Greer v John Sisk & Sons Ltd

• Jurisdiction: Ireland
• Judge: Keane C.J.
• Judgment Date: 20 March 2002
• Neutral Citation: 2002 WJSC-SC 2933
• Court: Supreme Court
• Date: 20 March 2002

2002 WJSC-SC 2933

THE SUPREME COURT

Keane C.J.

Murphy J.

McGuinness J.

247/01

GREER v. JOHN SISK & SONS LTD

GREER

-V-

JOHN SISK & SONS LIMITED

Citations:

CIVIL LIABILITY ACT 1961 S27(1)

MOLLOY V DUBLIN CORPORATION & CLONMEL ENTERPRISES & ORS 2002 2 ILRM 22

ST LAURENCES HOSPITAL V STAUNTON 1990 2 IR 31

MCELWAINE V HUGHES UNREP BARRON 3.4.1997 1998/25/9740

CONNOLLY V CASEY 2000 1 IR 345

CIVIL LIABILITY ACT 1961 S27(1)(b)

Synopsis:

PRACTICE AND PROCEDURE

Third party notice

Litigation - Service of - Delay - Concurrent wrongdoers - Statutory interpretation - Whether third party notice served as soon as reasonably possible - Civil Liability Act, 1961 (247/2001 - Supreme Court - 20/03/2002)

Greer v John Sisk & Sons Ltd

Facts: The plaintiff instituted proceedings over an accident that occurred on a building site of the defendants. Subsequently the defendants were given leave to issue a third party notice. In the High Court Johnson J set aside the third party proceedings on the grounds that the proceedings had not been issued within a reasonable time. The defendant appealed against the judgment.

Held by the Supreme Court (Keane CJ delivering judgment; Murphy J and McGuinness J agreeing) in dismissing the appeal. The area of concern was the unquestionable delay which followed the delivery of the statement of claim. Section 27 of Civil Liability Act, 1961 required that a third party notice be served as soon as was reasonably possible. There was no explanation for the delay that occurred. The High Court was quite correct in striking out the notice.

1 20th day of March, 2002 by Keane C.J.

Keane C.J.

2 This is an appeal from an order in the High Court (Mr. Justice Johnson), in which he set aside an order granting leave to the defendant in the case to issue and serve a notice on the third party, G & L Heating & Plumbing Services Limited. It is quite clear and it is not in dispute, that that order was made by Mr. Justice Johnson there being no appearance on behalf of the defendants. The application was to have the third party proceedings stuck out on the ground that they had not been issued within a reasonable time, and there being no appearance, he struck them out. There does not seem to have been any attempt made to go back into Mr. Justice Johnson inviting him to reinstate the matter. At the outset, the court indicated today that obviously it considered some difficulty arose, by reason of that, because it was clearly perfectly within Mr.Justice Johnson's jurisdiction to strike out the proceedings, there being no appearance to contest the contrary on behalf of the defendants. That was a course of action which this court might have had to take, leaving it then to the defendant to go back to Mr. Justice Johnson in the High Court and ask him to reinstate the matter in the High Court on the ground that they had been taken by surprise in some way by the ordermade.

3 However, the parties have sensibly agreed that that could only be productive of further delay and that no particularly useful purpose would be served by it and that it might be more sensible on the whole, if this court were simply to deal with the application to strike out the third party proceedings as if they had come before Mr. Justice Johnson and had been properly argued on both sides, which indeed they now have in this court and, as a result it can now be dealt with in what is obviously a more sensible fashion.

4 The proceedings arise out of an accident in which the plaintiff was involved in the course of his work at a building site of the defendants on the 12th January 1996. He alleges that he tripped over a concrete block and that is how he met with his accident while on the building site. The plenary summons was issued on 12th January 1999 and the statement of claim was delivered on the 21st January 1999, particulars were raised and replied to by the 25th March1999 and it seems quite clear from the particulars furnished, that at that stage the involvement of the third party in this matter, who in fact are a company effectively associated with, if not in some sense identified with the plaintiff, that their involvement in this matter was made perfectly plain in the particulars furnished and that the defendants were on notice, as from that stage that that was the case being made by the plaintiff and that it clearly involved G & L Heating and Plumbing Services Limited as the third party. However, although the defendants delivered a defence on the 14th day of June 1999 and that defence raised a plea under the statute of limitations, that plea under the statute of limitations was not dealt with until 25th January 2001 and on the 25th January 2001, Mr. Justice Kelly in the High Court was satisfied that the statute of limitations did not arise because it had not been pleaded properly and that disposed of thatissue.

5 Presumably after that, the actual motion for joining the third party was brought on the 12th February 2001 and it was brought on that date and the order made giving liberty to join the third party as of that time. Thereafter there were further delays...