Janet Acheson v Loughshinny Motorcycle Supporters Club Ltd
| Jurisdiction | Ireland |
| Judge | Ms. Justice Creedon |
| Judgment Date | 16 April 2021 |
| Neutral Citation | [2021] IEHC 339 |
| Date | 16 April 2021 |
| Docket Number | [2017 No. 10917 P.] |
| Court | High Court |
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[2021] IEHC 339
[2017 No. 10917 P.]
THE HIGH COURT
Personal injuries – Wrongful death – Third party proceedings – First third party seeking an order setting aside the third party proceedings against the first third party – Whether the third party notice had not been served as soon as reasonably possible
Facts: An accident occurred on the 3rd July 2015 when Dr Hinds (the deceased), who was then the appointed mobile medical assistant for the Skerries 100 Road Race which was to commence on the 4th July 2015, suffered fatal injuries during a practice session. The plaintiff, Ms Acheson, commenced proceedings by way of personal injuries summons issued on the 1st December 2017 and claimed damages for personal injuries and for the wrongful death of a person within the meanings of s. 48 and s. 49 of Part IV of the Civil Liability Act 1961 arising from the accident. The proceedings were served on the defendants, Loughshinny Motorcycle Supporters Club Ltd and Motorcycle Union of Ireland (Southern Centre) Ltd, on the 5th December 2017. The first third party, BMW Automotive (Ireland) Ltd (BMW), in its notice of motion sought an order pursuant to O. 16, r. 8 (3) of the Rules of the Superior Courts (RSC) setting aside the third party proceedings against the first third party by the defendants by way of a third party notice issued on the 6th June 2019 on the grounds that the third party notice was not served within 28 days of the time limited for the personal injuries defence as required by O. 16, r. 8 (3) of the RSC and/or had not been served as soon as reasonably possible as required by s. 27 (1) of the Civil Liability Act 1961. The first third party also sought to set aside the order made by the High Court on the 20th May 2019 joining a total of three third parties to the proceedings.
Held by the High Court (Creedon J) that, in all of the circumstances, it was satisfied that the third party notice was served as soon as was reasonably possible and it would not set aside the third party proceedings against the first third party or the order made by the High Court on the 20th May 2019. The Court refused the application.
Creedon J held that the costs of the application should be reserved to the hearing of the action, subject to hearing any submissions on costs. Creedon J held that the order on costs would be finalised in the event that there were no such submissions within 14 days.
Application refused.
JUDGMENT of Ms. Justice Creedon delivered on the 16th day of April, 2021:
The first named third party in these proceedings, BMW Automotive (Ireland) Ltd. (hereinafter referred to as BMW) has made an application by way of Notice of Motion to have the third party proceedings which have been brought against BMW by the defendants set aside.
The first named third party is seeking an order inter alia as follows:-
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(i) An order pursuant to O. 16, r. 8(3) of the Rules of the Superior Courts (RSC) setting aside the third party proceedings against the first named third party by the defendants by way of a third party notice issued on the 6th June 2019 on the grounds that the said third party notice has not been served within 28 days from the time limited for delivering the defence as required by O. 16, r. 1(3) RSC and/or has not been served as soon as is reasonably possible as required by s. 27(1) of the Civil Liability Act 1961.
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(ii) To set aside the order made by the High Court on the 20th May 2019 (the order) joining a total of three third parties to the proceedings.
The proceedings concern a fatal accident which occurred on the 3rd July 2015 when Dr. John Hinds (the deceased) who was then the appointed mobile medical assistant for the Skerries 100 Road Race which was to commence on the 4th July 2015 suffered fatal injuries. During a practice session on the 3rd July 2015, the day before the Skerries 100 Road Race was to commence, the deceased, who was accompanying the motorcycles around the circuit, suffered fatal injuries from which he died on the 4th July 2015. The Plaintiff commenced the present proceedings by way of personal injuries summons issued on the 1st December 2017 and claims damages for personal injuries and for the wrongful death of a person within the meanings of s. 48 and s. 49 of Part IV of the Civil Liability Act 1961 (the 1961 Act) arising from the accident. The proceedings were served on the defendants on the 5th December 2017.
The first third party (BMW) in its Notice of Motion seeks an order pursuant to O. 16, r. 8 (3) of the RSC setting aside the order on the grounds that the third party notice was not served within 28 days of the time limited for the personal injuries defence as required by to O. 16, r. 8 (3) of the RSC and/or has not been served as soon as reasonably possible as required by s. 27 (1) of the Civil Liability Act 1961. The first named third party also seeks to set aside the order made by the High Court on the 20th of May 2019 (the order) joining a total of three third parties to these proceedings.
The defendants delivered a personal injuries defence on the 30th January 2019. The third party notice was served on BMW on the 6th June 2019 and an unconditional appearance was entered on behalf of the three third parties on the 4th July 2019 by Frank Nyhan and Associates Solicitors. It would appear that Frank Nyhan and Associates Solicitors only had instructions to enter an appearance on behalf of the second and third named third parties and not BMW on whose behalf a conditional appearance was entered by BLM Solicitors on the 11th July 2019. A notice of change of solicitors was subsequently served by Eugene F. Collins Solicitors on the 31st July 2019.
The second and third named parties have not sought to challenge the order joining them as third parties to the proceedings.
The motorcycle which was involved in the accident was a BMW S 1000 RR motorcycle bearing registration number 151 D 23763 (hereinafter the motorcycle). The motorcycle was in the possession of the defendants for three weeks after the accident, during which time the defendants carried out a visual inspection of the motorcycle. The motorcycle was subsequently released to BMW on or about the 24th July 2015. A second inspection of the motorcycle took place on the 10th August 2015 attended inter alia by Ms Sarah Roebuck on behalf of the defendants along with representatives of BMW.
An engineer retained by the defendants, Mr. Noel Maher, inspected the motorcycle on the defendant's behalf on the 15th June 2016 and 11th August 2016. Mr. Maher's preliminary advices were relied upon by the defendants in support of their application to join BMW to these proceedings.
BMW contended that there has been a clear failure by the defendants to issue the application to join BMW as a third party to these proceedings either within the time period allowed by the RSC or as soon as was reasonably possible as required by s. 27(1) of the Civil Liability Act 1961 and that the third party proceedings should accordingly be struck out.
The applicant set out the background to the case, the chronology of events, the relevant law and the following affidavit evidence was read into the record and was sworn by the following:
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i. Ms Susan Plunkett on the 27th of March 2019
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ii. Mr Paulo Alves on the 9th of October 2019
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iii. Ms Susan Plunkett on the 24th of January 2020
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iv. Mr Kevin Davidson on the 27th of February 2020
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v. Ms Susan Plunkett on the 26th of January 2021
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vi. Ms Sarah Roebuck on the 21st of January 2021
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vii. Mr Paul Kester on the 10th February 2021
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viii. Mr Conor O'Neill on the 12th of February 2021
The applicant submitted that the relevant time period to be considered on applications of this type was summarised by the Court of Appeal in Kenny v. Howard & Anor [2016] IECA 243 in which Ryan P. noted at para. 12 that it had been agreed between the parties that the relevant time period was between the following dates:-
“The first of those dates is when the third party notice should have been issued if the time limits in the Rules had been observed. The second date is the date when the notice of motion was issued.”
The applicant also opened O. 16 r. 1(3) RSC which requires an application for leave to issue third party proceedings (unless otherwise ordered by the Court) to be made within 28 days from the time limited for delivering of the defence. O. 16, r. 8(3) RSC provides that third party proceedings may, at any time, be set aside by the court.
Section 27 (1) of the Civil Liability Act 1961 sets out the procedure for claiming contribution as follows:-
“(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”.
S. 11 of the Civil Liability Act defines persons who are concurrent wrongdoers and provides as follows as subs. 1:-
“For the purpose of this Part, two or more persons are concurrent wrongdoers when both or all are wrongdoers and are responsible to a third person (in this Part called the injured person or the plaintiff) for the same damage, whether or not judgment has been recovered...
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