The Gazette 1985

GAZETTE

JULY/AUGUST

1985

subject to the obligation which may arise on her part or on the part of her personal representatives to pay any balance necessary to make up the difference in value between her share of the estate and the value of the dwelling which is to be appropriated in her favour. Rose Ann Hamilton -v- George Armstrong and James McCartney - High Court (per O'Hanlon J.) [1984] ILRM 306. Sarah Cox PLANNING L o c a l G o v e r nm e nt ( P l a n n i ng & Development) Acts — procedure under Section 27 — 1976 Act. The third and f o u r th n amed Respondents brought' an application to the High Court under the provisions of Section 27 of the Local Government (Planning & Development) Act 1976 against the Applicants and seeking to have the Insurance Corporation of Ireland added as a Defendant in the p r o c e e d i ng s. The app l i c a t i on was brought in proceedings which had been instituted by the applicants and in which an Order had been made on 9 July 1982 in the following terms: IT IS ORDERED that the respondent Michael Gantley do carry out the work specified in the Schedule hereto, he to commence the said works within two weeks from the 5th day of July 1982 and to complete them within three months from the 5th day of July 1982. In default of Michael Gantley com- mencing the said works within the said two weeks or in default of his com- pleting them within the said three months IT IS ORDERED that the respondents Sean Byrne and Hugh Byrne do carry out the said works or any works not completed by the said Michael Gantley and to complete them within three months of com- mencement and IT IS ORDERED that the preceding Order against the respondents Sean Byrne and Hugh Byrne shall take effect only if the works specified in the Schedule hereto have not been carried out by the Insurance Corporation of Ireland under the Bond dated the 15th day of November 1979 or if the said Insurance Corporation of Ireland having elected to do the said work fail to enter on them within two weeks from the date of default of Mr. Gantley or having so entered failed to complete the said works within three months of the date of entry on them and IT IS ORDERED that the applicants do recover against the respondents Michael Gantley and Sean Byrne and Hugh Byrne their costs of this motion and order when taxed. Liberty to Apply." The Bond referred to in the Order was a

Guarantee Bond entered into by the first named Respondent as developer and the Insurance Corporation of Ireland jointly with the Drogheda Corporation, the planning authority by whom the planning requirements may be enforced. The third and f o u r th n am ed Re s p o nd e n ts s o u g ht to have the Insurance Corporation of Ireland made Respondents to the Notice brought by the applicants for the purpose of having them compelled by Court Order to pay to the planning authority the fine or penalty of the bond. T h e t h i rd a nd f o u r t h - n a m ed Respondents claimed as being authorised under the expression "liberty to apply" to move the Court upon a new application entitled in the same matter for what could be described only as further and other relief at the instance of such Respondents and not of the applicants, Drogheda Corporation. The Court was of the view that the words "Liberty to apply" were intended to enable further applications to be made to the Court for implementation of its order by way of enforcement or variation or suspension and that it was not a formula which permitted a party found in default to resort to a type of third party procedure for the prupose of obtaining contribution of or casting on some third party the burdens of compliance with the order made upon the claim. The Court also noted that an Order under Section 27 (2) must specify what the Court required the person designated to do or not to do or to cease to do and such matters should appear to be necessary to ensure that the development is carried out in accordance with the permission granted. The Court did not think that a Court could specify the payment of a fine or penalty by a Guarantor upon the default of the compliance with the planning permission by the developer as something which ensures the carrying out of the development in conformity with the permission granted. This was particularly so when the applicants themselves are held by the Court liable to carry out the development but without any Guarantor for their default. The Court therefore dismissed the application. The Mayor, Aldermen & Burgesses of the Borough of Drogheda (Applicants) and Michael Gantley, Louis Maguire, Sean Byrne and Hugh Byrne (Respondents) - High Court (per Gannon J.), 25 September, 1983 - unreported. John F. Buckley PRACTICE Extension of time for delivery of Statement of Claim — Infant Plaintiff over eighteen years of age — Delay of five years — dismiss for want of prosecution — Appeal to Supreme Court — inordinate delay —

Construction of Statute of Limitations in consonance with international Law considered — Appeal disallowed. The Plaintiff was born on 29 November 1957. She met with a road accident on 5 March 1961. She sustained serious personal injuries when a motor car driven by the Defendant collided with her. Shortly after the accident her father consulted a Solicitor but it docs not appear that that Solicitor instituted a claim for damages on her behalf within the three years alter the accident which was the period of limitation applicable under S.49(2)(a)(ii) of the Statute of Limitations. 1957. In 1965, the Plaintiffs lather consulted a second Solicitor p r a c t i s i n g in T e m p l e m o r c . C o . Tippcrary, and that Solicitor issued a Plenary Summons in 1965 claiming damages on behalf of the Plaintiff against Samuel Young, the owner of the motor car that collided with her. As the law was then generally understood to be, those proceedings were out of time. When, therefore, Samuel Young applied in 1968 for an Order dismissing the proceedings for want of prosecution, there was no opposition to the making of that Order. Those proceedings were, therefore, dismissed. The constitutionality of S.49(2)(ii) of the Statute of Limitations, 1957 was challenged successfully in O'Brien -v- Kcogh \ 1972] I.R. 144. The parties agreed (and the Court accepted this for the purpose of this case) that the decision of the Supreme Court in that case had the effect of making the period of limitation under the Statute of Limitations, 1957, for the Plaintiffs claim the period expiring three years after the date on which she would becomc of full age. Since the latter date was 29 November 1978. the Statute could not have been successfully pleaded against her if her claim had been brought before 29 November 1981. The Plaintiffs present Solicitor was instructed to act on her behalf in March 1977 and in September 1977 he issued a Plenary Summo ns claiming damages against the Defendant as the driver of the motor car. The Summons was served on the Defendant in December 1977. It seems since the accident sixteen years earlier the Defendant had no intimation that a claim on behalf of the Plaintiff would be ma de against her. The Plaintiffs Solicitor having consented on three occasions to an extension of the time for entering an Appearance to the Summons, an Appearance was eventually entered in May 1978. Between May 1978 and October 1979 no steps seem to have been taken on behalf of the Plaintiff towards the hearing of her case and it became necessary, before taking any further step, to serve a Notice of Intention to Proceed. Such a Notice was served by the Plaintiffs Solicitor in October 1979. An Order from the Master of the High Court in

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