Greene v Triangle Developments Ltd and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 04 March 2008
• Neutral Citation: [2008] IEHC 52
• Docket Number: [No. 1055 P/2005]
• Court: High Court
• Date: 04 March 2008

Greene v Triangle Developments Ltd & Wadding

BETWEEN

THOMAS GREENE AND KATHERINE GREENE

PLAINTIFFS

AND

TRIANGLE DEVELOPMENTS LIMITED AND GEORGE WADDING

DEFENDANTS

[2008] IEHC 52

[No. 1055 P/2005]

THE HIGH COURT

PRACTICE AND PROCEDURE

Third party

Third party notice - Application to set aside - Time limit for service of third party notice - Whether time stops at date of application for leave or service of notice - Whether served as soon as reasonably possible - Stephens v Flynn [2008] IESC 4 (Unrep, SC, 25/2/2008), Connolly v Casey [2000] 1 IR 345, Molloy v Dublin Corporation [2001] 4 IR 52 applied; A & P (Ireland) Ltd v Golden Vale Products Ltd (Unrep, McMahon J, 7/11/1978), SFL Engineering v Smyth Cladding Systems Ltd (Unrep, Kelly J, 9/5/1997), Connolly v Casey (Unrep, Kelly J, 12/6/1998), Dillon v MacGabhann (Unrep, Morris J, 24/7/1995) followed; McElwaine v Hughes (Unrep, Barron J, 30/4/1997) not followed - Rules of the Superior Courts 1986 (SI 15/1986), O 16, r 1(3) - Civil Liability Act 1961 (No 41),s 27(1)(b) - Relief sought granted (2005/1055P - Clarke J - 4/3/2008) [2008] IEHC 52

Greene v Triangle Developments Ltd

Facts: The plaintiffs sought various reliefs arising from damage caused to their building from an adjoining site. The defendants were given leave to serve a third party notice. The third party sought to set aside the notice on grounds of delay.

Held by Clarke J. that the entire period up to the formal service of the third party notice had to be considered. The Court was not satisfied that the application to issue and serve the third party notice was brought as soon as reasonably possible. The third party notice would be struck out.

Reporter: E.F.

A & P (IRELAND) LTD v GOLDEN VALE PRODUCTS LTD UNREP MCMAHON 7.12.1978 1983/5/1165

RSC O.16 r1(3)

CIVIL LIABILITY ACT 1961 S27(1)(b)

SFL ENGINEERING LTD v SMYTH CLADDING SYSTEMS UNREP KELLY 9.5.1997 1998/10/2952

CONNOLLY v CASEY & MURPHY & FITZGIBBON UNREP KELLY 12.6.1998 1998/14/4845

STEPHENS v FLYNN LTD UNREP SUPREME 25.2.2008 2008 IESC 4

CONNOLLY v CASEY & MURPHY T/A CASEY & MURPHY SOLICITORS 2000 1 IR 345 2000 2 ILRM 226 2000/3/1120

MOLLOY v DUBLIN CORPORATION & ORS 2001 4 IR 52

DILLON v MACGABHANN UNREP MORRIS 24.7.1995 1995/7/1991

MCELWAINE v HUGHES UNREP BARRON 30.4.1997 1998/25/9740

JUDGMENT of

Mr. Justice Clarke

1.Introduction

2 1.1 In the substantive proceedings the plaintiffs ("the Greenes") seek various reliefs arising out of damage which is alleged to have been caused to their building at No. 5 Thomas Street, Waterford. The damage is alleged to have been caused in the course of the re-development of an adjoining site. It is said that the damage was caused in March or April of 2004. The action was commenced by plenary summons issued on the 22^nd of March, 2005. On the 5^th of May of that year, the statement of claim was delivered. The defence of both defendants (whom I will, for ease of reference describe as "Triangle") was delivered on the 20^th of January, 2006. No material difference exists between the interests of the separate defendants so far as this application is concerned.

3 1.2 Some two and a half weeks after the delivery of the defence, Triangle applied for an order giving liberty to issue and serve a third party notice on Frank Fox & Associates ("Fox & Associates"), which application was issued on the 6 February, 2006 and was successful. On that basis an order was made by this Court (McKechnie J.), on the 20^th of February, 2006, giving the defendants liberty to issue and serve such a third party notice within three weeks. While the third party notice was not, in fact, issued at that time, a copy of the proposed third party notice purporting to have been issued was, in fact, served on Fox & Associates on the 8^th of March, 2006, which was within the timescale specified for service in the order of McKechnie J.. When Fox & Associates consulted their solicitors it was ascertained, ultimately, that the third party notice had not been issued. This fact was brought to the attention of Triangle's solicitors by a letter of the 7^th of July, 2006. A reminder was sent on the 10^th of January, 2007, which noted that the position had not been regularised and warned that if a third party notice was then issued and served, application would be made to have it set aside.

4 1.3 In the meantime it would appear that Triangle had applied to this Court (Peart J.) on the 8^th of December, 2006 and obtained an order extending the time for the issue and service of the third party notice concerned, up to and including the 10^th of January, 2007. The third party notice was, in fact, issued on the 3^rd of January, 2007 but does not appear to have been formally served until the 29^th of March, 2007. The substance of the document had, of course, been communicated to Fox & Associates in March of the previous year.

5 1.4 Thereafter, on the 16^th of July, 2007, Fox & Associates brought this application seeking an order setting aside the third party proceedings. The application was originally returnable for the 30^th of July, 2007. By virtue of matters outside the control of any party, the application only came to be heard in the early part of this year with the final part of the hearing completing on Monday of last week (25 of February, 2008).

6 1.5 The basis of the case made on behalf of Fox & Associates to have the third party notice set aside is delay. The principal delay relied on is that which occurred between the service of the statement of claim on the defendants' in May 2005, until the application for an order giving liberty to issue and serve a third party notice in February 2006 (a period of nine months). Some further reliance is also placed on the very considerable delay with occurred as a result of the failure on the part of Triangle to properly comply with the original order of McKechnie J. concerning the issuing and service of the third party notice within three weeks of the making of the order giving leave in that regard.

7 1.6 It is appropriate, therefore, to turn firstly to the legal principles applicable to an application such as this.

2.The Law

2 2.1 In A & P (Ireland) Ltd v. Golden Vale Products Ltd (Unreported, High Court, McMahon J., 7^th November, 1978 at p. 7) McMahon J. noted that the rational behind requiring the service of a third party notice within a short time frame was "to put the contributor in as good a position as is possible in relation to knowledge of the claim and opportunity of investigating it". Order 16 rule 1(3) of the Rules of the Superior Courts specifies that, unless otherwise ordered by the court, an application for leave to issue a third party notice must be made within twenty eight days from the time limited for delivering the defence. Furthermore s. 27(1)(b) of the Civil Liability Act, 1961, requires that the third party notice be served "as soon as is reasonably possible". It should be noted that the provisions of 0. 16 r. 1(3), to which I have referred, specify the time limit by reference to when the defence should be served rather than the time when the defence is actually served. Noting that fact, in S.F.L. Engineering v. Smyth Cladding Systems Ltd (Unreported, High Court, Kelly J., 9^th May, 1997), Kelly J. pointed out that the Rules of Court contemplate "an application for the joinder of a third party being made at quite an early stage of the proceedings". It is also true to state that Kelly J., did accept, in Connolly v. Casey (Unreported, High Court, Kelly J., 12^th June, 1998), that it was only in a tiny percentage of cases that applications to join third parties are made within the time frame specified in the rules.

3 2.2 In that context it is appropriate to refer to the recent decision of the Supreme Court in Stephens v. Flynn (Unreported, Supreme Court, Kearns J., 25^th February, 2008). That case was concerned with the analogous area of an application to dismiss proceedings for want of prosecution. Apart from affirming recent developments which indicate a more vigilant approach on the part of the courts to delay, Kearns J. (speaking for the Supreme Court) noted that one of the important considerations in assessing delay is to start with the time limits specified in the rules for the carrying out of the step concerned. In that context Kearns J. stated, at p. 16, that-

"In the ordinary course of events no court would rigidly apply a twenty one day period for delivering a statement of claim or see non delivery within that time as a failure which would justify dismissal of proceedings, even in the simplest of cases. Equally, even the most complex of cases must be prosecuted with due expedition and an appropriate sense of urgency. However, the period of twenty months is totally outside any period of time that might be considered appropriate or reasonable and is clearly, and was so found by Clarke J., to be inordinate. The challenge to that finding is unsustainable."

4 2.3 While the decision in Stephens was directed towards the requirement of the rules that a statement of claim be filed within twenty one days of the service of an appearance, it seems to me that the principle noted by Kearns J., is equally applicable to cases in which the court is being invited to consider delay in bringing third party proceedings. The starting point is to consider the time within which the application concerned should, in accordance with the rules, have been made. While it would be inappropriate to take the draconian step of dismissing proceedings (or, as in this case, setting aside a third party notice) on the basis of a failure per se to comply with the time limit specified, nonetheless that time limit has to be the starting point by reference to which any delay can be assessed. In addition it is clear that the complexity of the issues which need to be considered before...