Krops v The Irish Forestry Board Ltd

• Jurisdiction: Ireland
• Judge: Keane J.
• Judgment Date: 06 April 1995
• Neutral Citation: 1995 WJSC-HC 2649
• Court: High Court
• Docket Number: 14447p/1990,[1990 No. 14447P]
• Date: 06 April 1995

KROPS v. IRISH FORESTRY BOARD LTD

BETWEEN

GERARDUS KROPS

PLAINTIFF

AND

THE IRISH FORESTRY BOARD LIMITED AND KIERAN RYAN

DEFENDANTS

1995 WJSC-HC 2649

14447p/1990

THE HIGH COURT

Synopsis:

PRACTICE

Pleadings

Amendment - Object - Action - Cause - Addition - Leave to plead new cause of action sought after cause statute barred - New cause of action based on facts already pleaded - Amendment allowed - Rules of the Superior Courts, 1986, order 28, r. 1 - (1990/14447 P - Keane J. - 6/4/95) - [1995] 2 I.R. 113 - [1995] 2 ILRM 290

|Krops v. Irish Forestry Board Ltd.|

Citations:

CIVIL LIABILITY ACT 1961 S48(6)

RSC O.28 r1

WELDON V NEAL 1887 19 QBD 394

RULES OF SUPREME COURT O.20 r5 UK

BRICKFIELD PROPERTIES LTD V NEWTON 1971 3 AER 328

MARSHALL V LONDON PASSENGER TRANSPORT BOARD 1936 3 AER 83

PUBLIC AUTHORITIES PROTECTION ACT 1893

RULES OF SUPREME COURT O.20 r5(5) UK

CHATSWORTH INVESTMENT LTD V CUSSINS (CONTRACTORS) LTD 1969 1 WLR 1

STERMAN V E W & W J MOORE LTD 1970 1 QB 596

BRANIFF V HOLLAND & HANNEN & CUBITTS (SOUTHERN) LTD 1969 3 AER 959

LIMITATION ACT 1980 S35(2) UK

SUPREME COURT PRACTICE 1995 V1 PARA 20/5 - 8/7

RULES OF SUPREME COURT O.20 r5(1) UK

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

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

RULES OF SUPREME COURT O.20 r5(4) UK

1 JUDGMENT delivered the 6th day of April, 1995by Keane J.

2 There is before me an application to amend the Statement of Claim in this action in which the Plaintiff is claiming damages arising out of the death of his wife, Sonja Krops, on the 28th May, 1990.

3 The Plaintiff says that, while he and his wife were driving on the public road near Aughavanna, County Wicklow, a tree on land adjoining the road fell on their car, as a result of which his wife was killed. The Statement of Claim, as originally delivered, averred that the tree had fallen as a result of the negligence, breach of duty and breach of statutory duty of the Defendants, or either of them, in the felling of trees in that area. The present application is to amend paragraph 4 of the Statement of Claim by the insertion of the words " andnuisance" after the words "breach of statutory duty". The amendment is resisted by the first named Defendants on the grounds that it would deprive them of a defence that could otherwise be open to them under the relevant limitation enactment, i.e. s. 48(6) of the CivilLiability Act, 1961, the proceedings not having been instituted within three years of the death of Mrs. Krops. The solicitor for the Plaintiff said in an Affidavit that the necessity to amend the Pleadings so as to include a claim for nuisance only became evident when Senior Counsel recently advised on proofs.

4 It was also pointed out that the second named Defendant had not been given notice of the application nor had his consent been sought to the amendment. However, it was accepted by Mr. Keane, S.C. on behalf of the first named Defendants that no useful purpose would be served by adjourning the motion so as to enable that party to be givennotice.

5 It was accepted that the proposed amendment did not involve the pleading of any new facts. The Plaintiff, in effect, wished to put himself in a position to argue at the hearing that, if the facts as proved failed to establish that the Defendants or either of them had been guilty of negligence and breach of duty, including breach of statutory duty, they did establish that the Defendants, or either of them, had been responsible for a user of the land adjoining the public road which amounted to a nuisance in law.

6 The application was made under Order 28, Rule 1 of the Rules of the Superior Courts which provides that:-

"The Court may, at any stage of the proceedings, allow either party to alter or amend his indorsement or pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties."

7 On behalf of the Plaintiff, Mr. John Finlay, S.C. accepted that the contention of the Defendants that they should not be deprived of a defence under the Statute of Limitations otherwise open to them by an amendment of the Plaintiff's pleadings was supported by the decision of the English Court of Appeal in Weldon -v- Neal, (1887) 19 QBD394. He submitted, however, that the statement of the law in that case should not be applied in its full rigour to a case such as the present where no new facts were alleged and where, in the result, the Defendants would not be prejudiced in any way by the proposed amendment.

8 On behalf of the Defendants, Mr. Keane, S.C. submitted that English authorities subsequent to Weldon -v- Neal demonstrated that the principle laid down in that case was not confined to applications to amend the pleadings based on new allegations of fact. The principle was applicable in every case where the amendment would deprive a defendant of the capacity which he would otherwise have, as a matter of statutory right, to rely on a limitation defence.

9 Reference was also made in the course of argument to certain provisions of the Rules of the Supreme Court, 1965 in England which had altered the law in that jurisdiction. Order 20, Rule 5 provides that:-

10 2 "(1) Subject to Order 15, Rules 6, 7 and 8 and the following provisions of this rule, the Court may at any stage of the proceedings allow the Plaintiff to amend his writ or any party to amend his pleadings on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct.

11 (2) Where an application to the Court for leave to make the amendment mentioned in paragraphs (3), ( 4) or (5) is made after any relevant period of limitation current at the date of the issue of the writ has expired, the Court may nevertheless grant such leave in the circumstances mentioned in that paragraph, if it thinks just to doso......."

12 3 "(5) An amendment may be allowed under paragraph (2), notwithstanding that the effect of the amendment would be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment."

13 This amendment was clearly intended to enable the courts in England to grant an amendment of the pleadings in circumstances such as the present. However, it was argued on behalf of the Defendants that, since no similar amendment had been effected in the Rules of the Superior Courts when they were made by the rule making authority in 1982, the law in this jurisdiction remained the same as the law had been in both jurisdictions prior to 1965.

14 In Weldon -v- Neal, the plaintiff had commenced an action for slander but was nonsuited at the trial, because the alleged slander was not actionable without special damage, the plaintiff had not alleged...