The High Court refused an application to add a statute of limitations defence to personal injuries proceedings arising from a 1999 road crash in Scarrawalsh, near Enniscorthy, County Wexford. Mr Justice John Edwards held that the plaintiff was entitled to rely on the defendant’s representation that liability would not be an issue and dismissed the application to amend the defence.
The plaintiff was a passenger in a car involved in a head-on collision with another vehicle on 18 July 1999. The other driver, Hugh Kerr, died in the crash. The plaintiff alleged that she suffered injury and loss because of his negligence. Lucy Calally, a law clerk, was named as defendant in a representative capacity on behalf of the deceased driver.
The proceedings began in June 2002. The defence filed in May 2005 denied the alleged injuries and loss but did not raise a limitation point. The defendant later sought permission to amend it, arguing that the claim was out of time because proceedings had not been started within two years of Kerr’s death. The defendant’s solicitor described the omission as a “mistake and an oversight.”
The plaintiff opposed the amendment, relying on correspondence between the parties’ solicitors. In September 2000, the defendant’s solicitor wrote that “Liability will not be an issue in these claims save for possible seat belt issues.” The plaintiff’s solicitor said the parties then proceeded on the basis that liability was not disputed and that proceedings would be needed to assess the amount of compensation.
The correspondence continued around and after the expiry of the limitation period. The plaintiff’s solicitors said the plaintiff’s injuries and those of her daughter remained serious and were not ready for settlement discussions. The defendant’s solicitors repeatedly asked them to issue proceedings. After proceedings began, the parties exchanged information about medical assessments, expert reports and the plaintiff’s claimed loss of earnings. The defendant filed a tender offer with the defence and later pressed for a trial notice. The limitation issue was first raised in a motion issued in November 2006.
Justice Edwards accepted the plaintiff’s legal argument and found that the representation about liability was clear and unambiguous, and that the plaintiff had relied on it. He concluded that the claim had not been abandoned or allowed to go dormant: the delay in issuing proceedings occurred while the parties were dealing with the plaintiff’s injuries and the progress of related family claims.
The court also found that the subsequent dealings reinforced the representation and described the late limitation motion as unconscionable in the circumstances. It rejected the solicitor’s unexplained account of “mistake and oversight,” held that the defendant was estopped from relying on the limitation statutes in this case, and dismissed the application to amend. The ruling concerned whether the defence could be amended; it did not determine the personal injuries claim or award damages.