Connolly v Casey

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Kelly
Judgment Date12 Jun 1998
Neutral Citation[1998] IEHC 90
Docket NumberNo. 1274P/1995

[1998] IEHC 90

THE HIGH COURT

No. 1274P/1995
CONNOLLY v. CASEY & FITZGIBBON

BETWEEN

KATRINA CONNOLLY
PLAINTIFF

AND

JAMES A. CASEY AND LAURA MURPHY TRADING UNDER THE STYLEAND TITLE OF CASEY AND MURPHY
DEFENDANTS

AND

MICHAEL FITZGIBBON
THIRD PARTY

Citations:

RSC O.16 r8(3)

CIVIL LIABILITY ACT 1961 S27(1)(b)

CIVIL LIABILITY ACT 1961 S27(1)

GOVERNORS OF ST LAURENCES HOSPITAL V STAUNTON 1990 2 IR 31

DILLON V MACGABHANN UNREP MORRIS 24.7.1995 1995/7/1991

MCELWAINE V HUGHES UNREP BARRON 30.4.1997

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

RSC O.16 r1(3)

REIDY V NATIONAL MATERNITY HOSPITAL UNREP BARR 31.7.1997 1998/10/2907

1

JUDGMENT of Mr. Justice Kellydelivered the 12th day of June 1998.

INTRODUCTION
2

The Defendants are solicitors who are being sued for damages for professional negligence. They have joined the Third Party to the proceedings. He is a barrister. The Defendants contend that if the Plaintiff is successful in her claim against them, they are entitled to be indemnified by the Third Party in respect of any damages and costs which may be awarded against them. Alternatively, they allege that they are entitled to a contribution from the Third Party in respect of any such damages and costs.

3

The Third Party brings this application " for an Order that the Third Party Notice issued on the 24th day of October 1997 in this matter be struck out". The correct application should be for an Order setting aside the Third Party proceedings pursuant toOrder16 Rule 8(3) of the Rules of the Superior Courts. I will treat this application as being one for such relief.

4

The basis upon which the Third Party seeks the Order is the alleged failure on the part of the Defendants to comply with the obligations imposed upon them by Section 27(1)(b) of the Civil Liability Act, 1961to serve the Third Party Notice upon him as soon as reasonablypossible.

THE PROCEEDINGS
5

This action was begun by the issue of a Plenary Summons on the 21st February, 1995. The Statement of Claim followed on the 3rd March, 1995. In it the Plaintiff alleges that she retained the Defendants as her solicitors in September 1990 to advise and act for her in the prosecution of a High Court action claiming damages for personal injuries against her former employer, namely, the Board of St. James's Hospital in Dublin. She alleges that the cause of action against those employers arose from incidents which took place when she was a trainee nurse at that hospital between July 1989 and December 1989. She complains that the Defendants negligently issued proceedings in the High Court against the Eastern Health Board. She says that they failed to serve the Plenary Summons upon that Board. She also says that they failed to issue proceedings within the statutory time against her true employer, which was not the Eastern Health Board but rather the Board of St. James's Hospital. She is now statute barred from bringing such proceedings against her employer.

6

Following the delivery of the Statement of Claim, no step was taken on behalf of the Defendants until the 14th March, 1996 when a Notice for Particulars was served on the Plaintiffs solicitors. That was a period of one year and two weeks following delivery of the Statement of Claim. Part of this delay is accounted for by the fact that theunderwritersindemnifying the Defendants did not confirm cover until the 30th June, 1995. The delay between that date and the service of a Notice for Particulars in March 1996 is explained in an Affidavit of EugeneO"Sullivan, sworn on the 15th May, 1998. He said:-

"This office served notice of change of solicitor in February 1996. The reason for the delay between the notification by the insurers that they were prepared to afford cover in June 1995 and the service of a notice of change of solicitor arose from apparent non-filing or misfiling of the insurer's fax instructing us to serve notice of change of solicitor".

7

Having come on record in February 1996, the Notice for Particulars was served in the following month. The relevant part of that Notice sought information as to the date upon which it was alleged the Plaintiff advised the Defendants of the identity of her employer against whom she wished her personal injuries action to be commenced. That Notice for Particulars was not responded to until January 1997 but meanwhile a number of important matters had occurred.

8

First, the Defendants delivered their defence on the 22nd April, 1996. Three pleas contained in it are relevant to this application. The first is set forth at paragraph 11 and reads as follows:-

"Without prejudice to the admissions and denials aforesaid, the Defendants plead that they caused the said Plenary Summons to be issued upon advices of Counsel for the purposes of stopping time running under the provisions of the Statute of Limitations. The issue of the said Summons was in no way intended to act as an acknowledgement that the Plaintiff ever had a valid cause ofaction in the first place. The nomination of the Eastern Health Board as the relevant Defendants was advised by Counsel, and the Defendants followed Counsel's advices on this point".

9

Paragraph 13 of the defence reads:-

"It is denied that the Defendants failed to issue proceedings within the statutory period of time against the appropriate party whether as alleged or at all. On the contrary, the Defendants caused proceedings to be issued against the Eastern Health Board upon the advices of Counsel in manner pleaded aforesaid".

10

Finally, paragraph 23 of the defence reads:-

"Without prejudice to the denials aforesaid pleaded, if which is denied, the Defendants have the alleged or any liability to the Plaintiff, the same was caused and occasioned by reason of negligence, and/or breach of duty on the part of Counsel whom they retained for the purposes of advising them in relation to protecting the Plaintiff (sic) said interests, and upon whose advices proceedings were instituted against the Eastern Health Board and not as against any otherdefendant".

11

The second development arose as a result of an exchange of correspondence between solicitors for the Plaintiff and the Defendants. In a letter of the 10th October, 1996 the Defendants" solicitors wrote, inter alia, as follows:-

"We would point out that in the current proceedings we issued a Notice for Particulars on 14th March, 1996 to which no replies have been received, some eight months later. Please state whether or not your client has supplied you with the details or not. It must be assumed that she has not. Replies to those particulars are very urgently awaited, and please note that a Motion to compel the delivery of these detailed replies will be applied for if satisfactory answers are not received within two weeks of the date hereof. ........

On the question of the joinder of Counsel as Third Parties by our clients, the position is that we have indicated in the defence, in particular in paragraphs 11 and 13 that the Eastern Health Board was named as the sole Defendant on Counsel's specific advice. Quite apart from the fact that our clients" retainer was to establish whether or not a cause of action existed (for which they required the detailed particulars which your client omitted to supply) our clients have expressly pleaded that in issuing the writ against the Eastern Health Board on Counsel's instructions, they acted as they should. The question of whether or not Counsel should be joined in the proceedings is accordingly a matter primarily for your client. We would refer you to our clients" letter to you of 5th September, 1994 and in particular to the third last paragraph thereof where reference is made to the briefing of Counsel for the purpose of issuing proceedings on Miss Connolly's behalf. Counsel directed that the Defendant should be the Eastern Health Board only, and advised that that title would besufficient".

12

That letter was responded to by the Plaintiffs solicitors on the 22nd October, 1996. Insofar as it is material, that letter read:-

"..... We note what you say about joint (sic) of Counsel to the proceedings.

We have specifically taken the matter up with Counsel and Senior Counsel who both advise that it is not a matter for our client to join Counsel she not having privity. You might note theposition".

13

The reply to the relevant part of the Notice for Particulars was furnished on the 14th January, 1997. I will reproduce it later in this judgment. It inter alia made it clear that although the first named Defendant had been given an outline of the Plaintiff's case, it was a Mr. James Murphy who was an associate of the Defendants to whom full and detailed instructions were given.

14

At this stage it is worth recording that the aforementioned James Murphy was, at the time of the institution of these proceedings, no longer in the employment of the Defendants, having moved to practice with a firm of solicitors in Co. Mayo.

15

The solicitor for the Defendants has sworn that he considered it essential to obtain a detailed statement from Mr. Murphy prior to the bringing of any application in relation to the Third Party. He wished to do that to "ensure that the basis of the application was wellfounded". He spoke with Mr. Murphy on the telephone in February 1996. He followed that up with a letter to him on the 4th March, 1996 asking him to confirm the circumstances of the involvement of the Third Party. He sent him a reminder by letter of the 15th March, 1996. As he did not receive a reply by the 26th March of that year, he requested the Defendants to use their good offices to secure a detailed statement of the circumstancesfrom Mr. Murphy. He again requested the Defendants to address this by letter dated the 16th April, 1996. On the same date he wrote a further letter to Mr. Murphy. That letter pointed out that Mr. Murphy had...

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