THE  HIGH  COURT
Record No: 2002 No. 1545P

Between:
David Purcell
Plaintiff

And

Raymond Taylor and Maria Taylor, trading as The Star Tavern
	
And by Order: Dermot Nolan and Michael O’Halloran
									
Defendants

Judgment of Mr Justice Michael Peart delivered the 26th day of May 2004:

By Order of the Master, Mr Dermot Nolan 9”the applicant”) and Mr Michael O’Halloran were added as co-defendants in these proceedings. 

The applicant has by Notice of Motion dated 23rd February 2004 applied to this court by way of appeal from the said Order which added him as a defendant. He does so on foot of his grounding affidavit sworn the 29th March 2004 and on the basis that since the incident which gave rise to the plaintiff’s claim for personal injuries took place on the 12th February 2000, the claim as against him is now statute barred, and that in those circumstances he ought not be required to defend them.

It is relevant to note that when the application to join the applicant was made to the Master it was made by way of Notice of Motion, but the proposed defendants were not notice parties to that application, and therefore were not heard on the application. The plaintiff on the other hand contends that he did not become aware of the fact that the applicant was an appropriate person to join as a defendant in these proceedings until such time as the existing defendants delivered their defence, and in which they disclosed or pleaded for the first time that if (which is denied) the plaintiff suffered any injury, it is due to negligence, breach of duty, or breach of contract on the part of the applicant, and the other added defendant, Michael O’Halloran. That defence was delivered on the 23rd May 2003.

At this stage it is appropriate to put the present application into a factual background.

The plaintiff alleges that on the 12th February 2000 while on the first and second named defendants’ licensed premises as a customer, he was caused to slip and fall from a balcony, as a result of which he sustained personal injuries. He alleges that they failed to take reasonable care for his safety, exposed him to a risk which could have been avoided, maintained a hidden trap and/or danger for him and other members of the public, failed to warn of the danger, failed to adequately light the stairs serving the different levels in the premises, and failed to provide adequate hand-rails.

The applicant, who was one of the parties added to these proceedings by the Order of the Master was the architect who had designed the premises, and against who the first and second named defendants are alleging negligence and breach of duty and breach of contract in and about the design of the premises. The works in question had been carried out in 1998. 

In his grounding affidavit the applicant states that the first occasion on which he became aware that he was made aware that a claim was being made against him by the first and second named defendant was when he received from their solicitors a letter dated 21st May 2002, in which they sought an indemnity in the event of the first and second named defendants being found liable, and calling upon him to take over the handling of the claim. The letter went on to indicate that in default of his agreement to do as requested, an application would be made by those defendants to join him as a Third Party. Some further correspondence ensued between those solicitors and the solicitor acting for the applicant up to the end of July 2002. As things transpired, no such application was made to join the applicant as a Third Party, but the plaintiff applied to join him as a defendant on the 4th December 2003, some 3 years and 10 months after the plaintiff’s alleged injury was sustained.

The plaintiff’s solicitor has sworn a replying affidavit which traces the history of the litigation. It also contains a specific averment by that solicitor to the effect that at no time prior to the delivery of the Defence herein was he made aware of the correspondence which took place between the defendants and the applicant and the applicant’s solicitor regarding the possible liability of the applicant, and that therefore the 23rd May 2003 was the earliest date upon which the plaintiff had the requisite knowledge for the purpose of s.2 of the Statute of Limitations (Amendment) Act, 1991 (“the 1991 Act). He also avers that the said knowledge as to the possible involvement of the applicant was not knowledge which the plaintiff might reasonably be expected to have acquired from facts observable by him or ascertainable by him even with the assistance of expert help, as provided for in that section.

Mr Michael O’Sullivan, solicitor for the applicant, has submitted that the affidavit sworn by the plaintiff’s solicitor is insufficient to satisfy this court that the plaintiff was not aware sooner than 23rd May 2003 that the applicant might have a liability in this matter. He says that there has been no reference made in that affidavit to possible correspondence which might have taken place between the plaintiff’s solicitor and the first and second named defendants and in which the possible liability of the applicant was made known. But Counsel for the plaintiff has pointed to the averment to which I have already made reference, namely that by the plaintiff’s solicitor to the effect that that at no time was he or the plaintiff made aware of the correspondence between the defendants’ solicitor and the applicant and his solicitor or the possible involvement of the applicant until that matter was pleaded in the Defence.

Mr O’Sullivan has relied on the judgment of Murphy J. in the Supreme Court (upholding the judgment of Laffoy J. in the High Court) in Allied Irish Coal Supplies Ltd. V. Powell Duffryn International Fuels Ltd. [1998]2 I.R. 519. In the High Court, Laffoy J. held that a co-defendant would not be joined in proceedings where the claim against it would be statute barred. In the Supreme Court, Murphy J. stated at page 533:

	“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.”

Counsel for the plaintiff has referred the Court to the judgment of Geoghegan J. in B.V. Kennemerland Groep v. Montgomery and others [2000] ILRM 370, in which, inter alia, it was held that a court will not add a defendant pursuant to O. 15, r.13 of the Rules of the superior Courts “if the action is quite clearly statute barred, but if there is a doubt as to whether the action is statute barred, the court does not have to decide the limitations issue and accede or refuse the application accordingly.”

For the purpose of deciding this appeal from the order of the Master I am satisfied first of all, on the basis of the averment of the plaintiff’s solicitor in his affidavit, that the first occasion on which the plaintiff or that solicitor became aware of the possibility that the applicant herein might need to be joined as a party to these proceedings was on 23rd May 2003 when the Defence was delivered. That being so, it is clear on that basis that the plaintiff can have the benefit of the provisions of s. 2 of the 1991 Act which provides that where the time within which an action in respect of an injury may be brought depends on a person’s date of knowledge, references to that date of knowledge are references to the date on which he first had knowledge. 

I am also satisfied that it is not reasonable on the facts known to the court at this time to conclude that the information about the applicant’s possible liability was reasonably ascertainable by the plaintiff for the purposes of s. 2(2) of the Act. 

The correct course in my view is to refuse to interfere with the Order made by the Master and allow the pleadings of the added defendants to be closed. Thereafter, when all the issues have been clarified, there can be a preliminary issue heard as to the statute issue raised herein, and it may well be (though I express no conclusion in that regard) that for the purpose of that issue, certain discovery might be sought which might include any correspondence which took place between the plaintiff or the plaintiff’s solicitor or other party on the plaintiff’s behalf, and the first and second defendants or their solicitors regarding the possible involvement of the applicant in the liability for the plaintiff’s injury. But that is the manner in which this particular issue is most fairly determined at this stage, since I am not satisfied on the facts as presently known by me that this case that the claim against the applicant is clearly statute barred given the provisions of the 1991 Act to which I have referred.

I therefore refuse the relief sought by the applicant.