The Gazette 1994

GAZETTE

JULY 199s

(1) When a dispute arises between experts

as to how a foreign statute or ordinance

should be construed then the court in this

country may resolve the dispute by itself

construing the instrument.

McNamara v

Owners of SS Hatteras

[1933] IR 675

followed. (2) The finality and conclusive-

ness of an order is to be determined by the

nature of the proceedings before the for-

eign court and the effect of the court's

order. If there is an adjudication on all the

issues between the parties and an order is

made so that

resjudicata

applies, then it is

clear that the court's order is 'final and

conclusive' and this is so even though the

order may later be varied or set aside on

appeal.

Harrop vHarrop

[1920] 3 KB 386

and

In re Macartney

[1921 ] 1 Ch 522 not

followed.

Nouvion v Freeman

(1890) 15

App Cas 1 followed and

Nunn v Nunn

(1881-2), 8 LR Ir 298 approved;

Keys v

Keys

[1919] 2 IR 160;

McDonnell v

McDonnell [1921

] 2 IR 148distinguished.

(3) The fact that a foreign law may permit

a foreign court to vary its orders may be

evidence that the order is not a final and

conclusive one; but it is not conclusive on

the point. (4) If it can be shown that the

principle of

res judicata

applies to the

order then even though it may be subeet to

appeal by a higher court or be varied if

circumstances change by the same court

then it is a 'final and conclusive' order

which will be enforced by the Irish courts.

Reported at [1994] 1 ILRM 101

Bula Ltd and Others v Tara Mines Ltd and

O t h e r s:

Supreme Court (Finlay CJ,

O'Flaherty and Egan JJ) 15 june 1993

Procedure - Discovery - Documents in

the possession of a professional adviser -

Whether such documents are within the

power of the client - Whether discover-

able in a party/party discovery - Whether

non-party discovery procedure is appro-

priate - Rules of the Superior Courts 1986

O. 31, rr. 12, 29

Facts

O. 31, r. 12(1) of the Rules of the

Superior Courts 1986 provides that 'Any

party may . . . apply . . . for an order

directing any other party to any cause or

matter to make discovery on oath of the

documents which are or have been in his

possession or power, relating to any mat-

ter in question therein.' The plaintiffs is-

sued a motion seeking discovery of cer-

tain documents in the possession of advis-

ers retained in the past by the Minister for

Energy. The motion sought that the minis-

ter should request from those professional

advisers (Arthur Cox, solicitors, Coopers

& Lybrand, accountants and ICC Bank) all

documents in the possession or procure-

ment of the professional advisers which

related to the issues in the proceedings

(other than internal memos or drafts pre-

pared by the said professional advisers for

their own purposes as distinct from final

drafts/advice prepared for the minister)

and that the minister should then discover

such documents. The H igh Court (Murphy

refused the order, on the basis that the

matter should be more appropriately dealt

with under RSC O. 31, r. 29, which per-

mits discovery to be obtained from third

parties. The plaintiffs appealed to the Su-

preme Court.

Held

by the Supreme Court (O'Flaherty J;

Finlay CJ and Egan J concurring) in allow-

ing the plaintiff's appeal in part: (1) Final

documents, approved by the professional

adviser for sight by the minister, are docu-

ments within the 'power' of the minister

and as such are discoverable in a party/

party discovery under O. 31, r. 12. (2) A

document is within the power of a party if

he has an enforceable legal right to obtain

from whoever actually holds the docu-

ment inspection of it without the need to

obtain the consent of anyone else. (3) All

other documents held by the adviser are

preparatory and personal to the profes-

sional adviser and as such are not discov-

erable under O. 31, r. 12. (4) In relation to

'power' over preparatory documents there

is a distinction between the professional

adviser and client relationship and that of

principal and agent. Approach of the Eng-

lish Court of Appeal in

Leicestershire

County Council v Michael Faraday and

Partners Ltd

[1941 ] 2 KB 205 approved.

Reported at [1994] 1 ILRM 111

Patricia Boylan v Motor Distributors Ltd

and Daimler Benz AG:

High Court (Lynch

J) 9 June 1993

Practice - Statute of Limitations - Plain-

tiff's hand injured by van door - Proceed-

ings issued against owner of van - Manu-

facturers and distributors of van not joined

as co-defendants before expiry of limita-

tion period - New proceedings issued five

years and eight months after date of plain-

tiff's accident- Whether new proceedings

statutebarred-Statute ofL imitations 1957,

section 11(2)(b) - Statute of Limitations

(Amendment) Act 1991, sections 2, 3

Facts

The plaintiff worked with her hus-

band in a family firm called Radiant Plat-

ing Ltd in Great Strand Street, Dublin 1.

On 7 May 1986 a Mercedes 307-D type

van, the property of Sanbra Fyffe Ltd,

arrived at the firm's address to deliver

goods for plating by Radiant Plating Ltd.

The plaintiff assisted the driver in unload-

ing the goods. Subsequently, in attempt-

ing to close the van door she caught her

right ring finger so that a piece was ampu-

tated from its top joint. The plaintiff's right

little finger was also injured.

The plaintiff did not notice anything

wrong with the door before the accident

and was in no state to observe or examine

the door immediately following it. She

consulted her solicitor on 26 May 1986

and a High Court action against Sanbra

Fyffe was commenced by plenary sum-

mons on 22 January 1987 following which

a statement of claim setting out various

particulars of negligence was delivered

on 27 February 1987. A defence was filed

on behalf of Sanbra Fyffe on 28 October

1987, which did not suggest any design or

other fault in the van or its doors for which

they might claim to have no responsibility

or in respect of which they might claim an

indemnity against the manufacturers or

distributors of the van.

The plaintiff's solicitor had not been

provided with any financial retainer by

the plaintiff and as there now appeared to

be no prospect of a settlement, as hoped,

senior counsel was consulted in Decem-

ber 1987 and it was advised that an engi-

neer's report be obtained. On 21 Decem-

ber 1987 the plaintiff's solicitor sought to

have the van inspected by an engineer.

The identity of the van had to be ascer-

tained and other problems ironed out and

after a series of delays and reminders an

inspection was held on 24 August 1988.

Thereafter, despite reminders from the

plaintiff's solicitor to the engineer, there

was a delay in receiving the report from

the engineer who was keeping a lookout

for other similar type vans and who about

December 1988 noticed a newer van of a

similar type to that involved in the acci-

dent which had a variation in the door

hinge mechanism.

The desirability of joining Motor Dis-

tributors and Daimler Benz as co-defend-

ants in the action was overlooked until

after 7 May 1989 by which time any cause

of action against those parties was statute-

barred by section 11 (2)(b) of the Statute of

Limitations 1957 as it then stood. The

Statute of Limitations (Amendment) Act

1991 became law on 10 July 1991 but

consideration of the effect of this statute

on the possibility of maintaining a claim

against Motor Distributors and Daimler

Benz was not undertaken until in or about

the end of 1991 and it was considered

unlikely that any application to join them

as co-defendants would be heard before

18 January 1989, the third anniversary of

the date and delivery of the engineer's

report. Consequently, reliance was placed

upon the 1991 Act to issue new proceed-

ings by plenary summons on 14 January

1992.

A preliminary issue as to whether the

plaintiff was statute-barred in pursuing

her claim against Motor Distributors and

Daimler Benz came on for hearing before

the High Court on 25 March 1993.

Held

by Lynch J in finding that the

plaintiff's action was not barred: (1) The

plaintiff did not know and could not rea-

sonably be expected to know that her

injury might have been caused by a design

defect in the hinge mechanism of the van

door and that therefore Motor Distributors

and/or Daimler Benz might be blamed for

the accident and ought to be the defend-

ants. (2) While the plaintiff must be fixed

with knowledge which her solicitor had or

ought to have had at the time when the

solicitor had or ought to have had such

knowledge, the plaintiff's solicitor did not

in fact have knowledge that the plaintiff's

•njury might have been caused by a design

defect in the hinge mechanism of the door

from the description of the accident as

given to him by the plaintiff, nor could he