Traynor v Fegan
| Jurisdiction | Ireland |
| Judge | Mr. Justice Barrington |
| Judgment Date | 12 July 1985 |
| Neutral Citation | 1985 WJSC-HC 2811 |
| Docket Number | No. 11470P/1980,[1980 No. 11470P] |
| Court | High Court |
| Date | 12 July 1985 |
1985 WJSC-HC 2811
THE HIGH COURT
BETWEEN:
AND
Judgment of Mr. Justice Barringtondelivered the 12th day of July, 1985.
This is an issue raised, by agreement between the parties, on whether the plaintiff's claim herein is barred by virtue of the provisions of the Statute of Limitations Act 1957.
The case is, to say the least, an unusual one.
The accident, the subject-matter of the proceedings, took place on the 25th of October, 1977. Proceedings were not issued until the 17th of December, 1980 so that there is no doubt that the proceedings were out of time. The parties are agreed that the real issue is whether, in the events which have happened, the defendant should be prevented, or estopped, from raising the statute. There is no substantial conflict of fact between the parties as to what happened. Both parties have laid all relevant correspondence and attendances before the Court and the Court also heard oral evidence.
The plaintiff suffered serious injury when she was travelling, as a passenger, in a motor car being driven by Mr. James Fegan who resided at Forkhill in Co. Armagh in Northern Ireland.
On the 12th of January, 1978 the plaintiff's solicitors,Messrs Dickie Coulter & Hamill wrote the usual originating letter to Mr. James Fegan. This drew a response from the Eagle Star Group of 5 Linenhall Street, Belfast some fifteen months later on the 27th of March, 1979. The letter was marked without prejudice and was in the following terms
"Dear Sirs,"
We regret that we do not appear to have acknowledged your letter of the 12th of January, 1978 to our insured although the writer did subsequently have preliminary discussion with your Mr. Mac Guill.
We did in fact nominate Messrs G.D. Fottrell & Son as solicitors who would accept service of proceedings but we wonder if, in the meantime, you would be prepared to discuss the case with us.
Please let us have full details of special damage.
You might also let us know if you are prepared to share your medicalevidence.
Yours faithfully,"
The letter was signed by Mr. Moore, an insurance inspector with the Eagle Star Group. As the letter indicated Mr. Moore and Mr. Mac Guill, who is the principal of Messrs Dickie Coulter & Hammill, solicitors, had already discussed the case. In fact Mr. Moore and Mr. Mac Guill knew each other having dealt with many cases arising out of accidents in the Border areas.
In his letter Mr. Moore wrote "We did in fact nominateMessrs G.D. Fottrell and Son as solicitors who would accept service of proceedings" within the jurisdiction. Unfortunately this statement, though made without ulterior motive, was not true. Mr. Moore intended to nominate Messrs G.D. Fottrell and Sons but, either forgot to do so, or postponed doing so pending negotiations which he hoped to have with Mr. Mac Guill concerning the case. I am satisfied however that, throughout what followed, Mr. Mac Guill acted on the basis that solicitors had been nominated within the jurisdiction to accept service and that there would be no problem about issuing and servingproceedings.
Because of the postal strike which was then taking place Mr. Moore's letter of the 27th of March, 1979 did not reach Mr. Mac Guill until the 9th of July, 1979. Mr. Mac Guill immediately wrote back inviting the insurance company's inspector to call to see him the next time he was in the area. Mr. Mac guill received no answer to this letter and on the 6th of February, 1980 wrote again enquiring when it would be convenient for Mr. Moore to call to see him. Again he received no answer. On the 2nd of April, 1980 Mr. Mac Guill wrote again saying - "We are anxious to make progress in this matter so we look forward to hearing from you as soon as convenient." Still there was no answer.
These three letters of Mr. Mac Guill's are missing from the insurance company's file. Mr. Moore did not dispute that they had been written but was at a loss to understand why they had not been dealt with. Presumably they were misfiled.
On the 8th of May, 1980 Mr. Mac Guill wrote again saying"We refer to previous correspondence herein and in particular to our letter of the 2nd of April. We arevery anxious to deal with this matter so we wonder if your representative is likely to be in our area in the nearfuture?"
Again there was no answer.
Meanwhile, Mr. Mac Guill had discovered, from his own researches, that the proposed defendant, Mr. James Fegan, had been killed in another motor accident on the 18th of January, 1980. On the 6th of August, 1980 he wrote to the insurance company drawing this fact to their attention, referring to the complications it might give rise to and suggesting a meeting with Mr. Moore to discuss settlement. Meanwhile, the extent of the plaintiff's injuries were becoming clear and, under cover of his letter of the 6th of August, 1980, Mr. Mac Guill, in response to Mr. Moore's original suggestion, enclosed copies of three medical reports on the plaintiff.
Still there was no answer from the insurance company. Sometime early in September Mr. Mac Guill telephoned Mr. Moore and followed this up by a letter of the 10th of September, 1980. The letter was marked "urgent" and was in the following terms:
"Dear Sir,
We refer to our telephone conversation with your Mr. Moore, when we informed you that as far as we are aware the insured died in Januarylast.
Mr. Moore has nominated solicitors in Dublin to accept service of the proceedings. Mr. Moore was to let us know the name and address of the deceased's personal representative or widow.
As the matter is now extremely urgent perhaps you wouldrequest Mr. Moore to telephone us to transmit this information as soon as possible."
Meanwhile, Mr. Mac Guill had a search made in Belfast to ascertain if a grant had been raised to the estate of the late James Fegan. He discovered that no such grant had been raised. At some stage, however, he and Mr. Moore agreed that no point would be taken by the insurance company if proceedings were issued naming the present defendant, Elizabeth Fegan, as defendant and that the insurance company would honour any decree obtained in such proceedings.
On the 15th of October, 1980 Mr. Moore and Mr. Mac Guill had a further discussion about the case. Both parties were interested in settlement but Mr. Mac Guill wished to have negotiations carried on through Counsel. It was therefore agreed that the proceedings should be issued and a joint consultation arranged between Counsel. Mr. Moore again confirmed that Messrs Fottrell would accept service of proceedings.
At this stage the story takes another strange turn. On the 25th of September, 1980 Mr. Mac Guill had sent a Plenary Summons to his town agent, Messrs Pearts, to issue and serve it. Mr. Duhy of Messrs Pearts office called to the Central Office on the 2nd day of October, 1980 to issue the Plenary summons but the official in the Central Office refused to issue the Plenary Summons on the grounds that the defendant named in the Plenary summons was resident out of the jurisdiction. He said that the Central Office did not issue such Summonses unless there was an Order of the Court authorising service out of the jurisdiction or unless the plaintiff's solicitor could produce a letter from a solicitorwithin the jurisdiction undertaking to accept service on behalf of thedefendant.
On the 2nd of October, 1980 Messrs Pearts returned the Plenary Summons to Messrs Dickie Coulter & Hamill under cover of a letter which they stated -
"We regret we must return your Plenary Summons in triplicate in the above matter. We wish to point that as the defendant lives outside the jurisdiction we are required to obtain a letter from a solicitor inside the jurisdiction agreeing to accept service on behalf of the defendant. Otherwise you may (sic.) an Order of the Court granting liberty to service (sic.) this Summons outside thejurisdiction."
On the 8th of October Mr. Mac Guill returned the Plenary Summons to Messrs Pearts enclosing a copy of the letter from the Eagle Star Group dated the 27th of March, 1979 in which the Eagle Star Group stated that they had nominated Messrs Fottrell and Sons to accept service. He pointed out that the matter was now extremely urgent as the Statute of Limitations was nearly run out. He added that he thought the question of service would not arise until the proceedings had been issued and he asked Messrs Pearts to contact him by telephone if there was any difficulty. On the same date he wrote to Messrs Fottrell & Sons, enclosing another copy of the letter from the Eagle Star stating that they had nominated them to accept service and pointing out that his town agent required a letter undertaking to accept service in order that the High Court proceedings could issue.
At this stage Mr. Mac guill thought of making an application for service out of the jurisdiction. But he hadan agreement with Mr. Moore and he felt he should not go behind it. It suited both of them to have the proceedings issued against Mrs. Fegan but Mrs. Fegan had not taken out representation to the estate of her late husband and, apart from the agreement made between Mr. Moore and Mr. Mac Guill, the insurance company was under no obligation to honour a decree obtained against her. Indeed, apart from the agreement, the plaintiff had no cause of action against her and would not have been entitled to an Order for service out of the jurisdiction. But I am satisfied that Mr. Mac Guill principally relied on the insurance company's agreement to accept service of proceedings and, while he was worried about the fact that the statute was running out, he felt that the procedural difficulty would be ironed out before the statute ran out or that the insurance company would take no point on it.
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