Kennedy v Oæsullivan

• Jurisdiction: Ireland
• Judgment Date: 13 July 2012
• Date: 13 July 2012
• Docket Number: [2008 No. 7770 P]
• Court: High Court

[2012] IEHC 294,

High Court

[2008 No. 7770 P]

Kennedy v. O'Sullivan

Orla Kennedy

Plaintiff

and

John O'Sullivan and Dorothy Whelan practising under the style and title of John S. O'Sullivan Solicitors, Defendants, and Alastair Jackson, Keygo Properties Limited and Conor O'Toole, Gráinne V. White, Feargal White and Joyce M. Coakley practising under the style and title of Coughlan, White and Partners Solicitors, Third Parties

Cases mentioned in this report:-

Board of Governors of St. Laurence's Hospital v. Staunton[1990] 2 I.R. 31.

Buckley v. Lynch [1978] I.R. 6.

Gallagher v. ACC Bank plc t/a ACC Bank [2012] IESC 35, [2012] 2 I.R. 620.

Gilmore v. Windle [1967] I.R. 323.

McElwaine v. Hughes (Unreported, High Court, Barron J., 30th April, 1997).

Moloney v. Liddy [2010] IEHC 218, [2010] 4 I.R. 653.

Neville v. Margan Ltd. [1988] I.R. 734.

O'Hara and Gallagher v. ACC Bank plc t/a ACC Bank[2011] IEHC 367, (Unreported, High Court, Charleton J., 7th October, 2011).

Staunton v. Toyota (Ireland) Ltd. (Unreported, High Court, Costello J., 15th April, 1988).

Practice and procedure - Third parties - Claim for contribution - Delay - Time of service of third party notice - Third party notice served more than six years after plaintiff's accrual of cause of action - Third party notice served before liability of defendants established - Delay between service of statement of claim and service of third party notice - Whether third party proceedings statute barred - Whether third party notice issued and served as soon as reasonably possible - Rules of the Superior Courts 1986 (S.I. No. 15), O. 16, r. 1(3) - Statute of Limitations 1957 (No. 6), s. 11(2) - Civil Liability Act 1961 (No. 41), ss. 27(1) and 31.

Motion on notice

The facts have been summarised in the headnote and are more fully set out in the judgment of Kearns P., infra.

The plaintiff issued a plenary summons on the 22nd September, 2008, alleging, inter alia, breach of contract and professional negligence against the defendants. The defendants issued a notice of motion on the 24th March, 2010, seeking an order for liberty to issue and serve a third party notice on all third parties, which was granted on the 26th April, 2010. That order was served on the third parties on the 13th May, 2010. The third to sixth third parties subsequently issued a notice of motion on the 2nd March, 2012, seeking, inter alia, an order striking out the third party claim against them on the grounds that the third party proceedings were statute barred, and/or an order dismissing and/or setting aside the third party notice by reason of inordinate and inexcusable delay on the part of the defendants.

The matter was heard by the High Court (Kearns P.) on the 2nd July, 2012.

Section 11(2) of the Statute of Limitations 1957, as amended, provides in part:-

"(a) Subject to paragraph (c) of this subsection and to section 3 (1) of the Statute of Limitations (Amendment) Act, 1991, an action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued."

Section 27(1) of the Civil Liability Act 1961 provides:-

"A concurrent wrongdoer who is sued for damages or for contribution and who wishes to make a claim for contribution under this Part—

(a) shall not, if the person from whom he proposes to claim contribution is already a party to the action, be entitled to claim contribution except by a claim made in the said action, whether before or after judgment in the action; and

(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."

Section 31 of the Act of 1961 provides:-

"An action may be brought for contribution within the same period as the injured person is allowed by law for bringing an action against the contributor, or within the period of two years after the liability of the claimant is ascertained or the injured person's damages are paid, whichever is the greater."

The plaintiff issued proceedings in September, 2008 against the defendants arising from the conveyance of a property in 2003 and delivered a statement of claim in July, 2009. The defendants acted as solicitors for the plaintiff, the purchaser of the property, and the third to sixth third parties acted as solicitors for the first and second third parties, the vendors. The essence of the plaintiff's claim was that she intended to use the property as her permanent residence, that the defendants were aware of that, and that the defendants had failed to inform her that the planning permission granted in respect of the property only permitted its use as a holiday apartment. The defendants delivered a defence in March, 2010, which denied the plaintiff's claim and, in the alternative, claimed that they had relied upon representations made by the third to sixth third parties in relation to the property and that any loss or damage suffered by the plaintiff was caused or contributed to by those third parties. The defendants sought and obtained an order in April, 2010 granting liberty to issue and serve a third party notice on the third to sixth parties, which was served in May, 2010.

Following an informal "cease fire" in the conduct of the litigation pending the determination of a retention planning permission application in respect of the property, seeking a change of use to allow the property to be used as a permanent residence, the plaintiff and defendants settled the substantive proceedings in January, 2012, after the refusal of the retention application in October, 2011. The third to sixth third parties sought to have the defendants' third party claim against them struck out on the grounds that it was statute barred and/or an order dismissing and/or setting aside the third party notice by reason of inordinate and inexcusable delay by the defendants in issuing the third party proceedings.

Held by the High Court (Kearns P.), in refusing to make the orders sought, 1, that a claim for contribution was an independent cause of action pursuant to s. 27(1) of the Act of 1961.

Staunton v. Toyota (Ireland) Ltd. (Unreported, High Court, Costello J., 15th April, 1988) followed. Board of Governors of St. Laurence's Hospital v. Staunton [1990] 2 I.R. 31 considered.

2. That the relevant limitation period was that as set out in s. 31 of the Act of 1961. The limitation period ran from the date on which the liability of the defendants to the plaintiff was established, i.e. the date of settlement of the action between the plaintiff and the defendants, which was the 24th January, 2012. It followed that the limitation period would not expire until the 24th January, 2014, and the third party proceedings were not statute barred.

Buckley v. Lynch [1978] I.R. 6 and Moloney v. Liddy [2010] IEHC 218, [2010] 4 I.R. 653 followed.Neville v. Margan Ltd. [1988] I.R. 734 considered.

3. That where the application for leave to issue third party proceedings was made nine days after delivery of the defendants' defence and before the plaintiff had replied to their notice for particulars, it was made as soon as was reasonably possible within the meaning of s. 27 of the Act of 1961. In the context of a claim for contribution, the seeking of leave to issue a third party notice in conjunction with the delivery of a defence indicated that there was no undue delay on the part of the defendants. The court might, in certain circumstances, accept some element of delay where such was justified by attempts being made to regularise the planning status of the development. Had those efforts been successful, there might have been no need to issue the third party proceedings at all.

Gilmore v. Windle [1967] I.R. 323, Board of Governors of St. Laurence's Hospital v. Staunton [1990] 2 I.R. 31 and McElwaine v. Hughes ...