Kellegher & Kellegher v Bradley and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 18 December 2006
• Neutral Citation: [2006] IEHC 406
• Docket Number: No. 10788 P/2003
• Court: High Court
• Date: 18 December 2006

[2006] IEHC 406

THE HIGH COURT

No. 10788 P/2003

KELLEGHER v BRADLEY & LANIGAN T/A MALCOLMSON & LAW SOLICITORS

BETWEEN/

GERALD KELLEGHER AND ANNE KELLEGHER

PLAINTIFFS

AND

RAYMOND BRADLEY AND FRANK LANIGAN TRADING UNDER THE STYLE AND TITLE OF MALCOLMSON AND LAW SOLICITORS

DEFENDANTS

RSC O.8 r2

STATUTE OF LIMITATIONS 1957

ALLERGAN PHARMACEUTICALS (IRELAND) LTD v NOEL DEANE ROOFING & CLADDING LTD & ORS UNREP O'SULLIVAN 6.7.2006 2006/2/371 2006 IEHC 215

BAULK v IRISH NATIONAL INSURANCE CO LTD 1969 IR 66

PRIOR v INDEPENDENT TELEVISION NEWS LTD 1993 1 IR 339

SULLIVAN v CHURCH OF IRELAND UNREP LAFFOY 7.5.1996 1998/31/12455

ROCHE v CLAYTON 1998 1 IR 596

MOYNIHAN v DAIRYGOLD CO-OPERATIVE SOCIETY LTD UNREP PEART 13.10.2006 2006/41/8744 2006 IEHC 318

COOKE v CRONIN & NEARY UNREP SUPREME 14.7.1999 1999/5/1117

CONNOLLY v CASEY & FITZGIBBON UNREP KELLY 12.6.1998 1998/14/4864

PRACTICE AND PROCEDURE:

Plenary summons

Renewal - Set aside - Application to set aside renewal of plenary summons - Claim for professional negligence - Whether good and sufficient reason disclosed for renewal of summons - Whether appropriate to issue protective writ in professional negligence proceedings - Roche v Clayton [1998] 1 IR 596 considered - Order granted(2003/10788P - Dunne J - 18/12/2006)[2006] IEHC 406 Kellegher v Bradley

The plaintiffs initially instituted proceedings in March of 2000 against an Engineering company in relation to alleged defects in the construction of their home. Subsequently the plaintiffs retained the defendants as their solicitors, having been dissatisfied with their original solicitors. The plaintiff’s third set of solicitors issued on behalf of the plaintiffs a plenary summons against the defendants herein claiming damages for personal injuries, loss and damage suffered and sustained by the plaintiffs by reason of the negligence and breach of duty and breach of contract on the part of the defendants. Subsequently, the High Court made an ex parte order renewing the plenary summons in the proceedings against the defendants herein for a period of three months and the summons was ultimately served on the defendants within that time period. In these proceedings, the defendants sought an order pursuant to Order 8, rule 2 of the Rules of the Superior Courts setting aside the order of the High Court renewing the plenary summons on the basis that no good reason was disclosed by or on behalf of the plaintiffs for the renewal of the summons. The plaintiffs argued that if the renewal of the summons was set aside then any subsequent proceedings against the defendants would be statute barred and in those circumstances they requested the court not to grant the relief sought.

Held by Dunne J. in allowing the application: That no good reason was proffered to the court for the renewal of the summons and the Supreme Court has made it clear that it is not a good reason to renew a summons simply to prevent a defendant from relying on the Statute of Limitations.

Reporter: L.O’S.

Ms. Justice Dunne

1 This is an application by the defendants herein for an order pursuant to O. 8, r. 2 of the Rules of the Superior Courts setting aside the order of this Honourable Court dated the 14th day of February, 2005, renewing the plenary summons herein for a period of three months from the making of that order.

2 The background to this matter is somewhat complicated. Originally the plaintiffs in these proceedings brought proceedings in respect of the construction of their home at Paulstown, County Kilkenny. They moved into that home in October, 1997. Subsequently it was alleged that there were defects in the house in relation to its construction and as a result of that proceedings were issued on behalf of the plaintiffs against John Hayes, Tallis Engineering Company Limited and others. Those proceedings did not include any claim for damages in respect of personal injuries by reason of the stress caused to the plaintiffs in relation to the difficulties they found themselves in. Those proceedings have been issued in March of 2000.

3 Subsequently, having become dissatisfied with their original solicitors, the plaintiffs retained Malcolmson Law Solicitors in August, 2000. It is clear from correspondence that by October of 2000, Malcolmson Law were aware of an issue in relation to the Statute of Limitations. They wrote a letter to the solicitors who previously acted for the plaintiffs and who were still on record, Messrs. Hughes, Murphy & Company, Solicitors, pointing out that there was a deadline due to expire in October relating to the Statute of Limitations and calling on them to deal with the matter. I should say that it is clear from that letter that, whilst the defendants had at that stage agreed to act for the plaintiffs, they were undoubtedly not on record because the letter went on to request the plaintiffs' file "subject to the usual undertakings to protect your own interests and in addition that notice of change of solicitor should be filed". Subsequently, the following year, Malcolmson Law formally came on record on behalf of the plaintiffs in relation to the matter.

4 It appears that following this no steps were taken by Hughes, Murphy & Company, Solicitors to amend the pleadings or to deliver a statement of claim including a claim for damages for personal injuries prior to the end of October, 2000.

5 Ultimately Malcolmson Law Solicitors came on record in relation to this matter in August, 2001.

6 Dillon Mullins came on record on behalf of the plaintiffs in March of 2003. At that time it appeared that no statement of claim had been served against the defendants in the proceedings. In September of 2003 a plenary summons was issued by Dillon Mullins Solicitors on behalf of the plaintiffs against the defendants herein. In that plenary summons the plaintiffs claimed damages for severe personal injuries, loss and damage suffered and sustained by the plaintiffs by reason of the negligence and breach of contract and breach of duty by the defendants, their servants and agents. That summons is the one which is the subject of these proceedings.

7 Anex parte application was made to renew the summons on foot of an affidavit of Andrew Dillon sworn herein on 4th February, 2005. In that affidavit Andrew Dillon swore as follows:

8 2 "6. I say and believe that at the time after issue of the said plenary summons in September, 2003, I honestly believed that the associated High Court proceedings would progress sufficiently and therefore effectively render the current proceedings against the defendants herein...