Constitutionality of s.9(2)(b) of the Civil Liability Act 1961 upheld


Mr. Justice Noonan has delivered a helpful decision providing guidance as to when a matter may proceed by way of a trial on a preliminary point of law arising in advance of a plenary hearing. In this case, the Plaintiff brought Medical Negligence proceedings against the estate of a medical professional. The Defendant argued that the case was Statute barred and sought to bring a preliminary application under Order 25 of the Rules of the Superior Courts.



In March 2013 the Plaintiff; who was then fifteen; attended the late Dr. O’Callaghan complaining of a lump in her neck. She alleged that Dr. O’Callaghan told her not to be concerned about the lump. Following her examination, the Plaintiff was referred to Temple Street Hospital for blood tests but heard nothing further afterwards.

Dr. O’Callaghan subsequently died on the 30th of September 2013.

The Plaintiff was diagnosed with papillary thyroid cancer in April 2015 after being reviewed by another GP and referred for an emergency biopsy in the Mater Hospital.

The Plaintiff turned eighteen on 11th of October 2015.  Proceedings were issued against the estate of Dr. O’Callaghan on the 13th of April 2017.



Counsel for the Defendant argued that the claim was statute barred under s.9(2)(b) of the Civil Liability Act 1961 as proceedings were issued more than two years after Dr. O’Callaghan’s death.  It was submitted that the constitutionality of section 9 had previously been upheld in Moynihan v Greensmith [1977] I.R. 55 and as such the Plaintiff’s case was prima facie barred. As a discrete issue of law, it could be conveniently dealt with as a preliminary issue before the Court.



Section 9(2)(b) of the Civil Liability Act 1961 was unconstitutional and that issues of constitutionality could only be tried after a trial of the facts.

Alternatively, the Defendant’s argument was moot on the basis that proceedings were between the insurance company which had indemnified the late Dr. O’Callaghan and the Plaintiff. Counsel for the Plaintiff contended that it would be unconscionable and an abuse of process for the insurance company to rely on the statute in these circumstances.

The trial of a preliminary issue can only occur when all the facts are agreed upon by the parties and in the present case, the Plaintiff’s date of knowledge remained in issue.



Mr. Justice Noonan upheld the constitutionality of section Section 9(2)(b) 1961 Act. He held that:

The decisions in Murphy v Roche [1987] I.R. 106 and McDaid v Sheehy [1991] 1 I.R. 1 did not overrule the decision in Moynihan v Greensmith [1977] I.R. 55. Mr. Justice Noonan held that a constitutional issue could be considered at a trial of a preliminary point of law provided all other non-constitutional issues which could dispose of the case were dealt with.

The Plaintiff’s argument that the trial on the preliminary point of law was moot was incorrect.  Mr. Justice Noonan held that it was at the very least arguable that the Estate of Dr. O’Callaghan continued to have a stake in proceeding despite being indemnified by the insurance company. He felt that the Estate might want to protect the reputation of the late Dr. O’Callaghan or, alternatively, the indemnity provided to the estate might be withdrawn by the insurance company. As such it could not be said that the issue was moot.

The parties to proceedings can accept a particular factual matrix or point of law for the purposes of the preliminary trial without prejudice to their right to contest if the matter subsequently proceeds to a full trial. Mr. Justice Noonan held that this allowed the Defendant to accept the date of knowledge of the Plaintiff solely for the purpose of its application under Order 25 RSC.



Mr. Justice Noonan’s Judgment clarified the circumstances which will allow the trial of a preliminary point of law. The decision is a positive one from the perspective of Insurers operating in the Irish market as it will assist Defendants in bringing such applications at an early stage thereby minimising the exposure to unnecessary costs and inconvenience of a full trial.


This information is for general guidance and it is not intended to be professional legal advice. For further information, contact Patrice O’Keeffe or a member of the Comyn Kelleher Tobin LLP Litigation Team.