Golden Vale Plc v Food Industries Plc

• Jurisdiction: Ireland
• Judge: McCracken J.
• Judgment Date: 13 June 1996
• Neutral Citation: 1996 WJSC-HC 3609
• Docket Number: [1992 No. 1095P],No. 1095/1992P
• Court: High Court
• Date: 13 June 1996

1996 WJSC-HC 3609

THE HIGH COURT

No. 1095/1992P

GOLDENVALE PLC v. FOOD INDUSTRIES PLC

BETWEEN

GOLDENVALE PLC

PLAINTIFF

AND

FOOD INDUSTRIES PLC NOW KNOWN AS FOOD INDUSTRIESLIMITED

DEFENDANT

AND

TALMADGE LIMITED

FIRST NAMED THIRD PARTY

AND

GOODMAN INTERNATIONAL LIMITED

SECOND NAMED THIRD PARTY

Citations:

CIVIL LIABILITY ACT 1961 S27

CIVIL LIABILITY ACT 1961 S27(1)

CIVIL LIABILITY ACT 1961 S11(1)

CIVIL LIABILITY ACT 1961 S11(2)

STAUNTON V TOYOTA (IRELAND) LTD & ANOR UNREP COSTELLO 15.4.88 1988/10/3033

RSC O.16 r1(3)

RSC O.16 r8(3)

CIVIL LIABILITY ACT 1961 S11

CIVIL LIABILITY ACT 1961 S21

RSC O.16 r1

Synopsis:

PRACTICE

Procedure

Third party - Proceedings - Commencement - Statute - Requirement - Promptitude - Service of third-party notice delayed - Motion to set aside service - Statute inapplicable as defendant was not a concurrent wrongdoer - Third-party procedure nevertheless appropriate for determination of defendant's claim against third party - Defendant" claim against third party arose out of sale of business by third party to defendant - Plaintiff's claim against defendant arose out of sale of same business by defendant to plaintiff - Rules of the Superior Courts, 1986 (S.I. No. 15), order 16, rr. 1, 8 - Civil Liability Act, 1961 (No. 41), ss. 11, 27 - (1992/1095 P - McCracken J. - 13/6/96) - [1996] 2 IR 221

|Goldenvale Plc. v. Food Industries Ltd.|

WORDS AND PHRASES

"Concurrent wrongdoers"

Defendant - Claim - Institution - Procedure - Claim for contribu

tion or indemnity against third party - Third-party procedure

available and suitable although defendant was not a concurrent

wrongdoer - (1992/1095 P - McCracken J. - 13/6/96)- [1996] 2 IR 221

|Goldenvale Plc. v. Food Industries Ltd.|

1 Judgment of McCracken J.delivered on the 13th day of June, 1996

2 This is an application by the Third Parties in these proceedings to set aside a Third Party Notice dated 9th August, 1995 pursuant to Section 27 of the Civil Liability Act, 1961and for further and other relief. To understand the basis of this application, it is necessary to give a short history of the proceedings to date.

3 The Plenary Summons herein was issued on 14th February, 1992 andclaimed:-

"Damages for breach of contract, breach of warranty, misrepresentation and negligence arising out of an agreement entered into by the Plaintiff and theDefendant herein in or about the 26th day of September, 1990 whereby the Defendant agreed to transfer to the Plaintiff the dairy division of the Plaintiff Company".

4 The Statement of Claim was delivered on 13th April, 1992, from which it is quite clear that the Plaintiff's claim is based on the terms of a lengthy agreement between the Plaintiff and the Defendant which runs to some 41 pages, and which contains a number of specific warranties and representations. On 13th October, 1992 a detailed Notice for Particulars was served by the Defendant on the Plaintiff which was not replied to until 12th November, 1993. Arising out of these replies, a Notice for further and better particulars dated 11th March, 1994 was served on the Plaintiff's Solicitors which was replied to on 20th April 1995, and ultimately a defence was delivered on 25th July, 1995.

5 In the meantime, the Defendants applied to the Court on 21st October, 1993 for an Order giving liberty to issue and serve a Third Party Notice on the Third Parties and an Order was duly made on 15th November, 1993. Under the terms of that Order, the Defendants were given twelve weeks to serve the Third Party Notice and it appears that the lengthy time given was due to the fact that the particulars had only been furnished a few days before the Order was made. In fact the Third Party Notice was not served within the twelve weeks, although the Third Parties were notified that the Order had been made. Ultimately, on 26th July, 1995, an Order was made extending the time for serving the Third Party Notice, and it was ultimately served on 9th August, 1995. The reason given in the Affidavit grounding the application to extend the time for service of the Notice was the delay on the part of the Plaintiffs in replying to the Notice for further and better particulars, which reason was obviously accepted by Carroll J. in making the Order.

6 The Third Party Notice itself claims an indemnity or contribution against the Third Party on the grounds that:-

"Any damages or costs as may be awarded to the Plaintiff arise by reason of the breach of contract, breach of warranty and misrepresentation on the part of you the Third Parties hereto in and about the sale to the Plaintiff herein by the Defendant herein of the said dairy division of its business in and about the month of May1988".

7 It is accepted by the parties that there is an error in this Notice, and that it should in fact refer to the sale to the Defendant herein by the Third Parties.

8 The Agreement referred to in the Third Party Notice is in fact an agreement dated 31st May, 1988 and made between the first named Third Party of the first part, the Defendant under its then name of Merchants Warehousing PLC of the second part and the second named Third Party of the third part. This agreement was for the sale by the first named Third Party to the Defendant of the first named Third Party's dairy business and the second named Third Party joined for the purpose of giving certain warranties and representations, and indemnifying the Defendant, jointly and severly with the first named Third Party. These warranties and representations were largely the same as those contained in the agreement of 26th September, 1990 which is the subject matter of these proceedings. These warranties are specifically given to the Defendant, and the indemnity is an indemnity against any loss or damage suffered by the Defendant, but the agreement contains a rather strange provision at clause 20.2, namely that:-

"This agreement shall be binding upon and inure for the benefit of the successors of the parties but shall not be assignable".

9 The present application is based upon a claim that the Defendant is in breach of the provisions of Section 27 of the Civil...