Bowen v H & M Hennes & Mauritz [Ireland] Limitd

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 30 November 2022
• Neutral Citation: [2022] IEHC 658
• Court: High Court
• Docket Number: 2021 No. 204 CA

Between

Mia Bowen

Plaintiff

and

H & M Hennes & Mauritz (Ireland) Ltd

Defendant

Otis Elevator Ireland Ltd

Third-Party

[2022] IEHC 658

2021 No. 204 CA

THE HIGH COURT

CIRCUIT APPEAL

Personal injuries – Third-party notice – Delay – Third-party seeking to set aside the third-party notice – Whether the defendant failed to serve the third-party notice as soon as reasonably possible

Facts: The plaintiff, Ms Bowen, had been employed by the defendant, H & M Hennes & Mauritz (Ireland) Ltd, as a sales assistant at its retail premises at Opera Lane, Cork. Her claim for personal injuries arose out of a work-related incident on 11 October 2016 whereby she had been trapped for a period of time in a lift or elevator on the premises. The pleaded case was that she had been severely shocked and distressed by the incident, had suffered anxiety in the weeks thereafter and had developed pain in her hip and her back. She had been on illness benefit for a period of six months following the incident. The defendant entered an appearance on 29 May 2019, having raised a notice for particulars on 27 May 2019. The plaintiff replied to the notice for particulars on 10 September 2019. The defendant did not deliver its defence until 20 November 2020, some fourteen months after it had received the replies to its notice for particulars. The plaintiff then purported to serve a notice of trial on 11 December 2020. This notice was treated as invalid and she served a notice of intention to proceed before serving a fresh notice of trial on 23 March 2021. The defendant eventually issued a motion, on 10 May 2021, seeking leave to serve a third-party notice. That application was allowed by the County Registrar on 15 June 2021. The third-party, Otis Elevator Ireland Ltd, subsequently issued a motion seeking to set aside the third-party notice on the grounds of delay on 28 September 2021. That application was refused by a Judge of the Circuit Court on 2 December 2021. The third-party filed an appeal against that refusal on 13 December 2021. The appeal ultimately came on for hearing before the High Court (Simons J) on 14 November 2022. In the interim, the main proceedings were compromised. The proceedings were struck out with an order for costs in favour of the plaintiff on 22 February 2022.

Held by Simons J that the defendant failed to serve the third-party notice as soon as reasonably possible. He noted that the main action consisted of a very straightforward claim for personal injuries arising out of the malfunctioning of a lift at the defendant’s retail premises. He found that it would have been immediately obvious from the circumstances of the claim that some consideration would have to be given by the defendant to whether the company, which had been responsible for the servicing and maintenance of the lift, might have some liability for it malfunctioning. He held that, against that background, the failure to issue a motion for leave to serve a third-party notice within two to three months of the receipt of the plaintiff’s replies to particulars was, arguably, unreasonable. He noted that a period of some six months had already elapsed at that stage since the service of the proceedings. He held that the cumulative delay of twenty months thereafter was entirely unreasonable; that delay consisted of a delay of fourteen months in delivering a defence and a further delay of six months in issuing the motion for leave to serve a third-party notice.

Simons J held that the appeal against the Circuit Court order of 2 December 2021 would be allowed, the order would be vacated, and an order would be made in lieu setting aside the third-party proceedings. As to costs, his provisional view was that the third-party, having been “entirely successful” in its application to set aside the third-party proceedings, was entitled to recover its costs against the defendant. He held that the proposed costs order would include the costs above and below.

Application granted.

Appearances

Eamon Marray for the Third-Party instructed by Kennedy Solicitors LLP

Kevin Callan for the Defendant instructed by Ennis & Associates LLP

JUDGMENT of Mr. Justice Garrett Simons delivered on 30 November 2022

INTRODUCTION

1 This judgment is delivered in respect of an application to set aside third-party proceedings on the grounds of delay. The matter comes before the High Court by way of an appeal from the Circuit Court.

PROCEDURAL HISTORY

2 These proceedings take the form of a personal injuries action arising out of a work-related incident on 11 October 2016. The injured party, the Plaintiff, had been employed by the Defendant as a sales assistant at its retail premises at Opera Lane, Cork. The injured party's claim for personal injuries arises out of an incident whereby she had been trapped for a period of time in a lift or elevator on the premises. The pleaded case is that the injured party had been severely shocked and distressed by the incident; had suffered anxiety in the weeks thereafter; and had developed pain in her hip and her back. The injured party had been on illness benefit for a period of six months following the incident.

3 The personal injuries proceedings were, initially, pursued with reasonable expedition by the parties. The Defendant entered an appearance on 29 May 2019, having raised a notice for particulars on 27 May 2019. The Plaintiff replied to the notice for particulars on 10 September 2019.

4 Thereafter, the proceedings stalled. The Defendant did not deliver its defence until 20 November 2020, that is, some fourteen months after it had received the replies to its notice for particulars. The Plaintiff then purported to serve a notice of trial on 11 December 2020. This notice seems to have been treated as invalid and the Plaintiff served a notice of intention to proceed before serving a fresh notice of trial on 23 March 2021.

5 The Defendant eventually issued a motion, on 10 May 2021, seeking leave to serve a third-party notice. This application was allowed by the County Registrar on 15 June 2021. The Third-Party subsequently issued a motion seeking to set aside the third-party notice on 28 September 2021. This application was refused by a Judge of the Circuit Court on 2 December 2021. The Third-Party filed an appeal against this refusal on 13 December 2021. The appeal ultimately came on for hearing before me on 14 November 2022.

6 In the interim, the main proceedings, i.e. the personal injuries action, were compromised. The proceedings were struck out with an order for costs in favour of the Plaintiff on 22 February 2022. I have not been informed of the settlement amount.

CHRONOLOGY

7 The chronology of the proceedings is summarised in tabular form below:

11 October 2016	Date of incident
18 July 2018	Letter of claim
9 January 2019	PIAB authorisation
28 March 2019	Personal Injuries Summons
16 May 2019	Summons served on Defendant
27 May 2019	Defendant's notice for particulars
29 May 2019	Appearance entered by Defendant
10 September 2019	Replies to notice for particulars
20 November 2020	Defence delivered
11 December 2020	Notice of trial
19 February 2021	Notice of intention to proceed
23 March 2021	Notice of trial
10 May 2021	Motion to join third-party issued
15 June 2021	Order joining Third-party (County Registrar)
29 June 2021	Third-party notified of proceedings
28 September 2021	Motion to set aside third-party notice is issued
2 December 2021	Circuit Court Order refusing to set aside
13 December 2021	Notice of appeal to High Court
22 February 2022	Personal injuries claim compromised
14 November 2022	Hearing of appeal by High Court

SECTION 27 OF THE CIVIL LIABILITY ACT 1961

8 Section 27 of the Civil Liability Act 1961 provides that a defendant, who wishes to make a claim for contribution, must serve a third-party notice as soon as is reasonably possible.

9 The principal objective of the third-party procedure is to simplify litigation and to avoid a multiplicity of actions by allowing the main proceedings and the third-party proceedings to be heard together by the same judge. ( Connolly v. Casey [1999] IESC 76; [2000] 1 I.R. 345, citing Gilmore v. Windle [1967] I.R. 323). That does not necessarily mean that all the issues have to be dealt with simultaneously; that may depend on appropriate orders as to the time and mode of trial of the various issues. ( Kenny v. Howard [2016] IECA 243).

10 The underlying policy of the legislation is to put the third-party in as good a position as possible in relation to knowledge of the claim and the opportunity of investigating it. A defendant cannot seek to justify a delay by seeking to establish that the third-party has not been prejudiced. A third-party who seeks to set aside a third-party notice is not required to go beyond establishing that the notice was not served as “ soon as reasonably possible” and is not required to show that he has been prejudiced. ( Susquehanna International Group Ltd v. Execuzen Ltd [2022] IECA 209).

11 The corollary to the statutory obligation upon a defendant to serve a third-party notice as soon as is reasonably possible is a right, on the part of the third-party, to have the third-party proceedings set aside if they were not so served. ( Susquehanna International Group Ltd v. Execuzen Ltd [2022] IECA 209).

12 The onus is on the defendant, who has joined a third-party, to explain and justify any delay. In assessing delay, the court will have regard to the fact that third-party proceedings should not be instituted without first assembling and examining the relevant evidence and obtaining appropriate advice thereon. However, the quest for certainty or verification must be balanced against the statutory obligation to make the appropriate application as...