The Supreme Court has allowed the Construction Industry Federation (CIF) to be added as a co-defendant to a mason’s proceedings against the Building and Allied Trades Union (BATU) and three union officials. It overturned a High Court order that had refused the joinder because the claim against the Federation was considered statute barred.
The ruling, delivered by Mr Justice John MacMenamin on 12 June 2012, concerned the procedural question of whether the Federation could be joined at this stage. It did not decide whether the plaintiff’s allegations were true or whether his claim against the Federation was time barred.
The plaintiff, who was representing himself on appeal, alleges that BATU and its officials interfered with his work and economic relations from 1997 onwards. He says builders were advised not to employ him because he was not a union member or had not met union conditions, and that employees who hired him faced threats of picketing. The judgment stresses that these claims had not been tested in evidence and were not findings of fact.
The plaintiff also alleged that the CIF was involved in the conduct. He said he became concerned about the Federation’s role after learning of a 2005 High Court judgment concerning BATU’s challenge to a Labour Court registration. In September 2010, he wrote to the Federation’s director general alleging that Federation members had been instructed to end his employment. The director general replied that the Federation was not involved in depriving him or anyone else of the opportunity to work.
The Supreme Court found that the plaintiff’s affidavit and its exhibits met the rules’ requirements for adding a co-defendant. It said the proper party was the Federation itself, rather than its director general, because there was no evidence that he had personally engaged in the alleged acts.
On limitation, the court said judges should generally avoid deciding whether a claim is time barred on a procedural motion to add a defendant. A proposed defendant should ordinarily be joined if it is not clear that the claim is manifestly barred and that no legal or equitable circumstances could prevent reliance on the limitation defence. Here, the Federation had not filed a replying affidavit and was not on notice of the application, so the court could not reach a concluded view on whether a time-bar defence would be raised or succeed. The plaintiff also maintained that the alleged wrongs were continuing.
The court allowed the appeal, reversed the High Court order and ordered that the CIF be joined. It expressly left the Federation free to plead a limitation defence or seek a preliminary hearing on that issue. The order did not indicate that the claim would succeed or guarantee recovery of costs.