The Gazette 1994

GAZETTE

JULY 199s

J) refused the order, on the basis that the matter should be more appropriately dealt with under RSC O. 31, r. 29, which per- mits discovery to be obtained from third parties. The plaintiffs appealed to the Su- preme Court. Held by the Supreme Court (O'Flaherty J; Finlay CJ and Egan J concurring) in allow- ing the plaintiff's appeal in part: (1) Final documents, approved by the professional adviser for sight by the minister, are docu- ments within the 'power' of the minister and as such are discoverable in a party/ party discovery under O. 31, r. 12. (2) A document is within the power of a party if he has an enforceable legal right to obtain from whoever actually holds the docu- ment inspection of it without the need to obtain the consent of anyone else. (3) All other documents held by the adviser are preparatory and personal to the profes- sional adviser and as such are not discov- erable under O. 31, r. 12. (4) In relation to 'power' over preparatory documents there is a distinction between the professional adviser and client relationship and that of principal and agent. Approach of the Eng- lish Court of Appeal in Leicestershire County Council v Michael Faraday and Partners Ltd [1941 ] 2 KB 205 approved. Reported at [1994] 1 ILRM 111 Patricia Boylan v Motor Distributors Ltd and Daimler Benz AG: High Court (Lynch J) 9 June 1993 Practice - Statute of Limitations - Plain- tiff's hand injured by van door - Proceed- ings issued against owner of van - Manu- facturers and distributors of van not joined as co-defendants before expiry of limita- tion period - New proceedings issued five years and eight months after date of plain- tiff's accident- Whether new proceedings statutebarred-Statute ofL imitations 1957, section 11(2)(b) - Statute of Limitations (Amendment) Act 1991, sections 2, 3 Facts The plaintiff worked with her hus- band in a family firm called Radiant Plat- ing Ltd in Great Strand Street, Dublin 1. On 7 May 1986 a Mercedes 307-D type van, the property of Sanbra Fyffe Ltd, arrived at the firm's address to deliver goods for plating by Radiant Plating Ltd. The plaintiff assisted the driver in unload- ing the goods. Subsequently, in attempt- ing to close the van door she caught her right ring finger so that a piece was ampu- tated from its top joint. The plaintiff's right little finger was also injured. The plaintiff did not notice anything wrong with the door before the accident and was in no state to observe or examine the door immediately following it. She consulted her solicitor on 26 May 1986 and a High Court action against Sanbra Fyffe was commenced by plenary sum- mons on 22 January 1987 following which a statement of claim setting out various particulars of negligence was delivered on 27 February 1987. A defence was filed on behalf of Sanbra Fyffe on 28 October

1987, which did not suggest any design or other fault in the van or its doors for which they might claim to have no responsibility or in respect of which they might claim an indemnity against the manufacturers or distributors of the van. The plaintiff's solicitor had not been provided with any financial retainer by the plaintiff and as there now appeared to be no prospect of a settlement, as hoped, senior counsel was consulted in Decem- ber 1987 and it was advised that an engi- neer's report be obtained. On 21 Decem- ber 1987 the plaintiff's solicitor sought to have the van inspected by an engineer. The identity of the van had to be ascer- tained and other problems ironed out and after a series of delays and reminders an inspection was held on 24 August 1988. Thereafter, despite reminders from the plaintiff's solicitor to the engineer, there was a delay in receiving the report from the engineer who was keeping a lookout for other similar type vans and who about December 1988 noticed a newer van of a similar type to that involved in the acci- dent which had a variation in the door hinge mechanism. The desirability of joining Motor Dis- tributors and Daimler Benz as co-defend- ants in the action was overlooked until after 7 May 1989 by which time any cause of action against those parties was statute- barred by section 11 (2)(b) of the Statute of Limitations 1957 as it then stood. The Statute of Limitations (Amendment) Act 1991 became law on 10 July 1991 but consideration of the effect of this statute on the possibility of maintaining a claim against Motor Distributors and Daimler Benz was not undertaken until in or about the end of 1991 and it was considered unlikely that any application to join them as co-defendants would be heard before 18 January 1989, the third anniversary of the date and delivery of the engineer's report. Consequently, reliance was placed upon the 1991 Act to issue new proceed- ings by plenary summons on 14 January 1992. A preliminary issue as to whether the plaintiff was statute-barred in pursuing her claim against Motor Distributors and Daimler Benz came on for hearing before the High Court on 25 March 1993. Held by Lynch J in finding that the plaintiff's action was not barred: (1) The plaintiff did not know and could not rea- sonably be expected to know that her injury might have been caused by a design defect in the hinge mechanism of the van door and that therefore Motor Distributors and/or Daimler Benz might be blamed for the accident and ought to be the defend- ants. (2) While the plaintiff must be fixed with knowledge which her solicitor had or ought to have had at the time when the solicitor had or ought to have had such knowledge, the plaintiff's solicitor did not in fact have knowledge that the plaintiff's •njury might have been caused by a design defect in the hinge mechanism of the door from the description of the accident as given to him by the plaintiff, nor could he

(1) When a dispute arises between experts as to how a foreign statute or ordinance should be construed then the court in this country may resolve the dispute by itself construing the instrument. McNamara v Owners of SS Hatteras [1933] IR 675 followed. (2) The finality and conclusive- ness of an order is to be determined by the nature of the proceedings before the for- eign court and the effect of the court's order. If there is an adjudication on all the issues between the parties and an order is made so that resjudicata applies, then it is clear that the court's order is 'final and conclusive' and this is so even though the order may later be varied or set aside on appeal. Harrop vHarrop [1920] 3 KB 386 and In re Macartney [1921 ] 1 Ch 522 not followed. Nouvion v Freeman (1890) 15 App Cas 1 followed and Nunn v Nunn (1881-2), 8 LR Ir 298 approved; Keys v Keys [1919] 2 IR 160; McDonnell v McDonnell [1921 ] 2 IR 148distinguished. (3) The fact that a foreign law may permit a foreign court to vary its orders may be evidence that the order is not a final and conclusive one; but it is not conclusive on the point. (4) If it can be shown that the principle of res judicata applies to the order then even though it may be subeet to appeal by a higher court or be varied if circumstances change by the same court then it is a 'final and conclusive' order which will be enforced by the Irish courts. Reported at [1994] 1 ILRM 101 Bula Ltd and Others v Tara Mines Ltd and O t h e r s: Supreme Court (Finlay CJ, O'Flaherty and Egan JJ) 15 june 1993 Procedure - Discovery - Documents in the possession of a professional adviser - Whether such documents are within the power of the client - Whether discover- able in a party/party discovery - Whether non-party discovery procedure is appro- priate - Rules of the Superior Courts 1986 O. 31, rr. 12, 29 Facts O. 31, r. 12(1) of the Rules of the Superior Courts 1986 provides that 'Any party may . . . apply . . . for an order directing any other party to any cause or matter to make discovery on oath of the documents which are or have been in his possession or power, relating to any mat- ter in question therein.' The plaintiffs is- sued a motion seeking discovery of cer- tain documents in the possession of advis- ers retained in the past by the Minister for Energy. The motion sought that the minis- ter should request from those professional advisers (Arthur Cox, solicitors, Coopers & Lybrand, accountants and ICC Bank) all documents in the possession or procure- ment of the professional advisers which related to the issues in the proceedings (other than internal memos or drafts pre- pared by the said professional advisers for their own purposes as distinct from final drafts/advice prepared for the minister) and that the minister should then discover such documents. The H igh Court (Murphy

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