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Statute-barring of cases due to lawyers' incompetence.


davidcameron

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Woman settles professional negligence case against Fine Gael TD - Independent.ie
A WOMAN who sued her former solicitor - now government TD Charles Flanagan - for alleged professional negligence has settled her High Court action.

Mary Rigney Murray brought the case over the 2003 handling by Mr Flanagan and his firm Bolger White Egan & Flanagan Solicitors of an action against her employers, the HSE.

In her claim for negligence and breach of contract she alleged her legal representatives failed to prosecute her claim within the required time limits and allowed it to become statue barred.
If a case becomes statute-barred due to a delay that is caused by the incompetence of the plaintiff's lawyers, can the plaintiff apply for an exemption from the statute of limitations on the grounds that the delay was caused by circumstances beyond his or her control? Why should the plaintiff suffer when the delay was caused by the lawyers, not the plaintiff?

PS: My questions are about the issue of the statute-bar, not the Flanagan case. I am merely using the Flanagan case as an example.
 


Northtipp

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Woman settles professional negligence case against Fine Gael TD - Independent.ie


If a case becomes statute-barred due to a delay that is caused by the incompetence of the plaintiff's lawyers, can the plaintiff apply for an exemption from the statute of limitations on the grounds that the delay was caused by circumstances beyond his or her control? Why should the plaintiff suffer when the delay was caused by the lawyers, not the plaintiff?

PS: My questions are about the issue of the statute-bar, not the Flanagan case. I am merely using the Flanagan case as an example.
There are a few lawyers in here who will answer. To best ofhmy knowledge the statute decision on the original case cannot be over turned but a new case against the lawyer could be pursued due to his negligence and incompetence. That would be pcked up by his or hers PI insurance.
 

publicrealm

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There are a few lawyers in here who will answer. To best ofhmy knowledge the statute decision on the original case cannot be over turned but a new case against the lawyer could be pursued due to his negligence and incompetence. That would be pcked up by his or hers PI insurance.
My understanding is that she is goosed if the statutory period has expired - with some limited exceptions. For example if she was unable to prosecute the case due to mental disabilit for a period then that period would be discounted. Ditto in cases of sexual abuse for example - where the victim might be too traumatised to prosecute for a period. Ditto in cases of discoverability - for example a womb removal by a gyni without consent that the plaintiff only became aware of in later years. Once discovered the statutory period commences.

But hopefully someone who has more knowledge than me can confirm/correct this.
 

Northtipp

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My understanding is that she is goosed if the statutory period has expired - with some limited exceptions. For example if she was unable to prosecute the case due to mental disabilit for a period then that period would be discounted. Ditto in cases of sexual abuse for example - where the victim might be too traumatised to prosecute for a period. Ditto in cases of discoverability - for example a womb removal by a gyni without consent that the plaintiff only became aware of in later years. Once discovered the statutory period commences.

But hopefully someone who has more knowledge than me can confirm/correct this.
I agree that her original case would be gone. But I also understand that if the lawyer messed up and missed the statute she could commence a fresh case against him for her losses as a result of his actions. I may be wrong though.
 

Ex celt

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I agree that her original case would be gone. But I also understand that if the lawyer messed up and missed the statute she could commence a fresh case against him for her losses as a result of his actions. I may be wrong though.
You often are and that comes from your propensity to spout on every topic.You should stick to the sf/ira bigot threads which are more your cup of tea.
 

bactrian

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There are a few lawyers in here who will answer. To best ofhmy knowledge the statute decision on the original case cannot be over turned but a new case against the lawyer could be pursued due to his negligence and incompetence. That would be pcked up by his or hers PI insurance.
Northtipp you are correct.

When a claim is statute-barred the case cannot be pursued. (Civil Liability Act 1961 as amended [I think!]).

A new case can be taken against the lawyer(s) who were negligent in pursuing the original case.

This new case will be for professional negligence .

In proving the case for professional negligence it will be necessary to show prima facie evidence of grounds of the original claim(This is a lighter burden than proving that you would have won the original claim)
 

Q-Tours

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I agree, she's statute-barred on the original claim unless she can show one of the established grounds for waiving the limits. Those are usually related to capacity or to inability to have discovered the grounds for her claim, which don't appear likely if she instructed solicitors before time ran out.

So it's over to a negligence case against the solicitors. A question occurs to me though: what are her damages, given that neither liability nor damages have been established in the statute-barred claim?
 

kbar2011

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Everyone who has posted here are correct. The fact that her lawyers missed the deadline is not an excuse. If there was a delay in prosecuting her claim, and she did nothing about it herself, she has some responsibility for not obtaining alternative representation and moving the case along. There are only limited exceptions which stop the running the of the Statute of Limitations, which have already been mentioned.

In relation to her professional negligence claim against the solicitor, her damages would be assessed on the basis of the prospect/chances of success in the original action. She must prove her loss. If a claim becomes statute barred, but the plaintiff had a useless claim to begin with and would not have obtained an award of damages in any event, then even though there was professional negligence, there was no loss and therefore he/she would not recover damages from their lawyer.

I would think that most of the time in these Statute of Limitation negligence claims, because the negligence is invariably clear cut, the professional indemnity insurers would probably settle quite early unless it was clear the statute barred claim was a pile of ************************e to begin with.
 

Ryan Tubbs

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PS: My questions are about the issue of the statute-bar, not the Flanagan case. I am merely using the Flanagan case as an example.
Well then that's libellous, is it not? You can't use that case as an example, since it was never proven or admitted that it actually happened in that case
 

davidcameron

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Well then that's libellous, is it not? You can't use that case as an example, since it was never proven or admitted that it actually happened in that case
I was using the plaintiff's argument, which I highlighted in a quote from the article in the OP, as an example. The OP is about the issue of statute-barring; it's not about Charlie Flanagan or the plaintiff.
 

elliebee

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I agree that her original case would be gone. But I also understand that if the lawyer messed up and missed the statute she could commence a fresh case against him for her losses as a result of his actions. I may be wrong though.
A plaintiff has a further period of six years within which to sue her first solicitor.
 

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