Evanson v McColgan

CourtHigh Court
JudgeMr. Justice John MacMenamin
Judgment Date27 January 2006
Neutral Citation[2006] IEHC 47
Date27 January 2006
Docket Number[No. 8343 P/2000]

[2006] IEHC 47


[No. 8343 P/2000]





RSC O.25 r1



YARDLEY v BOYD UNREP HERBERT 14.12.2004 2004/51/11642






Practice and procedure - Limitation period Estoppel by representation - Whether defendant estopped from asserting that claim statute barred - Conduct of defendant’s insurers - Whether plaintiff induced to desist from issuing proceedings - Whether action statute barred - Rules of the Superior Courts 1986, order 25, rule 1 - Civil Liability Act 1961, s. 9.

the plaintiff was injured in a collision in 1995 with a car being driven by the defendant, who died in the collision. Her solicitors commenced negotiations with the defendant’s insurers with a view to settling her claim for damages therefor. No settlement offer was made but the insurers assured the plaintiff that they were not contesting liability and asked that proceedings not be issued to minimise costs. Subsequently, proceedings were issued outside the two year limitation period from the date of death of the defendant, as provided for in section 9 of the Civil Liability Act 1961. The defendant then brought a motion seeking to have the claim dismissed on the basis that it was statute barred.

Held by Mr Justice MacMenamin, in refusing the relief sought that, where in a claim for damages, a defendant had engaged in words or conduct from which it was reasonable to infer, and from which in fact it was inferred, that liability would be admitted, and on foot of that representation the plaintiff had refrained from instituting proceedings within the period prescribed by statute, the defendant was estopped from escaping liability by pleading that it was statute barred. The decision not to issue proceedings arose from the conduct of the negotiations between the plaintiff and the defendant’s insurers and the representations of the insurers which continued beyond the expiry of the limitation period and that, therefore, an estoppel arose.

Reporter: P.C.

Mr. Justice John MacMenamin

By notice of motion dated 5th day of May, 2004 the defendant seeks an order pursuant to Order 25 Rule 1 of the Rules of the Superior Courts that a preliminary issue be tried as to whether that the plaintiff action is barred by virtue of the provisions of s. 9 of the Civil Liability Act1961 as amended.


The proceedings in question arise out of a road traffic accident which occurred on 20th October, 1995 on the main Letterkenny to Lifford road. The vehicle in which the plaintiff was a passenger collided with a vehicle being driven by one Peter McColgan. Mr. McColgan unfortunately died as a result of the collision.


Subsequently the plaintiff commenced proceedings Record No. 1998/ 11298 P by way of originating plenary summons wherein the late Mr. Peter McColgan was named as defendant. These proceedings were issued on 16th October, 1998 in circumstances which will be later described. No appearance was ever entered to those proceedings. The first reason therefor was that the defendants pointed out that the plaintiff was not entitled to sue that defendant being a deceased person, even if sued in the care of the solicitors nominated on behalf of the defendant by his insurer. The second reason which gave rise to this motion was that, when the writ was served on Messrs John P. Redmond and Company, the defendants nominated solicitors, they raised the issue that the summons to be out of time in that such proceedings should have been initiated within two years of the date of the death of Peter McColgan.


2. On 18th July, 2000 the plaintiff commenced the current proceedings against the defendant in her capacity as the personal representative of the late Peter McColgan. A second set of proceedings was also initiated by the plaintiff's husband, also involved in the accident. While the same issue arises in regard to the second proceedings, it has been agreed that the motion should determine the issue for both cases. An appearance was entered to the proceedings and a statement of claim was filed on 31st August, 2000 asserting negligence and breach of duty including breach of statutory duty by the defendant.


3. On 29th May, 2001 a defence was delivered stating that the action of the plaintiff herein is barred pursuant to the provisions of s. 9 of the Civil Liability Act 1961. Thereafter a reply to the said defence was delivered on 1st October, 2002.


4. The plaintiff Jane Evanson resides in Northern Ireland. She sustained injuries in the accident. They were of a significant nature. She was minded to initiate proceedings and to that end instructed her solicitor in Northern Ireland, Brian Patrick McElholm, to advise her in this regard. Mr. McElholm forwarded a letter of claim on 13th December, 1995 to the insurers for the deceased namely Cornhill Insurances in Dublin (hereinafter "Cornhill"). Cornhill passed the file to their Belfast office and correspondence then followed between the Belfast office of Cornhill and Mr. McElholm.


5. The first letter referred to then, is one of 13th December, 1995. It was addressed to Cornhill Insurance at Russell Court, St. Stephen's Green, Dublin 2. It was headed

"Re: Your Insured Peter McColgan deceased of Keady, Muff, Co. Donegal.

My Clients: Michael and Jane Evanson of Crevenagh, Omagh, Co. Tyrone

Your Insurance Policy No: PZO-7760276

Road Traffic Accident at Trimlagh, Letterkenny, Co. Donegal on 20th October, 1995.

Dear Sir

I act for my above clients who sustained serious personal injuries in the above mentioned road traffic accident. I have not directed a letter of claim to the personal representatives of the late Peter McColgan as my clients did not wish the family to be troubled. However I would advise you that both my clients suffered severe personal injuries in the above accident. I have been instructed to pursue claims for personal injuries loss and damage and I would be obliged if you would open correspondence with me and confirm whether or not you are prepared to accept liability on behalf of your Deceased Insured at this stage.

I am in the process of obtaining the necessary medical reports and I will contact you further in that regard in due course.

I would be obliged to hear from you soon as possible.

Yours faithfully"


In response to that letter Cornhill in Dublin indicated that they had passed the file to their Belfast Office to deal with the two claims.


6. On January 12th 1996 a letter was sent from Cornhill in Belfast to Mr. McElholm. In the course of that letter they sought details of the date of the accident, and other details as to the plaintiff's personal circumstances and her injuries. These details were provided by Mr. McElholm on 23rd January, 1996.


7. On 7th May, 1996 Mr. McElholm again wrote to the Cornhill in Belfast drawing attention to his response of 23rd January, 1996 and indicating that he did not appear to have heard from the Cornhill since. He stated that it appeared to him that liability should not be in dispute. He requested that he hear from the Cornhill by return regarding the matter of liability. He added:

"Please note that if I do not hear from you within seven days from the date hereof proceedings will issue without further notice".


The Cornhill replied on 13th May, 1996 indicating that they understood that Mr. McElholm was obtaining various medical reports and requesting sight of them, as well as details of any special damages being claimed. This letter was signed by Mr. Ian Sayer, an official of the Cornhill in Belfast holding the position of Deputy Team Leader.


8. Mr. McElholm states that, at the time, it was a widespread practice in Northern Ireland not to share medical reports without an admission of liability. It was certainly his practice not to do so until liability was admitted and he can now think of no occasion whom he did share such reports without such an admission. Therefore on receipt of the letter dated 13th May, 1996 from Cornhill he telephoned that insurance company in Belfast and spoke to a claims clerk named "Jennifer" to confirm that there would be no dispute with regard to liability. In an affidavit sworn herein, Mr. McElholm specifically deposed to the fact that the claims clerk to whom he spoke indicated that liability would not be in dispute given the circumstances of the accident. He also stated that he was concerned that the defendant would not raise any issue with regard to speed or any other element of contributory negligence. He was assured that there was no issue with regard to these issues and that the matter should be settled quite easily subject to obtaining all necessary medical reports on both sides. Mr. McElholm says that this telephone conversation must have taken place on 17th May, 1996 as he made a handwritten note on the face of defendants letter of 13th May, 1996. This note or memorandum reads


No dispute on liability."


9. Mr. McElholm further specifically swears that Cornhill, through the same official (now known to be a Jennifer Crean) requested that he not pass the file to agents in Ireland for the purpose of instituting proceedings but that he should as he only seek legal advice as to valuation of the claim and that he continue to conduct settlement negotiations directly with the Cornhill so as to avoid costs. He agreed to this course of action on the basis that his clients had specifically instructed him to achieve an early settlement as they had just embarked on a new business venture.


10. On 17th May, 1996 (the...

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  • McFadden v Neuhold
    • Ireland
    • High Court
    • 7 Abril 2017
    ...I.R. 587; Ryan v. Connolly [2001] 1 I.R. 627; Yardley v. Boyd [2004] IEHC 385; Murphy v. Grealish [2006] IEHC 22; Evanson v. McColgan [2006] IEHC 47 and the decision of the Supreme Court in Murphy v. Grealish [2009] 3 I.R. 366 all of which have also been considered by the Court. The princip......

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