Leonard v Motor Insurers Bureau of Ireland

• Jurisdiction: Ireland
• Judge: Mr. Justice Feeney
• Judgment Date: 11 April 2011
• Neutral Citation: [2011] IEHC 550
• Docket Number: [No. 210P/2008]
• Court: High Court
• Date: 11 April 2011

[2011] IEHC 550

THE HIGH COURT

[No. 210P/2008]

Leonard v Motor Insurance Bureau of Ireland

MR DERMOT LEONARD

PLAINTIFF

MOTOR INSURANCE BUREAU OF IRELAND

DEFENDANT

CIVIL LIABILITY ACT 1961 S9(1)

CIVIL LIABILITY ACT 1961 S9(2)

MOTOR INSURERS BUREAU OF IRELAND AGREEMENT 2004 CLAUSE 2.3

MOTOR INSURERS BUREAU OF IRELAND AGREEMENT 2004 CLAUSE 2

MOTOR INSURERS BUREAU OF IRELAND AGREEMENT 2004 CLAUSE 2.2

RSC O.18 r1

CIVIL LIABILITY ACT 1961 S9(2)(B)

FINNEGAN v RICHARDS & MADIGAN (ATTORNEYS OF ALLEN) 2007 3 IR 671 2007 2 ILRM 487 2007/23/4783 2007 IEHC 134

GAFFNEY v FAUGHNAN 2006 1 ILRM 481 2005/27/5571 2005 IEHC 367

CIVIL LIABILITY ACT 1961 S27(4)

Tort law - Personal Injury - Practice and procedure - Statute barred - Uninsured driver - Consolidation of proceedings.

Facts: The plaintiff had received serious injuries in an accident in 2005 whilst a pillion passenger on a motor cycle driven by the deceased who had not been insured. An order was sought directing the trial of the preliminary issue as to whether the proceedings were statute barred, which had been instituted two years later. A further order was sought consolidating the two sets of proceedings

Held by Feeney J. that the proceedings were not maintainable. The Court had no jurisdiction. The defendant was entitled to the relief sought. The proceedings were issued two years after the date of the death of the deceased but they were done so against a named defendant who was not the personal representative, rather the mother of the deceased. The MIB was entitled to proceed on the basis that the proceedings were statute barred. An Order would be made determining that the proceedings against the MIB would be struck out as against the MIBI.

Mr. Justice Feeney

1 I have had the opportunity of considering the authorities and the submissions over the last number of days and over the weekend and as I indicated last week I had hoped to be in a position to give judgement in relation to the matter and I am now in a position to do so. It is in relation to the two separate cases, Leonard v Leonard and Leonard v the MIBI. The background which gives rise to this case is that the Plaintiff is now a 39 year old chef who resides in Enniskillen in County Fermanagh. On the 13th November 2005 he was involved in a road traffic accident at Castleblaney in County Monaghan. On that occasion Dermot Leonard was participating in a charity event organised in support of a local motor cyclist who had been fatally injured in an accident and the Plaintiff and his twin brother were participating in that event. The Plaintiff was a pillion passenger on a motor cycle owned and driven by his twin brother Paul. The motor cycle went on to the wrong side of the road and collided with an oncoming vehicle which resulted in the death of Paul Leonard and in the Plaintiff, Dermot Leonard, receiving serious personal injuries. A Personal Injury Summons issued against the defendant, Mary Jane Leonard. She was named in that summons as the personal representative of the late Paul Leonard when the summons was issued on the 8th November 2007. The late Paul Leonard was not insured to drive the motor cycle involved in the fatal collision and accordingly a Personal Injury Summons also issued against the Motor Insurance Bureau of Ireland. That summons issuing on the 11th January 2008. An appearance was entered to both those sets of proceedings by solicitors for the Motor Insurance Bureau of Ireland. Sorry, an appearance was entered to the Motor Insurance Bureau of Ireland's proceedings by solicitors on the 27th February 2008.

2 Prior to the summons issuing against the MIB, that body was put on notice by way of a claim notification form dated the 7th October 2007. By that date the Plaintiff's solicitors were already in correspondence with the Personal Injuries Assessment Board. Authorisations issued from the Personal Injuries Assessment Board in the proceedings against Mary Jane Leonard on the 22nd October 2007 and the proceedings against the Motor Insurance Bureau of Ireland on the 28th November 2007. The proceedings which were being taken against Mary Jane Leonard were deemed urgent as it was nearly two years since the accident and since Paul Leonard died. Section 9.1 of the Civil Liability Act defines the relevant period for claiming against the Estate of a Deceased as two years. On the 22nd October 2007 Dermot Leonard issued proceedings against Mary Jane Leonard, High Court proceedings 2007, number 831 OP. The defendant in those proceedings was identified as the personal representative of Paul Leonard. She was not in fact the personal representative she was so identified and why she was so identified is not disclosed in the Affidavits. The position is that a defence was delivered on the 18th January 2010 by the MIB and in that defence they raised an objection stating that the proceedings were in respect of a cause of action that survived against the Estate of Paul Leonard and claimed as they were not commenced within two years they were statute barred having regard to the provisions of Section 9, subsection 2 of the Civil Liability Act 1961. The Plaintiff claimed in the summons that Mary Leonard was the personal representative and that was denied. Nothing occurred until Mary Leonard took out letters of administration on the 3rd November 2010 and the following day the Plaintiff's solicitors swore that Mary Leonard was both the Mother and personal representative of the deceased but provided no explanation as to the circumstances of the application the previous day.

3 There are two motions before the Court. In one of those motions which was the first issued in time the Motor Insurance Bureau of Ireland seeks an Order directing a trial of the preliminary issue and in fact the trial of the preliminary issue as to whether the proceedings are statute barred and in addition seeks an Order determining whether the proceedings are maintainable having regard to the provisions of clause 2, sub paragraph 3 of the MIB agreement of 2004.

4 The other motion which is before the Court is brought by the Plaintiff and the Plaintiff seeks Orders consolidating the two sets of proceedings that have issued and for an Order permitting the amendment of the Personal Injury Summons to reflect the joinder and consolidation of proceedings. To facilitate that application a draft of the proposed joined and consolidated proceedings is exhibited before the Court. As matters stand the defendant relies on Section - sorry, in relation to the Plaintiff's motion to consolidate the defendant relies on paragraph 2 of the 2004 agreement in the Motor Insurance agreement of that date which deals with the - Section 2 or paragraph 2 deals with the enforcement of a judgement and enforcement of a claim against the MIB but is not identified as is the case in paragraph 3 with condition precedence. Clause 2.2 of the MIB agreement states that the MIB must be a co-defendant in any proceedings against the owner and user of the vehicle giving rise to a claim except where the owner and user of the vehicle remain unidentified or untraced. That is not the case here. The owner and user of the vehicle was identified and traced. There is because of the wording in Clause 2 there is a basis for the MIB's contention that the Estate of Paul Leonard and the MIB should be named as co-defendants. The agreement only refers to the fact that the Plaintiff must seek enforcement against the MIB as a co-defendant. The wording says enforcement. It is not a condition precedent as per paragraph 3. Here separate proceedings issued and an application is brought joining those proceedings in consolidating them. That application is within the jurisdiction of the Court. It is not prohibited in any way and the...