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You are here: BAILII >> Databases >> Irish Court of Appeal >> Casey & anor v Governor & Company of Bank of Ireland & anor (Approved) [2025] IECA 66 (21 March 2025) URL: http://www.bailii.org/ie/cases/IECA/2025/2025_IECA_66.html Cite as: [2025] IECA 66 |
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COURT OF APPEAL CIVIL [approved] Neutral Citation Number: [2025] IECA 66 [2024 No 197] [2021 No. 3709 P] The President Butler J McDonald J BETWEEN RACHEL CASEY AND EOGHAN CASEY PLAINTIFFS/RESPONDENTS AND GOVERNOR & COMPANY OF BANK OF IRELAND AND BANK OF IRELAND MORTGAGE BANK DEFENDANTS/APPELLANTS
JUDGMENT of Ms Justice Caroline Costello delivered on the 21st day of March 2025 1. This appeal raises the vexed question of when a cause of action accrues for the purposes of s. 11 of the Statute of Limitations Act 1957 (as amended) in respect of a claim in negligence for pure economic loss. In particular, the question is whether the High Court was correct to conclude that there was insufficient evidence to decide that the alleged cause of action, the subject of these proceedings, had accrued no later than June 2011, and therefore that it was not possible to say that the claim was statute barred.
The Facts 2. The case concerns an investment by the late Dr Eugene Casey ("the deceased") in a financial product which was recommended and sold to him by the defendants/appellants, or one or other of them ("the appellants"). The deceased entered into a personal pension, Policy No. 081269B1, commencing on 1st January 2004 with New Ireland Assurance Company. At some time in 2006, the deceased entered into an agreement, subject to contract, to purchase the property known as 3, Daly's Terrace, Carmody Street, Ennis, County Clare ("the property"). He approached Bank of Ireland private banking for advices, as he wished to do so in a tax efficient way. The respondents' case (which is accepted for the purposes of this motion) is that the deceased was advised to purchase the property by way of a pension backed mortgage loan. If he invested 5,000 per month in a pension product and availed of tax relief against his income from his practice as a GP and purchased the property with an interest only 10-year loan, at the end of the term, his pension could be encashed so as to repay the outstanding principal and leave the deceased with a fund plus the property free of any debt. 3. On 13th October 2006, Bank of Ireland Mortgage Bank ("the second named appellant") issued a Letter of Loan offer to the deceased to enable him to purchase the property. It offered to advance 356,250 for a period of ten years. Repayment was to be by way of 120 interest only instalments in the sum of 1,330.96. The total sum payable under the loan was 515,965.20. The loan was described as an interest only pension. Special condition (a)(iii) required the deceased to put in place a pension policy "on terms acceptable to the Lender" which "must have a projected maturity value of at least twice the amount of the loan". It continued: "The proceeds of the Pension Policy shall, at the end of the term . . . be off set against the outstanding principal balance, interest and all other monies payable on the Loan. If, however, these proceeds are not available or are insufficient to discharge in full the amount due for any reason, the Borrower shall be liable to pay to the Lender at once the outstanding principal, balance and interest and all other moneys payable. (c) The Borrower must pay the premiums on the Pension Policy when due." Thus, the offer was inextricably linked with the investment in a pension which was to be encashed to repay the principal borrowed at the end of the term. The deceased accepted the offer on 20th October 2006. In fact, the monies were advanced pursuant to a slightly revised mortgage loan offer letter dated 13th November 2006, but the terms material to the dispute in these proceedings remained unaltered. The offer of 13th November 2006 was accepted by the deceased on 14th November 2006. 4. A pension incepted by the deceased with New Ireland Assurance on 1st January 2004 was agreed to be the pension satisfying special condition (a)(iii) (now special condition (b)(i)). The loan was advanced on 24th November 2006 and the deceased duly purchased the property and executed a mortgage in favour of the second named appellant. 5. The deceased had agreed to monthly repayments under the New Ireland pension policy of 5,000 per month, but the direct debit failed on 19th September 2007 and from November 2007, he reduced the monthly payments from 5,000 to 750 per month. He did so, having received independent advice to the effect that he could not claim tax relief on his earnings from the General Medical Scheme ("GMS") for the purposes of a private pension as separate pension arrangements applied to GMS earnings. He therefore could not afford to make the projected payments, given the proportion of his earning from private practice. 6. On 14th September 2009, the deceased instructed New Ireland Assurance to mark his New Ireland pension policy "paid up" with immediate effect and ceased making any payments into the policy with effect from 30th September 2009. In April 2010, he encashed the policy. On 8th June 2011, the deceased advised the second named appellant that all funds had been transferred out of the New Ireland pension policy. 7. None of the proceeds were utilised to pay down the sums due on foot of the loan. It was therefore legally impossible to repay the loan from the pension as per the agreement and it was de facto practically impossible to do so where such pension as had been built up was encashed and the proceeds utilised elsewhere. No alternative provision for repayment of the loan was put in place. 8. Thus, from September 2007, the deceased knew that he could not afford the premia payments necessary for the pension fund to attain the growth required to ensure that a lump sum would be available in November 2016 to pay the principal due on foot of the loan. Further, he would have no lump sum after repayment of the loan available to fund his retirement. In response, he initially reduced the payments drastically, and from 30th September 2009, he ceased making payments into the New Ireland pension entirely. He encashed the policy in April 2010, but he did not utilise any portion of the sum realised to reduce the liabilities secured by the mortgage. 9. The mortgage term expired on 30th November 2016 and the repayment balance stood at 356,044.75. The deceased was not able to repay the balance due, so he availed of advices from Cahill Taxation Services who negotiated on his behalf with the second named appellant. On 12th December 2016, the second named appellant wrote to the deceased offering him an alternative repayment arrangement whereby the deceased would make repayments of 1,200.00 per month. This level of repayment would not clear the debt. Rather, it was designed to afford the deceased a breathing space, but no more. The offer expressly required the deceased to accept that he would be required to sell the property in order to repay the loan i.e. he could not discharge his liabilities to the second named appellant and retain the property. The deceased accepted the offer. 10. The deceased died in tragic circumstances on 4th July 2017. The second named appellant took no steps in relation to the loan account for 18 months from the date of the death of the deceased to allow time to administer the estate. Despite negotiations, agreement was not reached between the executors of the deceased and the appellants, and on 10th October 2019, the second named appellant sent a letter of demand to the executors in respect of the outstanding debt of the deceased. The plenary summons herein issued on 14th May 2021 in the names of the deceased's widow and the respondents. 11. On 26th November 2021, the first named appellant issued a motion seeking, inter alia, to have the proceedings dismissed on the basis that they constituted an abuse of process inter alia because they were not brought by the deceased's personal representatives, but were brought apparently in the then plaintiffs' personal capacity. On foot of that motion, the High Court gave the respondents leave to deliver and serve an amended statement of claim. This was delivered on 15th September 2022 and recast the claim entirely. It removed Ms Nuala Casey as a plaintiff and added Bank of Ireland Mortgage Bank as a second named defendant to the proceedings. A defence was delivered on 14th March 2023 in which the Statute of Limitations was raised a preliminary issue. On 1st June 2023, the appellants issued a motion seeking an order dismissing the proceedings on the basis that they were statute barred. The Pleaded Claim 12. It is necessary to consider the claim as pleaded in some detail as the issue whether the claim is statute barred must be considered in light of the pleaded case. One of the difficulties in this case has been the protean nature of the claim advanced. 13. In the statement of claim delivered on 30th June 2021, the then plaintiffs pleaded that the deceased "depended entirely" on the advice of the defendants and that he was "mis sold a pension backed mortgage" to purchase the property. It is pleaded that he should never have been sold such a product as it did not suit his requirements. It is pleaded that "[s]hortly after the drawdown of the monies for completion of the purchase of the property the pension-backed Mortgage Product failed". At para. 13, it is pleaded: "It became apparent based on the makeup of [the deceased's] income that the Mortgage Product sold to him by the Defendant was not suitable when he sought advice independent to the advices of the Defendant. He was only entitled by Revenue to make one half of the pension contributions that he was making to comply with the Pension Back (sic) Mortgage Product. [The deceased] then had to alter his repayment structure. He stopped making pension payments in 2010 as the value of his pension was decimated." It is further pleaded that the only way the lump sum payment due in 2016 on the termination of the loan could be met was by the sale of the property, "[t]he mortgage product therefore was improper". 14. In replies to particulars raised by the defendant, dated 20th September 2021, the plaintiffs said that the pension backed mortgage product was always "unfit for purpose" based on the makeup of the deceased's income, which was only partially derived from private practice. In reply to particular 19, it was stated that contrary to the advice provided, the deceased was unable to afford the mortgage repayments owing to wrong advice provided as to the tax reliefs allowable. Based on advice provided to him by a tax specialist, the deceased remedied the situation by reducing his pension contribution from 5,000 per month to 750 per month "to rectify the breaches" in Revenue allowances. It was stated that this was a "prerequisite" and that "on balance", the mortgage product failed within the first 12 months of its operation. In reply to particular 23, the plaintiffs stated, "[i]t was known that the mortgage product sold to Dr Casey was unfit for purpose and would fail". 15. The original statement of claim was virtually entirely replaced by a second statement of claim delivered on 15th September 2022. At para. 8 of the statement of claim, it is pleaded that the deceased agreed to purchase the premises in October 2006 and then: "The deceased consulted the defendant for financial advice in that context, and in particular he sought advice regarding a mortgage loan facility which he could draw down, to enable him to purchase the premises and for advice in relation to a tax efficient means of investing in the premises." Paragraph 11 of the statement of claim confirms that the deceased "required a cost effective, tax efficient means of acquiring the premises". It is confirmed at para. 12 that he wished to purchase the premises as an investment. The statement of claim sets out how the bank offered to advance the deceased a mortgage loan facility in the sum of 365,250 repayable in ten years subject to the payment of 120 interest only instalments during that period, and that the deceased also invested in a pension product provided by New Ireland Assurance plc. At para. 17, it is pleaded that "the deceased made monthly investments in the pension policy thereafter". At para. 21, it is pleaded that the mortgage loan facility and the related pension investment were not fit for their intended purpose or suitable for the deceased's requirements. In particular, it is pleaded that the larger part of the deceased's income as a General Practitioner derived from the GMS, that income from such services could not qualify for tax relief on contributions to a non-GMS pension arrangement, and that in the circumstances, the respondents greatly exaggerated the tax relief that would be available to the deceased if he invested in the pension policy. At para. 21(g), the plaintiffs plead: "As a result, the bank, its servants or agents, led the deceased to believe (as in fact he did) that the pension investment backed mortgage loan facility was suitable for his requirements and/or fit for its intended purpose, when it plainly was not." Paragraph 23 provides: "If the bank had explained the true nature of the linked pension investment and the mortgage loan facility, or the risks associated with the same, and if the bank had provided the deceased with proper advice, the deceased would not have drawn down a mortgage loan facility and/or invested in the pension product. 24. The deceased's pension investment performed poorly, resulting in a depreciation of the value of the deceased's investment therein. When the loan facility matured, the deceased was unable to repay the same from the proceeds of the investments, notwithstanding the advice that the bank had given him." 16. At para. 28, the plaintiffs, as the personal representatives of the deceased's estate, say that they have suffered "a loss of the pension investment that the deceased had made in reliance on the bank's advice and incurred a significant liability to the bank." 17. In replies to notice for particulars on the second statement of claim at para. 28, it is stated that the deceased was 67 years of age in 2006, and that he would have to retire from employment by the General Medical Service at the age of 70 years and that the maximum age at which he would have been permitted, under Revenue rules, to contribute to any pension scheme was 75 years, "[t]his meant the contributions would have to be enormous to achieve the goal of repayment of the principal sum the Second Named Defendant lent to the Deceased as part of the mortgage". The mortgage was completely unfit for the purpose "because it was not tax efficient, and this became immediately apparent once the funds were drawn down and the repayments were being made by the deceased before he had to seek relief and an alternative payment structure". 18. In reply to particular 34.1, it is said that the defendants ought to have reviewed the appropriateness of their advice to the deceased "[i]mmediately [when] the deceased brought it to the Defendants(sic) attention that the mortgage was not working and that he was incapable of maintaining the repayments". This was because "the mortgage and pension were unfit for purpose". In reply to a query as to what was meant by the deceased's pension investment performing poorly, the following answer was provided: "The Deceased could not maintain the payments which had been set out as being affordable and appropriate given his financial circumstances to maintain the pension and the mortgage. The mortgage fell into arrears. The Deceased approached the Defendants to reschedule his payments. Once this became apparent, the pension product had failed in its purpose and the advice provided by the Defendant was proven to be improper." It is further stated that the deceased became aware that the pension investment was not showing a profit balance and/or would not return to profit on the investment "[b]ecause the deceased could not maintain his payments". 19. In summary, the pleaded case is that there was one transaction and one product: a pension backed mortgage loan. It is pleaded that the product was mis-sold to the deceased and that he would never have entered into the transaction in the first place, had he been given the correct advice in 2006 (i.e. a no transaction claim). 20. Alternatively, the claim is that the deceased could never have made the monthly pension contributions required to generate a fund which would both enable him to repay the principal sum in November 2016 and have an investment balance in his favour, as his income available for tax relief by way of pension investment was considerably less than that required. Shortly after he entered into the investment, he received independent advice that he could not make monthly payments into his pension fund of 5,000, as envisaged. Thus, he could never generate a lump sum within the term of the loan sufficient to repay the principal sum in November 2016, when the term of the loan expired. It is said that the product was unsuitable and unfit for purpose and that this was known shortly after he entered into the transaction. He recognised this difficulty, and on 19th September 2007, ceased making the monthly payments into his pension of 5,000. The respondents' case is that the "product" failed almost immediately or within 12 months of drawdown. 21. The respondents claim that they are at the loss of the pension investment the deceased had made and that he incurred significant liability to the bank.
The Affidavit of the Second Named Respondent 22. The second named respondent swore an affidavit in response to the appellants' motion to have the proceedings dismissed on the basis that they were statute barred. In his affidavit, he describes the nub of the plaintiffs' claim as being negligent advice to the deceased "to draw down a mortgage loan facility, secured on a pension policy approved by the Defendants". They claim that the appellants provided the deceased with financial advice "in connection with this transaction" (my emphasis), that they advised him to purchase the premises "using a mortgage loan facility with an associated pension investment, in 2006". At paras. 7 to 9, the deponent avers: "The term of the mortgage loan facility expired on 30th November 2016. As the parties entered into an Alternative Repayment Arrangement in December 2016, the deceased's loss did not, in fact, crystallise before he died. The pension investment could have recovered its value at any time prior to the maturity of the mortgage loan facility. Regrettably, it did not do so and it was insufficient to discharge the mortgage loan facility upon its maturity. 8. . . the Deceased did not suffer loss until the date of the maturity of the mortgage loan facility, namely, 30 November 2016. In fact, he did not suffer loss on that date, as the parties subsequently entered into an Alternative Repayment Arrangement. The Deceased was not, in fact, require[d] to pay the total sum due and owing at that time. That sum was first demanded of the Plaintiffs in their capacity as personal representatives of the Deceased's estate, on 10 October 2019. . . . 9. The Plaintiffs contend that the earliest date on which the Deceased suffered loss as a result of the Defendant's negligence was when the total debt fell due in accordance with the mortgage loan facility. This could have (but did not) occurred on 30 November 2016, but the Defendants did not demand payment at that time. The Defendants did not, in fact, demand repayment and the deceased's estate did not suffer a loss arising out of the Defendant's negligence until 10th October 2019." 23. The first point to note is that it was factually impossible for the pension investment to have "recovered its value at any time prior to the maturity of the mortgage loan", or certainly after April 2010, as the deceased encashed it in 2010 and used it to discharge other liabilities. It is difficult to understand, therefore, why this point is advanced. Furthermore, the reference to the "value" of the pension "recovering" is extremely vague and inexact. While the value of what was invested might have increased had it not been encashed, the pension fund would have had to perform miraculously if, based on the few payments actually made, it was to realise a sum in the order of 356,250 by November 2016. In reality, it was highly improbable once the deceased ceased making payments into his pension that he would have been able to repay the principal from the pension fund on the date of the expiry of the loan. 24. The second point to note is that the respondents claim that the deceased did not suffer any loss as a result of the negligence of the appellants until they demanded repayment of the balance of the outstanding loan, which was on 10th October 2019. The implications of this assertion will be considered below.
The Judgment of the High Court 25. The High Court set out the question for determination as: "[W]hether any potential cause of action on the part of the [deceased] against the [appellants] would have accrued no later than the date of encashment by [the deceased] of the New Ireland Policy number 08126*** in June 2011 (in circumstances where he notified the [appellants] of the encashment of the said pension policy on or about 8th June 2011)." 26. O'Regan J outlined the facts as I set out above and then summarised the submissions of the parties at paras. 5 to 12 of her judgment. She discussed Fennelly J's consideration in Gallagher v ACC Bank plc [2012] 2 IR 620 of the judgment of the High Court of Australia in Wardley Australia Ltd v Western Australia [1992] 175 CLR 514. O'Regan J noted that in Wardley, the court rejected the proposition that English decisions are to the effect that a plaintiff sustains loss on entry into an agreement, notwithstanding that the loss is a loss upon a contingency. Rather, the Australian court was satisfied that a contingency loss turned on the plaintiff sustaining measurable loss at an earlier time, quite apart from the contingent loss which threatened at a later date. O'Regan J continued: "Brennan J indicated that whether loss or damage is actually suffered when any of a number of possible events occurs depends on the value of the benefit. If a benefit is acquired by the plaintiff, it may not be possible to ascertain whether loss or damage has been suffered at the time that the burden is born (sic) - that is, at the time of the payment, the transfer, the diminution in value of the asset or the incurring of the liability. The suffering of any loss cannot be said to occur before it is reasonably ascertainable (not before it is ascertained) that the burdens which the plaintiff had borne are greater than the value of the benefits that the plaintiff had acquired or will acquire. In other words, no loss is suffered until it is reasonably ascertainable that, by bearing the burdens, the plaintiff is worse off than if he had not entered into the transaction. . . . At para. 110, Fennelly J stated that he did not think that the cause of action accrues where there is mere possibility of loss rather, he thought it was helpful to bear in mind the comments of Brennan J in Wardley to the effect:- 'A transaction in which there are benefits and burdens results in loss or damage only if an adverse balance is struck'." 27. O'Regan J referred to the fact that the deceased reduced and then ceased payments into the pension and later withdrew all funds by 2011. The core of her decision is at paras. 14 to 16 as follows: "14. In my view, by reducing, subsequently stopping and ultimately withdrawing all funds from the pension product by 2011 there is evidence of a breach of the special condition within the mortgage agreement between the parties for which the defendant does not appear to have taken any action. Certainly, the [deceased]may have felt that he had by then suffered a loss however, that cannot be equated with being in a position to establish actual damage capable of assessment in money terms at that time. Without the benefit of a valuation of the property, the amount achieved from an encashment of the pension policy, the amount paid by the [deceased]to the bank in interest only payments and any yield received from the property, it is impossible to determine whether or not an adverse balance was struck in respect of benefits and burdens in 2011. It may well transpire, with the assistance of appropriate evidence, that an adverse balance did indeed exist in 2011 but that evidence is not currently before the Court. The only crystallisation that might be said to have occurred by 2011 was that the [deceased]was in breach of the special term of the loan agreement relating to the pension policy. Any risk thereby absorbed/acquired by the [deceased]and it's (sic) impact on the current claim of the plaintiffs is outside the scope of the current preliminary issue. 15. Furthermore by reason of: - a. there is nothing to suggest that the agreement reached between the parties had inherent features which made it inevitable that the terms thereof would fail, as distinct from, in the particular circumstances of the within matter it was unsuitable for the [deceased]; b. there is no evidence that the defendants took any action based on the encashment of the pension policy notwithstanding that they were advised of same; c. there is no evidence that the [deceased]did not continue to make some interest only payments to the bank thereafter; d. the parties renegotiated the repayments to the bank in 2016 supporting a possible contention that the essence of the agreement survived the encashment of the pension policy; e. there is no evidence that the [deceased]attempted to realise or surrender the property in 2011; f. there is no evidence of actual as opposed to perceived by the [deceased], loss in 2011; there is insufficient evidence before the Court to establish a loss balance being struck in 2011 or that the agreement was then at an end. It appears that the parties conducted themselves as though the balance of the agreement remained in force following the encashment of the policy in 2011. Neither proceeded on the basis that there was any form of termination, repudiation or frustration of the contract then or indeed in 2016 when there was a renegotiation of the payment terms. 16. In the circumstances as outlined above, in my view, it is not possible to definitively state, at this time, in the context of the current limited agreed evidence, that by reason of the fact that the [deceased]had unilaterally reduced, later ceased, and subsequently encashed the pension policy by that time the balance of burdens and benefits was such that there was an adverse balance accruing to the borrower, as opposed to the possibility of an adverse balance. Effectively there is no evidence that by 2011, notwithstanding the subjective views of the borrower, there was any real actual damage suffered by the [deceased]with the balance of burdens and benefits then struck an adverse status for the borrower." 28. For these reasons, she held that it could not currently be stated that the claim of the plaintiffs crystallised by 2011 and therefore refused the relief. The Appeal 29. The appellants' appeal was based on four contentions: (a) The learned trial judge failed to place adequate weight on the claim as pleaded: if the appellants had not negligently advised the deceased, he would never have entered into the transaction; (b) The learned trial judge wrongly decided that evidence of the property value was a necessary element for the accrual of the alleged cause of action; (c) The learned trial judge conflated the accrual of the appellants' cause of action against the deceased (for the loan debt) with the accrual of the deceased's alleged cause of action against the appellants; and (d) In doing so, the learned trial judge misapplied the legal principles applicable to deciding when the deceased's alleged cause of action herein accrued. Discussion 30. Section 11 of the Statute of Limitations Act 1957 (as amended) provides, inter alia: "11(2)(a) . . . an action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued." 31. The cause of action in negligence accrues when provable injury capable of attracting compensation occurred to the plaintiff (Hegarty v O'Loughran [1990] 1 IR 148). The tort of negligence requires a negligent act or omission plus damage. The tort is not complete until damage has been caused by the defendant's wrongful act or omission. 32. The main dispute between the parties relates to when the deceased suffered damage as a result of the alleged wrongful acts of the appellants, and thus when his cause of action accrued and when he could have commenced proceedings in negligence against the appellants. The difficulty in answering this question relates to the difficulty in analysing damage in the context of economic loss. 33. The issue has been canvassed recently in considerable detail by the Supreme Court in Gallagher v ACC Bank plc [2012] 2 IR 620, Cantrell v Allied Irish Banks plc [2020] IESC 71, and Smith v Cunningham [2023] 1 ILRM 407. In the first of these cases, Gallagher, Fennelly J conducted a detailed review of the relevant authorities in England and Wales and Australia. At para. 96 he observed that the English case law "is notable for the almost complete absence of expressions of regret . . . at a state of the law in which a person suffering financial loss should be shut out from relief and statute barred not only before he knew he had a cause of action but in circumstances where he could not reasonably have been expected to sue". In contrast, he was concerned that the courts should strike a balance between the rights of plaintiffs and defendants. 34. Fennelly J acknowledges that the test of when the tort of negligence is complete is the same regardless of the nature of the injury; that the cause of action accrues in the case of financial loss when the plaintiff has suffered "actual damage" and that actual financial loss may take many forms. The difficulty is in applying the analysis to the particular form of financial loss asserted in the pleadings. 35. At para. 109, he rejected the extreme position in England that the mere possibility of loss suffices for a cause of action to accrue which in turn triggers the commencement of the limitation period within which proceedings have to be brought. In Shore v Sedgwick Financial Services Ltd [2008] EWCA Civ 863, at the date of the transfer from his occupational pension scheme to a personal income withdrawal plan, the plaintiff got what was then full market value, and per Fennelly J, it would not have been possible then to show that the plaintiff was at a loss. As Fennelly J observed, "[h]e, like many others, had the bad luck to encounter a downturn in the markets. But the logic should apply even in better market conditions. I do not think it was just or fair to apply such relentless logic to an uncertain situation. Some account has to be taken of probability." 36. At para. 110, he expanded on the injustices of applying a test of mere possibility of loss: "Where a person has been led by what he alleges to be negligent advice or other negligent action, such as, for example, negligent valuation of an asset, to enter into a transaction, I do not think the cause of action accrues when there is a mere possibility of loss. To hold otherwise would be doubly unfair to the plaintiff. If he sues early, he may be unable to quantify his loss. The defendant may be able to point to imponderables and uncertainties and argue reasonably that the plaintiff is unable to prove on the balance of probabilities that he has suffered any actual damage. If, on the other hand, the plaintiff waits until his loss materialises, his claim will be held to be statute barred, if mere possibility of loss is the test." 37. Fennelly J described the analysis of Brennan J in Wardley Australia Ltd v Western Australia [1992] 175 CLR 514, as providing "a useful framework of analysis". He regarded it as helpful to bear in mind Brennan J's comment: "A transaction in which there are benefits and burdens results in loss or damage only if an adverse balance is struck. If the balance cannot be struck until certain events occur, no loss is suffered until those events occur..." 38. Fennelly J acknowledged that there will be cases where there is immediate loss upon the occurrence of the negligent act or omission, even if there are difficulties of quantification and uncertainties and contingencies. Uncertainties "do not themselves prevent the early accrual of the cause of action, subject to the proviso that the plaintiff has suffered actual loss at the time of entry into the transaction." 39. Fennelly J then turned to the facts in Gallagher. He identified the key complaint as being that the plaintiff was induced by the negligence of the defendant to invest in the Solid World Bond which was a "borrow to invest" product, a feature which made it "wholly unsuitable for the plaintiff, or indeed any investor". The product was not a "suitable product to borrow money to invest in and that it was most unlikely that the bond would deliver any return sufficient to offset the cost of the loan transaction". In that case, the plaintiff pleaded that he would not have entered into the transaction were it not for the negligence and misrepresentations of the defendants. The loss claimed was the amount of interest paid by the defendant on the loan transaction. 40. Fennelly J identified three possible approaches to the accrual of the cause of action: (i) It could accrue when the plaintiff entered into the transaction by borrowing the money and purchasing the bond; (ii) It might accrue at some intermediate date when the plaintiff could prove that he was at a loss in terms of a calculation of his liability for interest against movements in the value of the shares; and (iii) It could accrue at the end of the period of investment. Fennelly J concluded that the cause of action accrued when the plaintiff entered into the contractual relationship with the defendant as he had pleaded that he suffered damage by the very fact of entering into the transaction and purchasing the bond. Fennelly J's analysis is worth citing in full: "[119] In logic, if the plaintiff's loss was too uncertain at the start of the period, the same would be true to a greater or lesser extent at every point during the currency of the bond. No loss could be established during the term, since the plaintiff could not withdraw from the bond. If the plaintiff could not sue at the beginning, because of the need to await the development of the value of the bond, equally it is unlikely that he could sue on any intermediate date. The plaintiff stated in his written submissions that there was no evidence whatever of any damage being suffered by him prior to the maturity of the investment. [120] The only possible alternative date of accrual would be at the end of the period of five year eleven months when it could be seen whether the plaintiff suffered loss by measuring any gains in the shares against the interest paid on the loan. That alternative view would apply no matter what the length of the bond, which would mean that, in the case of a bond for ten, fifteen or even thirty years, the defendant could say that no damage had been caused. That approach might be the correct one in the cases of a different kind of investment, especially one where obligations of management and investment were undertaken. The implication in the present case would be that the cause of action in tort would not even have accrued although the six year limitation period for any claim in contract would have almost expired, as the maturity date of the bond was five years and eleven months. On the pleaded facts of the present case . . . the damage accrued on the entry into the bond, when the plaintiff was sold a bond which was "wholly unsuitable" for him." 41. In a concurring judgment delivered by O'Donnell J (as he then was), at para. 131, he observed: "The entire thrust of the plaintiff's claim is that the investment ought never to have been made. The plaintiff claims to have suffered a loss in the shape of a liability to interest payments which accrued immediately and were immediately quantifiable. I have little doubt that proceedings could have been commenced earlier, and if so, that damage could have been assessed, both in contract and tort. . . . Looked at in one way the loss itself was certain and quantifiable (it was the liability to interest payment during the term) and the only uncertainty was as to the credit which might be allowed to the defendant in respect of the possible gain in value of the investment at the end of the term. That is the type of uncertainty which would not pose significant difficulty for either the parties or the court to devise an appropriate solution." 42. The Supreme Court revisited the issue of the accrual of a cause of action for financial loss in Cantrell v AIB. O'Donnell J delivered the judgment of the court. He observed that difficulties arise where damage may not occur until some time after the negligent act, with the result that a cause of action does not accrue, and consequently, time does not begin to run under s. 11(2) until that later date. He identified a particular issue being "where a disappointed investor may seek to claim in respect of investments which have proved unsuccessful. It is in the nature of many investments that they are intended to be medium or long-term in nature and may be expected to fluctuate to some extent so that a loss, which the plaintiff may subsequently attribute to the negligence of a particular adviser, may not be said to have occurred or been detectable until some time after the advice was given and the investment made or the asset acquired." 43. O'Donnell J observed that case law had not succeeded in producing a principle that was entirely clear or satisfactory. At para. 109, he observed that the loss and damage which completes a tort of negligence is loss and damage capable of being sued for. He described as "more than a little troubling" a definition of damages which was far removed from reality. He continued: "Most litigants are not led to commence proceedings by the identification of negligence or indeed breach of contract. Instead, it is only when individuals or businesses suffer actual damage that the question arises whether that can be attributed to the wrongful act of another person who could be required to pay compensation. But, as Dr. O'Sullivan observes, individual clients are being saddled with a definition of damage wholly unrelated to their layman's understanding of the situation. Moreover, the approach is not necessarily consistent with the approach of the law of tort in physical injury. A person who is exposed, for example, to asbestos may have a measurable risk of future contraction of asbestosis, but the damage is not suffered and a cause of action does not accrue in those circumstances, unless and until some asbestosis is manifest." 44. At para. 132 of the judgment, O'Donnell J observed: ". . . Gallagher requires the Courts to adopt a pragmatic approach in which the identification of damage for accrual of a cause of action must proceed on an incremental basis and that damage for the accrual of a cause of action must bear a close relationship to the layperson's understanding of that term. That is real actual damage, which a person would consider commencing proceedings for. 45. O'Donnell J analysed the decision in Gallagher as follows. At the time he entered the investment, there was a high probability - though not a certainty - that the return would not cover the interest which he was obliged to pay; the investment, if it could have been sold, was almost by definition 500,000 or close to it at the time it was made. However, investors (such as Mr Gallagher) who had acquired it in a "borrow-to-invest transaction", were in effect paying in the region of 540,000 for it by reason of the interest obligation. If the plaintiff had sought to sell the entire investment, including the interest obligation at the time, he would not have received the equivalent of 540,000, but rather, a lower price. O'Donnell J stated "[t]he underperformance of the index basket was not certain, but it was probable, and that probability would have an immediate effect on the value of the plaintiff's investment. As Fennelly J. observed, some account must be taken of probability." 46. Applying the analysis to the facts in Cantrell, he rejected the argument that the fact the investors obtained a riskier product than they claim they wanted, constituted sufficient damage to complete the tort at that point. He held: "It is implicit in the analysis of Gallagher . . . that if the risk to the product had not rendered the investment less valuable, then no damage was suffered sufficient to complete the tort, even if the product could be said to be something other than that which the appellants sought, and to that extent defective, and perhaps giving rise to a claim in contract." 47. He agreed that it was necessary to make a basic comparison between the position of the plaintiff if he or she had not entered into the transaction and the position under the transaction. If, by that comparison, he had not suffered loss, he had no cause of action: "It was only when, adopting the language in Wardley, the benefits and burdens reveal a loss that a cause of action accrues. If that balance is dependent on the contingency, it is only when that contingency occurs, and affects the value, or the possibility of it occurring affects that value, such as to create a loss, that a cause of action accrues." Applying this analysis to the facts in Cantrell, O'Donnell J held that the cause of action accrued when the value of the investment first fell below parity: i.e. the amount of the original investment (perhaps with deemed interest). At para. 140, he held: "The test is when provable injury capable of attracting compensation occurred, and that is when it is available to be proved and damage is, in the Brandley sense, manifest." He acknowledged that in Cantrell, the precise date was not identified (though it was recorded in annual accounts). Nonetheless, "[t]hat point was also identifiable and provable by any plaintiff, although it might be unreasonable to expect them to seek to do so, but it was, in the Brandley sense, manifest as it was capable of being proved" (para. 142). 48. The most recent authority to consider when a claim in negligence resulting in financial loss accrues is Smith v Cunningham. The Court of Appeal judgment [2021] IECA 268 was delivered in October 2021. At para. 34, Collins J identified 17 points drawn from the decisions in Gallagher, Brandley and Cantrell. The following are relevant to this appeal: "(12) The mere 'possibility' of loss and/or the exposure to a 'risk' or 'increased risk' of loss will not, in itself, constitute damage sufficient to complete the tort of negligence, absent a present adverse effect on value . . . If the risk to the product had not rendered the investment less valuable, then no damage would have been suffered sufficient to complete the tort . . . (13) Where loss is wholly prospective or contingent in character, it will not constitute damage in this context, even if such loss appears probable, in the absence of an immediate impact on value . . . (14) Where a transaction involves benefits and burdens, loss or damage arises only if the balance is adverse to the plaintiff. Where the balance is dependent on a contingency, it is only when that contingency occurs, and affects value, or where the possibility of it occurring in itself affects value, such as to give rise to immediate loss, that a cause of action will accrue . . . (15) There are cases in which it can be said that actual damage is suffered on the occurrence of the transaction, even if there are difficulties of quantification and there are uncertainties and contingencies. Such uncertainties do not in themselves prevent the accrual of a cause of action, provided that the plaintiff has suffered actual loss at the time of entering into the transaction. . . . (16) It follows from the above that there may be 'damage' sufficient for a cause of action in negligence to accrue, well before the point at which the plaintiff is in a position to quantify a claim for 'damages'". Point (17) repeated the test identified in Cantrell at para. 140 quoted above. 49. Collins J accepted that the points did not "provide any form of bright-line rule or principle of general application" and that in the abstract, the distinction between present loss and contingent/future loss might seem clear-cut, but that in practice, the dividing line is "blurry and imprecise". The court allowed the appeal, concluding that damage occurred once the plaintiffs purchased a property which was in breach of planning permission. 50. The case was appealed to the Supreme Court. The principal judgment was delivered by Murray J. He commenced by observing that economic loss is intangible and can assume many diverse forms such as "the diminution in the value of an asset, the acquisition or sale of property on terms less advantageous than they should have been, or the wrongful exposure to a liability to pay monies (or the payment of such monies) being the most common. Sometimes these losses will be contingent on other events that may or may not occur, on occasion they are the product of uncertain and/or fluctuating valuations in volatile markets, and in the case of certain kinds of transaction they may be reversible at no or very little cost". He pointed out that applying the test of when "damage" in these various situations is "manifest" is "troublesome". 51. Murray J emphasised that the test of when a cause of action has accrued is objective, with the result that a plaintiff may find a potential claim has become statute barred before they realise that they have been wronged. 52. Murray J noted that the critical point in Cantrell was "the rendering of the right less valuable". In Gallagher, this was the case, and accordingly, the cause of action accrued when he entered into the transaction, with the result that his claim was statute barred. On the other hand, the alleged negligence in Cantrell did not have this effect "[i]t was only when the benefits and burdens revealed a loss that time begins to run: if the balance between benefits and burdens depends on a contingency it is only when that contingency occurs and affects the value or the possibility of it occurring affects that value such as to create a loss, that a cause of action accrues (at para. 138)". 53. At para. 57, he held that there must be a balance between cases in which "intuitively, a plaintiff cannot realistically be said to have been damaged by a transaction or event and those in which there has been a real change in their position." He said this balance is best struck on a pragmatic basis. He continued: "That pragmatic response does not mean abandoning the need to articulate a test: it is just that by excluding from the legal definition of damage a purely contingent risk and that which is a ' mere possibility', requiring instead that the damage be 'actual', ' measurable', ' relevant', ' real', ' immediate' or ' not remote', litigants, lawyers and judges are provided with both a framework for analysis, and sufficient room to accommodate the practical realities and exigencies of an individual case. 54. At para. 59, Murray J extracted five propositions from Cantrell. The last two are particularly apposite to this appeal: "(iv) In deciding what is sufficient damage for these purpose, (sic) the yardstick is 'real actual damage, which a person would consider commencing proceedings for' (para. 132). This may arise in cases in which 'rights may be less valuable by reason of exposure to a risk' (para. 133). One of the circumstances in which this will occur is where there is a transaction involving benefits and burdens in which the balance between those benefits and burdens depends on a contingency. In that situation, it is only where that contingency occurs and affects the value or the possibility of it occurring affects that value such as to create a loss, that the cause of action accrues (para. 138). (v) There will be cases in which it can be said that actual damage is suffered on the occurrence of a transaction even if that was not reasonably discoverable for some time (para. 133)." He continued at para. 60 by cautioning that point (iv) posits a test which is "capable of objective application". He cautioned that even where a present loss can be identified, "the cause of action will still not accrue when the adverse impact upon the right or interest in play is de minimis. Instead, as Lord Mance put it in Sephton, what must be identified to sustain the claim that the Statute has started to run is, at the relevant point in time, an 'immediate, measurable economic disadvantage' or a loss which is 'sufficiently measurable'." 55. In the case before him, Murray J concluded that as the solicitor had been retained for the purposes of obtaining a good marketable title, and he failed to do so, the point at which his client had suffered actionable loss "will generally be the point at which the property is conveyed to him or her". This is because what the client has at that time obtained will usually be materially less valuable than his entitlement and "he has a right to sue to recover from the negligent solicitor the difference between the value of the right he contracted for, and that of the asset he has obtained. The loss in this situation will generally be, ... immediate, measurable economic damage." It was argued by the plaintiff that the planning issue could at all times have been, and indeed eventually was, resolved, but Murray J said that the fact that the error that has resulted in the loss of value can be reversed will not in itself convert the present damage to the client's interests into a future contingency. At para. 71, he concluded: ". . . the plaintiff and his wife acquired something different and worth less in July 2006, and that they suffered real and actual damage. Or, to put it another way, applying the hypothesis of whether the plaintiff could have maintained an action for damages against the defendant following completion of the sale of the property to them, he could and, therefore, time ran from that point." 56. At para. 82, Murray J concluded as follows: ". . . while the test for the accrual of a cause of action in negligence is, in theory, the same for all forms of injury, in taking account of the particular features of claims in negligence to recover pure economic loss it must accommodate the reality that while, in theory, losses that are contingent may have a present value at the time of the wrongful act giving rise to them, it is artificial and unreal to describe pure contingencies as actionable damage. Instead, the court must undertake a pragmatic case-by-case analysis, asking itself when a real and meaningfully measurable loss was sustained, at what point the balance between the benefits and burdens of a transaction became adverse to the interests of the plaintiff, and when a lay person would understand actionable damage for which a person would commence proceedings to have occurred." 57. Applying these authorities to this appeal, the question is whether the deceased suffered actual damage sufficient to complete the tort of negligence by June 2011 at the latest, or whether, as the respondents contend, the tort was merely completed upon the issuing of a letter of demand by the second named appellant on 10th October 2019. 58. The test is an objective one and it must be considered in the light of the pleaded case. The court is enjoined to adopt a pragmatic approach, taking some account of probability, "damage" for the accrual of a cause of action must bear a close relationship to a layperson's understanding of that term, or as Murray J expressed it, there must have been "a real change in their position", or "real actual damage which a person would consider commencing proceedings for". 59. It is clear from the authorities that one approach is to ask when could the deceased have sued the appellants? The answer is when "provable injury capable of attracting compensation occurred" and that is when it is "available to be proved". At para. 60 in Smith, the question is when was an "immediate, measurable economic disadvantage" or a loss which is "sufficiently measurable" sustained? Once that has been sustained, then the time starts to run for the purposes of the statute. 60. The respondents' pleaded case is that the deceased ought never to have been advised to enter into the transaction and that if he had been properly advised, he would not have entered into the transaction at all, or, in the alternative, that after 12 months, it was known that the mortgage product sold to the deceased was unfit for purpose and would fail or had already failed. The respondents say that once the pension failed, the only way the lump sum due in 2016 upon the termination of the loan could be met was by the sale of the property, and that "the mortgage product, therefore, was improper". 61. It seems to me that the critical factual issue in this case is that the argument that the deceased was mis-sold the financial product is based upon his personal circumstances, not upon the nature of the transaction, as such. The transaction, per se, is not said to be bound to fail or unsuitable for all investors. The transaction was unsuitable for the deceased because it was based upon a false premise: due to the nature of his income, the misconception as to the availability of tax relief in respect of payments into his pension scheme, combined with his age and approaching retirement, he could never have made the payments required to ensure the transaction performed as envisaged. As a result of the negligent advice of the appellants, it is said, the deceased incurred liabilities under the loan which he had no prospect of repaying from the pension product or any other income available to him. 62. On the pleaded case, within ten months of entering into the transaction, the deceased had obtained specialist taxation advice to the effect that he could not claim tax relief, as envisaged, in respect of the intended 5,000 per month into the pension fund. It is for this reason that the respondents say the product failed. The deceased knew that he could not keep up the necessary monthly payments and therefore that the pension could never generate a lump sum within the term of the loan sufficient to repay the sums borrowed (together with accrued interest) in November 2016. He ceased making the necessary monthly payments from 19th September 2007. He encashed the pension in April 2010 and did not repay any portion of the mortgage loan from the proceeds. 63. The "whole thrust" of the respondents' case is that the transaction ought never to have been offered to the deceased, or accepted by him, because it was based upon the false premise of the availability of tax relief in respect of his income, if paid into this product. Accordingly, the loss was inevitable because he could never make the required level of payments into the fund, absent the availability of tax relief. The only uncertainty was the quantification of his loss and that is not uncertainty which prevents the accrual of a cause of action. 64. The loss claimed in the proceedings is the loss of the pension investment of the deceased and loss arising from his liability to the second named appellant. The loss of the pension investment is not based on any contingency such as fluctuations of the market impacting the value of the pension investment or the decline in the value of the property: it is based upon the fact that the deceased could not make monthly payments of 5,000 which would benefit from tax relief and all that flowed from that fact. The liability to the bank arises from the obligation to repay interest and principal in due course. That obligation was incurred and its precise extent was known from the date of the transaction. It follows that the case is not dependent on a contingency at all, and therefore is to be distinguished from Cantrell or Wardley. 65. The deceased's cessation of payment into his pension and his encashment of the policy in 2010 reflect the inevitable unravelling of the transaction, given his personal circumstances. It was not dependent on the contingency of the market or the rise or fall of the value of the property. It follows therefore that in my judgement, the High Court erred in the manner in which the trial judge applied the benefit and burdens analysis to the transaction in this case. The Supreme Court in Cantrell held that the test whether a plaintiff has suffered "damage" for the purposes of the accrual of a cause of action is when provable injury capable of attracting compensation occurred and that is when it is available to be proved and damage is, in the Brandley sense, manifest. The damage the deceased suffered by entering into the transaction was capable of being proved from day one, as the essential ingredient -in the context of the transaction- was the unavailability of tax relief to the deceased for the level of pension payments required for the transaction to operate as intended. The "injury capable of attracting compensation" was identifiable and capable of being proved. In my judgment, it follows that the High Court erred in treating the transaction as a transaction involving benefits and burdens where that balance is dependent on a contingency, (the contingency being the value of the secured property) because on the facts, the pleaded case is not a contingency case at all and the value of the secured property is only relevant to the quantum of damages, not to the existence of damage. As was pointed out by Collins J in the Court of Appeal judgment in Smith, there are cases in which actual damage is suffered on the occurrence of the transaction, even if there are difficulties of quantification and there are uncertainties and contingencies. The uncertainties do not themselves prevent the accrual of a cause of action, provided the plaintiff has suffered actual loss at the time of entering into the transaction. Here, on the pleaded case and the losses claimed, the deceased suffered damage at the time of entering into the transaction. He had incurred a liability to the second named appellant to repay a total sum of 515,965.20 by November 2016 in order to acquire a property worth 375,000 in 2006 when he purchased it. His only means of repaying the debt was, in the event, unavailable to him. Therefore, he had incurred a liability far in excess of the value of the security with no viable means of redeeming the loan. This, in my judgment, amounted to "an immediate, measurable economic disadvantage" or damage such as a lay person would consider suing for compensation. In fact, his situation was very similar to that of Mr Gallagher as analysed by O'Donnell J in Cantrell (set out in para. 45 above). 66. I also find that I cannot agree with the points relied upon by the trial judge in para. 15 of her judgment. At point a., she failed to appreciate the precise case made by the respondents that the transaction was unsuitable from the beginning and the appellants were negligent in advising him to enter into it precisely because, given his personal circumstances, he could never have paid 5,000 per month into the pension fund. This was based upon tax law and the make up of his income and the provisions of the GMS scheme. It was not contingent upon the occurrence of any event. In fact, on the pleaded case, it was inevitable that the transaction would fail. 67. Points b., c. and e. are based upon matters which are irrelevant to the deceased's - and therefore the respondents'- cause of action and so can have no relevance to the accrual of the cause of action. Point d. is based upon an argument which was inconsistent with the case as pleaded and therefore it was not open to the respondents to rely on it and it was an error for the High Court to attribute any weight to it. As regards point f., in my view the appellants were not required to show evidence of the actual loss in 2011 in order to succeed on the motion. The court was required to analyse the respondents' pleadings and the facts agreed for the purposes of the motion. For the reasons I have explained, I am satisfied that the pleadings and facts establish that the respondents' case is statute barred and the absence of the evidence referred to in the judgment of the High Court does not alter this conclusion because the deceased suffered damage upon entry into the transaction on the case the respondents have pleaded. 68. In opposing the application, the respondents argued that the pension investment could have recovered its value at any time prior to the maturity of the mortgage loan facility. As pointed out at para. 23, this was factually impossible once the deceased encashed the policy in April 2010 and did not pay down the loan or any part of it. It follows that on this analysis the claim became statute barred in May 2017, some four years before the plenary summons issued. 69. The appellants argued that the deceased's cause of action accrued - and that he, accordingly, suffered damage - when the second named appellant issued a letter of demand on 10th October 2019. The demand for repayment is irrelevant to the question of whether the respondents' cause of action had accrued. The classic definition of a "cause of action" was set out by Lord Esher MR in Read v Brown [1888] 22 QBD 128, as follows: "[E]very fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved." It would not be necessary for the deceased to have proved that the second named appellant had made demand for repayment of the loan in order for him to have a cause of action against the appellants in negligence. Therefore, the letter of demand is irrelevant to the question of when the deceased's cause of action accrued. 70. More significantly, the respondents did not maintain that no cause of action had or could have accrued in favour of the deceased against the appellants unless and until, following a benefits and burdens analysis (which necessarily involved valuing the property), the balance was adverse to the deceased. The fact or timing of a letter of demand from the second named appellant is simply irrelevant to this line of argument and analysis. The alternative argument, that the risk did not turn out adversely and the cause of action did not accrue until after the expiry of the mortgage loan facility at the very earliest, is equally divorced from the value of the security. 71. The respondents argued that when conducting a benefits and burden analysis it was important to factor into the equation the fact that the deceased acquired a property which he had not previously owned, and therefore the value of the property was clearly relevant to the overall balance of the benefit and burden of the transaction. However, it seems to me that this argument is inconsistent with the pleaded case that it would be "inconsistent" with the product to require the deceased to sell the property in order to discharge the outstanding balance. The argument is that the pension backed mortgage was designed to generate a lump sum at the end of the term sufficient to discharge the outstanding loan balance without recourse to sale of the property. This means that the actual value of the property is immaterial as the deceased should have ended up with the property having cleared the loan at the end of the term. Therefore it is not an argument which it is open to the respondents to advance on this motion. 72. In my judgment, applying an objective test and adopting a pragmatic approach to the analysis of damage, the deceased sustained damage upon entering into the transaction and that his cause of action accrued at that date. 73. Furthermore, while not relevant to the question of the date of the accrual of the cause of action, though highly relevant to any overall sense of injustice, the deceased in fact had been informed by September 2007 that the tax advice provided by the appellants, upon which he relied when entering into the transaction, was incorrect, and that he could not continue to make the monthly payments of 5,000. He knew that he was exposed to a liability to repay a loan, plus interest, and that he could not do from his own resources. I am in no doubt that had he chosen to sue the appellants at that time, it would have been open to him to do so. While there would have been questions around the quantification of his claim for damages, I am satisfied that the cause of action existed, and indeed had existed from day one. 74. For these reasons, I would reverse the decision of the High Court and allow the appeal. The proceedings are dismissed on the basis that they are statute barred. 75. My provisional view is that the appellants have been entirely successful on the appeal and are entitled to the costs of the appeal and the costs of the proceedings. If the respondents wish to contend otherwise, they may, within 14 days of the date of this judgment contact the office and request a short hearing on the issue, bearing in mind that if they are unsuccessful, they may incur a further liability for costs. If a further hearing is sought, the parties may submit legal submissions of up to 1500 words, the respondents' to be filed within 7 days of their request for an oral hearing and the appellants' within 7 days of service of the respondents' submissions. 76. Butler and McDonald JJ have authorised me to indicate their agreement with this judgment. Result: Appeal Allowed