Coleman v Joyce
| Jurisdiction | Ireland |
| Judge | Mr. Justice Mark Heslin |
| Judgment Date | 16 February 2023 |
| Neutral Citation | [2023] IEHC 79 |
| Court | High Court |
| Docket Number | RECORD No 2018/8787p |
and
[2023] IEHC 79
RECORD No 2018/8787p
THE HIGH COURT
Third party – Joinder – Delay – Third party seeking to set aside a third party notice – Whether the defendant made the application for liberty to issue and serve the third party notice as soon as reasonably possible
Facts: The plaintiff, Ms Coleman, claimed damages for breach of retainer, negligence and breach of duty including breach of statutory duty. On 25 January 2021, a motion was issued pursuant to O. 16, r. 8 (3) of the Rules of the Superior Courts seeking to set aside a third party notice and order of 30 June 2020. The defendant, Mr Joyce, was expected to act as soon as reasonably possible in applying to join the third party. The third party, Mr Herron, was under an equivalent obligation to act with reasonable expedition insofar as bringing the application to set aside the third party notice. The High Court (Heslin J) asked at the commencement of the hearing whether the parties considered that the proper approach by the court was to, first, see if the third party had discharged its obligation and, if so satisfied, to then look at the position of the defendant. Rather than this ‘two-stage’ approach, both counsel suggested that all matters should be considered together, with both sides acknowledging that, if the court were to find that the third party had not moved with reasonable expedition, such a finding could provide a basis for refusing the third party’s application although the gravamen of the submissions, particularly from the third party, was that it would not automatically deny the third party the relief being sought.
Held by Heslin J that the delay period had been explained with reference to steps which were reasonable and necessary. He noted that the application to join the third party was, in effect, postponed until relevant lines of enquiry had been pursued and legal and commercial judgments made, as the correspondence which was issued by the defendant’s solicitor illustrated; thus, the postponement of a formal application to join the third party, to 24 February 2020, was reasonable and legitimate, given the particular facts of the case. In deciding whether the third party notice was served as soon as was reasonably possible, Heslin J considered, in objective terms, the whole circumstances and the general progress of the case and was entirely satisfied that the joinder of the third party was effected as soon as reasonably possible. Heslin J held that this was a situation where the rights and liabilities of the plaintiff, defendant, and third party, respectively, should be determined in a single set of legal proceedings, given that it was a single set of circumstances, and the roles played by each of those parties in a specific transaction which was at issue. This seemed to Heslin J to be a clear example of what the Oireachtas envisaged s. 27 of the Civil Liability Act 1961 would address, to avoid multiple different claims. In his view there was no legitimate basis upon which the Court could deprive the third party of the opportunity to participate in the main proceedings. Even if he was entirely wrong in his view that the defendant acted as soon as reasonably possible, Heslin J was entirely satisfied that the third party had not discharged the onus of demonstrating that he acted with the required expedition. Heslin J held that the third party failed to bring the application as soon as reasonably possible and, for that reason, he was not entitled to relief and the application must be dismissed.
Heslin J’s preliminary view was that there were no facts or circumstances which would merit a departure from the ‘normal’ rule that ‘costs’ should ‘follow the event’.
Application refused.
JUDGMENT of Mr. Justice Mark Heslin delivered on the 16th day of February, 2023
. On 25 January 2021 a motion was issued pursuant to O. 16, r. 8 (3) of the Rules of the Superior Courts (“RSC”) seeking to set aside a Third Party Notice and Order of 30 June 2020. The motion was grounded an affidavit sworn by the Third Party's solicitor, Mr James McElwee on 21 January 2021. A replying affidavit was sworn by Ms. Pauline Taaffe, solicitor for the Defendant, on 21 April 2021, to which Mr McElwee swore a replying affidavit.
. Section 27(1) of the Civil Liability Act, 1961 (the “1961 Act”) states:
“27.—(1) A concurrent wrongdoer who is sued for damages or for contribution and who wishes to make a claim for contribution under this Part—
(a) shall not, if the person from whom he proposes to claim contribution is already a party to the action, be entitled to claim contribution except by a claim made in the said action, whether before or after judgment in the action; and
(b) shall, if the said person is not already a party to the action, serve a third-party notice upon such person as soon as is reasonably possible and, having served such notice, he shall not be entitled to claim contribution except under the third-party procedure. If such third-party notice is not served as aforesaid, the court may in its discretion refuse to make an order for contribution against the person from whom contribution is claimed.”
. The 1961 Act does not prescribe any specific period within which an application to join a Third Party must be made. However, O. 16 of the Rules of the Superior Courts (“RSC”) which relate to “Third-Party Procedure” states the following:
“ 1. (1) Where in any action a Defendant claims as against any person not already a party to the action (in this Order called “the third-party”):
(a) that he is entitled to contribution or indemnity, or
(b) that he is entitled to any relief or remedy relating to or connected with the original subject matter of the action and substantially the same as some relief or remedy claimed by the Plaintiff, or
(c) that any question or issue relating to or connected with the said subject matter is substantially the same as some question or issue arising between the Plaintiff and the Defendant and should properly be determined not only as between the Plaintiff and the Defendant but as between the Plaintiff and the Defendant and the third-party or between any or either of them,
the Court may give leave to the Defendant to issue and serve a third-party notice and may, at the same time, if it shall appear desirable to do so, give the Third Party liberty to appear at the trial and take such part therein as may be just, and generally give such directions as to the Court shall appear proper for having any question or the rights or liabilities of the parties most conveniently determined and enforced and as to the mode and extent in or to which the third-party shall be bound or made liable by the decision or judgment in the action.
(2) The application for such leave shall be made by motion on notice to the Plaintiff. Unless the Plaintiff wishes to add the Third Party as a Defendant, his attendance at the hearing of the motion shall not be necessary. If he does attend, he shall not be entitled to costs except by special direction of the Court.
(3) Application for leave to issue the third-party notice shall, unless otherwise ordered by the Court, be made within twenty-eight days from the time limited for delivering the defence or, where the application is made by the Defendant to a counterclaim, the reply”. (Emphasis added).
. 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 27 is to avoid a multiplicity of legal proceedings arising from the same event or set of events.
(2) The obligation to move as soon as possible is imposed to avoid unnecessary delay to the progression of the Plaintiff's action (see Ryan P in Kenny v. Howard [2016] IECA 243). This principle is essentially about protecting the Plaintiff's position while at the same time ensuring that all appropriate parties are before the court.
(3) The court needs to examine the date at which it can be said that the Defendant had sufficient information to enable it to make an informed decision, based on appropriately researched advice as to whether a case for contribution can be made out.
(4) It is not appropriate to join any Third Party a Defendant considers “might” have such a liability. A Defendant must have been in possession of sufficient information to make the informed and advised judgment that such a cause of action is credible.
(5) Where the contribution claim arises from an allegation of professional negligence a factor to be taken into account is the long-established requirement that such an allegation is made and proceedings commenced only after first ascertaining that there are reasonable grounds for doing so. It is an abuse of process to commence professional negligence proceedings without having followed this course of action and, with certain exceptions, having first obtained an appropriate expert report to inform such a decision. (See Doyle v. Flemco, Mangan v. Dockery [2020] IESC 67, Ashford Castle Limited v. EJ Deacy Contractors and Maintenance Limited [2021] IEHC 549 and Connolly v. Casey (op cit).
(6) The court will be required to balance the statutory imperative in s.27(1) to move as soon as is reasonably possible against the duty of a party and its advisors to first obtain the necessary information and advice, including expert reports.
(7) It is not essential that perfection be achieved in terms of the analysis of a potential claim against a Third Party and account must be taken of the balance referred to in the preceding paragraph.
(8) An...
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