The Gazette 1985

GAZETTE

JULY/AUGUST

1985

subject to the obligation which may arise

on her part or on the part of her personal

representatives to pay any balance

necessary to make up the difference in

value between her share of the estate and

the value of the dwelling which is to be

appropriated in her favour.

Rose Ann Hamilton

-v-

George Armstrong

and James McCartney - High Court (per

O'Hanlon J.) [1984] ILRM 306.

Sarah Cox

PLANNING

L o c a l G o v e r nm e nt ( P l a n n i ng &

Development) Acts — procedure under

Section 27 — 1976 Act.

The

third and f o u r th

n amed

Respondents brought' an application to

the High Court under the provisions of

Section 27 of the Local Government

(Planning & Development) Act 1976

against the Applicants and seeking to

have the Insurance Corporation of

Ireland added as a Defendant in the

p r o c e e d i ng s. The app l i c a t i on was

brought in proceedings which had been

instituted by the applicants and in which

an Order had been made on 9 July 1982 in

the following terms:

IT IS ORDERED that the respondent

Michael Gantley do carry out the

work specified in the Schedule hereto,

he to commence the said works within

two weeks from the 5th day of July

1982 and to complete them within

three months from the 5th day of July

1982.

In default of Michael Gantley com-

mencing the said works within the said

two weeks or in default of his com-

pleting them within the said three

months IT IS ORDERED that the

respondents Sean Byrne and Hugh

Byrne do carry out the said works or

any works not completed by the said

Michael Gantley and to complete

them within three months of com-

mencement and IT IS ORDERED

that the preceding Order against the

respondents Sean Byrne and Hugh

Byrne shall take effect only if the

works specified in the Schedule hereto

have not been carried out by the

Insurance Corporation of Ireland

under the Bond dated the 15th day of

November 1979 or if the said

Insurance Corporation of Ireland

having elected to do the said work fail

to enter on them within two weeks

from the date of default of Mr.

Gantley or having so entered failed to

complete the said works within three

months of the date of entry on them

and IT IS ORDERED that the

applicants do recover against the

respondents Michael Gantley and

Sean Byrne and Hugh Byrne their

costs of this motion and order when

taxed.

Liberty to Apply."

The Bond referred to in the Order was a

Guarantee Bond entered into by the first

named Respondent as developer and the

Insurance Corporation of Ireland jointly

with the Drogheda Corporation, the

planning authority by whom the planning

requirements may be enforced.

The third and f o u r th

n am ed

Re s p o nd e n ts s o u g ht to have the

Insurance Corporation of Ireland made

Respondents to the Notice brought by the

applicants for the purpose of having them

compelled by Court Order to pay to the

planning authority the fine or penalty of

the bond.

T h e t h i rd a nd

f o u r t h - n a m ed

Respondents claimed as being authorised

under the expression "liberty to apply" to

move the Court upon a new application

entitled in the same matter for what could

be described only as further and other

relief at the instance of such Respondents

and not of the applicants, Drogheda

Corporation.

The Court was of the view that the

words "Liberty to apply" were intended

to enable further applications to be made

to the Court for implementation of its

order by way of enforcement or variation

or suspension and that it was not a

formula which permitted a party found in

default to resort to a type of third party

procedure for the prupose of obtaining

contribution of or casting on some third

party the burdens of compliance with the

order made upon the claim.

The Court also noted that an Order

under Section 27 (2) must specify what

the Court required the person designated

to do or not to do or to cease to do and

such matters should appear to be

necessary to ensure that the development

is carried out in accordance with the

permission granted. The Court did not

think that a Court could specify the

payment of a fine or penalty by a

Guarantor upon the default of the

compliance with the planning permission

by the developer as something which

ensures the carrying out of the

development in conformity with the

permission granted.

This was particularly so when the

applicants themselves are held by the

Court liable to carry out the development

but without any Guarantor for their

default. The Court therefore dismissed

the application.

The Mayor, Aldermen & Burgesses of the

Borough of Drogheda (Applicants) and

Michael Gantley, Louis Maguire, Sean

Byrne and Hugh Byrne (Respondents) -

High Court (per Gannon J.), 25

September, 1983 - unreported.

John F. Buckley

PRACTICE

Extension of time for delivery of Statement

of Claim — Infant Plaintiff over eighteen

years of age — Delay of five years —

dismiss for want of prosecution — Appeal

to Supreme Court — inordinate delay —

Construction of Statute of Limitations in

consonance with international

Law

considered — Appeal disallowed.

The Plaintiff was born on 29 November

1957. She met with a road accident on 5

March

1961. She sustained serious

personal injuries when a motor car driven

by the Defendant collided with her.

Shortly after the accident her father

consulted a Solicitor but it docs not

appear that that Solicitor instituted a

claim for damages on her behalf within

the three years alter the accident which

was the period of limitation applicable

under S.49(2)(a)(ii) of the Statute of

Limitations. 1957. In 1965, the Plaintiffs

lather consulted a second Solicitor

p r a c t i s i n g in T e m p l e m o r c .

C o .

Tippcrary, and that Solicitor issued a

Plenary Summons in 1965 claiming

damages on behalf of the Plaintiff against

Samuel Young, the owner of the motor

car that collided with her. As the law was

then generally understood to be, those

proceedings were out of time. When,

therefore, Samuel Young applied in 1968

for an Order dismissing the proceedings

for want of prosecution, there was no

opposition to the making of that Order.

Those proceedings were, therefore,

dismissed.

The constitutionality of S.49(2)(ii) of

the Statute of Limitations, 1957 was

challenged successfully in

O'Brien

-v-

Kcogh \

1972] I.R. 144. The parties agreed

(and the Court accepted this for the

purpose of this case) that the decision of

the Supreme Court in that case had the

effect of making the period of limitation

under the Statute of Limitations, 1957,

for the Plaintiffs claim the period

expiring three years after the date on

which she would becomc of full age. Since

the latter date was 29 November 1978. the

Statute could not have been successfully

pleaded against her if her claim had been

brought before 29 November 1981.

The Plaintiffs present Solicitor was

instructed to act on her behalf in March

1977 and in September 1977 he issued a

Plenary Summo ns claiming damages

against the Defendant as the driver of the

motor car. The Summons was served on

the Defendant in December 1977. It

seems since the accident sixteen years

earlier the Defendant had no intimation

that a claim on behalf of the Plaintiff

would be ma de against her. The

Plaintiffs Solicitor having consented on

three occasions to an extension of the

time for entering an Appearance to the

Summons, an Appearance was eventually

entered in May 1978.

Between May 1978 and October 1979

no steps seem to have been taken on

behalf of the Plaintiff towards the hearing

of her case and it became necessary,

before taking any further step, to serve a

Notice of Intention to Proceed. Such a

Notice was served by the Plaintiffs

Solicitor in October 1979. An Order from

the Master of the High Court in