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GAZETTE
SEPTEMBER 1987
Ballsbridge School
of Accountancy
Accountant offers short
intensive course of lectures —
residential, if necessary — in
Book-keeping, Client and Office
Ledgers, Annual Accounts,
P.A.Y.E., V.A.T. and Income Tax.
Computer accounting
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Seán M. Killane
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63, Anglesea Road, Dublin 4.
Tel. 01 - 683954.
period when the material facts on
wh i ch it is based had been
discovered or ought to have been
discovered by the plaintiff by the
exercise of reasonable diligence.
He saw no "principled reason" for
distinguishing in this regard bet-
ween an action for injury to proper-
ty and an action for the recovery of
purely financial loss caused by pro-
fessional negligence and held that
a "discoverability" rule should be
applied to the plaintiff's cause of
action in fo/7.
21
Since the defen-
dants gave the trust company a
certificate that the mortgage was
a first charge on the property,
thereby implying that it was a valid
mortgage, the earliest that it could
be said that the plaintiff discovered
or should have discovered the
defendant's negligence by the ex-
ercise of reasonable diligence was
in April or May of 1977 when the
validity of the mortgage was
challenged in the action for
foreclosure. Accordingly the plain-
tiff's action for negligence was not
statute-barred.
To hold that time should not
begin to run until the plaintiff has
discovered, or ought to have
discovered, the damage seems
eminently fair and just when view-
ed from the plaintiff's perspective;
it does introduce, however, the
very element of uncertainty the
elimination of which is the fun-
damental benefit conferred by the
statute. The Statute of Limitations
1957 is designed to protect defen-
dants from stale claims relating to
long past incidents about which
their records may no longer be in
existence and as to which their
witnesses, if available, may well
have no accurate recollection. A
hearing in such circumstances
could be rightly described as a
"travesty of justice".
22
One could
expect, therefore, that defendants,
faced with a claim which had not
been instituted until many years
after the occurrence of the events
which formed the basis of the
claim, to invite the court to exer-
cise its inherent power to stay pro-
ceedings where the passage of
time alone would effect a potential
unfairness.
23
Thus uncertainty
would be piled upon uncertainty.
One can only hope that the
legislative inactivity in this area will
not continue much longer.
•
REFERENCES:
(1)
Now reported 31 D.L.R. (4th) 481.
(2)
Judgments against concurrent
liability innclude those of the English
Court of Appeal in
Groom -v- Crocker
[1939] 1 K.B. 194; of Pigeon,
Martland and Judson J.J. in
J. Nunes
Diamonds Ltd. -v- Dominion Electric
Protection Co. (1972) 26 D.L.R. (3rd)
699, 727- 728; of the New Zealand
Court of Appeal in McLaren Maycroft
& Co. -v- Fletcher Development Co.
Ltd. (1973) 2 N.Z.L.R. 100; of
Murphy J. in Macpherson & Kelley v-
Kevin J. Prunty and Associates
[1983] V.R. 573, 587; and of
Connnolly J. in
Aluminium Products
(Qid) Pty. Ltd. -v- Hill
[1981] Qd.R.
33, 53. Judgments in favour of
concurrent liability include those of
Oliver J. (as he then was) in
Midland
Bank Trust Co. Ltd. -v- Kemp
[ 1979]
Ch. 384; of Spence and Laskin JJ. in
Nunes Diamonds, supra,
at 723; of
Lush and Beach JJ. in
Macpherson,
supra;
of Douglas and Campbell JJ.
in
Aluminium Products, supra;
and of
Glass J. A. in
Brickhiil -v- Cooke
[1984] 3 N.S.W.L.R. 396, 401.
(3)
See, for example, Dwyer "Solicitor's
Negligence — Tort or Contract"
(1982) 56
A.L.J.
524, French "The
Contract/Tort Dilemma" (1983) 5
Otago L.R.
236, Kaye "The Liability
of Solicitors in Tort" (1984) 100
L.Q.R.
680.
(4)
Unreported, 21 October 1954
(61/1954).
(5)
At p.3 of his unreported judgment.
(6)
At p.6 of his unreported judgment.
(7)
[1979] I.R. 249.
(8)
At page 257.
(9)
Finlay -v- Murtagh
is considered at
517. A rare instance of a relevant
Irish decision being brought to the
attention of a foreign court.
(10) At 5 2 1 - 5 2 2.
(11) See also Henchy J. in
Finlay -v-
Murtagh
at 257.
(12) See also Griffin J. in
Finlay -v-
Murtagh
at 263, and Miffin C. J. T.
D. in
Power -v- Halley
(1979) 88
D.L.R. (3rd) 381, 388.
(13) Section 60( 1) of the Companies Act
1963. See generally Ussher,
Company Law in Ireland
(London
1986), at pp. 3 1 9 - 3 2 4.
(14)
Central and Eastern Trust Co. -v-
Irving Oil Ltd.
(1980) 110 D.L.R.
(3rd) 257.
(15) (1982) 139 D.L.R. (3rd) 385.
(16) (1983) 147 D.L.R. (3rd) 260.
(17) At 274.
(18) See Brady and Kerr,
The Limitation of
Actions in the Republic of Ireland
(Dublin, 1984) at pp. 4 3 - 4 7 .
(19) 11983] I.L.R.M. 156, noted by Kerr,
(1983) 5
D.U.L.J, (n.s.)
133 and see
Brady and Kerr,
op cit.,
at pp.
5 0 - 5 2 .
(20) (1984) 10 D.L.R. (4th) 641.
(21) 31 D.L.R. (4th) at 536.
(22)
Per
Henchy J.,
O'Keeffe
-v-
Commissioners of Public Works.
(23) This power was exercised in
O'Domhnaiii -v- Merick.
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211