Neville Presho v Patrick Doohan and Ors

• Jurisdiction: Ireland
• Judge: Mr. Justice Roderick Murphy
• Judgment Date: 29 April 2009
• Neutral Citation: [2009] IEHC 631
• Docket Number: 4P/2006
• Court: High Court
• Date: 29 April 2009

[2009] IEHC 631

THE HIGH COURT

4P/2006

Presho v Doohan & Ostan Thoraigh Comhlacht Teoranta

NORTHERN CIRCUIT

COUNTY OF DONEGAL

EQUITY JURISDICTION

BETWEEN/

NEVILLE PRESHO

PLAINTIFF

AND

PATRICK DOOHAN AND OSTAN THORAIGH COMHLACHT TEORANTA

DEFENDANTS

CIVIL LIABILITY ACT 1961 S35(1)(I)

STATUTE OF LIMITATIONS 1957 S49

STATUTE OF LIMITATIONS 1957 S48(2)

STATUTE OF LIMITATIONS 1957 S49(1)(A)

ROWAN v BORD NA MONA 1990 2 IR 425

KIRBY v LEATHER 1965 2 QB 367

MCDONALD v MCBAIN 1991 1 IR 284

MCGOWAN v CARVILL 1960 1 IR 330

PRIMOR 1992 IR 459

STATUTE OF LIMITATIONS S71(B)

MCDONALD v MCBAIN 1991 1 IR 284 1991 ILRM 764

PRACTICE AND PROCEDURE

Limitation of actions

Preliminary issue - Application to dismiss proceedings on grounds of delay - Proceedings seeking damages for trespass and interference with property - Fire in house - Disappearance of house - Site used as car park - Time between accrual of cause of action and initiation of proceedings - Concealment - Whether cause of action accrued before identity of wrongdoer known to plaintiff - Disability of plaintiff - Whether plaintiff of unsound mind as a result of disappearance of house - Whether plaintiff incapable by reason of mental illness of protecting legal rights in relation to property as reasonable man would - Rohan v Bord na Mona [1990] 2 IR 425; Kirby v Leather [1965] 2 QB 367 and McDonald v McBain [1991] 1 IR 284 followed - Statute of Limitations 1957 (No 6), ss 48(2), 49 and 71(1)(b) - Application refused (2006/4P - Murphy J - 29/4/2009) [2009] IEHC 631

Presho v Doohan

Facts: The plaintiff was the owner of a dwelling house on Tory Island which was purchased in 1982. From 1986 to 1994, the plaintiff lived in New Zealand with the house vacated and secured. In or about 1992, the defendants commenced the construction of a hotel adjacent to the plaintiff's land. A John McGinty was hired as contractor and he and two co-workers occupied the plaintiff's dwelling house for a time without permission. In January 1993, a fire substantially damaged the house which was reported by Mr McGinty whose own property was also damaged. Further damage was caused to the property which resulted in it being effectively demolished. It was deemed by Gardai as a criminal matter. The plaintiff assisted in the subsequent investigations including providing photographs of debris of the house being located a distance away on the nearby foreshore of the island but then asked for these to be called off in late 1994 as he had forgiven the perpetrators.

In August 2003, the plaintiff re-engaged with the Gardai and sought a fresh investigation into the crime. The Gardai were constrained in their ability to do so due to the passage of time and unavailability of the original investigating Gardai and documentation and following a number of individuals including the first named defendant being re-interviewed, it was decided that there was no basis for a criminal investigation. The plaintiff suspected the defendant had been involved in the demolition as it would have impeded the views from the hotel. Mr McGinty gave evidence during proceedings that he had been offered ?1,000 to demolish the building but had refused until he found out who the owner was. A plenary summons was issued on 3rd January 2006 alleging trespass and interference with his property as well as continued and unlawful use of his land. It was the plaintiff's contention that any delay in issuing proceedings was due to a bi-polar disorder which was diagnosed shortly after he returned to Ireland and discovered his property gone. He had spent a period of time in a psychiatric hospital. It was contended that it was this mental condition that influenced his decision to ask Gardai to cease investigations and should excuse the subsequent delay.

Held by Murphy J that due to the evidence of possible concealment before him, the period of limitation only began to accrue after the purported wrongdoer was identified. This could arguably be determined as in or about August 2003 when the plaintiff decided to re-engage with the Gardai. The overlapping issue of the plaintiff's mental disability also meant that even if the period of limitation accrued at an earlier date, he lacked the capability to make decisions to protect his legal rights and look after his affairs hence his request to Gardai in 1994 to cease ongoing investigations.

A number of preliminary issues were decided. Due to evidence of concealment and mental disability, the defendant's application for an order dismissing the claim on the grounds of inexcusable delay was refused. The plaintiff's claim against the defendants for continued and unlawful use of his land could not be defeated on that basis anyway as the use was ongoing.

Defendant's application refused.

Mr. Justice Roderick Murphy

1 Neville Presho, Civil Engineer and documentary film maker, purchased a dwelling house on Tory island in 1982 and was registered as the owner of Folio 13745F of the Register of Freeholders, County Donegal, on the 27^th October, 1982. The property as described in that Folio contained a dwelling house with a septic tank attached. The vendors were Hugh and Mary Doohan who are not related to the first named defendant. Some four years later the plaintiff left Tory Island and resided in New Zealand for eight years until 1994, having boarded up and secured the house which was looked after by a neighbour.

2 During that time, in or about 1992, the defendants commenced the construction of a hotel premises at the rear of the plaintiff's property which was known as the Tory Island Hotel. The first named defendant employed John McGinty as contractor in late 1992 to November 1993. John McGinty and two of his workers occupied the plaintiff's dwelling house without the consent of the plaintiff while the hotel was being built.

3 Some time before the 14^th January, 1993, during stormy weather an asbestos sheet blew off the house. It is common case that Mr. McGinty and Mr. Doohan with the latter's JCB digger, attempted to replace the asbestos sheet with one provided by the husband of the neighbour who looked after the house. This was not possible as the replacement sheet was broken as it fell on or was broken by the wheel of the JCB digger. There is conflict of evidence as to how the replacement sheet was broken. It is not controverted that at that stage the workman left Mr. Presho's house and stayed at the local hostel. Mr. McGinty said that he had removed the electricity supply fuses.

4 In the early hours of the morning of the 14^th January, 1993, a fire substantially damaged Mr. Presho's house. Mr. Doohan was not on the island. The matter was reported to the gardaí by Mr. McGinty on 15^th who said that his equipment and fuel had been destroyed.

5 Subsequently further damage was caused to the house. Mr. McGinty said that there was only one digger on the island. He said that he didn't see Mr. Doohan or anyone else remove stones.

6 Superintendent McGovern gave evidence of the complaint of Mr. McGinty, who was satisfied that the fire was malicious, which was recorded in a Crime Report Document. The first contact by Mr. Presho was on 27^th July 1994 at Bunbeg garda station who could not point to a suspect.

7 Mr. Presho produced photographs which had been obtained from Donegal County Council. On 21^st November 1994 Mr. Presho wrote to Sergeant Friel asking that the investigation not be pursued, that he forgave those who burnt his house. Sergeant Friel's report noted a "peculiar conversation" that Mr. Presho had a premonition that the roof would be blown off. It was an act of God.

8 However on 13^th August 2003 Mr. Presho sent correspondence to the Garda Commissioner in relation to the investigation referring to difficulties with Mr. Doohan. The matter was referred to Detective Garda Moore in Glenties who met with Mr. Presho at Tarryfinn airport on 19^th September 2003 where a first statement of complaint was made. Detective Garda Moore investigated the matter and interviewed all persons mentioned. Mr. McGinty declined to make a statement but swore an affidavit which corresponded to the evidence he gave to the court. Mr. Doohan wrote a memo. All 14 others declined to make a statement. There was no evidence to warrant any charge.

9 Mr. Presho then made a complaint to the Garda Complaints Board. On 12^th May 2006 this complaint was deemed inadmissible on the basis of delay.

10 An internal review was undertaken by Superintendent McGowan and Sergeant Carroll who re-interviewed Mr. Doohan and others. A report was made on 7^th November 2007 which concluded that there was no basis for a criminal investigation. By then all the gardaí involved had retired.

11 In cross-examination Superintendent McGovern said that none of the original records were available, There was no record of when the gardaí first visited the scene. There was no documentary evidence that anyone was spoken to in 1993. In July 1994 Mr. Presho had reported the disappearance of his house which was a different incident to the fire. A video and photographs were given to the gardaí. The latter showed building debris including large stones on the foreshore which was identified by Mr. Presho as part of the porch of his former house. There was no evidence to the contrary. The court is satisfied that part of the plaintiff's house had been moved to the foreshore probably mechanically.

12 An appointment was made with Sergeant Friel to go to Tory Island prior to 21^st November 1994 but according to Sergeant Friel's report was cancelled by Mr. Presho. There was no evidence that Mr. Doohan was involved in the removal of the house. It was noted on the garda file that, subsequently, he had a contract with Donegal County Council to remove the rubble from the road between Mr. Presho's house and the hotel.

13 There were theories as to what...