GAZETTE
MIWH
NOVEMBER1993
courteous to all with whom we come
in contact and will endeavour to
maintain a collegial relationship
with our adversaries.
3. We will cooperate with opposing
lawyers when scheduling conflicts
arise and calendar changes become
necessary. We will also agree to
opposing lawyers' requests for
reasonable extensions of time when
the legitimate interests of our clients
will not be adversely affected.
4. We will keep our clients well-
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informed and involved in making the
decisions that affect their interests,
while, at the same time, avoiding
emotional attachment to our clients
and their activities which might
impair our ability to render objective
and independent advice.
i 5. We will counsel our clients, in
appropriate cases, that initiating or
engaging in settlement discussions is
consistent with zealous and effective
representation.
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6. We will attempt to resolve matters as
expeditiously and economically as
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possible.
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7. We will honour all promises or com-
mitments, whether oral or in writing,
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and strive to build a reputation for
dignity, honesty and integrity.
8. We will not make groundless
accusations of impropriety or
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attribute bad motives to other
lawyers without good cause.
9. We will not engage in discovery
practices or any other course of con-
duct designed to harass the opposing
party or cause needless delay.
| 10. We will seek sanction against other
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lawyers only when fully justified by
the circumstances and necessary to
protect a client's lawful interests, and
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never for mere tactical advantage.
11. We will not permit business
concerns to undermine or corrupt our
professional obligations.
12. We will strive to expand our
knowledge of the law and to achieve
and maintain proficiency in our areas
of practice.
! 13. We are aware of the need to preserve
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the image of the legal profession in
the eyes of the public and will
support programs and activities that
educate the public about the law and
the legal system.
The Statute of Limitations
The
Statute of Limitations, 1957
is often
a matter of great concern to litigation
lawyers. In
Boylan v Motor Distributors
Ltd and Daimler Benz A.G.,
unreported,
High Court, June 9, 1993, per Lynch J,
the issue of "the date of knowledge" in
relation to the limitation period within
which an action in respect of personal
injury must be brought arose for
consideration.
The plaintiff had been injured on May 7,
1986, when a Mercedes 307-D type van,
the property of Sanbra Fyffe Ltd, arrived
to deliver goods at the family firm of the
plaintiff. The plaintiff assisted the driver
in unloading the goods and in closing
the door, the plaintiffs right ring finger
got caught in some way and a piece was
amputated from the top joint of the ring
finger and her little finger was also
injured. A High Court action was
initiated against Sanbra Fyffe Ltd on
January 27, 1987 and shortly thereafter a
statement of claim was delivered.
Subsequently, in December 1987 a con-
sultation was held with Senior Counsel
who advised that the van should be
inspected by an engineer from whom a
report should be obtained. The plaintiffs
solicitor wrote to Sanbra Fyffes Ltd's
solicitor for permission to have the van
inspected by an engineer. Many
telephone calls followed regarding the
proposed inspection because the identity
of the actual van had to be ascertained
and other problems sorted out. It took
some time for the engineer's report to be
compiled because of the difficulty in
locating a van of the same type. The
engineer's report, dated January 18,
1989, disclosed that the plaintiff had a
possible cause of action against the
defendants, Motor Distributors Ltd and
Daimler Benz, the manufacturers and
distributors of the van. No further
proceedings were issued at that time.
Time passed and the
Statute of
Limitations (Amendment) Act, 1991
was
enacted by the Oireachtas. The 1991 Act
applied to all causes of action whether
accruing before or after its passing.
Section 3( 1) of the 1991 Act provides
that an action claiming damages in
respect of personal injuries to a person
caused by negligence, nuisance or breach
of duty shall not be brought after the
expiration of three years from the date
on which the cause of action accrued
or
the date of knowledge (if later) of the
person injured
(emphasis added). More
than three years had passed since the
date of the accident and the plaintiff
relied on "the date of knowledge"
arguing that she had no knowledge that
her injury was attributable to the
defendants, Motor Distributors and
Daimler Benz, nor even of their identity
until the engineer's report was received
by her solicitor around January 18, 1989.
It was argued in court that the solicitor
for the plaintiff ought to have arranged
an inspection of the van by an engineer
and obtained a report from the engineer
before delivering the statement of claim
in the action against Sanbra Fyffe,
especially as the plaintiffs instructions
as to the precise cause of the accident
were vague. Lynch J considered that
each case in relation to an engineer's
report must be decided on its own facts
but a general rule that an engineer's
report should be obtained before the
delivery of the statement of claim in
every case would add quite
unnecessarily to the costs in many cases.
Indeed, the Judge argued that this was so
probably in the majority of cases
because most cases were settled at a
relatively early stage of the proceedings.
The Judge was satisfied from the
evidence of the plaintiffs solicitor and
on the evidence of an experienced
solicitor in litigation that it was
reasonable for the plaintiffs solicitor not
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to request an inspection of the van and a
report thereon by an engineer until
directed to do so by Senior Counsel. He
was satisfied thereafter the plaintiffs
solicitor took all reasonable steps to
arrange an inspection of the van by a
competent engineer and to obtain a
report from such engineer. The Judge
held based on the date of relevant
knowledge, around January 18, 1989,
that the issue of the plenary summons
on January 14, 1992 against Motor
Distributors and Daimler Benz was not
barred by the
Statute of Limitations Act,
1957 as
amended by
the Statute of
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Limitations (Amendment) Act, 1991.
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