Noble v Bonner

• Jurisdiction: Ireland
• Judge: Ms. Justice O'Regan
• Judgment Date: 30 July 2019
• Neutral Citation: [2019] IEHC 590
• Court: High Court
• Docket Number: [2013/9713 P.]
• Date: 30 July 2019

BETWEEN

MICHAEL NOBLE

PLAINTIFF

AND

DEIRDRE ANN BONNER & ORS.

DEFENDANTS

[2019] IEHC 590

O'Regan J.

[2013/9713 P.]

THE HIGH COURT

Plenary summons – Statute barred – Negligence – Plaintiff seeking damages for negligence and breach of contract – Whether the plaintiff’s claim against the defendants was statute barred

Facts: The plaintiff, Mr Noble, issued proceedings by way of plenary summons of the 12th September, 2013 which was served on the 10th September, 2014 on the defendants, Ms Bonner and others, being members of a firm of solicitors practising under the style and title of Matheson Solicitors. The claim of the plaintiff against the firm was one for damages for negligence and breach of contract. In the statement of claim of the 11th February, 2015 at para. 31, extensive particulars of negligence and breach of contract were set out, all of which related to asserted acts or omissions on the part of the firm in or about the execution and completion of two agreements of the 24th November, 2000, a subsequent contract for sale of the 23rd February, 2005 and the subsequent transfer of lands. A discreet issue came before the High Court as to whether or not the plaintiff’s claim against the defendants was statute barred. The plaintiff asserted that he did not suffer loss by reason of the 2000 transactions or the 2005 transactions until royalty payments ceased to be paid and therefore his plenary summons was within time. This argument was consistent with the assertion that the two agreements of November 2000 were two parts of a single transaction and accordingly it appeared that both parties were asserting that the option to buy back in favour of the plaintiff and the royalty payments to him were all part of a singular integrated transaction. The defendants asserted that by reason of the fact that Green Star Holdings Ltd was not the purchaser in the contract or transfer of 2005 and was not the registered owner as and from the 29th September, 2005 or at any time thereafter, a significant portion of the plaintiff’s loss or damage arose on execution of the contract and transfer or at the latest on the registration of a party other than Green Star Holdings Ltd as full owner of the relevant property. The defendants identified such asserted loss as: (1) an inability to enforce royalty payments thereafter; and (2) loss of the right to exercise the buy-back option.

Held by O’Regan J that the defendants had discharged the burden of proof on the defendants to establish that the institution of proceedings against the firm by plenary summons of the 12th September, 2013 was outside the time limits provided by s. 11(2)(a) of the Statute of Limitations 1957.

O’Regan J held that by the 12th September, 2013 the plaintiff’s claim was already statute barred.

Claim statute barred.

JUDGMENT of Ms. Justice O'Regan delivered on the 30th day of July, 2019

Issues

1 The discreet issue which comes before the Court at this time is as to whether or not the plaintiff's claim against the defendants is statute barred.

2 Although a statement of agreed facts is not put before the Court, nevertheless the defendants accept that the matter will be dealt with by the Court on the basis of the facts as set out in the plaintiff's pleadings (see para. 5 of the grounding affidavit on behalf of the defendants sworn by Paul Glenfield on the 21st of June, 2017).

Background

3 The plaintiff issued the within proceedings by way of plenary summons of the 12th of September, 2013 which was served on the 10th of September, 2014 on the defendants being members of a firm of solicitors practising under the style and title of Matheson Solicitors (herein after ‘the Firm’).

4 The claim of the plaintiff against the Firm is one for damages for negligence and breach of contract. In the Statement of Claim of the 11th of February, 2015 at para. no. 31, extensive particulars of negligence and breach of contract are set out, all of which relate to asserted acts or omissions on the part of the Firm in or about the execution and completion of two agreements of the 24th of November, 2000, a subsequent contract for sale of the 23rd of February, 2005 and subsequent transfer of lands.

5 In or about the year 2000 the plaintiff was the party entitled to be registered as full owner of the lands and premises described in folios 2186F and 16658F respectively of the Register of Freeholders, County of Wicklow. Prior to engaging the Firm, the plaintiff had concluded, by way of offer of the 30th of June, 2000 and acceptance of the 3rd of July, 2000, an agreement with Celtic Waste Limited (subsequently known as Green Star Holdings Limited) to enter into a single transaction forming two parts (see para. 27 of the amended Statement of Claim by the within plaintiff against Green Star Properties Limited, record no. 2013 no. 3081P).

6 Both parts of the transaction are dated the 24th of November, 2000, the first part being an agreement between the plaintiff and Celtic Waste affording Celtic Waste an option to purchase the lands aforesaid for the purchase sum of €3.5m on completion of certain conditions and on the basis of certain royalty payments being made to the plaintiff. The second agreement afforded an option to the plaintiff from Celtic Waste enabling the plaintiff to buy back the lands subject as in said agreement provided. In para. 27 of the amended Statement of Claim against Green Star Properties Limited & Ors., aforesaid, the plaintiff claims he would not have entered into the first option agreement to sell the land in the absence of the second option agreement being executed granting the option to buy back the lands.

7 On the 24th of November, 2004 Celtic Waste gave notice that the pre-conditions to the exercise of the option in the first agreement had been fulfilled and thereafter on the 20th of January, 2005 Celtic Waste, then known as Green Star Holdings Limited, gave notice of its intention to exercise the option.

8 In the event the relevant contract and ultimate transfer were executed in favour of Green Star Properties Limited.

9 Initially an entirely separate company was registered as owner of the relevant lands on the 29th of September, 2005 due to an error within the Property Registration Authority and this error was corrected whereby Green Star Properties Limited became registered owner in 2012. In any event Green Star Holdings Limited was not registered as full owner either in 2005 or subsequently.

10 The plaintiff was paid the royalty payments up to and including the period concluding on the 31st of December, 2011 (see para. 19 of the plaintiff's affidavit sworn on the 26th of January, 2018). The plaintiff was advised by letter of the 4th of February, 2013 that no further royalty payments would be made.

Dispute

11 By reason of the foregoing the plaintiff asserts that he did not suffer loss by reason of the 2000 transactions or the 2005 transactions until royalty payments ceased to be paid and therefore his plenary summons is within time. This argument is consistent with the assertion that the two agreements of November 2000 were two parts of a single transaction and accordingly it appears that both parties are asserting that the option to buy back in favour of the plaintiff and the royalty payments to him were all part of a singular integrated transaction.

12 The defendants assert that by reason of the fact that Green Star Holdings Limited was not the purchaser in the contract or transfer of 2005 and was not the registered owner as and from the 29th of September, 2005 or at any time thereafter, a significant portion of the plaintiff's loss...