Avoncore Ltd T/A Douglas Village Shopping Centre v Leeson Motors Ltd
| Jurisdiction | Ireland |
| Judge | Mr. Justice Quinn |
| Judgment Date | 07 July 2022 |
| Neutral Citation | [2022] IEHC 415 |
| Court | High Court |
| Docket Number | [Record No. 2020/2194 P] |
and
and
and
[2022] IEHC 415
[Record No. 2020/2194 P]
THE HIGH COURT
COMMERCIAL
Third party notices – Liability – Civil Liability Act 1961 s. 27 – Third parties seeking to set aside the third party notices served on them – Whether the third parties were joined as soon as was reasonably possible
Facts: Ms Mohsen, on 31 August 2019, went shopping at the Douglas Village Shopping Centre in Douglas, Cork. She drove her Opel Zafira vehicle to the centre and parked on Level 2 of the car park, situated above the shopping centre. While she was still in the vehicle, she noticed smoke emerging from the bonnet. She got out of the vehicle and telephoned her husband and asked him to come and assist her. In the meantime, she decided to go down to the shopping centre on the lower level with a view to seeking help. As she was doing so, the vehicle burst into flames, causing a fire which quickly spread and caused damage to adjoining vehicles, to the car park itself and to the shopping centre beneath. So extensive was the damage that the centre was closed for trade for over a year to facilitate demolition and renovation works. Arising from those events, the plaintiffs, Avoncore Ltd and Canmont Ltd, the owners of the centre, sued the defendants, Lesson Motors Ltd, Adam Opel GmbH, Opel Automobile GmbH and Vauxhall Motors Ltd, the manufacturers and designers of the Opel Zafira. The defendants joined the second and third third parties, Michael N. Slattery and Associates Ltd and Mr Slattery, the fire safety consultants retained by the owners when the centre was refurbished in 2007-2009 and for its reconstruction after the fire. The third parties denied liability. They also said that they were not joined as soon as was reasonably possible, as required by s. 27(1)(b) of the Civil Liability Act 1961 and on that ground they applied to the High Court to set aside the third party notices served on them.
Held by Quinn J that in all the circumstances of the case, including the overall state of its progress, the third party notices were served as soon as was reasonably possible, and that the purpose and policy of the 1961 Act would not be fulfilled if the notices were set aside.
Quinn J held that the application of the second and third third parties would be dismissed.
Applications dismissed.
JUDGMENT of Mr. Justice Quinn delivered on the 7 th day of July 2022
. On 31 August 2019, Ms. Nagham Mohsen went shopping at the Douglas Village Shopping Centre in Douglas, Cork. She drove her Opel Zafira vehicle to the centre and parked on Level 2 of the car park, situated above the shopping centre. While she was still in the vehicle, she noticed smoke emerging from the bonnet. She got out of the vehicle and telephoned her husband and asked him to come and assist her. In the meantime, she decided to go down to the shopping centre on the lower level with a view to seeking help. As she was doing so, the vehicle burst into flames, causing a fire which quickly spread and caused damage to adjoining vehicles, to the car park itself and to the shopping centre beneath.
. So extensive was the damage, that the centre was closed for trade for over a year to facilitate demolition and renovation works.
. Arising from those events, the owners of the centre are suing the manufacturers and designers of the Opel Zafira. The defendants have joined the Second and Third Named Third Parties, who were the fire safety consultants retained by the owners when the centre was refurbished in 2007 – 2009 and for its reconstruction after the fire. The Third Parties deny liability. They also say that they were not joined as soon as was reasonably possible, as required by s.27 (1)(b) of the Civil Liability Act 1961 and on that ground they have applied to set aside the Third Party Notices served on them.
. I have concluded that in all the circumstances of this case, including the overall state of its progress, the Third Party Notices were served as soon as was reasonably possible, and that the purpose and policy of the Act would not be fulfilled if the Notices were set aside. Accordingly, the application of the Second and Third Named Third Parties will be dismissed.
. The plaintiffs are the owners and operators of the shopping centre, which I shall refer to as “the Property”. I shall refer to the plaintiffs as “the Owners”.
. The first named defendant distributes and sells Opel motor vehicles in Ireland, which are manufactured by the second named defendant. In 2006, the first named defendant sold the car which was later purchased by Mrs. Mohsen. She purchased it in June 2014. In this judgment I refer to Mrs. Mohsen by name or as “the driver”.
. The second named defendant is incorporated in Germany and is the manufacturer and designer of the Opel Zafira B model, manufactured between 2005 and 2014, including Mrs. Mohsen's car.
. The third named defendant is also incorporated in Germany. It is engaged in recall campaigns and monitoring for potential risks in Opel vehicles and making decisions where necessary to mitigate risks in Opel vehicles.
. The fourth named defendant is incorporated in the UK. It has responsibility for the conduct and management of recalls of Zafira B vehicles in the UK and provided guidance to the first defendant in relation to the recall of Zafira B vehicles in Ireland.
. In this judgment, the first, third and fourth named defendants are referred to as the “Opel Defendants”. The second defendant is referred to as “Adam Opel”.
. The Second Named Third Party is a firm providing fire safety consultancy services for the design, construction and operation of buildings. The Third Named Third Party founded the Second Named Third Party in 1988. He makes the point that he never provided any service of any kind to the owners in his personal capacity and that he does not know why he personally has been named as a party. The Opel Defendants have accepted this point and discontinued their proceedings as against him. In this judgment I shall use the abbreviation “MSA” to refer to the Second and Third Named Third Parties.
. The plaintiffs claim that the Zafira B model sold in Ireland in 2006, including Mrs. Mohsen's car, was manufactured and designed with a defective heating and ventilation system. They claim that the defects had the result that under certain conditions components of the heating and ventilation system can fail to operate as expected and result in fires. It is said the design of the Zafira B was such that certain parts were susceptible to corrosion which created a very serious fire risk in that model.
. It is alleged that in 2015 there was a sudden increase in fires involving the Zafira B. It is alleged that the defendants were slow in investigating these fires and that only in late 2015 did the defendants initiate a recall of the Zafira B.
. Mrs. Mohsen was notified of the first recall and responded by attending at the first defendant's authorised dealer in Cork on 14 December 2015. Certain works were carried out.
. Further recalls were issued by the defendants in May 2016 and in June 2019.
. The plaintiffs allege that Mrs. Mohsen was not notified of the second or third recall and that there were flaws in the manner of communication of those recalls.
. The plaintiffs allege that the defendants knew or ought to have known that they had not properly ascertained all the causes of fires affecting the Zafira B models. It is alleged that they therefore failed to take adequate steps to notify all owners and failed to undertake a proper public campaign.
. The plaintiffs say that when Mrs. Mohsen went to the property on 31 August 2019, she did so unaware of these defects and of any danger.
. The plaintiffs say that the fire which occurred on 31 August 2019 was caused by the defective manufacture of the vehicle and that the damage resulting from the fire was occasioned by the negligence and/or breach of duty of the defendants in the design and manufacture of the car and in the design and implementation of the recall campaigns.
. The plaintiffs also allege that the defendants knowingly or recklessly exposed owners and drivers of Zafira B models and members of the public to a risk of fire and exposed the property of owners of property adjacent to the parked vehicle to a risk of fire damage. On this ground the plaintiffs seek aggravated and/or exemplary damages arising out of what they allege is the defendants' deliberate and/or reckless conduct.
. An amended statement of claim was delivered on 23 June 2021 in which the plaintiffs add claims for indemnity and contribution pursuant to the provisions of the Civil Liability Act 1961 in respect of any damages or costs which they may be held liable to pay to the plaintiffs in a series of other proceedings, notably the retail tenants of the centre, in the “Callistoy” proceedings referred to below.
. Full defences have been delivered on behalf of all of the defendants.
. A number of particular pleas are made by reference to individual defendants, but the essence of the defence may be summarised as followed.
. It is denied that the Zafira B was manufactured and designed with a defective heating, ventilation and air conditioning system, or that its manufacture or design created a fire risk.
. The defendants say that a joint investigation in respect of the...
To continue reading
Request your trial
-
Coleman v Joyce
...reply”. (Emphasis added). Legal Principles 4 . In the recent judgment of this court in Avoncore Ltd. & Ors. v. Leeson Motors Ltd & Ors [2022] IEHC 415, Quinn J. set out certain relevant principles with respect to an application to join a Third Party, as follows: “(1) The purpose of Section ......