In Maura Hegarty v D. & S. Flanagan Brothers Ballymore Limited & Ors, the High Court set aside an order joining the third named defendant to the proceedings on the basis that the claim made by the plaintiff was time barred under the Statute of Limitations.  The court reiterated the principle that a plaintiff cannot rely on a “discoverability test” when dealing with a plea that is statute barred under Irish law.

Facts / background

The plaintiff entered into a contract to buy a house in Roscommon with the first named defendant in November 1999.  On 29 September 1999, the third named defendant, an engineer, issued a foundation inspection certificate in respect of the property, and subsequently on 7 June 2000 issued a certificate of compliance with planning permission.

The plaintiff issued proceedings against the first named defendant in 2007 and joined the second named defendant in 2009. The plaintiff alleged that the foundation of the house was built on unsuitable ground and that the roof was not adequately supported.  The plaintiff contended that she was unaware that the third named defendant had certified the foundations of the property until the certificate was made available as part of the discovery process on 24 January 2012.

She then issued proceedings against the third named defendant claiming that the certificate had been issued negligently.  As the claim appeared on its face to be statute barred, the plaintiff sought to argue that the limitation period in respect of her claim did not begin to run until the date of knowledge and discoverability of the certificate on 24 January 2012.

Judgment

The question to be determined by the court was whether the third named defendant was “clearly and manifestly” statute barred and whether there were any circumstances which would prevent him from relying on the Statute.  Birmingham J reiterated that the words in the Statute must be given their full and clear meaning and that the time limit on negligence actions begins to accrue on the date on which damage manifests itself, and not from the date on which damage is discovered.

Birmingham J held that in this instance it was clear and manifest that the plaintiff’s claim was statute barred because the cause of action (the cracks) accrued in January 2002 but the proceedings against the third named defendant were not commenced until 20 June 2012, more than ten years later.

This case highlights on the one hand that the Statute of Limitations can operate in a harsh manner where a plaintiff is not aware of a cause of action prior to the expiry of the limitation period, but on the other hand provides defendants and their insurers with certainty.

In 2001, the Law Reform Commission recommended the introduction of a discoverability test for claims in tort and contract for latent damage but recommended that a plaintiff should be fixed with expert knowledge where reasonable to do so. The Commission also recommended the introduction of an ultimate limitation period of 15 years beyond which no action could lie irrespective of whether or not the cause of action was discoverable at the expiration of that period.  These recommendations have not been implemented to date.