Kinlon v Córas Iompair Éireann

• Jurisdiction: Ireland
• Court: High Court
• Judge: O'Neill J.
• Judgment Date: 18 March 2005
• Neutral Citation: [2005] IEHC 95
• Docket Number: [2000 No. 8724P]
• Date: 18 March 2005

KINLON v CORAS IOMPAIR EIREANN (CIE)

BETWEEN

LYNN KINLON

PLAINTIFF

AND

C ÓRAS IOMPAIR ÉIREANN

DEFENDANT

[2005] IEHC 95

[No: 8724P/2000]

THE HIGH COURT

PRACTICE AND PROCEDURE

parties

Joinder of party - Substitution of defendant - Bona fide mistake - Cause of action against proposed joined party being statute barred - Whether defendant should be substituted - Whether statute matter of defence not arising until pleaded - Southern Mineral Oil Limited (in liquidation) v Cooney (No 2) [1999] 1 IR 237; Allied Irish Coal Supplies Ltd v Powell Duffryn International Fuels Ltd [1998] 2 IR 519; and O'Reilly v Granville [1971] IR 90 considered - Statute of Limitations 1957 (No 6) - Rules of the Superior Courts 1986 (SI 15/1986), O 15, rr 2 and 13, O 19, r 15 - Defendant substituted (2000/8724P - O'Neill - 18/3/2005) [2005] IEHC 95

KINLON v CORAS IOMPAIR EIREANN (CIE)

the plaintiff was injured due to a collision with a bus in 1997. Her solicitors issued proceedings in 2000 seeking damages against the defendant. The defendant subsequently wrote to her solicitors informing them that they were the wrong party and that Bus Átha Cliath was the correct party who should be substituted for the defendant in the proceedings. The plaintiff eventually applied to the Master of the High Court for an order substituting Bus Átha Cliath for the defendant due to a bona fide mistake as to the description of the defendant, which application was dismissed. The plaintiff appealed that judgment to the High Court.

Held by O'Neill J in making an order joining Bus Átha Cliath as a defendant to the action that there was no established rule of practice to the effect that where a defence under the Statute of Limitations may be available to a proposed defendant that such proposed defendant should not be joined under Order 15(13) of the Rules of the Superior Courts. That the joinder of an additional defendant did not have the effect of deeming that defendant to have been a party to the action from the date of issue of the original writ and an added party could not considered to have been a party to the proceedings earlier than the order giving leave to add.

A defence under the Statute of Limitations had in every case to be pleaded and a court should not assume that a proposed defendant sought to be joined would avail of a defence under the Statute of Limitations. Moreover, the court in an application under Order 15(13) to join an additional defendant should not attempt to determine in advance that a potential defence under the Statute of Limitations would be successful.

Reporter: P.C.

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

RULES OF THE SUPREME COURT O.20 r5(3)

RSC O.15 r2

RSC O.15 r13

RULES OF THE SUPREME COURT O.20 r5(2)

RULES OF THE SUPREME COURT 0.20 r5(2)(3)

STATUTE OF LIMITATIONS ACT 1957

ALLIED IRISH COAL SUPPLIES LTD v POWELL DUFFRYN INTERNATIONAL FUELS LTD 1998 2 IR 529 1998 2 ILRM 61

O'REILLY v GRANVILLE 1971 IR 90

MABRO v EAGLE STAR & BRITISH DOMINIONS INSURANCE COMPANY 1932 1 KB 485

LIFF v PEASLEY & ORS 1980 1 WLR 781

KETTEMAN v HANSEL PROPERTIES LTD 1987 AC 189

RSC O.19 r15

1 Judgment O'Neill J. delivered the 18th day of March, 2005.

2 In this Notice of Motion the relief sought by the plaintiff is as follows:

3 1. An order setting aside the Order of the Master of this Honourable Court made on 5th day of February, 2004 and perfected on the 10th day of March, 2004, which said order refused to substitute Bus Átha Cliath for Córas Iompair Eireann.

4 2. An Order substituting Bus Átha Cliath for Córas Iompair Eireann in the above entitled proceedings.

5 3. An order extending the Statute of Limitations period.

6 4. An order extending the time for an appeal of the Order of the Master of this Honourable Court made on 5th day of February, 2004 and perfected on 10th March, 2004.

7 When this matter came before me on 7th March, 2005, I initially heard the application for an extension of time for an appeal from the Order of the Master and having heard submissions from counsel for the plaintiff and Mr. O'Herlihy for the defendant and having considered the affidavits and exhibits I allowed an extension of time as sought. I then proceeded with the application for the other reliefs set out above.

BACKGROUND

8 The plaintiff in this case, it is alleged was injured in a road traffic accident which took place on 1st August, 1997, at Arran Quay in the City of Dublin when it is alleged she was struck by a bus while riding her bicycle.

9 Arising out of this the plaintiff sought to make a claim for negligence in respect of personal injuries suffered in this accident. The plaintiff instructed a firm of Accident Claims Consultants known as Aaron and Carroll. This firm wrote a letter dated 2nd September, 1997 in the following terms:

"Córas Iompair Eireann,"

10 Dublin Bus Claims Dept.,

11 Bridgewater House,

12 Islandbridge,

13 Dublin 8.

14 2 September, 1997

15 Your Ref:

16 Our Ref: 1897LK

17 RE: Our Client : Lynne Kinlon

18 Accident : 1 August 1997 at 2.30 pm

19 Bus Reg.No.: 96 D 313

20 Dear Sirs,

21 We act on behalf of Lynne Kinlon, who was involved in an accident on the above said date along the Liffey Quays travelling from Phoenix Park when she was a pedal cyclist.

22 As a result of this accident, out client suffered severe personal injuries, loss and damage and it appears from our instructions that she is entitled to claim for damages against you arising out of the negligence/nuisance on the part of you, your servants or agents in or about the care, control and driving of Bus Registration Number 96 D 313.

23 In those circumstances we hereby intimate a claim on behalf of our client.

24 We await hearing from you.

25 Yours faithfully,

26 Aaran and Carroll & Co."

27 A letter of the 16th September, 1997 replied to this letter and the entire text of this letter is as follows:

"Córas Iompair Éireann"

28 Arran & Carroll, Group Investigations Dept.

29 564 South Circular Road, Bridgewater Business Centre,

30 Rialto, Islandbridge,

31 Dublin 8. Dublin 8.

32 Fax: 703 1554

33 WITHOUT PREJUDICE Tel: 703 1547

34 W 197/4383/001/LD Refer Enquiries to:

35 16th September 1997 ALICE CLARKE

Your Client: Lynne Kinlon

36 Accident: 1st August, 1997

37 Dear Sirs,

38 I acknowledge receipt of your letter of the 2nd September, 1997 and note that you act on behalf of the abovenamed in her/his claim for damages arising herein.

39 The full circumstances of this accident are being investigated and when I have completed my enquiries I shall reply to you conclusively.

40 To enable me to complete my investigations please advise:-

41 1) The time of the accident?

42 2) The direction and registration number of our bus?

43 3) The negligence alleged against Bus Atha Cliath/Dublin Bus?

44 4) Did your client report the accident to the Driver/Conductor, if so can your client give a physical description of the Bus Driver/Conductor?

45 5) Can we have sight of bus ticket?

46 6) Where exactly did this accident occur?

47 7) Advise names and addresses of any witnesses to the accident?

48 8) Advise the name and address of your client's Doctor so that I can arrange a joint medical examination under the usual terms?

49 9) Please forward estimate for repairs to your client's vehicle?

50 I look forward to hearing from you.

51 Yours faithfully,

52 Denise Gibbons

53 For Liability Manager/DG."

54 Towards the end of July in the year 2000 the plaintiff was informed by this firm of accident consultants that they were unable to negotiate a settlement of her claim and as they were not solicitors they could not issue proceedings on her behalf and as the expiry of the statute of limitations period was approaching, that he was advised to go to a solicitor to initiate proceedings. She instructed Robert Walsh a solicitor to act on her behalf and a Plenary Summons was issued on 26th July, 2000. This Plenary Summons named Córas Iompair Éireann as the defendant. Prior to the issuance of this summons Mr. Walsh had been furnished with some papers which included the letter of 16th September, 1997, quoted above.

55 As a result of a reliance upon this letter Mr. Walsh deposes on affidavit that "a bona fide mistake in issuing proceedings against Córas Iompair Éireann, was made, not withstanding a reference to Bus Átha Cliath/Dublin Bus in one of the unticked paragraphs in that letter."

56 The Plenary Summons was served by way of a letter dated 5th October, 2000 which was addressed to the Secretary of Bus Átha Cliath at its office at O'Connell St. Dublin 1.

57 This letter is in the following terms:

"Re: Lynne Kinlon v. Bus Atha Cliath - Dublin Bus.

Dear Madam,

We enclose herewith by way of service Plenary Summons.

We would advise, you forward this immediately to your solicitor.

Yours faithfully,

Robert Walsh & Company."

58 In paragraph 7 of his affidavit Gerard O'Herlihy the solicitor for the defendants deposes that this letter of the 5th October, 2000, was not received until the 17th October, 2000.

59 The first letter from the solicitors for the defendants dated 25th October, 2000, is in the following terms:

" Re: The High Court Lynne Kinlon v. Córas Iompair Éireann

Dear Sirs,

The above entitled proceedings have been passed to us for our attention in respect of this matter.

We note that proceedings are being issued against Córas Iompair Eireann. We would ask you to please note that these proceedings were issued as against the incorrect defendant. The appropriate defendant in this matter is Bus Átha Cliath/Dublin Bus having...