Task Construction Ltd & Gaffney v BCM Hanby Wallace & Company

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 30 January 2009
• Neutral Citation: [2009] IEHC 74
• Court: High Court
• Date: 30 January 2009

[2009] IEHC 74

THE HIGH COURT

[No. 1570P/2007]

Task Construction Ltd & Gaffney v BCM Hanby Wallace & Co

BETWEEN

TASK CONSTRUCTION LIMITED AND EDWARD GAFFNEY

PLAINTIFFS

AND

WILLIAM B. DEVINE, SOLICITORS, PRACTISING UNDER THE STYLE AND TITLE OF BCM HANBY WALLACE AND COMPANY, 88 HARCOURT STREET, IN THE COUNTY OF DUBLIN

DEFENDANT

RSC O.19 r27

STAMP DUTIES CONSOLIDATION ACT 1999 S127

STAMP DUTIES CONSOLIDATION ACT 1999 S8(3)

STAMP DUTIES CONSOLIDATION ACT 1999 S8(4)

STATUTE OF LIMITATIONS 1957 S71(1)

STAMP DUTIES CONSOLIDATION ACT 1999 S160(2)

STAMP ACT 1891 S12(5) (UK)

MORGAN v PARK DEVELOPMENTS LTD 1983 ILRM 156 1983/3/700

HEGARTY v O'LOUGHRAN & EDWARDS 1990 1 IR 148 1990 ILRM 403

DOYLE v C & D PROVIDERS (WEXFORD) LTD 1994 3 IR 57 1995/2/414

TUOHY v COURTNEY 1994 3 IR 1 1994 2 ILRM 503 1992/13/4268

PRACTICE AND PROCEDURE

Limitation of actions

Fraud - Sale of property in 1986 - Alleged fraud on Revenue - Whether alleged fraud prevented operation of Statute of Limitations - Whether any loss to plaintiff as result of alleged fraud - Whether right of action concealed by fraud of defendant - Whether any fraud on plaintiffs - When period of limitation began to run - Test of discoverability - Whether action statute barred - Morgan v Park Developments Ltd [1983] ILRM 156; Hegarty v O'Loughran [1990] 1 IR 14; Doyle v C and D Providers (Wexford) Ltd [1994] 3 IR 57 and Touhy v Courtney [1994] 3 IR 1 applied - Statute of Limitations 1957 (No 6), s 71(1)- Stamp Duties Consolidation Act 1999 (No 31), s 160(2) - Action statute barred (2007/1570P - Dunne J - 30/1/2009) [2009] IEHC 74

Task Construction v Devine Solicitors

1 JUDGMENT delivered by Ms. Justice Dunne on the 30th day of January 2009

2 The proceedings herein were commenced by plenary summons issued on the 1 ^st March, 2007. An undated statement of claim was delivered containing some 71 paragraphs. A notice of motion was issued on behalf of the defendant on the 18 ^th April, 2007. That motion first came before me for hearing on the 4 ^th June, 2008. At that hearing I made an Order joining Mr. Edward Gaffney as a plaintiff in the proceedings. The relief sought in the notice of motion was as follows:-

3 2 "(1) An Order dismissing or striking out the plaintiffs' claim on the basis that the subject matter of the claim is res judicata and/or that the plaintiff is estopped from bringing the claim because of issue estoppel.

4 2. In the alternative, an Order, pursuant to the inherent jurisdiction of this honourable Court, dismissing or striking out the plaintiffs' claim that it amounts to an abuse of the process of this honourable Court.

5 (3) An Order, pursuant to Order 19, rule 27 of the Rules of the Superior Courts, or alternatively pursuant to the inherent jurisdiction of his honourable Court, striking out the entire of the plaintiffs' statement of claim or such part thereof as to this honourable Court seems fit on the basis that it is scandalous.

6 (4) An Order pursuant to the provisions of the Statute of Limitations 1957 dismissing the plaintiffs' action on the basis that it is statute-barred.

7 (5) An Order restraining the plaintiffs from instituting any further proceedings against the defendant without first obtaining leave of the Court."

8 Further ancillary relief was sought.

9 Following the hearing on that occasion I declined to make the Order sought at paragraph 1 of the notice of motion. I was however, satisfied that the statement of claim of the plaintiffs as before the Court was scandalous and an abuse of the process of the Court and on that basis I determined that part of the statement of claim be struck out, namely, paragraphs 34 to 70. That left before the Court paragraphs 1 to 33 inclusive and paragraph 71 of the statement of claim. I then directed the plaintiff to deliver an amended statement of claim to reflect the Order made by me and I adjourned the balance of the motion, namely an issue as to the Statute of Limitations to be heard at a later date. The matter then appeared before me from time to time for mention. Ultimately, the matter came back before me for hearing in relation to the outstanding issue on the notice of motion on the 17 ^th December, 2008.

10 As I have mentioned the matter came back before me on a number of occasions for mention. This was to ensure that the amended statement of claim had been delivered and to allow a defence to be filed before the issue of the Statute of Limitations was heard and determined. It transpired that there was some confusion on the part of the plaintiffs as to what steps were required to be taken. This is perhaps understandable as the company was not represented before the Court and Mr. Gaffney appeared on his own behalf. At one of the "for mention" hearings, it became apparent that the plaintiffs had delivered a further amended statement of claim to the defendant. This statement of claim contained some six paragraphs (there was some dispute about this - initially, it appears that a three paragraph statement of claim was received by the defendant but I accept that the plaintiffs at all times intended to rely and tried to provide the defendant with a six paragraph statement of claim. Some mishap or confusion led to the defendant only receiving the first three paragraphs of that statement of claim.) In any event, I pointed out to Mr. Gaffney that he could not simply deliver a further statement of claim without leave of the Court. As it was indicated to me that the plaintiffs intended to rely on that statement of claim, I gave leave to the plaintiffs to deal with the matter on the basis that they were now relying on the six paragraph statement of claim. A defence was delivered on the 24 ^th June, 2008 in which inter alia, the Statute of Limitations was pleaded.

11 An affidavit of William B. Devine was sworn on the 25 ^th July, 2008 setting out the basis of the application to dismiss the proceedings on the grounds that the same are statute-barred. Five affidavits were sworn by Mr. Gaffney in response - on the 1 ^st July, 2008, a second affidavit on the 1 ^st July, 2008, the 7 ^th July, 2008, the 30 ^th September, 2008 and the 10 ^th November, 2008. I do not propose at this point to refer in detail to the affidavits save to say this: in each of the affidavits sworn herein by Mr. Gaffney subsequent to the hearing on the 4 ^th June, 2008, it is stated that the ruling of the Court on that date was to refuse the relief sought in paragraphs 1, 2, 4, 5 and 6 of the defendant's notice of motion. The affidavits go on to state:-

"That the issue of the Statute of Limitations does not apply as the pleading of stamp duty is re-stated and that cause of action did not occur until February 2006 when I first saw the purported Deed of 24 ^th September, 1986."

12 Given the various averments to the like effect in the affidavit sworn by Mr. Gaffney, it is clear that he is under a serious misapprehension as to what occurred on the 4 ^th June, 2008. That aspect of the defendant's motion was not refused but adjourned pending the completion of the pleadings in the case as I have stated above. Having clarified that aspect of the matter for the benefit of Mr. Gaffney on the 17 ^th December, 2008, I proceeded to hear the application to dismiss the proceedings on the basis that the same are statute barred. For case of reference I think it would be helpful to set out in full the statement of claim now relied on by the plaintiffs:-

13 2 "1. On or about the 24 ^th September, 1986, the defendant, William B. Devine, as solicitor for the first named plaintiff did, negligently prepare and execute a Deed of Transfer for the sale of his client's property at 4A, Knocklyon Road, Templeogue, Dublin, 16, which served to dispose of the property for the sum of £6,000 when at the time the property was valued at £60,000.

14 2. In the circumstances the plaintiff suffered a loss of 90% of the value of the property, in an act that was ultra vires the object of the client, a limited liability company.

15 3. The plaintiff claims compensation in...