S. Doyle & Sons Roscommon Ltd v Flemco Supermarket Ltd & J.J. Rhatigan & Company Ltd

• Jurisdiction: Ireland
• Judge: Miss Justice Laffoy
• Judgment Date: 02 December 2009
• Neutral Citation: [2009] IEHC 581
• Court: High Court
• Date: 02 December 2009

S. Doyle & Sons Roscommon Ltd v Flemco Supermarket Ltd & J.J. Rhatigan & Co Ltd

BETWEEN

S. DOYLE & SONS ROSCOMMON LIMITED

PLAINTIFF

AND

FLEMCO SUPERMARKET LIMITED AND J.J. RHATIGAN AND COMPANY LIMITED

DEFENDANTS

AND

FORTLYSTER LIMITED Trading as HUGH GRIFFIN ASSOCIATES

THIRD PARTY

[2009] IEHC 581

[No.19709P/2004]

THE HIGH COURT

Abstract:

Tort - Litigation - Practice and procedure - Joinder of third parties - Concurrent wrongdoers - Alleged professional negligence - Multiplicity of actions - Whether third party notice served as soon as reasonably possible - Civil Liability Act 1961 - Rules of the Superior Courts, 1986 Order 16.

Facts The substantive proceedings concerned the plaintiff who owned premises adjoining that of the first named defendant (Flemco). Works were carried out on Flemco's premises by the second named defendant (Rhatigan) and it was alleged that, in the course of those works serious structural damage was caused to the plaintiff's property and the plaintiff initiated proceedings. The third party (Griffin) was a firm of structural engineers, which was retained by Flemco, which prepared the structural drawings on foot of which Rhatigan undertook the works in question. Both Flemco and Rhatigan had served third-party notices on Griffin and in this application Griffin sought to have the third party notices served on it set aside on the basis that the notices were not served as soon as reasonably possible.

Held by Laffoy J in refusing the application. A third party bringing a motion to set aside a third party notice was under the same obligation as a defendant seeking to join a third party in that the third party must initiate the application to set aside as soon as reasonably possible. Griffin in not only delivering a defence but by raising particulars on Rhatigan's third party statement of claim had elected to defend the third party proceedings. The present application was not brought as soon as reasonably possible and accordingly would be dismissed. Although Flemco had not served the third party notice as soon as reasonably possible, the overriding purpose of section 27(1)(b) of Civil Liability Act 1961 was to avoid a multiplicity of actions. The application to set aside Flemco's third party proceedings against Griffin would be refused.

Reporter: R.F.

CIVIL LIABILITY ACT 1961 S27(1)(B)

CIVIL LIABILITY ACT 1961 S27(1)

RSC O.16 r1(3)

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

RSC O.16 r8(3)

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

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

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

BOLAND v DUBLIN CITY COUNCIL 2002 4 IR 409 2003 1 ILRM 172 2002/4/715

GROGAN v FERRUM TRADING CO LTD & ROGERS 1996 2 ILRM 216 1996/4/1176

1 Miss Justice Laffoy delivered on the 2nd day of December, 2009.

The substantive proceedings and the applications

2 The plaintiff in these proceedings is the owner of property at Main Street, Roscommon. In the substantive proceedings it alleges that, in the course of work carried out on the adjoining property at Main Street, Roscommon of the first named defendant (Flemco), which works were carried out by Flemco's contractor, the second named defendant (Rhatigan), serious structural damage was caused to its property. The third party (Griflin) is a firm of structural engineers, which was retained by Flemco, which prepared the structural drawings on foot of which Rhatigan undertook the development at Flemco's property.

3 On these applications Griffin seeks to have set aside third party notices served on it by Flemco and Rhatigan respectively on the basis that the notices were not served as soon as reasonably possible.

Factual background

4 At the time of the incident which gives rise to the substantive proceedings, the plaintiff's property was in use as a retail unit on the ground floor and as apartments on the upper floors. Flemco had substantially completed the development of a supermarket on its property. On 19 ^th July, 2004, in the course of the development of Flemco's property, it is alleged that the defendants demolished the gable wall annexed to the plaintiff's and Flemco properties, causing serious structural damage to the plaintiff's property, rendering it unsafe and requiring it to be evacuated.

5 There followed correspondence between the plaintiff's solicitors and Flemco and Rhatigan, some of which was copied by Flemco to Griffin. Initially, Flemco formed the view that neither it nor Griffin bore any responsibility for the alleged damage to the plaintiff's property. A number of meetings and inspections took place on site, at some of which a representative of Griffin attended.

6 The substantive proceedings were initiated by a plenary summons which issued on 9 ^th December, 2004. Simultaneously with the issuance of the plenary summons, the plaintiff sought injunctive relief, apparently against both Flemco and Rhatigan, seeking to restrain further works on Flemco's premises, to compel Flemco and Rhatigan to make good the plaintiff's property and to restrain Flemco and Rhatigan to make good the plaintiff's property and to restrain Flemco and Rhatigan from trespassing or obstructing a right of way of the plaintiff. Rhatigan did not appear on the hearing of the motion, as is recited in the order of the Court (Kelly J.) made on 20 ^th December, 2004. The motion was refused and it was ordered that the plaintiff pay Flemco's costs, the order for costs being stayed until the final determination of the proceedings.

The chronology of the substantive proceedings as between the plaintiff and Flemco/Rhatigan

7 After the refusal of the plaintiff's motion, nothing happened for over a year, so that before anything could happen notice of intention to proceed had to be served by the plaintiff. This was done on 20 ^th January, 2006. Another year passed before anything happened other than a note of change of solicitor dated 17 ^th February, 2006, filed and served on behalf of Flemco. On 30 ^th January, 2007 the plaintiff delivered its statement of claim. This action seems to have been prompted by a motion issued by Flemco on 19 ^th January, 2007, returnable on 12 ^th February, 2007 to strike out the proceedings for want of prosecution for failure to deliver a statement of claim. At that stage, an appearance had not been entered on behalf of Rhatigan. That did not happen until 1 ^st March, 2007 and appears to have been prompted by a motion brought by the plaintiff for judgment in default of appearance against Rhatigan on foot of a notice of motion of 13 ^th February, 2007 returnable for 12 ^th March, 2007.

8 It is the position of Griffin on these applications that the starting point for the Court's consideration of compliance with time requirements and whether there was delay in compliance is the delivery of the plaintiff's statement of claim on 30 ^th January, 2007. What happened after that as between the plaintiff and Flemco and as between the plaintiff and Rhatigan will be considered separately.

9 As regards Flemco, by notice dated 2 ^rd April, 2007 it raised particulars arising out of the plaintiff's claim. Following one reminder from Flemco's solicitors, to which the plaintif's solicitors responded on the basis that their replies were being settled by counsel, the plaintiff eventually delivered the replies on 9 ^th September, 2008. Thereafter on 21 ^st November, 2008, almost one year and ten months after the statement of claim was delivered, Flemco delivered its defence. In the defence, after a complete traverse of the plaintiff's claim, Flemco pleaded, strictly without prejudice to the traverse, that, if the plaintiff did sustain the alleged or any damage, it was not caused by any wrong on the part of Flemco but was rather caused and/or contributed to by negligence, breach of duty and/or breach of contract on the part of Rhatigan and/or Griffin.

10 Rhatigan was marginally less tardy in delivering a defence. Rhatigan raised particulars on 3 ^rd August, 2007 and they were eventually replied to on 10 ^th September, 2008. In the meantime, on 28 ^th July, 2008, Rhatigan had delivered its defence, almost one and a half years after the delivery of the statement of claim. In the defence, Rhatigan denied that the works carried out by it caused structural damage to the plaintiff's property, whether as a result of the alleged demolition of a gable wall or at all, and pleaded that, it the alleged or any damage occurred to the plaintiff's property, it occurred as a result of the direction of Flemco to carry out the works, which were executed non-negligently by Rhatigan in accordance with the instructions given to it by Flemco and by Griffin, in accordance with whose instructions Rhatigan was bound to act.

11 In relation to the chronology of the joinder of Griffin as a third party, it is appropriate to consider the approach adopted by Rhatigan separately from the approach adopted by Flemco.

Joinder of Griffin as a third party by Rhatigan

12 Rhatigan moved to join Griffin as a third party before it had delivered its defence. It issued a notice of motion on 17 ^th July, 2008, which was returnable for 28 ^th July, 2008, seeking liberty to issue and serve a third party notice on Griffin. When the matter came before the Court on 28 ^th July, 2008 it was adjourned to the next available motion day, 13 ^th October, 2008, the long vacation intervening, to give the plaintiff an opportunity to consider whether it wished to join Griffin as a co-defendant. When the matter was back in Court on 13 ^th October, 2008 an order was made by the Court (Gilligan J.) giving Rhatigan liberty to issue and serve a third party notice on Griffin.

13 The third party...