Smith v Cunnningham p/a Paul Kelly and Company Solicitors
| Jurisdiction | Ireland |
| Judge | Mr. Justice Meenan |
| Judgment Date | 26 June 2018 |
| Neutral Citation | [2018] IEHC 600 |
| Docket Number | [2014 No. 4753 P.] |
| Court | High Court |
| Date | 26 June 2018 |
[2018] IEHC 600
THE HIGH COURT
Meenan J.
[2014 No. 4753 P.]
AND
AND
Damages – Negligence – Statute barred – Plaintiff seeking damages for negligence and breach of duty – Whether the plaintiff’s claim was statute barred
Facts: The plaintiff, Mr Smith, claimed damages for, inter alia, negligence and breach of duty. He claimed that the fourth defendant, Paul Kelly and Company Solicitors, its servants or agents were negligent and in breach of duty in failing to ensure that he got a good marketable title to property situated at Gubardorish, Drumlish, County Longford, and failed to ensure that all legal preconditions were met. The plaintiff also maintained a claim for breach of contract against the fourth defendant, its servants or agents in the same terms as in the claim for negligence and breach of duty. As a preliminary issue, the fourth defendant claimed that the plaintiff’s claim was barred by virtue of the provisions of the Statute of Limitations Act 1957.
Held by the High Court (Meenan J) that, having applied the principles set out in Brandley and another v Deane and another [2017] IESC 83 to the case, no damage occurred until the plaintiff and his then wife came to sell the property in 2008 despite there being a defect in the plaintiff’s title which occurred when they acquired the property in July 2006. In Meenan J’s view, the precise date that the plaintiff’s cause of action accrued was 16 October 2008, the date that the contract for sale was rescinded and the plaintiff suffered the alleged loss. Meenan J held that it would have been open to the purchaser to complete the sale for the agreed price notwithstanding the defect in the title and thus the plaintiff would have suffered no loss; however, as the purchasers of the property opted to rescind the contract for sale, as they were entitled to do, that was the point that the damage occurred.
Meenan J held that the plaintiff’s claim for negligence and breach of duty against the fourth defendant was not statute barred by virtue of the provisions of the 1957 Act.
Judgment approved.
The application before this Court is on behalf of the fourth named defendant herein seeking an order that the plaintiff's claim is statute barred by virtue of the provisions of the Statute of Limitations Act 1957 (as amended) (‘the Act of 1957’).
In April 2006, the plaintiff and his then wife entered into negotiations with the second and third named defendants for the purchase of property situated at Gubardorish, Drumlish, County Longford (‘the property’). The property was constructed by the second and third named defendants in pursuance of planning permission granted by Leitrim County Council on 4 March 2004. The planning permission was subject to some twelve conditions.
On or about 23 March 2006, the first named defendant, an engineer, issued a certificate to the effect that the construction complied with planning permission and Building bye-law Regulations. In July 2006, in purported reliance on this certificate, the plaintiff entered into a contract to purchase the property for the sum of €240,000. For the purposes of this transaction, the plaintiff and his then wife retained the professional services of the fourth named defendant, a solicitor.
Some two years after these events, the plaintiff and his then wife entered into a contract to sell the property for the sum of €280,000. This contract was subject to a number of conditions, one being that the property had been constructed in accordance with the conditions of the planning permission and Building bye-law Regulations.
On or about 10 June 2008, the plaintiff became aware that the conditions for the grant of planning permission had not been complied with and the property was now considered as being an unauthorised development by Leitrim County Council, who had referred the matter to the Building Control and Enforcement Officer. It followed therefore that the contract for sale of the property which the plaintiff had entered into was now subject to a condition which could not be complied with.
Subsequently, the plaintiff received a 28-day notice from the purchaser of the property requiring completion of the sale by 12 October 2008. The plaintiff could not comply with this notice and on 16 October 2008 the purchaser rescinded the contract.
The property remained on the market but no further offers were received. The plaintiff claims that in March 2010 the property was valued at less than €100,000.
On 26 May 2014, these proceedings were commenced by issue of a plenary summons. The statement of claim was delivered on 25 August 2014. The plaintiff claims damages for, inter alia, negligence and breach of duty. The plaintiff claims that the fourth named defendant, its servants or agents were negligent and in breach of duty in failing to ensure that the plaintiff got a good marketable title to the property and failed to ensure that all legal preconditions were met. The plaintiff also maintained a claim for breach of contract against the fourth named defendant, its servants or agents in the same terms as in the claim for negligence and breach of duty.
As a preliminary issue, the fourth named defendant claims that the plaintiff's claim is barred by virtue of the provisions of the Act of 1957.
For the purposes of determining the issue the relevant dates are:-
i. 23 March 2006 – the first named defendant issued a certificate of compliance with planning permission and Building Regulations;
ii. April 2006 – the plaintiff and his then wife entered into negotiations with the second and third named defendants for the purchase of the property;
iii. 12 July 2006 – in purported reliance on the said certificate, the plaintiff and his then wife purchased the property for a total sum of €240,000;
iv. 28 May 2008 – the plaintiff and his then wife entered into a contract to sell the property for a sum of €280,000;
v. 10 June 2008 – the plaintiff became aware that certain conditions of the planning permission in respect of the property had not been complied with;
vi. 14 September 2008 – the proposed purchasers of the property served a 28-day notice requiring the plaintiff to complete the sale of the property by 12 October 2008;
vii. 16 October 2008 – the purported...
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