The Supreme Court dismissed Mark Smith’s appeal in proceedings against Mark Cunningham, Kevin Sorohan, Anne Marie Sorohan and Paul Kelly and Company Solicitors. The appeal concerned whether his claim for professional negligence was brought outside the limitation period.
The dispute arose from planning issues at a house built in 2004 and bought by Smith and his then wife in July 2006. A certificate provided for the purchase stated that the house complied with planning permission and building regulations. In a letter dated 10 June 2008, Leitrim County Council raised several non-compliance issues, including windows that did not meet the permission. The Council indicated that it proposed enforcement action.
Smith had agreed to sell the property in May 2008. The proposed sale did not complete after the buyers withdrew when he could not show good title within a 28-day completion notice. Retention permission was granted in November 2008, but the judgment said this came too late to save that sale. The property’s value later fell, and Start Mortgages ultimately took possession after Smith became unemployed and could not meet the mortgage payments.
Smith began proceedings by plenary summons dated 26 May 2014. The fourth defendant, a solicitors’ firm, sought to have the action dismissed as statute-barred. The High Court had found that the relevant loss arose when the sale contract collapsed in October 2008. The Court of Appeal instead held that the loss arose when Smith acquired the property in 2006.
Justice Gerard Hogan agreed with Justice William Murray’s lead judgment that the claim was time-barred. Hogan concluded that the planning defects meant Smith acquired a defective title in May 2006, so the limitation period began then, even though he could not realistically have known of the defects at the time. He said the defects were not all so minor or insubstantial as to amount to no damage. The Supreme Court therefore dismissed the appeal.
Hogan also described the result as potentially unjust and said the operation of limitation law in cases involving latent professional negligence may warrant reconsideration. He questioned aspects of the Court’s earlier constitutional reasoning in Tuohy v Courtney, but said those issues were for a future case. His judgment records agreement with Murray’s result; it does not state that the Court changed the law on discoverability or decided a fresh constitutional challenge.