Hartigan v Donnelly and Others

• Jurisdiction: Ireland
• Judge: McCarthy J.
• Judgment Date: 25 July 2007
• Neutral Citation: [2007] IEHC 465
• Date: 25 July 2007
• Court: High Court
• Docket Number: No. 1212 P./2003

[2007] IEHC 465

THE HIGH COURT

No. 1212 P./2003

Hartigan v Donnelly & Ors

BETWEEN/

JACQUI HARTIGAN

PLAINTIFF

AND

MARTIN DONNELLY, LOWSTRAND SECURITIES LIMITED AND MILLSTREAM COURT MANAGEMENT COMPANY LIMITED

DEFENDANTS

AND

PADRAIG O'CUMIN

THIRD PARTY

CIVIL LIABILITY ACT 1961 S27(1)(b)

CIVIL LIABILITY ACT 1961 S28(1)(b)

GOVERNORS OF ST LAURENCES HOSPITAL v STAUNTON 1990 2 IR 31

CARROLL v FULFLEX INTERNATIONAL CO LTD UNREP MORRIS 18.10.1995 1995/16/4181

BOLAND v DUBLIN CORPORATION & DAVID MAYRS LTD & COLOURMAN (INTERNATIONAL) LTD 2002 4 IR 409 2003 1 ILRM 172 2002/4/715

MCELWAINE v HUGHES UNREP HIGH COURT BARRON 30.4.1997 1998/25/9740

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

CONNOLLY v CASEY 2000 1 IR 345

DILLON v MACGABHANN UNREP MORRIS 24.7.1995 1995/7/1991

GREER v JOHN SISK & SONS LTD UNREP SUPREME 20.3.2002 2002/12/2933

GROGAN v FERRUM TRADING CO LTD 1996 2 ILRM 216

TIERNEY v FINTAN SWEENEY LTD UNREP MORRIS 18.10.1995 1995/21/5643

GOLDENVALE PLC v FOOD INDUSTRIES PLC & TALMADGE LTD & GOODMAN INTERNATIONAL LTD 1996 2 IR 221 1996/11/3609

GILMORE v WINDLE 1967 IR 323

Judgment of

McCarthy J.

1 delivered the 25th day of July, 2007.

2 1.This is an action for damages for personal injuries and other loss commenced by originating plenary summons on 29^thJanuary, 2003 and alleging negligence and breach of duty (including breach of statutory duty and contractual duty) on the part of the defendants at Millstream Court, Mill Road, Ennis, County Clare. According to the statement of claim delivered on 25^th March, 2003, the plaintiff was a tenant of apartment 22 at Millstream Court. The first defendant was her landlord, the second defendant was the developer of the apartment complex and the third was the management company thereof. The plaintiff alleges that on 18^th August, 2002 (apparently in the small hours of the morning), while she was present in the apartment, she was "caused to fall out of the window" and was "caused to fall a distance of 45 feet to the ground"; it appears from the particulars of injury pleaded in the statement of claim, and additional particulars furnished thereafter, that she was rendered unconscious by her fall and suffered extensive injuries, including a broken pelvis, a broken hip, a broken femur, shattering of both legs and multiple bodily injuries. As can be imaged, she was treated on an emergency basis and there seems no doubt but that the injuries were devastating although, as one might perhaps have feared, she was not rendered paraplegic but undoubtedly, as pleaded by her, she will suffer very serious long-term ill effects and the effect on her occupational and social wellbeing is described as "catastrophic"; she will apparently be subjected to numerous skin grafts, apart from extensive periods in hospital, and the injuries are such that she will no longer be able to work as (or presumably gratify an ambition to be) a part-time model, as well as participation in other occupations. Whilst it would appear that she had had a number of drinks on the evening (and early morning) before the accident, the substance of the negligence and breach of duty which she alleges against the defendants pertains to the condition or state of the apartment. It is that which ultimately led to the joinder by the first and second defendants, by third party notice, of Padraig O'Cuimin, architect of the premises and, of course, the motion now before me, by the third party, to strike out the notices on the grounds that they were not issued, "as soon as reasonably possible", as that term has been defined, pursuant to the provisions of s. 27(1)(b) of the Civil Liability Act, 1961.

3 2. On application by the third named defendant the plaintiff was compelled to furnish further particulars of the event in question and of the negligence of the defendants; that document was dated 1^st September, 2004 and, whether or not they fall into the category of particulars of negligence or not, particulars of what will, presumably, be alleged by the plaintiff at the trial to be breaches of statutory and contractual duty (on foot of the lease of the premises dated 7^th June, 2002), these do not differ substantially from the statement of claim.

4 3. Having regard to the fact that the plaintiff's allegations pertain to the structural condition of the premises, it is obvious why it was conceived that it was appropriate to join the third party. It appears that the second defendant and the third party agreed in October, 1997 that the latter would "design, supervise and certify the construction of the apartment complex". The order permitting the joinder of the third party by the first defendant was made on 1^st December, 2004 pursuant to a notice of motion issued and filed on 19^th August, 2004 and grounded on the affidavit of Patrick Judge, solicitor for the first defendant. He erroneously merely served the third party notice, the draft whereof had been exhibited in his affidavit, such service being effected on 30^th November, 2004; the issue of the motion had been preceded by a letter of 9^th July, 2004 from Mr. Judge, indicating an intention that, in default of agreement by the third party to take over the first defendant's defence and provide an indemnity in respect of the claim, within seven days, application would be made to the court for the relief ultimately given in that respect.

5 4. Messrs. L.K. Shields notified the first defendant by letter of 12^th January, 2005 that the third party notice was not duly issued out of the Central Office and this fact had come to their attention when they sought to enter an appearance. The order was served, also, on 30^th November, 2004 but Mr. Judge candidly admits the failure to issue the third party notice out of the Central Office by "error and inadvertence". I was told orally by counsel for the first defendant (Mr. Howard S.C.) at the hearing that Mr. Judge was not a solicitor experienced in litigation and no doubt this is the reason for his mistake. In any event, Mr. Judge did not proceed expeditiously thereafter making application ex parte to the court on 25^th July, 2005 for an extension of time for the issue and service of the third party notice, by three weeks, grounded on his affidavit of 20^th July, 2005, the notice being issued on 26^th July, 2005 and thereafter served on 5^th August, 2005, together with the orders of 1^st November, 2004, 25^th July, 2005, the plenary summons and the statement of claim. Service was accepted by Messrs. Shields and by letter dated 12^th August, 2005 they requested copies of the grounding affidavit (in respect of the joinder of the third party) and all further pleadings, a request complied with under cover of a letter of 23^rd September, 2005 (the third party having entered an appearance on 19^th September, 2005).

6 5. In terms of the delay (which I will call the "relevant delay") by the first defendant in his application for leave to join, I have referred to the dates of service of the summons and the statement of claim. The first defendant sought particulars of such claim by notice of 2^nd October, 2003 and replies (together with certain documents) were furnished by the plaintiff on 18^th November of the same year and, as we know, nothing was done pertaining to the joinder of the third party notice until the motion in that regard was issued on 19^th August, 2004, being approximately seventeen months after the delivery of the statement of claim and nine months after the reply to the notice for particulars. The first defendant ultimately delivered a defence on 8^th July, 2005.

7 6. A number of matters are set out in the affidavit of Mr. Judge of 6^th October, 2006, in reply to that of Mr. Kavanagh (grounding the application to strike out or set aside the third party notice) dated 20^th July, 2006, which counsel for the first defendant have urged upon me are relevant in considering the application. In the first instance Mr. Judge refers to the fact of the notification by letter of the contemplated third party proceedings on 9^th July, 2004, the omission to serve the actual notice (after obtaining an extension of time for doing so) until 5^thAugust, 2005, the ultimate entry of an appearance by the third party on 19^th September, 2005 (with a request for the delivery of a statement of claim), a request of 29^th November, 2005 for inspection of the locus of the accident which apparently ultimately took place on 2^ndFebruary, 2006, and what is alleged to be culpable delay on the part of the third party in making the application to set aside or strike out the notice, pursuant to the notice of motion of 20^th July, 2006, which came before the court on 9^th October, 2006. I now turn to the facts pertaining to the second defendant, which are somewhat more complex.

8 7. Obviously the dates of issue and service of the summons and the statement of claim were the same so far as that defendant is concerned. That defendant does not appear to have sought particulars of the plaintiff's claim. Ms. Barbara Kenny, director of the second defendant, notified her insurance brokers (Messrs. O'Leary Insurances) on 10^th September, 2002 that she had received a letter from the plaintiff's solicitors seeking an admission of liability in respect of the accident (in the form of what she had called the normal "originating letter"). She heard nothing more about the matter until service of the summons (the date of which does not appear from the papers) when she instructed her solicitor (Colman Sherry) and furnished the summons to both her insurers and her solicitors; thereafter she presumed that the second defendant's insurers (Messrs. Eagle Star) were defending the action, although the first defendant's solicitor had apparently inadvertently entered an appearance on the second defendant's behalf, which, perhaps, understandably...