Hynes v The Western Health Board and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 08 March 2006
• Neutral Citation: [2006] IEHC 55
• Court: High Court
• Date: 08 March 2006

[2006] IEHC 55

THE HIGH COURT

[No. 14921 P/2003]

HYNES v WESTERN HEALTH BOARD & CRONIN

BETWEEN

ALENA HYNES

PLAINTIFF

AND

THE WESTERN HEALTH BOARD AND BY ORDER, KEVIN CRONIN

DEFENDANTS

STATUTE OF LIMITATIONS 1957

O'REILLY v GRANVILLE 1971 IR 90

ALLIED IRISH COAL SUPPLIES LTD v POWELL DUFFRYN INTERNATIONAL FUELS LTD 1998 2 IR 519 1997 1 ILRM 306

SOUTHERN MINERAL OIL LTD & SILKOIL (IRL) LTD v COONEY & FLAHERTY 1999 1 IR 237 1998 2 ILRM 375

KINLON v CORAS IOMPAIR EIREANN 2006 1 ILRM 22

BARRY v BUCKLEY 1981 IR 306

STATUTE OF LIMITATIONS (AMDT) ACT 1991

PRACTICE AND PROCEDURE

Parties

Joinder of co-defendant - Limitations - Whether co-defendant can be joined where issue as to whether or not the action against co-defendant will be statute barred - Whether court has discretion not to join co-defendant in such circumstances - Whether court can enter into inquiry as to whether or not action may be statute barred - Whether order giving liberty to amend statement of claim consequent upon joining of co-defendant enables only such amendments as are necessary for pleading case against co-defendant - Statute of Limitations 1957 (No 6) - Statute of Limitations (Amendment) Act 1991 (No 18) - Liberty to plaintiff to file additional affidavit granted (2003/14921P - Clarke J - 8/3/2006) [2006] IEHC 55 Hynes v Western Health Board

1 JUDGMENT of Mr. Justice Clarke delivered 8th March, 2006.

1. Introduction

2 2 1.1 In these proceedings the plaintiff ("Ms. Hynes") originally claimed damages for medical negligence against the first named defendant ("The Health Board"). On 9th May, 2005 a motion came before the court on behalf of the Health Board seeking to join the second named defendant ("Dr. Cronin") as a third party. The stated basis for seeking to join Dr. Cronin as a third party was that the operation carried out on Ms. Hynes, which gave rise to the allegations in the proceedings, was apparently carried out by Dr. Cronin. In those circumstances it was not surprising that, when the motion came on before me on 9th May, 2005, counsel on behalf of Ms. Hynes suggested that, in accordance with common practice, Dr. Cronin should be joined as a co-defendant rather than as a third party. On that basis an order joining Dr. Cronin as a co-defendant was made.

3 3 1.2 The application currently before me is on behalf of Dr. Cronin seeking to have that order joining him as a co-defendant set aside. The principal ground relied upon on behalf of Dr. Cronin is a contention that, as of the date when he was joined, the claim as against him was statute barred. It is undoubtedly the case that the relevant operation occurred more than three years before Dr. Cronin was joined. In the affidavit of Dr. Cronin's solicitor, grounding this application, the full grounds relied upon for seeking the order were set out as follows:-

4 2 "4. I further say that it appears that, by joining the second named Defendant as co-defendant, the Plaintiff is seeking to avoid the consequences of the fact that, at the date of the joinder of the second named Defendant, the Plaintiff's action against the second named Defendant was statute barred. I further say that, as a party affected by the Order of Mr. Justice Clarke, the second named Defendant should have been a party to the application to join the second named Defendant outside the period provided for in the Statute of Limitations.

5 5. I further say that the Plaintiff took the liberty of amending its pleadings to include a claim for assault (in respect of which the limitation period is six years, as opposed to three years), but without the leave of the Court to make such an amendment. I further respectfully submit that the Plaintiff's case, if any, against the Defendants is a "negligence" rather than an "assault case", and that the Plaintiff should not be allowed to amend its pleadings as a device to avoid the consequences of the Statute of Limitations."

6 4 1.3 The application was opposed by Ms. Hynes and the Health Board.

2. The Law

7 2 2.1 Against that background it is necessary to turn to the legal authorities. There is authority in this jurisdiction which appears to lend support to two conflicting approaches to the question of the joinder of a defendant which may be outside the limitation period. Put simply the competing contentions are that either:-

8 (a) the Statute of Limitations being a matter of defence, a defendant should be joined; should, if or she wishes, plead the statute, with the trial of the question as to whether the proceedings are statute barred being dealt with in the ordinary way whether by preliminary issue or otherwise; or

9 (b) it being pointless to join a party who is clearly statute barred, no such order should be made.

10 3 2.2 I was referred, in the course of argument, to two decision of the Supreme Court and two decisions of this court.

11 4 2.3 So far as the Supreme Court authority is concerned the first case in time is O'Reilly v. Granville [1971] I.R. 90. In that case three separate judgments were delivered by the Supreme Court. At p. 94 Ó Dálaigh C.J. said the following:-

"The answer to this objection, in my opinion, is twofold. First, the statute is not disregarded because the added party's rights are not affected and secondly, the statute is required to be specifically raised by pleading û the Rules say so. It is well-established law that a statute of limitations which merely bars the plaintiffs remedy must be disregarded unless pleaded in a defence; it is only a statute of limitations which extinguishes the plaintiff's right which can be relied upon without being pleaded".

12 Having noted that the defence provided by the statute to an action such as then under consideration (that is an action in negligence) simply barred the plaintiff's remedy rather than extinguishing any title which the plaintiff might have to property,

13 Ó Dálaigh C.J. went on, at p. 95, to state the following:-

"Therefore I would allow the appeal and grant leave to add Mr. Desmond Granville as a defendant in each action. It is not to be assumed too readily that, in the circumstances of this case, Mr. Desmond Granville will be advised to rely upon the statute of limitations when a defence comes to be filed."

14 2 2.4 The reason for the last mentioned comment stemmed from the fact that there appeared to be evidence of correspondence which, in turn, might, on one view, give rise to an estoppel sufficient to prevent the defendant in that case from relying upon the statute.

15 3 2.5 In the same case Walsh J. took a different view on the fundamental question of whether an added party's right to rely upon the statute is affected by late jointure. As will be seen from the passage from p. 94 referred to above, Ó Dálaigh C.J. was of the view, for reasons which he had specified earlier in the course of his judgment, that the rights of any party so joined were not affected. On that basis a party joined is entitled to rely upon the statute and is only to be regarded as having been sued, for the purposes of the statute, as of the time when joined. Walsh J. took the contrary view and ultimately considered that, in an application to join outside the limitation period, the judge concerned should consider whether justice would be better served by adding or not adding the party concerned.

16 4 2.6 Budd J. at p. 105, agreed with Ó Dálaigh C.J. on the issue of when time ceased to run under the statute and in so doing commented as follows:-

"However, I fail to see why the addition of the proposed defendant as a party to the proceedings should have any retrospective or any other effect which would have the result of depriving him of his legal right to rely on the statute, if he has such a right."

17 On the question of the appropriateness or otherwise of adding a defendant in such circumstances Budd J. commented, at p. 106, as follows:-

"If it were apparent beyond doubt that the statute applied to this case, an application to add the proposed defendant as a party might very well be refused as being a futile operation; but that is not the position here".

18 There followed a consideration of the arguments for and against the proposition that an estoppel arose in that case.

19 Finally it should be noted that Budd J. does express himself to be in general agreement with the proposition, as stated by Ó Dálaigh C.J., to the effect that, as it is necessary to plead this statute in cases where the remedy only is taken away, the question of the applicability of the statute was taken prematurely in the High Court in that case.

20 2 2.7 The Supreme Court again had to consider a similar issue in Allied Irish Coal Supplies Limited v. Powell Duffryn International Fuels Limited [1998] 2 I.R. 519 where, speaking for the Supreme Court, at p. 533, Murphy J. noted that it is:-

"A well established rule of practice that a court will not permit a person to be made a defendant in an existing action, at a time when he could rely on the statute of limitations as barring the plaintiff from bringing a fresh action against him (see Liff v. Peasley (1980) 1 WLR 781 and Ketteman v. Hansell Properties Limited (1987) AC 189). Accordingly the application insofar as it seeks to join the plc for the purpose of maintaining an action against that company for breach of contract or fraudulent misrepresentation, must be rejected".

21 It is clear that no reference was made in the argument to the judgment of the court in O'Reilly v. Granville.

22 2 2.8 O'Reilly v. Granville requires some analysis. It is clear that the court, by a majority of 2:1, took the view that the statute only ceases to run against a defendant joined after the commencement of proceedings, as of the time...