The High Court recently considered the question of timing in bringing third-party proceedings. In related proceedings,1 a third party to both proceedings sought to challenge the third-party notices by which it was joined to the proceedings. Having reviewed the authorities applicable to delay and third-party notices, and notwithstanding that he found there was delay in this case, Judge Murphy refused to set the notices aside given the facts of the case and the objective of the third-party procedure to have all matters dealt with in one set of proceedings.
Under Irish procedure, a plaintiff is free to include in its claim those it wishes as defendant(s). However, depending on the nature of the claim, the defendant(s) may think that another party bears some responsibility and should contribute to whatever the defendant might ultimately be ordered to pay the plaintiff. In order to ensure that all matters are dealt with in one set of proceedings and to avoid duplicating court time and resources, the third-party procedure permits a defendant to bring that other party into the original proceedings. As Judge Morris noted in Ward v O'Callaghan,2 it is desirable for all issues about indemnity or contribution as between third parties and defendants to be disposed of at the same time as the issues relating to the defendant(s)' liability to the plaintiff.
Under Section 27(1)(b) of the Civil Liability Act 1961, a defendant that wishes to make a claim for contribution shall serve the third-party notice as soon as is reasonably possible. Ostensibly, under the Rules of the Superior Courts, an application to issue a third-party notice shall be made within 28 days of the time limit for delivering the defence. However, this time stipulation is honoured more in breach than in observance.
Case law has determined that the whole circumstances of the case and its general progress must be considered in determining whether the notice was served "as soon as is reasonably possible". As the High Court noted in this case, it is a "relative concept". The Supreme Court had examined the term in Molloy v Dublin Corporation3 and noted that:
"The statute is not concerned with physical possibilities but legal and perhaps commercial judgments. Proceedings cannot and should not be instituted or contributions sought against any party without assembling and examining the relevant evidence and obtaining appropriate advice thereon. It is...