Harte v Volkswagen Group Ireland Ltd and Others
| Jurisdiction | Ireland |
| Judge | Ms Justice Bolger |
| Judgment Date | 22 June 2023 |
| Neutral Citation | [2023] IEHC 348 |
| Court | High Court |
| Docket Number | [Record No. 2018 6475 P] |
and
[2023] IEHC 348
[Record No. 2018 6475 P]
THE HIGH COURT
Counsel for the first, second and third defendants; Andrew Walker SC, Eamon Marray BL
Counsel for the third party; Tomás Keys BL
JUDGMENT of Ms Justice Bolger delivered on the 22 nd day of June 2023
. The third party has brought two separate motions seeking to set aside the third party notice obtained by the defendants. For the reasons set out below I am granting the applications and am setting aside the third party notice.
. On 18 July 2018, the plaintiff issued a personal injuries summons against four defendants seeking damages for an injury she says she sustained in an accident. The first three defendants are involved in the importation, sale and/or production of the Volkswagen Passat range of motor vehicles and the fourth defendant was a motor dealer from whom the plaintiff said she purchased her Volkswagen Passat in November 2013. She claims that on 22 February 2016, she parked her Volkswagen Passat, engaged the electronic brake and, as she was walking in proximity to the vehicle, it rolled back and collided with her as a result of which she sustained personal injuries.
. On 28 September 2020, the plaintiff filed a notice of discontinuance against the fourth defendant. The fourth defendant's solicitor subsequently confirmed in an affidavit sworn in these applications that this was on the basis of the fourth defendant's agreement to bear their own costs.
. On 29 April 2021, the first, second and third named defendants (the respondents in these two applications and hereinafter referred to as “the defendants”) informed the previous fourth named defendant (the applicant in these applications hereinafter referred to as “the third party”) of their intention to issue a third party motion to join them as a third party. That motion was granted in July 2021. Between the notice of discontinuance and notification of the defendants' intention to bring the third party motion, Level 5 COVID-19 lockdown was imposed between October and December 2021.
. In September 2021, the third party brought a motion to set aside the third party notice on grounds of delay pursuant to O. 16, r. 8(3). Subsequently, in January 2022, they brought a separate motion to set aside the third party motion pursuant to the inherent jurisdiction of the courts on the grounds that the third party proceedings were frivolous, vexatious and/or bound to fail which they based on the notice of discontinuance constituting an accord and release. The parties agreed that both motions should be heard together.
. The chronology of relevant events prepared by the third party is attached hereto.
22/2/2016 Accident Occurs
18/7/2018 Personal Injuries Summons issued
25/7/2018 Appearance entered on behalf of the Respondents
31/1/2019 Appearance entered on behalf of Applicant (when named as a Defendant)
4/11/2019 Respondents deliver Personal Injuries Defence
March 2020 First Covid-19 lockdown introduced by Government
28/9/2020 Notice of Discontinuance filed and served
21/10/2020 Government reintroduces level 5 Covid-19 lockdowns
29/4/2021 Respondents' Solicitors inform Applicant and its Solicitors by letter of intention to issue Third party proceedings
29/4/2021 Affidavit grounding Motion seeking leave to issue Third Party proceedings sworn
4/5/2021 Applicant's Solicitors write to Respondents Solicitors raising issue of delay
5/5/2021 Third Party Motion issued
19/7/2021 Order granting leave to issue Third Party Notice granted
26/7/2021 Third Party Notice filed
10/8/2021 Appearance entered on behalf of Applicant (when named as a Third Party)
9/9/2021 Applicant issues Motion to set aside Third Party Notice on the basis of delay (First Motion) grounded on Affidavit of Applicant's Solicitor sworn on 7 September 2021
14/1/2022 Letter sent by Applicant's Solicitors to Respondents' Solicitors advising of the effect of the release and accord and invites consent to grant the first Motion as worded or to strike out the proceedings
14/1/2022 Affidavit sword by Solicitor for Respondents filed on 11 th February 2022 in response to first Motion
17/1/2022 Return date of the first Motion to set aside on the basis of delay
21/1/2022 Applicant issue Motion to set aside Third Party Notice on the basis of release and accord (second Motion) grounded in Affidavit of Applicant's Solicitor sword on 19 th January 2020
27/4/2022 Affidavit sworn and filed by Solicitor for Respondents in reply to second Motion
25/5/2022 Supplemental Affidavit of Applicant's Solicitor filed on 27 th May 2022
. The third party asserts that the seven months (being six months more than the 28 days allowed by O. 8, r. 1(3)) it took the defendants to bring their third party notice was not as soon as was reasonably possible, as required by s. 27(1)(b) of the Civil Liability Act. The grounds for bringing their motion were contained in the personal injuries summons and the defendants' defence and, therefore, known to them for some time even before the notice of discontinuance was served. The defendants cited the lockdowns that had been imposed during that seven months, which the defendants' solicitor averred:-
“significantly and adversely impacted on the normal conduct and progress of business nationwide including the progress of litigation. In particular, during the seven months period under consideration, the country was in lockdown between 15 September 2020 and 30 November 2020, with a further lockdown occurring between 30 December 2020 and continuing through various stages of lockdown for the following months. During these periods and in compliance with public health mandates, work which continued to be conducted was from home was significantly reduced, with the result that the normal efficiency of attending on the progress of proceedings was not possible. In the defendants' solicitors' case, the solicitors were obliged to work on a hybrid basis both from home and the office.”
. The defendants assert that the rationale underpinning s. 27(1)(b) is breached where a significant amount of time was allowed to elapse between the commencement of the plaintiff's proceedings and the defendants' obligation to join a potential third party who was not previously a party to the proceedings and perhaps may have had no prior notice or knowledge of the proceedings until notified by the defendants. They say the position is otherwise where the third party was previously a party to the proceedings to which it was re-joined as a third party by a defendant. They suggest that the defendants in this case can have no genuine complaint and cannot use s. 27(1)(b) to prevent them from pursuing an indemnity and contribution against the third party, which those defendants would have pursued by means of a notice of indemnity and contribution had the third party remained as the fourth named defendant in the proceedings. They seek to rely on the fact that the third party here, which had already been a party to the proceedings as a defendant for a period of two years and two months, was intimately familiar with the issues in dispute in the proceedings.
. Section 27(1)(b) provides as follows:-
27.—(1) A concurrent wrongdoer who is sued for damages or for contribution and who wishes to make a claim for contribution under this Part—…
(b) shall, if the said person is not already a party to the action, serve a third-party notice upon such person as soon as is reasonably possible and, having served such notice, he shall not be entitled to claim contribution except under the third-party procedure. If such third-party notice is not served as aforesaid, the court may in its discretion refuse to make an order for contribution against the person from whom contribution is claimed.
. O. 8, r. 1(3) of the Rules of the Superior Courts allows 28 days to issue the third party notice. Time runs from when that 28 days has passed, up to the date that the third party motion is issued, as was accepted by Ryan P. in Kenny v. Howard [2016] IECA 243. The notice of discontinuance here was filed and served on 28 September 2020 and so time began to run from 28 days onwards, i.e. 26 October 2020 and stopped on the date on which the defendants issued their motion on 5 May 2021, a period of over seven months from the filing and serving of the notice of discontinuance.
. The whole circumstances of the case must be considered in analysing the delay, as found by Ryan P. in Kenny v. Howard in which he cited the following dicta of Finlay Geoghegan J. in Green and Green v. Triangle Developments and Wadding and Frank Fox and Associates, Third Party [2015] IECA 249:-
“[A] court, when looking at an application to set aside a third party notice should not only look at the explanations given by the defendant for the delay ‘but also to make an objective assessment as to whether, in the whole circumstances of the case and its general progress, the third party notice was or was not served as soon as is reasonably possible’.
The reference to all the circumstances in Connolly v. Casey and the import of the other citations is that it is proper in an appropriate case to allow time for a party to get expert advice or to wait for further and better particulars of something arising in the pleadings. It is impossible to catalogue all the exigencies that may arise in a case that take time to be satisfactorily addressed. Reasonably possible means what it says.” (at para. 20–21)
. The whole circumstances of this case include the periods of lockdown during the six to seven month period of delay. The court takes judicial notice both of the challenges caused to...
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