Morgan v Fairview Developments Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Tony O'Connor
• Judgment Date: 10 March 2016
• Neutral Citation: [2016] IEHC 520
• Date: 10 March 2016
• Court: High Court
• Docket Number: [2012 No. 7302 P]

[2016] IEHC 520

THE HIGH COURT

O'Connor Tony J.

[2012 No. 7302 P]

BETWEEN

BREFFINI MORGAN

LAURA MORGAN

PLAINTIFFS

AND

FAIRVIEW DEVELOPMENTS LIMITED

PATRICK RUXTON (TRADING AS PATRICK RUXTON ARCHITECTURAL SERVICES)

LIBERTY CORPORATE CAPITAL LIMITED

DEFENDANTS

Practice & Procedures – Addition of defendant – O. 15 (13) of the Rules of the Superior Courts – Professional indemnity insurance certificate – Concealment of true identity – Order for costs

Facts: The plaintiffs, by way of the present motion, sought an order to add the second named defendant as a defendant to the main proceedings. The second named defendant contended that the plaintiffs' claim would be found to be futile and the statute barred by the Court. The plaintiffs alleged that the professional indemnity insurance certificate that named the second named defendant and not the company was relevant. The plaintiffs claimed concealment of the true identity of the company of the second named defendant by the second named defendant under s. 71 of the Statute of Limitations Act, 1957.

Mr. Justice Tony O'Connor determined the motion in favour of the plaintiff and directed the second named defendant to discharge the costs of the present application with stay on the execution of the said order until the determination of the present proceedings. The Court found that since there existed issues of fact and opinion, it was not open for the Court to resolve those issues and those might be addressed adequately at trial.

EX TEMPORE JUDGMENT of Mr. Justice Tony O'Connor delivered on the day of 10th day of March, 2016

1 This is an application by the plaintiffs for an order under O. 15 (13) of the Rules of the Superior Courts to add Ruxton Architectural Services Limited as a defendant to the action. The application was strenuously resisted by the second named defendant, Mr. Patrick Ruxton.

2 In Hynes v. Western Health Board [2006] IEHC 55 Clarke J. put the general proposition relevant to the grounds for resistance as follows:-

‘A defendant can be joined in proceedings notwithstanding there being issues as to the applicability of the statute [of limitations] subject to an exception that the court retains a discretion not to join a defendant where the statute would clearly apply and where, in the words of Budd J., the joining of such a defendant, would be ‘futile’.’

3 I note the judgment of Birmingham J. in Hegarty v. DNS Flanagan Brothers Ballymore Limited [2013] IEHC 263 where the claim was dismissed against the defendant as...