Delay And The Joining Of Professionals As Third Parties To Irish Litigation

Author:Mr Garrett Moore and Fiona Moriarty
Profession:Clyde & Co
 
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Section 27(1)(b) of the Civil Liability Act 1961 requires the joinder of relevant third parties to existing Irish Court proceedings "as soon as is reasonably possible". Given the frequency with which professionals, whether solicitors, accountants, insurance brokers or otherwise, are joined to proceedings via Third Party Notices, judicial interpretation of the meaning of s27 is of considerable importance to both the professional in question and his/her professional indemnity insurer.

Applications are regularly brought before the Courts by professionals seeking to strike out Third Party Notices on grounds of delay contrary to s27. One of the most recent is the decision in Buchanan v BHK Credit Union Limited et al [2013] IEHC 439, which is considered below.

In short, however, the overriding guidance from recent judgments is that:

(i) "as soon as is reasonably possible" is a relative concept, such that in construing it the Court will have regard to all the circumstances of the case

(ii) Where delay is alleged regarding the joiner of a third party professional, the Courts are cognisant of the general need for parties to take particular care before issuing proceedings against professionals as a class. Given that an expert report supporting such a claim is a prerequisite to the issuing of proceedings against a professional (Cooke v Cronin [1999] IESC 54), professionals necessarily face a more difficult task than would ordinarily be the case when seeking to strike out orders joining them as Third Parties on grounds of claimant delay

We set out three recent cases on the issue, below.

Ronald Robins v Terrence Coleman, Anita Coleman, Agulhas Resources Inc, Pierse Construction, Charlie Donnelly and Mark Turpin trading as Donnelly Turpin Architects and O'Connor Sutton Cronin & Associates Limited [2009] IEHC 486

The plaintiff and the first and second defendants owned adjoining terraced properties. The plaintiff sued for damage caused to his home as a result of works carried out by the said defendants on their adjoining property. The two defendants joined Pierce Construction (the Builder) and Donnelly Turpin Architects (the Architect) as third parties in December 2006, with the plaintiff subsequently also joining them as fourth, fifth and sixth defendants in June 2007.

The Builder and Architect subsequently sought to join the structural engineer, O'Connor Sutton Cronin & Associates (the Engineer), as a third party on the basis that the Engineer was negligent in advising on the structural integrity of the terrace of houses. The Engineer brought a motion to set aside February and May 2009 Orders (in favour of the Builder and Architect respectively) joining the Engineer as a Third Party. The Engineer's motion was on grounds that the applications had not been brought "as soon as is reasonably possible" under s27 given that:

(i) The works on the property commenced in 2001

(ii) Proceedings were initially issued by the plaintiff in January 2005

(iii) The Builder and Architect had been named as co-defendants in the proceedings in June 2007, almost two years previously

Despite the ostensibly significant delay of 18 months/ two years between the Builder and Architect becoming co-defendants in the proceedings and their respective applications to join the Engineer, the High Court refused to strike out the Third Party Orders. The Court stated by way of general principle that:

(i) Insofar as s27(1)(b) speaks of an obligation on a defendant to serve a Third Party Notice within a period of time, the word "reasonably" must, in the first instance, refer to the defendant's conduct and point of view. In construing the word "reasonably", the Court is not primarily concerned with the Third Party's viewpoint

(ii) The Court is entitled to review the delay and examine whether the defendant's explanation is one which entitles accommodation within the statutory concept of "as...

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