THE HIGH COURT
1995 No. 215 P
SEAN YARDLEY (A MINOR) SUING BY HIS GRANDMOTHER AND NEXT FRIEND ROSALIND DIANE YARDLEY
JUDGMENT of Mr. Justice Herbert delivered the 14th day of December, 2004
By a letter dated 20th 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 28th 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 23rd 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."
By a letter dated 28th 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 4th October, 1993 as follows:-
"We thank you for your letter of 28th 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."
By a letter dated 11th 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 25th 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 21st 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 2nd November, 1994 Messrs Evill and Coleman, advised Sun Alliance Ireland that the matter would be dealt with by Messrs Brophy, Solicitors.
In their letter of 25th 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 19th December, 1994, despite a further request from Brophy, Solicitors, dated 17th November, 1994 to Sun Alliance Insurance, (within the statutory period), and a further reminder dated 6th December, 1994, (outside the statutory period). By letter dated 12th 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.
The Plenary Summons in this action was issued on 11th January, 1995 and an Appearance was entered on behalf of the Defendant on 16th January, 1995. A Statement of Claim was delivered on 23rd January, 1995. A Notice for Particulars was served on 27th January, 1995 to which Replies were given on 10th October, 1995. A Defence was delivered on 23rd 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 11th November, 1999 and a Reply was delivered on 16th December, 1999. Paragraphs 2, 3 and 4 of this Reply are in the following terms:-
"2. The Defendant is estopped from raising as a Defence the provisions of Section 9(2) of the Civil Liability Act, 1961 by reason of the acts and representations of the insurers of Sean Yardley, Deceased.
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.
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."
In Replies to Particulars dated 6th October, 2000, the Solicitors for the Plaintiff cited the extracts to which I have already referred from the letters of 23rd September, 1993 and 4th 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 6th 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 25th 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."
These Replies to Particulars dated 6th 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 correspondence, being acts and representations encouraged the Plaintiff's United Kingdom's Solicitors to defer taking steps to protect the Plaintiff's interests in that they believed as a result of the words and/or conduct of the Defendants and it was reasonable to infer and from which it was in fact inferred, that liability would be admitted. Accordingly the Plaintiff and his legal advisors were misled into a feeling of security on the issue of liability and thereby into a justifiable belief that the statute would not be used to defeat the Plaintiff's claim, to escape liability by pleading the statute. The parties were clearly interested in trying to reach a settlement without the necessity of issuing proceedings. In this regard please see correspondents dated 20th September, 1993, 23rd September, 1993, 28th September, 1993, 4th October, 1993 together with telephone discussions held by Solicitors representing the Defendant's interest which occurred on 12th April, 1994 with the representative of B.P.I. in which discussions took place in regard to quantum value of the claim vis a vis dependency of the Plaintiff and the care aspect of the claim in regard to the Plaintiff as well as general damages.
In the circumstances, it would be unconscionable for the Defendant herein to plead the limitation period as set out in the Civil Liability Act, 1961.
The aforesaid is a resume of the most salient facts but detailed oral evidence will be tendered to support the Plaintiff's claim."
Evidence was given at the hearing of this Preliminary Issue by Mr. Keith Colman, Assistant Claims Controller of Bradford-Pennine Insurance, Mr. John McGuire, Managing Clerk of Messrs Evill and Coleman, Solicitors and Mr. Kevin Brophy, Principal of the Firm of Brophy, Solicitors.
Mr. Colman told the Court that in 1993 insurers in England and Wales were being encouraged to narrow issues and to settle claims as quickly and as inexpensively as possible. He said that in writing his letters of 23rd September, 1993 and 4th October, 1993 to Messrs Evill and Coleman, he was indicating that Bradford-Pennine Insurance were anxious to settle this claim and would not be raising an issue of contributory negligence. In the course of a telephone conversation on 12th April, 1994, he and Mr. McGuire had tried to agree the heads of damage which were being claimed and the amount being claimed under each such head. Both men kept a Memorandum of this conversation and these were proved and introduced in evidence at the hearing. They never, he said, got anywhere in terms of quantifying the claims, but liability was not an issue and never had been. If the case was to proceed in the United Kingdom where he believed it should, he was prepared to nominate Solicitors to handle the formalities.
Mr. McGuire told the Court that as far as he was concerned the insurers had never come out and said, "liability is no longer an issue". He had never got an absolute, positive or unequivocal admission that liability was not an issue. He would probably have to agree that there was always some uncertainty as to whether or not there would be an issue on liability in any proceedings which might be initiated. He was satisfied that at the end of the day, they would win on liability. He did not discuss the Statute of Limitations, [Limitation Act (England and Wales) 1980 Section 11(4)], with Mr. Colman or with anyone else.
Mr. Kevin Brophy said that his Firm was instructed in the case in January, 1994. He had a conversation with Mr. McGuire or Mr. McGuire's secretary and, from that, and, from his own knowledge of the circumstances of the accident, he had operated on the basis that liability was not going to be an issue in the case. Papers were sent to Counsel by his Firm, - he did not himself retain the carriage of the case, - and draft proceedings were furnished by Counsel in October, 1994. In cross examination Mr. Brophy told the Court that he and Mr. McGuire knew from experience there were cases where it was 99.9 per centum certain that liability was not going to be an issue and, that this was one such case. If liability was put in issue he considered that it would be a mere formality. He accepted that his Firm did not have a letter from the insurers dealing specifically with the question of liability but he was aware of the correspondence between Messrs Evill and Coleman, Solicitors, and Bradford-Pennine Insurance. In his opinion, Mr. McGuire had got as absolute an admission on the issue of liability as one was ever likely to get from an insurance company. However, he accepted that Mr. McGuire had not got an absolute, unqualified admission on liability. Mr. Brophy accepted that there was no awareness in his Firm that the limitation period in this case had expired on 27th November, 1994 and, Counsel in returning the draft pleadings in October, 1994, had made no mention of the imminent expiry of a limitation period. Mr. Brophy considered that the provisions of Section 9(2) of the Civil Liability Act, 1961, had not been adverted to by the person in his Firm dealing with the claim.
Having heard the evidence and considered the correspondence, I find that neither Bradford-Pennine Insurance or Sun Alliance Ireland had made a clear and unambiguous promise assurance or representation to either Messrs Evill and Coleman, Solicitors, or to Brophy, Solicitors, that liability would not be an issue. Both Mr. McGuire and Mr. Brophy from their own information were convinced that negligence or contributory negligence would never be real issues in proceedings taken on behalf of the Sean Yardley (a minor). It is clear from the evidence of both these gentlemen that neither considered that he had received a promise or assurance that the insurers, if the claims were not compromised, would not raise an issue of negligence, breach of duty or contributory negligence. Both accepted that the issue of the claims becoming statute barred was never adverted to: the issue did not arise under the Law of England and Wales because of the length of time involved and, the person dealing with the claim in Brophy Solicitors does not appear to have adverted to the two year, as distinct from the normal three year period of limitation in personal injury claims, provided for by Section 9(2) of the Civil Liability Act, 1961, in respect of causes of action surviving against the estate of a deceased person.
Even if the letters of 23rd September, 1993 and 4th October, 1993 from Bradford-Pennine Insurance to Messrs Evill and Coleman, Solicitors, taken in their context and in the light of the circumstances that the accident had occurred on 28th November, 1992 and had since then been the subject of very considerable scrutiny, - including a Coroners Inquest, - could only have the meaning that liability was conceded unless in the very unlikely event of some new and very material facts concerning the accident coming to light, this in my judgment, is far short of the sort of clear and unambiguous promise assurance or representation that liability would not be an issue necessary to enable the doctrine or promissory estopple to be invoked by the Plaintiff. This correspondence could not in my judgment, have induced the Solicitors for the Plaintiff to believe that the claims would be settled without the necessity of initiating proceedings within the period stipulated by the statute. Indeed, in the course of evidence both Mr. John McGuire and Mr. Kevin Brophy accepted that they had received no absolute positive or unequivocal promise or assurance from the insurers that liability would not be an issue in any proceeding. In my judgment, the principles of the law of promissory estopple as expounded and applied in the case of Doran v. Thomas Thompson and Sons Limited (1978) I.R. 223, (Supreme Court), apply with similar effect to the facts of the instant case. Using the words of Kenny, J., at page 238 of the Report in that case:-
"There was no representation of any kind by the insurers…, that they were admitting liability, or that the only issue in the case was the amount of damages or that they would not rely on the Statue of Limitations. Therefore, there is no foundation for the application of the doctrine of promissory estopple."
Even if these letters could, - and I do not accept that they could, - be construed in the context as amounting to an unambiguous promise or assurance intended to affect the legal relations between the parties, that liability, that is negligence breach of statutory duty or contributory negligence, - would not be an issue in any proceedings, this would not necessarily of itself make it reasonable for the Solicitors for the Plaintiff to assume that the institution of proceedings, - even if by way of assessment of damages only, - could be deferred beyond the limitation period. In the decision of the Supreme Court in the case of Ryan v. Connolly  1 IR 627 Keane C.J., (as he then was), in delivering the judgment of the Court stated as follows at page 633:-
"In the absence of a statement by the insurance company from which it was reasonable to infer that, in the event of proceedings not being instituted within the limitation period they would refrain from relying on a Defence under the Statute, there seems no reason in principle why the insurance company should be subsequently precluded from relying on such a Defence."
In the case of Doran v. Thompson Limited, (above cited), the Supreme Court considered that the conduct of an insurer, though not sufficient to amount to a promissory estopple, might yet be so dishonourable or such that it would be inequitable in the Court to allow them to rely on a time-bar. At page 238/9 of the Report in that case, Kenny, J., held as follows:-
"The other argument was that it would be inequitable to allow the Defendant to rely on the Statute Limitations. If the Defendant had accepted liability and had entered into negotiations to arrive at an agreed sum and if the Plaintiff's Solicitors had refrained from bringing proceedings because they relied on the admission of liability or the negotiations being conducted, it would be inequitable to allow the Defendants to rely on the time-bar. But they never accepted or admitted liability and never represented that they did, nor did they carry on any negotiations for the purpose of settling the case. They did nothing which could give the Plaintiff's Solicitors the impression that they need not issue proceedings nor did they mislead them in anyway. I cannot see how the conduct of the insurers was dishonourable in any respect and I do not think that anything they did makes it inequitable for them to plead and rely on the Statute of Limitations. If the Plaintiff's Solicitors thought that liability was being admitted, the Defendants and the insurers did nothing to cause or contribute to that belief."
In my judgment this was the principle upon which this Court acted in the case of Traynor v. Fegan  I.R. 586, where Barrington, J., (then of the High Court), in the course of his judgment cited the decision of the late Chief Justice, O'Dalaigh in O'Reilly v. Granville  I.R. 90 at 98, and the decision of Finlay P., (as he then was), in the case of Smith v. Ireland and Others  I.L.R.M. 300. In Traynor v. Fegan, Barrington, J., at page 595 of the Report, pointed to the fact that there was no question in that case of the Plaintiff having been led to believe that the Defendant was going to admit liability, or that her Solicitor was deceived on that point. However, he found that the conduct of the insurers in that case was such that it would be inequitable to permit them to rely upon the Statute of Limitations in their defence. In that case, problems of representation on the Defence side in this Jurisdiction for which the insurers were principally responsible were held to have caused the Solicitor for the Plaintiff to defer issuing the originating summons until it was too late and the statutory period had expired.
In my judgment, the letter dated 6th September, 1994 from Mr. Keith Colman, Assistant Claims Controller of Bradford-Pennine Insurance to Messrs Evill and Coleman, Solicitors for the Plaintiff does not amount to a waiver by the insurers of their right to plead the time-bar, nor does it give rise to a circumstance where in the words of O'Dalaigh C.J., (as he then was), in O'Reilly v. Granville (above cited) it would be, "not only wholly unmeritorious, but I feel it my duty to add unconscionable and plainly dishonest," for them to rely on the provisions of Section 9(2) of the Civil Liability Act, 1961.
The events in the case of Traynor v. Fegan (above cited) which surrounded the nomination by the insurer of a Solicitor in this State to defend the proceedings, and which the Court found resulted in the Solicitor for the Plaintiff not taking steps to protect his clients' interest by issuing proceedings in time for service outside the Jurisdiction, were materially different to those in the instant case. Mr. Colman, then Assistant Claims Controller of Bradford-Pennine Insurance wrote his letter of 6th September, 1994, as he confirmed in evidence before this Court, against the background that the insurer had been advised that the proceedings should be brought in the United Kingdom and not in this State. He then, very properly, went on to state, "If that is agreed then we will nominate Solicitors to handle the formalities but if it is not agreed please state the authorities upon which you base any decision to bring this action in the Republic notwithstanding the fact that all concerned are UK citizens."
As appears from the subsequent correspondence on 8th September, 1994 he was advised by Messrs Evill and Coleman that proceedings could be taken in this Jurisdiction and that the matter would be dealt with by Solicitors here. By letter dated 21st October, 1994 Sun Alliance Ireland wrote to Messrs Evill and Coleman informing them that they were now acting in the matter and asking that Firm to nominate Solicitors in this State with whom they might correspond. By letter dated 2nd November, 1994 Messrs Evill and Coleman advised Sun Alliance Ireland that Brophy, Solicitors were dealing with the matter. By a letter dated 17th November, 1994 Brophy, Solicitors advised Sun Alliance Ireland, that Counsel had drafted proceedings on behalf of the Plaintiff and asked them to nominate some person to represent the deceased driver in place of Terence and Rosalind Diane Yardley who would be the Defendant in the proceedings. Unfortunately, by 19th December, 1994, when Sun Alliance Ireland wrote to Brophy, Solicitors, advising them that Patricia Boyd was nominated to represent the deceased driver, the limitation period had expired since 27th November, 1994.
In my judgment, the letter of 6th September, 1994 from Bradford-Pennine Insurance to Messrs Evill and Coleman, did not impose any positive duty on Sun Alliance Ireland to nominate Solicitors in this Jurisdiction to accept service of proceedings here or to nominate a person to be the Defendant in those proceedings prior to the expiry of the limitation period. It could not, nor could any subsequent correspondence or communications from the insurers justly or reasonably be said to amount to conduct which would render it unconscionable or dishonest for them to plead the time-bar in their Defence.
I am satisfied on the evidence and I so find, that the sole reason why the originating summons in this action was issued outside the period allowed by Section 9(2) of the Civil Liability Act, 1961, was that the person in the Firm of Brophy, Solicitors, having carriage of the action was unfortunately unfamiliar with that Section and the shorter limitation period which it specified as compared with the generally known limitation period of three years provided by Section 11(2)(b) of the Statute of Limitations, 1957. In the circumstances, the Court is driven to the conclusion that no proceedings maybe maintained in respect of this particular cause of action by reason of the provisions of Section 9(2)(b) of the Civil Liability Act, 1961, and this action must regrettably be dismissed.
Other cases referred to in argument
Industrial Yarns Limited v. Greene and Manley  I.L.R.M. 15
Crabb v. Arun District Council  3 A.E.R. 865 (Court of Appeal, Civil Division)
Bowes v. Motor Insurers' Bureau of Ireland and Harte  2 IR 79
Bus Eireann – Irish Bus v. The Insurance Corporation of Ireland plc.  1 I.R. 105.
Moynihan v. Greenesmyth  I.R. 55