Connolly v Casey

• Jurisdiction: Ireland
• Judge: The Hon. Mrs. Justice Denham
• Judgment Date: 17 November 1999
• Neutral Citation: [1999] IESC 76
• Court: Supreme Court
• Docket Number: [S.C. No. 227 of 1998]
• Date: 17 November 1999

CONNOLLY v. CASEY & MURPHY T/A CASEY & MURPHY SOLICITORS

BETWEEN

KATRINA CONNOLLY

PLAINTIFF

AND

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

DEFENDANTS/APPELLANTS

AND

MICHAEL FITZGIBBON

THIRD PARTY/RESPONDENT

[1999] IESC 76

Hamilton, C.J.

Denham, J.

Keane, J.

Record No. 1274p/1995

227/98

THE SUPREME COURT

Synopsis

Practice and Procedure

Third party proceedings; setting aside; delay; defendant solicitors being sued for professional negligence; defence contained allegation of negligence on part of barrister; defendants joined barrister to proceedings as third party; whether delay in issuing and serving third party notice unreasonable; test for determining whether delay unreasonable; Order 16 rule 8(3) Rules of the Superior Courts, 1986; s.27(1)(b) Civil Liability Act, 1961.

Held: In considering whether third party notice was issued and served as soon as reasonably possible, court should consider the whole circumstances of the case and its general progress; delay not unreasonable; appeal allowed.

Connolly v. Casey - Supreme Court: Hamilton C.J., Denham J., Keane J. - 17/11/1999 - [2000] 1 IR 345 - [2000] 2 ILRM 226

The plaintiff had instituted proceeding against solicitors for alleged negligence. The solicitors had joined a barrister as a third party. On an application by the third party the High Court set aside the third party notice for the failure by the defendants to serve the third party notice as soon as reasonably possible. The defendants appealed against the order. The Supreme Court held that in general that it was desirable that third party actions are dealt with as part of the main action. In the case in question the delays that had occurred in joining the third party were not on the whole unreasonable and therefore allowed the appeal against the dismissal of the third party action.

Citations:

RSC O.16 r8(3)

CIVIL LIABILITY ACT 1961 S27(1)(b)

CIVIL LIABILITY ACT 1961 S27(1)(a)

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

COOKE V CRONIN & NEARY UNREP SUPREME 14.7.1999 1999/5/1117

GILMORE V WINDLE 1967 IR 323

1 Judgment of The Hon. Mrs. Justice Denhamdelivered the 17th day of November, 1999

2 This is an appeal by the defendants/appellants (hereinafter referred to as "the defendants") from the Order of the High Court (Mr. Justice Kelly) made on 12th June, 1998, and perfected on 23rd July, 1998, which granted the third party's application for an Order setting aside the third party proceedings issued herein.

Facts

3 The defendants, who are solicitors, are being sued by the plaintiff for professional negligence. The defendants joined the third party, who is a barrister. The third party brought an application (which in its correct form was) to set aside the third party proceedings pursuant to Order 16 Rule 8(3) of the Rules of the Superior courts. The basis for setting aside the third party application was the alleged failure by the defendants to comply with the obligations imposed upon them by the Section 27(1)(b) of the Civil Liability Act, 1961, to serve the third party notice as soon as reasonably possible.

4 The Plenary Summons was issued on 21st February, 1995. The statement of claim was delivered on 3rd March, 1995. On the 16th February, 1996, there was notice of change of solicitor. On 14th March, 1996 the solicitor for the defendants sought further and better particulars. On 22nd April, 1996 the defence was delivered. On 14th January, 1997, the solicitors for the plaintiff replied to the request for particulars. On 6th February, 1997, there was a notice of trial. (In fact there was a second notice of trial on 13th January, 1998.) On 7th April, 1997 the affidavit was sworn grounding the motion seeking liberty to issue and serve a third party notice on the third party. On 25th July, 1997, the motion seeking liberty to issue and serve third party proceedings was issued. On 20th October, 1997, the High Court (Kinlen, J.) ordered that the defendants be at liberty to issue and serve a third party noticeherein on Michael Fitzgibbon, the proposed third party. On the 19th January, 1998 an appearance was entered for the third party. On 21st January, 1998 the motion seeking relief for the third party, determined by the High court to be the relief of setting aside the third party notice, was issued. On 12th June, 1998, the High Court (Kelly, J.) set aside the third party notice. It is against that order that the appeal has been brought.

Submissions

5 Counsel on behalf of the defendants, Mr. Paul Gallagher, S.C., submitted that there were two net points on the appeal. The first matter was whether the third party notice was served "as soon as is reasonably possible". I will address this matter first as it was the basis for the High Court decision.

THE LAW

6 Order 16 Rule 8(3) of the Rules of the Superior Courts states:

"The third-party proceedings may at any time be set aside by theCourt."

7 Section 27(1) of the Civil Liability Act, 1961, states:

8 2 "(1) A concurrent wrongdoer who is sued for damages or for contribution and who wishes to make a claim for contribution under thisPart-

9 (a) shall not, if the person from whom he proposes to claim contribution is already a party to the action, be entitled toclaim contribution expect by a claim made in the said action, whether before or after judgment in the action; and

10 (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 reasonablypossible 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."

11 (The underlining is added for emphasis.)

12 The case is grounded on s.27(1)(b). In Board of Governors of St. Laurence's Hospital v. Staunton [1990] 2 IR 31 at p.36 Finlay, C.J., said of s.27(1)(b):

"I am quite satisfied upon the true construction of that sub-section that the only right of a third-party notice contemplated by it and, therefore, the only right of a person to obtain from the High Court liberty to serve a third-party notice claiming contribution against a person who is not already a party to the action, is a right to serve a third-party notice as soon as is reasonably possible."

13 In the High Court the learned trial judge state:

"The net question which I have to decide in the present case in whether the service of the Third party Notice in the instant case was effected as soon as was reasonably possible."

14 The learned trial judge analysed several periods of delay. The first was that between the delivery of the claim on 3rd March, 1995, and thedefendants" underwriters confirming they were on cover. I agree with his conclusion that thisdelay could not be regarded as unreasonable. The next period of delay was between that decision on 30th June, 1995 of the underwriters and service of a notice for particulars on 14th March, 1996. The explanation was one of human error and the learned trial judge held that whilst the delay was significant it did not in all the circumstances appear unreasonable. I am in agreement with his conclusion. Thus the next alleged delay falls to be considered.

15 The defence was delivered on 22nd April, 1996. It had pleas in it making it clear that the defendants were alleging negligence...