The High Court has refused to dismiss a property claim by Neville Presho on grounds of delay, finding that mental illness and concealment affected when he could protect his legal rights. The court also found that the company defendant had continued to trespass on his property, but invited the parties to consider whether the pleadings should be amended to address a possible remedy for unjust enrichment.
Mr Justice Roderick Murphy delivered the ruling on a preliminary issue on 29 April 2009. The action concerns a house Mr Presho bought on Tory Island in 1982. A fire substantially damaged it in January 1993, and the house was later removed. Mr Presho alleges the defendants were responsible for its destruction and used his land for the hotel’s car park and septic tank. The defendants denied unlawfully removing the house or trespassing.
The court heard evidence that Mr Presho was diagnosed with bipolar disorder in 1994 and experienced serious illness, hospitalisation and periods of impaired judgment. It found it probable that the illness began before he discovered the house was gone, or manifested at that time. The judge concluded that, because of his illness, Mr Presho was incapable of functioning well enough to protect his legal rights from the accrual of the claim until at least his instructions to a solicitor that led to a letter to the defendants in December 2003.
The judge also accepted that the claim did not accrue before Mr Presho returned to Tory Island in July 1994 and that evidence of concealment left him ignorant of the wrongdoer’s identity. On the preliminary issue, the defendants were therefore not entitled to dismissal on delay grounds.
The ruling did not determine all remedies sought in the action. Having heard evidence and submissions on the merits, the court was satisfied that the second defendant, Ostan Thoraigh Comhlacht Teoranta, had and continued to trespass on Mr Presho’s property. The court invited the parties to consider an amendment to the pleadings so it could assess whether, and to what extent, a remedy for unjust enrichment might be appropriate.