Kilcoyne (A Minor) v McHale
| Jurisdiction | Ireland |
| Judge | Ms. Justice Pilkington |
| Judgment Date | 28 February 2023 |
| Neutral Citation | [2023] IECA 45 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Court of Appeal Record No. 2022/52 |
and
[2023] IECA 45
Donnelly J.
Faherty J.
Pilkington J.
Court of Appeal Record No. 2022/52
High Court Record No. 2017 No. 468P
THE COURT OF APPEAL
CIVIL
Third party proceedings – Personal injuries – Delay – Appellant seeking to set aside third party proceedings – Whether the respondent brought the third party proceedings as soon as was reasonably possible
Facts: The plaintiff, a minor, on 19 January 2017, issued proceedings through her next friend, Mr Kilcoyne. The plenary summons sought damages for personal injuries arising from an alleged accident on 16 May 2015 where hot oil from a deep fat fryer came into contact with her whilst she was climbing onto a chair. The allegation was that the plaintiff, at the time of the alleged accident, was at the home of the defendant/respondent, Ms McHale, under the supervision of the third party/appellant, Ms Rowland. On 30 May 2018, the defendant issued a notice of motion seeking an order pursuant to Order 16 of the Rules of the Superior Courts (RSC) for liberty to issue and serve a third party notice upon Ms Rowland. On 16 July 2018, Barr J acceded to the application and Ms Rowland was served personally on 19 July 2018. The notice of motion to set aside that third party notice issued on 16 November 2020, seeking orders, pursuant to RSC Order 16, rule 8(3) or in the alternative s. 27(1)(b) of the Civil Liability Act 1961 to set aside the third party proceedings. Pursuant to the order of Heslin J on 21 January 2022 (perfected 3 February 2022) following his judgment delivered on 21 December 2021, the High Court refused to set aside the third party notice and made an award of costs against Ms Rowland (with a stay upon execution pending final determination of the proceedings). The issues that arose for immediate consideration in Ms Rowland’s appeal to the Court of Appeal were: (i) whether the High Court judge erred in fact or in law in deciding that Ms Rowland did not act as soon as was reasonably possible in applying to set aside the third party notice; and (ii) in the context of (i) above, whether, in concluding as he did, the High Court judge had proper regard to “the whole circumstances of the case and its general progress” (as per Denham J in Connolly v Casey [2000] 1 IR 345) including Ms Rowland’s assertion that the defendant’s delay in serving the third party notice was a factor to be considered in assessing whether the application to set aside the third party notice was in fact served as soon as reasonably possible.
Held by Pilkington J that, in all the circumstances of the case, she could not accept that the application to set aside the third party notice was served ‘as soon as is reasonably possible’. She noted that the defendant first learned that such an application to set aside a third party notice was to be issued in or about November 2020. Pilkington J noted that up until that time it had been clearly intimated to the defendant that the third party proceedings would proceed once the outstanding issues had been clarified or resolved. Pilkington J noted that the reasons for the adjournments were not ultimately utilised in aid of the third party proceedings, as the conclusion by those acting for Ms Rowland was that the appropriate course was to seek to strike out the third party notice. Pilkington J held that whilst certain aspects of the case were unusual, nevertheless in objectively considering the totality of that aspect of the litigation, it could not be said that the application to set aside the third party notice was instituted ‘as soon as is reasonably possible’ and the third party’s appeal must fail.
Pilkington J dismissed the appeal. As the defendant had been entirely successful, Pilkington J’s provisional view was that the defendant should be entitled to the costs of the appeal.
Appeal dismissed.
JUDGMENT of Ms. Justice Pilkington delivered on the 28 th day of February 2023
. This appeal is in respect of an application to set aside a third party notice. The parties comprise the third party appellant Ms Rowland whom I shall refer to as Ms Rowland or the appellant and the defendant/respondent who I shall refer to in these terms as appropriate.
. Pursuant to the order of Heslin J. on 21 January 2022 (perfected 3 February 2022) following his judgment delivered on 21 December 2021, the High Court refused to set aside the third party notice and made an award of costs against Ms Rowland, (with a stay upon execution pending final determination of the proceedings).
. In an application where the joinder or setting aside of third party proceedings is at issue, the legal principles are now relatively clear and uncontroversial. Whilst the parties to this appeal seek to rely upon differing aspects of the relevant judgments, the basic propositions are clear and considered below. Equally clear is the premise that such propositions can only be properly assessed upon an examination of the specific facts and circumstances of each case.
. The trial judge embarked upon an exhaustive examination of these facts and circumstances and it is also necessary, for the purposes of properly considering the appeal, to recite these matters in some detail.
. On 19 January 2017 the plaintiff issued proceedings, through her next friend. The plenary summons seeks damages for personal injuries arising from an alleged accident where hot oil from a deep fat fryer came into contact with her whilst she was climbing onto a chair. As appears later within the pleadings, the allegation is that the plaintiff, at the time of the alleged accident, was at the home of the defendant, under the supervision of the third party.
. At the date of the alleged accident on 16 May 2015, the plaintiff was a very young minor.
. All of the parties to the litigation are related; the respondent is the minor plaintiff's grandmother and the appellant, Ms Rowland, is the respondent's sister and a great aunt of the plaintiff.
. In the normal course an appearance was entered on 8 March 2017, followed by a notice for particulars dated 30 March 2017, with replies furnished on 1 June 2017.
. The defence was delivered on 5 July 2017. For present purposes the relevant pleading is at para. 3(iii) and is as follows:
“3. The grounds upon which the respondent claims that she is not liable for injuries suffered by the plaintiff are as follows:
…
(iii) that the plaintiff suffered personal injuries, loss and damage as a consequence of the negligence and breach of duty (including breach of statutory duty) on the part of Ms Kathleen Roland of [address given].”
. On 30 May 2018 the respondent issued a Notice of Motion seeking an order pursuant to RSC Order 16 for liberty to issue and serve a third party notice upon Ms Rowland.
. On 16 July 2018 Barr J. acceded to the application and Ms Rowland was served personally on 19 July 2018 (it was sent by pre-paid registered post on that day).
. An appearance to the third party notice was entered on 5 November 2019. No copy of the appearance was available in court and the date for its entry is stated as being either 5 or 6 November 2019. It appears to have been served under a covering letter of 5 November and it is therefore perhaps more likely to be that date but, in my view, nothing of substance turns upon this.
. The Notice of Motion to set aside that third party notice issued on 16 November 2020, seeking orders, pursuant to RSC Order 16, rule 8(3) or in the alternative s.27(1)(b) of the Civil Liability Act 1961 (‘s. 27(1)(b)’) to set aside the third party proceedings. The motion states it is being brought on behalf of the plaintiff, clearly it is the third party.
. Arising from this application, affidavits were exchanged, which in turn exhibited a significant body of documentation.
. Throughout the documentation, in dealing with the various parties, the respondent's solicitor is Dillon Eustace (Mr Paul Breen) and the respondent's insurer RSA. Ms Rowland was initially represented by Patrick J. Durcan & Company Solicitors (‘PJD’) and she held an insurance policy with Zurich Insurance Plc (‘Zurich’). At one point and for a very short period Zurich nominated Nathaniel Lacy & Partners (‘NLP’) to represent its interest. Eventually and up to the present time Ms Rowland is represented by the Legal Aid Board (‘LAB’).
. Two affidavits were sworn in respect of this application; the affidavit of Kathleen Rowland sworn on 10 November 2020 grounding her application and the replying affidavit from Paul Breen of Dillon Eustace sworn on 13 June 2021.
. The specific averments are considered below. However, the particular importance of the affidavits (particularly that of Mr Breen) lies within its exhibits, consisting of the correspondence, including emails, passing between the parties. Given some of the unusual facts of this case, it is necessary to peruse these in some detail.
. I note that all of the letters (and indeed emails) from PJD (certainly prior to the entry of an Appearance by that firm and on occasion afterwards) are marked “without prejudice”. It was expressly confirmed that this claim has been waived and no objection has been raised to these documents forming part of the exhibits.
. The replying affidavit of Paul Breen divides the exhibits into two categories comprising (i) the solicitors' correspondence between Dillon Eustace, PJD and lately NLP, and (ii) various e-mails between Dillon Eustace, RSA and Zurich which is described as the insurer's correspondence.
. In my view, in order to properly determine the timeline of events it is necessary to amalgamate this documentation and also that provided...
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