Michael Hennessy v Michael Griffin and Others
| Jurisdiction | Ireland |
| Judge | Kearns P. |
| Judgment Date | 13 March 2015 |
| Neutral Citation | [2015] IEHC 150 |
| Court | High Court |
| Date | 13 March 2015 |
[2015] IEHC 150
THE HIGH COURT
BETWEEN
AND
AND
Rules of the Superior Courts – Practice and Procedures – Medical Negligence - Civil Liability Act 1961 – Defence – Reasonable Time - Due Diligence – Third Party
Facts: This case was concerned with an application brought pursuant to Order 16(8)(3) of the Rules of the Superior Courts to set aside third party proceedings brought by each of the defendants pursuant to orders of the court dated the 18th March, 2014. The plaintiff”s claim arose out of medical negligence proceedings brought against the defendants, both general practitioners, which were compromised as between the plaintiff and the defendants on the 19th March, 2014, the day following the joinder of the third party who was an oncologist. The third party contended that the proceedings against him should be set aside because there had been a manifest failure to proceed with any due diligence in relation to the issuance of the third party notice against him. It was contended on his behalf that a defendant seeking to join a third party to proceedings was obliged to do so by application to court to be made as soon as reasonably possible under s 27(1)(b) of the Civil Liability Act 1961. Order 16, rule 1(3) of the Rules of the Superior Courts further required that the application for leave to issue such a notice be made within 28 days from the date limited for the delivery of a defence.
Held by Justice Kearns in light of the available evidence and submissions presented that he was
satisfied that no proper explanation had been provided by the defendants for the delay in issuing and serving the third party notice upon the third party herein in circumstances where the proceedings concerning an injury arising in October 2010 were issued in September 2012 and were case managed with the specially fixed trial date of the 19th March 2014 being provided in December 2013. The Court was further satisfied that all necessary investigations should have been completed well in advance of that time and that adequate information was available from the pleadings to enable appropriate steps to be taken. Thus, the Court was quite satisfied that the third party notices were not served as soon as was reasonably possible. Consequently, Justice Kearns was of the opinion that that ground alone was sufficient to dispose of any resistance that the third party claim herein. It was reasoned that the involvement of the third party in the plaintiff”s treatment came at the very end of the various stages of medical treatment prior to the amputation. Having regard to the plaintiff”s advanced age, Justice Kearns stated that it was difficult to see what role he might be expected to play in any third party proceedings were they allowed to continue. The Court accordingly found for the third party on this ground also. Finally, the third party notice, in the opinion of the Court, would be set aside for the failure on the part of the first named defendant to obtain appropriate expert evidence prior to the issue of the third party notice, and, in the case of the second named defendant, leaving it until the very last moment to obtain such evidence and to make same available to the third party. In the circumstances the Court acceded to the third party application to strike out the third proceedings herein insofar as both defendants were concerned.
JUDGMENT of Kearns P. delivered on the 13th day of March, 2015
This is an application brought pursuant to Order 16(8)(3) of the Rules of the Superior Courts to set aside third party proceedings brought by each of the defendants pursuant to orders of the court dated the 18 th March, 2014.
The plaintiff's claim arose out of medical negligence proceedings brought against the defendants, both general practitioners, which were compromised as between the plaintiff and the defendants on the 19 th March, 2014, the day following the joinder of the third party who is an oncologist. The third party contends that the proceedings against him should be set aside because there has been a manifest failure to proceed with any due diligence in relation to the issuance of the third party notice against him. It was contended on his behalf that a defendant seeking to join a third party to proceedings is obliged to do so by application to court to be made as soon as reasonably possible under s.27(1)(b) of the Civil Liability Act 1961. Order 16, rule 1(3) of the Rules of the Superior Courts further requires that the application for leave to issue such a notice be made within 28 days from the date limited for the delivery of a defence.
The plaintiff is a retired farmer from Co. Waterford who was born on the 12 th December, 1928.
He commenced proceedings against the defendants by plenary summons dated the 14 th September, 2012. The indorsement of claim records that the plaintiff attended the defendants for a number of years with a medical complaint of a lesion on his left wrist, which the defendants and each of them purported to diagnose and to treat regularly as a recurrent sore. This treatment continued until the defendants referred the plaintiff to a specialist dermatologist in December 2009. He saw the plaintiff in 2010 and diagnosed the complaint to be a squamous cell carcinoma of the left wrist. This specialist immediately referred the plaintiff to one oncologist and then to the third party who confirmed the diagnosis and found that the cancer was so advanced as to not be amenable to any conservative treatment or to localised surgical excision, but was then so advanced that the plaintiff required amputation of the left forearm as the only means of curing the cancer at that time. In those circumstances, the plaintiff underwent amputation of the left forearm which was undertaken in November 2010.
The relevant timeline for the issues under consideration in this application may be set out as follows:-
| Pre December 2009 | The plaintiff attended the defendants for a number of years with a medical complaint of a lesion on his left wrist |
| December 2009 | The plaintiff was referred by the defendants for specialist assessment |
| April 2010 | Plaintiff was assessed by Dr. Colin Buckley, Consultant Dermatologist, who diagnosed a squamous cell carcinoma |
| June 2010 | The plaintiff was referred to Mr. Dale Hacking, Consultant Radiological Oncologist, at the Whitfield Clinic for Radiotherapy |
| 8 June 2010 | The plaintiff was seen by the third party, who is a Consultant Radiological Oncologist, at the Whitfield Clinic |
| 25 June-13 August 2010 | The plaintiff underwent a course of radiotherapy |
| 14 September 2012 | A personal injury summons issued naming the two general practitioners as the defendants |
| 19 November 2013 | First defendant delivered his defence |
| 31 January 2014 | Second named defendant delivered his defence (16 months after the issue of the summons) |
| 12 March 2014 | First defendant's motion to join third party issued (4 days before trial date). The second named defendant's motion to join the third party issued at around the same time |
| 18 March 2014 | Liberty to issue and serve the third party notice on thethird party granted to both defendants |
| 19 March 2014 | Case listed for hearing and compromised as between the plaintiff and the defendants on terms unknown to the third party |
| 2 April 2014 | Second named defendant served third party notice on third party |
| 14 April 2014 | First defendant served third party notice on third party |
| 30 April 2014 | Appearance entered on behalf of third party |
It should be noted that in making the order joining the third party, Irvine J. did so expressly without prejudice to the right of the third party to seek to set aside the order and this direction was expressly recorded on the face of the order. By letter dated the 30 th April, 2014 the third party's solicitor advised the solicitors for the first defendant that the third party intended to bring such a motion.
The same was duly brought by notice of motion dated the 12 th June, 2014.
The third party now submits that there are three net issues for consideration in this application, namely:-
(a) Were the third party notices served "as soon as is reasonably possible"?
(b) Is the prejudice to the third party on the particular facts of this case such that the third party notices should be set aside in any event?
(c) Should the third party notices be set aside for failure to obtain appropriate expert evidence prior to the issue of same?
Having regard to the fact that the applications of both defendants to join the third party were made more or less contemporaneously, and further having regard to the fact that the factual template common to both applications is virtually identical, the Court proposes to deal with the present application as one application only.
It is settled law that the purpose of third party procedures is to avoid a multiplicity of actions arising out of the same set of facts. In that regard Delaney & McGrath Civil Procedure in the Superior Courts (Third ed.) at para. 9.09 states:-
"In Gilmore v. Windle [1967] I.R. 323 O'Keeffe J. stated that s.27 is clearly intended to ensure that, as far as possible, all questions relating to the liability of concurrent wrongdoers, or persons who may be concurrent wrongdoers, should be tried in a single proceeding. Thus, its purpose is to prevent a multiplicity of actions because, as Denham J. stated in Connolly v. Casey [2000] 1 I.R. 345, 'a multiplicity of actions is detrimental to the administration of justice, to the third party and to the...
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