Tuohy v Courtney

JurisdictionIreland
JudgeMr. Justice Lynch,FINLAY C.J.
Judgment Date26 July 1994
Neutral Citation1992 WJSC-HC 4268,1994 WJSC-HC 4196
CourtHigh Court
Docket NumberNO. 3362P/1987
Date26 July 1994

1992 WJSC-HC 4268

THE HIGH COURT

NO. 3362P/1987
TUOHY v. COURTNEY

BETWEEN

JAMES TUOHY
PLAINTIFF

AND

DANIEL J. COURTNEY AND MICHAEL C. LARKIN PRACTISING UNDER THE TITLE AND STYLE OF DOWNING COURTNEY AND LARKIN AND JOHN MOYLAN AND RICHARD MOYLAN PRACTISING UNDER THE TITLE AND STYLE OF RICHARD MOYLAN AND COMPANY
DEFENDANTS

Citations:

CONSTITUTION ART 40.3

CONSTITUTION ART 43

STATUTE OF LIMITATIONS 1957 S11

RSC O.60 r1

STATUTE OF LIMITATIONS 1957 S11(1)(a)

STATUTE OF LIMITATIONS 1957 S11(2)(a)

LANDLORD & TENANT (GROUND RENTS) ACT 1967

LANDLORD & TENANT (GROUND RENTS) (NO 2) ACT 1978

LANDLORD & TENANT ACT 1931 S19(1)(b)

RENT RESTRICTIONS ACT 1960

RENT RESTRICTIONS (AMDT) ACT 1967

LANDLORD & TENANT (AMDT) ACT 1980 S13(1)(b)

TAYLOR V RYAN UNREP FINLAY 10.3.83 1983/12/3596

KELLY V CROWLEY 1985 IR 212

ROCHE V PIELOW 1985 IR 232

STATUTE OF LIMITATIONS (AMDT) ACT 1991 S2(1)(b)

STATUTE OF LIMITATIONS 1957 S11(2)(b)

CONSTITUTION ART 40.3.2

CONSTITUTION ART 40.3.1

CIVIL LIABILITY ACT 1961 S9

CONSTITUTION ART 6

CONSTITUTION ART 15.2

STATUTE OF LIMITATIONS (AMDT) ACT 1991 S3(2)

STATUTE OF LIMITATIONS (AMDT) ACT 1991 S3(2)(a)

REINSFORD V LIMERICK CORPORATION UNREP FINLAY

FINLAY V MURTAGH 1979 IR 249

O DOMHNAILL V MERRICK 1984 IR 151

TOAL V DUIGNAN & ORS (NO 1) 1991 ILRM 135

TOAL V DUIGNAN & ORS (NO 2) 1991 ILRM 140

CAHILL V SUTTON 1980 IR 269

MORGAN V PARK DEVELOPMENTS 1983 ILRM 156

BRADY V DONEGAL CO COUNCIL 1989 ILRM 252

NORRIS V AG 1984 IR 36

HEGARTY V O'LOUGHRAN 1990 1 IR 148

MOYNIHAN V GREENSMYTH 1977 IR 55

RYAN V IRELAND & AG 1989 ILRM 544

DREHER V IRISH LAND COMMISSION 1984 ILRM 94

O'CALLAGHAN V COMMISSIONERS OF PUBLIC WORKS 1985 ILRM 364

O'BRIEN V KEOGH 1972 IR 144

O'BRIEN V MANUFACTURING CO LTD 1973 IR 334

MACAULEY V MIN FOR POST & TELEGRAPHS 1966 IR 345

BYRNE V IRELAND & AG 1972 IR 241

CARTLEDGE V JOBLING & SONS 1963 AC 758

D W MOORE V FERRIER 1988 1 AER 400

BELL V BROWNE 1990 3 AER 124

Synopsis:

CONSTITUTION

Statute

Validity - Action - Commencement - Time limit - Measure - Knowledge of plaintiff - Tort - Breach of contract - Solicitor - Property - Purchase - Tenure - Nature - Leasehold - Disclosure to client - Failure - Client relying on acquisition of fee-simple interest - Client's claim to damages - Claim statute-barred - Statute valid under Constitution - (1987/3362 P - Lynch J. - 3/9/92)- [1994] 3 IR 1

|Tuohy v. Courtney|

CONSTITUTION

Personal rights

Recourse to courts - Limitation - Action - Commencement - Time limit - Measure - Knowledge of plaintiff - Tort - Breach of contract - Solicitor - Property - Purchase - Tenure - Nature of acquisition of fee-simple interest - Client's claim to damages - Claim statute-barred - Statute valid under Constitution - (1987/3362 P - Lynch J. - 3/9/92)- [1994] 3 IR 1

|Tuohy v. Courtney|

LIMITATION OF ACTIONS

Negligence

Solicitor - Property - Purchase - Tenure - Nature - Leasehold - Disclosure to client - Failure - Client relying on acquisition of fee-simple interest - Client's claim to damages - Claim statute- barred - Statute valid under Constitution - (1987/3362 P - Lynch J. - 3/9/92)- [1994] 3 IR 1

|Tuohy v. Courtney|

NEGLIGENCE

Solicitor

Property - Purchase - Tenure - Nature - Leasehold - Disclosure to client - Failure - Client relying on acquisition of fee-simple interest - Client's claim to damages - Expiration of limitation period - Calculation of period - Plaintiff's knowledge of time of injury irrelevant - Claim statute-barred - Statute valid under Constitution - Statute of Limitation, 1957, s. 11 - Statute of Limitations (Amendment) Act, 1991, ss. 2, 3 - Constitution of Ireland, 1937, Articles 40, 43 - (1987/3362 P - Lynch J. - 3/9/92)- [1994] 3 IR 1

|Tuohy v. Courtney|

PROFESSIONS

Solicitors

Advice - Property - Purchase - Tenure - Nature - Leasehold - Disclosure to client - Failure - Client relying on acquisition of fee-simple interest - Client's claim to damages - Claim statute- barred - Statute valid under Constitution - (1987/3362 P - Lynch J. - 3/9/92)- [1994] 3 IR 1

|Tuohy v. Courtney|

1

Judgment of Mr. Justice Lynch delivered the 3rd day of September 1992.

2

The Plaintiff claims in this action damages against the first and second Defendants (Mr. Courtney) for alleged breach of contract and negligence as his Solicitors in connection with the purchase by him of a house in the year 1978: and against the third and fourth Defendants (Moylans) for alleged negligence as having proferred inaccurate information to him regarding the estate or interest for sale in the house in question.

3

The action was commenced by a Plenary Summons issued on the 10th day of April 1987 and appearances having been entered thereto the Statement of Claim was delivered on the 20th of November 1987. Defences were delivered on behalf of Moylans on the 29th of February 1988 and on behalf of Mr. Courtney on the 18th of August 1988 and each of these defences pleaded that the Plaintiff's claim was time-barred by Section 11 of the Statute of Limitations 1957. In replies delivered to each of these defences the Plaintiff denied that his action was time-barred by the said section. By orders of the High Court made by myself on consent on the 16th of October 1989 it was ordered that a preliminary issue be tried wherein the Defendants should be Plaintiffs and the Plaintiff should be Defendant the question to be tried to be:

"Whether the Plaintiff's cause of action (if any) against the first and second named Defendant or alternatively against all the Defendants did not accrue within 6 years before the commencement of the proceedings herein (namely 10th April 1987) and whether the Plaintiff's cause of Action is barred by the provisions of Section 11 of the Statute of Limitations 1957".

4

And directions were given as to pleadings in the said issue.

5

In his defence in the said issue the Plaintiff raised for the first time a plea that:

"If (which is denied) the Plaintiff's claim is barred by the provisions of Section 11 of the Statute of Limitations 1957 as alleged by the Defendants the said section of the Statute of Limitations 1957 or such subsections or paragraphs thereof as the Defendants may rely upon at the trial hereof are invalid having regard to the provisions of Article 40.3 and Article 43 of the Constitution of Ireland."

6

And the Plaintiff further counter-claimed:

"In the alternative the Plaintiff counter-claims in the context of the preliminary issue for a declaration that Section 11 of the Statute of Limitations 1957 or such sections and subsections thereof as may be relied upon by the Defendants herein are invalid having regard to the provisions of Article 40.3 and Article 43 of the Constitution of Ireland."

7

In addition to the foregoing paragraphs the plaintiff served on the Chief State Solicitor for the Attorney General the Notice required by Order 60 Rule 1 of the Rules of the Superior Courts.

8

The preliminary issue directed to be tried by the Order of the 16th of October 1989 came on for hearing before the High Court (Blayney J.) on the 9th of April 1991 and it was held that:

"The Plaintiff's cause of action against the Defendants did not accrue within 6 years before the commencement of the proceedings (namely the 10th April 1987) and the Plaintiff's cause of action is barred by the provision of Section 11 of the Statute of Limitations 1957".

9

It was further ordered that the Plaintiff be at liberty to deliver ammended replies in the main action to plead the Constitutional issue therein and that was duly done by the Plaintiff. It was also ordered by Blayney J. that a further issue be tried:

"whether Section 11(1) (a) and Section 11(2) (a) of the Statute of Limitations 1957 are invalid having regard to the provisions of Article 40.3 and Article 43 of the Constitution".

10

The last mentioned issue came for trial before the High Court (Lardner J) on the 7th of April 1992 and at the outset Counsel for the Attorney General submitted that the Court should not embark on the Constitutional issue without first determining the true facts of the case and whether on such facts the Plaintiff had an interest or locus standi to raise the Constitutional issue. In those circumstances Lardner J. adjourned the hearing of the matter to the 18th of June 1992 and further ordered that Mr. Courtney should be at liberty to amend his defence by adding the following plea thereto:

"The claim of the Plaintiff ought to be dismissed by reason of the inordinate and inexcusable delay on the part of the Plaintiff in instituting and prosecuting these proceedings."

11

Mr. Courtney duly amended his defence in the foregoing manner and the Plaintiff delivered an amended reply thereto and the matter came on for hearing before me on Thursday the 18th of June 1992. Counsel for the Plaintiff opened the facts fully to me on that day and at the conclusion of the opening Counsel for the Defendants submitted that the matter should not go any further on the basis that as Blayney J. had held the Plaintiff's claim to be statute-barred any further hearings would be no more than a moot and oppressive on the Defendants. Counsel for the Plaintiff replied that Blayney J. had specifically not decided the Constitutional issue which was not before him on the terms of the Order of the 16th of October 1989 but had left that issue over for a separate hearing and had given liberty to the Plaintiff to plead that issue in his reply in the main action and the matter came before Lardner J. on that basis.

12

I adjourned my ruling on these preliminary submissions over night and on Friday the 19th of June 1992 I gave my ruling. I decided that there were a number of issues still outstanding and requiring to be decided and that I would dispose of all of them. I ruled that I would hear all the evidence as to the facts of the case and hear submissions...

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