Molloy v Dublin Corporation

• Jurisdiction: Ireland
• Judge: MR JUSTICE FRANCIS D MURPHY
• Judgment Date: 28 June 2001
• Neutral Citation: [2001] IESC 53
• Docket Number: [S.C. No. 182 of 2000]
• Court: Supreme Court
• Date: 28 June 2001

MOLLOY v. DUBLIN CORPORATION & ORS

BETWEEN:

MARY MOLLOY

PLAINTIFF

AND

THE RIGHT HONOURABLE LORD MAYOR ALDERMAN AND BURGESSES OF DUBLIN, CLONMEL ENTERPRISES LTD AND BESTOBELL VALVES LTD

DEFENDANTS/APPELLANTS

AND

ASHWORTH FRAZER LTD

THIRD PARTY/RESPONDENT

[2001] IESC 53

MURPHY J

HARDIMAN J

FENNELLY J

RECORD No: 182/00

THE SUPREME COURT

Synopsis

Practice and Procedure

Practice and procedure; third party notice; time limit; appellant had sought to serve third party notice on respondent in relation to negligence action; respondent had successfully applied to have third party notice struck out; whether third party notice had been served "as soon as is reasonably possible"; whether application for leave to issue third party proceedings had been postponed because of any want of information or evidence; s. 27, Civil Liability Act, 1961.

Held: Appeal dismissed; trial judge correct in setting aside third party order.

Molloy v. Dublin Corporation - Supreme Court: Murphy J., Hardiman J., Fennelly J. - 28/06/2001 - [2001] 4 IR 52 - [2002] 2 ILRM 22

The present proceedings were issued in respect of the death of the husband of the plaintiff. The plaintiff's husband had died while inspecting a water valve. Thereupon the plaintiff had issued the proceedings against the defendants claiming damages by reason of negligence and breach of statutory duty. One of the defendants (Clonmel), who had employed the deceased, sought leave to serve a third party notice on Ashworth Frazer Limited (Frazer), who had supplied the valve to Clonmel. The third party notice was served over 2 years after the delivery of the statement of claim. Frazer were successful in having the third party notice set aside in a judgment delivered by Mr. Justice Butler on 7 June, 2000. Clonmel had averred to the fact that prosecutions under Health and Safety legislation had been successful against both defendants and Frazer. Clonmel had stated that they had awaited the outcome of the prosecutions before serving the third party notice. Mr. Justice Murphy was satisfied that it had been possible for Clonmel to act sooner than it had done on the information available. Clonmel had not complied with its statutory obligation to act as soon as reasonably possible and the learned High Court judge was correct in setting aside the third party order. The appeal would be dismissed.

Citations:

CIVIL LIABILITY ACT 1961 S27

RSC O.16 r2(2)

ST LAURENCES HOSPITAL V STAUNTON 1990 2 IR 31

MCELWAINE V HUGHES UNREP BARRON 3.4.1997 1998/25/9740

HEALTH SAFETY & WELFARE AT WORK ACT 1989

GILMORE V WINDLE 1966 IR 323

CONNOLLY V CASEY 2000 1 IR 345

1 JUDGMENT OF MR JUSTICE FRANCIS D MURPHY DELIVERED THE 28TH DAY OF JUNE, 2001. [nem diss]

2 The issue in this appeal is whether a third party notice dated the 9th day of July, 1999, and served by Clonmel Enterprises Ltd, the above secondly named Defendant (Clonmel) on the above third party, Ashworth Frazer Ltd (Frazer) was served "as soon as is reasonably possible" within the meaning and for the purposes of s.27 of the Civil Liability Act, 1961.

3 On the 14th day of December, 1994, Thomas Molloy died in a tragic accident. At the time of his death Mr Molloy was in the employment of Clonmel. It is alleged that Clonmel had installed a water valve in an underground chamber at Lower Drumcondra Road for Dublin Corporation (the Corporation). At the time of his death Mr Molloy in company with fellow employees of Clonmel was investigating and attempting to open the valve when the accident occurred. It appears that the accident arose because the spindle on the valve which was not protected by a collar shot from its casing while Mr Molloy was working on it. The valve in question was manufactured by the thirdly named Defendants, Bestobell Valves Ltd (Bestobell) and supplied to Clonmel by Frazer.

4 On the 20th of May, 1996, Mary Molloy, the widow of the late Thomas Molloy instituted proceedings by way of plenary summons claiming damages against each of the above Defendants by reason of negligence and breach of statutory duty on their behalf. The statement of claim was delivered on the 7th of April, 1997, setting out the history of the matter as already described and furnishing particulars of negligence which included the failure:-

"To ensure that the valve was fitted with a suitable spindle collar or other protective restraint so as to ensure that it was incapable of being ejected with force from the body of the valve."

5 Defences were delivered on behalf of each of the Defendants. That on behalf of Clonmel being delivered on the 4th day of June, 1998. By notice of motion dated the 20th May, 1999, Clonmel sought leave to serve a third party notice on Frazer. That leave was duly granted by order of Johnson J made on the 28th day of June, 1999, and in pursuance thereof the notice was duly issued on the 9th July, 1999. By notice dated the 8th day of November, Frazer applied — as they had advised Clonmel they would — for an order striking out the third party notice on the grounds that the same had not been served in accordance with the Civil Liability Act, 1961, as amended. By order of Mr Justice Butler made on the 7th day of June, 2000, the third party notice was struck out for the reasons set out in the agreed note of the extempore judgment of the learned Judge delivered on that date. It is from that judgment and the order made thereon that Clonmel appeals to this Court.

6 The right to serve a third party notice and the time limit within which the same is to be served is set out in s.27(1) of the Civil Liability Act, 1961, in the following terms:-

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

(a) shall not, if the person from whom he proposes to claim contribution is already a party to the action, be entitled to claim contribution except by a claim made in the said action, whether before or after judgment in the action; and

(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."

7 The regulatory provisions concerning the service of third party notices as set out in the Rules of the Superior Court at Order 16 Rule 2(2) in the following terms:-

"The notice shall, unless otherwise ordered by the court, be served within the time limited for delivering the defence or, where the notice is served by a defendant to a counterclaim, the reply, and with it there shall be served a copy of the originating summons and of any pleadings delivered in the action."

8 Having regard to the fact that the defence of Clonmel was delivered on the 4th day of June, 1998, and the notice served on the 9th day of July, 1999, the issue which fell for consideration by Mr Justice Butler was whether Clonmel had complied with the statutory requirement of serving the third party notices "as soon as is reasonably possible" as required by the express provisions of s.27 of the...