McAuliffe v Greenstar Holdings Ltd ((in Receivership)) t/a Greenstar
| Jurisdiction | Ireland |
| Judge | Mr Justice Max Barrett |
| Judgment Date | 11 July 2019 |
| Neutral Citation | [2019] IEHC 516 |
| Court | High Court |
| Docket Number | 2017 No. 9228 P |
| Date | 11 July 2019 |
[2019] IEHC 516
THE HIGH COURT
Barrett J.
2017 No. 9228 P
AND
Set-aside order – Third party notice – Delay – Third party seeking an order setting aside a third party notice served on it – Whether there had been failure to comply with O.16, r.1(3) of the Rules of the Superior Courts and s. 27(1)(b) of the Civil Liability Act 1961
Facts: Irish Rail dac sought an order setting aside a third party notice served on it in these proceedings on the basis that there had been failure to comply with O.16, r.1(3) of the Rules of the Superior Courts and s. 27(1)(b) of the Civil Liability Act 1961. Under s. 27 of the 1961 Act, a third-party notice must be served “as soon as is reasonably possible”.
Held by the High Court (Barrett J) that no matter how liberal an interpretation one gives to the phrase “as soon as is reasonably possible”, it was eminently possible to issue the motion sooner than the six months it took it to issue, with the defendants, Greenstar Holdings Ltd (in receivership), Starrus Eco Holdings Ltd, Walker Vehicle Rentals Ltd and Mr Samoulis, having no responsibility for the three months it took before the motion was heard, and the ten days it took to get from receiving the order to serving it being unobjectionable, i.e. the delay from 21.02.2018 to 21.08.2018 leads inexorably to the conclusion that the third party motion did not issue “as soon as is reasonably possible”. Barrett J noted that this is to ignore the fact that the affidavit evidence indicated that the engineering inspection itself suggested to the defendants that the third party was liable; that inspection took place on 04.01.2018, some 7½ months before the motion to join issued. Barrett J noted that it was not as if the accident that was at issue in these proceedings, where the plaintiff, Mr McAuliffe, was hit on his head by a bin that was being brought down on a lorry, was of such complexity as to necessitate such a delay.
Barrett J held that the court would grant the set-aside order sought.
Order granted.
Irish Rail seeks an order setting aside a third party notice served on it in these proceedings on the basis that there has been failure to comply with O. 16, r.1(3) of the Rules of the Superior Courts and s.27(1)(b) of the Civil Liability Act 1961. It is useful to begin with a summary chronology:
22.04.2016 Date of Plaintiff's alleged accident.
24.08.2017 PIAB authorisation issues.
13.10.2017 Plaintiff's proceedings issue (not clear when served).
30.11.2017 Appearances entered for 1st, 2nd and 4th defendants.
28.11.2017 Notice for Particulars raised.
12.12.2017 Replies to Particulars served.
04.01.2018 Engineering inspection (indicated potential liability of third party).
13.02.2018 Expert Report delivered (presumably likewise indicated)
09.03.2018 Appearance entered on behalf of 3rd defendant.
18.06.2018 Defendants” full defence delivered (names...
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Janet Acheson v Loughshinny Motorcycle Supporters Club Ltd
...require proof of prejudice in order to rely on its terms.” 21 Again in McAuliffe v. Greenstar Holdings (in receivership) T/A Greenstar [2019] IEHC 516, Barrett J. referred to the above decision in Kenny v. Howard, stating as follows at para 4:- “Unfortunately for the defendants, it follows ......