Tuohy v Courtney

JurisdictionIreland
CourtSupreme Court
JudgeO'Flaherty J.
Judgment Date26 July 1994
Neutral Citation1994 WJSC-SC 4178
Date26 July 1994
Docket Number[1987 No. 3362P],338/345/92

1994 WJSC-SC 4178

THE SUPREME COURT

Finlay C.J.

O'Flaherty J.

Egan J.

Blayney J.

Denham J.

338/345/92
TUOEY v. COURTNEY
JAMES TUOHY
Plaintiff/Appellant

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/Respondents

AND

THE ATTORNEY GENERAL
Notice Party/Repsondent

Citations:

HAY V O'GRADY 1992 1 IR 210

BEST V WELCOME FOUNDATION LTD 1993 3 IR 421

TUOHY V COURTNEY UNREP LYNCH 3.9.92 1992/13/4268

STATUTE OF LIMITATIONS 1957 S11

STATUTE OF LIMITATIONS 1957 S11(1)(a)

STATUTE OF LIMITATIONS 1957 S11(2)(a)

CAHILL V SUTTON 1980 IR 269

STATUTE OF LIMITATIONS 1957 S11(2)(b)

HEGARTY V O'LOUGHRAN 1990 1 IR 148

MORGAN V PARK DEVELOPMENTS LTD 1983 ILRM 156

O'DOMHNAILL V MERRICK 1984 IR 151

O'BRIEN V KEOGH 1972 IR 144

O'BRIEN V MANUFACTURING ENGINEERING CO LTD 1973 IR 334

MOYNIHAN V GREENSMITH 1977 IR 55

FOLEY V IRISH LAND COMMISSION 1952 IR 118, 1957 86 ILTR 44

AG V SOUTHERN INDUSTRIAL TRUST LTD 94 ILTR 16

KELLY ON THE CONSTITUTION 3ED 1064

TOAL V DUIGNAN 1991 ILRM 140

COMMON LAW PROCEDURE (IRL) ACT 1853

STATUTE OF LIMITATIONS 1957 S11(2)(c)

CARTLEDGE V E JOPELAN & SONS LTD 1963 AC 758

STATUTE OF LIMITATIONS 1939 UK

CONSTITUTION ART 40

CONSTITUTION ART 40.3.1

CONSTITUTION ART 40.3.2

CONSTITUTION ART 40.3

STATUTE OF LIMITATIONS 1957 PART III

Synopsis:

CONSTITUTION

Personal rights

Litigation - Commencement - Period - Limitation - Oireachtas - Function - (338/92 - Supreme Court - 26/7/94) 1994 2 ILRM 503

|Tuohy v. Courtney|

CONSTITUTION

Statute

Validity - Litigation - Commencement - Period - Limitation - Causes of action - Breach of contract and tort - Plaintiff unaware of extent of loss until end of limitation period - Enactment omitting to provide extension of limitation period where plaintiff's knowledge incomplete - ~Locus standi~ of plaintiff - Function of Oireachtas to impose appropriate limitation periods - Statute of Limitations, 1957, s. 11 - (338/92 - Supreme Court - 26/7/94) 1994 2 ILRM 503

|Tuohy v. Courtney|

LIMITATION OF ACTIONS

Limitations

Oireachtas - Function - Statute - Validity - Challenge - Causes of action - Breach of contract and tort - Plaintiff unaware of extent of loss until end of limitation period - Enactment omitting to provide extension of limitation period where plaintiff's knowledge incomplete - ~Locus standi~ of plaintiff - Function of Oireachtas to impose appropriate limitation periods - (338/92 - Supreme Court - 26/7/94) 1994 2 ILRM 503

|Tuohy v. Courtney|

PRACTICE

Appeal

Facts - Findings - Court - Function - Trial - Conflict of oral testimony - Decision of trial judge resolving conflict - Whether evidence to support decision - (338/92 - Supreme Court - 26/7/94) 1994 2 ILRM 503

|Tuohy v. Courtney|

PRACTICE

Parties

~Locus standi~ - Statute - Validity - Challenge - Causes of action - Breach of contract and tort - Plaintiff unaware of extent of loss until end of limitation period - Enactment omitting to provide extension of limitation period where plaintiff's knowledge incomplete - ~Locus standi~ of plaintiff - (338/92 - Supreme Court - 26/7/94) 1994 2 ILRM 503

|Tuohy v. Courtney|

SUPREME COURT

Appeal

Facts - Findings - Court - Function - Trial - Conflict of oral testimony - Decision of trial judge resolving conflict - Whether evidence to support decision - (338/92 - Supreme Court - 26/7/94) 1994 2 ILRM 503

|Tuohy v. Courtney|

1

Judgment of O'Flaherty J. delivered the26th day of July, 1994. [NEM DISS]

2

This judgment is concerned with the dismiss of the plaintiff's claim for damages for negligence brought against the third and fourth named defendants ("Moylans") who were the solicitors for the vendor in the transaction in question and who had supplied to the plaintiff information - inaccurate information according to him - as regards the title to the premises 8 Annabella Terrace, Mallow.

3

Without calling on counsel for Moylans, the Court intimated in the course of the hearing that the appeal of the plaintiff against Moylans should be dismissed.

4

I now set out the reasons why the appeal should be dismissed.

5

It is pertinent to reiterate the function of this Court in reviewing findings of fact made by a High Court judge. The relevant principles have been outlined by this Court in the recent decisions: Hay .v. O'Grady [1992] 1 IR 210 and Best .v. Welcome Foundation Limited [1993] 3 IR 421 at 482, 483. The jurisdiction of this Court in reviewing findings of primary fact made by a trial judge is confined to determining whether the findings made are supported by credible evidence.

6

It was pleaded on behalf of the plaintiff in the statement of claim delivered on his behalf that he had a long standing personal and professional relationship with the Moylans, father and son, that is Richard Moylan and John Moylan. It is clear that the firm had acted for him in recent ejectment proceedings, for example.

7

The plaintiff attended on Mr. John Moylan to ascertain the nature of the title to the premises. It was pleaded that Mr. Moylan informed the plaintiff that the title in question was freehold title subject to a ground rent but that he explained that the grounds upon which the house was built was owned by a third party but that the house itself would be the property of the plaintiff. Having been asked by the manager of the branch of Allied Irish Bank plc. at Mallow to ascertain details of the title it was pleaded, further, that the plaintiff visited Mr. Moylan's office again on the 15th September, 1978 and repeated his request for information concerning the title. That Mr. Moylan again informed the plaintiff that the title was freehold title subject to a ground rent of £40.00 per annum for 99 years from 1923. In giving the said advice and information to the plaintiff it was pleaded that Mr. Moylan was under a duty to exercise all due professional care, skill and diligence as well as having a fiduciary duty to represent accurately to the plaintiff the type of title which was the subject matter of the said sale particularly having regard to the trust and confidence which the plaintiff reposed in Mr. Moylan, which trust and confidence was well known to Mr. Moylan. Further, it was pleaded that Mr. Moylan was fully aware that the plaintiff was borrowing money from the A.I.B. for the purpose of completing the said purchase and was relying upon the information and advice which Mr. Moylan gave to the plaintiff.

8

The statement of claim went on to plead that in giving the said advice and information to the plaintiff Mr. Moylan was guilty of negligence and breach of duty in that the said title was not in fact a freehold title subject to a ground rent, but was on the contrary a leasehold interest only for a term of 99 years from the 1st October 1919 at a yearly rent of £42.50. In advising and informing the plaintiff as aforesaid, it was pleaded that Mr. Moylan negligently and in breach of duty omitted to make due and proper inquiries as to the nature of the said title or misunderstood the nature of the said title.

9

It is clear that there was a sharp conflict of evidence between the plaintiff and Mr. Moylan as to what was said at the two meetings.

10

The learned trial judge with characteristic lucidity summarised this aspect of the case as follows:

11

The plaintiff called into Moylans first either on the 14th or the 15th of September 1978 and spoke to Mr. John Moylan. He then called to his bank and spoke to the manager who sent him back to Mr. John Moylan to clarify as to whether the interest for sale was freehold or leasehold. The plaintiff called back to Mr. John Moylan and had a further conversation with him and then returned to his bank manager and the application form was filled in by the manager at paragraph 8 thereof as follows:-

"Freehold. Ground Rent £40 p.a. for 99 years from 1923"

12

These conversations between the plaintiff and Mr. John Moylan and the bank manager all took place either on the 15th of September 1978 the date of the loan application form or the first one of them may have taken place on...

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