Tuohy v North Tipperary County Council

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 25 November 2008
• Neutral Citation: [2008] IEHC 410
• Court: High Court
• Docket Number: Record Number: No. 17054P/2004,Record Number:No. 17054 P/2004
• Date: 25 November 2008

Tuohy v North Tipperary Co Council & Cleary

Between:

Joanne Tuohy

Plaintiff

And

North Tipperary County Council

Defendant

And

Elizabeth Cleary

Proposed Third Party

[2008] IEHC 410

Record Number:No. 17054 P/2004

THE HIGH COURT

PRACTICE & PROCEDURE

Costs

Third party notice - Third party served with unissued third party notice - Motion to set aside issued by proposed third party - Application dealt with on consent and time for issue and service extended - Whether third party should be penalised in costs in respect of motion issued - Whether normal rule that costs follow event applicable - Delay by defendant in seeking leave to issue third party notice and failure to issue same prior to service - Third party entitled to costs (2004/17054P - Peart J - 25/11/2008) [2008] IEHC 410

Touhy v North Tipperary County Council

The issue of costs arose for determination out of a motion issued by the proposed third party seeking to set aside a second order granting the defendant leave to issue and serve a third party notice. It was accepted by the defendant that the more appropriate step would have been to seek an extension of time for serving and issuing a third party notice and consequently no order was made on the proposed third party’s motion. However, the court was required to consider an application by the defendant to extend the time for issuing and serving a third party notice and that application was granted by the court.

Held by Peart J. in awarding costs to the third party: That essentially the proposed third party’s motion was unsuccessful and the normal rule was that costs follow the event. However, the application to extend time made by the defendant arose out of the proposed third party’s motion and it was reasonable and fair to treat the application simply as one by the defendant for an extension of time. The third party would have been entitled to the costs of such an application and consequently the defendant ought to pay the costs of this motion to the proposed third party herein.

Reporter: L.O’S.

RSC O.99

Judgment of

Mr Justice Michael Peart

1 This judgment relates to the question of costs arising following the determination of a motion issued by the proposed third party ("the third party") herein as appears from my judgment dated 10^th March 2008.

2 This matter originally came before the Court by way of a Notice of Motion issued by the third party seeking to set aside the order of Mr Justice Charleton on the 16^th July 2007.

3 However, since the defendant agreed that a second order granting leave to issue and serve a third party notice should be vacated on the basis that in the circumstances of this case the proposed third party ought to have been put on notice of that application, that order was made by consent.

4 It has been accepted by both the defendant and the third party that the more appropriate step to have been taken was for the defendant to seek an extension of time for issuing and serving a Third Party Notice on foot of the said order of Charleton J. dated 16^th July 2007.

5 It followed that where the court decided that no order should be made on the third party's motion to set aside that order, the Court was required to consider an application by the defendant to extend time for issuing and serving a Third Party Notice. That application was granted for reasons appearing in my judgment delivered on the 10^th March 2008. Subsequently the Court heard submissions in relation to costs.

6 To the extent that the third party's application to set aside the third party notice was unsuccessful, the normal rule is that the costs of that unsuccessful application should follow the event, and that the defendant should be entitled to the costs of that motion, unless there is some special reason to be stated, as to why that should not happen.

7 Having considered the matter carefully, I am satisfied that the normal rule should not apply.

8 The third party, having been served with an unissued Third Party Notice would have been entitled to sit back and wait for the defendant to serve a Notice of Motion seeking an extension of time to issue and serve the Third Party Notice pursuant to the order of Charleton J. dated 16^th July 2007. However, instead, it chose to move to set aside the said order. That move certainly served to concentrate the mind of the defendants on the procedural difficulties which presented themselves, and led to the vacating of the second order, and to the situation whereby an extension of time was sought by the defendant for the issue and service of the third party notice herein on foot of the said order. That application did not result from any Notice of Motion issued by the defendant seeking the extension of time. But the Court proceeded with the third party's motion on the agreed basis that if the Court was satisfied that the order of Charleton J. ought not to be set aside because of the defendant's delay in seeking leave to issue the third party notice, the Court would, as happened, have to consider the merits of an application by the defendant for an extension of time for issuing the Third Party Notice under that order.

9 In all the circumstances of this case thus far, I see no reason why the third party should be penalised in costs in respect of the motion which was issued by her to set aside the order of Charleton J., given the delay by the defendant, for whatever reason, first of all in seeking leave to issue the Third Party Notice, and secondly by the failure thereafter to issue same prior to service.

10 In so far as the defendant was required in any event to seek an extension of time for the issue of the Third party Notice, whatever the cause of the failure to, or delay in, doing so, and that much of the factual evidence adduced on the third party's motion would necessarily have to have been adduced by the third party and the defendant if the motion issued had been one by the defendant seeking an extension of time for issue and service of the Third Party Notice, it is reasonable and fair, and therefore just as between these parties to treat the application simply as one by the defendant for an extension of time. The third party would have to be entitled to the costs of such an application one way or the other, and in these circumstances I will in the exercise of the Court's discretion under Order 99 RSC order that the defendant pay the costs of the motion to the third party, such costs to be taxed in default of agreement on the basis of a single motion.

Tuohy v North Tipperary Co Council

Between:

Joanne Tuohy

Plaintiff

And

North Tipperary County Council

Defendant

And

Elizabeth Cleary

Proposed Third Party

[2008] IEHC 63

Record Number: No. 17054P/2004

THE HIGH COURT

PRACTICE AND PROCEDURE

Third party

Third party notice - Application to set aside - Extension of time for issuing and serving third party notice - Whether third party notice served as soon as reasonably possible - Date at which defendant became aware of possibility of claim against third party - Meaning of "reasonably possible" - Boland v Dublin City Council [2002] 4 IR 409 and St Laurence's Hospital v Staunton [1990] 2 IR 31 applied; SFL Engineering Ltd v Smyth Cladding Systems Ltd (Unrep, Kelly J, 9/5/1997) followed; Ward v O'Callaghan (Unrep, Morris J, 2/2/1998) mentioned - Rules of the Superior Courts 1986 (SI 154/1986), O 16, r 1(3) - Civil Liability Act 1961 (No 41), s 27(1)(b) - Application to set aside refused, extension of time granted (2004/17054P - Peart J - 10/3/2008) [2008] IEHC 63

Tuohy v North Tipperary County Council

The proposed third party joined in proceedings sought an order setting aside an order made joining her as third party. The proceedings were in the context of a personal injuries case. An un-issued notice had been served. The application to join the third party was made before the delivery of the defence. The issue arose as to delay.

Held by Peart J. that the order should not be set aside. The order sought would be refused and the time for issuing and serving the notice would be extended. No injustice arose on the facts of the case.

Reporter: E.F.

CIVIL LIABILITY ACT 1961 S27

RSC O.19 r27

RSC O.19 r28

RSC O.16 r1(3)

RSC O.16 r3

BOLAND v DUBLIN CORPORATION & DAVID MAYRS LTD & COLOURMAN (INTERNATIONAL) LTD 2002 4 IR 409 2003 1 ILRM 172 2002/4/715

SFL ENGINEERING LTD v SMYTH CLADDING SYSTEMS UNREP KELLY 9.5.1997 1998/10/2952

BOARD OF GOVERNORS OF ST LAWRENCES HOSPITAL v STAUNTON 1990 2 IR 31

CIVIL LIABILITY ACT 1961 S27(1)(b)

WARD v O'CALLAGHAN & ORS UNREP MORRIS 2.2.1998 1998/33/13026

RSC O.16 r8(3)

RSC O.122 r7

RSC O.16 r2(2)

Judgment of

Mr Justice Michael Peart

1 By Notice of Motion dated 20^th November 2007, the proposed third party seeks an order setting aside an order made by Mr Justice Charleton on the 16^th July 2007 which gave the defendant liberty to join her as a third party, and/or an order pursuant to s. 27 of the Civil Liability Act, 1961 refusing contribution against the third party, and/or an order pursuant to Order 19, rules 27 or 28 of the Rules of the Superior Courts and/or the inherent jurisdiction of the Court striking out the third party proceedings.

2 The proceedings themselves arise out of the fact that the plaintiff has issued a Plenary Summons in July 2004 in which she seeks general damages for personal injuries suffered by her when the car she was driving on the 19^th May 2004 went out of control at a bend in the road and hit a ditch. She alleges that the defendant herein was negligent by permitting an excessive amount of chippings to be present on the road following some resurfacing, and that this is what caused her vehicle to hit the ditch and cause her injuries.

3 In its Defence delivered on the 19^th...