O'Sullivan v Mount Juliet Properties Ltd
| Jurisdiction | Ireland |
| Judge | Mr. Justice Edwards,Mr. Justice Roderick Murphy |
| Judgment Date | 03 July 2012 |
| Neutral Citation | [2012] IEHC 270 |
| Court | High Court |
| Date | 03 July 2012 |
THE HIGH COURT
BETWEEN
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CIVIL LIABILITY ACT 1961 S27(1)(B)
MCGRATH CIVIL PROCEDURE IN SUPERIOR COURTS 3ED 9.26
MOLLOY v DUBLIN CORP 2001 4 IR 52
GREENE v TRIANGLE DEVELOPMENTS LTD 2008 IEHC 52
BOARD OF GOVERNORS OF ST LAWRENCE HOSPITAL v STAUNTON 1990 2 IR 31
MCELWAINE v HUGHES UNREP BARRON 30.4.1997 1998/25/9740 1997 IEHC 74
SFL ENGINEERING v SMYTH CLADDING SYSYTEMS LTD UNREP KELLY 9.5.1997 1998/ /2952 1997 IEHC 81
CONNOLLY v CASEY UNREP KELLY 12.6.1998 1998/14/4845 1998 IEHC 90
MURNAGHAN v MARKLAND HOLDINGS LTD UNREP LAFFOY 10.8.2007 2007/43/8921 2007 IEHC 255
WARD v O'CALLAGHAN UNREP MORRIS 25.2.1998 1998/33/13026 1998 IEHC 16
ROBINS v COLEMAN 2010 2 IR 180
CONNOLLY v CASEY 2000 IR 345
GREENE v TRIANGLE DEV LTD & GEORGE WADDING UNREP CLARKE 4.3.2008 2008/27/5935 2008 IEHC 52
STEPHENS v FLYNN 2008 4 IR 31 2008/59/12277 2008 IESC 4
RSC O.16 r 1(3)
DOYLE & SONS LTD v FLEMCO SUPERMARKET LTD UNREP LAFFOY 2.12.2009 2009 IEHC 581
RSC O.16 r2(3)
PRACTICE & PROCEDURE
Third party notice
Application to strike out - Delay - As soon as is reasonably possible - Extension of time period - Prejudice - Alleged defective construction - Whether served as soon as was reasonably possible - Whether delay inordinate - Molloy v Dublin Corporation [2001] 4 IR 52; Greene v Triangle Developments Ltd [2008] IEHC 52, (Unrep, Clarke J, 4/3/2008); Board of Governors of St Lawrence Hospital v Staunton [1990] 2 IR 31; McElwaine v Hughes (Unrep, Barron J, 30/4/1997); SFL Engineering v Smyth Cladding Systems Ltd (Unrep, Kelly J, 9/5/1997); Connolly v Casey [2000] 1 IR 345; Murnaghan v Markland Holdings Ltd [2007] IEHC 255, (Unrep, Laffoy J, 10/8/2007); Ward v O'Callaghan (Unrep, Morris J, 25/2/1998); Robins v Coleman [2009] IEHC 386, [2010] 2 IR 180; Stephens v Paul Flynn Ltd [2008] IESC 31, [2008] 4 IR 31; Dillon v MacGabhann (Unrep, Morris J, 24/7/1995) and S Doyle & Sons Roscommon Ltd v Flemco Supermarket Ltd [2009] IEHC 581, (Unrep, Laffoy J, 2/12/2009) considered - Civil Liability Act 1961 (No 41), s 27(1)(b) - Rules of the Superior Courts 1986 (SI 15/1986), O 16 - Applications refused (2008/7476P & 2009/2444P - Murphy J - 3/7/2012) [2012] IEHC 269
O'Sullivan v Mount Juliet Properties Ltd
Facts The second named third party in the proceedings herein brought two related motions seeking to strike out the third party notices in relation to two sets of proceedings involving claims of allegedly defective construction. The third party was a firm of civil and structural engineers that had been involved at an initial stage with a development at Mount Juliet known as The Walled Gardens. The statement of claim in respect of both sets of proceedings issued on 21 October 2008 and 22 May 2009 and the respective defences issued on 22 December 2008 and 17 August 2009. On 23 May 2011 and 14 February 2011 the defendant was granted liberty to issue and serve a third party notice on the third party in respect of both sets of proceedings. On behalf of the third party it was submitted that there had been manifest and considerable delay in seeking to join the third party and further that the joinder of the third party had caused very real prejudice because the claims of the plaintiff in the first set of proceedings had been resolved by the defendant without any reference to the third party. It was submitted on behalf of the defendant that it was not until early June 2010 that the issue of potential liability of the third party was first raised. This matter was confirmed in an expert opinion in September 2010 and thereafter the opinion was clarified on 3 December 2010. The defendant then sought the assistance of the proposed third party in relation to discovery and invited it to attend further opening up works at the site of the development. On 27 June, 2011, Peart J. granted an order for extension of time to serve the third party notice and on 5th July the third party notice was issued and served. It was further submitted that the defendant moved to join the third party as quickly as it reasonably could once it had obtained the relevant advice of its experts.
Held by Murphy J. in refusing both applications: That having considered the chronology of events, the delay by the defendant was inordinate. However, that delay resulted from the need to have a clear expert report from the consulting engineers. The further delay between the time the expert opinion was obtained and clarified and the application for leave to serve the third party notice was not entirely explained. The court balanced the objective of the third party procedure in having all matters dealt with under the originating proceedings with the right of a third party to apply to have the third party proceedings set aside. Whilst the overall delays exceeded the time limit laid down by Order 16 RSC, the court had to have regard to the obligation of the defendant when seeking a third party order to have obtained all appropriate advice. Furthermore, liberty to issue a third party notice outside the stipulated time period was previously granted in this case, and consequently, the court had, by implication extended the time period within which to apply to issue the third party notice. The same reasoning applied to the granting of an order extending the time for service of the third party notices, which had also occurred in both sets of proceedings herein.
JUDGMENT of Mr. Justice Roderick Murphy dated the 3rd day of July 2012
These related motions, brought by the second named third party ( HRA) to strike out the third party notice, were heard together in relation to No. 9 and No. 2 The Walled Garden, Mount Juliet, Co. Kilkenny.
The first motion in the O'Sullivan and O'Keeffe proceedings (2008 No. 7476 P.) was dated the 6 th October, 2011, while the Enrights' (2009 No. 2444 P.) motion was dated the 28 th November, 2011, (Enrights).
Both motions were grounded on the affidavit of Fiona Kearns, solicitors with Beale and Co. Solicitors, for HRA. and the exhibits thereto sworn on the 30 th September, 2011.
Hendrick Ryan Associates Limited ( HRA), is a firm of civil and structural engineers. It was involved with a development at Mount Juliet called The Walled Gardens.
Three sets of proceedings related to claims of allegedly defective construction. HRA was involved at an initial planning stage of the development in July 2004. HRA subsequently produced works documents in the period from June to September 2006. In November 2007, following the completion of structural works on site, HRA issued an opinion of compliance.
The first and second sets of proceedings issued in 2008 and 2009 as referred to above.
The third, High Court Record Number 2010/ 11587P, Mount Juliet Properties Limited v. Melcarne Developments trading as Walsh Brothers, Campbell Conroy Hickey Partnership Architects and McCarrick Woods Limited trading as McCarrick Woods Consulting Engineers and Hendrick Ryan and Associates Limited, issued on the 17 th December, 2010, relates to premises in the Walled Garden from other members of No. 9 and No. 2.
HRA is, accordingly, a defendant in the third proceedings.
The plenary summonses originally issued as against Mount Juliet Properties Limited (Mount Juliet), seeks, inter alia, specific performance of work and damages in lieu or in addition to such specific performance.
On the 29 th March, 2011, the solicitors for Mount Juliet issued a motion for leave to issue and serve a third party notice on HRA. That motion was returnable on the 9 th May, 2011. It was pleaded, inter alia, that HRA had a liability as "the consulting civil and structural engineers appointed by the first named defendant to design, monitor, supervise and inspect the civil and structural installation in respect of the property…"
It was averred that no detail was given in respect of any particular allegations against HRA. There is a reference to Mount Juliet having "appointed" HRA and there is a separate reference to an "agreement".
In an affidavit sworn Eoin Cotter, director of Mount Juliet stated that Mount Juliet's ongoing endeavours to address the complaints of the plaintiffs and other owners involved considerable opening up of the structure of many of the premises in The Walled Garden lodges. Mount Juliet had obtained the advices of Punch Consulting Engineers (Punch) in relation to the alleged complaints and, in particular, in relation to complaints regarding civil and structural engineering matters.
It was averred that at the time of construction, Mount Juliet had retained the services of civil structural engineers, HRA, to provide civil and structural engineering services in connection with the property and other premises in The Walled Garden lodges. The deponent had been advised by Punch that Mount Juliet would be entitled to claim indemnity or contribution from HRA and that Mount Juliet had not been so advised at the time of the...
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