Murray v Castlebar Town Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 30 October 2018
• Neutral Citation: [2018] IEHC 603
• Court: High Court
• Docket Number: [2015 No. 5520 P.]
• Date: 30 October 2018

[2018] IEHC 603

THE HIGH COURT

Barr J.

[2015 No. 5520 P.]

BETWEEN

MAJELLA MURRAY

PLAINTIFF

AND

CASTLEBAR TOWN COUNCIL

AND

MAYO COUNTY COUNCIL

DEFENDANTS

AND

AIRTRICITY UTILITY SOLUTIONS LIMITED

FIRST NAMED THIRD PARTY

AND

GIBBONS BUILDING

AND

CIVIL ENGINEERING LIMITED

SECOND NAMED THIRD PARTY

Third party notice - Gross and inexcusable delay - Personal injury - Third party seeking to set aside a third party notice which was issued against it by the defendants - Whether the third party notice was served as soon as was reasonably possible

Facts: The first third party, Airtricity Utility Solutions Ltd, applied to the High Court seeking to set aside a third party notice which was issued against it by the defendants, Castlebar Town Council and Mayo County Council, pursuant to an order of the High Court dated 29th January, 2018. The third party notice was served by the defendants on the first third party on 7th February, 2018. The first third party submitted that the third party notice should be set aside as the defendants did not move "as soon as is reasonably possible" to join it into the proceedings. The first third party submitted that as the notice of motion seeking to join them as a third party to the proceedings was only issued on 7th December, 2017, which was some four years after the date of the accident the subject matter of the proceedings and some two and a half years after the plaintiff, Ms Murray, served her personal injury summons on the defendants, the defendants were guilty of gross and inexcusable delay in seeking to join the first third party to the proceedings. Accordingly, it was submitted that pursuant to O. 16, r. 8(3) of the Rules of the Superior Courts, the court should set aside the third party notice issued against it. In summary, the defendants denied that in the circumstances there was any gross or inordinate delay on their part in seeking to join the third party to the proceedings. In addition, they submitted that there had been no prejudice suffered by the third party due to any delay on their part in bringing the application before the court and that in such circumstances, the court should not set aside the third party notice.

Held by Barr J that there had been no adequate explanation as to why the delay between the receipt of the personal injury summons in July 2015 and the issuance of the motion to join the third parties some two and a half years later in December 2017 should be seen as anything other than a gross and inordinate delay. Barr J was satisfied that the third party notice was not served as soon as was reasonably possible as required by s. 27(1)(b) of the Civil Liability Act 1961.

Barr J held that he would accede to the application of the first third party to set aside the third party notice against it.

Application granted.

JUDGMENT of Mr. Justice Barr delivered on the 30th day of October, 2018

Introduction

1 This is an application by the first named third party to set aside a third party notice which was issued against it by the defendants pursuant to Order of the High Court dated 29th January, 2018. The third party notice was served by the defendants on the first named third party on 7th February, 2018.

2 The first named third party submits that the third party notice should be set aside as the defendants did not move ' as soon as is reasonably possible' to join it into the proceedings. The first named third party submits that as the notice of motion seeking to join them as a third party to the proceedings was only issued on 7th December, 2017, which was some four years after the date of the accident the subject matter of the proceedings and some two and a half years after the plaintiff served her personal injury summons on the defendants, the defendants were guilty of gross and inexcusable delay in seeking to join the first named third party to the proceedings. Accordingly, it is submitted that pursuant to O. 16, r. 8(3), the court should set aside the third party notice issued against it.

3 In summary, the defendants deny that in the circumstances there was any gross or inordinate delay on their part in seeking to join the third party to the proceedings. In addition, they submit that there has been no prejudice suffered by the third party due to any delay on their part in bringing the application before the court and that in such circumstances, the court should not set aside the third party notice.

Chronology of Events

4 This action arises out of an accident which is alleged to have occurred on 13th November, 2013, when the plaintiff was walking with her children on Pavilion Road in Castlebar, Co. Mayo. It is alleged that as a result of the negligence and breach of duty on the part of the defendants, their servants or agents, the plaintiff was caused to trip on the base of a traffic cone and loose bricks, which had been left on the public footpath by the defendants, or one or other of them. It is alleged that as a result of tripping, the plaintiff fell against a low wall and as a consequence thereof, she has suffered personal injury, loss and damage.

5 It is alleged in the affidavit sworn by Ms. Martina O'Mahony, the solicitor on behalf of the first named third party, that the defendants were notified of the plaintiff's accident in November 2013. This averment is not denied in the replying affidavit sworn by Mr. Henry Hewson, who is the solicitor on record for the defendants. I suspect that Ms. O'Mahony's assertion is correct, due to the fact that there is an obligation on a plaintiff who intends to bring an action against a defendant, to notify the proposed defendant of his intended claim within two months of the accident giving rise to the cause of action.

6 On 10th March, 2014, a letter was sent from a representative of the defendants" insurers, Ms. Ciara Hannon, to the third party, informing it of the plaintiff's accident on 13th November, 2013, and it continued as follows:-

'Our investigations indicate Airtricity Utility Solutions were contracted in July 2013, by Castlebar Town Council to carry out public lighting works in Castlebar. At the time of the incident, the loose bricks (that had previously covered the civil infrastructure) and damaged traffic cones were situated at the site of the public lighting works under your control.'

7 The letter went on to call upon the first named third party to provide a full indemnity to the defendants in respect of the plaintiff's claim. It further indicated that the letter would be used as a basis for seeking their legal costs against the third party should that become necessary.

8 On 25th March, 2015, the plaintiff obtained an authorisation from the Injuries Board to bring proceedings against the defendants in relation to this accident. A personal injury summons was issued on her behalf on 9th July, 2015. This must have been served promptly, because the defendants raised a notice for particulars on 15th July, 2015, and entered a formal appearance to the personal injury summons on 16th July, 2015. A notice for particulars was raised by the defendants and replies were furnished by the plaintiff on 4th December, 2015.

9 It appears that it was necessary for the plaintiff to bring a motion seeking judgment in default of defence against the defendants, because an order was made by the High Court on 17th October, 2016, giving the defendants four weeks from that date to deliver a defence. However, it would not appear that that was done. The defence was delivered on 17th February, 2017.

10 By notice of motion issued on 7th December, 2017, the defendants sought liberty to join the first named third party to the proceedings on the basis that at the material time, it had been engaged by the first named defendant to supply, install and commission public lights at various locations in Castlebar, including on Pavilion Road. It was alleged that at all material times, the first named third party had control and responsibility of the accident locus. In the grounding affidavit sworn by Mr. Padraig Kelly, for the purposes of that application, he stated that the first named third party had been appointed Project Supervisor Construction Stage (PSCS) with overall responsibility for health and safety in carrying out the associated works at the locus of the alleged accident. He stated that the alleged loose bricks (that had previously covered the civil infrastructure) and the damaged traffic cone, were allegedly situated at the site of the public lighting works and were, therefore, at the material time under the control of the first named third party.

11 In the same application, the defendants also sought liberty to serve a third party notice on the second named third party, who it was alleged were also contracted by the first named defendant to carry out works in or around the alleged accident locus. In particular, it was alleged that the second named third party was responsible for lifting paving bricks to expose public lighting pots prior to the first named third party commencing works and reinstating around the lighting columns once installed. Mr. Kelly went on to state that in correspondence with the first named third party, the first named defendant had been advised that the offending cone and bricks which were left on the public footpath and had allegedly caused the plaintiff's accident, were the property of the second named third party and on that basis, the first named third party had refused to provide an indemnity to the defendants. He stated that in the circumstances, the defendants were entitled pursuant to contract to seek indemnity from the two proposed third parties.

12 On 29th January, 2018, an order was made by the High Court (O'Connor J.) giving the defendants liberty to issue and serve a third party notice on the first named third party. The third party notice was served on it on 7th February, 2018.

13 By notice of motion dated 19th April,...