JUDGMENT of Mr. Justice John MacMenamin dated the 12th day of June, 2012
1. This appeal is brought by the plaintiff (a litigant in person) against an Order of the High Court refusing him leave to join the Director of the Construction Industry Federation (“CIF” or “the Federation”), as a co-defendant to their proceedings. The High Court decision was to dismiss the application on the basis that the claim against the Federation was statute barred. This judgment addresses, first, the evidential requirements under the Rules for an application to join a co-defendant; and second, the procedure to be adopted by a court on such an application, when the plaintiff’s claim against such co-defendant may prima facie raise a time-limitation issue. The procedural questions are in turn addressed under three subheadings: (a) whether a plaintiff is entitled to join as apparently time barred defendant; (b) when does a time bar commence to run against a co-defendant; and (c) at what point should a court make decision in relation to a time-limitation question regarding a co-defendant?
The provisions in the Rules of the Superior Courts on the joinder of a co-defendant
2. Order 15 Rule 4 of the Rules of the Superior Courts provides:-
“4. All persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally, or in the alternative. Judgment may be given against one or more of such defendants as may be found to be liable, according to their respective liabilities, without any amendment.”
3. Order 15 Rule 13 is likewise couched in broad terms. It provides:-
“13. No cause or matter shall be defeated by reason of the misjoinder or non joinder of parties and the court may in every cause or matter deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the names of any parties improperly joined, whether as plaintiffs or as defendants be struck out and that the names of any parties, whether plaintiffs or defendants who ought to be have been joined, or whose presence before the court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the question s involved in the cause or matter, be added …”
4. The case has a considerable history. The claim was initiated by plenary summons on 16th October 2002. A statement of claim was delivered on 19th February 2004. At all subsequent stages, up to the year 2009, the plaintiff was represented by solicitors. I turn first to the evidential test applicable in this motion. The material which flows is derived from the plaintiff’s grounding affidavit and exhibits.
The evidential issue
5. The plaintiff is a mason by qualification. His case is that, since the year 1997, difficulties have arisen between himself and the first named defendant (hereinafter referred to as “BATU” or “the union”). The second, third and fourth named defendants were at all material times officials employed by BATU, but they are sued in their personal capacities.
6. As a preface to what follows, I emphasise that the case, made here by the plaintiff, has not been tested in evidence. What follows, therefore, are not findings of fact. The plaintiff’s case is that he has wrongfully and unlawfully suffered economic loss as a consequence of being excluded from membership of the first named defendant. He pleads that the defendants intentionally or recklessly interfered with his trade as a mason, and his economic relations and activities in that trade. He says that, from the year 1997 onwards, the defendants have unlawfully advised builders not to employ him as he was not a member of BATU, and unless he conformed to membership pre-conditions laid down by that union. He alleges that the union has sought to insist that he operates under a tax regime chosen by it, and asserts it insists that he should work in employment only with bricklayers and masons who are also members of that union. He contends that, in late 1997, the second named defendant told him that he would not work as a bricklayer or mason in Limerick unless he observed certain directives imposed by BATU. He claims that he was provided with one probationary or temporary union card which was not renewed. He says that, since then, persons who employed him were threatened with on-site picketing which could lead to closure of such sites, and in turn lead any persons employing him to breach their own contracts with developers of land. The plaintiff says that builders who actually employed him were told to remove him from employment. He contends that the fourth named defendant, acting on his own behalf and in concert with the other defendants, arrived at one such site where the plaintiff was working, procured his dismissal, and that four other bricklayers on the site were advised to cease working there until the plaintiff was dismissed.
7. The plaintiff’s claim is more particularised under a number of legal headings. He seeks damages for intentional or reckless interference with his trade, economic relations and activities. He alleges that the defendants have induced breaches of contract and engaged in intimidatory behaviour. He says he has been wrongfully excluded from membership of the trade union. He alleges that the defendants have conspired with each other, and with other persons to commit these torts. The plaintiff claims that there has been interference with his constitutional rights to associate and dissociate. (See Meskell v. CIE [1973] I.R. 121). While he did not so depose in his grounding affidavit, he has made clear his contention that those unlawful acts have continued up to the present day. On his case, as now presented therefore, these are alleged continuing wrongs. The statement of claim includes a claim for loss of earnings continuing into the future. The plaintiff also seeks reliefs by way of injunction, compelling the union to treat any application by him for renewal of his membership in accordance with natural and constitutional justice, and without pre-conditions.
8. There is a complex background to the dispute, partly reflected in a judicial review matter in which BATU was involved. In that case, the union was applicant, and the Labour Court the respondent; the Construction Industry Federation was a notice party (The High Court, Judicial Review No 1998/246 JR). These proceedings were initiated by a decision to grant leave to seek judicial review made by Barr J. on 22nd June, 1998, and culminated in a decision of the High Court (Murphy J.) on 15th April, 2005. The point of law involved is not material; what is more relevant is the outline of the factual issues contained in the judgment which I now briefly summarise.
9. The judgment in the judicial review explains that, under the statutory Labour Court procedure, there is scope for registration of employee/employer agreements. These are negotiated between trade unions and employers, and can be varied from time to time. BATU sought judicial review of the Labour Court registration of a memorandum dated 18th May, 1998 to the effect that 15 workers representatives, from seven unions, and four representatives from the Construction Industry Federation had entered into an agreement to vary an existing registered employment agreement of the 15th March, 1967.
10. In simple terms, that variation allowed for builder-employers to employ sub-contractors on specified conditions, provided that workers employed by such a sub-contractor had the benefit of certain legal protections in relation to their employment. BATU was a party to the negotiations, but strongly opposed this variation, and sought judicial review of the decision by the Labour Court to register the variation. BATU was of the view that this new agreement was part of an orchestrated policy to eliminate direct employment from building work, which in turn would pose a challenge to union members and their interests. Here, the plaintiff’s case is that he became aware of this judgment in or about 2007, that he became concerned that the Construction Industry Federation was complicit in his being “blacked” by BATU, and that questions then arose in his mind whether the Federation should be joined as a co-defendant.
11. Notice of trial was served on 20th October, 2004. The discovery process was long drawn out. An order of the Master was made on 11th May 2006, and subsequently appealed to the High Court. An affidavit of discovery was sworn on behalf of the first named defendant on 15th March, 2007. The plaintiff served a notice of change of solicitor on 17th April, 2007. Subsequent to that time, there were apparently further issues in relation to the nature and extent of the discovery furnished by the defendants.
12. The general question of whether or not the statement of claim should be amended was mooted with junior counsel in or about April 2007. What form this amendment might have taken is not entirely clear, but for the purposes of this judgment, I am prepared to assume that one such amendment in contemplation was the possible joinder of the CIF as co-defendant. Nothing came of this then. By 2008 the plaintiff had changed solicitor. In June 2008, the new solicitors sent papers to senior counsel, who indicated he was not in a position to deal with the matter. Another senior counsel furnished preliminary advices of proofs on 18th September 2008, but also said he was committed to other work and might not be in a position to continue with his retainer. The plaintiff’s second solicitor ceased practice as and from 30th November, 2009. The plaintiff sought information from the Law Society in April 2010 as to the whereabouts of his full file. He received a letter on 22nd November, 2010 identifying a number of solicitors who might have the papers. Prior to then he had already commenced to act on his own behalf.
13. On 14th September, 2010, the plaintiff wrote to the Director General of the Federation, Mr. Tom Parlon. He said that it had come to his attention that members of the Federation had been instructed by its own employees to terminate his employment with those members in order to fulfil agreements and policies made between builders and the BATU. On the basis that this was so, he alleged that the Construction Industry Federation was a concurrent wrongdoer with the other defendants. Clearly the question of joining the Federation as co-defendant was, by then, clearly in his mind.
14. On 22nd September, 2010 Mr. Parlon responded to the effect that the Federation was not in anyway involved in depriving the plaintiff or any other individual of the of the opportunity of working or making a living.
15. There were some further steps in the proceedings. The plaintiff wrote to the first named defendants on the question of discovery on 12th July, 2011. Messrs. Malone and Potter, solicitors for the trade union, replied, expressing concern that the plaintiff had apparently been corresponding directly with each of the personal defendants, but also stating that the discovery order which had been made had been complied with. The plaintiff was advised to contact his former solicitor with regard to the position as to discovery. Then this notice of motion to join a co-defendant was issued on the 17th February 2011, and as indicated earlier was decided against the appellant in the High Court.
16. In this appeal, Mr. Dudley Potter solicitor, appearing on behalf of BATU, makes two points. First, he submits that the application brought by the defendant is not in compliance with Order 15 Rule 4 of the Rules of the Superior Courts, in that the plaintiff has not established by evidence in his affidavit that he has a right to relief against the proposed defendant. As outlined earlier, the Rule provides that all persons may be joined as defendants against whom the right to any relief “is alleged to exist whether jointly, severally, or in the alterative”. I should add that the Rule provides that it is also necessary to show that such joinder is necessary in order to enable the court “effectively and completely adjudicate upon and settle all issues involved in the matter” (O.15 R.13). Furthermore, Order 15 Rule 14 provides that an application to add a defendant may be made to the court at any time before trial by motion, even or at the trial of the action in a summary manner. Clearly the Rules are not intended to be overly restrictive. The first question therefore is whether the plaintiff’s evidence sufficiently complies with evidential requirement of the rule?
Does the plaintiff’s application comply with O.15 R. 4 R.S.C. 1986?
17. In his grounding affidavit, the plaintiff sets out his belief that, since 1997, the Director General of the CIF instructed Federation members not to employ the plaintiff or other masons whose work arrangements were similar to his. He says that the Federation acted in concert with BATU, and wrongfully sought to enforce this policy in co-operation with the first named defendant.
18. But in fact, the exhibits to the affidavit bring the case further. One such exhibit, already referred to, is the judgment of Murphy J. in the judicial review proceedings. This sets out the history of the dispute in detail. Furthermore, the plaintiff exhibits a range of other documents from the years 2006 onwards including records of various types of conciliation procedures between himself, others within the trade union movement, and B.A.T.U., and the determinations and outcomes from those deliberations. What was proposed there is not material. What is clear from all of these is the basis of the dispute giving rise to the claim, and therefore the potential basis of the claim against the Federation.
19. What is the necessary level of proof in an application of this kind? No authorities have been cited on the point. The issue before the court therefore, is a simple question of determining whether the plaintiff has complied with the Rule. Order 15 Rule 4 does not provide that the plaintiff should set out all the circumstances or facts supporting his claim of a right to relief against the Construction Industry Federation. The rule is straightforward. Instead, it simply provides that all persons may be joined as defendants against whom the right to any relief is alleged to have existed, either jointly severally or otherwise. The plaintiff alleges he has right to relief against the Director General of the Construction Industry Federation. That Federation is a registered trade union. It is not suggested that the Director General engaged in any of these actions in his individual capacity. Accordingly, the relief if granted, should be against the Federation and not its Director General.
20. The Rules further clarify the basis for an order joining a co-defendant. It is not necessary of course that a potential defendant, the subject of an application be involved at all stage of a case and in every issue. Order 15 Rule 5 makes clear that it is not necessary either that every defendant be interested as to all the reliefs sought, or as to every cause of action included in the proceedings. A court is empowered to make such order as may be just to prevent a defendant from being embarrassed, or put to expense, by being required to attend proceedings in which he or she may have no interest. Order 15 Rule 7 provides that a plaintiff in doubt as to the person against whom he/she is entitled to redress may join two or more defendants with the intent that the question as to which of the defendants is liable be determined by the court. But it is important to re-emphasise that the rules provide a flexible method whereby the rights of plaintiffs and defendants can be protected and vindicated. A further indication of that flexibility is that this kind of application can actually be made in summary manner. An application may be actually made at the trial, subject, of course, to fair procedures. Such late joinder, may of course, have consequences in costs.
21. In this case, the application is brought by way of pre-trial motion together with a grounding affidavit and the exhibits which, together, I am satisfied, comply with the Rules. Those Rules simply permit joinder as co-defendants against whom the right to relief is said to exist. They go no further. They do not lay down any formal requirements other than those identified. I am satisfied the applicant has complied with the requirements of O. 15 R. 4, and with O. 15 R. 13.
22. I emphasise this finding is on the prima facie evidence in this case. A court hearing such applications must always retain a discretion on the question of joinder, especially if litigants with no, or insufficient, legal basis seek to enjoin one or more parties as co-defendants. Cases may arise where such applications may be vexatious or an abuse of court process. This is not such an instance however. Thus I find the appeal succeeds on this first point. I now turn to the procedural questions which are addressed under three subheadings.
The Procedural Issues: (a) is a plaintiff entitled to join an apparently time barred co-defendant?
23. What approach should a court adopt in an application to join a defendant if the claim is prima facie statute barred? There must be a balance between the right of a litigant to sue relevant parties on the one hand, and the rights of those potential defendants on the other. There is of course a distinction between rights and remedies. When time runs, certain types of action are actually extinguished by statute; others may merely be barred by the terms of the statute. In the latter case, the right of action subsists, although it may be defeated by a successful reliance on a limitation period identified by statute. In certain forms of action, one remedy may be that a defendant who is sued or joined later may be entitled to plead and rely on the statute of limitations if he is so advised. But when should this issue arise for consideration? Should the issue be raised on an application to join a co-defendant? To answer that question, it is now necessary briefly to analyse what is entailed in such a plea.
24. In O’Domhnaill v. Merrick [1984] 1 I.R. 151, Henchy J. made the following observations concerning what is called a “plea of the statute”. He observed, at p. 158 of the Report,
“Although the statute (of limitations) states that an action “shall not be brought” after the expiration of the period of limitations, such a statutory embargo has always been interpreted by the courts as doing no more than barring a claim instituted after the expiration of the period of limitation if, and only if, a defendant pleads the statute in his defence. It is only when a defendant elects to rely on the statute as a defence that the statutory bar operates. Consequently, although a claim may be plainly, and on the face of the claim, brought after the expiry of the relevant period of limitation, the action will not be held to be statute barred unless the defendant elects by a plea in his defence to have it so treated. Thus, although the statute says that the action “shall not be brought” after the statutory period, such a prohibition, in a statute of limitations has been construed as not barring a right to sue but as vesting in a defendant a right to elect, by pleading the statute, to defeat the remedy sought by the plaintiff. (emphasis added).
Henchy J. continued
“So construed the statute does not bear on the plaintiff’s right to sue, either within or after the period of limitation. What it affects is a plaintiff’s right to succeed if the action is brought after the relevant period of limitation had passed and if a defendant pleads the statute as a defence. In such circumstances the statute provides an absolute defence to that particular action …” (emphasis added).
25. To these views I would add two further observations: first the legal authorities show that the fact that a defendant seeks to rely on the statute does not mean that in all cases such a plea will succeed; second we are not speaking here of forms of action where a cause of action is actually extinguished by passage of time, but rather, ones subject to statutory limitations.
26. O’Domhnaill v. Merrick dealt with the case of a delay after the institution of proceedings, but within the applicable time limit. However it represents a helpful and authoritative analysis as to the effect of a plea of the statute of limitations which is relevant for the purposes of the consideration here.
27. Order 15 gives effect to one aspect of a more general constitutional right, that of access to the courts. A statutory time limit may constitute an incursion into that constitutional right. But whether a party joined as a defendant actually relies on that defence, (or is permitted to do so), hinges upon the facts of the case. There are exceptions. The legal status of the plaintiff may be relevant. Time may not run against a plaintiff suffering from incapacity, or if that plaintiff is legally a minor. There are, too, instances where a defendant, raising the statute of limitations has been held to be estopped from such reliance by virtue of his or her own conduct. Such a position has also arisen in the case of co-defendants joined to the proceedings who are otherwise apparently time barred. There, questions may arise as to the circumstances in which a plaintiff, seeking to join a co-defendant, first became aware of his or her cause of action against that intended party. A court may then closely analyse whether the conduct of a defendant whether joined at first, or later, was such as to give rise to a conclusion that reliance upon the statute of limitations may be unconscionable or unfair. Precisely these considerations underlay the analysis of this court in O’Reilly v. Granville [1971] I.R. 90, a decision of this court, to which I now turn.
28. In O’Reilly, there was doubt as to whether the defendant who was sued had actually been driving the motor car involved in an accident with the plaintiff. There was the possibility that the defendant’s son, who had not been joined, was the actual driver of the car. There were negotiations and correspondence from the defendant’s insurers which led the plaintiff’s advisers to conclude that they were raising no issue as to who was driving the car. But the defendant’s solicitors later changed their stance and raised the question as to whether the son was driving, thus potentially affecting the plaintiff’s right to recover damages by reason of the time bar. The application to join the son as co-defendant was summarily dismissed in the High Court on the grounds that the claim against the son was statute barred.
29. On that appeal, English authority from the Court of Appeal was cited to the effect that, on such an application the Statute of Limitations cannot be disregarded. On this point O’Dalaigh C.J. observed (at p. 94 of the Report):-
“The answer to this objection in my opinion is two fold. First, the statute is not disregarded because the added party’s rights are not affected and secondly, the statute is required to be specifically raised by pleading – the Rules say so. It is well established that a statute of limitations which merely bars the plaintiffs’ remedy must be disregarded unless pleaded in a defence; it is only a statute of limitations which extinguishes the plaintiff’s right which can be relied upon without being pleaded” (emphasis added).
30. In Granville, the then Chief Justice observed that the defence provided by the statute to the action then under consideration, (one in negligence), simply barred the plaintiff’s remedy, rather than (for example) a form of limitation extinguishing any title which a plaintiff might have to property. The Chief Justice referred in detail to the correspondence and negotiations which had misled the plaintiff’s advisers as to the defendant’s stance on the claim.
31. He went on to state the following (at p. 95 of the Report):-
“Therefore I would allow the appeal and grant leave to add Mr. Desmond Granville [the son] as a defendant in the action. It is not to be assumed too readily that, in the circumstances of this case, Mr. Desmond Granville will be advised to rely upon the statute of limitations when a defence comes to be filed.”
Clearly he was referring to the possibility of a plea of estoppel as a rejoinder to any potential plea of the statute of limitations.
The Procedural Issues: (b) When does a time bar take effect against the new defendant?
32. But the next question which arises from the jurisprudence, both here and in decided English authorities is as to the extent to which a new defendant’s rights are affected by joinder? I would point out here that the counterpart order under the English Rules is in different and more restrictive terms. But the same question has arisen in both jurisdictions; does a time limitation period “relate back” to the original cause of action, or is it calculated by reference to the time of an application joining the new defendant? In Granville, O’Dalaigh C.J. took the view ,that the rights of any party joined on application to the court were not affected by the time of the application to join. He held that a party joined as a co-defendant may be entitled to rely upon the statute, and is only to be regarded as having been sued, as of the time when joined as a co-defendant.
33. Walsh J. took a somewhat different view. For the purposes of the case, he considered the defendant joined should be treated as having been a party from the time the action commenced. He concluded that, in an application to join outside the limitation period, the judge concerned should consider whether justice would be better served by adding or not adding the party concerned. He agreed with the observation that the Statute of Limitations did not exist for the purpose of assisting unconscionable and dishonest conduct. However from an analysis of his judgment I infer, that he thought that the judge’s decision whether to add a defendant could be made only having regard to all the circumstances. On the facts of that case he was prepared to countenance the contingency that the defendant might actually be deprived of a right to rely on the Statute.
34. Budd J. agreed with O’Dalaigh C.J. on the question as to when time commenced to run under the Statute against a plaintiff. He commented at p. 105 of the Report:-.
“ … however I fail to see why the addition of the proposed defendant as a party to the proceedings should have any retrospective or any other effect which would have the result of depriving him of his legal right on the statute, if he has such a right.”
I summarise my conclusions from these passages at the conclusion of this judgment
The Procedural Issues: (c) When should decisions on a limitation issue be made?
35. There then arises a further point of procedure; when should these issues be considered? Budd J. raised the question as to whether it would be appropriate to join a defendant at all, if on the face of it, he or she was statute barred?. He addressed the dilemma in this way, commenting at p. 106 of the judgment:-
“If it were apparent beyond doubt that the statute applied to this case, an application to add the proposed defendant might very well be refused as being a futile operation; but that is not the position here.”
The judge expressed himself as being in agreement with O’Dalaigh C.J.’s observation that, for parties to avail themselves of the statute, it is necessary first to plead the limitation period. In his view, the question was one of remedy rather than one of right. On the facts before him, he found, the question of the applicability of the statute had been dealt with prematurely in the High Court. He specifically drew attention to the fact that the High Court judge had not heard oral evidence to correlate with relevant correspondence, and thus did not have the full facts before him.
36. I interpret the effect of the judgments in O’Reilly v. Granville as being:-
1. That a co-defendant can be joined in proceedings, notwithstanding there being an issue as to whether the statute of limitations applies to his or her case
2. The court retains a discretion not to join a defendant, but only where the statute would very clearly apply, or where, in the words of Budd J., the joinder of such a defendant would be futile.
3. In general, time commences to run at the time of the wrongful act giving rise to the action; whether the claim is in fact barred may depend on the circumstances of the case and the conduct of the parties.
37. The question as to when such a discretion should be exercised arose more directly in Hynes v. The Western Health Board and Cronin, [2006] IEHC 55, High Court, Clarke J., 8th March 2006). There, the judge observed that the conclusion in Granville was that, in a clear case, a court should not join a co-defendant, where it is manifest that the case against the defendant is statute barred, and where it is also clear that the defendant concerned intends to rely upon the statute.
38. However, like Clarke J. in Hynes, I see O’Reilly v. Granville as authority for the proposition that a court of first instance should be very slow to enter into an inquiry as to whether a claim may or may not be statute barred when hearing a procedural motion seeking merely to join that defendant. In such a situation, the only questions which a court might then ask itself, are: as to (i) whether the claim as against the intended defendant is clearly and manifestly statute barred; and (ii) whether: there are no circumstances in which the intended defendant would be debarred either in law or in equity from relying upon the statute? If there is any real doubt on the limitation question, then the defendant should be joined: and whether or not the claim is actually statute barred may be dealt with in the ordinary way under the Rules, perhaps by means of a preliminary issue on notice. But I add to this the caveat that there may be very clear cases where to join a co-defendant would in fact be futile or manifestly ill founded. A court should not impose the burden of joinder on itself or on defendants in circumstances, which would in effect be a form of vexatious litigation. (See Barry v. Buckley [1981] I.R. 306). In each case therefore it is necessary that the court making the decision consider the material which is then available to it or evidence which is undisputed.
39. With these considerations in mind it, is necessary to analyse the decision of this court in Allied Irish Coal Supplies Limited v. Powell Duffryn International Fuels Limited [1998] 2 I.R. at p. 519. On occasion this decision has been understood as being a general authority for the proposition that a determination as to a time bar should be made at the hearing to join a co-defendant. But the unusual facts of this case require close reading.
40. The decisions, in both the High Court and this court show that the plaintiff, (“Allied”) claimed that the defendant [“Fuels”], a wholly owned subsidiary of Powell Duffryn plc (“the plc”), was in breach of a commercial contract to supply industrial coal. Allied became aware that the plc was in the process of selling fuels the defendant, and became apprehensive it was trying to distance itself from it. By this time any claim against the plc was time barred. Allied sought to join the plc as a co-defendant in the proceedings. Affidavits were sworn averring that fuels not financially or otherwise independent of plc, the parent company as regards control, finance, or operations, but instead operated essentially as a department of that parent company. Everything of any significance which the defendant did, had to have prior authorisation of the plc including its actual dealings with the plaintiff.
41. But there had been an exchange of affidavits. The defendant’s deponents were actually in a position to outline in detail the nature of the relationship between that defendant and the plc. Unusually therefore, in that case the court had before it the relevant facts so that it could adjudicate both on the question of the necessity for joinder, and the time bar issue. On behalf of Fuels it was averred that the plc had numerous subsidiary and associated companies of which it was one; that it was a separate legal entity and reported to the plc on a financial basis only; and that the plc did not have any present plans to sell off its shares in the subsidiary, although there were pending negotiations regarding the sale of some of those shares.
42. In turn, counsel for the plaintiff argued that the defendant had no locus standi to object to the joinder of the plc, that the defendant and the plc constituted a single economic entity; and that consequently it was not pleading a cause of action different against the plc to that pleaded against the defendant. One can readily see from the whole decision that the main focus of the application under consideration was as to the nature and extent of the legal protection derived from incorporating a limited company, a point made clear by some of the legal authorities cited and relied on.
43. On the extensive evidence before it, therefore, this court dismissed the appeal from the High Court, holding on the evidence that it would not permit an entity, to be made a defendant in an existing action at a time when it could rely on the statute of limitations to bar the plaintiff from bringing a fresh action against it. The judgment referred to two English decisions, Liff v. Peaseley [1980] 1 WLR 781 and Ketteman v. Hansel Properties Limited [1987] AC 189. The court observed it would be inappropriate for it, in the exercise of its discretion, to add a defendant to a cause of action, solely for the purpose of enabling a plaintiff to have a determination as to the assets which would be available to it in the event of it being successful in that cause of action. But unfortunately, the seminal decision of Granville was apparently not cited to the court in argument, and was not referred to in the judgment. It is clearly directly on point.
44. In my view the Allied English Coal Suppliers decision must be read as being confined to its own facts, and should not therefore be seen as the basis for some general, broader, principle. The court exercised its discretion on a set of facts which included; first, the very close association between the actual defendant and the intended defendant; and second; the plaintiff’s unusual reasons for joining the co-defendant which were in order to introduce a new cause of action, and to determine whether the companies were a single economic entity. The decision must also be seen as is bearing very significantly on the question of corporate personality, applying as it did the decision in Salomon v. Salomon and Company [1897] AC 22 and decisions in our courts on the same principle.
45. One passage in the judgment of Murphy J. in Allied Irish Coal Supplies Limited underlines some of these distinguishing features. The court had been furnished with a draft amended statement of claim against the first and the intended second defendant outlining the relief that they should be treated as a single economic entity in the event of the court awarding damages to the plaintiff. On this Murphy J. commented at p. 533 of the Report:-
“The allegation, implicit in that relief, that the plc would be liable in contract or in tort as a result of the acts of its agents is clearly a new cause of action. But more than that it is one which arose, if at all, outside the time limited by the Statute of Limitations. It is a well established rule of practice that a court will not permit a person to be made a defendant in an existing action at a time when he could rely on the statute of limitations as barring the plaintiff from bringing a fresh action against him (see Liff v. Peaseley [1980] 1 WLR 781 and Ketteman v. Hansel Properties Limited [1987] AC 189.”
These observations took place in a context where the court had already explored the entire factual position. In the High Court, Laffoy J. had pointed out that, although pleading the statute was a matter of defence, she was entitled to take the view that it was “virtually certain” that, if the plc was joined as a co-defendant, it would plead the statute against the plaintiff. The exchange of affidavits included affidavits which specifically detailed the nature of the relationship between the defendant and the plc. There was no question of any estoppel issue. Thus, in those circumstances the High Court, and on appeal this court were both in a position to adjudicate on whether or not the joinder of the intended defendant would have been futile: one of the criteria identified in O’Reilly v. Granville.
46. I would add that in Ketteman v. Hansel Properties Limited, a decision of the Court of Appeal of England and Wales, that court in fact raised another question which coincidentally arose in O’Reilly v. Granville; that is, whether, on the facts a, defendant sought to be joined would in fact be entitled to plead and rely on the statute of limitations, or would be estopped from such reliance.
47. In the instant case, the present defendant has not filed a replying affidavit. There is, obviously, no affidavit from the Federation which is not on notice of this application. Thus this court is not in a position to express a concluded view as to whether the joinder of this intended defendant would be futile, or if inevitably, a time bar plea will be pleaded, or would succeed. One must bear in mind the plaintiff’s case is that the alleged wrongs against him are continuing and give rise to continuing claims up to the present.
48. I conclude therefore that the plaintiff is not, at this point debarred from joining a co-defendant. That defendant should properly be identified and joined as the Construction Industry Federation, and not its Director General (as the plaintiff sought in his notice of motion). There is no evidence that the Director General in his personal capacity engaged in any alleged unlawful activity.
49. I would point out that the conclusion which I have reached is in accordance with the approach adopted in a number of decisions of the High Court made relying on O’Reilly v. Granville (see Kinlon v. Coras Iompair Eireann [2006] 1 ILRM 22 O’Neill J. and Hynes v. Western Health Board (previously referred to), and Purcell v. Taylor, The High Court, Peart J. 26th May 2004. (See also the discussion, albeit in the context of O15, R2, in Sandy Lane Hotel Limited v. Times Newspapers Limited & ors, The High Court, (unreported) Kearns P., 10th December, 2010 [2010] IEHC 443).
50. However in acceding to the application to join the Federation I would also wish to make clear that this is not to say that the Rules deprive a new defendant of recourse prior to trial. It is open to the Federation to plead the statute of limitations. But it may also, if so advised, bring an application by way of notice of motion to have a preliminary issue tried as to whether the claim against it is one where, clearly and manifestly is now statute barred. Perhaps other grounds of objection, such as prejudice or delay may be advanced. I expressly refrain from making any observation on the possible outcome of such an application, were the Federation to bring such a motion. The fact that a court accedes to an application such as this on the hearing of a notice of motion should in no sense be interpreted as an indication that a case will succeed against a co-defendant so joined nor is it in any case to be seen as an indemnity as to costs in the event that the claim against a new defendant fails.
51. As outlined earlier in this judgment the issues considered are, logically and sequentially, an evidential test and then the procedural questions whether a new defendant can seek to rely on a limitation period; when is a time limitation treated as coming into effect; and when, in the interests of justice, it is appropriate for all the point be determined.. In general time questions, should, more appropriately be dealt with when there has been an exchange of affidavits which clearly outline the basis of the claim, the basis of any limitation plea; and the circumstances in which such a plea arises, and may, in justice, be relied on. Each case will depend on its own facts. A court dealing with such a motion acts within its discretion.
52. I would summarise my views on the procedural questions just identified as follows:-
1. A court of first instance should not generally enter into an enquiry as to whether a claim may or may not be statute barred on the hearing of a procedural motion seeking to join a defendant.
2. In general, on such an application, the only question which a court will ask itself is whether, on the facts before it, the claim against the intended defendant is clearly or manifestly statute barred: and if there are no circumstances in which an intended defendant would be debarred, either in law or in equity, from relying upon the Statute.
3. If there is doubt upon the question, then the defendant should be joined, and whether or not the claim is in fact statute barred may be dealt with in the ordinary way, if necessary by means of a preliminary issue.
4. Prior to acceding to an application to dismiss such a co-defendant out of proceedings because a claim is statute barred, a court will, naturally, ensure that there is evidence before it so that all the circumstances, and any issue as to the conduct of all the parties prior such joinder, may be considered.
5. However a court of first instance must always retain the discretion to dismiss an application to join as co-defendants if the application itself is evidently futile, would serve no purpose, is founded on insufficient evidence or if it is vexatious or an abuse of court process.
53. In the circumstances of this case, I would uphold the plaintiff’s appeal, and reverse the order of the High Court. I would therefore grant an order joining the Construction Industry Federation as a co-defendant to this case.
