Figueredo v McKiernan
Jurisdiction | Ireland |
Judge | Ms. Justice Dunne |
Judgment Date | 26 November 2008 |
Neutral Citation | [2008] IEHC 368 |
Docket Number | [No. 9078 P/2007] |
Court | High Court |
Date | 26 November 2008 |
BETWEEN
AND
[2008] IEHC 368
THE HIGH COURT
PRACTICE AND PROCEDURE
Limitation of actions
Personal injuries - Application to PIAB - Reckoning of limitation period - Disregarding of period beginning on making of application until issue of authorisation - Application sent by ordinary post -Whether date of making of application date on which application acknowledged in writing - Potential for statute barring in circumstances outside control of plaintiff - Potential hardship - Poole v O'Sullivan [1993] ILRM 55 and Pritam Kaur v S Russell & Sons Ltd [1973] QB 336 considered - Statute of Limitations (Amendment) Act 1991 (No 18), s 5A - Personal Injuries Assessment Board Act 2003 (No 46), ss 11, 12, 13 and 50 - Civil Liability and Courts Act 2004 (No 31), ss 7 - Personal Injuries Assessment Board Rules 2004 (SI 219/2004), r 3 - Defendant's application refused (2007/9078P - Dunne J - 26/11/2008) [2008] IEHC 368
Figuerdo v McKiernan
Facts: The plaintiff issued a personal injuries summons for personal injuries allegedly occurring in 2004, prior to the commencement of the Civil Liability and Courts Act 2004, that reduced the limitation period for personal injures to two years from the commencement of the Act of 2004. The defendant sought to dismiss the claim of the plaintiff on the basis that it was statute barred. The application was posted in 2007 by pre-paid registered post. The plaintiff attempted to commence proceedings by 29th March, 2007. The defendant relied on the date stamp affixed by the Personal Injuries Assessment Board (PIAB) on 2nd April, 2007 to assert that the claim was statute barred and alleged that the proceedings ought to have been commenced by 30th March 2007.
Held by Dunne J. that the claim of the plaintiff could not be statute barred where the necessary application had been made to PIAB under s. 11 of the Act of 2003. The administrative act of affixing a date stamp on the application by PIAB could not oust the statutory provisions.
Reporter: E.F.
CIVIL LIABILITY AND COURTS ACT 2004 S7
STATUTE OF LIMITATIONS (AMENDMENT) ACT 1991
CIVIL LIABILITY AND COURTS ACT 2004 S7(d)
PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S11
PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S12
PERSONAL INJURIES ASSESSMENT BOARD RULES 2004 SI 219/2004 RULE 3
PERSONAL INJURIES ASSESSMENT BOARD RULES 2004 SI 219/2004 RULE 3(3)
PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S13
PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S50
POOLE v O'SULLIVAN 1993 ILRM 55
PRITAMKAUR v S RUSSELL & SONS LTD 1973 QB 336
CIVIL LIABILITY AND COURTS ACT 2004 (COMMENCEMENT) ORDER 2004 SI 544/2004
INTERPRETATION ACT 2005 S25
INTERPRETATION ACT 2005 S26
The plaintiff herein issued a personal injuries summons on 5th December, 2007, in relation to a claim for personal injuries alleged to have been suffered by the plaintiff when crossing a road on 10th November, 2004.
A notice of motion dated 4th April, 2008, was issued on behalf of the defendant seeking the following:-
a) an order dismissing the plaintiff's claim on the grounds that the plaintiff's claim is, and remains, statute barred under the provisions of the Statute of Limitations, as amended, and the Civil Liability and Courts Act of2004.
There is in the grounding affidavit some dispute as to the date on which the accident is alleged to have occurred, but for the purpose of this application, nothing turns on that particular issue. The matters relied on by the defendant in relation to the application are contained in paras. 6 and 7 of the affidavit of Jan Hayes, Solicitor. It is therein deposed to as follows:-
2 "6. I say that the plaintiff's application to the Personal Injuries Assessment Board was confirmed as having been received by P.I.A.B. on 2nd April, 2007, authorisation to proceed was then duly issued on 4th July, 2007, and thereafter the personal injuries summons issued on 5th December, 2007. In this regard, I beg to refer to a copy of the said documents upon which, pinned together and marked with a letter "A", I have endorsed my name prior to the swearing hereof.
7. I say that the Civil Liability and Courts Act of2004, amended the issue regarding the Statute of Limitations and it is clear that where the relevant date, being the date of accrual of the cause of action falls before 31st March, 2005, being the commencement date of the Civil Liability and Courts Act of 2004, section 7 thereof, limitation period prescribed is two years from the date of the commencement, i.e., on or before 30th March, 2007, or three years from the relevant date, whichever occurs first."
Section 7 of the Civil Liability and Courts Act2004 amends the Statute of Limitations (Amendment) Act 1991. Section 7 (d) inserts the following section into the Statute of Limitations (Amendment) Act 1991:-
2 "5A.(1) Where the relevant date in respect of a cause of action falls before the commencement of section 7 of the Civil Liability and Courts Act2004, an action (being an action to which section 3(1), 4(1), 5( 1) or 6(1) of this Act applies) in respect of that cause of action shall not be brought after the expiration of -
(b) 3 years from the relevant date, whichever occurs first.
(2) In this section 'relevant date'means the date of accrual of the cause of action or the date of knowledge of the person concerned as respects that cause of action whichever occurs later."
It is also necessary, in this context, to have regard to the provisions of s. 11 of the Personal Injuries Assessment Board Act2003, which provides as follows:-
2 "11. (1) A claimant shall make an application under this section to the Board for an assessment to be made under section 20 of his or her relevant claim.
(2) That application shall be in the form specified by rules under section 46 and be accompanied by such documents as may be so specified…"
Section 12 of that Act goes on to provide that there is a bar on bringing proceedings unless and until an application is made to the Board under s. 11 in relation to the relevant claim. Certain other provisions apply which are not relevant to the present application.
In addition, it is necessary to consider the provisions of Personal Injuries Assessment Board Rules 2004, S.I. No. 219 of 2004. Rule 3 provides as follows:-
2 "(1) An application under section 11 of the Act shall -
(b) contain such information as may from time to time be specified by the Board, and
(c) be accompanied by the following documents:
(2) An application under section 11 of the Act shall be accompanied by such charge in relation to an application as may be imposed on the claimant by the Board pursuant to Regulations made by the Minister under section 22 of the Act.
(3) In relation to a relevant claim, the date of:
(a) the receipt by the Board of an application under section 11 of the Act for the purposes of section 13 of that Act, and
(b) the making of an application under section 11 of the Act, for the purposes of section...
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