Molloy v Reid

• Jurisdiction: Ireland
• Judge: Mr Justice Ryan
• Judgment Date: 18 January 2013
• Neutral Citation: [2013] IEHC 77
• Court: High Court
• Date: 18 January 2013

[2013] IEHC 77

THE HIGH COURT

[No. 1729 P./2006]

Molloy v Reid

BETWEEN

JOHN MOLLOY

PLAINTIFF

AND

ALBERT REID

DEFENDANT

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S50

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 (COMMENCEMENT) (NO 3) ORDER 2004 SI 438/2004

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S14

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S14(2)

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S14(4)

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S79(1)

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S79(1)(C)

INTERPRETATION ACT 1937 S18

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S79

FIGUEREDO v MCKIERNAN 2009 2 ILRM 526 2008/24/5203 2008 IEHC 368

FOGARTY v MCKEOGH BROTHERS (BALLINA) LTD 2010 4 IR 374 2010/19/4782 2010 IEHC 274

KNIGHT v NICHOLLS & SPARKE 2004 1 WLR 1653 2004 ACD 40 2004 EWCA CIV 68

PRACTICE AND PROCEDURE

Limitation of actions

Personal injuries - Personal Injuries Assessment Board - Authorisation to commence proceedings - Date of issue of authorisation - Whether authorisation issued on date when document posted or on date when letter would be delivered in ordinary course of post - Figeuredo v McKiernan [2008] IEHC 368, (Unrep, Dunne J, 26/11/2008); Fogarty v McKeogh Brothers (Ballina) Ltd [2010] IEHC 274, [2010] 4 IR 374 and Knight v Nicholls [2004] EWCA Civ 68, [2004] 1 WLR 1653 considered - Interpretation Act 1937 (No 38), s 18 - Personal Injuries Assessment Board Act 2003 (No 46) ss 14, 50 and 79 - Proceedings not statute barred (2006/1729P - Ryan J - 18/1/2013) [2013] IEHC 77

Molloy v Reid

Facts: On the 15 ^th June 2002, the plaintiff suffered personal injuries which he claimed was caused by of the defendant. Prior to initiating proceedings, the plaintiff was compelled to acquire authorisation from the Personal Injuries Assessment Board. For applications of this type, the time elapsing on the limitation period was suspended while consideration was given by the Board, with a further six months then granted from the date of the issue of authorisation.

The question to be decided in this case was whether the date of the issue of authorisation was the day on which the document was posted or when it would have been received. The minimal time difference between the two possibilities was enough that the plaintiff”s proceedings against the defendant would have been statute barred if the former interpretation was preferred by the court.

Held by Ryan J that s. 18 of the Interpretation Act 1937, which was in force at the relevant time, made it clear that where legislation required a document to be served by post, service would be deemed to be effected at the point when the document was delivered, unless a contrary intention was shown in the act. The defendant claimed that s. 50 of the Personal Injuries Assessment Board Act 2003 had shown a contrary intention when it had stated the six month period began on the ‘date of the issue of authorisation’ which clearly meant the day on which the authorisation was posted. However, it was held that this statement could not be regarded as definitive clarification of the question at hand.

There was nothing the Judge could see within the Personal Injuries Assessment Board Act 2003 that suggested s. 18 the Interpretation Act 1937 was not applicable. On that basis, the six month time limit would have commenced on the date the authorisation was received meaning the resulting proceedings were not statute barred. The fact that the Personal Injuries Assessment Board Act 2003 mentioned service by prepaid registered post, whilst s. 18 the Interpretation Act 1937 was describing the ordinary course of post, was not held to be of sufficient relevance to upset the application of the Interpretation Act 1937.

Motion to strike out proceedings dismissed.

1 JUDGMENT of Mr Justice Ryan delivered the 18th January, 2013

2 The issue on this motion is whether the plaintiff's claim is statute barred. A plaintiff wishing to institute proceedings for personal injury must seek authorisation from the Personal Injuries Assessment Board. Time for the purpose of limitation is suspended while the application is considered and for a further period of six months from the date of issue of the authorisation. The point that arises is the meaning of the date of issue of an authorisation. Is it the date on which the document is posted, as the defendant and applicant contends, or is it the date when the letter containing the notice of authorisation would be delivered in the ordinary course of post? The difference in time is actually no more than one day but in the circumstances of this case that is the critical period which determines whether the claim falls under the statute of limitations or survives. The facts are not in dispute and the matter is entirely one of statutory interpretation as to the meaning to be given to the word "issued" in s. 50 of the PIAB Act. By order of this Court, made on the 20 ^th December, 2010, the preliminary issue as to the statute of limitations was directed.

3 It may be helpful to tabulate the relevant dates.

4 15 ^th June 2002:

5 this is the date on which the plaintiff alleges that he suffered a significant injury. The relevant limitation period was three years and in the normal way that would have expired on the 14 ^th June 2005.

6 22 ^nd July 2004:

7 the Personal Injuries Assessment Board Act 2003, came into effect - pursuant to Statutory Instrument 438/2004.

8 17 ^th May 2005:

9 the Personal Injuries Assessment Board received the plaintiff's completed application for authorisation under the Act.

10 22 ^nd September 2005:

11 the Board's authorisation was posted to the plaintiff by registered post. Under s. 50 the plaintiff had six months from the issue of the authorisation plus such unexpired time as there was when he made his application - strictly, from the date of receipt by the Board of his application for authorisation. In fact, there was a period of 29 days that was still unexpired of the original limitation period.

12 19 ^th April 2006:

13 this was the last day for issuing proceedings, if time re-started on the 22 ^nd September, 2005 when the Board posted its authorisation to the plaintiff.

14 20 ^th April 2006:

15 this was the last day for issuing proceedings if the time re-started under s. 50 following the expiration of six months from the date when the authorisation issued to the plaintiff, if that means that it did so on the day when in the ordinary course of post, the authorisation would have been delivered to the plaintiff's address.

16 20 ^th April 2006:

17 personal injuries summons issued.

18 An unfortunate complication which does not have to be addressed on the this motion is that the plaintiff mislaid the authorisation when it arrived and when the Board furnished a copy authorisation by letter of the 26 ^th October, 2005, it was eroneously stated that the time limit would continue to be suspended for six months from the 26 ^th October, 2005, i.e. the date of the issue of the copy authorisation which would have given until the 26 ^th April, 2006.

19 The question can be simply stated in light of the above dates. If the date of issue of the authorisation as provided by s. 50 is considered to be the 22 ^nd September, 2005, when it was actually put into the post, the plaintiff's claim is statute barred. If the relevant date is the following day, the 23 ^rd September, when it would have arrived in the ordinary course of post at the plaintiff's address, the claim is not statute barred.

20 Counsel's arguments on this motion focused on a number of statutory provisions which it is necessary to set out. Section 50 of the Personal Injuries Assessment Board Act, 2003 is as follows:-

"In reckoning any period of time for the purposes of any limitation period in relation to a relevant claim specified by the Statute of Limitations 1957, or the Statute of Limitations (Amendment) Act 1991, the period beginning on the making of an...