Tuohy v North Tipperary County Council

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 10 March 2008
• Neutral Citation: [2008] IEHC 63
• Court: High Court
• Date: 10 March 2008

[2008] IEHC 63

THE HIGH COURT

Record Number: No. 17054P/2004

Tuohy v North Tipperary Co Council

Between:

Joanne Tuohy

Plaintiff

And

North Tipperary County Council

Defendant

And

Elizabeth Cleary

Proposed Third Party

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)

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.

1 Mr Justice Michael Peartdelivered on the 10th day of March 2008:

2 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.

3 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.

4 In its Defence delivered on the 19 ^th September 2007, the defendant has pleaded, apart from the usual denials, that the presence of these loose chippings on the road was due to the negligence of the proposed third party who owned the house adjacent to that stretch of road. The affidavit of the defendant's engineer sworn to ground the application to join her as a third party states that he inspected this area on the 16 ^th September 2006, i.e. over two years after the plaintiffs alleged accident, and that there were loose chippings on the roadway. He went on to state that there is a 300mm wide strip of loose chippings along the public roadway in the general vicinity of the locus, and that the proposed third party is the owner of a house and farmyard adjacent thereto, and that if these chippings made their way onto the public road, this was her responsibility and not that of the defendant Council.

5 It is a somewhat unusual feature of this case that the application by the defendant to join the third party was made several months before the defendant delivered its Defence, though nothing turns on that. The Defence was delivered on the 19 ^th September 2007. Of more significance is that the application to join the third party was made some sixteen months after the delivery by the plaintiff of her Statement of Claim on the 28 ^th March 2006.

6 A further feature of the present case is that following the making of the order on the 16 ^th July 2007 granting liberty to issue and serve a third party notice, the solicitor for the defendant purported to serve the third party with the third party notice on the 25 ^th July 2007. This appears to have been done by either registered or ordinary post, rather than personal service, but again, nothing in particular turns on that, especially since no point of objection has been raised in that regard.

7 Following service of the third party notice, the third party's solicitor attempted to enter an Appearance thereto in the Central Office of the High Court on her behalf. But her law clerk could not do so, as he was informed that the defendant's solicitor had never in fact issued the third party notice following the making of the order in that regard on the 16 ^th July 2007. He had simply served an unissued third party notice, even though the notice itself and the covering letter accompanying it when it was sent to the third party refers to it as being "issued pursuant to order of the High Court of the 16 ^th July 2007".

8 Another feature of the case is that the third party was completely unaware that any claim was being made against in relation to this accident until she received the copy of the purported third party notice at the end of July 2007, which is some three years and two months later.

9 A further feature of the case is that unknown to the third party, the defendant in more recent times applied for and was granted a further order granting liberty to issue and serve and serve the third party notice, but the defendant has agreed that that order should be vacated, since the appropriate application in the circumstances would have been to seek an extension of time to issue and serve the third party notice under the order already granted on the 16 ^th July 2007. In the circumstances where the proposed third party had been served with a purported third party notice, any application for any further order should have been on notice to the solicitors who were known to be acting on behalf of the proposed third party.

10 Arising from these facts and circumstances, the position is that as yet no third party notice has actually been issued. That means that the defendant would need an extension of time within which to issue and serve same under the order dated 16 ^th July 2007. The third party has applied to have that order set aside on the grounds of delay in bringing the application. If the Court decides to set aside the order of Mr Justice Charleton dated 16 ^th July 2007 on the grounds submitted, that is an end of the matter as far as the third party is concerned. In the event that the Court declines to set aside that order, the defendant seeks an extension of time for issuing and serving the third party notice there under.

11 Section 27 of the Civil Liability Act, 1961 provides;

"(1) A concurrent wrongdoer who is sued for damages or for contribution and who wishes to make a claim for contribution under this part

(a) ...

(b) shall, if the said person is not already a party to the action, serve a third party notice upon such person as soon as is reasonably possible and, having served such notice, he shall not be entitled to claim contribution except under the third party procedure. If such third party is not served as aforesaid, the court may in its discretion refuse to make an order for contribution against the person from whom contribution is claimed."

12 Order 16, rule 1 (3) RSC provides:

"Application for leave to issue the third party notice shall, unless otherwise ordered by the Court, be made within twenty eight days from the time limited for delivering the Defence or, where the application is made by the defendant to a counterclaim, the reply."

13 Cormac Clancy BL for third party submits that the defendant has failed to comply with either section 27 of the Act or the provisions of 0. 16, r.3 RSC. It will be recalled that the Statement of Claim in this case was delivered on the 28 ^th March 2006, and the application to join the third party was not made until the 16 ^th July 2007. In order to comply with the time specified by the O. 16, r. 3 RSC, that application would have to have been made not later than 25 ^th April 2006. The affidavit grounding the present application, which has been sworn by Jennifer O'Riada, the solicitor acting for the third party, refers to the fact that the defendant did not make the application for leave to issue and serve the third party notice as soon as possible following delivery of the Statement of Claim, and that no explanation for that delay has been provided. She states also that the third party notice which was served upon her client discloses no cause of action against her client, who was completely unaware of this claim being made against her until she received the purported third party notice.

14 Mr Clancy has informed the Court that no claim of prejudice arising from the delay is being made by the third party; and he submits on the basis of authority that it is unnecessary that he should do so. He submits that delay simpliciter is sufficient to justify the setting aside of the order dated 16 ^th July 2007. He submits that the onus of...