Finlay v Murtagh

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 01 January 1979
• Date: 01 January 1979
• Docket Number: [1976 No. 1206 P.]

Finlay v. Murtagh

Vincent Finlay

Plaintiff

and

John F. Murtagh

Defendant

[1976 No. 1206 P.]

Supreme Court

Practice - Procedure - Mode of trial - Client claiming damages for negligence of his solicitor - Whether plaintiff entitled to trial by judge and jury - Whether claim founded on contract or tort - Courts of Justice Act, 1924 (No. 10), s. 94.

Section 94 of the Act of 1924 states that nothing in the Act shall prejudice the right of any party to an action in the High Court (not being an action for a liquidated sum, or an action for the enforcement or for damages for the breach of a contract) to have questions of fact tried by a jury in such cases as he might theretofore of right have so required, but that no party to an action in the High Court for a liquidated sum or an action for the enforcement or for damages for the breach of a contract or in an action for the recovery of land shall be entitled to a jury, unless the court shall consider a jury necessary or desirable for the proper trial of the action.

The plaintiff claimed damages from the defendant in the High Court for the alleged negligence of the defendant, when acting as the plaintiff's solicitor, in failing to institute an action on behalf of the plaintiff against a third party within the period permitted by the Statute of Limitations, 1957. The plaintiff served on the defendant notice of trial of the action by a judge with a jury but the defendant contended that the action should be tried by a judge alone. An application by the defendant for an order setting aside the plaintiff's notice of trial was dismissed by the High Court. On appeal by the defendant it was

Held by the Supreme Court (O'Higgins C.J., Henchy, Griffin, Kenny and Parke JJ.), in disallowing the appeal, that the plaintiff had a right of action in tort as well as in contract and that, therefore, he was entitled to have his action against the defendant tried by judge and jury if he so wished.

Somers v. ErskineIR [1943] I.R. 348 and Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd.ELR[1964] A.C. 465 considered.

Cases mentioned in this report:—

¹ Liston v. Munster and Leinster BankIR [1940] I.R. 77.

² Jarvis v. Moy, Davies, Smith, Vandervell & Co.ELR [1936] 1 K.B. 399.

³ Turner v. StallibrassELR [1898] 1 Q.B. 56.

⁴ Somers v. ErskineIR [1943] I.R. 348.

⁵ Groom v. CrockerELR [1939] 1 K.B. 194.

⁶ Heywood v. WellersELR [1976] Q.B. 446.

⁷ McGrath v. KielyIR [1965] I.R. 497.

⁸ Cook v. SwinfenWLR [1967] 1 W.L.R. 457.

⁹ Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd.ELR [1964] A.C. 465.

¹⁰ Esso Petroleum v. MardonELR [1976] Q.B. 801.

¹¹ Brogan v. BennettIR [1955] I.R. 119.

¹² Bagot v. Stevens Scanlan & Co. Ltd.ELR [1966] 1 Q.B. 197.

¹³ Clark v. Kirby-SmithELR [1964] Ch. 506.

¹⁴ Mutual Life Ltd. v. EvattELR [1971] A.C. 793.

¹⁵ Midland Bank v. Hett, Stubbs & KempELR [1979] Ch. 384.

¹⁶ Donoghue v. StevensonELR [1932] A.C. 562.

¹⁷ McNamara v. Electricity Supply BoardIR [1975] I.R. 1.

¹⁸ Gallagher v. Mogul of IrelandIR [1975] I.R. 204.

¹⁹ Batty v. Metropolitan Realisations Ltd.ELR [1978] Q.B. 554.

²⁰ Photo Production Ltd. v. Securicor Ltd.WLR [1978] 1 W.L.R. 856.

²¹ Northern Bank Finance v. Charlton—see p. 149, supra

²² Davies v. Lock (1844) 3 L.T. (O.S.) 125.

²³ Bean v. WadeUNK (1885) 2 T.L.R. 157.

²⁴ Bailey v. BullockUNK [1950] 2 All E.R. 1167.

²⁵ Hall v. MeyrickELR [1957] 2 Q.B. 455.

²⁶ Howell v. Young (1826) 5 B.&C. 259.

²⁷ Nocton v. AshburtonELR [1914] A.C. 932.

²⁸ Boorman v. BrownENR (1842) 3 Q.B. 511, (1844) 11 Cl.&Fin. 1.

Appeal from the High Court.

On the 10th March, 1970, the plaintiff, who was an insulator, was injured in the course of his employment while lagging pipes on factory premises in Cork. The plaintiff, who attributed his injuries to the negligence and breach of statutory duty of his employers or of the factory owners in failing to provide him with a safe place and system of work, and with safe plant and equipment with which to work, retained the defendant as his solicitor in May, 1970, to advise him and to act for him in the prosecution of a claim for damages in respect of the negligence and breach of statutory duty which he alleged. No proceedings were instituted by the defendant on the plaintiff's behalf in pursuance of that claim.

On the 15th March, 1976, the plaintiff issued a plenary summons in which he claimed "damages for negligence, by the defendant, in his conduct, for the plaintiff, as his solicitor of business undertaken by the defendant on behalf of the plaintiff."

Paragraphs 4 and 5 of the plaintiff's statement of claim (delivered on the 9th April, 1976) stated:—

"4. In or about the month of May, 1970, the plaintiff retained and employed the defendant as his solicitor to advise him and act for him, in the prosecution of a claim for damages for negligence and breach of duty arising out of the accident aforementioned.

5. The defendant negligently failed to issue proceedings on behalf of the plaintiff in respect of the accident aforesaid within the time limited by the Statute of Limitations, 1957, and the plaintiff's claim for damages for personal injuries in respect of the accident is now statute barred, as a result of which the plaintiff has lost the right to compensation in damages against Cape Insulation Limited and/or Irish Dunlop Company Limited."

A defence, in which liability to the plaintiff was not expressly denied, and with which money was lodged in court, was delivered on the 3rd February, 1977, to which a reply was delivered on the 10th May, 1977.

On the 11th May, 1977, the plaintiff's solicitors served the defendant's solicitors with notice of the trial of the action by judge and jury in the city of Cork. The plaintiff's solicitors had previously asked the defendant's solicitors to consent to the trial of the action in Cork, to which the defendant's solicitors had agreed. The defendant's solicitors had not adverted to the fact that the notice of trial indicated a trial by judge and jury until the action appeared in the list of jury trials for Cork for January, 1978, contained in the Legal Diary of the 22nd November, 1977. They attempted to persuade the plaintiff's solicitors to consent to have the action tried in Cork by a judge alone. That attempt being unsuccessful, the defendant, on the 12th December, 1977, served notice of a motion for an order, pursuant to order 36, rr. 3 and 6 of the Rules of the Superior Courts, 1962, setting aside the notice of trial by judge and jury.

The defendant's motion was heard and refused by D'Arcy J. on the 19th December, 1977. The judge expressed his refusal as having been based on the decision of O'Byrne J. in Liston v. Munster and Leinster Bank¹ [1940] I.R. 77., applying the test laid down by Greer L.J. in Jarvis v. Moy, Davies, Smith, Vandervell & Co.² [1936] 1 K.B. 399. at p. 405 of the report.

Section 11, sub-s. 2, of the Statute of Limitations, 1957, provides by paragraph (a) that, subject to paragraphs (b) and (c) of the sub-section, 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. Paragraph (b) of the subsection provides that an action claiming damages for negligence, nuisance or breach of duty in which the damages claimed include damages for personal injuries shall not be brought after the expiration of three years from the date on which the cause of action accrued.

Section 94 of the Courts of Justice Act, 1924, provides:—

"Nothing contained in this Act shall take away or prejudice the right of any party to any action in the High Court or the Circuit Court (not being an action for a liquidated sum, or an action for the enforcement, or for damages for the breach of a contract) to have questions of fact tried by a jury in such cases as he might heretofore of right have so required in the Supreme Court of Judicature in Ireland, and with like directions as to law and evidence, but no party to an action in the High Court or the Circuit Court for a liquidated sum, or an action for the enforcement or for damages for the breach of a contract or in an action for the recovery of land shall be entitled to a jury unless the Court on the application of any party instituted at any time not later than seven days after notice of trial or on its own motion at the trial shall consider a jury to be necessary or desirable for the proper trial of the action and so shall order . . ."

Cur. adv. vult.

O'Higgins C.J.

I agree with the judgments about to be delivered in this case.

Henchy J.

When a client complains that he has suffered loss because his solicitor has failed to show due care in the performance of his duty as solicitor, does the client's cause of action lie in contract or in the tort of negligence? Or has he a choice? That is the problem presented in this appeal. The plaintiff client has founded his claim against the defendant solicitor in negligence, his case being (and it has not been denied) that the defendant did not, within the period fixed by the statute of limitations, bring an action for damages for personal injuries sustained by the plaintiff as a result of the alleged negligence of a third party. The plaintiff has served notice of trial against the defendant before a judge sitting with a jury, which he would be entitled to do if his cause of action lies, as has been pleaded, in tort. But the defendant contends that the cause of action is breach of contract, that is to say that it is founded on a breach of the implied term in the contract that he would carry out his duties as solicitor with due professional care and skill. If the defendant is correct in that contention, the notice of trial should have been for a judge sitting without a jury...