Kenny v Howard

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 29 July 2016
• Neutral Citation: [2016] IECA 243
• Date: 29 July 2016
• Court: Court of Appeal (Ireland)
• Docket Number: Appeal No. 2016/60 No. 2013/2696P [2016 No. 60] [2013 No. 2696P]

The President

Peart J.

Barrett J.

BETWEEN

MAJELLA KENNY

Plaintiff

AND

NOEL HOWARD

Defendant/Respondent

AND

THE HEALTH SERVICE EXECUTIVE

Third Party/Appellant

[2016] IECA 243

Barrett J.

Ryan P.

Appeal No. 2016/60

High Court Record

No. 2013/2696P

[2016 No. 60]

[2013 No. 2696P]

AN CHUIRT ACHOMHAIRC

COURT OF APPEAL

Third party notice – Professional negligence – Delay – Appellant seeking to set aside a third party notice served by the respondent – Whether the respondent served his third party notice as soon as was reasonably possible

Facts: The third party/appellant, the Health Service Executive (HSE), brought an application to the High Court under O. 16, r. 8(3) of the Rules of the Superior Courts to set aside a third party notice served by the defendant/respondent, Mr Howard, pursuant to an order of the High Court. The basis of the application to set aside the third party notice was that the defendant failed to serve the notice as soon as was reasonably possible as required by s. 27(1)(b) of the Civil Liability Act 1961. On 1st February 2016, the High Court (Barr J) dismissed the application and the HSE appealed to the Court of Appeal against that order. The defendant claimed that the notice was served as soon as reasonably possible, noting that this was a case of unusual complexity akin to one of professional negligence and that it was necessary to have specialist advice.

Held by Ryan P that the question to be decided on this appeal was whether the defendant served his third party notice as soon as was reasonably possible by doing so on 26th August 2015 after a delay of two years. Having considered Connolly v Casey & Anor [2000] 1 IR 345 and s. 27 of the 1961 Act, Ryan P held that it was impossible to consider the delay as being necessary or justifiable.

Ryan P held that the Court would allow the appeal and set aside the third party notice.

Appeal allowed.

JUDGMENT delivered by the President on 29th July 2016

1 This is an appeal by the HSE, the third party, against the order of the High Court made by Barr J. on 1st February 2016 and perfected on 2nd February. The HSE brought an application to the High Court under O. 16, r. 8(3) of the Rules of the Superior Courts to set aside a third party notice served by the defendant pursuant to an order of the High Court. The basis of the application to set aside the third party notice was that the defendant failed to serve the notice as soon as was reasonably possible as required by s. 27(1)(b) of the Civil Liability Act 1961. The High Court dismissed the application and the HSE appealed to this Court.

2 The plaintiff is a social care worker who claims in her personal injury summons in this matter that she was assaulted and battered by a service user on or about 31st March 2011 in the course of her employment at a care home that is part of a group of homes under the management of a Board of which the defendant is the Chairman and the nominated representative for the purpose of the proceedings. The plaintiff alleges negligence, breach of duty, breach of statutory duty and/or breach of agreement on the part of the defendant, its servants or agents whereby she sustained the alleged personal injuries, loss and damage.

3 Order 16, r. 1(3) of the Rules of the Superior Courts deals with the time for applying for leave to issue a third party notice as follows:-

'(3) Application for leave to issue the third-party notice shall, unless otherwise ordered by the Court, be made within twenty-eight days from the time limited for delivering the defence ...'

The parties are agreed that the relevant date i.e. the last date for an application in compliance with this rule was 22nd August 2013. Some two years later, on 26th August 2015, the defendant issued a notice of motion seeking to join the HSE as a third party to the action and by order of the High Court of 27th October 2015, leave was granted to issue and serve the proceedings. The HSE issued its motion to set aside the third party notice on 26th November 2015, and it and the grounding affidavit was served on 2nd December 2015. A replying affidavit was sworn by Mr. Halley, the defendant's solicitor, on 26th January 2016 and the matter came on for hearing before the High Court and was heard and determined on 1st February 2016 when Barr J. delivered his ex tempore judgment. The order was perfected on the following day.

4 Section 27(1)(b) of the Civil Liability Act 1961 provides that a concurrent wrongdoer who wishes to make a claim for contribution against a party not already in the action shall 'serve a third-party notice upon such person as soon as is reasonably possible'. The case made by the HSE in the High Court was that the defendant was in breach of this statutory requirement and that the third party notice should accordingly be set aside by the court. Barr J. held that he had to have regard to the nature of the proceedings before the court; that this was not an ordinary case, but one where it was necessary, before making a claim against the third party, to obtain advices from a suitably qualified expert to the effect that there was at least some arguable basis for liability on the part of the HSE. He said that there was some delay in obtaining the necessary instructions caused, first, by the misplacement of papers in the offices of Senior Counsel retained to advise in the matter, and thereafter some further delay on the part of the first expert communicating with the defendant's solicitor that he was not in a position to furnish an opinion, which meant that the solicitor had to move to obtain the views of an alternative expert. The judge held that the defendant's solicitor acted reasonably at that point in speaking on the telephone to the second expert and on that basis in instructing Junior Counsel to draft the necessary proceedings to join the HSE. He held that it was reasonable for the solicitor to obtain the advices of a suitably qualified expert given the nature of the potential liability of the HSE and before proceeding to apply. He referred to the nature of the claim being made against the HSE that it was negligent in directing the service user to this particular residential home when she was unsuited for such a facility. Barr J. went on to find that the HSE 'will not be prejudiced by the delay that has occurred in joining them as a third party to the proceedings because at the trial of the action or the trial of the issue between the defendant and the third party, the court will be required to look in some depth at the medical records pertaining to the service user at the time that the decision was made to house her in this particular residential establishment'. The judge concluded 'I find that while the delay is somewhat long, it was excusable in the particular circumstances of this case'. The court, accordingly, refused the application by the HSE to have the notice set aside. The HSE appeals against this finding.

5 Before considering the arguments in the case, it is necessary to set out the relevant chronology and the account and explanations of the delay as furnished by the defendant's solicitor, Mr. Halley. The affidavit of the solicitor for the HSE sets out relevant dates as follows:

• The plaintiff issued her personal injuries summons against the defendant on 14th March 2013.

• An appearance was filed on 17th April 2013.

• A notice for particulars of 25th June 2013 received a response with replies on 27th September 2013.

• The personal injuries defence was delivered by solicitors for the defendant on 7th April 2014.

• The plaintiff's solicitors filed notice of trial on 9th April 2014 and served their disclosure schedule pursuant to S.I. 391/1998 on the defendant's solicitors on 2nd April 2015.

• The defendant applied to the High Court for leave to issue and serve the third party notice on the HSE on 27th October 2015 and the notice was issued on 17th November 2015 and served on 19th November 2015.

6 The defendant's response came in the affidavit of Mr. Halley sworn on 26th January 2016. Having set out the background to the plaintiff's case, Mr. Halley said that issues were raised with the HSE as to the appropriateness and suitability of the placement of the service user who allegedly caused the plaintiff's injuries, both before and during the currency of her stay in the defendant's care facility. Following the incident, the HSE was fully informed as to the circumstances and the service user was ultimately transferred on 6th May 2011 to a high-dependency support service.

7 Mr. Halley addresses the delay issue. He says that papers were sent to Junior Counsel on 2nd January 2014, and in advices dated 20th March 2014, Counsel advised that consideration should be given to joining the HSE as third party. Papers were sent to Senior Counsel on 1st May 2014 for advice on proofs, and specifically to advise on the issue of joining the HSE but 'unfortunately, the papers were misplaced in his office and I did not receive a reply from him with his Advice on Proofs and Advices until 30th January 2015'. Senior Counsel advised that the potential issue between the defendant and third party was a difficult and unusual one requiring specialised expert opinion and advising that a report be obtained from Professor Gournay in the United Kingdom.

8 Mr. Halley wrote to the State Claims Agency on 26th March 2015, before getting expert opinion, in which he set out facts concerning the service user and stated that the feasibility of sustaining her placement in the home had been raised on a continuing basis with the Social Work Department of the HSE. He said that the HSE was alerted to the unsuitability of the placement and that it had accepted at a case conference that the person needed a more specialised placement. His letter concluded with the following paragraph:

'In the circumstances, it is clear that the...