Riverview Administration Owners Management Company Ltd by Guarantee v Waterford City and County Council and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Dignam
• Judgment Date: 06 September 2023
• Neutral Citation: [2023] IEHC 518
• Court: High Court
• Docket Number: [Record No.] 2019/ 6075 P

Between

Riverview Administration Owners Management Company Ltd by Guarantee

Plaintiff

and

Waterford City and County Council, The Office of Public Works (OPW) and Niall Barry & Company Ltd

Defendants

and

(By Order) Trench Control Limited

Third Party

[2023] IEHC 518

[Record No.] 2019/ 6075 P

THE HIGH COURT

Third party proceedings – Set aside – Delay – Third party seeking to set aside third party proceedings – Whether the third defendant served the third party notice as soon as reasonably possible

Facts: The plaintiff, Riverview Administration Owners Management Company Ltd by Guarantee, was the owner of a block of 24 apartments known as De Bruin Court, Poleberry, Waterford. In 2013, the second defendant, the Office of Public Works, commenced works known as the Waterford Flood Relief Scheme. The first defendant, Waterford City and County Council, was the second defendant’s agent for the Scheme and the third defendant, Niall Barry & Company Ltd, was the contractor for the Scheme. It was alleged by the plaintiff that in the course of the Scheme, the defendants took a portion of the plaintiffs lands for a walkway and “drove sheet metal piles from the edge of the ... walkway down into the river. Thereafter the Third Defendant raised the ground level across the [walkway] to the edge where the piles had been driven and concreted over the new walkway”. The plaintiff described this as “the Work”. It then pleaded at paragraph 11 of the statement of claim that: “the Work caused subsidence to the Property causing collapses of sewers and drains, settlement and cracking. The Plaintiff says that the said subsidence constituted a nuisance to the Property and was caused by negligence on the part of the Third Defendant who used a heavy pile driving hammer to drive steel sheet piles. In this regard the Plaintiff will seek discovery of the piling design, specification and records...” The statement of claim was delivered on the 31st July 2020 on the same day as the plenary summons. An appearance was entered on behalf of the third defendant on the 17th August 2020 and then the application for liberty to serve a third party notice on the third party, Trench Control Ltd, was issued on the 18th December 2020 and was determined on the return date, the 22nd March 2021, and the third party notice was served on the 23rd April 2021. It was alleged that the third party carried out the “piling” works. The matter came before the High Court (Dignam J) by way of an application to set aside third party proceedings pursuant to Order 16, rule (8) of the Rules of the Superior Courts or on the grounds of delay and/or failure to serve same upon the third party as soon as reasonably possible. The application to set aside the third party notice was issued on the 2nd August 2022.

Held by Dignam J that the third defendant served the third party notice as soon as reasonably possible. He noted that the motion for leave to issue and serve the third party notice was issued, was given a return date by the Central Office, and was moved by the third defendant on that first return date. He noted that Twomey J made an order on that date granting the third defendant leave to issue and service the third party notice on that date; the order was perfected on the 23rd March 2021. Dignam J noted that solicitors acting for the third defendant sent the third party notice to the Central Office to be issued within three days of perfection of the order; it was issued on the 19th April 2021 and returned to the solicitors for the third defendant on the 21st April 2021 and was served by DX on the 23rd April 2021 and signed for by a representative of the third party on the 26th April 2021. He noted that an application to have the service deemed good was made on behalf of the third defendant on the 7th March 2022. He held that the order deeming service good and the entry of the appearance on behalf of the third party cured any defects which might have arisen in respect of service. He assessed the period of time on the basis that the third party notice was served on the 23rd April 2021. Thus, it seemed to him that at all stages the third defendant acted promptly and any slight delays in the matter after the motion was issued were outside the control of the third defendant.

Dignam J refused the relief sought.

Application refused.

Judgment of Mr. Justice Dignam delivered on the 6 ^th day of September 2023 .

Introduction

1 This matter comes before me by way of an application to set aside third-party proceedings pursuant to Order 16, rule (8) of the Rules of the Superior Courts or on the grounds of delay and/or failure to serve same upon the third party as soon as reasonably possible.

2 The following is the relevant chronology:

2013 – 2014/2015	Alleged period of works;
31 st July 2019	Plenary Summons issued;
31 st July 2020	Statement of Claim delivered by the plaintiff;
17 th August 2020	Appearance entered on behalf of the third-named defendant;
11 th December 2020	Notice of Motion issued by the third-named defendant seeking leave to issue and serve a Third-Party Notice;
22 nd March 2021	Order of Mr. Justice Twomey granting the third-named defendant liberty to issue and serve a Third-Party Notice;
26 th March 2021	Third-Party Notice sent to Central Office for issuing;
19 th April 2021	Third-Party Notice issued;
23 rd April 2021	Third-Party Notice served by registered DX on the Third-Party;
26 th April 2021	Third-Party Notice signed for by servant/agent of the Third Party;
7 th March 2022	Notice of Motion issued by third named defendant to have service of the Third-Party Notice deemed good;
25 th April 2022	Return date for third-named defendant's motion seeking to have service of the Third-Party Notice deemed good;
11 th May 2022	Appearance entered on behalf of the third-party;
2 nd August 2022	Notice of Motion issued by the third party to have the leave to issue and serve the Third-Party Notice set aside.

Background

3 Nothing in this background should be taken as a finding on any matter of fact which may be disputed in the substantive proceedings.

4 The plaintiff is the owner of a block of 24 apartments known as De Bruin Court, Poleberry, Waterford.

5 In 2013 the second-named defendant commenced works known as the Waterford Flood Relief Scheme. The first-named defendant was the second-named defendant's agent for this Scheme and the third-named defendant was the contractor for the Scheme.

6 It is alleged by the plaintiff that in the course of the Scheme, the defendants took a portion of the plaintiffs lands for a walkway and “ drove sheet metal piles from the edge of the … walkway down into the river. Thereafter the Third Defendant raised the ground level across the [walkway] to the edge where the piles had been driven and concreted over the new walkway.” The plaintiff describes this as “ the Work”. It then pleads at paragraph 11 of the Statement of Claim that:

“ The Plaintiff further avers that the Work caused subsidence to the Property causing collapses of sewers and drains, settlement and cracking. The Plaintiff says that the said subsidence constituted a nuisance to the Property and was caused by negligence on the part of the Third Defendant who used a heavy pile driving hammer to drive steel sheet piles. In this regard the Plaintiff will seek discovery of the piling design, specification and records…”

7 The Statement of Claim, containing the above allegations, was delivered on the 31 ^st July 2020 on the same day as the Plenary Summons. Events took the course set out in the chronology above. An Appearance was entered on behalf of the third-named defendant on the 17 ^th August 2020 and then the application for liberty to serve a Third-Party Notice on the third-party was issued on the 18 ^th December 2020 and was determined on the return date, the 22 ^nd March 2021, and the Third-Party Notice was served on the 23 ^rd April 2021. It is alleged that the third-party carried out the “ piling” works.

8 This application to set aside the Third-Party Notice was issued on the 2 ^nd August 2022.

Legal Principles

9 Section 27(1) of the Civil Liability Act 1961 provides, inter alia:

“(1) A concurrent wrongdoer who is sued for damages or for 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 said person is not already a party to the action, serve a third-party notice upon such person as soon as is reasonably possible…”

10 Order 16 Rule 1 of the Rules of the Superior Courts provides, inter alia:

“ (3) Application for leave to issue the third party notice shall, unless otherwise ordered by the Court, be made within twenty-eight days from the time limited for delivering the defence or, where the application is made by the defendant to a counterclaim, the reply.”

11 Order 16 Rule 8 provides, inter alia:

“ (3) The third-party proceedings may at any time be set aside by the Court.”

12 Order 16 Rule 1(3) sets a specific time limit of twenty-eight days from the time limited for the delivery of a Defence for the making of an application to issue a Third-Party Notice. However, no such specific limit is provided for in the Act itself, other than the obligation to serve a Third-Party Notice as “ as soon as reasonably possible” is provided for in the Act itself. It has long been accepted that the twenty-eight day time limit is, at most a benchmark against which the statutory requirement to “ move as soon as reasonably possible” might be measured and that the time limit under Order 16 is not one with which the parties will normally comply or even be...