction to Mr. Emery as evidenced by his continuing litigation. Presumably the Plaintiff's complaints relevant to the second named Defendant were aired during the course of those proceedings but at no stage was that Defendant made a party them. The proceedings constituting the subject matter of this application, issued in April of this year, are the first such proceedings involving the second named Defendant in the plaintiff's suit.
The Plaintiff now seeks damages against both Defendants for their alleged negligence in failing to progress his original action. In this application, the second named Defendant applies for the claim against them to be struck out on the grounds that it is bound to fail by force of the provisions of the Statute of Limitations Act 1957. There had been an earlier application along these lines, but Ryan J. determined that a Defence pleading, inter alia, the said statute should be filed by the second named Defendant. This has been done and that brings us to this point in time.
I should point out at this juncture that no issue was taken by the applicant as to any want of form with regard to the applicant's pleadings. For the purposes of this application I am taking Mr. Emery's case "at its height" and assume that, insofar as it has any bearing on matters, he has at all material times and as far as he is concerned focussed his complaints on both Defendants. I note with sympathy that Mr. Emery has had health issues both personal and familial
As to the history of court proceedings, that speaks for itself.
Section 11 of the Statute of Limitations Act, 1957 sets out the requisite time periods in which certain actions must be brought. The following are material to the present application:
2 11.-(1) 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;
(2) (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.
The Court further possesses an inherent jurisdiction to dismiss claims in limine where it appears that they are frivolous or vexatious or bound to fail. A number of criteria must be met before this jurisdiction may be exercised. The first criterion is that the exercise must be used sparingly and only in clear cases. Secondly, it is to be adjudicated upon on the pleadings, and in doing that the Court is required to look at the material as pleaded, taking the plaintiff's case at its highest and giving the most beneficial interpretation of the facts as pleaded, allowing for a working assumption that these facts will all be established in the...
To continue reading
Request your trial