Power v King of The Castle Ltd ; Rooney vLiffey Developments (Dublin) Ltd
| Jurisdiction | Ireland |
| Judge | Mr. Justice Robert Eagar |
| Judgment Date | 29 July 2019 |
| Neutral Citation | [2019] IEHC 608 |
| Date | 29 July 2019 |
| Court | High Court |
| Docket Number | [RECORD NUMBER 2012 9932 P] [RECORD NUMBER 2015 416 P] [RECORD NUMBER 2012 9932 P] [RECORD NUMBER 2015 416 P] |
[2019] IEHC 608
THE HIGH COURT
Eagar J.
[RECORD NUMBER 2012 9932 P]
[RECORD NUMBER 2015 416 P]
[RECORD NUMBER 2012 9932 P]
[RECORD NUMBER 2015 416 P]
AND
AND
AND
AND
Third party notices – Onus of proof – Compromised proceedings – Third parties seeking an order setting aside the third party notices – Whether the third party proceedings had become compromised
Facts: This is a judgment of the High Court on motions seeking an order pursuant to O. 16 r. 8 (3) of the Rules of the Superior Courts setting aside the third party notices served by Liffey Developments (Dublin) Ltd where the plaintiff was Mr Power and the third parties were Keegan Quarries Ltd and Tracey Enterprises (Dundrum) Ltd (TEDL), and an order setting aside the third party notice served by Liffey where the plaintiff was Ms Rooney and the third party was TEDL. The proceedings in relation to Mr Power commenced by concurrent plenary summons issued on the 5th October 2012 in which the third defendant was Liffey. The third defendant sought an order from the High Court managing the proceedings, for liberty to issue a third party notice and serve same on Keegan and on TEDL. The third party notice was subsequently served on both the third-parties dated the 14th August 2018. There was some exchange of pleadings, and by way of notice of motion dated the 12th November 2018, TEDL issued a motion returnable for the 17th December 2018 for an order setting aside the third-party notice. Equally, on the 17th December 2018, Keegan sought a similar order in respect of the Power proceedings setting aside the third-party notice dated the 14th August 2018. The proceedings in which Ms Rooney was the plaintiff were commenced by a concurrent plenary summons issued on the 21st January 2015 and the 23rd August 2018. The defendant (Liffey) obtained liberty to issue a third party notice on Keegan and TEDL.
Held by Eagar J that Liffey had failed to discharge the onus of proof showing that the application to join TEDL and Keegan was not served as soon as was reasonably possible. In those circumstances, Eagar J held that the court would set aside the third party notice against TEDL.
Eagar J held that the court would strike out the third party proceedings in relation to Keegan with no order in circumstances where the proceedings had become compromised.
Motion granted.
This is a judgment of this Court on motions seeking an order pursuant to O. 16 r. 8 (3) of the Rules of the Superior Courts setting aside the third party notices served by Liffey Developments (Dublin) Ltd. where the plaintiff is Rory Power, and the third parties are Keegan Quarries Ltd. and Tracey Enterprises (Dundrum) Ltd.
Further, an order setting aside the third party notice served by Liffey Developments (Dublin) Ltd., (hereinafter Liffey) where the plaintiff is Margaret Rooney, and the third party is Tracey Enterprises (Dundrum) Ltd. (hereinafter TEDL).
Whilst there are certain differences between the reliefs claimed, the differences are of such a limited nature that the court proposes to award one single judgment in relation to the application of TEDL and Keegan Quarries Ltd. (hereinafter Keegan). The court would like to thank the parties involved in this matter for their preparation for this case. Furthermore, the Court notes that submissions were prepared and the matter was heard over three days in the High Court in April and May 2019.
The proceedings in relation to Rory Power commenced by concurrent plenary summons issued on the 5th October 2012 in which the third named defendant is Liffey. This record number is 9932 P of 2012. The third named defendant sought an order from this court managing the proceedings, for liberty to issue a third party notice and serve same on Keegan and on TEDL. The third party notice was subsequently served on both the third-parties dated the 14th August 2018. There was some exchange of pleadings, and by way of notice of motion dated the 12th November 2018, TEDL issued a motion returnable for the 17th December 2018 for an order setting aside the third-party notice. Equally, on the 17th December 2018, Keegan sought a similar order in respect of the Power proceedings setting aside the third-party notice dated the 14th August 2018. The proceedings in which Margaret Rooney is the plaintiff was commenced by a concurrent plenary summons issued on the 21st January 2015 and the 23rd August 2018. The defendant ( Liffey) obtained liberty to issue a third party notice on Keegan and TEDL.
The court notes that Mr. Michael Howard SC with David Dunne BL instructed by Deirdre Boylan of A&L Goodbody Solicitors appeared for TEDL. Mr. Barry Mansfield BL instructed by Lisa Moloney of Byrne Wallace Solicitors acted for Keegan and Ms. Sasha Gayer SC with Mr. James Phillips BL instructed by Harrison O'Dowd Solicitors appeared for Liffey.
Both properties were developed in the Ongar estate.
Counsel on behalf of TEDL made the following submissions. The plaintiff in the Power proceedings claims against the defendants including Liffey for loss and damage caused to his residential property known as 1, Williams Lane, South Ongar, Dublin 15, inter alia by reason of the use of aggregate infill in the construction of the property which is alleged to have contained pyrite and elevated levels of sulphate. The same claims were made in the Rooney proceedings concerning a residence at 1, Park House, Ongar, Dublin 15. The first appearance entered on behalf of Liffey in relation to the pyrite related proceedings was filed with the High Court on the 11th September 2012.
Counsel referred to the affidavit of Anne Cooper sworn on the 9th July 2018 in support of its application to join TEDL. Ms. Cooper claims that Liffey sourced quantities of infill and aggregate from TEDL for use in the construction of a residential development at Ongar, Dublin 15 in which both properties are situated. Furthermore, she claims that it purchased quantities of infill and aggregate from TEDL costing in excess of €200,000. Counsel submitted that Liffey claims against TEDL to be indemnified against the plaintiff's claim and the cost of the action or contribution amounting to a full indemnity in respect of the plaintiffs” claim on the grounds that any loss and damage sustained by the plaintiff was caused solely or in the alternative, contributed to, by the negligence or breach of duty, including statutory duty and/or breach of contract in or about the production supply and sale of aggregate and infill for use by TEDL in the development. It was submitted that the claim is an old one, having been articulated as early as the 3rd November 2011. He said that Liffey however failed to issue a third party notice in the Power and Rooney proceedings until August 2018.
He referred to s. 27 (1) of the Civil Liability Act 1961 entitled ‘ Procedure for claiming contribution’. which provides:-
‘A concurrent wrongdoer who is sued for damages or contribution and who wishes to make a claim for contribution under this part: -
(a) Shall not, if the person from whom he proposes to claim contribution is already a party to the action, be entitled to claim contribution except by a claim made in the said action, whether before or after judgment in the action; and
(b) Shall, if the said person 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. 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 the contribution is claimed.
He referred to the Board of Governors of St. Laurence's Hospital v. Staunton [1990] 2 IR 31 [hereinafter Staunton], per Finlay C.J.: -
‘I am quite satisfied that upon the true construction of that sub-section that the only service of a third-party notice contemplated by it and, therefore, the only right of a person to obtain from the High Court liberty to serve a third party notice claiming contribution against a person who is not already a party to the action, is a right to serve a third-party notice as soon as is reasonably possible’.
He also quoted from SFL Engineering v. Smyth Cladding Systems Ltd. [1997] IEHC 81, (hereinafter Smyth) where Kelly J. (as he then was) stated: -
‘A defendant who wishes to join a...
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