Thomas Greene and Another v Triangle Developments Ltd and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 30 July 2015
• Neutral Citation: [2015] IECA 249
• Court: Court of Appeal (Ireland)
• Date: 30 July 2015

Thomas Greene & Anor. v Triangle Developments Ltd & Ors.

[Article 64 Transfer]

BETWEEN:

THOMAS GREENE AND KATHERINE GREENE

PLAINTIFFS

AND

TRIANGLE DEVELOPMENTS LIMITED AND GEORGE WADDING

DEFENDANTS/APPELLANTS

AND

FRANK FOX AND ASSOCIATES (A FIRM)

THIRD PARTY/RESPONDENT

[2015] IECA 249

Ryan P.

Finlay Geoghegan J.

Peart J.

Appeal No. 115/2014

THE COURT OF APPEAL

Practice and procedure – Third party – Third party notice – Striking out

Facts: The parties were engaged in litigation regarding the subsidence of a building. The third party, a firm of engineers, had been served with a third party notice by the defendants. The High Court had found that the notice should be struck out. The defendants now appealed.

Held by Finlay Geoghegan J, that the appeal would be allowed. Having considered the evidence on the service of the notice, the statement of claim and the expert”s report, the Court was satisfied that the defendants had served the third party notice as soon as was reasonably practical. Peart J agreed and noted that to strike out the notice in such circumstances would be disproportionate.

1 1. This is an appeal from the decision and judgment of Mr. Justice Clarke in the High Court which was delivered on 4th March 2008, in which he, on the application of the third party in these proceedings reached a conclusion that the third party notice which had been served should be struck out. The defendants then appealed against that judgment and order to the Supreme Court and, by direction of the Chief Justice, with the concurrence of the other members of the Supreme Court, on 29th October 2014 the appeal was transferred to this court.

2 2. The proceedings were brought by plaintiffs against the defendants arising out of the subsidence of a building. The detail of the proceedings are not important, but it is important to note that it was a relatively complex claim being brought against the defendants, who had been the builders or developers involved in the construction site and the proposed third party was a firm of professional engineers.

3 3. The factual background which is relevant to the consideration of the issues which we have had to consider is that an initial letter of claim was made against the defendants on 30th April, 2004 and the defendants then appear to have made contact with what have been described as their loss adjusters, Orr, and they in turn instructed both a firm of engineers and the solicitors now on record for the defendants in August 2004, on 5th and 10th August, 2004 I think respectively.

4 4. The plenary summons was issued on 22nd March, 2005 and then on 5th May, 2005 the statement of claim was delivered. Thereafter, particulars were raised and replied to. The next steps taken by the defendants in the proceedings were the delivery of a defence on 20th January, 2006. It should be noted that that was in response in part to a motion which had been brought returnable for 5th December in which they had been given a further four weeks to deliver a defence. On 6th February 2006, a notice of motion was issued seeking liberty to issue and serve a third party notice. An order was made giving them liberty to do so on 20th February, 2006 and on 8th March, 2006 a letter was issued by the solicitors for the defendants purporting to serve on the third party a third party notice. Now, that third party notice had not been issued, as is required by, and it is accepted, by Order 16 of the Rules of the Superior Courts out of the Central Office. However, it is not in dispute that the third party, I think on 9th March 2006, received the third party notice in the form in which liberty was given to issue and serve same.

5 5. Thereafter, a third party statement of claim was served on 19th April 2006. There were regrettable errors and oversights made by the solicitors for the defendants in relation to the actual issue out of the central office of the third party notice; they were forced to apply ex parte to the High Court to extend time, and they did so on 18th December, 2006 and were granted additional time. They then issued it out of the central office on 3rd January, 2007, but did not serve it within the 21 days. They served it on 29th March 2007. The third party subsequently brought a notice of motion on 16th July, 2007 and, by reason of difficulties, then in the High Court it was not heard and determined by Mr. Justice Clarke until 4th March, 2008.

6 6. Of all those dates, the most relevant to the issue on this appeal are the service of the statement of claim on 5th May, 2005 and the service of the third party notice on 9th March, 2006. It is the period between those two events, which is the relevant period which was considered in the High Court by Mr. Justice Clarke to be the most significant relevant period and having considered the relevant law, I take the view that this was a correct approach and I will explain why in one moment.

7 7. Counsel for the appellants, that is to say the defendants, focused, correctly in my view, on the reasoning of Mr. Justice Clarke as set out at paragraph 5.5 of his judgment. As I have indicated, it was Orr, the loss adjusters, who were considered to be the principals and were giving instructions to the solicitors in relation to the defence of the proceedings and the potential bringing in of a third party. In that paragraph, Mr. Justice Clarke stated in his judgment:

"On the facts of this case, it is by no means clear to me on the evidence as to what steps were taken by Orr to either secure the expert report from the consulting engineers concerned in a more timely fashion, to impress upon those experts the need to produce the report in a more timely fashion, to consider instructing alternative experts or the like. It is clear that both Triangle and O'Rourke Reid left this important matter to Orr. While Triangle was entitled to leave the matter to Orr there is no evidence that it pressed Orr or had, in effect, any involvement. Triangle must, therefore, at least to a material extent, answer for the efforts of Orr or the lack of them."

In those circumstances I cannot be satisfied that Triangle acted with reasonable expedition in securing the expert report concerned. There is no evidence from which I could conclude that it would have needed seven months or anything remotely like it to produce the report concerned. There is no evidence that the urgency of the situation was impressed upon the experts concerned, and in all the circumstances I am not satisfied that an adequate explanation has been given for what is, by any stretch, a significant delay in securing the report concerned."

8 8. When indicating the important relevant dates, I should have indicated, albeit it was not a step in the proceedings, that the solicitors for the defendants received the expert report referred to in that part of the judgment on 9th December 2005.

9 9. In this court, counsel for the appellants submitted that Mr. Justice Clarke was in error in his approach as indicated in the paragraph that I have just read out and that what he has looked at is whether an appropriate explanation was given to him for the delay in procuring the expert report, rather than assessing, as it is submitted he ought to have done, whether or not objectively the third party notice was served as soon as is reasonably possible.

10 10. I should add that obviously counsel for the third party made the opposite submission and submitted that, in accordance with the authorities, the approach of Mr. Justice Clarke was correct and that there was no evidence before him explaining why the report was not obtained earlier. It is not really in dispute that there was not an adequate explanation of the delay in procuring the report. There was, as Mr. Justice Clarke pointed out, no evidence directly from Orr, who were the people who were giving instructions and procuring the report, there was simply evidence of letters...