High Court of Ireland Decisions

1. On the 10th February, 1995 the plaintiff entered premises known as Sachs Hotel as a customer for the purpose of attending a dance. Accordingly she was at all material times a visitor in the premises within the meaning of the Occupiers Liability Act, 1995 and the customer within the meaning of the Hotel Proprietors Act, 1963. She fell suddenly and without warning and blames the alleged wet condition of the surface of the floor which caused her to slip and fall. She instructed her solicitors Messrs. Mangan & O’Beirne. The firm of solicitors Messrs. Becker Tansey and Co. replied to the initiating letters from the plaintiff’s solicitor as follows:-

2. Thereafter there is a series of questions asked and the letter concludes:-

3. A plenary summons was issued on the 25th August, 1997 in which Midserve Limited trading as Sachs Hotel was the defendant. A plenary summons was served on Becker Tansey Limited on Friday 6th February by ordinary prepaid post. However they were returned under cover of a letter dated the 12th February which reads:-

4. The plaintiff’s solicitor Gerry McKinney whilst attending a licensing session in the Dublin Metropolitan District Court on the 24th June, 1998 became aware of an application for an Intoxicating Liquor Act licence in respect of Sachs Hotel on behalf of an applicant company known as Genport Limited . The applicant intimated to the court that the said company was the licencee and therefore occupier of the premises.

5. By order of the Master of the High Court dated the 30th July, 1998 Genport Limited was joined as a co-defendant in the proceedings. The amended plenary summons and statement of claim was delivered by the plaintiff’s solicitor on the 24th August, 1998. Messrs. P.C.L. Halpenny and Son Solicitors entered an appearance on behalf of Genport Limited and delivered a notice of particulars on the 6th February, 1999. On the same date the second-named defendant’s solicitors delivered a full defence to the plaintiff’s claim and raised a plea that the plaintiff’s claim was barred by virtue of the provisions of the Statute of Limitations, 1957 as amended by the Statute of Limitations (Amendment) Act, 1991. Meanwhile the plaintiff had marked judgment for the plaintiff in default of appearance against the defendant Midserve Limited trading as Sachs Hotel.

6. In June of 1999 the plaintiff’s solicitor delivered a full reply to the second defendant’s defence. The action was thereafter set down and notice of trial served. The action came on for hearing before this Court on the 8th May, 2001.

7. It was agreed between the parties and the court that a preliminary issue should be tried on the question as to whether or not the plaintiff’s claim was barred by virtue of the Statutes of Limitations as pleaded. The court requested written submissions from both parties and received a final submission with a covering letter of the 15th November of last year from the plaintiff and from Genport Ltd under cover of a letter of 17th December 2001.

8. The next question is whether or not the plaintiff by herself or through her solicitor could reasonably have ascertained who the correct defendant was and had taken reasonable steps to ascertain that fact.

9. The hearing of the issue took place on the 8th and 9th May, 2001. The plaintiff’s solicitor was called to give evidence on behalf of the plaintiff. The second-named defendant did not call any evidence. It was accepted at the hearing that the plaintiff did not herself know of the true identity of the occupier and licensee of Sachs Hotel She had relied entirely on her solicitor. It was also admitted by the second-named defendant that at all material times the true identity of the occupier and licensee of the premises known as Sachs Hotel was Genport Limited .

10. The plaintiff’s contention is that the earliest date on which she became aware that Genport was the licensee and occupier was on the 24th June, 1998 when her solicitor who was at the licensing court realised that Genport Limited was the licensee and occupier because he heard their application being processed . She contends that the three year period runs from that date. The defendant contends that the cause of action against the second-named defendant accrued on the 10th February, 1995 (the date of her accident). Accordingly the plaintiff’s claim is statute barred.

11. Their main argument is that had the solicitor for the plaintiff carried out an intoxicating liquor licence search the identify of Genport Limited as licensee would have been disclosed to her. No evidence was called from the Law Society or elsewhere that such a search was normal having regard to all the facts of this case.

12. The plaintiff’s solicitor’s answer to this contention is that by virtue of the inquiries which he made in the recited correspondence with Messrs. Becker Tansey acting for Sachs Hotel and including searches which he made, that is a search at the register of Business Names under the Regulation of Business Names Act, 1963 and the information derived therefrom that he was entitled to rely and did rely on the information disclosed as a result of these inquiries. The particulars on the register being a matter of public record and that showed that Sachs Hotel and its licence attached to the function room on the first floor. In relation to the business name Sachs Hotel, Morehampton Road, Dublin 4 it is registered in the name of a limited liability company Midserve Limited having a registered office at 36 Wicklow Street, Dublin 2 and that the business carried on by the owner of the business name was that of “hotelier-licensed premises”. The plaintiff also relies on Section 22(1) of the Companies Act, 1960 which provides that every company carrying on business in the name other than its corporate name shall register in the manner directed in law and the registration of business names statutes.

13. The court has also referred to Section 3(1)(d), Section 6(1) and Section 12 . Midserve Limited does not appear to have complied with these sections.

14. Initially the plaintiff’s solicitor wrote to the Secretary of Sachs Hotel at Morehampton Road, Donnybrook, Dublin 4 to make a claim on behalf of the plaintiff and suggesting they contact their insurance. Becker Tansey replied “on behalf of our clients”. However, it did not identify that Genport had taken over Midserve. The plaintiff’s solicitor tried to find out who held the dance licence and found only a reference to Sach’s Hotel. A search of the register of Business Names on the 8th August, 1997 disclosed that Sachs Hotel at Morehampton Road, Dublin 4 was owned by a limited liability company Midserve Limited and that the nature of the business being carried on was “hotelier licensed premises”. In his direct evidence he explained to counsel for the second-named defendant as to why he had relied on the contents of that search. Mr. McKinney stated that the business disclosed was that of hotelier and licensed premises. This is a matter of public record and he felt entitled to rely on it. It disclosed that Midserve was the owner of the name Sachs Hotel and was carrying on business of hotelier and licencee in the relevant premises. It is therefore the appropriate defendant. He felt he had enough information for a careful and prudent solicitor to initiate proceedings. He referred to Boylan v. Motor Distributors Limited [1994] ILRM at 115.

15. The various statutory requirements where a name is changed were not complied with. This was the fault of the defendant. Therefore a person with a reason for inquiry would not ascertain the true identity of the company carrying on business in the name of ‘Sachs’ as corporate name. The public must be protected. Indeed since the coming into force of the Intoxicating Liquor Act, 2000 the object and desirability of achieving transparency is further enforced and underlaid by the provisions of Section 38 of that Act requiring a licencee not to carry on business under its own name, to produce a Certificate of Registration of ownership of the business name as registered under the Regulation of Business Names Act, 1963. When the solicitor for the plaintiff sent correspondence which was received at the hotel premises; it was passed to Becker Tansey and Company. The true position regarding ownership and occupation was obviously known to Midserve. It was owned by Genport and should have been known to solicitors Becker and Tansey & Co. There is no doubt that the failure of Genport Limited (and of its solicitor) to disclose that it was the occupier of the premises in circumstances where Midserve Limited and the solicitors knew a claim was being brought by the plaintiff as a result of an accident, and they allowed the plaintiff to proceed to judgment in default of appearance against Midserve Limited constituted and amounted to a concealment of the identity of the correct defendant from the plaintiff. He relies on the judgment of Morris J. (as he then was), his judgment in McDonald v. McBain [1991] 1 IR 284 which adopts the approach of Lord Denning M.R. in King and Victor Parsons [1973] 1 WLR 29. This Court would adopt both judgments. As Denning M.R. says:-

16. The plaintiff’s solicitor was misled by virtue of the Acts or omissions of the second-named defendant. The court also had regard to Simpson v. North-West Holst Southern Limited [1980] 1 All ER 471. In this case the true identity of the second-named defendant was knowingly concealed from the plaintiff and such concealment constitutes fraud within the meaning of Section 71 of the Statute of Limitations 1957. To adopt the words of Ó Dálaigh C.J. in O’Reilly v. Crandall [1971] IR 90 at 98:-

17. In view of the foregoing this Court is firmly of the opinion that in all the circumstances of this particular case the Statute of Limitations does not offer protection to the second-named defendant. Accordingly the issue is decided in favour of the plaintiff. The action will proceed in default of settlement on another day before another judge.