Boland v Dublin City Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Hardiman
• Judgment Date: 15 October 2002
• Neutral Citation: [2002] IESC 69
• Date: 15 October 2002
• Court: Supreme Court
• Docket Number: [S.C. No. 304

BOLAND v. DUBLIN CORPORATION, DAVID MAYRS LTD & COLOURMAN (INTERNATIONAL) LTD

Between:

JOHN BOLAND

Plaintiff

and

THE RIGHT HONOURABLE THE LORD MAYOR ALDERMEN andBURGESSES of DUBLIN

Defendant/Appellant

and

(by Order of the Court) David MayrsLimited

First named Third Party/Respondent

and

COLOURMAN (INTERNATIONAL) LIMITED

Second named Third Party/Respondent

[2002] IESC 69

Murphy J.

McGuinness J.

Hardiman J.

304/00

THE SUPREME COURT

Synopsis:

TORT

Personal injuries

Application to set aside third party notice - Delay - Time for bringing application - Whether application brought as soon as reasonably possible - Whether third party notice should be set aside - Civil Liability Act 1961 (No 41), section 27 - Rules of the Superior Courts, 1986 Order 16, rules 1 and 8 (304/2000 - Supreme Court - 15/10/2002)

Boland v Dublin Corporation - [2002] 4 IR 409 - [2003] 1 ILRM 172

Facts: the plaintiff's claim was for damages for personal injuries. The defendant joined the third parties to the action sating that the location of the accident was adjacent to a broken fence the property of and was supposed to be maintained by them. Seventeen months elapsed between the service of the third party notice and the issue of the first third parties motion to set it aside, during which the third party made no objection to the procedure adopted by the defendant. The High Court directed that the third party notice as against the first third party be set aside. The defendant appealed that order.

Held by Hardiman J ( Murphy and McGuinness JJ concurring) in allowing the appeal that the application was based on the proposition that the first named third party, as occupier of its premises, was a concurrent wrongdoer. That being so, the entitlement to issue and serve a third party notice was governed by section 27(1) of the Civil Liability Act, 1961 which provides that a third party notice is to be served as soon as is reasonably possible. Under Order 16, rule 8(3) of the Rules of the Superior Courts, 1986 third party proceedings may be set aside by the court. The statutory requirement to move for liberty to issue a third party notice as soon as reasonably possible should be regarded as applying also to the bringing of an application to set aside such a notice and just as the onus of justifying any delay in seeking liberty to issue third party notice devolves on the defendant, the onus of justifying delay in bringing the motion to set it aside devolves on the third party. Since the first named third party failed to demonstrate that its motion had been brought as soon as reasonably possible, the application had to fail.

Citations:

CIVIL LIABILITY ACT 1961 S27(1)

RSC O.16 r1(III)

SFL ENGINEERING LTD V SMYTH CLADDING SYSTEMS UNREP KELLY 9.5.1997 1998/10/2952

RSC O.16 r8(3)

BOARD OF GOVERNORS OF ST LAWRENCES HOSPITAL V STAUNTON 1990 2 IR 31

CIVIL LIABILITY ACT 1961 S27(1)(B)

WARD V O'CALLAGHAN & ORS UNREP MORRIS 2.2.1998 1998/33/13026

CARROLL V FULFLEX INTERNATIONAL CO LTD & COMBINED FREIGHT SERVICES LTD UNREP MORRIS 18.10.1995 1995/16/4181

DILLON V MACGABHANN UNREP MORRIS 24.7.1995 1995/7/1991

TIERNEY V SWEENEY & ANOR UNREP MORRIS 18.10.1995 1995/21/5643

GROGAN V FERRUM TRADING CO LTD 1996 2 ILRM 216

1 JUDGMENT of Mr. Justice Hardimandelivered the 15th day of October,2002.

2 This is an appeal by Dublin Corporation, the Defendant in the original action, against the Order of the High Court (O'Higgins J.) made the20 ^th November, 2000. The High Court directed that the Third Party Notice as against the First Named Third Party be set aside.

3 The application to set aside the Third Party Notice was heard on affidavit, that of Mr. Daniel Oliver Leahy for the First Named Third Party and that of Ms. Deborah Ryan for the Defendant. From these affidavits it emerges that the Plaintiff's claim is for damages for personal injuries arising out of an accident alleged to have occurred on the 3 ^rd December, 1993. On the 16 ^th November, 1995 the Plaintiff's solicitors intimated a claim against the Defendants. It appears from the Statement of Claim that the Plaintiff says that he was walking along the public highway at Broombridge Road, Cabra, Dublin when he fell. He claims the fall was due to "the presence of an unreasonable danger and a concealed danger in the nature of a trap, namely a broken down and poorly repaired and reinstated area of the footpath with both raised and damaged/lowered sections"whereby he was caused to trip and fall sideways into a fence.

4 The Plaintiff issued a plenary summons on the 23 ^rd September, 1996. An appearance was entered on the 3 ^rd October of that year, the Statement of Claim was delivered on the 19 ^thJanuary, 1998 and a Noticeof intention to Proceed was delivered on the 5 ^th May, 1998. The Defendant raised a Notice for Particulars on the 17 ^thJune, 1998 and replies were delivered on the 23 ^rd July, 1998. The Defence was delivered on the 11 ^th August, 1998. Prior to this exchange of pleadings the Defendant had received from the Plaintiff's solicitors photographs of the alleged location of the accident. These were received on the 7 ^th December, 1995. The Corporation say that the location of the accident "appears to be adjacent to a broken down chain linked fence" which it believes "was the property of and was supposed to be maintained by the Third Parties, one or other or both ofthem".

5 Accordingly, by letter dated the 26 ^th November, 1998 the Defendant wrote to the First Named Third Party informing it of the intention of the Corporation to join it as a Third Party. On the8 ^th February, 1999 the High Court granted liberty to issue and serve the Third Party Notice. This document was actually served on the 11 ^th February, 1999. On the 22 ^nd March, 1999 the First Named Third Party entered an appearance and required delivery of a statement of claim. On the 4 ^th August, 1999 the First Named Third Party issued a Motion to compel delivery of a Third Party Statement of Claim. This pleading was delivered on the 9 ^thAugust, 1999. On the 17 ^th August, 1999 the Third Party raised particulars arising out of the Third Party Statement of Claim.On the 11 ^th October, 1999 the Defendant replied...