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1. The first named Plaintiff resides at Toomona Tulsk County Roscommon and is a farmer. The second named Plaintiff resides separately in the same townland and is a housewife although at times relevant to this action she engaged in employment outside the home. The Plaintiffs appear in person and have acted personally throughout these proceedings.

2. The first named Plaintiff maintained his bank accounts with the Defendants branch at Castlerea County Roscommon. In July 1978 the first named Plaintiff agreed to purchase Toomona House and some 75 acres of land at Toomona Tulsk County Roscommon and for that purpose obtained bridging finance from the Defendant against the proposed sale of other lands. The facility granted by the Defendant was in the amount of £180,000.00 for a period of six months. The facility was secured by way of Solicitors undertaking in respect of:-

3. As I understand it it was the intention that the first named Plaintiff would sell lands and reduce his borrowing. At this time agriculture land was achieving a very high price per acre but before any sale as envisaged could be negotiated the price fell sharply. In reaction to this the first named Plaintiff delayed the sale of lands awaiting a recovery in the price of agricultural land and this coupled with upward movement in interest rates resulted in the amount due by the first named Plaintiff to the Defendant remaining at a substantial level notwithstanding payments made in reduction of his overall liability from time to time.

4. On the 11th June, 1983 Toomona house was destroyed by fire. By that date the first named Plaintiff’s accounts were a cause of serious concern to the Defendant. The amount of the first named Plaintiff’s indebtedness amounted to some £120,000.00.

5. In July 1978 through the agency of the manager of the Defendant’s branch at Castlerea, Mr. Stewart, Toomona house (but the not the contents thereof) was insured in the amount of £76,500.00. The Defendant’s interest was noted on the policy. As of 1st June, 1982 contents cover in the amount £15,000.00 had been added to the policy. The amount of cover was thereafter increased and at the date of the fire was as follows:-

6. On the 18th August, 1983 the first named Plaintiff’s agent communicated to him the insurers proposals to settle his claim under the policy on the basis of reinstatement, replacement or cash settlement. The first named Plaintiff opted for the last mentioned and on the 29th November, 1983 the Defendant received from the insurers a cheque in the amount of £106,495.00 payable to the first named Plaintiff and the Defendant jointly. The sum was calculated as follows:-

7. The cheque was lodged by the Defendant to the account of the first named Plaintiff in reduction of his liabilities but without the first named Plaintiff endorsing the same. The Defendant notified the first named Plaintiff by letter dated 29th November, 1983 that this had been done. The first named Plaintiff had expected the cheque to come to him and had hoped to negotiate with the Defendant to have the same apportioned some of the proceeds of the insurance claim going in reduction of his liabilities and some to the first named Plaintiff himself to facilitate his trading and towards the provision of a family home. However the first named Plaintiff made no protest at the time. These proceedings were issued on the 24th November, 1997 some fourteen years and three months after the cheque was so applied by the Defendant. The substantive relief claimed therein and argued before me is essentially for damages for conversion. The Defendant in these circumstance in its defence relies upon the Statue of Limitations 1957. While no reply was delivered by the Plaintiffs, before me they sought to rely upon the provisions of the Statute of Limitations 1957 Section 71 and 72. The Defendant to its credit came to Court prepared to meet this case and did not seek to confine the Plaintiffs to their proceedings.

8. The Statute of Limitations in the relevant provisions provides for delayed commencement of the running of time as follows:-

9. Where the action is based on fraud or the right of action is fraudulently concealed.

10. Where the action is for relief from the consequences of mistake.

11. I have very careful considered the evidence adduced by the Plaintiffs. They failed to establish any basis for the plea of fraud, fraudulent concealment or mistake in that the first named Plaintiff had full knowledge of all the circumstances attending the Defendants conduct upon receipt by him of the letter from the Defendant dated 29th November, 1993 and the period of limitation runs from the date of receipt of that letter at the latest. In these circumstances the claim of the first named Plaintiff must fail as being statute barred. Accordingly I dismiss the claim of the first named Plaintiff.

12. The second named Plaintiff’s claim is on a different basis. I accept the evidence that she was the owner of the greater part of the contents of Toomona house. The settlement cheque insofar as it related to the contents was payable to the first named Plaintiff in trust for her the policy having been effected by the first named Plaintiff in trust for her to that extent:- See MacGillivray and Parkington sixth edition paragraph 150 et seq.. The trust is however one implied by law and not an express trust and accordingly time will run against the second named Plaintiff from the date of conversion: the plea of the statute raised by the Defendant must succeed as the provisions of Section 71 and 72 cannot be called in aid by her. The bank did not and could not reasonably be expected to avert to the possibility that the second named Plaintiff might have an interest in the proceeds of the contents insurance. In these circumstances a claim against the bank for knowing assistance of the first named Plaintiff’s breach of trust and knowing receipt of the second named Plaintiff’s share of the settlement cheque in breach of trust does not lie:

13. The pleadings raise a number of other issues:-

14. No evidence was adduced and other than to mention Article 40.3 no argument advanced as the manner in which it is alleged that the rights of the Plaintiffs have been infringed. I find that there has been no infringement of the rights of the Plaintiffs or either of them by the Defendant. Accordingly I dismissed the Plaintiffs’ claim.