Kennedy v O'Sullivan and Others

• Jurisdiction: Ireland
• Judge: Kearns P.
• Judgment Date: 13 July 2012
• Neutral Citation: [2012] IEHC 294
• Court: High Court
• Date: 13 July 2012

[2012] IEHC 294

THE HIGH COURT

[No. 7770P/2008]

Kennedy v O'Sullivan & Whelan t/a John S O'Sullivan Solicitors & Ors

BETWEEN

ORLA KENNEDY

PLAINTIFF

AND

JOHN O'SULLIVAN AND DOROTHY WHELAN PRACTISING UNDER THE STYLE AND TITLE OF JOHN S. O'SULLIVAN SOLICITORS

DEFENDANTS

AND

ALSASTAIR JACKSON, KEYGO PROPERTIES LIMITED AND CONOR O'TOOLE, GRAINNE V. WHITE, FEARGAL WHITE AND JOYCE M. COAKLEY PRACTISING UNDER THE STYLE AND TITLE OF COUGHLAN WHITE & PARTNERS SOLICITORS (A FIRM)

THIRD PARTIES

STATUTE OF LIMITATIONS ACT 1957 S11(2)

STATUTE OF LIMITATIONS (AMDT) ACT 1991 S3(2)

RSC O.16 r1(3)

CIVIL LIABILITY ACT 1961 S27(1)

STATUTE OF LIMITATIONS ACT 1957 S11(2)(A)

GALLAGHER v ACC BANK PLC (T/A ACC BANK) UNREP SUPREME 7.6.2012 2012 IESC 35

KELLY v BOARD OF GOVERNORS OF ST LAURENCES HOSPITAL 1990 2 IR 31 1989 ILRM 877 1989/6/1838

STAUNTON v TOYOTA (IRELAND) LTD UNREP COSTELLO 15.4.1988 1988/10/3033

CIVIL LIABILITY ACT 1961 S31

BUCKLEY v LYNCH 1978 IR 6

NEVILLE v MARGAN 1988 IR 734

MOLONEY v LIDDY 2010 4 IR 653

GILMORE v WINDLE 1967 IR 323

MCELWAINE v HUGHES UNREP BARRON 30.4.1997 1998/25/9740

CIVIL LIABILITY ACT 1961 S27(1)(B)

PRACTICE & PROCEDURE

Third parties

Claim for contribution - Delay - Time of service of third party notice - Third party notice served more than six years after plaintiff's accrual of cause of action - Third party notice served before liability of defendants established - Delay between service of statement of claim and service of third party notice - Whether third party proceedings statute barred - Whether third party notice issued and served as soon as reasonably possible - Staunton v Toyota (Ireland) Ltd (Unrep, Costello J, 15/4/1988) Buckley v Lynch [1978] IR 6 and Moloney v Liddy [2010] IEHC 218, [2010] 4 IR 653 followed; Board of Governors of St. Laurence's Hospital v Staunton [1990] 2 IR 31, Neville v Margan Ltd [1988] IR 734, Gilmore v Windle [1967] IR 323 and McElwaine v Hughes (Unrep, Barron J, 30/4/1997) considered - Rules of the Superior Courts 1986 (SI 15/1986), O 16, r 1(3) - Statute of Limitations 1957 (No 6), s 11(2) - Civil Liability Act 1961 (No 41), ss 27(1) and 31 - Motions refused (2008/7770P - Kearns P - 13/7/20120 [ 2012] IEHC 294

Kennedy v O'Sullivan

Facts: The plaintiff purchased property for use as a permanent residence in 2003 and claimed that the defendants had failed to inform her that the planning permission granted only permitted use of the property as a holiday apartment. The defendants had delivered a third-party statement of claim alleging that the applicants were responsible. The applicants sought an order striking out the defendants third party claim on the grounds that the proceedings were statute-barred and that there had been inordinate and inexcusable delay in issuing the proceedings. The action between the plaintiff and defendants was settled on 24 January 2012. The Court considered the obligation to serve a third party notice as soon as reasonably possible pursuant to s. 27 Civil Liability Act 1961, the applicable time limit, the Statute of Limitations 1957 and the relevant date for the purposes of the application.

Held by Kearns P. that the third party proceedings were not statute barred. The third-party notice was issued promptly. The defendants were not guilty of any delay and the reliefs sought would be refused. The relevant date for the purposes of the application was 24 January 2012, when the action was settled. The third party proceedings were issued within two years.

1 JUDGMENT of Kearns P. delivered on 13th day of July, 2012.

2 These proceedings arise from a claim by the plaintiff for breach of contract and professional negligence against the defendants as solicitors arising out of a conveyance of certain property in Carlow. By motion issued on the 2 ^nd March, 2012, the third, fourth, fifth and sixth-named third parties (hereafter together referred to as 'the applicants') seek (a) an order striking out the defendants' third party claim against them on the grounds that the third party proceedings are statute barred, and/or (b) an order dismissing and/or setting aside the third party notice by reason of inordinate and inexcusable delay by the defendants in issuing the proceedings, or in the alternative (c) an order setting the matter down for hearing of a preliminary issue as to whether the defendants' claim herein is statute barred and/or whether the third party notice should be struck out for delay in issuing same.

BACKGROUND FACTS

3 The first and second-named third parties are the vendor and developer, respectively, of a residential development known as Dolmen Mews in Carlow. The plaintiff purchased a unit in this development by contract of sale dated the 23 ^rd October, 2003 from the first named third party for a purchase price of €20,000. A building agreement of the same date was agreed between the plaintiff and the second-named third party for a contract price of €135,000. The defendants acted as solicitors for the plaintiff in relation to the purchase and the applicants acted as solicitors for the first and second-named third parties.

4 The essence of the plaintiff's claim is that she intended to use the property as her permanent residence, that the defendants were aware of this fact, and that the defendants failed to inform her that the planning permission granted in relation to the property only permitted the use of the property as a holiday apartment and led her to believe that the property was not subject to any restrictions in relation to the use thereof as a permanent dwelling house.

5 The plaintiff issued proceedings by way of plenary summons on the 22 ^nd September, 2008. The defendants delivered a defence on the 25 ^th March, 2010. In this defence, the defendants deny the plaintiff's claim and, in the alternative, claim that they relied upon a number of representations made by the applicants in relation to the property. The defendants allege in their defence that, if the plaintiff suffered the alleged loss and damage, which they deny, that the same was caused or contributed to by the applicants. The defendants issued a motion which was heard on the 26 ^th April, 2010 by this Honourable Court, wherein they obtained an order for liberty to issue and serve a third party notice on the applicants. The order was served on the applicants on the 13 ^th May, 2010.

6 The defendants delivered a third party statement of claim on the 23 ^rd November, 2011, in which they claim inter alia that the applicants are responsible for any loss or damage caused to the plaintiff, which the defendants deny. The defendants claim in the said statement of claim that, prior to the execution by the plaintiff of the contract for sale and the building agreement, the first and/or second-named third parties, and/or the applicants represented to the defendants on behalf of the plaintiff, that the property was suitable and authorised for ordinary residential use. In this regard, the defendants refer to conditions in the contract of sale, the building agreement, a draft land registry transfer, a draft indenture of lease and replies to objections and requisitions on title.

7 An appearance has been entered to the third party proceedings and the applicants delivered a full defence to the said proceedings on the 8 ^th March, 2012. In the said defence, the applicants put forward a preliminary objection to the within proceedings on the ground that the defendants' claim against them is statute barred. It is pleaded, further or in the alternative, that the defendants have been guilty of laches and/or inexcusable and unjustified delay in issuing the third party proceedings and that the defendants are not entitled to maintain the said claim and are not entitled to the relief sought.

8 The action between the plaintiff and the defendants was settled on the 24 ^th January, 2012.

9 There is one other factual matter that should be referred to at this point. The Dolmen Mews development is the subject-matter of a number of proceedings in which similar complaints are made in relation to planning permission. Ms. Tara Cosgrove, solicitor for the defendants herein, averred in her affidavit sworn on the 24 ^th April, 2012 that there are 10 other cases, besides the instant proceedings. The defendants herein are also defendants in two of those cases, where they acted as solicitors for purchasers and the applicants are defendants in all of them, where they acted as solicitors for the vendor and developer.

10 Ms. Cosgrove further avers in her affidavit that it was hoped by the defendants in the above-mentioned cases that the underlying complaints might be successfully resolved by obtaining a grant of retention permission confirming that the units in question may be used for normal residential purposes. She states that there have been ongoing attempts to regularise the planning status of the development and that the applicants have at all times been aware of and intimately involved in these attempts. Ms. Cosgrove avers, and it is accepted by the applicants, that there was an informal "cease fire" between the plaintiff in the other proceedings and the defendants in those cases, pending determination of an application for retention permission, which was ultimately refused in October 2011. Prior to the refusal of the retention permission, the plaintiff herein had applied for a hearing date, on the 5 ^th October, 2011 and this application was adjourned pending the outcome of the planning application. On the 28 ^th October, 2011 the matter again came before this Court and a trial date was fixed for 24 ^th January, 2012. The defendants argue that it was in response to these developments that they reactivated the third party proceedings, which had been allowed to lie dormant in conjunction with the informal...