Murray v Budds
| Jurisdiction | Ireland |
| Judge | Denham C.J. |
| Judgment Date | 02 February 2017 |
| Neutral Citation | [2017] IESC 4 |
| Court | Supreme Court |
| Docket Number | [S.C. No. 91 of 2015],Appeal No. 91/15 |
| Date | 02 February 2017 |
and
and
[2017] IESC 4
Denham C.J.
Denham C.J.
O'Donnell Donal J.
McKechnie J.
MacMenamin J.
Laffoy J.
Dunne J.
O'Malley J.
Appeal No. 91/15
THE SUPREME COURT
Personal injury – Professional negligence – Breach of contract – Appellant seeking damages for negligence and breach of contract – Whether a claim framed as a professional negligence action should be treated as a personal injury action subject to the statutory limitation period applicable
Facts: The plaintiff/appellant, Mr Murray, issued a plenary summons in February, 2005, claiming damages for negligence and breach of contract by the defendants/respondents, Michael E. Hanahoe Solicitors, in their provision of legal services prior to and during his criminal trial. The plaintiff appealed to the Court of Appeal against an order of Charleton J dated the 20th April, 2009 where it was ordered: (a) that the proceedings be struck out as an abuse of process because, being an action alleging professional negligence, it was launched without first ascertaining that there were reasonable grounds for so doing by obtaining appropriate expert evidence to support it; and (b) that the plaintiff pay the defendants’ costs of the motion when taxed and ascertained. The defendants appealed to the Court of Appeal against an order of Clark J dated the 23rd November, 2010, where she: (a) permitted the plaintiff to amend his pleadings in order to introduce a new claim for “loss and damage in the week of the 3rd to 10th February 1999”, the particulars of which loss were that “the plaintiff was exposed to the worry and stress from the uncertain position where he found himself in the criminal justice system facing an imminent trial without knowing who his counsel would be”; (b) declined the defendants’ application to strike out the proceedings in their entirety on the basis of s. 3(1) of the Statute of Limitations (Amendment) Act 1991; and (c) directed that the issue of the application of the Statute of Limitations be determined by the trial judge. The Court of Appeal (Peart J) allowed the appeal of the defendants against part of the order of Clark J permitting the plaintiff to amend his Statement of Claim. The Court of Appeal stated that it was unnecessary to reach a concluded view on the appeal from Charleton J, given that the appeal against the order of Clark J was allowed. The plaintiff submitted that two questions arose on the determination of the Supreme Court, being: 1) whether the plaintiff’s claim, as amended by Clark J, constituted a claim for personal injuries; and 2) if the claim should not be treated as a personal injuries action, is the loss and/or damage claimed by the plaintiff for “worry and stress” recoverable in an action for breach of contract and/or professional negligence. The Court was of the view that the plaintiff had raised an issue of general public importance, whether a claim framed as a professional negligence action seeking damages for negligence and breach of contract in which the particulars of loss and damage claimed are worry and stress short of a recognised physical injury should be treated as a personal injury action subject to the statutory limitation period applicable to personal injury actions.
Held by Denham CJ that the plaintiff’s claim did not come within one of the recognised exceptions to Addis v Gramaphone Co. Ltd [1909] AC 488; if one presumed there was a contract, it was for professional services, and there was no breach as he was competently legally represented. Denham CJ held that this case did not establish a stand-alone claim; there was no stand-alone right of claim for being upset. Denham CJ held that insofar as it was a personal injury, it was statute barred. Denham CJ held that the nature of the contract was not such that damages for distress would be available. Denham CJ held that there was no reason, in all the circumstances of the case, to consider any additional exceptions to the law as set out in Addis and subsequent judgments.
Denham CJ held that the appeal before the Court was confined to the determination made on the application for leave. On the issue before the Court, Denham CJ dismissed the appeal.
Appeal dismissed.
This is an appeal, upon which leave was granted by the Court, brought by Martin Murray, plaintiff/appellant, who is referred to as ‘the plaintiff’.
Conan P. Budds and Anthony T. Hanahoe, Terence Hanahoe and Michael E. Hanahoe, trading as Michael E. Hanahoe Solicitors, the defendants/respondents, are referred to as ‘the defendants’.
The Court determined that the plaintiff had raised an issue of general public importance, being as to whether a claim framed as a professional negligence action seeking damages for negligence and breach of contract, in which the particulars of loss and damage claimed are worry and stress short of a recognised physical injury, should be treated as a personal injury action, subject to the statutory limitation period applicable to personal injury actions. The Court granted leave to the plaintiff to appeal to this Court on that issue.
The plaintiff retained the services of the defendants to represent him in criminal proceedings.
I gratefully adopt the background facts as described by Peart J., in the Court of Appeal judgment of the 19th November, 2015.
The plaintiff was charged with possession, with intent to supply, of a significant quantity of heroin. He was convicted of that offence on the 11th February, 1999, and received a seven year sentence of imprisonment, from which he was released in September, 2004. The plaintiff was unsuccessful in two separate appeals against his conviction to the Court of Criminal Appeal. In 2000 his first appeal was based on a number of alleged errors on the part of the trial judge. In 2005, his second appeal heard after his release from prison, was based on an alleged failure of his solicitor to adequately and properly prepare for his trial, and the alleged failure of both solicitor and counsel to pay heed to his instructions during the course of his trial. However, neither of his appeals succeeded.
The plaintiff issued a plenary summons in February, 2005, claiming damages for negligence and breach of contract by the defendants in their provision of legal services prior to and during his criminal trial.
The defendants entered a full defence.
The defendants issued a motion seeking to dismiss the plaintiff's claim as (i) statute barred; (ii) an abuse of process; and (iii) frivolous or vexatious.
After a part hearing of the defendants' motion, the plaintiff issued a motion seeking to amend his statement of claim.
There were two appeals before the Court of Appeal. The plaintiff appealed to the Court of Appeal against an order of Charleton J. dated the 20th April, 2009 where it was ordered:-
(a) that the proceedings be struck out as an abuse of process because, being an action alleging professional negligence, it was launched without first ascertaining that there were reasonable grounds for so doing by obtaining appropriate expert evidence to support it; and
(b) that the plaintiff pay the defendants' costs of the motion when taxed and ascertained.
The defendants appealed to the Court of Appeal against an order of Clark J. dated the 23rd November, 2010, where she:-
(a) permitted the plaintiff to amend his pleadings in order to introduce a new claim for ‘loss and damage in the week of the 3rd to 10th February 1999’, the particulars of which loss were that ‘the plaintiff was exposed to the worry and stress from the uncertain position where he found himself in the criminal justice system facing an imminent trial without knowing who his counsel would be’;
(b) declined the defendants' application to strike out the proceedings in their entirety on the basis of s. 3(1) of the Statute of Limitations (Amendment) Act, 1991, and
(c) directed that the issue of the application of the Statute of Limitations be determined by the trial judge.
The plaintiff had claimed in the statement of claim 4(b) that:-
‘They failed to instruct Counsel properly or adequately, and indeed retained Counsel only on the night before the Trial…’
Thus, the plaintiff complained that, despite knowing for approximately a week that counsel would be unavailable, no new counsel was engaged to defend him until the day before the trial was due to take place. The defendants, in their defence, denied that counsel was retained only on the night before the trial.
The plaintiff's claim, pursuant to the order of the High Court (Clark J.), was therefore a claim for loss and damage in the week of the 3rd to the 10th February, 1999, arising from the fact that the plaintiff was exposed to the worry and stress from the uncertain position where he found himself in the criminal justice system facing an imminent trial without knowing who his counsel would be.
In the Court of Appeal the defendants submitted that while Clark J. struck out the claims of the plaintiff as originally constituted as an abuse of process, she erred by allowing the plaintiff to amend his proceedings and by not simply striking out the entire proceedings.
The Court of Appeal held that the permitted claim was a claim in tort only, and that it could only therefore be a personal injury claim. The fact that contract was pleaded, as part of the claims which were originally made, was not relevant as all those claims had been struck out.
The Court of Appeal (Peart J.) concluded:-
‘29. There is no doubt in my view that the claim...
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