The Gazette 1993

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-

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.

6. We will attempt to resolve matters as

expeditiously and economically as

possible.

7. We will honour all promises or com-

mitments, whether oral or in writing,

and strive to build a reputation for

dignity, honesty and integrity.

8. We will not make groundless

accusations of impropriety or

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

lawyers only when fully justified by

the circumstances and necessary to

protect a client's lawful interests, and

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

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

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

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

Limitations (Amendment) Act, 1991.

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