Griffin -v- Calally, [2008] IEHC 83 (2008)

Docket Number:2002 8244 P
Party Name:Griffin, Calally
Judge:Edwards J.


LUCY CALALLY DEFENDANT JUDGMENT of Mr. Justice John Edwards delivered on Friday the 1st day of February 2008


The issue that I have to decide arises in the context of personal injuries proceedings arising out to a road traffic accident on the 18th July, 1999. The plaintiff was travelling as a passenger in a motor car which was in a head on collision with another motor car at Scarrawalsh, Enniscorthy, Co. Wexford. Unfortunately, the driver of the other vehicle, a Mr. Hugh Kerr, died in the accident. The plaintiff alleges that she suffered personal injuries, loss and damage in the accident, and that these were caused by the negligence and breach of duty of the deceased in or about the driving of his motor vehicle. The defendant named in the proceedings is a law clerk in a firm of solicitors and is sued as nominee on behalf of the deceased driver.

The Plenary Summons was issued on the 13th June, 2002, and a Statement of Claim was delivered on the 17th February, 2003. There was the usual request for further and better particulars arising out of the Statement of Claim and further and better particulars were duly furnished. On 12th May, 2005, a Defence was filed on behalf of the defendant. This was a very brief document and, in the circumstances, it is convenient to recite it in full:-"1. The defendant denies that the plaintiff suffered, sustained or incurred the alleged or any injuries or loss or damage or expense and each and every particular of same is denied as if individually set forth herein and traversed seriatim.

  1. No admission is made as to the alleged or any items of special damage." The defence as filed is not signed by counsel.

The defendant brings the motion that is presently before me and in her Notice of Motion seeks an order pursuant to O. 28, r. 1 of the Rules of the Superior Courts granting her liberty to deliver an amended defence to include the following preliminary plea and objection:-"The claim of the plaintiff herein is statute barred pursuant to the provisions of s. 9(2)(b) of the Civil Liability Act, 1961 and the Statute of Limitations, the proceedings herein not having been commenced within the period of two years after the 18th July, 1999, being the date of death of Hugh Kerr, the alleged tort feasor in the proceedings herein."This application has been vigorously opposed by the plaintiff.

As the defendant is the moving party she will hereinafter be described as the applicant. Correspondingly the plaintiff will hereinafter be referred to as the respondent.

The application was grounded upon an affidavit of Ivan Durcan, solicitor, sworn on the 21st November, 2006, and the documents therein exhibited. A replying affidavit was filed on behalf of the respondent, namely an affidavit of David K. Anderson, solicitor, sworn on the 15th December, 2006, with accompanying exhibits. Then by way of rejoinder Mr. Ivan Durcan sworn a supplemental affidavit on the 2nd February, 2007 responding to Mr. Anderson's affidavit.

The matter came on before this Honourable Court sitting in Tralee on 17th January, 2008, and in the course of the hearing detailed legal arguments were presented to me, to which I will refer later. I then retired to consider the evidence and the parties respective submissions and, having done so, formed the view that it would be inappropriate in the particular circumstances of this case to allow the amendment sought. Accordingly, I dismissed the applicant's application and I indicated that I would give reasons for my decision in a written judgement on today's date. I now give those reasons.

The evidence

At para. 5 of his affidavit of the 21st November, 2006 Mr. Durcan exhibits a booklet of inter-partes correspondence in the case marked "ID 1". With respect to that course of correspondence he disposed:-"I acknowledge the references in the correspondence to liability not being an issue or otherwise being conceded, save for possible seat belt issues, but it is submitted that far from communicating directly or indirectly to the plaintiff's solicitors, that there was no need to issue proceedings, I repeatedly called upon the plaintiff's solicitors to move matters along and to issue proceedings." It will be necessary to refer to the inter-partes correspondence in a little more detail later in this judgment. However, the other matter of significant substance in the affidavit of Mr. Durcan, is contained in para. 7 wherein he states:-"I say and believe that the failure to plead the limitation issue referred to above was a mistake and an oversight. I pray this Honourable Court for liberty to deliver an amended Defence raising this as a preliminary issue. I make this application in the context of the correspondence including the explicit references calling upon the plaintiff's solicitors to move the matter along and to issue proceedings which could not reasonably give rise to any assumption on their part that there was no requirement to issue the proceedings." In his replying affidavit, Mr. Anderson referred at para. 3 to the averment in para. 7 of Mr. Durcan's affidavit, that the failure to plead the statute of limitations in the applicant's Defence "was a mistake and an oversight". In regard to that Mr. Anderson deposed:-"I am surprised that Mr. Durcan should make such an averment because the entire course of the dealings between us up to the issue of this motion was that liability was not an issue in this case. Indeed, on the date the Defence was delivered, a Notice of Tender was also served in which the defendant made a substantial offer in settlement of this case."At para. 4 of his affidavit Mr. Anderson avers that the correspondence exhibited by Mr. Durcan only gives a partial history of the proceedings. Mr. Anderson then goes on to exhibit further correspondence and, save for one item which must be mentioned at this point, I will deal with the relevant correspondence later. The one letter that must be referred to at this point was a letter of 4th September, 2000 from Mr. Durcan to the respondent's solicitors stating plainly:-"Liability will not be an issue in these claims save for possible seat belt issues." At para. 5 of his affidavit, Mr. Anderson deposes:-"Following the letter of 4th September, 2000, the dealings between our respective firms of solicitors proceeded on the basis that liability was not an issue. Certainly, I accepted on behalf of the plaintiff that this was the case and that the only reason that proceedings might be required would be to assess quantum." At para. 6 of his affidavit, Mr. Anderson states:-"Mr. Durcan avers that he repeatedly called upon my firm to move matters along and to issue proceedings. However, as is apparent from the correspondence, when this was done it was always in the context of attempts being made to settle the proceedings and never against any suggestion that the proceedings when issued would actually be contested as regards liability." Mr. Anderson goes on to describe the course of dealings between himself and Mr. Durcan both before and after the issuing of proceedings and it is not necessary to recite in full the evidence in that regard. He alludes to various attempts to negotiate a settlement of the matter; to the furnishing of medical reports and vouchers to the applicant with a view to reaching settlement; to the fact that the respondent was requested to, and did, attend numerous medical consultations set up by the applicant; to the issuing of proceedings and the raising of Notices for Particulars by the applicant, to the furnishing of replies to the applicant's Notices for Particulars and extensive correspondence between the solicitors with...

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