High Court of Ireland Decisions

1. This is a Motion brought by the Fifth, Sixth and Seventh named Defendants or in other words the last three Defendants for an Order that this action for personal injuries in so far as it is brought against those Defendants be stayed on the grounds that it is statute barred by reason of Section 11(2)(a) of the Statute of Limitations, 1957, as amended by Section 3(1) of the Statute of Limitations (Amendment) Act, 1991, the plea of statute bar have been raised in the Defence of those Defendants.

2. It is common case that the action was not brought within three years of the accident which occurred on 11th August, 1989 and therefore unless the period is extended by the 1991 Act, the action would have become statute barred on 11th August, 1992. The action was initiated against the first three Defendants by Plenary Summons issued on 12th October, 1990. In August 1993 an Order of the court was made joining the Fourth named Defendant and on 14th October, 1996 a like Order was made by the High Court joining the Fifth, Sixth and Seventh named Defendants. The accident was an unusual one in that it is alleged that the Plaintiff was walking along O'Connell Street in Dublin and took shelter from the rain against the wall of the old Carlton Cinema whereupon he came into contact with a steel pipe enclosing electrical appliances relating to a flood lantern. It appears that there was live electricity passing through the said pipe and as a consequence the Plaintiff sustained a severe electric shock and serious personal injuries. There was considerable difficulty in discovering who was the owner/occupier of the relevant site but the solicitors for the Plaintiff obtained information from the Bank of Ireland that the owner was Persian Properties Limited which was joined as the third named Defendant. It would seem that the controlling shareholder or at least a major shareholder of this company is also controlling shareholder or a major shareholder of each of the last three Defendants which are the moving parties in this Motion. The information from the Bank of Ireland that Persian Properties Limited was the owner was given to the Plaintiff's solicitors sometime before 12th April, 1990 because there is a postscript in a letter from that firm to Counsel, Mr. Gerard Danaher, of that date to the effect that such information had been given.

3. The usual preliminary letter was written to Persian Properties Limited on 19th July, 1990 and that elicited a reply from the General Accident Insurance Company dated 22nd August, 1990. The letter did not say that the Company was not the owner of the site but did ask for more particulars and stated that their policy holders had no knowledge of the incident. By a letter of 14th November, 1990, General Accident asked for some more information but went on to say that they did not appear to indemnify that company. The Solicitors for the Plaintiff, Messrs. Lavelle Coleman, understandably continued to consider that Persian Properties Limited was the appropriate defendant having regard to the information given to them by the Bank. In a letter of 3rd July, 1992 on the note paper of the Mont Clare Hotel, Mr. Pat Dolan, Accountant of Persian Properties Limited, wrote to Lavelle Coleman saying that Persian Properties Limited had nothing whatsoever to do with any site in O'Connell Street. By letter of 15th July, 1991, Messrs. Eamonn Greene & Co., solicitors for Persian Properties Limited wrote requesting discontinuance of the action on the basis that their client owned no property on any site on O'Connell Street. Following on this correspondence, Messrs. Lavelle Coleman wisely carried out further investigation and discovered a memorial registered in the Registry of Deeds of a conveyance of the site in question from the Bank of Ireland to the last three Defendants but dated 18th September, 1989 which of course was after the accident. By a letter of 23rd September, 1991, Messrs. Lavelle Coleman wrote to Messrs. Eamonn Greene & Co. informing them of this discovery and thanking them for their "assistance in resolving this problem". On 23rd July, 1993, the action was discontinued against Persian Properties Limited and on 4th August, 1993 an application was made to join the Bank of Ireland. The information on the memorial convinced Lavelle Coleman that the Bank of Ireland must have been the owner at the time of the accident and in a letter of advice of 30th October, 1991, they had been advised by Mr. Danaher that there was no point in joining the grantee companies having regard to the date of the conveyance. It is not altogether clear why there was a delay between 1991 and 1993 before the Bank of Ireland was joined in the action but I do not think that that particular delay is relevant to any matter which I have to consider and it may be explained by a very unusual possible aspect of the personal injuries which had to be investigated and to which it is not necessary to refer more specifically in this judgment.

4. It is alleged by the last three Defendants that a letter was written by Good & Murray Smith & Co., Solicitors for the General Accident, Fire and Life Assurance Corporation insuring the last three Defendants on 12th December, 1991 giving Lavelle Coleman certain information. Lavelle Coleman claim that they never received that letter. If they did receive that letter, the information contained in it was of such a kind that it would be accepted as common case that the action against the last three Defendants would be statute barred. I will return to that letter later on in this judgment and will proceed with the relevant narrative on the assumption that Lavelle Coleman knew nothing about it.

5. By a letter dated 3rd June, 1994 from O'Connor Solicitors acting for the Fourth named Defendant, the Bank of Ireland stated that they had been instructed by their client that the property had been sold in August 1988, almost a year prior to the date of the accident. They went on to state that the Bank should never have been joined in the proceedings. With a later letter of 20th September, 1995, O'Connors enclosed two Bank of Ireland Solicitor's memoranda dated 25th August, 1988 and 16th March, 1995 respectively. In the covering letter they observed as follows:-

6. The memorandum of 25th August, 1988 set out that the sale of the premises had been completed the previous day and made reference to the sale price and relevant bank draft and cheque. The second memorandum of 16th March, 1995 clarifies the position by stating that subsequent to completion the solicitor for the purchasers attended for the purpose of amending the deed and that it would have been that solicitor who would have dated the deed the 18th September, 1989, although the solicitor for the Bank goes on to state that there was no doubt in his mind that the sale was completed on 24th August, 1988. Ultimately, Kelly & Co., Solicitors for the last three Defendants explained in a letter of 17th February, 1997 that they completed the purchase of the premises on or about 25th August, 1988 but that at the time of completion a final decision had not been made as to what company would purchase the property and in the events they did not take delivery of any purchase deed at the time that the monies were paid over. Subsequently, in January 1989, they advised the Bank that they were taking the purchase in the name of the last three named Defendants and some time thereafter the purchase was completed in this manner. Kelly & Co. emphatically confirmed that notwithstanding the date on the deed being 18th September, 1989, the three companies were the beneficial owners of the property for some considerable time before that.

7. Messrs. Lavelle Coleman claimed that neither they nor their client, the Plaintiff, could have known of the involvement of the last three Defendants until they obtained the information from the solicitors for the Bank of the earlier date of completion of the sale and that the proceedings were brought within three years of the date when they could reasonably have been expected to have obtained that information. Accordingly, it is denied by the Plaintiff that the action is statute barred.

8. The last three Defendants, however, put forward the case of statute bar on two distinct grounds. These are:-

9. As I have already indicated, the issue in relation to the first of these grounds is whether in fact the letter of 12th December, 1991 was ever received by Lavelle Coleman. If the letter was received, the arguments put forward on behalf of the last three named Defendants could not be disputed. Any Court would treat with extreme scepticism a suggestion that a vital letter had not been received. However, in this case it is not suggested by anybody that there is any deliberate intention to deceive the Court. The only question to be considered therefore is whether the letter did not reach Lavelle Coleman either because it got lost in the post or because through some error or oversight it was not posted to them by Good & Murray Smith & Company. I was impressed by the evidence of Ms. Rosemary Kirwan, Solicitor of Good & Murray, as to the system in that office whereby letters are sent out. But I am bound to say that I was equally impressed by the evidence of Mr. Coleman as to the system in Lavelle Coleman for dealing with post which comes in and in particular the rule by which every letter is initially read by him or his partner. Usually the post was dealt with by Mr. Coleman himself. Furthermore, there is diary evidence to indicate that on the two alternative days on which it would have been received, Mr. Coleman would have been in the office and would have dealt with the post that morning. Although he was not personally dealing with this case on a day to day basis, he had been supervising it and was well aware of the problems about ascertaining the correct Defendants. I accept his evidence that had he seen that letter he would have remembered it.

10. It is a mystery what happened the letter but having heard all the evidence I am left in the position that I am unable to find that as a matter of probability the letter was received by Lavelle Coleman, though of course I cannot rule it out as a possibility. That being so, I must hold that the last three Defendants are not entitled to rely on that letter for the purposes of establishing the defence of statute bar.

11. I now turn to the second ground put forward. This arises from Section 2(2) of the Statute of Limitations (Amendment) Act, 1991 which provides as follows:-

12. The view has been expressed in some English cases, Farrell -v- National Coal Board (1986), Times L.R. 289 and Halford -v- Brooker (1991) 1 .W.L.R. 428 which have been opened to me that the reference to "other appropriate expert evidence" is a reference to the advice of an expert witness rather than to the party's own lawyers and I think that this is correct. But of course the solicitors are agents for their client and therefore knowledge which they might reasonably have been expected to acquire in their capacity as agents must be imputed to the Plaintiff himself by virtue of paragraph (a). Indeed this is not seriously disputed. But I think it is somewhat of a counsel of perfection to suggest that when Lavelle Coleman discovered that there had been a conveyance a short time before the accident from the Bank of Ireland to the last three Defendants that they should not have accepted that at face value but should have made further enquiries at the bank with a view to ensuring that the last three Defendants were not already beneficial owners before the date of the conveyance. There is no doubt that a very prudent solicitor might have regarded this as at least a possibility but I do not think that knowledge of the real position could in any way be said to be "knowledge which (Lavelle Coleman) might reasonably have been expected to acquire" at that time. Indeed it took a long time before the true position emerged in the course of communications with the bank.

13. In my view, the Plaintiff has successfully established an extension of time under the 1991 Act and this action is not statute barred.