Yardley v Boyd

• Jurisdiction: Ireland
• Judge: Mr. Justice Herbert
• Judgment Date: 14 December 2004
• Neutral Citation: [2004] IEHC 385
• Court: High Court
• Docket Number: No. 215 P/1995
• Date: 14 December 2004

[2004] IEHC 385

THE HIGH COURT

No. 215 P/1995

YARDLEY v. BOYD

BETWEEN

SEAN YARDLEY (A MINOR) SUING BY HIS GRANDMOTHER AND NEXT FRIEND ROSALIND DIANE YARDLEY

PLAINTIFF

AND

PATRICIA BOYD

DEFENDANT

Abstract:

Practice and procedure - Limitations - Estoppels - Statute bar - Without prejudice communication - Whether reasonable to construe correspondence as indicating that Statute would not be pleaded - Whether defendants stopped from raising the plea - Civil Liability Act, 1961 section 9(2).

section 9(2) of the Civil Liability Act 1961 provides for a two year limitation period in respect of claims against a deceased’s estate. The plaintiff issued proceedings in January, 1995 against the defendant, nominated to defend the plaintiff’s father’s estate, for injuries arising out of an accident in 1992.

In her defence, the defendant pleaded, inter alia, that the proceedings were statute barred pursuant to section 9(2) of the Act of 1961. The plaintiff claimed that the defendant’s conduct and representations, express and implied, had induced the plaintiff to refrain from issuing proceedings within the limitation period and that the defendants were estopped from raising the plea by virtue of a letter written by the defendant’s insurers to the plaintiff’s solicitors.

Held by Herbert J in dismissing the action that the letter written by the insurers on behalf of the defendant to the plaintiff’s solicitors did not amount to a waiver of their right to plead the time-bar nor did it give rise to a circumstance where it would be unconscionable to rely on section 9(2) of the Act of 1961.

Reporter: P.C.

Mr. Justice Herbert

1 By a letter dated 20^th September 1993, Messrs Evill and Coleman, Solicitors, of Putney, London, Solicitors for Sean Yardley, (a minor), the Plaintiff in this action, who was injured in a road traffic accident on 28^th November, 1992 when a motor car then driven by his father, who died in the incident, skidded on ice and collided with a wall on the Gorey to Arklow road, wrote to Bradford-Pennine Insurance stating that they were still investigating quantum but asking whether the Insurers could, "confirm that liability will not be an issue." The Solicitors went on to state that unless the Insurers were, "prepared to admit same or confirm that it will not be an issue nor will contributory negligence be an issue," they would have to incur additional expense in investigating that aspect of the claim further. By a letter dated 23^rd September, 1993, Mr. Keith Colman, Assistant Claims Controller at Bradford-Pennine Insurance replied that, "based upon information that we have seen so far liability for the accident would not appear to be an issue."

2 By a letter dated 28^th September, 1993 Evill and Coleman, Solicitors, again wrote to Bradford-Pennine Insurance inviting the insurers to admit liability. The Insurers, through Mr. Keith Colman, replied by a letter dated 4^th October, 1993 as follows:-

"We thank you for your letter of 28^th September.

We are not saying that there is any other information to see simply that what we have seen so far suggests that liability is not a relevant issue. In the interests of all concerned can we not now make some headway with these claims? As previously requested and we await full details with some indications as to the parameters of the intended claims including documentary evidence."

3 By a letter dated 11^th April, 1994, Mr. John McGuire, Managing Clerk, of Evill and Coleman, Solicitors, wrote to Bradford-Pennine Insurance advising them that proceedings on behalf of Sean Yardley might be issued in Ireland. This was confirmed by a letter dated 25^th August, 1994. A brief dispute then arose as to the choice of venue for the proceedings, but the issue was soon conceded by the insurers. By a letter dated 21^st October, 1994 and marked, "without prejudice", Sun Alliance Ireland confirmed to Messrs Evill and Coleman, Solicitors that papers had been furnished to them to handle the claim and asked for the name of the Solicitors in this jurisdiction who would be dealing with the claim so that they might correspond with them. By letter dated 2^nd November, 1994 Messrs Evill and Coleman, advised Sun Alliance Ireland that the matter would be dealt with by Messrs Brophy, Solicitors.

4 In their letter of 25^th August, 1994 to Bradford-Pennine Insurance, Messrs Evill and Coleman pointed to a potential conflict of interest between Terence Yardley and Rosalind Diane Yardley as Administrators of the estate of the deceased Insured, while at the same time acting as Sole Guardians of the Plaintiff and, in the case of Terence Yardley, his Next Friend and also as the probable principal witnesses on his behalf, "in any proceedings". They indicated that in their opinion Terence Yardley and Rosalind Diane Yardley should renounce as Administrators in favour of a person to be nominated by the Insurers. In the events which occurred, the Defendant, Patricia Boyd, was not nominated by the Insurers until their letter of 19^th December, 1994, despite a farther request from Brophy, Solicitors, dated 17^th November, 1994 to Sun Alliance Insurance, (within the statutory period), and a further reminder dated 6^th December, 1994, (outside the statutory period). By letter dated 12^th December, 1994, (outside the statutory period) Sun Alliance Insurance advised Brophy Solicitors, that Messrs Miley and Miley were nominated to act as Solicitors for the Insurers.

5 The Plenary Summons in this action was issued on 11^thJanuary, 1995 and an Appearance was entered on behalf of the Defendant on 16^th January, 1995. A Statement of Claim was delivered on 23^rd January, 1995. A Notice for Particulars was served on 27^th January, 1995 to which Replies were given on 10^th October, 1995. A Defence was delivered on 23^rd November, 1995. At paragraph 1 of this Defence it is pleaded that this action is statute barred by virtue of the provisions of Section 9(2) of the Civil Liability Act,1961. A Notice of Intention to Proceed was served on behalf of the Plaintiff on 11^th November, 1999 and a Reply was delivered on 16^th December, 1999. Paragraphs 2, 3 and 4 of this Reply are in the following terms:-

6 2 "2. The Defendant is estopped from raising as a Defence the provisions of Section 9(2) of the Civil Liability Act,1961by reason of the acts and representations of the insurers of Sean Yardley, Deceased.

7 3. Further, by reason of the acts and representations of the insurers of Sean Yardley, Deceased, the Defendant has waived her right to rely upon the provisions of Section 9(2) of the Civil Liability Act,1961.

8 4. Without prejudice to the foregoing within the period of two years of the date of the road traffic accident which is the subject matter of these proceedings, the insurers of Sean Yardley, Deceased, stated and/or inferred that liability would be admitted and the Defendant is therefore estopped from escaping liability by pleading Section 9(2) of the Civil Liability Act,1961."

9 In Replies to Particulars dated 6^th October, 2000, the Solicitors for the Plaintiff cited the extracts to which I have already referred from the letters of 23^rd September, 1993 and4^th October, 1993 from Bradford-Pennine Insurance to Evill and Coleman Solicitors as the relevant acts and representations of the insurers admitting liability. In the same Replies to Particulars, they cite the third paragraph of a letter dated 6^th September, 1994 from Bradford-Pennine Insurance to Evill and Coleman, Solicitors, as constituting a waiver by the Insurers of their right to rely on the provisions of Section 9(2) of the Civil Liability Act,1961. This letter states as follows:-

"We thank you for your letter of 25^th August.

Whilst appreciating the difficulties that you describe before we nominate Legal Representatives considerable clarification is required regarding jurisdiction.

As we understand the situation the surviving boy Sean on who's behalf of the action will be brought is and always has been a UK citizen and there is no indication that the grandparents who intend to bring this action on his behalf were not also domicile in the UK at the time this accident occurred and that being the case advice we have received is that this action should be brought in the UK and not in the Republic. If that is agreed then we will nominate Solicitors to handle the formalities but if it is not agreed please state the authority upon which you base any decision to bring this action in the Republic notwithstanding the fact that all concerned are UK citizens."

10 These Replies to Particulars dated 6^th October, 2000 then continue as follow:-

"In the circumstances of the said correspondence and representations and acts of the insurers for the Defendant, the Defendant is estopped from raising as a Defence the provisions of Section 9 of The Civil Liability Act in that the said...