Marie Heffernan (plaintiff) v Brendan O'Herlihy carrying on business as J. Brendan O'Herlihy & Co (defendant).

Professional Negligence - Statute bar - Plaintiff suffered injury in hospital - Solicitor failed to institute proceedings - Plaintiff given impression proceedings were in being - Whether failure to communicate that proceedings were not instituted constitutes fraud - Statute of Limitations 1957 (No 6) - Statute of Limitations (Amendment) Act 1991 (No 18), section 71.

The High Court (before Mr Justice Kinlen); judgment delivered 3 April 1998.

A solicitor's failure to communicate to a client that proceedings had not been instituted on her behalf could constitute fraud for the purposes of the Statute of Limitations. The High Court so held in deciding that the plaintiff's claim against the defendant alleging negligence and breach of contract was not statute barred.

Adrian Hardiman SC and Richard T. Keane BL for the plaintiff; Andrew Bradley SC and Andrew Walker BL for the defendant.

Mr Justice Kinlen said that the plaintiff had suffered a slight accident on 31 July 1977 while alighting from a bus. She was treated in Barrington's Hospital, Limerick, as a result of which she was left with gross scarring and bone infection.

In or about 15 December 1980 the plaintiff instructed the defendant to act for her in respect of her proposed action against the hospital and surgeon who treated her. No proceedings were instituted before the end of December 1983 and it was on the basis of this failure that the plaintiff brought an action seeking damages from the defendant for alleged negligence and breach of contract. A plenary summons against the defendant was issued on 31 July 1990 and was followed by a statement of claim on 1 February 1996.

The defendant pleaded that the claim was statute barred, on the basis that the plaintiff had failed to bring her action within six years from the time her cause of action accrued, and on 24 June 1996 Mr Justice Morris directed that this claim be tried as a preliminary point.

The plaintiff conceded that her cause of action against the hospital accrued on or before 31 December 1983 and the defendant submitted that therefore any proceedings against him had to be instituted by 31 December 1989. In fact proceedings were not instituted until 31 July 1990. The defendant apparently received instructions from the plaintiff in respect of the accident and subsequent treatment on 15 December 1980 although the plaintiff argued that such instructions were given in 1979.

The defendant claimed that after taking instructions he recognised that the plaintiff's action against the hospital and surgeon was statute-barred and further claimed that this was communicated to the plaintiff. The plaintiff claimed that the defendant concealed from her the fact that no proceedings had been instituted and that this amounted to a breach of contract.

Mr Justice Kinlen said that the purpose of the Statute of Limitations was to protect people from the injustice that could be caused by stale actions being brought against them. However, section 71 of the Statute of Limitations (Amendment) Act 1991 provides that where a right of action is concealed by fraud then the period of limitation will not run until the plaintiff has discovered the fraud or could with reasonable diligence have discovered it. The decision of the English Court of Appeal in Keane v Victor Parsons & Company [1973] 1 WLR 29 was referred to where the Naster of the Rolls Lord Denning said that fraud for the purposes of the English Limitations Act 1929 involved knowing or reckless concealment of a right of action. That decision was approved here in the case of McDonald v McBain [1991] ILRM 764.

Mr Justice Kinlen rejected the argument of the defendant that the plaitiff should have searched the Central Office of the High Court to see whether proceedings had been instituted. The defendant corresponded with the plaintiff after taking instructions and such correspondence gave the plaintiff to understand that proceedings were in being. It was never communicated to the plaintiff that in fact no proceedings had issued. It was only when the plaintiff's present solicitors investigated the matter that the plaintiff discovered the true position.

Mr Justice Kinlen said that he was satisfied that the defendant's failure to commence proceedings was concealed from the plaintiff and that this was a fraud for the purposes of section 71 of the Statute of Limitations. Therefore, time did not run against her until she discovered the fraud or could with reasonable diligence have discovered it. The very earliest that it could be said that the plaintiff was put on inquiry as to the non-commencement of the proceedings was when the defendant responded to the letter by solicitors for the plaintiff on 21 August 1987. Accordingly, the plaintiff's claim instituted by plenary summons on 31 July 1990 was not statute-barred.

Solicitors: Leahy & O'Sullivan (Limerick) for the plaintiff; Giles J. Kennedy (Dublin) for the defendant.