Freisburg v Farnham Resort Ltd and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hogan |
| Judgment Date | 24 May 2012 |
| Neutral Citation | [2012] IEHC 219 |
| Court | High Court |
| Date | 24 May 2012 |
[2012] IEHC 219
THE HIGH COURT
AND
AND
CIVIL LIABILITY ACT 1961 S27(1)(B)
EBS BUILDING SOCIETY v LEAHY UNREP HOGAN 6.12.2010 2010/18/4382 2010 IEHC 456
CONNOLLY v CASEY 2000 1 IR 345
MULLOY v DUBLIN CORPORATION 2001 4 IR 52
ROBINS v COLEMAN 2010 2 IR 180 2009 IEHC 486
EAST DONEGAL CO-OP LTD v AG 1970 IR 317
O'DOMHNAILL v MERRICK 1984 IR 151
CONSTITUTION ART 34.1
CONSTITUTION ART 40.3.1
DOYLE v GIBNEY 2012 1 ILRM 194 2011/15/3568 2011 IEHC 10
EUROPEAN CONVENTION ON HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS ART 6(1)
GUERIN v GUERIN 1992 2 IR 287
HAYES v MCDONNELL UNREP HANNA 15.12.2011 2011/24/6421 2011 IEHC 530
DEKRA EIREANN TEO v MIN FOR ENVIRONMENT 2003 2 IR 270
MOLLOY v ALDERMAN & ORS 2001 4 IR 52
PRACTICE AND PROCEDURE
Third party notice
Application to set aside third party notice - Personal injuries proceedings - Supplier of kettle - Delay - Right to trial within reasonable period - As soon as is reasonably possible - Fairness of procedures - Administration of justice - Protection of personal rights - Causation issue - Prejudice - Statute of limitations - Whether it was reasonable to wait before applying to join third party - Whether to set aside third party notice for want of compliance with Civil Liability Act 1961, s 27(1)(b); EBS Building Society v Leahy [2010] IEHC 456, (Unrep, Hogan J, 6/12/2010); Connolly v Casey [2000] 1 IR 345; Mulloy v Dublin Corporation [2001] 4 IR 52; Robins v Coleman [2009] IEHC 486, [2010] 2 IR 180; East Donegal Co-Operative Livestock Mart Ltd v Attorney General [1970] IR 317; Ó Domhnaill v Merrick [1984] IR 151; Doyle v Gibney [2011] IEHC 10, [2012] 1 ILRM 194; Guerin v Guerin [1992] 2 IR 287; Hayes v McDonnell [2011] IEHC 530, (Unrep, Hanna J, 15/12/2011) and Dekra Eireann Teo v Minister for Environment [2003] 2 IR 270 considered - Rules of the Superior Courts 1986 (SI 15/1986), O 16 - Civil Liability Act 1961 (No 41), s 27(1)(b) - Personal Injuries Assessment Board Act 2003 (No 46) - Constitution of Ireland 1937, Arts 34.1 and 40.3.1 - European Convention on Human Rights 1950, art 6(1) - Application granted (2008/3373P - Hogan J - 24/5/2012) [2012] IEHC 219
Freisberg v Farnham Resort Limited
Facts The third party brought an application pursuant to Order 16 of the Rules of the Superior Courts to set aside a third party notice issued on 13 February 2012. The plaintiff herein commenced personal injuries proceedings in May 2008 in relation to an alleged incident that occurred in October 2006. The alleged incident involved a soup kettle which was supplied by the notice party to the second named defendant who in turn supplied it to the first named defendant. Having been contacted by the second named defendant in respect of the incident, the notice party dispatched a technician to inspect the kettle and subsequently sent replacement lamps for the appliance. The notice party heard no more about the matter until it received a letter claiming an indemnity and contribution in March 2011 and some nine months later the second named defendant issued a motion seeking leave to join it as a third party. That motion was made returnable some four days prior to the date originally scheduled for the hearing of the main action. It was submitted on behalf of the third party herein that it would be unconscionable to allow the third party notice to stand as it would otherwise infringe its constitutional right to trial within a reasonable period and further the ensuing delay prejudiced its interests and circumvented its right to plead the two year limitation period prescribed by the Statute of Limitations.
Held by Hogan J. in setting aside the third party notice: That the underlying issue of causation was present from the start yet the second named defendant offered no excuse for the delay in commissioning an expert report. The subsequent delay in joining the third party to these proceedings was immensely prejudicial to the third party as it was deprived of its right to plead the Statute of Limitations as against the plaintiff. Furthermore, it was joined within days of the scheduled start of the plaintiff's main action. The non-compliance by the second named defendant with the requirements of s. 27(1)(b) of the Civil Liability Act, 1961 by delaying for over five years before applying to join the third party as a party to the proceedings infringed the third party's constitutional rights to basic fairness of procedures and its right to have the proceedings determined within a reasonable time period.
1. This is an application brought by the third party ("Angelo Po") pursuant to Ord. 16 RSC to set aside a third party notice issued pursuant to the leave granted by this Court (Quirke J.) on 13 th February, 2012. The third party notice arises out of an incident which is said to have occurred on 10 th October 2006. The plaintiff ("Mr. Freisberg") in these personal injuries proceedings is a chef who works at the Farnham Radisson Hotel in Co. Cavan. Angela Po are an Italian company who supplied a soup kettle to the second named defendant ("Bunzl") in April, 2006. Bunzl in turn supplied the equipment to the first named defendant ("Farnham"). Farnham are the operators of the hotel and employers of the plaintiff.
2. On 10 th October, 2006, Mr. Freisberg contends that he was working in the hotel when there was a sudden and unexpected electrical flash on the panel of the soup kettle which led him to believe that he was being thrown by a small electric flash. Angelo Po were then contacted by Bunzl in relation to this incident. Angelo Po immediately dispatched a technician to inspect the kettle and he apparently concluded that the kettle was undamaged save for a light fixture which had exploded. In December 2006 Angelo Po sent replacement lamps for this appliance to Bunzl. There the matter rested so far as Angelo Po was concerned and nothing further so far as they were concerned was to happen until some four years later.
3. But before explaining how this development came about, it is necessary first to retrace the narrative so far as the plaintiff is concerned. He claimed that he suffered personal injuries as a result of the incident and, pursuant to an authorisation granted by the Personal Injuries Assessment Board, he commenced proceedings against Farnham and Bunzl only on 28 th April, 2008. These proceedings were then served on Bunzl's solicitors in early May 2008.
4. One measure of the rather unhurried approach taken by Bunzl to these proceedings was that it took it almost six months to enter an appearance and then only after a motion for judgment in default of defence. Following an exchange of particulars, a further motion had to be issued by the plaintiff to compel the delivery of a defence. This motion issued on 25 th May, 2009, but a defence was not filed until some nine months later on 16 th March, 2010. In other words it took almost two years for a routine defence to be filed.
5. Bunzl were ordered by the Master of the High Court on 18 th June, 2010, to make discovery in relation to "the testing, inspection and repair of the soup kettle" within six weeks of that date, but the affidavit of discovery was sworn only on 9 th May, 2011.
6. In the meantime Bunzl had written to Angelo Po on 14 th March, 2011, claiming an indemnity and contribution. One can fairly describe this letter as being in the nature of a bolt from the blue so far as the third party was concerned. Nothing had happened in the interval since the delivery of replacement lamps which suggested that any of the other parties involved in this incident might seek to fix Anglo Po with liability of any kind. One might have expected that, having a written a letter of this kind, Bunzl would immediately make good their threat to issue third party proceedings seeking to join Angelo Po to the litigation "within 14 days from the date of this letter". Yet again nothing further happened until 7 th December, 2011 - some nine months later - when a motion seeking leave to join a third party was issued out of the Central Office. That motion was made returnable for 13 th February, 2012, some four days before the main action was originally scheduled for hearing.
7. I accept that Bunzl's solicitors obtained the first available return date for this motion. Even then, it may be suggested, Bunzl could (and should) have applied to a judge of this Court for liberty to abridge time in view of the immediate urgency of the matter, not least the necessity to issue and serve the proceedings on an Italian company based in Modena. It appears that no judge was available to hear the full action on 17 th February, 2012. While the action was re-listed...
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Michael Hennessy v Michael Griffin and Others
...will no longer be tolerated." 22 In considering what amounts to a "reasonable time" Hogan J. in Freisburg v. Farham Resort Ltd. and Ors [2012] IEHC 219 held as follows:- "What amounts to a reasonable time will, of course, be measured by the specific context. Particular allowances may be mad......