Fogarty v McKeogh Brothers (Ballina) Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 23 June 2010
• Neutral Citation: [2010] IEHC 274
• Docket Number: [2008 No. 9933P]
• Court: High Court
• Date: 23 June 2010

[2010] IEHC 274

THE HIGH COURT

[No. 9933 P/2008]

Fogarty v McKeogh Brothers (Ballina) Ltd

BETWEEN

MICHAEL FOGARTY

PLAINTIFF

AND

MCKEOGH BROTHERS (BALLINA) LIMITED

DEFENDANT

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S50

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S14

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S14(2)

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S14(3)

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S79(1)

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S79(2)

FIGUEREDO v MCKIERNAN 2009 2 ILRM 526 2008/24/5203 2008 IEHC 368

PERSONAL INJURIES ASSESSMENT BOARD RULES 2004 SI 219/2004 RULE 3(3)

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S79

PRACTICE AND PROCEDURE

Limitation of actions

Personal injuries - Personal Injuries Assessment Board - Relevant date - Date on which document issued - Relevant date was date when seal of Board was affixed to document - Documents said to be properly issued when directed towards appropriate recipient - Figeuredo v McKiernan [2008] IEHC 368, (Unrep, Dunne J, 26/11/2008) considered - Personal Injuries Assessment Board Rules 2004 (SI 219/2004), r 3(3) - Personal Injuries Assessment Board Act 2003 (No 46) ss14, 50 and 79 - Dismissal of proceedings refused (2008/9933P - Clarke J - 23/6/2010) [2010] IEHC 274

Fogarty v McKeogh Brothers (Ballina) Ltd

1 EX-TEMPORE JUDGMENT of Mr. Justice Clarkedelivered on the 23rd June, 2010

2 1. A preliminary issue has arisen in these proceedings concerning whether the claim of the plaintiff ("Mr. Fogarty") is Statute Barred. The issue involves the interaction of the time limits and other related provisions provided for under the Personal Injuries Assessment Board Act 2003, ("the 2003 Act") with the particular facts of this case.

3 2. Most of the underlying facts are not in dispute and it is appropriate in those circumstances to set out a chronology of the relevant dates and then move to a consideration of the legal issues which arise from that chronology.

4 3. The accident, the subject matter of the proceedings, occurred on 16 ^th February, 2006. It is clear and not disputed that an application to the Personal Injury Assessment Board ("PIAB") was sent on behalf of Mr. Fogarty on 5 ^th February, 2008, and received by PIAB on 6 ^th February. PIAB acknowledged that application as complete for the purposes of s. 50 of the 2003 Act, also on 6 ^th February.

5 4. A document which, on its face, is stated to be "issued" by PIAB authorising the Claimant to bring proceedings under s. 14 of the 2003 Act is dated 14 ^th May, 2008, and it is stated to have been "issued under the seal of the Board" on that date. It would appear that that document was sent by document exchange to Mr. Fogarty's solicitors. Mr. Fogarty's solicitor has placed sworn affidavit evidence before the court to the effect that the document was not received until 21 ^st May, and has also averred to the fact that the document exchange operates as a one day service.

6 5. On that basis it seems appropriate to infer, on the balance of probabilities, that the document was not placed into the document exchange system on 14 ^th May, but in all probability some number of days thereafter. The significance of that Finding will become apparent in the course of this judgment.

7 6. In any event proceedings were issued on 25 ^th November, 2008, and it is said on behalf of the Defendants ("McKeogh Brothers") that those proceedings are outside the relevant limitation period of two years, even allowing for the extension to that period when time does not run, which occurs by virtue of the provisions of s. 50 of the 2003 Act.

8 7. In that context it is appropriate to turn to the relevant provisions of the 2003 Act which are:-

9 a "S. 14(2) If a respondent states in writing, in response to a notice under section 13, within the period specified in it, that he or she does not consent to an assessment being made under section 20 of the claimant's relevant claim, it shall be the duty of the Board, as soon as may be after that statement is received by it, to issue to the claimant a document that contains the statement and operates to have the effect mentioned in subsection (4).

10 b (3) Such a document is referred to in this Act as an"authorisation".

11 a S. 50 In reckoning any period of time for the purposes of any limitation period in relation to a relevant claim specified by the Statute of Limitations 1957 or the Statute of Limitations (Amendment) Act 1991, the period beginning on the making of an application under section 11 in relation to the claim and ending 6 months from the date of issue of an authorisation under, as appropriate, section 14, 17, 32 or 36, rules under section 46 (3) or section 49 shall be disregarded.

12 a S. 79(1) A notice or other document that is required to be served on or given or issued to a person under this Act shall be addressed to the...