Lynn Kinlon (plaintiff/ appellant) v. Coras Iompar Eireann (defendant/respondent)
Statute of Limitations - Application to join a third party - Whether the court has jurisdiction to substitute the name of one defendant for another - Whether it was 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 - Whether joined party can be considered to have been a party to the proceedings before the order giving leave to join - O.15 r.(2) and (13), O.19.r.(15) Rules of the Superior Courts 1986 - Statute of Limitations Act, 1957, as amended - O.20r.5(1), (2),(3), Rules of the Supreme Court.
The High Court (before Mr Justice O'Neill); judgment delivered March 18th, 2005.
The Rules of the Superior Courts do not create a jurisdiction to correct a mistake by the substitution of defendants. Where a defence under the Statute of Limitations may be available to a proposed defendant, there is no established rule of practice to the effect that such proposed defendant should not be joined as a defendant in proceedings under Order 15(13) of the Rules of the Superior Courts. The joinder of an additional defendant does not have the effect of deeming that defendant to have been a party to the action from the date of issue of the original writ. An added party cannot be considered to have been a party to the proceedings earlier than the order giving leave to add. There is nothing in the Rules of the Superior Courts, or in substantive law, which would restrict the right of an added defendant to rely on a defence under the Statute of Limitations. A defence under the Statute of Limitations must be pleaded. A court should not assume that a proposed additional defendant would avail of a defence under the Statute of Limitations, and should not attempt to determine in advance whether a potential defence under the statute would be successful.
The High Court so held in joining Bus Atha Cliath to the proceedings.
Kelley Smith BL for the plaintiff; Gerard O'Herlihy of M.Roche and Company, Solicitors, for the defendant.
Mr Justice O'Neill commenced his judgment by outlining the history of the case. The plaintiff was allegedly struck by a bus when riding her bicycle injured on August 1st, 1997, at Arran Quay in the centre of Dublin. Arising out of this, she sought to make a claim for negligence in respect of personal injuries suffered. The plaintiff initially instructed a firm of accident claims consultants, Aaron and Carroll and Co. This firm wrote a letter to Coras Iompar Eireann (CIE) on September 2nd, 1997, outlining the incident and stating that the plaintiff was entitled to make a claim for damages.
On September 16th, 1997, Aaron and Carroll and Co received a reply from Coras Iompar Eireann, in which some details of the alleged incident were also requested. One detail requested in this letter read "...the negligence against Bus Atha Cliath/Dublin Bus?"
The plaintiff instructed Mr Robert Walsh, solicitor, to initiate proceedings, as Aaron and Carroll and Co had instructed her that the limitation period under the Statute of Limitations was approaching. Aaron and Carroll and Co furnished the plaintiff's solicitors with some of the papers, including the above-mentioned letters.
A plenary summons was issued by Hughes Murphy Walsh and Co, solicitors for the plaintiff, on July 26th, 2000, in which CIE was named as the defendant. Mr Walsh avers that, as a result of reliance upon the letter from the defendants of September 16th, 1997, "a bona fide mistake in issuing proceedings against Coras Iompar Eireann was made, notwithstanding a reference to Bus Atha Cliath/Dublin Bus in one of the unticked paragraphs in that letter". This plenary summons was served by way of a letter dated October 5th, 2000, which was addressed to the secretary of Bus Atha Cliath, at its office at O'Connell Street, Dublin 1. In that letter the matter was entitled "Lynne Kinlon v. Bus Atha Cliath - Dublin Bus". Mr O'Herlihy, solicitor, of M Roche and Company, solicitors for the defendant, avers that this letter was received on October 17th, 2000.
A letter was then sent from the solicitors for the defendant to the solicitors for the plaintiff on October 25th, 2000, in which the matter was entitled "Lynne Kinlon v. Coras Iompar Eireann". In this letter, attention is drawn to the fact that "the appropriate defendant in this matter is Bus Atha Cliath/Dublin Bus ...", and that reference was made to this party in the letter of September 16th, 1997. No reply was received. A reminder was sent by the solicitors for the defendant on February 7th, 2001.
On June 11th, 2001, the solicitors for the plaintiff wrote to the solicitors for the defendant, enclosing the Statement of Claim. The solicitors for the defendants replied to this correspondence on June 12th, 2001, in a letter stating that they had not entered an appearance for Coras Iompar Eireann as they had been waiting for a reply to their letter of October 25th, 2000. The letter confirmed that an appearance would be entered on the basis that the plaintiff was clearly aware of the fact that she had issued proceedings as against the incorrect defendant and that the matter would be defended on that ground. Reference was also made to the reminder of February 7th, 2001, to which no reply had been received. Reminders were sent by the solicitors for the defendants on July 12th, 2001 and on September 10th, 2001.
On October 25th, 2001, the solicitors for the plaintiff wrote a letter addressed to "CIE, Group Investigation Department, Bridgewater Business Centre, Islandbridge, Dublin 8. It stated that no appearance had been received by them and that, should none be received within 21 days, a Notice of Motion would issue. This letter was responded to on November 5th, 2001, by a letter from the solicitors for the defendants expressing their surprise that correspondence had been sent directly to CIE. It stated that the solicitors for the plaintiff had been perfectly aware that M Roche and Company, solicitors, acted for the defendants, that the solicitors for the plaintiff had received letters from their firm addressed to Mr Robert Walsh, and that their letters of June 12th, July 12th and September 10th, 2001, had been ignored. A reminder of this letter was sent on December 6th, 2001.
The solicitors for the plaintiff wrote to the solicitors for the defendant on August 8th, 2002, enclosing the Statement of Claim.
A reply was sent on September 5th, 2002, inquiring as to why another Statement of Claim had been served. It was noted that this Statement of Claim was identical to that received on June 11th, 2001. A list was included of all correspondence from M Roche and Company, solicitors for the defendant, to Hughes Murphy Walsh and Company, solicitors, and to Robert Walsh and Company, solicitor. It was reiterated that no appearance had been entered for the defendant as all this correspondence had inquired as to the intention of the solicitors of the plaintiff regarding the fact that the incorrect defendant had been sued.
The solicitors for the defendants then wrote to the solicitors for the plaintiff enclosing Notice of Entry of and Appearance on behalf of Coras Iompar Eireann. This letter stated that it had been agreed that the appearance had been entered on the strict understanding that it would be the defendant's defence that the nominated defendant in the proceedings was incorrect. A notice for particulars was enclosed without prejudice to the above.
The first paragraph of the defendant's defence, delivered on December 18th, 2002, stated that "the defendant is not the owner of, nor did this defendant manage or control, the motor bus, the subject matter of these proceedings ..."
A letter was sent on May 14th, 2003, from the solicitors for the plaintiff to the solicitors for the defendants noting that paragraph one of the defence alleges that Coras Iompar Eireann was not the correct defendant and asking them to agree to an application of the plaintiff to substitute Bus Atha Cliath/Dublin Bus for Coras Iompar Eireann as the defendants. The solicitor for the defendant replied to this letter on June 30th, 2003, in which it was stated that there would be no consent to this application, as the solicitors for the plaintiff had ignored seven letters from the solicitors for the defence in relation to this matter.
The Notice of Motion, dated December 12th, 2003, was issued, seeking to substitute the defendant. The Master refused the relief claimed on February 5th, 2004.
An application for an extension of time within which to appeal the Master's decision came before Mr Justice O'Neill on March 7th, 2005. This extension was granted, and so Mr Justice O'Neill proceeded to consider the other reliefs sought by the plaintiff, namely, an order setting aside the decision of the Master of February 5th, 2004, an order substituting the defendant, and/or an order for an extension of the time period of the Statute of Limitations.
The appellant submitted that the true identity of the defendant had always been apparent, and that what had occurred had been a bona fide mistake as to the description of the defendant and not as to its identity. It was submitted that this was well known to the plaintiff and the defendant at all times, and that the mistake had been contributed to by the defendant's letter of September 16th, 1997. The appellant also submitted that the proposed substitution was appropriate in order to do justice between the parties.
Counsel for the appellant relied upon the case of Southern Mineral Oil Limited (In Liquidation) v. Cooney (No. 2) 1 I.R. 237, in which Shanley J. examined the English O.20 r.5(1), (2),(3), Rules of the Supreme Court, and noted that while O.15 r.2 of the Rules of the Superior Courts was similar to these rules, it was not identical.
O.20 r.5(1) - (3) provide that:
(1) Subject to Order 15, rules 6, 7 and 8 and the following provisions of this rule, the court may at any stage of the proceedings allow the plaintiff to amend his writ, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct.
(2) Where an application to the court for leave to make an amendment mentioned in paragraph (3), (4) or (5) is made after any relevant period of limitation current at the date of issue of the writ has expired, the court may nevertheless grant such leave in the circumstances mentioned in that paragraph if it thinks it just to do so.
(3) An amendment to correct the name of a party may be allowed under paragraph (2), notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the court is satisfied that the mistake sought to be corrected is a genuine mistake and was not misleading, or such as to case any reasonable doubt as to the identity of the person intending to sue or, as the case may be, intended to sue.
Mr Justice O'Neill held that the appellant's reliance on Shanley J's judgment, and, in particular, on O.20 r.5 (3) of the English Rules of the Supreme Court, was misplaced. Firstly, Mr Justice O'Neill held that O.15.r.2 of the Rules of the Superior Courts dealt only with the substitution of plaintiffs, while the addition or deletion of a defendant is to be dealt with under O.15.r.13. He went on to hold that the effect of O.20 r.5 (2) and (3) of the English Rules is that where a mistake such as described in O.20 r.5(3) occurs an amendment can be permitted, notwithstanding that the relevant period of limitation from the date of issue of the writ has expired.
Mr Justice O'Neill stated that there is nothing in the Rules of the Superior Courts of Ireland that would permit this to be done. Given the absence of such a provision in the Rules of the Superior Courts, there is no jurisdiction, Mr Justice O'Neill found, to cater for a mistake such as the appellant contends occurred in this case.
Hence, it is irrelevant that the mistake was a bona fide mistake, that it only concerned the correct description of the correct defendant, and that neither CIE nor Bus Atha Cliath were prejudiced.
Mr Justice O'Neill considered that the problem in the instant case was that the three-year Statute of Limitation period expired on August 1st, 2000. The plenary summons issued in this case named only Coras Iompar Eireann as the defendant, and so insofar as any other potential defendant is concerned, the Statute of Limitations had already expired.
Therefore, Mr Justice O'Neill noted, the issue which arises on this appeal is whether the court should permit the joining of Bus Atha Cliath to the proceedings, in circumstances where it would appear that Bus Atha Cliath can avail of a defence which would bar the action under the Statute of Limitations Act, 1957, as amended.
The defence relied upon a passage of Shanley J. in the case of Southern Mineral Oil Limited (In Liquidation) v. Cooney (No.2), in which it was held that the attitude of the Supreme Court on this matter had changed somewhat from its decision in O'Reilly v. Granville I.R. 90, which had held that the statute was a matter for the defence and does not arise until pleaded. In that case, the court followed the more recent decision of the Supreme Court in Allied Irish Coal Supplies Ltd. v. Powell Duffryn Tntl. Fuels Ltd 2 I.R. 519., where Murphy J. had held that it was "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.
However, Mr Justice O'Neill was, with regret, unable to agree with Shanley J. on this point. He noted that, during the Allied Irish Coal Suppliers Ltd. case, O'Reilly v. Granville did not appear to have been cited to either the High Court or the Supreme Court. As the leading authority on this point up until that time, the Supreme Court could not have reached a different conclusion without express disapproval of the decision in O'Reilly. It therefore remains good law, held Mr Justice O'Neill, and in finding himself with two conflicting Supreme Court Authorities, he stated that he was inclined to prefer the reasoning in O'Reilly v. Granville.
In that case, O'Dalaigh C.J. concluded that the High Court should not refuse to add a defendant simply because the defence of the Statute of Limitations would have been available to that defendant on the grounds that, firstly, the court should not assume that a defendant would avail of that defence, secondly, that the defence could only be raised by pleading, and thirdly, that in an application to join a defendant, the court could not determine in advance whether or not that defence would be successful. Budd J. agreed with the then Chief Justice, but added that if it was apparent beyond doubt that the defence of the Statute of Limitations was available to the proposed defendant, the adding of that defendant would be futile and might be refused.
Both O'Dalaigh C.J. and Budd J. concluded that as a matter of substantive law, and also by virtue of the concluding sentence of O.15 r.13, that an added party could not be considered to be a party to the proceedings earlier than the order giving leave to add that party.
Walsh J. dissented on this point. He was of the opinion that the addition of a party as a defendant had the effect of deeming that party to have been a party to proceedings from the time the writ was initially issued. This would have the effect of eliminating a defence under the Statute of Limitations that might have been available to that added defendant. To avoid that injustice, Walsh J. held that a proposed defendant who could avail of the statute should not be added. This proposition was based on an established English line of authority, with its basis in Mabrob v. Eagle Star and British Dominion Insurance Company 1 K.B. 485. However, Walsh J. nonetheless concluded that if the judge took the view that justice would beserved by the addition of the party, then that party should be added, even though this would effectively deprive him of the benefit of the Statute of Limitations.
Mr Justice O'Neill then considered the basis for Murphy J.'s decision in the Allied Irish Coals Limited case. The English line of authority, deriving from the Mabro case, contains two other cases referred to by Murphy J.. The first case, Liff v. Peasley 1 WLR 781, enunciated one theoretical basis for the decision. This theory, the "relation back" theory, was to the effect that when a party is added as a defendant, his joining to the proceedings was related back to the time of the issue of the writ, with the possible consequence of eliminating his defence under the Statute of Limitations.
The second theory is the "no useful purpose" theory, as outlined by a three-to-two majority in the case of Ketteman v. Hansel Properties Limited A.C. 189. This theory is based on the view that if the time of involvement in the proceeding started with the joining of the additional defendant, then the party joined could avail of his defence under the Statute of Limitations and there was no useful purpose in joining him. In this case there was an emphatic rejection of the "relation back" theory.
In light of these judgments, Mr Justice O'Neill stated that he found it difficult to see how the practice could be described as an established practice. Mr Justice O'Neill stated that, in his view, the only basis upon which a practice of this kind could be said to be an established practice would be on the basis of the "relation back" theory.
He held that if it was the law that when a party was joined as an additional defendant his joinder was deemed to take effect from the date of the original writ, then in circumstances where a defence under the Statue of Limitations might have been available to him, it would be right, in order to avoid injustice, for there to be an established practice not to join an additional defendant in these circumstance.
It was found by Mr Justice O'Neill that in many cases at the time of the application to join an additional defendant, even though it might be apparent that the limitation period had expired, it would not be known whether the proposed defendant wished to avail of the statutory defence, or whether there were circumstances which might estop him from availing of that defence. Therefore, the concept of "no useful purpose" could not be the basis of established of invariable rule of practice.
Mr Justice O'Neill felt that there was a considerable convergence between the opinions of O'Dalaigh C.J and Budd J. in the O'Reilly case and the House of Lords in the Ketteman case. He held that the inevitable consequence of these judgments is that the rule of practice could not continue to operate in an application to join an additional defendant, unless at the time that the application is made, it is proved that the proposed defendant will avail of a defence under the statute, and that that defence will in all probability, be successful.
Mr Justice O'Neill then summarised his findings. He stated that he followed the judgments of O'Dalaigh C.J. and Budd J. in the case of O'Reilly v. Granville. He held that where a defence under the Statute of Limitations may be available to a proposed defendant, there is no established rule of practice to the effect that such proposed defendant should not be joined as a defendant in proceedings under O.15(13) of the Rules of the Superior Courts. It was also determined that the joinder of an additional defendant does not have the effect of deeming that defendant to have been a party to the action from the date of issue of the original writ. An added party cannot be considered to have been a party to the proceedings earlier than the order giving leave to add. There is nothing in the Rules of the Superior Courts, or in substantive law, which would restrict the right of an added defendant to rely on a defence under the Statute of Limitations. A defence under the Statute of limitations must in every case be pleaded. Mr Justice O'Neill also stated that a court should not assume that a proposed additional defendant would avail of a defence under the Statute of Limitations, and should not attempt to determine in advance whether a potential defence under the Statute of Limitations would be successful.
In light of these conclusions, Mr Justice O'Neill stated that it was incumbent on him to make the order sought, and to join Bus Atha Cliath as a defendant to the action.
Solicitors: Hughes Murphy Walsh and Company, Solicitors for the plaintiff M Roche and Company, solicitors, for the defendant.
Alison de Bruir, barrister