Morrow v Fields of Life Trust Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Denis McDonald
• Judgment Date: 30 July 2020
• Neutral Citation: [2020] IEHC 390
• Docket Number: [2015 No. 1844 P.]
• Court: High Court
• Date: 30 July 2020

BETWEEN

NIGEL MORROW

PLAINTIFF

AND

FIELDS OF LIFE TRUST LIMITED

AND

TREVOR STEVENSON TRADING AS FIELDS OF LIFE TRUST

DEFENDANTS

AND

J. HATTY & COMPANY

THIRD-PARTY

[2020] IEHC 390

Denis McDonald J.

[2015 No. 1844 P.]

THE HIGH COURT

Third-party notice – Undue delay – Rules of the Superior Courts O. 16 – Third-party seeking to set aside the third-party notice served upon it by the defendant – Whether the defendant unduly delayed in pursuing the joinder of the third-party

Facts: The third-party, J. Hatty & Company, brought an application pursuant to O. 16 r. 8 (3) of the Rules of the Superior Courts seeking to set aside the third-party notice served upon it by the first defendant, Fields of Life Trust Limited, pursuant to an order made by Barrett J on 5th February, 2018. As originally framed, the application was brought on the basis that the first defendant unduly delayed in pursuing the joinder of the third-party. However, in the course of the hearing (and in written submissions delivered on behalf of the third-party subsequent to the hearing) an argument had also been made that the third-party claim did not fall within the ambit of O. 16 r. 1.

Held by the High Court (McDonald J) that, in the particular circumstances of this case, the balance of justice lay in favour of allowing the third-party claim to proceed. McDonald J identified nothing in this case which would render it unjust to permit the third-party claim to proceed; on the contrary, if the third-party notice was set aside, this would prevent all issues being decided in these proceedings which would undermine the rationale underlying O. 16 and give rise to a real risk of injustice.

McDonald J held that the third-party’s application to set aside the third-party notice should be refused.

Application refused.

JUDGMENT of Mr. Justice Denis McDonald delivered on 30th July, 2020

1 The above named third-party (“the third-party”) has brought an application pursuant to 0. 16 r.8 (3) seeking to set aside the third-party notice served upon it by the first named defendant pursuant to an order made by Barrett J. on 5th February, 2018. As originally framed, the application was brought on the basis that the first named defendant unduly delayed in pursuing the joinder of the third-party. However, in the course of the hearing (and in written submissions delivered on behalf of the third-party subsequent to the hearing) an argument has also been made that the third-party claim does not fall within the ambit of 0. 16 r.1 of the Rules of the Superior Courts.

2 For reasons which are explained in more detail below, the principal issue which arises on this application relates to the principles which should be applied in relation to the joinder of a third-party where the relevant claim against the third-party is not governed by the provisions of Part III of the Civil Liability Act, 1961 (“the 1961 Act”). Part III of the 1961 Act will only apply where the third-party concerned and the defendant who has sought to join that party to the proceedings are both “concurrent wrongdoers” within the meaning of s. 11 of the 1961 Act. In the affidavit of Ms. Nuala McAnally grounding the present motion, it was contended that the third-party notice was not served either in accordance with the time limits set out in 0.16 or as soon as reasonably possible as required by s. 27(1) of the 1961 Act. However, for the reasons set out below, counsel for the third-party has accepted, in making this application, that the first named defendant and the third-party cannot be said to be concurrent wrongdoers within the meaning of s. 11. This is because there is no basis, in the present case, to suggest that both the defendants and third-party are each responsible to the plaintiff for the injuries alleged to have been sustained by him. Accordingly, counsel accepted that s. 27 (1) of the 1961 Act cannot be relied upon in support of the application to set aside the third-party notice. In such circumstances, the significant body of case law that exists addressing the principles applicable to s. 27 (1) is of limited assistance in assessing the present application.

3 There are a number of authorities on the joinder of third-parties in cases which are not governed by the 1961 Act. These include the decision of McCracken J. in Golden Vale Plc v. Food Industries Plc [1996] 2 I.R. 221 and the decision of Morris J. (as he then was) in Ward v. O'Callaghan (High Court, unreported, 2nd February, 1998). In both of those authorities, the court took the view that a third-party seeking relief of this kind must be in a position to demonstrate some prejudice as a consequence of the delay in joining it as a third-party.

4 In the present case, however, counsel for the third-party has argued that these decisions of McCracken and Morris J.J. predate the decision of the Supreme Court in Gilroy v. Flynn [2004] IESC 98 [2005] 1 ILRM 290 and similar decisions in which the courts have placed significant emphasis on the European Convention on Human Rights (“ ECHR”). In such circumstances, counsel argues that the approach taken in Golden Vale and in Ward v. O'Callaghan now needs to be recalibrated to take account of the subsequent jurisprudence on the impact of the ECHR. That said, counsel for the defendants, in his written submissions, has drawn attention to the recent decision of Simons J. in Haughton v. Quinns of Baltinglass Ltd [2019] IEHC 872 where the court, in taking the whole circumstances of the case into account, considered whether the third-party had been prejudiced by the delay in serving the third-party notice. There is nothing in the judgment of Simons J. in that case which suggests that Gilroy v. Flynn principles might be said to apply. However, that is unsurprising in circumstances where, in contrast to the present case, the delay in Haughton was of no more than five months.

5 Before attempting to address the legal issues which arise, it is necessary, in the first place, to set out the relevant facts. As will be seen, there have been some twists and turns in the events to date.

Relevant facts

6 The plaintiff issued a Personal Injury Summons on 6th March, 2015. In that summons, the plaintiff made the following claims:-

(a) In the first place, the status of the first named defendant as a registered charity was highlighted along with its role in facilitating the provision of building services in Uganda through the use of volunteer builders from Ireland. Unusually, para. 1 (b) of the endorsement of claim states that the first named defendant “is insured with ACE Europe to cover injuries sustained by volunteers”;

(b) The plaintiff says that, in 2011, he volunteered with the defendants to travel to Hoima, Uganda to assist in the construction of a school building project. In 2012, he volunteered for a second time to assist in the construction of a school at Bugiri, Uganda. He travelled to Bugiri in October, 2012 and started work on the site. However, in the course of his work, he suffered an injury to his back when, under the instruction of the on-site manager of the project, he attempted to lift a wheelbarrow.

(c) The plaintiff claims that, over the course of the evening after the accident, his condition worsened. He complains that the first defendant's representatives delayed in obtaining medical treatment for him and would not assist in organising transport to a hospital in Kampala. In the meantime, his pain worsened. Ultimately, an ambulance was arranged to take him to hospital in Kampala. From there he was moved to hospital in Johannesburg from where he was discharged after receiving an epidural. On his return to Ireland at the beginning of November 2012, he was admitted, first to Sligo Regional Hospital and subsequently to the Mater Hospital in Dublin where an operation was performed to ameliorate damage done to two discs in his spine.

(d) A substantial claim is made in relation to loss of earnings, travel expenses and medical expenses.

7 On 11th March, 2015, an affidavit of verification was sworn by the plaintiff verifying the claim made in the Personal Injuries Summons. Thereafter, according to O. 1A, r. 8, the defendants had a period of eight weeks in which to deliver their defence. That time period expired on 6th May, 2015. Under O. 16 r.1 (3), the defendants had a period of 28 days after the expiry of the time for delivery of the defence in which to bring an application to bring an application to join the third-party. That time period expired on 3rd June, 2015.

8 Almost a year passed before the defence was delivered in May 2016. In addition to relying on a waiver of liability executed by the plaintiff and in addition to denying negligence, the defence contains a preliminary objection to the effect that the plaintiff's claim is governed by the laws of Uganda. It is alleged in the defence that it is for the plaintiff to prove (a) that the proceedings are not barred by any provision of the laws of Uganda and (b) that the plaintiff would be entitled to maintain his claim against the defendants under that law. The defence also contends that the quantum of any damages to which the plaintiff might be entitled is to be measured by reference to the applicable principles of the laws of Uganda.

9 It was not until 8th December, 2016 that the first named defendant brought a motion seeking to join the third-party to the proceedings. That is 18 months after the expiry of the period prescribed by O. 16, r. 1 (3). The application was grounded on the affidavit of Richard Spratt, the chief executive of the first named defendant in which he said that J. Hatty & Company, the proposed third-party, operated as insurance brokers from premises of 34 Hamilton Road, Bangor, County Down. Mr. Spratt stated that, in January, 2011, the first named defendant retained the third-party to advise on the insurance to be put in place in relation to its charitable activities...