Morey v Marymount University Hospital and Hospice Ltd

• Jurisdiction: Ireland
• Judge: Ms. Justice Baker
• Judgment Date: 04 May 2017
• Neutral Citation: [2017] IEHC 285
• Court: High Court
• Docket Number: [2015 No. 1241 P]
• Date: 04 May 2017

BETWEEN

VICKIE MOREY

PLAINTIFF

AND

MARYMOUNT UNIVERSITY HOSPITAL AND HOSPICE LIMITED

AND

BAM CONSTRUCTION LIMITED

DEFENDANTS

AND

BAM BUILDING LIMITED

FIRST NAMED THIRD PARTY

AND

SUIR ENGINEERING LIMITED

SECOND NAMED THIRD PARTY

[2017] IEHC 285

Baker J.

[2015 No. 1241 P]

THE HIGH COURT

Contract – Personal injury summons – Breach of contract – Negligence – Practice & Procedures – O. 16, r. 8 (3) of the Rules of the Superior Courts – S. 27(1) (b) of the Civil Liability Act 1961 – Third party notice – Delay

Facts: The first named third party had filed an application for setting aside the third-party notice issued against it by the first defendant. The first named third party contended that there was a delay of more than 13 months in issuing summons against it. The first defendant submitted that since it had entered into a contract for the construction of a hospital with the first named notice party or concerned entities, that party was also liable to contribute for the injury caused to the plaintiff during the course of employment in the hospital.

Ms. Justice Baker dismissed the application. The Court held that there was no prejudice caused to the first named third party by joining the present proceedings. The Court found that the delay by the first defendant in joining the first named notice party was culpable. The Court, however, held that the claim of breach of contract against that notice party was not statute barred as when the third-party notice was issued; the construction work on the hospital premises was still going on. The Court noted that even when the third-party notice was erroneously issued to a dissolved entity; it was within the knowledge of the first named third party that the first defendant was in the process of seeking contribution from that dissolved entity.

JUDGMENT of Ms. Justice Baker delivered on the 4th day of May, 2017.

1 This judgment is given in the application by the first named third party, BAM Building Ltd (‘BAM’) for an order pursuant to O. 16, r. 8(3) of the Rules of the Superior Courts to set aside a third-party notice issued and served on BAM on 19th April, 2016.

2 Briefly, the chronology of the proceedings is as follows:

(i) 13th February, 2015 personal injuries summons served;

(ii) 19th August 2015 defence served;

(iii) 14th March, 2016 motion to join third party issued, after warning letter sent on 29th February, 2016;

(iv) 11th April, 2016 order of the High Court;

(v) 19th April, 2016 third-party notice served;

(vi) 9th November, 2016 motion to strike out issued.

3 BAM is a limited liability company with registered offices in the State. In or around the year 2009, BAM entered into a contract with the first defendant for the construction of a hospital. The personal injuries summons incorrectly named an associated company, BAM Construction Ltd, as second named defendant although this company never had any involvement in the construction of the hospital, and had been dissolved on 22nd February, 2008.

4 The accident the subject matter of the proceedings is alleged to have occurred on or about 12th October, 2012. The plaintiff in the course of her employment with the first defendant was present at its hospital at Marymount, Curraheen in the County of Cork, when it is alleged that a wall-mounted television unit detached from the wall and struck the plaintiff on the head and face. The plaintiff alleges that the accident was caused by reason of the negligence, breach of contract and breach of duty of the defendants, in regard to the installation and fitting of the television unit.

5 The application to set aside the third-party notice is grounded on the argument that the first named defendant delayed unduly in bringing a motion to join BAM as third party. A period of thirteen months elapsed between the commencement of the proceedings in February, 2015 and the issue of the motion on the on 14th March, 2016. BAM argues that it ought to have been clear and obvious to the first defendant that the plaintiff had wrongly named the dissolved company as second defendant, in particular because the first defendant had access to all documentation relating to the contract for the construction of the hospital, it being one of two parties to the contract, and the contract being for a significant monetary consideration, and that even a preliminary or superficial investigation would have identified the error, as the named second defendant company was dissolved before the contract to build had been entered into.

6 The first defendant through its solicitors and insurance company had written to the named second defendant, by then dissolved, at its registered office at Kill, County Kildare by letters of 29th April, 2014, and 23rd March, 2015. BAM argues that it is clear from these letters that the first defendant was well aware that there were different corporate entities within the BAM group of companies, that investigation and correspondence had occurred as long ago as April, 2014, a year prior to the personal injury summons, and two years before the motion to join the third party. It is argued in those circumstances that the application to join the third party was not made as soon as was reasonably possible, as is required by the statutory provisions, and that the delay of thirteen months in taking steps to join BAM is unexplained and wholly excessive.

7 The first defendant relies on a number of arguments in opposing this application. It points to the multiplicity of BAM entities, and names six of these by way of illustration. It points to the fact that the error made by the plaintiff was to name the wrong entity within the group, and that the motion to join a third party arose because the plaintiff chose to discontinue against the dissolved company and proceed solely against the first defendant. It argues that BAM allowed a period of seven months to elapse since it was joined as third party before bringing this motion, and that the principles found in the case law suggest that the requirement of expedition must be applied to all relevant parties in the application. The first defendant also argues that the third party has failed to disclose any prejudice to it in its defence of the third-party proceedings, and that as a matter of fact BAM was notified of the incident and carried out an inspection in the days immediately following the incident, and itself then carried out the necessary repair works on the premises. In those circumstances BAM was aware of the claim, and this is not denied. Further, the named third party is an appropriate party to the proceedings.

8 A particular emphasis is placed by the defendant on the fact that by letter of 4th August, 2016, BAM's solicitors requested a third-party statement of claim and thereby engaged in the proceedings. It is argued that it is thereby estopped from seeking to set aside the notice. The solicitor for the third party points to a letter written some five weeks later, on 13th September, 2016, in which he advised that having considered the matter further, a motion to set aside the third-party notice on the grounds of delay was to be issued, and that a third-party statement of claim was no longer required.

9 No steps have been taken in the proceedings by either party since that date, albeit the first defendant delivered the third-party statement of claim on 30th September, 2016, after the letter by which the motion to set aside the third-party notice had been threatened.

10 The defendant has not identified precisely when it became aware of the error in the plaintiff's proceedings in regard to the correct BAM entity.

The law

11 Section 27(1)(b) of the Civil Liability Act 1961, provides for the service of a third-party notice by which a defendant may make a claim for contribution against a person who is not already party to a suit. The statutory provisions expressly require that such notice be served ‘as soon as is reasonably possible’. The Act does not prescribe any period within which application is to be made, but O. 16, r. 1(3) of the Rules of the Superior Courts provides a period...