The Gazette 1987

SEPTEMBER 1987

GAZETTE

period when the material facts on wh i ch it is based had been discovered or ought to have been discovered by the plaintiff by the exercise of reasonable diligence. He saw no "principled reason" for distinguishing in this regard bet- ween an action for injury to proper- ty and an action for the recovery of purely financial loss caused by pro- fessional negligence and held that a "discoverability" rule should be applied to the plaintiff's cause of action in fo/7. 21 Since the defen- dants gave the trust company a certificate that the mortgage was a first charge on the property, thereby implying that it was a valid mortgage, the earliest that it could be said that the plaintiff discovered or should have discovered the defendant's negligence by the ex- ercise of reasonable diligence was in April or May of 1977 when the validity of the mortgage was challenged in the action for foreclosure. Accordingly the plain- tiff's action for negligence was not statute-barred. To hold that time should not begin to run until the plaintiff has discovered, or ought to have discovered, the damage seems eminently fair and just when view- ed from the plaintiff's perspective; it does introduce, however, the very element of uncertainty the elimination of which is the fun- damental benefit conferred by the statute. The Statute of Limitations 1957 is designed to protect defen- dants from stale claims relating to long past incidents about which their records may no longer be in existence and as to which their witnesses, if available, may well have no accurate recollection. A hearing in such circumstances could be rightly described as a "travesty of justice". 22 One could expect, therefore, that defendants, faced with a claim which had not been instituted until many years after the occurrence of the events which formed the basis of the claim, to invite the court to exer- cise its inherent power to stay pro- ceedings where the passage of time alone would effect a potential unfairness. 23 Thus uncertainty would be piled upon uncertainty. One can only hope that the legislative inactivity in this area will not continue much longer. •

REFERENCES: (1)

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Now reported 31 D.L.R. (4th) 481. Judgments against concurrent liability innclude those of the English Court of Appeal in Groom -v- Crocker [1939] 1 K.B. 194; of Pigeon, Martland and Judson J.J. in J. Nunes Diamonds Ltd. -v- Dominion Electric Protection Co. (1972) 26 D.L.R. (3rd) 699, 727- 728; of the New Zealand Court of Appeal in McLaren Maycroft & Co. -v- Fletcher Development Co. Ltd. (1973) 2 N.Z.L.R. 100; of Murphy J. in Macpherson & Kelley v- Kevin J. Prunty and Associates [1983] V.R. 573, 587; and of Connnolly J. in Aluminium Products (Qid) Pty. Ltd. -v- Hill [1981] Qd.R. 33, 53. Judgments in favour of concurrent liability include those of Oliver J. (as he then was) in Midland Bank Trust Co. Ltd. -v- Kemp [ 1979] Ch. 384; of Spence and Laskin JJ. in Nunes Diamonds, supra, at 723; of Lush and Beach JJ. in Macpherson, supra; of Douglas and Campbell JJ. in Aluminium Products, supra; and of Glass J. A. in Brickhiil -v- Cooke [1984] 3 N.S.W.L.R. 396, 401. See, for example, Dwyer "Solicitor's Negligence — Tort or Contract" (1982) 56 A.L.J. 524, French "The Contract/Tort Dilemma" (1983) 5 Otago L.R. 236, Kaye "The Liability of Solicitors in Tort" (1984) 100 L.Q.R. 680. Unreported, 21 October 1954 (61/1954). At p.3 of his unreported judgment. At p.6 of his unreported judgment. Finlay -v- Murtagh is considered at 517. A rare instance of a relevant Irish decision being brought to the attention of a foreign court. (10) At 5 2 1 - 5 2 2. (11) See also Henchy J. in Finlay -v- Murtagh at 257. (12) See also Griffin J. in Finlay -v- Murtagh at 263, and Miffin C. J. T. D. in Power -v- Halley (1979) 88 D.L.R. (3rd) 381, 388. (13) Section 60( 1) of the Companies Act 1963. See generally Ussher, Company Law in Ireland (London 1986), at pp. 3 1 9 - 3 2 4. (14) Central and Eastern Trust Co. -v- Irving Oil Ltd. (1980) 110 D.L.R. (3rd) 257. (15) (1982) 139 D.L.R. (3rd) 385. (16) (1983) 147 D.L.R. (3rd) 260. (17) At 274. (18) See Brady and Kerr, The Limitation of Actions in the Republic of Ireland (Dublin, 1984) at pp. 4 3 - 4 7 . (19) 11983] I.L.R.M. 156, noted by Kerr, (5) (6) (7) (8) (9) [1979] I.R. 249. At page 257. (1983) 5 D.U.L.J, (n.s.) 133 and see Brady and Kerr, op cit., at pp. 5 0 - 5 2 . (20) (1984) 10 D.L.R. (4th) 641. (21) 31 D.L.R. (4th) at 536. (22) Per Henchy J., O'Keeffe -v- Commissioners of Public Works. (23) This power was exercised in O'Domhnaiii -v- Merick. (4)

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