Murphy v Grealish

• Jurisdiction: Ireland
• Judge: Mr. Justice Geoghegan
• Judgment Date: 10 February 2009
• Neutral Citation: [2009] IESC 9
• Court: Supreme Court
• Docket Number: [S.C. No. 79
• Date: 10 February 2009

Murphy v Grealish

BETWEEN/

DAVID MURPHY

Plaintiff/Respondent

and

MICHAEL GREALISH

Defendant/Appellant

[2009] IESC 9

Geoghegan J.

Kearns J.

Macken J.

Appeal No. 79/2006

THE SUPREME COURT

PRACTICE AND PROCEDURE

Limitations

Estoppel - Statute bar - Admission of liability by defendant - Whether actions and representations of defendant rendered it unconscionable to allow reliance on Statute of Limitations - Whether equitable estoppel arose to preclude defendant from relying on Statute - Doran v Thompson Ltd [1978] IR 223 and Ryan v Connolly [2001] 1 IR 627 followed - Statute of Limitations 1957 (No. 6), s 11(2)(b) - Defendant's appeal dismissed (79/2006 - SC - 10/2/2009) [2009] IESC 9

Murphy v Grealish

Facts: the plaintiff suffered personal injuries arising from a collision. The plaintiff issued a summons seeking damages for personal injuries arising therefrom outside the limitation period but contended that his reason for so doing was due to the position adopted by the insurers in prior correspondence whereby they had admitted liability and sought to settle the claim on the basis of shared medical evidence. He contended that same amounted to an implied representation giving rise to an equitable estoppel precluding the defendant from relying upon the statute of limitations. The High Court refused to dismiss the plaintiff's action on a motion brought by the defendant pursuant to the Statute of Limitations. The defendant appealed to the Supreme Court.

Held by the Supreme Court (Geoghegan J; Kearns and Macken JJ concurring) in dismissing the appeal that a plaintiff could not ignore the statute of limitations with impunity merely because there was an admission of liability by the defendant. That the defendant's conduct could reasonably be construed as an implied representation combined with a consequence that, in all the circumstances, it would be unconscionable to resile from the implied representation arising from the conduct. In those circumstances an equitable estoppel arose preventing the defendant from pleading the statute of limitations.

Reporter: P.C.

STATUTE OF LIMITATIONS 1957 S11(2)

STATUTE OF LIMITATIONS (AMDT) ACT 1991 S3(2)

DORAN v THOMAS THOMPSON & SONS LTD 1978 IR 223 1979 113 ILTR 93

RYAN v CONNOLLY 2001 1 IR 627 2001 2 ILRM 174 2001/21/5755

O'REILLY v GRANVILLE 1971 IR 90

1 JUDGMENT of Mr. Justice Geoghegan delivered the 10th day of February 2009

2 This is an appeal brought by the defendant/appellant from an order of the High Court (MacMenamin J.) refusing to dismiss a personal injuries action instituted by the plaintiff/respondent. Technically, the motion sought two alternative reliefs which were:

3 2 "A. An order dismissing the plaintiff's proceedings herein pursuant to the provisions of section 11(1)(2) of the Limitation of Actions Act, 1957 as amended by section 3(1)(2) of the Statute of Limitations (Amendment) Act, 1991;

4 3 B. Further or in the alternative an order directing the trial of a preliminary issue namely whether the proceedings herein are statute barred pursuant to the provisions of section 11(1)(2) of the Limitation of Actions Act, 1957 as amended by section 3(1)(2) of the Statute of Limitations (Amendment) Act, 1991."

5 The Statute of Limitations contains no provisions whereby a defendant who has pleaded it may follow up that plea with a motion to have the action dismissed. It may well be that such a motion can be brought pursuant to the well-known inherent jurisdiction of the court to strike out proceedings certain to fail but given the plea of estoppel in the Reply to which I will be referring, it would seem inconceivable that such an order could be granted.

6 It would be open, of course, to seek the second relief at paragraph (B) but what happened in practice was that MacMenamin J. decided the issue himself rather than set it down for a separate trial and I assume that this was by consent of both parties in that no point has ever been taken about it.

7 This was an action brought outside of the three year period. The statute was duly pleaded. A Reply, however, was delivered which contained the following plea.

"The plaintiff denies that the claim herein is statute barred and pleads that the defendant by his actions and those of his servants or agents and representatives is estopped from raising the statutory period in order to evade liability in these proceedings."

8 In a nutshell, the case made by the respondent is that from an early stage the appellant admitted liability and that thereafter negotiations proceeded surrounding the medical condition of the appellant with a view to establishing quantum. These discussions continued even after the three year period had expired and the appellant's solicitor was taken by surprise by the plea of the statute. He, effectively, maintains that he was lulled into a false sense of security by the appellant's insurers. I am deliberately using non-legal terminology at this stage. I will discuss the legal position when I have set out the factual history in full.

9 The chronology is as follows. The motor accident giving rise to the action occurred on the 12 ^th May, 2000. The first letter of any importance is a letter from the appellant's insurers, Quinn Direct, dated 1 ^st August, 2000 and addressed to the respondent personally. It reads as follows:

"Dear Mr. Murphy"

10 We write to advise that an independent motor assessor has agreed repairs on your vehicle at IR £1,849.53.

11 Please complete the enclosed acceptance form and return it to us. On receipt of same we will issue a cheque in the amount of IR £1,849.53 in your favour in full and final settlement of this claim.

12 We trust this meets with your approval. We look forward to your early reply.

13 Yours faithfully

14 Deborah O'Reilly

15 Claims Department."

16 Even this first letter contained a clear admission of liability though either consciously or unconsciously it ignored altogether a possible legitimate claim by the respondent for general damages for personal injuries and, indeed, any special damages in connection therewith. Interestingly, and perhaps significantly, that particular letter was omitted from the correspondence exhibited in the affidavit grounding the appellant's motion. However, a letter sent by the respondent's solicitors, O'Dea and Company in reply and dated 17 ^th August, 2000 was exhibited. That letter read as follows:

"Dear Sirs

We confirm we act on behalf of Mr. Murphy. We refer to your letter of the 1 ^st inst. You might confirm that the figures were agreed with McCormack Car Sales Limited.

Our client suffered personal injuries in relation to the accident. You might confirm that you are prepared to deal with the material damage at this stage.

Yours faithfully".

17 Quinn Direct, under a different signature, replied to that letter making it clear that it was not the company's policy to deal with claims on a "piecemeal basis". The letter went on to request details of the nature and extent of the alleged injuries with the names and addresses of the relevant doctors so that the insurers could arrange for their own medical examination, if necessary. There was then a long gap with no correspondence with the result that the insurers wrote again on the 18 ^th June, 2001 asking if the injury claim was still being pursued. It was confirmed in a reply that the claim was being pursued. On the 22 ^nd October, 2001 Quinn Direct wrote still looking for particulars of the injuries and the medical attendance. They followed this up with further letters of the 9 ^th November and the 13 ^th November, 2001. By a letter of the 20 ^th November, 2001 the respondent's solicitors explained that the respondent was awaiting an orthopaedic examination. In a letter of the following day they gave particulars of the names of the relevant doctors. A letter of importance in considering the issues in this case and dated the 5 ^th December, 2002 was then written by Quinn Direct, it read as follows:

"Dear Donal"

18 I refer to the above matter and to previous correspondence concerning same.

19 Could you let me know as soon as possible if

20 you would be prepared to share medicals with Quinn Direct in this case and if you are prepared to discuss settlement of the claim. Liability is not an issue.

21 Trusting to hear from you at your earliest convenience.

22 Regards

23 Yours sincerely

24 Hugh McGrath

25 Regional Claims Manager"

26 That letter was replied to on the 5 ^th February, 2003 in which it was stated that the respondent's x-rays were being reviewed by an orthopaedic surgeon at an appointment in March and that it would be anticipated that following on his latest report there will be no difficulty about sharing it.

27 The orthopaedic surgeon retained on behalf of the respondent was Mr. Michael Gilmore of Galway and he reported on an MRI scan on the 21 ^st May, 2003. He did not recommend surgery but expressed the view that the respondent would have ongoing disability in his back as a result of his injury which had led to the degeneration and bulging of discs. That report was forwarded to the insurers on the 17 ^th June, 2003.

28 Quinn Direct wrote on the 21 ^st July, 2003 that they had arranged for a medical examination of the respondent by the Galway surgeon, Mr. Wilson. An almost identical letter was written on the 21 ^st August, 2003. Presumably, the examination was, in the event, postponed from 20 ^th August, 2003 to 13 ^th October, 2003 which was the new date.

29 Apparently, the respondent missed his appointment and had to pay the medical fee. A new appointment was to be arranged.

30 By a letter of the 19 ^th January, 2004 the respondent's solicitors referred to a telephone...