McBain v McDonald

• Jurisdiction: Ireland
• Judge: Mr. Justice Frederick Morris
• Judgment Date: 21 January 1991
• Neutral Citation: 1991 WJSC-HC 912
• Docket Number: No. 3104P/1985,[1985 No. 3104P]
• Court: High Court
• Date: 21 January 1991

1991 WJSC-HC 912

THE HIGH COURT

No. 3104P/1985

MCDONALD v. MCBAIN

BETWEEN

AINE McDONALD

PLAINTIFF

v.

ANDREW GILLIES McBAIN

DEFENDANT

Citations:

STATUTE OF LIMITATIONS 1957 S11

KING V VICTOR PARSONS & CO 1973 1 WLR 29

BEAMAN V ARTS LTD 1949 1 KB 550

HEGARTY V O'LOUGHRAN 1990 ILRM 403

STATUTE OF LIMITATIONS 1957 S11(2)(A)

Synopsis:

LIMITATION OF ACTIONS

Time limit

Extension - Ground - Fraud - Cause of action - Knowledge - Acquisition - Point of time - Trespass - Concealment by wrongdoer - Failure of trespasser to disclose wrongdoing - Statute of Limitations, 1957, ss. 11, 71 - (1985/3104 P - Morris J. - 21/1/91) - [1991] 1 I.R. 284 - [1991] ILRM 764

|McDonald v. McBain|

WORDS AND PHRASES

"Concealed by the fraud"

Action - Institution - Time limit - Expiration - Extension - Cause of action - Concealment by wrongdoer - Failure of trespasser to disclose wrongdoing - (1985/3104 P - Morris J. - 21/1/91) - [1991] 1 I.R. 284 - [1991] ILRM 764

|McDonald v. McBain|

1 Judgment of Mr. Justice Frederick Morrisdelivered the 21st day of January 1991

2 At the conclusion of the Plaintiff's evidence Counsel for the Defendant applied to me for a non-suit on the grounds that the Plaintiff is precluded from proceeding with this Action as the Proceedings were not instituted within the time limit specified by Section 11 of the Statute of Limitations 1957. The limitation period in the circumstances of this case is six years and the following are the relevant dates.

3 The premises, the subject matter of these proceedings, were burnt on the 29th March 1974. The limitation period would, accordingly, have expired on the 29th March 1980. The Action was commenced by way of Plenary Summons issued on the 10th April 1985. The Plaintiff claims damages for the destruction of the house and contents, basing her claim on the allegations of breach of contract, trespass and negligence on the part of the Defendant.

4 It would appear in the first instance that the claim is Statute barred. However, Counsel on behalf of thePlaintiff contends that the claim based on trespass is not barred by virtue of Section 71 of the Statute of Limitations 1957 because, he says, the Plaintiff's right of action was concealed by the fraud on the part of the Defendant and, accordingly, the limitation period should not run until the Plaintiff discovered the fraud or could, with reasonable diligence, have done so.

5 A further argument is then addressed to me on the basis that the claim based on trespass could only arise when the Plaintiff had knowledge of the fact that the Defendant was the person who actually set fire to the premises and since she only learnt this when the Defendant admitted the fact to her on the 22nd October 1983 that it was only at that stage that the limitation period commenced to run.

6 Counsel for the Plaintiff has argued that the Defendant's failure to disclose that he was the perpetrator of the wrong can, in the circumstances, amount to fraud within the meaning of the Statute of Limitations 1957. In support of this argument he cites King v. Victor Parsons & Co. 1973 1 WLR 29, 33/4 and he relies on that part of Lord Denning's Judgment where he says:

"In order to show that he concealed the right of action "by fraud" it is not necessary to show that he took active steps to conceal his wrongdoing or breach of contract. It is sufficient that he knowingly committed it and did not tell the owner anything about it. He did the wrong or committed the breach secretly. By saying nothing he kept it secret. He conceals the right of action. He conceals it by "fraud" as those words have been interpreted in thecases. To this word "knowingly" there must be added"recklessly"."

7 Counsel argues that in the present case the Defendant's failure to come forward and acknowledge that he set fire to the premises constituted fraud within that definition.

8 He also relies on Beaman v. A.R.T.S. Limited 1949 I K.B. 550and seeks support from the Judgment of the Chief Justice in Hegartyv. O'Loughran 1990 ILRM 403 where he says:-

"I would therefore conclude that the proper construction of this sub-section is that contended for by the defendant and that is that the time limit commenced to run at the time when a provable personal injury, capable of attracting compensation, occurred...