Slawomir Figiel v Sean Dunphy Trading as Dunphy Engineering
| Jurisdiction | Ireland |
| Judge | Mr. Justice Garrett Simons |
| Judgment Date | 29 April 2022 |
| Neutral Citation | [2022] IEHC 207 |
| Court | High Court |
| Docket Number | 2019 No. 3328 P. |
[2022] IEHC 207
2019 No. 3328 P.
THE HIGH COURT
Third-party proceedings – Delay – Personal injuries – Third-party seeking to set aside third-party proceedings – Whether the defendant delayed unreasonably in seeking to join the third-party
Facts: The plaintiff, Mr Figiel, had been employed by the defendant, Mr Dunphy, as a steel erector. On 28 June 2017, the plaintiff had been working on the construction of an agricultural shed located on lands owned by the third-party, Mr Power. The plaintiff’s case, as pleaded in the personal injuries summons and subsequent particulars, was that he had been engaged in installing cement sheeting on the roof of the agricultural shed when he was caused to slip and fall owing to the (alleged) negligence of the defendant. It was pleaded, inter alia, that the defendant failed to provide a safe place of work, failed to provide the plaintiff with a harness and appropriate safety boots, failed to take adequate precautions for work in wet weather and failed to provide the plaintiff with appropriate training. It was also pleaded that the defendant failed to comply with various provisions of the Safety, Health and Welfare at Work (Construction) Regulations 2013 (S.I. No. 291 of 2013). On the basis of a report prepared by the consulting engineers retained on behalf of the defendant, the defendant’s solicitors issued a motion on 16 June 2020 seeking to join Mr Power as a third-party to the proceedings. As appeared from the draft third-party notice exhibited in that application, the case to be pleaded against Mr Power was that he failed to comply with his obligations under the 2013 Regulations. In particular, it was alleged that Mr Power failed to appoint a project supervisor, failed to take reasonable care for the safety of the plaintiff and failed to put in place specific measures during the construction stage to address the risk of working at a height. The motion seeking leave to join the third-party had been allocated a return date of 7 December 2020. On that date, the High Court (Barr J) made an order granting leave to issue and serve a third-party notice on Mr Power. The third-party notice was duly served. An appearance was entered on behalf of Mr Power and a defence delivered on 24 March 2021. A motion was issued on 14 April 2021 seeking to set aside the third-party notice on the grounds that it was not served as soon as reasonably possible. The motion came on for hearing before Simons J on 4 April 2022. The application to set aside third-party proceedings on the grounds of delay was made pursuant to Order 16, rule 8(3) of the Rules of the Superior Courts.
Held by Simons J that, having regard to the timing of the delivery of the replies to particulars, and to the principle that third-party proceedings should not be instituted without first assembling and examining the relevant evidence and obtaining appropriate advice thereon, the defendant did not delay unreasonably in seeking to join the third-party. Simons J refused the application to set aside the third-party proceedings.
Simons J’s provisional view was that the defendant, having been entirely successful in resisting the application to set aside the third-party proceedings, was entitled to his costs against the third-party in accordance with the principles prescribed under Part 11 of the Legal Services Regulation Act 2015; costs to be adjudicated upon by the Office of the Chief Legal Costs Adjudicator in default of agreement. Simons J held that the costs order was to be stayed in the event of an appeal.
Application refused.
Seán O'Mahony for the third-party instructed by FBD Solicitors
Dermot B Cahill, SC for the defendant instructed by Harrison O'Dowd Solicitors
JUDGMENT of Mr. Justice Garrett Simons delivered on 29 April 2022
This judgment is delivered in respect of an application to set aside third-party proceedings on the grounds of delay. The application is made pursuant to Order 16, rule 8(3) of the Rules of the Superior Courts.
These proceedings take the form of a personal injuries action arising out of a work-related accident on 28 June 2017. The injured party, the Plaintiff, had been employed by the Defendant as a steel erector. On the date of the accident, the injured party had been working on the construction of an agricultural shed. It appears that other contractors may also have been involved in these construction works. The agricultural shed is located on lands owned by Mr. Maurice Power. It is the subsequent joinder of Mr. Power to these proceedings as a third-party that is challenged in this application.
The Plaintiff's case, as pleaded in the personal injuries summons and subsequent particulars, is that he had been engaged in installing cement sheeting on the roof of the agricultural shed when he was caused to slip and fall owing to the (alleged) negligence of the Defendant. It is pleaded, inter alia, that the Defendant failed to provide a safe place of work; failed to provide the injured party with a harness and appropriate safety boots; failed to take adequate precautions for work in wet weather; and failed to provide the injured party with appropriate training. It is also pleaded that the Defendant failed to comply with various provisions of the Safety, Health and Welfare at Work (Construction) Regulations 2013 ( S.I. No. 291 of 2013).
The personal injuries summons issued on 26 April 2019 and the Defendant entered an appearance on 8 May 2019. Shortly thereafter, the Defendant, through his solicitor, in June 2019 instructed a firm of consulting engineers to prepare a report into the circumstances of the accident. An attempt was made to arrange a joint engineering inspection of the locus of the accident. This inspection ultimately took place on 10 February 2020.
The consulting engineers retained on behalf of the Defendant prepared a report dated 3 March 2020. Relevantly, the report identified that Mr. Power, as the person for whom the construction works were being carried out, might have obligations under the Safety, Health and Welfare at Work (Construction) Regulations 2013 as the “ client”. A client is required under Part 2 of the Regulations to appoint a competent project supervisor where the construction work involves a particular risk or where more than one contractor is involved.
On the basis of this engineering report, the Defendant's solicitors issued a motion on 16 June 2020 seeking to join Mr. Power as a third-party to the proceedings. As appears from the draft third-party notice exhibited in that application, the case to be pleaded against Mr. Power is that he failed to comply with his obligations under the Safety, Health and Welfare at Work (Construction) Regulations 2013. In particular, it is alleged that Mr. Power failed to appoint a project supervisor; failed to take reasonable care for the safety of the injured party; and failed to put in place specific measures during the construction stage to address the risk of working at a height.
The motion seeking leave to join the third-party had been allocated a return date of 7 December 2020. On that date, the High Court (Barr J.) made an order granting leave to issue and serve a third-party notice on Mr. Power.
The third-party notice was duly served. An appearance was entered on behalf of Mr. Power and a defence delivered on 24 March 2021. Shortly thereafter, a motion was issued on 14 April 2021 seeking to set aside the third-party notice on the grounds that it was not served as soon as reasonably possible. The motion came on for hearing before me on 4 April 2022. Judgment was reserved until today's date.
The chronology of the proceedings is summarised in tabular form below:
| 28 June 2017 | Date of accident |
| 12 June 2018 | Application to Personal Injuries Assessment Board |
| 26 April 2019 | Personal injuries summons issued |
| 7 May 2019 | Notice for particulars |
| 8 May 2019 | Appearance entered by defendant |
| 28 August 2019 | Replies to particulars |
| 10 February 2020 | Joint engineering inspection |
| 26 February 2020 | Defence delivered |
| 3 March 2020 | Engineer's report on behalf of defendant |
| 16 June 2020 | Notice of motion issued to join third-party |
| 7 December 2020 | High Court order joining third-party |
| 17 December 2020 | Service of third-party notice |
| 24 March 2021 | Third-party defence delivered |
| 14 April 2021 | Motion to set aside third-party notice issued |
| 4 April 2022 | Hearing of motion |
The principal objective of the third-party procedure is to simplify litigation and to avoid a multiplicity of actions by allowing the main proceedings and the third-party proceedings to be heard together by the same judge ( Connolly v. Casey [1999] IESC 76; [2000] 1 I.R. 345, citing Gilmore v. Windle [1967] I.R. 323). That does not necessarily mean that all the issues have to be dealt with simultaneously; that may depend on appropriate orders as to the time and mode of trial of the various issues ( Kenny v. Howard [2016] IECA 243).
Section 27 of the Civil Liability Act 1961 provides that a defendant, who wishes to make a claim for contribution, must serve a third-party notice as soon as is reasonably possible. This temporal obligation is intended to ensure that the general progress of the main proceedings is not unnecessarily delayed by the third-party claim ( Kenny v. Howard [2016] IECA 243).
The imposition of the statutory obligation to serve a third-party notice as soon as is reasonably possible has the practical consequence that a defendant who wishes to pursue a third-party claim is under far greater time constraints than a putative...
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