John Haughton v Quinns of Baltinglass Ltd
| Jurisdiction | Ireland |
| Judge | Mr. Justice Noonan |
| Judgment Date | 05 October 2021 |
| Neutral Citation | [2021] IECA 249 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record Number: 2020/43 |
and
[2021] IECA 249
Whelan J.
Donnelly J.
Noonan J.
Record Number: 2020/43
High Court Record Number: 2017/7450P
THE COURT OF APPEAL
Third-party proceedings – Indemnity – Insurance – Third party seeking to set aside third party proceedings – Whether the defendant was entitled to enforce the contract of insurance by way of third party proceedings
Facts: The claim of the plaintiff, Mr Haughton, against the defendant/respondent, Quinns of Baltinglass Ltd (Quinns), was one for damages for personal injuries. The claim by Quinns against the third party/appellant, Zurich Insurance plc (Zurich), was one for indemnity under a policy of insurance. Leave was granted by the High Court (Barrett J) on an ex parte basis to issue and serve a third party notice on Zurich. The High Court (Simons J) delivered a written judgment on the 19th December, 2019 whereby he dismissed an application by Zurich to set aside the third party notice. Zurich appealed to the Court of Appeal against that decision. In its grounds of appeal, Zurich contended that the trial judge erred in holding that Quinns was entitled to enforce the contract of insurance by way of third party proceedings. Zurich contended that the judge conflated the principles of subrogation and contribution and was wrong to determine that Quinns was taking a subrogated claim in the absence of any evidence to that effect. Further, Zurich contended that the judge failed to give proper weight to a number of factors including that the third party claim was a stand-alone cause of action, that there had been delay, and that the plaintiff’s claim had been settled. Zurich contended that the judge failed to have regard to the purpose of third party proceedings and O. 16 of the RSC given that the plaintiff’s claim was settled and different issues arose between Quinns and Zurich. Zurich contended that the judge failed to properly have regard to the terms of the policy in declining to dismiss Quinns’ claim.
Held by Noonan J that the trial judge appropriately exercised his discretion in this case in a proportionate manner in directing the joinder of Zurich, who had not to Noonan J’s mind demonstrated any error of principle or injustice in the judgment of the High Court.
Noonan J held that the appeal would be dismissed. His provisional view with regard to costs was that as Quinns had been entirely successful, it should be entitled to its costs of the appeal.
Appeal dismissed.
JUDGMENT of Mr. Justice Noonan delivered on the 5th day of October, 2021
. The issue presented by this appeal relates to the circumstances in which a court may appropriately permit a defendant to seek the joinder of a third party to proceedings. The plaintiff's claim against the defendant (“Quinns”) is one for damages for personal injuries. The claim by Quinns against the third party (“Zurich”) is one for indemnity under a policy of insurance. Leave was granted by the High Court (Barrett J.) on an ex parte basis to issue and serve a third party notice on Zurich. The High Court (Simons J.) delivered a written judgment on the 19 th December, 2019 whereby he dismissed an application by Zurich to set aside the third party notice. Zurich appeals that decision.
. The facts of this matter, as they appear from the pleadings, are set out in the judgment of the High Court and a brief synopsis will suffice. Quinns operates an agri-store business at its premises in Athy, County Kildare. The plaintiff is a farmer who attended at the premises on the 21 st July, 2015 in order to obtain cattle meal. The meal was dispensed by a vehicle called a Manitou Maniscopic Loader. The Manitou Loader is a mechanically propelled vehicle registered for use on the public highway and fitted with number plates.
. In his statement of claim, the plaintiff pleads that part of this machine, being a hydraulically controlled bucket of a loading shovel, was used to dispense cattle meal and in the course of so doing, the bucket was caused to close on the plaintiff's left arm, crushing it. The plaintiff claims damages for the consequent personal injuries. Central to this application, Quinns at the relevant time had a policy of insurance with Zurich which was a commercial vehicle fleet policy that covered, inter alia, the Manitou Loader. At the same time, Quinns also had a public liability insurance policy with a different insurer, namely Amlin UK (“Amlin”).
. The plaintiff, having obtained an authorisation from the Personal Injuries Assessment Board, issued a personal injuries summons on the 14 th August, 2017. It would appear that Quinns had notified Amlin initially of the claim and Amlin nominated Kent Carty, solicitors, to represent Quinns in the proceedings. A full defence was delivered and the pleadings closed on the 23 rd November, 2017. On the 5 th February, 2018, Kent Carty wrote to Zurich seeking an indemnity in respect of the plaintiff's claim pursuant to Quinns' motor fleet policy, indicating that in default of receiving confirmation of such indemnity, an application would be made to join Zurich as a third party. No substantive response was received to this letter.
. On the 9 th April, 2018, Quinns issued a motion seeking to join Zurich as a third party. This was heard by the High Court (Barrett J.) on the 11 th June, 2018 with the court delivering a written judgment on the 1 st October, 2018 directing the joinder of Zurich ( Haughton v Quinns of Baltinglass Ltd. [2018] IEHC 532).
. On the 6 th December, 2018, Zurich declined indemnity in an email to Quinns' brokers, which is set out by Simons J. at para. 18 in the High Court judgment. In summary, Zurich took the position that the claim was a matter for Amlin as Quinns' public liability insurers, pointing out that at the time of the accident, the vehicle was being operated on private property for the purpose of loading feed into a feed bag and was not being used as a means of transport. Zurich also noted that the motor policy provided for an indemnity on condition that the person claiming the indemnity was not entitled to an indemnity under any other policy.
. On the 9 th January, 2019, Zurich brought the within motion seeking to set aside the third party proceedings. In that motion, the substantive relief sought by Zurich is an order striking out the third party proceedings pursuant to O. 19, r. 28, which provides that any pleading may be struck out on the ground that it discloses no reasonable cause of action or is frivolous or vexatious. Alternatively, Zurich invokes the inherent jurisdiction of the court to strike out the proceedings.
. The third party notice itself was issued on the 21 st June, 2018 and is set out in relevant part by the trial judge at para. 22 of his judgment. An indemnity was sought by Quinns on three grounds;
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(a) pursuant to the terms of the Zurich policy itself;
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(b) the policy falls to be interpreted pursuant to EU Motor Insurance Directive 2009/103/EC of the 16 September 2009;
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(c) Quinns' claim is based on the judgment of the Court of Justice of the EU in CJEU C-162/13 Vnuk v Zavarovalnica Triglav.
. In the alternative to the foregoing, Quinns contends that the court should determine whether, arising from the foregoing grounds, Zurich is obliged to indemnify the defendant in respect of any liability which Quinns is found to have, or whether Zurich is obliged to satisfy in full any award of damages to which the plaintiff may be entitled.
. Zurich's motion to dismiss is grounded upon the affidavit of its solicitor, Rachel Gilroy, sworn on the 4 th January, 2019. At para. 3, she avers that the circumstances of the accident as alleged by the plaintiff are critical to the within application. In the affidavit, Ms. Gilroy says that the third party proceedings are misconceived and sets out the basis for this contention. At para. 9, she says that Zurich is not the actual wrongdoer and owes no duty to the plaintiff, who is not a party to the contract of insurance between Quinns and Zurich. Accordingly, the dispute between Quinns and Zurich is entirely separate to the proceedings. She concludes therefore that Zurich is not an appropriate or necessary party.
. The suggestion thus appears to be that because Zurich is not a concurrent wrongdoer within the meaning of the Civil Liability Act, 1961, it is not an appropriate third party. She then turns to the European law issues raised and contends that Vnuk has no relevance because the vehicle in question was insured. She contends that as the accident occurred on private property, the provisions of the Road Traffic Act, 1991 requiring compulsory insurance, do not apply and further, the accident did not occur by reason of a motor accident.
. She distinguishes Vnuk on the basis that it refers to the normal use of a motor vehicle but in this instance, the Manitou Loader was not being used as a mode of transport but for the purpose of dispensing feed and in that regard, Zurich relies on another decision of the CJEU in Case C-514/16 Isobel Maria Pinheiro.
. In a separate objection to the third party proceedings, Ms. Gilroy avers that the Zurich insurance policy contains an arbitration clause and since the parties are contractually obliged to proceed by way of arbitration, it is not appropriate for Zurich to be joined as a third party.
. The final point raised by Ms. Gilroy is that there has been a delay by Quinns in bringing the application to join the third party and that the application was not brought “as soon as was reasonably possible”. This is a clear reference to the provisions of s. 27 of the Civil Liability Act, 1961, which applies to concurrent wrongdoers. Ms. Gilroy avers that as a result of this delay, Zurich has been prejudiced in its ability to...
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