Irish Equine Foundation Ltd v Robinson and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Geoghegan
• Judgment Date: 04 May 1999
• Neutral Citation: [1999] IEHC 150
• Court: High Court
• Docket Number: 996 No. 45P,[1996 No. 45P]
• Date: 04 May 1999

IRISH EQUINE FOUNDATION LTD v. ROBINSON & ORS

BETWEEN

IRISH EQUINE FOUNDATION LIMITED

PLAINTIFF

AND

PATRICK J. ROBINSON, ANDREW D. DEVANE, FREDERICK C. BROWNE, RODERICK MCCAFFREY, DAVID J. BROWNE AND HARRY CONWAY PRACTISING AS ROBINSON KEEFE&DEVANE OVE ARUP&PARTNERS IRELAND W&J BOLGER LIMITED AND TEGRAL BUILDING PRODUCTS LIMITED

DEFENDANTS

[1999] IEHC 150

Justice Geoghegan

996 No. 45P

THE HIGH COURT

Synopsis

Practice and Procedure

Preliminary issue; plea that action was statute-barred; commencement of limitation period; plaintiff sought damages for faulty design of roof; damage occurred 4 years after construction of building; whether action founded in negligence was statute-barred; whether damage had to be manifest or discoverable in order to commence the limitation period; whether damage was manifest from date of construction or from date of damage; Statute of Limitations, 1957 Held: damage was manifest from the date of construction of the building; claim was statute-barred Irish Equine Foundation Limited v. Robinson - High Court: Geoghegan J. - 04/05/99 - [1999] 2 IR 442 - [1999] 2 ILRM 289

The plaintiff had retained the services of the defendants in the construction of an equestrian centre. The first six defendants were a firm of architects and the seventh defendant was an engineering firm. In 1986 a certificate of practical completion in respect of the centre was issued. In 1991 the roof of the premises was leaking water and in 1996 plenary proceedings were commenced by the plaintiff. The action in contract was statute barred and it remained to be decided as a preliminary issue if an action in tort was possible. The plaintiff claimed that the period of limitation in the case should run from 1991 when there was a clear manifestation of the damage. On behalf of the defendants it was submitted that the normal rules relating to the accrual of causes of action regarding damage to property applied. Geoghegan J held that the discoverability test was not relevant in relation to the commencement period applicable. If the roof had been designed defectively as contended by the plaintiff this would have been clear upon inspection by experts at any stage after the roof's completion. The action was therefore statute barred. A balance had to be achieved between the right of a citizen to litigate against the right of a defendant not to have to defend a stale claim. In relation to a possible claim for economic loss, the accrual of the cause of action would also have arisen as soon as the roof was constructed if not even sooner.

Citations:

PIRELLI V OSCAR FABER & PARTNERS 1983 2 AC 1

HEGARTY V O'LOUGHRAN 1990 1 IR 148

MORGAN V PARK DEVELOPMENTS 1983 ILRM 156

STATUTE OF LIMITATIONS 1957 S71

STATUTE OF LIMITATIONS 1957 S48

TUOHY V COURTNEY 1994 3 IR 1

STATUTE OF LIMITATIONS (AMDT) ACT 1991

D & F ESTATES LTD V CHURCH COMMISSIONERS FOR ENGLAND 1988 2 AER 992

MURPHY V BRENTWOOD DISTRICT COUNCIL 1990 2 AER 908

HEDLEY BYRNE & CO LTD V HELLER & PARTNERS LTD 1963 2 AER 575

WARD V MCMASTER 1988 IR 337 1989 ILRM 400

ANNS V MERTON LONDON BOROUGH 1977 2 AER 492

DOYLE V C & D PROVIDERS (WEXFORD) 1994 3 IR 57

1 Mr. Justice Geoghegan delivered on the 4th day of May, 1999

2 This is a preliminary issue directed to be tried by Order of Mr. Justice Johnson of 2nd March, 1998. The issue is whether the action against the First to Sixth named Defendants ("RK&D"), who practised together as a firm of Architects and against the Seventh named Defendant which carries on an engineering practice is statute barred. In the month of December 1979 the Plaintiff retained the services of the said Architects for the purpose of designing and supervising the construction of the Irish Equine Centre at Johnstown, Co. Kildare and retained the Seventh named Defendant Ove Arup as structural engineers for the purposes of designing and supervising the engineering aspects of the construction of the premises. Although separate listed complains are contained in the Statement of Claim and in an elaborate reply to a Notice for Particulars, essentially the Plaintiff is suing these Defendants for damages by reason of an alleged faulty design of the roof. The action has been framed in contract and in tort. The breaches of contract which are alleged are also claimed to be headings of negligence for which these Defendants are liable.

3 The following facts are not seriously disputed. At any rate they are the facts alleged by the Plaintiff and I must therefore treat them as the facts for the purposes of considering whether the action is statute barred or not.

4 a (A) In December 1979 the Foundation retained RK&D to act as Architects for the purposes of designing and supervising the construction of the Centre.

5 b (B) In 1982 RK&D and Ove Arup prepared "plans specifications and bills of quantity" under which contractors agreed to carry out the work of construction of the said premises. RK&D and Ove Arup purported to supervise the carrying out of such work.

6 c (C) RK&D issued a certificate of practical completion in March 1986 in respect of the Centre.

7 d (D) A final certificate issued on 18th November, 1987.

8 e (E) There was an ingress of water through the ceiling of the Centre in late 1991.

9 f (F) The Foundation's proceedings against RK&D and Ove Arup were commenced by plenary summons issued on 4th January, 1996.

10 It is obvious from those dates that the action in contract is clearly statute barred. It is trite law that the limitation period commences on the date of the breach of contract and not on the date when the damage is caused. In other words, a breach of contract per se gives rise to a cause of action. The only question which I have to consider therefore is whether the action in so far as it is founded on tort i.e. the tort of negligence is likewise statute barred. The contention of the Plaintiff is that there was no damage or at least no damage manifested itself until the ingress of water through the ceiling of the Centre in late 1991. If the period commenced on that date then quite obviously, the action in so far as it is founded on tort is not statute barred.

11 It is common case that discoverability, as such, cannot be relevant in considering what is the appropriate commencement date in respect of the limitation period. On this point at least the view of the House of Lords taken in Pirelli -v- Oscar Faber&Partners, 1983 2 A.C. 1 represents Irish law also. This is quite clear from the decision of the Supreme Court in Hegarty -v- O'Lougbran, 1990 1I.R. 148 even though that particular case dealt with personal injuries and not damage to a building. The reasoning contained in the several judgments in Hegarty -v- O'Loughran and the criticism voiced of the decision of Carroll J. in Morgan -v- Park Developments, 1983 I.L.R.M. 156 indicates beyond the doubt that the Supreme Court rejects the discoverability test no matter what the nature of the damage claimed is At p.155 Finlay C.J. cites Section 71 of the Statute of Limitations, 1957 which reads as follows:-

"(1) Where, in the case of an action for which a period of limitation is fixed by this Act, either:-"

(a) The action is based on the fraud of the defendant or his agent or of any person through whom he claims or his agent; or

(b) the right of action is concealed by the fraud of any such person, the period of limitation shall not begin to run until the plaintiff has discovered the fraud or could with reasonable diligence have discovered it."

12 The former Chief Justice then observes as follows:-

"If the true meaning of the date at which the cause of action accrued...