Edmond and Jacqueline Moloney (plaintiffs v Brendan Liddy and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 01 June 2010
• Neutral Citation: [2010] IEHC 218
• Court: High Court
• Date: 01 June 2010

Moloney v Liddy & Ors (t/a Hughes & Liddy Solicitors)

BETWEEN

EDMOND MOLONEY AND JACQUELINE MOLONEY

PLAINTIFFS

AND

BRENDAN LIDDY, NICHOLAS HUGHES, BRIAN ROE PRACTISING UNDER THE STYLE AND TITLE OF HUGHES AND LIDDY, SOLICITORS

DEFENDANTS

AND

KENNETH MEEHAN AND JW LEVINS, PRACTISING AS MEEHAN LEVINS PARTNERSHIP AND MEEHAN LEVINS PARTNERSHIP LIMITED

THIRD PARTIES

[2010] IEHC 218

[No. 3119 P/2009

THE HIGH COURT

PRACTICE AND PROCEDURE

Third party proceedings

Abuse of process - Original proceedings against third party statute barred - Renewed plenary summons set aside - Whether abuse of process to join third party where original claim against that party statute barred - Whether application to join third party can be brought outside limitation period - Wallace v Litwiniuk (2001) ACBA 118 and Royal Brompton Hospital NHS Trust v Hammond [2002] UKHL 14, [2002] 1 WLR 1397 approved - Civil Liability Act 1961 (No 41), s 31 - Third party claim dismissed (2009/3119P - Clarke J - 1/6/2010) [2010] IEHC 218

Moloney v Liddy

TORT

Concurrent wrongdoers

Third party - Same damage - Delay in serving plenary summons - Loss of opportunity - Whether loss of opportunity equates to same damage - Wallace v Litwiniuk (2001) ACBA 118 and Royal Brompton Hospital NHS Trust v Hammond [2002] UKHL 14, [2002] 1 WLR 1397 approved - Civil Liability Act 1961 (No 41), s 31 - Third party claim dismissed (2009/3119P - Clarke J - 1/6/2010) [2010] IEHC 218

Moloney v Liddy

Facts The plaintiffs had sought to engage a firm of architects to design a house. Difficulties ensued and subsequently the plaintiffs brought legal proceedings against the architects. There was a delay in the serving of the original plenary summons such that the original proceedings were struck out. The plaintiffs then brought proceedings against their solicitors (the defendants) seeking damages arising out of the delay in serving the summons. The defendants then sought to join the architects as third parties contending that they were concurrent wrongdoers seeking a contribution pursuant to section 21 of the Civil Liability Act, 1961. The architects sought to have the third party proceedings dismissed on the basis that the architects and the solicitors were not concurrent wrongdoers in respect of the same damage as understood in the Civil Liability Act, 1961. In addition it was contended that the third-party proceedings constituted an abuse of process in circumstances where the issues as against the architects had already been dismissed. It was also submitted that the 'same damage' as appeared in the Civil Liability Act, 1961 were not one and the same between the parties. The damage that the plaintiffs may have suffered as against the solicitors related to the loss of opportunity to bring proceedings whilst as against the architects (which proceedings had been dismissed) the damage related to the alleged defects in the dwelling house as designed by the architects.

Held by Clarke J in dismissing the third-party proceedings. There was a real, substantial and significant difference between the nature of the damages as and between the two types of cases. One related to damages caused by an actual original wrongful event on the part of the original contemplated defendant (the architects). The other related to damages for the loss of an opportunity to bring proceedings in respect of that original event. The solicitors' claim against the architects in the third party proceedings was bound to fail. It was bound to fail because, as a matter of common law, no claim between concurrent wrongdoers was allowed. Such a claim was only maintainable, if at all, if it came within s.21 of the 1961 Act and was for "the same damage". There was no basis on which a claim against an architect for negligence in design and against a solicitor for negligence in allowing an original claim against that architect to become statute barred, related to the same damage in the sense in which that term was used in the section. The solicitors' claim in this case did not, therefore, come within s.21 of the 1961 Act and could not be properly maintained.

Reporter: R.F.

MOLONEY v LACEY BUILDING & CIVIL ENGINEERING LTD & ORS UNREP CLARKE 21.1.2010 2010 IEHC 8

CIVIL LIABILITY ACT 1961 S21

RSC O.8

CIVIL LIABILITY ACT 1961 S21(1)

CIVIL LIABILITY ACT 1961 S31

HUSSEY v DILLON & ORS 1995 1 IR 111

PEAKE v LITWINIUK; WALLACE v LITWINIUK 92 ALTA LR (3D) 249 200 DLR (4TH) 534 2001 ABCA 118

ROYAL BROMPTON HOSPITAL NHS TRUST v HAMMOND & ORS (NO 3) 2002 1 WLR 1397 2002 2 AER 801

CIVIL LIABILITY (CONTRIBUTION) ACT 1978 (UK)

BIRSE CONSTRUCTION LTD v HAISTE LTD 1996 1 WLR 675 1996 2 AER 1

PHILP v RYAN & ORS 2004 4 IR 241 2004/42/9677 2004 IESC 105

1 Mr. Justice Clarke delivered on the 1st of June, 2010

1. Introduction

2 2 1.1 This application to dismiss relates to proceedings which stem from the same facts as the proceedings in Moloney & Anor v. Lacey Building and Civil Engineering Ltd & Ors [2004 313 P] (the "original proceedings"). The third parties are founding members in a firm of architects practising under the name of the Meehan Levins Partnership, (the "Architects"). That firm was initially engaged by the plaintiffs ("the Moloneys") to design a dwelling house. Problems arose during the construction of the house and the Moloneys instigated a claim against the Architects and Lacey Building and Civil Engineering Ltd, the contractors of the house, (the "Contractors"). There was a delay in the serving of the plenary summons against the Architects, in relation to which I set aside a renewal order of that summons for the reasons set out in a judgment of 21 ^st January last, Moloney & Anor v. Lacey Building and Civil Engineering Ltd & Ors [2010] IEHC 8.

3 3 1.2 In these proceedings, the Moloneys claim against the firm of solicitors who represented them in relation to the original proceedings, Hughes and Liddy solicitors (the "Solicitors"), for damages arising out of the delay in serving the plenary summons on the Architects such that the original proceedings are now struck out. In February last, the Architects were joined to these proceeding as third parties. In essence, it is alleged that the Architects are concurrent wrongdoers with the Solicitors responsible to the Moloneys for the same damage. In joining the Architects as third parties, the Solicitors are seeking a contribution from the Architects pursuant to Section 21 of the Civil Liability Act 1961.

4 4 1.3 The Architects sought to have the third party proceedings against them dismissed, stayed and/or struck out. The Architects argued that there were two potential bases on which proceedings ought to be dismissed, stayed or struck out, which were:-

5 a A. That on a proper construction of the relevant provisions of the Civil Liability Act 1961, ("the 1961 Act") the Architects and the Solicitors are not concurrent wrongdoers in respect of the same damage in the sense in which that term is used in s. 21 of the 1961 Act. On that basis it is said that there is no legal basis for the Solicitors' claim for a contribution or indemnity from the Architects with the result that it is contended that the Solicitors claim on the third party issue is bound to fail, A further subsidiary issue concerning the interpretation of the term "wrong" as used in s. 21 of the 1961 Act, is also made which would, if correct, have similar consequences;

6 b B. In the alternative, it is suggested that it amounts to an abuse of process on the part of the Solicitors, in all the circumstances of the case, to seek to litigate issues against the Architects when those issues have been dismissed in proceedings brought by the Moloneys and where, it is said, the Solicitors were the prime instigating party in the application made by the Moloneys which sought to have the summons in the original proceedings renewed.

7 5 1.4 It should be noted that, in the papers filed, the Architects also raised an issue as to whether the third party proceedings had been instigated as soon as practicable as required by the Rules of the Superior Courts. However, in the light of a replying affidavit filed on behalf of the Solicitors, counsel on behalf of the Architects accepted that the court could not conclude that any inexplicable delay occurred and consequently abandoned that aspect of his application.

8 6 1.5 Some short number of days after the hearing I indicated to the parties that I was satisfied that the third party proceedings against the Architects should be dismissed as being bound to fail but that I would give reasons for that conclusion at a later date. This judgment, sets out those reasons. In setting out those reasons it is first necessary to turn briefly to the background to these proceedings, which are set out in more detail in the judgment of 21 ^st January, 2010.

2. Factual and Procedural Background

9 2 2.1 By way of background, the Moloneys hired the Architects and the Contractors, in and around 1996, to design and construct a dwelling house. By letter dated 28 ^th February, 2002, the Moloneys terminated the Architects' retainer. The reasons for the termination were started as being purported defects in the construction of the property and the timeliness and quality of the Contractors' workmanship. A plenary summons issued on 9 ^th January, 2004, against both the Architects and the Contractors but existence of such a summons was not communicated to the Architects until 2006 and then only obliquely. Ultimately service of the plenary summons was not attempted until 2008, at which time the summons was out of date and had not been renewed. In May, 2009 the Moloneys made a renewal application in relation to the plenary summons, at the request of the Solicitors, under O. 8 of the Rules of the Superior Courts.

10 3 2.2 The main reason given for...