Tsiu v Campbell Catering Ltd [2022] IEHC 391 – When is a Defendant Estopped from Relying on a Plea of Statute Bar?

In the recent Irish High Court case of Tsiu v Campbell Catering Ltd[1] a Defendant which had admitted liability and sought to settle a personal injury claim was estopped from relying on the Statute of Limitations. The decision provides clarity on the “added facts” beyond an admission of liability which are necessary to estop reliance on a plea that a claim is statute barred.

Background

The Plaintiff suffered an injury at work on 4 December 2013, when a colleague pushed a trolley into her ankle. On 8 July 2015, some 4 months before the expiry of the time period for a PIAB application on 3 December 2015, the Plaintiff’s solicitor wrote to the Defendant employer giving notice of the accident. On 24 August 2015, the Defendant’s insurers at Zurich wrote to the Plaintiff’s solicitor stating “Our investigations are complete and we will not be disputing liability…Are you prepared to share your medical report with us? If not, please advise us of the name and address of your client’s doctor so that we may make arrangements for a medical examination…”. On 23 October 2015, the Defendant’s insurers chased a response by way of email and voicemail message. In default of a response, the Defendant’s insurers made a further telephone call on 23 November 2015 and left the following voicemail message: “…Just looking for a copy medical and we’ll try to get the thing settled”. Incidentally, the Plaintiff’s solicitor claimed the failure to respond was owing to delays in getting an accurate medical report.

By letter dated 7 December 2015 (two days after expiry of the two-year limitation period), the Plaintiff’s solicitor made an application for assessment to PIAB. A conversation took place between the Plaintiff’s solicitor and the Defendant’s insurers on 11 December 2015 during which there was no suggestion that the Defendant’s insurers had altered their stance on seeking to settle the claim. On 22 December 2015, however, the Defendant’s insurers wrote to the Plaintiff’s solicitor acknowledging receipt of the application made to PIAB on 8 December 2015, and confirming they had advised PIAB that PIAB was not required to assess the out-of-time claim.

Approximately one year later, in December 2016, the Plaintiff issued a Circuit Court Personal Injuries Summons. The Defendant raised a preliminary objection that the claim was statute barred and the Circuit Court found it was. On appeal to the High Court, the Plaintiff argued that the Defendant was estopped from relying on the Statute of Limitations due to the admission of liability. An order was sought in respect of this preliminary point of law.

The Decision

The Court considered the relevant legal principles set out in the Supreme Court decision in Murphy v Grealish.[2] In particular, that an admission of liability is “all important” in considering the issue of estoppel preventing reliance on the Statute of Limitations. An admission of itself will not necessarily make it reasonable for a plaintiff to assume he can defer the commencement of proceedings beyond the limitation period. Only where a plaintiff refrains from instituting proceedings within the prescribed period, in reliance on a defendant’s words or conduct from which it can reasonably be inferred that liability will be admitted, will a defendant be estopped. It would be unconscionable and dishonest for a defendant, having misled a plaintiff into a feeling of security on liability and into a justifiable belief that the Statute would not be used to defeat his claim, to escape liability. Whilst the Court did not deem unfair any criticism of the Plaintiff’s solicitor for failing to respond to various communications, it held that his silence was not determinative as it is the Defendant’s conduct which matters in assessing estoppel.

It was emphasised by the Court that all communications from the Defendant’s insurers were exclusively focussed on settlement. Notwithstanding the imminent expiry of the Statute and the silence of the Plaintiff’s solicitor, the Defendant’s Insurers continued to chase the medical report with the obvious aim to progress settlement. There was no indication that any settlement was time-limited or conditional. The Court held that this could, in objective terms, reasonably have given comfort that the Statute was not of particular importance. This was also the subjective belief of the Plaintiff’s solicitor.

The Defendant placed considerable reliance on the High Court decision in McFadden v Neuhold,[3] which was distinguished. There, the insurer did not admit liability but indicated it was investigating the relevant incident and stated that, should liability not be in issue, the Plaintiff was encouraged to agree a settlement timeframe and costs with the relevant claims manager. The Plaintiff rejected the offer made, and no further negotiations were offered. On those “starkly different facts”, where negotiations had not only become dormant but had concluded without agreement, the Court held that the Plaintiff’s failure to make timeously an application to PIAB did not fall at the feet of the Defendant.

Comment

Interestingly, the Court noted that had the Defendant’s insurers’ correspondence rested with the admission of liability on 24 August 2015, the outcome might well have been different. The decision here hinged on the subsequent correspondence from the Defendant’s insurers chasing the Plaintiff’s medical report with the stated aim of settlement.

The case serves as a useful example of what “added facts” beyond a bald admission of liability are necessary to estop a defendant from relying on a plea of statute bar. It is clear that a defendant risks being estopped where:

• Confirmation that liability is not disputed is made in open correspondence;
• Confirmation is absolute and not conditional in any way (i.e. it is not time limited and places no obligation is on a plaintiff to do anything or respond by a specific date);
• Settlement negotiations are “live” at the time of expiry of the Statute of Limitations and again are not time-limited or conditional.

The case stands as a stark warning to defendants, their insurers, and their solicitors of the need to consider carefully their correspondence to a plaintiff where liability is not disputed, and the limitation period is close to expiry or has expired, but the plaintiff has not yet issued proceedings or in the alternative applied to PIAB if required by law.

[1] [2022] IEHC 39 (judgment was delivered by Heslin J. on 28 June 2022)

[2] [2009] I.R. 366 (Geoghegan J.)

[3] [2017] IEHC 240