Neville v Margan Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Blayney
• Judgment Date: 01 December 1988
• Neutral Citation: 1989 WJSC-HC 629
• Docket Number: [1978 No. 3888P]
• Court: High Court
• Date: 01 December 1988

NEVILLE v MARGAN LTD

BETWEEN

THOMAS NEVILLE

PLAINTIFF

AND

MARGAN LIMITED

DEFENDANT

AND

PULIMAN KELLOG LIMITED

THIRD PARTY

1989 WJSC-HC 629

No. 3888p/1978

THE HIGH COURT

Synopsis:

PRACTICE

Service

Third party - Notice - Delay - Time limit - Order for contribution - Discretion of court - Plaintiff's injury occurred in 1977 - Plaintiff's damages paid in 1981 - Third-party notice served in 1983 - Pleadings in third-party proceedings closed in 1986 - Order for contribution refused - On 14/10/77 the plaintiff was injured in an explosion which occurred at Marino Point in the county of Cork - On 29/6/78 he issued a plenary summons in which he claimed damages from the defendants on the ground that the plaintiff's injuries were caused by the negligence of the defendants - The defendants entered an appearance and the plaintiff delivered a statement of claim - The defendants delivered their defence on 15/5/80 and pleaded (inter alia) that the plaintiff's injuries had been caused by the negligence of the plaintiff or by the negligence of Pullman Kellog Ltd.; the defendants also pleaded that the said injuries had been caused by the negligence of the plaintiff and by the negligence of the said company - The plaintiff served notice of trial on 21/1/81 and on the following 23/2 the defendants obtained in the High Court an order giving them liberty to issue and serve a third-party notice on the said company out of the jurisdiction on or before 23/5/81 - On 5/5/81 the defendants agreed to settle the plaintiff's claim by payment of the sum of #46,00O to the plaintiff - All but #2,O98.71 of the said sum was paid by the defendants to the plaintiff on 14/7/81 and the balance of that sum was so paid on 19/8/81 - The defendants failed to serve a third-party notice on the said company within the period stipulated in the order dated 23/2/81 - On 22/7/82 the defendants obtained an order extending by 12 weeks the period for serving the said notice - The defendants obtained a further extension of the said period and ultimately they served the third-party notice on the said company on 22/7/83 - The third-party entered an appearance on 30/8 and the defendants delivered their statement of claim on 4/1/84 - The third party delivered a defence on 7/11/85 and the defendants delivered their reply on 3/2/86 - The third party applied for an order giving directions relating to the trial of the defendants" claim to contribution and on 18/4/88 the High Court ordered the trial of certain preliminary issues - The questions posed in those issues were:- "(1) Is the defendant's claim against the third party statute barred pursuant to the provisions of the Statute of Limitations, 1957? (2) Did the defendant serve a third-party notice upon the third party as soon as was reasonably possible so as to comply with the provisions of section 27(1)(b) of the Civil Liability Act, 1961 (3) Is the defendant estopped from pursuing its claim against the third party? (4) Has there been such a delay in the prosecution of the defendant's claim against the third party as to amount to an abuse of the processes of the court and to be contrary to natural justice?" - Section 27, sub-s. 1(b), of the Act of 1961 provides that a concurrent wrongdoer who is sued for damages and who wishes to claim contribution under Part III of the Act shall, if the person from whom he proposes to claim contribution 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. The sub-section also states that, 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 - Counsel for the defendants conceded that the defendants" third-party notice had not been served as soon as was reasonably possible but that, nevertheless, the court should not exercise its discretion against the defendants - Counsel also agreed that the third question should be treated as if it enquired whether the question of the exercise of the court's discretion should be determined at the trial of the preliminary issues or whether it should be determined at the trial of the defendants" claim against the third party - Held that the defendants" claim against the third party was not barred pursuant to the provisions of the Statute of 1957 since there was no provision in that statute imposing a time limit on a defendant's claim for contribution - Held that the defendants had conceded that they had failed to serve the third- party notice as soon as was reasonably possible - Held that the question of the exercise of the court's discretion under s. 27, subs. 1(b), of the Act of 1961 should be determined by the court and not postponed to the trial of the defendants" claim to contribution - Held that there had been gross and unexplained delay by the defendants in serving the third-party notice but that such delay did not constitute an abuse of the process of the court and was not contrary to natural justice - Held that the court would refuse, because of the unreasonable and unexplained delay, to make an order for contribution - Statute of Limitations, 1957 - Civil Liability Act, 1961, ss. 27, 31 - (1978/3888 P - Blayney J. - 1/12/88) - [1988] I.R. 734

|Neville v. Margan|

Citations:

CIVIL LIABILITY ACT 1961 S27(1)(b)

GILMORE V WINDLE 1967 IR 323

A & P (IRL) LTD V GOLDEN VALE PRODUCTS LTD UNREP 07.12.78 1983/5/1165

BUCKLEY V LYNCH 1978 IR 6

CIVIL LIABILITY ACT 1961 S31

CIVIL LIABILITY ACT 1961 S22

1 Mr. Justice Blayney delivered the 1st day of December 1988.

2 This is a trial of a preliminary issue pursuant to an Order of the Court made by Consent on the 18th April 1988. The issue is between the Defendant and the Third Party and is as to how the following four questions should be answered :-

3 2 "(1) Is the Defendant's claim against the Third Party statute barred pursuant to the provisions of the Statute of Limitations Act of 1957.

4 (2) Did the Defendant serve a Third Party Notice upon the Third Party as soon as was reasonably possible so as to comply with the provisions of Section 27 (1) (b) of the Civil Liability Act 1961.

5 (3) Is the Defendant estopped from pursuing its claim against the Third Party.

6 (4) Has there been such a delay in the prosecution of the Defendant's claim against the Third Party as to amount to an abuse of the processes of the Court and to be contrary to natural justice."

7 Having regard to the form the submissions took before me, it seems to me that it is clear how the first and fourth questions must be answered. The first question must be answered...