The High Court has sent a limitation dispute in a claim against two solicitors to a plenary hearing, finding it could not decide at this preliminary stage whether the proceedings were statute-barred.
Patrick O’Sullivan claims the solicitors failed to advise him properly in a 1999 land sale, resulting in his transferring property at a substantial undervalue and divesting himself of all his property. He seeks damages for negligence, misrepresentation, breach of contract, breach of duty and breach of statutory duty. The defendants deny the allegations and have pleaded contributory negligence and that the case was brought too late.
The proceedings were issued in September 2008. The parties agreed that the ordinary six-year limitation period would have expired on 18 March 2005, making the claim three years and five months late. O’Sullivan argues that section 71 of the Statute of Limitations 1957 applies because the defendants fraudulently concealed his cause of action. He said he was not alleging fraud as a damages claim; rather, he argued that the alleged failure to tell him their advice gave rise to a claim amounted to fraudulent concealment.
The defendants argued that this plea merely repeated the negligence allegation. The judge, Mr Justice Hedigan, said the precise actions surrounding the transaction were unclear and could not be established at the preliminary stage. He noted that there had been a longstanding solicitor-client relationship and that O’Sullivan was 80 at the time of the transaction. The court did not determine whether the solicitors had acted negligently or fraudulently.
The judgment considered authorities on when conduct may amount to fraudulent concealment for limitation purposes. If the facts established conduct of the kind described in those cases, section 71 might apply; if the conduct was negligent but not fraudulent or deceitful, the defendants might rely on the limitation statute.
Mr Justice Hedigan remitted the limitation issue to plenary hearing because the defendants’ conduct and conflicts in the evidence required resolution there. He held that the plea of fraudulent concealment had been properly particularised by a letter dated 7 May 2009, but said it remained to be proved. The court made no finding that section 71 applied and did not determine the underlying claim.