Robins v Coleman

• Jurisdiction: Ireland
• Judge: Mr. Justice McMahon
• Judgment Date: 06 November 2009
• Neutral Citation: [2009] IEHC 486
• Court: High Court
• Docket Number: [2005 No. 72 P]
• Date: 06 November 2009

[2009] IEHC 486

THE HIGH COURT

[No. 72 P./2005]

Robins v Coleman & Ors

BETWEEN

RONALD ROBINS

PLAINTIFF

AND

TERENCE COLEMAN, ANITA COLEMAN, AND (BY ORDER) AGULHAS RESOURCES INC., PIERSE BUILDING SERVICES LIMITED, AND CHARLIE DONNELLY AND MARK TURPIN TRADING AS DONNELLY TURPIN ARCHITECTS

DEFENDANTS

AND

O'CONNOR SUTTON CRONIN & ASSOCIATES LIMITED

THIRD PARTY

RSC O.16 r1(3)

CIVIL LIABILITY ACT 1961 S27

CIVIL LIABILITY ACT 1961 S27(1)

CIVIL LIABILITY ACT 1961 S27(1)(B)

CONNOLLY v CASEY & MURPHY T/A CASEY & MURPHY SOLICITORS 2000 1 IR 345 2000 2 ILRM 226 2000/3/1120

GILMORE v WINDLE 1967 IR 323

BOARD OF GOVERNORS OF ST LAURENCES HOSPITAL v STAUNTON 1990 2 IR 31

MCELWAINE v HUGHES UNREP BARRON 30.4.1997 1998/25/9740

DILLON v MACGABHANN UNREP MORRIS 24.7.1995 1995/7/1991

MOLLOY v DUBLIN CORP & ORS 2001 4 IR 52 2002 2 ILRM 22 2003/38/9025

GREENE v TRIANGLE DEVELOPMENTS LTD & WADDING UNREP CLARKE 4.3.2008 2008/27/5935 2008 IEHC 52

MURNAGHAN v MARKLAND HOLDINGS LTD & ORS UNREP LAFFOY 10.8.2007 2007/43/8921 2007 IEHC 255

TUOHY v NORTH TIPPERARY CO COUNCIL UNREP PEART 10.3.2008 2008/60/12547 2008 IEHC 63

A & P (IRL) LTD v GOLDEN VALE PRODUCTS T/A GOLDEN VALE ENGINEERING UNREP MCMAHON 7.12.1978 1983/5/1165

NEVILLE v MARGAN LTD 1988 IR 734 1989/3/629

CEDARDALE PROPERTY CO LTD & ORS v DEANSGRANGE DEVELOPMENT LTD & ORS UNREP IRVINE 13.11.2008 (EX TEMPORE)

SFL ENGINEERING LTD v SMYTH CLADDING SYSTEMS LTD UNREP KELLY 9.5.1997 1998/10/2952

RSC O.16 r8(3)

GOLDENVALE PLC v FOOD INDUSTRIES PLC 1996 2 IR 221 1996/11/3609

PRACTICE AND PROCEDURE

Third party notice

Application to strike out - Delay in serving notice - Whether notice served "as soon as is reasonably possible" - Connolly v Casey [2000] 1 IR 345, Gilmore v Windle [1967] IR 323, Board of Governors of St. Laurence's Hospital v Staunton [1990] 2 IR 31 and Molloy v Dublin Corporation [2001] 4 IR 52 applied; McElwaine v Hughes (Unrep, Barron J, 30/4/1997) and Dillon v MacGabhan (Unrep, Morris J, 24/7/1995) approved - Rules of the Superior Courts, 1986 (SI 15/1986), O 16, rr 1(3) and 8(3) - Civil Liability Act 1961 (No 41), s 27(1) - Notice not set aside (2005/72P - McMahon J - 6/11/2009) [2009] IEHC 486

Robins v Coleman

Facts: The plaintiff in the proceedings sued the defendants for damage to his home as a result of building works carried out on an adjacent property. The first two defendants were the occupiers of the adjoining property and the third defendant was the owner thereof. The builder carrying out the works was the fourth defendant and the architects were the fifth and sixth defendants. The fourth, fifth and sixth named defendants issued and served a third party notice on the present third party. The third party sought to set aside the third party notices on the grounds that the did not comply with Order 16, rule 1(3), Rules of the Superior Court and s. 27 Civil Liability Act 1961.

Held by McMahon J. that the Court would refuse the third party application to set aside the third party orders made in favour of the fourth named defendant and the fifth and sixth named defendants. A refusal in the case would almost certainly spawn another independent action and would not promote the purpose of the rules at issue. The third party was not in anyway prejudiced in terms of knowledge and proofs, the main litigation was complex and involved many defendants, the protracted prosecution was not due primarily to the fault of the fourth, fifth and sixth named defendant, the claim involved an allegation of professional negligence and an indulgent interpretation had to be given to the phrase "as soon as reasonably possible." The nature of the claim of the plaintiff continued to alter with the passage of time and a claim for professional negligence could not embarked upon lightly.

Reporter: E.F.

1. Background

2 2 1.1 The plaintiff in these proceedings sues the defendants for damage to his home at No. 2 Sorrento Terrace, Dalkey, as a result of works carried out by the defendants on No. 1 Sorrento Terrace which adjoins and is connected to the plaintiff's property. The first two defendants are the occupiers of No. 1 Sorrento Terrace and the third defendant is the owner of that property. The builder who carried out the work is the fourth defendant and the architects are the fifth and sixth defendants. The fourth, fifth and sixth nameddefendants have issued and served a third party notice on the present third party. They claim that the third party should be joined because it was negligent in the provision of professional advice as the structural engineers engaged by the first three named defendants in the project.

3 3 1.2 The third party now brings two motions before this Court seeking an order to set aside the third party notices on the grounds that they did not comply with O. 16, r. 1(3) of the Rules of the Superior Courts and that the same were not brought "as soon as is reasonably possible" as required by s. 27 of the Civil Liability Act 1961.

4 4 1.3 The history of the proceedings involving the fourth named defendant (the builders) is set out hereunder for convenience:-

13 Jan. 2005 Plenary Summons issued against the first and second named Defendants.

20 July 2005 An Order was made joining the third named Defendant to the proceedings.

22 Aug. 2005 An amended Plenary Summons was issued.

23 Aug. 2005 An amended Statement of Claim was issued.

18 Dec 2006 The first to third named Defendants obtained an Order giving liberty to issue and serve a Third Party Notice upon the now fourth named Defendant.

16 Jan. 2007 An Appearance under protest was entered by the now fourth named Defendant to the Third Party Notice.

19 June 2007 The fourth, fifth and sixth named Defendants were joined as co-defendants to the proceedings.

23 July 2007 The fourth named Defendant entered an Appearance to the amended Plenary Summons.

9 Oct. 2007 The plaintiff wrote to the fourth named defendant requesting that it refrain from issuing Notice for Further Particulars pending an amended statement of claim.

14 Nov. 2007 A Notice for Particulars was raised by the fourth named Defendant.

7 Mar. 2008 An amended Statement of Claim was delivered on all six Defendants.

25 Aug. 2008 A revised Notice for Particulars was served by the fourth named Defendant.

11 Nov. 2008 The Plaintiff replied to the fourth named Defendant's Notice for Particulars.

4 Feb. 2009 A Notice of Motion issued seeking liberty to issue and serve a Third Party Notice upon O'Connor Sutton Cronin the present Third Party.

23 Feb. 2009 An Order was made giving liberty for the issue and service of a Third Party Notice upon the now Third Party.

5 5 1.4 The history of the proceedings, insofar as the fifth and sixth named defendants are concerned is set out again for convenience:-

(a) 13 January 2005: the proceedings were commenced by Plenary Summons, naming only the first and second named Defendants.

(b) 19 & 20 December 2006: Third Party Notices were served on the fourth and fifth and sixth named defendants.

(c) 22 December 2006: the fifth and sixth named defendants (Architects) entered an Appearance (as Third Parties);

(d) 19 June 2007: on application of the Plaintiff, an Order was made joining the fifth and sixth named defendants (theretofore Third Parties) as Co-Defendants in the action.

(e) 2 July 2007: an Amended Plenary Summons issued.

(f) 6 September 2007: an Appearance to the Amended Plenary Summons was entered by the fifth and sixth defendants qua Defendants.

(g) 11 April 2008: the Amended Statement of Claim was delivered by the Plaintiff to inter alia the fifth and sixth named defendants (the Architects).

(h) 8 July, 2008: a Defence and a Notice for Particulars was delivered by the fifth and sixth named defendants.

(i) 11 November 2008: Replies to Particulars were delivered by the Plaintiff to the fifth and sixth named defendants.

(j) 1 December 2008: a Motion issued by the first to third defendants seeking case management of the within proceedings.

(k) 30 March 2009: a Notice of Motion issued on behalf of the fifth and sixth named defendants seeking liberty to issue and serve a Third Party Notice on the Engineers.

(l) 18 May 2009: an Order was made granting liberty to the fifth and sixth named defendants to issue and serve a Third Party Notice.

(m) 26 May 2009: the Third Party Notice was served.

(n) The present application seeking an Order setting aside the Third Party Notice issued on behalf of the Engineers.

6 6 1.5 Before referring to the legal issues arising in this case, it is appropriate to outline the context of the dispute between the plaintiff and the defendants herein. The works to No. 1 Sorrento Terrace were commenced in or around 2001 and from the beginning the plaintiff expressed some concern and made some objections in respect of those works,especially in relation in dust, vibrations and noise. It was not until January, 2005, however, that a plenary summons was issued. The statement of claim which followed was amended on two separate occasions increasing the number of defendants from two to three and later to six and expanding the nature of the complaint and the reliefs sought. From the affidavits and the submissions made to the court, it is clear that, as the years went by, the plaintiff gradually came to the conclusion that the damage to his property was more serious than was first appreciated. In the early days it appeared that the complaint by the plaintiff primarily related to the enjoyment of his property, but as time went by he became more concerned with possible structural problems which began to manifest themselves as cracks in the walls. The first amended statement of claim, contained a claim in the particulars: (i) that there was a cracking of the party wall where the ceiling and the party wall joined on the landing; (ii) there was a crack over the...