McElwaine v Hughes

• Jurisdiction: Ireland
• Judge: Mr. Justice Barron
• Judgment Date: 30 April 1997
• Neutral Citation: [1997] IEHC 74
• Docket Number: 2686p/1993
• Court: High Court
• Date: 30 April 1997

McELWAINE v. HUGHES

BETWEEN

PATRICK McELWAINE

PLAINTIFF

AND

PAUL VINCENT HUGHES

DEFENDANT

[1997] IEHC 74

2686p/1993

THE HIGH COURT

Synopsis:

Practice and Procedure

Joinder of third parties to proceedings; third parties put on notice of possible claim but not served with notices until after receipt of reply to notice for particulars; whether third parties served as soon as reasonably possible under s.27(1)(b), Civil Liability Act, 1961 Held: Third parties served as soon as reasonably possible; reasonable to wait for receipt of Notice for Particulars High Court: Barron J. 30/04/1997

McElwaine v. Hughes

Citations:

CIVIL LIABILITY ACT 1961 S27

GILMORE V WINDLE 1967 IR 323

GOVERNORS OF ST LAWRENCES HOSPITAL V STAUNTON 1990 2 IR 31

1 Mr. Justice Barrondelivered the 30 day of APRIL, 1997.

2 The Plaintiffs' claims in these and related proceedings are for damages for negligence and breach of duty arising out of the consumption of shellfish on or about the 21st November, 1991 at the Defendant's hotel premises at Clifden, County Galway. The proceedings were commenced by Plenary Summonses issued on 16th April, 1993 to which appearances were entered on the 10th May, 1993. Statements of Claim were delivered on the 20th July, 1993. Notices for Particulars were delivered by the Defendant on the 3rd September, 1993 and the 6th October, 1993. These were replied to on the 5th April, 1994.

3 It appears that from an early stage in the proceedings that oysters consumed by the Plaintiffs were isolated as being the cause of their personal injuries. On the 25th November, 1993, O'Byrne letters were sent to the suppliers of the oysters to the hotel concerned and also to the firm of growers who in turn had supplied the oysters to the former concern, being the

4 Third Parties. However, it was not until the replies to the Notices for Particulars were furnished on the 5th April, 1994 that confirmation was received by the Defendant that the Plaintiffs were relying upon the oysters as the cause of their injuries.

5 On receipt of these replies, the Defendant's Solicitor was advised by Counsel to seek the opinion of a microbiologist on the issue of who was at fault for what had occurred. Instructions were sent to a Professor of Microbiology in University College, Cork for his opinion. At the same time the Solicitor for the Defendant sought to ascertain whether or not any similar complaints had been received by the Western Health Board. Unfortunately, the latter body, through its Environmental Health Officer, was not prepared to give any details. Notwithstanding monthly reminders, the Professor of Microbiology did not furnish his opinion to the Defendant's Solicitor until the 18th January, 1995.

6 Having received this opinion, defences were filed on the 30th January, 1995 and Notices of Motion for liberty to serve Third Party Notices were issued on the 21st February, 1995. These Motions were heard on the 3rd March, 1995 and ultimately Orders giving liberty to serve Third Party Notices were made on the 8th May, 1995. These applications are brought by the Third Parties to have those Notices set aside on the grounds that they were not served on them as soon as was reasonably possible.

7 The statutory provision on which the Third Parties rely is contained in the Civil Liability Act, 1961, Section 27. So far as it is material to the present proceedings, the provision is as follows:-

"27-(l) A concurrent wrongdoer who is sued for damages or for contribution and who wishes to make a claim for contribution under this part -"

(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."

8 This application must be considered in the context of the proper construction. In Gilmore -v- Windle, 1967 I.R. 323,O'Keeffe J. dealing with the policy of the Act, said:-

"Section 27 of the Act of 1961 is clearly intended to ensure that, as far as possible, all questions relating to the liability of concurrent wrongdoers... should be tried in a singleproceeding..."

9 In Board of Governors of St. Lawrence's Hospital -v-Staunton, 1990 2 I.R. 31, Finlay C.J. expressed a similar view of the policy of the Act and at the same time considered the options open to a defendant. He said at page 35:-

"An interpretation making the service of a Third Party Notice as soon as possible in the action the only method of claiming contribution from a person not already a party to the action coincides with the general policy of this part of the Civil Liability Act, 1961making claims for contribution and indemnity as well as claims for damages all preferably heard together in the one proceedings and at approximately the same time.I am, however, driven to the conclusion that the expressed vesting in the Court of a discretion to refuse to make an...