Ryan v Connolly

• Jurisdiction: Ireland
• Judge: MR JUSTICE PETERKELLY
• Judgment Date: 29 February 2000
• Neutral Citation: [2000] IEHC 168
• Date: 29 February 2000
• Docket Number: No.13286P/1998
• Court: High Court

[2000] IEHC 168

THE HIGH COURT

No.13286P/1998

RYAN v. CONNOLLY

BETWEEN

DESMOND RYAN

Plaintiff

AND

MICHAEL CONNOLLY AND ANN-MARIE CONNOLLY

Defendants

Citations:

STATUTE OF LIMITATIONS 1957 S11(2)(b)

DORAN V THOMPSON & SONS LTD 1978 IR 223

Synopsis

Practice and Procedure

Practice and procedure; Statute of Limitations; estoppel; plaintiff had been injured in a road traffic accident on 24/04/95 and arising out of that accident he commenced proceedings against the defendants on 11/12/98; defendants had included a plea to the effect that the proceedings were statute barred; plaintiffs had claimed that the defendants were estopped from raising the plea; trial of a preliminary issue had been directed as to whether the plaintiff's claim was statute barred; whether the correspondence exchanged between the parties solicitors is protected by privilege; whether it would be inequitable to allow the defendants to plead the statute of limitations as against the plaintiff; whether the plaintiff's legal advisors had inferred from the correspondence that the statute would not be pleaded against them; whether it was reasonable for the plaintiff's legal advisors to so infer from the correspondence; s.11(2)(b), Statute of Limitations Act, 1957.

Held: It is not now open to the defendants to rely upon the Statute of Limitations as a defence

Ryan v. Connolly - High Court: Kelly J. - 29/02/2000

The plaintiff had been involved in motor collision accident thereby sustaining injuries. The accident occurred in April 1995 and the plenary summons was not issued until December 1998. The plaintiff prima facie accepted that the action was statute barred but contended that the delay in issuing the plenary summons was due to the actions of the defendants and that they were therefore estopped from denying the claim of the plaintiff. Kelly J was satisfied that the actions of the defendants' insurance company were such that it would now be inequitable for the claim to be denied on the basis of the Statute of Limitations. Accordingly Kelly J struck out the relevant portion of the defendants' defence and instructed that the case now proceed to trial.

TRANSCRIPT OF JUDGMENT

1 DELIVERED EXTEMPORE BY THE HONOURABLE MR JUSTICE PETERKELLYON 29TH FEBRUARY 2000

2 The Plaintiff alleges that he was injured in a road traffic accident on 24th April 1995. Arising out of that accident he commenced proceedings in this court against the Defendants on 11th December 1998. Having regard to those two dates it is clear that these proceedings were prima facie statute barred at the time they were instituted.

3 The statement of claim was delivered on 11th June 1999 and the defence followed on 14th July 1999. Given the dates already mentioned, it is not surprising that the defence includes a plea at paragraph 8 thereof to the effect that the Plaintiff's claim is statute barred by virtue of the provisions of section 11(2)(b) of the Statute of Limitations Act 1957.

4 To that defence there was delivered a reply. Having joined issue with the Defendants on the defence and having denied the allegation of contributory negligence, the reply goes on as follows:

5 2 "3. Without prejudice to the foregoing the conduct and representations express and implied of the Defendants herein their servants or agents from the time of notification of the motor collision of the 26th April 1995 up to the commencement of proceedings herein by Plenary Summons dated 11th December 1998 caused and induced the Plaintiff to refrain from issuing proceedings within the period prescribed by statute.

6 3 "4. By reason of the aforementioned conduct of the Defendants their servants or agents the Defendants are estopped from relying on the provisions of the Statute of Limitations 1957 aspleaded."

7 Having regard to that exchange of pleadings an application was made to the court for the trial of a preliminary issue. By order of 1st February 2000 McGuinness J. directed that there be a trial of such an issue, the question being "whether the Plaintiff's claim herein is or is not statute barred by virtue of the provisions of section 11(2)(b) ofthe Statute of Limitations 1957, as amended.".

8 It does not seem to me that the question posed in that form is really the issue for trial. It is accepted by the Plaintiff that, prima facie, the Plaintiff's claim is statute barred but he contends that the raising of a plea of that nature is a matter for defence and that the Defendants are precluded from standing on their legal rights in the circumstances outlined in the evidence put before this court. In other words, the Plaintiff says that the Defendants are estopped from raising the plea of the Plaintiff's action being time barred because of their conduct. This court is therefore asked to exercise the jurisdiction of a court of equity which, over the centuries in appropriate cases, has intervened so as to prevent a defendant from exercising strict legal rights and entitlements in circumstances where it would be inequitable to doso.

9 In order to understand how this plea comes to be made on the part of the Plaintiff and how this application is brought, it is necessary to look at the correspondence exchanged between the parties" solicitors and the Hibernian Insurance Company, the insurance company representing the Defendants in the action.

10 Without further ado I have to deal with a legal objection which was raised at the hearing to my looking at this correspondence. It is said that the correspondence is protected by privilege and that therefore it is not open to the Plaintiff to seek to adduce it. I was invited to look at the correspondence on a de bene esse basis so as to make an adjudication as to whether this allegation of the correspondence being privileged was or was not well made out.

11 The basis upon which it is said that the correspondence is privileged is the fact that it is headed in practically every case by the legend "without prejudice". It is clear from the authorities that the mere attaching of such a label to correspondence does not make such letters privileged. The court has to look to see whether they fall within the rubric of what is properly privileged correspondence. Having read through the letters exhibited at T.D.3 in the Affidavit of Thomas D'Alton I am satisfied that they are not privileged letters notwithstanding the fact that most of them are headed "without prejudice" and it is therefore open to me on this application to have regard to them.

12 The correspondence begins by a letter of 23rd May 1995, just one month after the road traffic accident in suit. That letter was from the Plaintiff's solicitors to the Hibernian Insurance Company and itreads:

"Please find enclosed copy letter which we have today sent to your insured Anne Marie Connell in relation to a road traffic accident which took place at Furbo, Galway, on 26th April 1995."

13 Attached to that was a letter written in a very standard form to the Defendant Ann Marie Connolly by the Plaintiff's solicitors making the allegation of negligence in respect of her involvement in the road traffic accident in question. In the final paragraph of that letter she was invited by the Plaintiff's solicitors to pass it on to the Hibernian Insurance Company.

14 There next came a letter from the Hibernian Insurance Company of 11th July 1995 pointing out that the recent communication from the Plaintiff's solicitors was having attention and seeking a considerable amount ofinformation including, inter alia, the allegations of negligence which were being made against the Defendants. That was then followed on 27th July 1995 by a letter indicating that an appointment had been made to have the Plaintiff medically examined by a consultant orthopaedic surgeon in Galway and giving a time for that examination. There then followed a letter on 1st September 1995 from the Plaintiff's solicitors to the Hibernian Insurance Company in response to the request made in July of that year for detailed information.

15 There was then an important letter dated 9th July 1996 from the Hibernian Insurance Company to the Plaintiff's solicitors. It reads asfollows:

"With regard to the above matter we refer to previous correspondence and confirm that we have obtained a medical report on your client."

"We have concluded the damage claim direct with your client's insurers Norwich Union."

"Please advise if you are in a position to discuss settlement at this time."

"We await hearing from you."

16 On 24th July 1996 receipt of that letter was confirmed by the Plaintiff's solicitors in which they indicated confirmation of the appointment for an up-to-date medical report and indicating that they would respond as soon as the report came to hand.

17 On 13th March 1997 there was a further letter to the Plaintiff's solicitors from the Hibernian Insurance Company in the followingterms:

"With regard to the above matter we refer to previous correspondence. Please advise if you are interested in discussing the case with us at this time."

"We look forward to hearing from you."

18 There does not appear to have been a response (certainly there was no response in writing) to that letter from the Plaintiff's solicitors.

19 On 30th October 1997 there was a...