Moloney v Liddy

• Jurisdiction: Ireland
• Judgment Date: 01 June 2010
• Date: 01 June 2010
• Docket Number: [2009 No. 3119 P]
• Court: High Court

Moloney v. Liddy

Edmond Moloney and Jacqueline Moloney

Plaintiffs

and

Brendan Liddy, Nicholas Hughes, Brian Roe (practising as Hughes and Liddy Solicitors) Defendants and Kenneth Meehanand J.W. Levins (practising as Meehan Levins Partnership), Third Parties

[2010] IEHC 218,

[2009 No. 3119 P]

High Court

Tort - Concurrent wrongdoers - Third party - Same damage - Delay in serving plenary summons - Loss of opportunity - Whether loss of opportunity equates to same damage - Civil Liability Act 1961 (No. 41), s. 21(1).

Practice and procedure - Third party proceedings - Abuse of process - Original proceedings against third party statute barred - Renewed plenary summons set aside - Whether abuse of process to join third party where original claim against that party statute barred - Whether application to join third party can be brought outside limitation period - Civil Liability Act 1961 (No. 41), s. 31.

Section 21(1) of the Civil Liability Act 1961 provides, inter alia, that a concurrent wrongdoer "may recover contribution from any other wrongdoer who is, or would if sued at the time of the wrong have been, liable in respect of the same damage."

Section 31 of the Act of 1961 provides:-

"An action may be brought for contribution within the same period as the injured person is allowed by law for bringing an action against the contributor, or within the period of two years after the liability of the claimant is ascertained or the injured person's damages are paid, whichever is the greater."

The plaintiffs instigated a claim against a firm of architects whom they had engaged to build a dwelling house and they engaged the defendant firm of solicitors to represent them. There was a delay in serving the plenary summons against the architects. The summons was renewed and the renewed summons was set aside on the basis that there was no good reason for its renewal, with the result that the proceedings were struck out (see [2010] IEHC 8, [2010] 4 I.R. 417). The plaintiffs initiated the current proceedings claiming damages against the defendants, for allowing the original claim against the architects to become statute barred. The defendants sought to join the architects as third parties claiming that they were concurrent wrongdoers responsible for the same damage, pursuant to s. 21 of the Civil Liability Act 1961. The architects sought to have the third party proceedings against them dismissed, as being bound to fail and as being an abuse of process, the order renewing the summons in the original proceedings against them having been set aside.

Held by the High Court (Clarke J.), in dismissing the third party proceedings, 1, that, as a matter of common law, no claim between concurrent wrongdoers was allowed and such a claim was only maintainable, if at all, if it came within s. 21 of the Civil Liability Act 1961, whereby the liability of the concurrent wrongdoers must be for "the same damage". An original claim and a claim against lawyers for delay such as caused the original claim to be statute barred could not be interpreted to be in respect of the "same damage" as set out in s. 21(1) of the Act of 1961. The original claim related to damages caused by an original wrongful event on the part of the original contemplated defendant while the other related to damages for the loss of an opportunity to bring proceedings in respect of that original event. The differences in damages were real and substantial, both as to their nature and the proper approach to their quantification.

Wallace v. Litwiniuk 2001 ACBA 118 and Royal Brompton Hospital NHS Trust v. Hammond [2002] UKHL 14, [2002] 1 W.L.R. 1397 approved.

2. That, having regard to the provisions of s. 31 of the Civil Liability Act 1961 which contemplated bringing a claim for contribution outside of the original limitation period, it was not an abuse of process, per se, to seek to join as a third party a person against whom the original claim of the plaintiff was statute barred.

Cases mentioned in this report:-

Birse Construction Ltd. v. Haiste Ltd. [1996] 1 W.L.R. 675; [1996] 2 All E.R. 1.

Hussey v. Dillon [1995] 1 I.R. 111; [1995] I.L.R.M. 496.

Moloney v. Lacey Building and Civil Engineering Ltd.[2010] IEHC 8, [2010] 4 I.R. 417.

Philp v. Ryan [2004] IESC 105, [2004] 4 I.R. 241.

Royal Brompton Hospital NHS Trust v. Hammond [2002] UKHL 14, [2002] 1 W.L.R. 1397; [2002] All E.R. 801; [2002] 1 All E.R. (Comm.) 897.

Wallace v. Litwiniuk 2001 ACBA 118; 281 A.R. 115; 200 D.L.R. (4th) 534; [2001] 8 W.W.R. 84; (2001) 92 Alta L.R. (3d) 249.

Motion on notice

The facts have been summarised in the headnote and are more fully set out in the judgment of Clarke J., infra.

On the 9th January, 2004 the plaintiffs issued a plenary summons against the third parties which was renewed by the High Court (Peart J.) on the 11th May, 2009. On the 21st January, 2010, the High Court (Clarke J.) set aside the renewal of the summons (see [2010] IEHC 8, [2010] 4 I.R. 417).

On the 2nd April, 2009, the plaintiffs issued a plenary summons against the defendants.

On the 22nd February, 2010, the defendants applied for and were granted liberty to issue and serve a third party notice on the third parties. A third party notice was served on the 24th February, 2010 and a third party statement of claim was delivered on the 19th March, 2010. On the 7th April, 2010, the third parties applied to set aside the third party notices served on them.

The third parties' application was heard by the High Court (Clarke J.) on the 28th April, 2010.

Cur. adv. vult.

Clarke J. 1st June, 2010

Introduction

[1] This application to dismiss relates to proceedings which stem from the same facts as the proceedings in Moloney v. Lacey Building and Civil Engineering Ltd. [2010] IEHC 8, [2010] 4 I.R. 417 (the "original proceedings"). The third parties are founding members in a firm of architects practising under the name of the Meehan Levins Partnership, ("the architects"). That firm was initially engaged by the plaintiffs ("the Moloneys") to design a dwelling house. Problems arose during the construction of the house and the plaintiffs instigated a claim against the architects and Lacey Building and Civil Engineering Ltd., the contractors of the house, ("the contractors"). There was a delay in the serving of the plenary summons against the architects, in relation to which I set aside a renewal order of that summons for the reasons set out in the said judgment of 21st January, 2010 ([2010] IEHC 8).

[2] In these proceedings, the plaintiffs claim against the firm of solicitors who represented them in relation to the original proceedings, Hughes & Liddy Solicitors ("the solicitors"), for damages arising out of the delay in serving the plenary summons on the architects such that the original proceedings are now struck out. In February, 2010 the architects were joined to these proceeding as third parties. In essence, it is alleged that the architects are concurrent wrongdoers with the solicitors responsible to the plaintiffs for the same damage. In joining the architects as third parties, the solicitors are seeking a contribution from the architects pursuant to s. 21 of the Civil Liability Act 1961.

[3] The architects sought to have the third party proceedings against them dismissed, stayed and/or struck out. They argued that there were two potential bases on which proceedings ought to be dismissed, stayed or struck out, which were:-

• A. That on a proper construction of the relevant provisions of the Civil Liability Act 1961, ("the Act of 1961") the architects and the solicitors are not concurrent wrongdoers in respect of the same damage in the sense in which that term is used in s. 21 of the Act of 1961. On that basis it is said that there is no legal basis for the solicitors' claim for a contribution or indemnity from the architects with the result that it is contended that the solicitors claim on the third party issue is bound to fail. A further subsidiary issue concerning the interpretation of the term "wrong" as used in s. 21 of the Act of 1961, is also made which would, if correct, have similar consequences;

• B. in the alternative, it is suggested that it amounts to an abuse of process on the part of the solicitors, in all the circumstances of the case, to seek to litigate issues against the architects when those issues have been dismissed in proceedings brought by the plaintiffs and where, it is said, the solicitors were the prime instigating party in the application made by the plaintiffs which sought...