William Purcell v Córas Iompair Éireann (Cié)

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 11 January 2022
• Neutral Citation: [2022] IEHC 4
• Docket Number: 2018 No. 327 P
• Court: High Court

Between

William Purcell

Plaintiff

and

Córas Iompair Éireann (Cié)

Cié Group Property Management

Dún Laoghaire Rathdown County Council

Defendants

Denis Desmond

Caroline Desmond

Third-Parties

[2022] IEHC 4

2018 No. 327 P

THE HIGH COURT

Appearances

Frank Beatty, SC and Peter Paul Daly for the third-parties instructed by Kennedys Solicitors LLP

Ray Delahunt for the first and second named defendants instructed by Colm Costello Solicitor

JUDGMENT of Mr. Justice Garrett Simons delivered on 11 January 2022

INTRODUCTION

1 This judgment is delivered in respect of an application to set aside third-party proceedings on the grounds of delay. The application is made pursuant to Order 16, rule 8(3) of the Rules of the Superior Courts.

CHRONOLOGY

2 The chronology of the proceedings is summarised in tabular form below:

8 March 2015	Date of alleged accident
15 January 2018	Personal injuries summons issued
14 February 2018	Appearance entered by first and second defendants
1 March 2018	Appearance entered by third defendant
8 May 2019	Defence delivered by first and second defendants
27 June 2019	Notice of change of solicitor for third defendant
25 July 2019	Notice of motion issued to join third-parties
18 November 2019	High Court order joining third-parties
1 July 2020	Irregular service of third-party notices
29 July 2020	Appearance rejected by Central Office
14 September 2020	Service of filed third-party notices
5 October 2020	Motion to set aside third-party notices issued
14 December 2021	Hearing of motion

PROCEDURAL HISTORY

3 These proceedings take the form of a claim for personal injuries. The claim arises out of a cycling accident said to have occurred on 8 March 2015. It is pleaded that the plaintiff came off his bicycle as a result of hitting an unmarked, non-standard speed ramp on Strand Road, Killiney, Co. Dublin (“ the roadway”).

4 In brief, the claim against the defendants is that the speed ramp constituted a hazard in that it was indistinguishable from the roadway and was overshadowed by an overgrown tree. It is pleaded, inter alia, that the defendants failed to construct or design the speed ramp in accordance with relevant guidelines with respect to length and height, and that they failed to put in place a clearly visible sign indicating the presence of the speed ramp.

5 The first and second defendants delivered a joint defence to the claim on 8 May 2019. For ease of exposition, these two defendants will be referred to as “ the CIÉ defendants”. Relevantly, the defence puts the plaintiff on proof of the allegation that the CIÉ defendants constructed speed ramps on the roadway. The defence also contains pleas to the effect that the speed ramp was installed by Denis Desmond and Caroline Desmond (“ Mr. & Mrs. Desmond”). It appears that Mr. & Mrs. Desmond are the occupiers of a dwelling house adjacent to the roadway. It is pleaded that the installation of the speed ramp had been done without the prior knowledge and/or consent of the CIÉ defendants. It is further pleaded that the CIÉ defendants are entitled to a full indemnity from Mr. & Mrs. Desmond.

6 It should be explained that the installation of the speed ramp had been the subject of contentious correspondence between the solicitors acting on behalf of CIÉ and Mr. & Mrs. Desmond, respectively, in the years 2002 and 2003. The existence of this correspondence is relevant to the state of knowledge of the CIÉ defendants. I will return to discuss this correspondence further at paragraphs 34 and 35 below.

7 A number of months subsequent to the delivery of the defence, the CIÉ defendants issued a motion on 25 July 2019 seeking leave to join Mr. & Mrs. Desmond as third-parties to the proceedings. The motion came on for hearing on 18 November 2019, and an order was made on that date joining the third-parties. The court order was formally drawn up, i.e. perfected, the following day, 19 November 2019.

8 The third-party notices should have been served on Mr. & Mrs. Desmond within twenty-eight days from the making of the order, and a sealed copy of the notices filed in the Central Office of the High Court. In the event, the time-limits in this regard were not complied with. The third-party notices were not, in fact, served until 1 July 2020, i.e. some seven months later. The service was irregular in that a copy of the third-party notices was not filed in the Central Office, with the consequence that an appearance to the third-party proceedings could not be entered. This procedural misstep was ultimately corrected by the service of the third-party notices in proper form on 14 September 2020.

9 Mr. & Mrs. Desmond issued a motion seeking to have the third-party notices set aside on the grounds of delay on 5 October 2020. The motion came on for hearing on 14 December 2021.

LEGAL PRINCIPLES GOVERNING SET ASIDE APPLICATION

Section 27 of the Civil Liability Act 1961

10 The principal objective of the third-party procedure is to simplify litigation and to avoid a multiplicity of actions by allowing the main proceedings and the third-party proceedings to be heard together by the same judge ( Connolly v. Casey [1999] IESC 76; [2000] 1 I.R. 345, citing Gilmore v. Windle [1967] I.R. 323). That does not necessarily mean that all the issues have to be dealt with simultaneously; that may depend on appropriate orders as to the time and mode of trial of the various issues ( Kenny v. Howard [2016] IECA 243).

11 Section 27 of the Civil Liability Act 1961 provides that a defendant, who wishes to make a claim for contribution, must serve a third-party notice as soon as is reasonably possible. This temporal obligation is intended to ensure that the general progress of the main proceedings is not unnecessarily delayed by the third-party claim ( Kenny v. Howard [2016] IECA 243).

12 The imposition of the statutory obligation to serve a third-party notice as soon as is reasonably possible has the practical consequence that a defendant who wishes to pursue a third-party claim is under far greater time constraints than a putative plaintiff. A putative plaintiff is allowed the full reach of the relevant limitation period within which to institute proceedings against a defendant. Thereafter, a failure by the plaintiff to comply with the time-limits prescribed under the Rules of the Superior Courts for the delivery of pleadings will not normally result in the plaintiff's claim being struck out, unless there has been inordinate and inexcusable delay. By contrast, a defendant to existing proceedings who wishes to make a claim for contribution is expected to issue the third-party proceedings within a much tighter timeframe. There are examples of third-party proceedings having been set aside where the delay is measured in months rather than years. This is so notwithstanding the generous limitation period allowed for under section 31 of the Civil Liability Act 1961.

13 The onus is on the defendant, who has joined a third-party, to explain and justify any delay. In assessing delay, the court will have regard to the fact that third-party proceedings should not be instituted without first assembling and examining the relevant evidence and obtaining appropriate advice thereon. However, the quest for certainty or verification must be balanced against the statutory obligation to make the appropriate application as soon as reasonably possible ( Molloy v. Dublin Corporation [2002] 2 I.L.R.M. 22).

14 It is incumbent on the court to look not only at the explanations which have been given by a defendant for any purported delay, but also to make an objective assessment as to whether, in the whole circumstances of the case and its general progress, the third-party notice was served as soon as is reasonably possible ( Greene v. Triangle Developments Ltd [2015] IECA 249).

15 The most obvious example of a disruptive effect caused by the joinder of a third-party is where the third-party notice has been issued after the pleadings in the main proceedings have closed and the case has been set down for trial. The introduction of a third-party claim at such a late stage is likely to result in a delayed hearing. It is apparent from the case law, however, that it is not only such eleventh hour joinders that are liable to be set aside.

16 The statutory requirement to move for liberty to issue a third-party notice as soon as is reasonably possible should be regarded as also applying to the bringing of an application to set aside such a notice ( Boland v. Dublin City Council [2002] IESC 69; [2002] 4 I.R. 409). No such delay arises in the present case: the motion to set aside the third-party notices was issued on 5 October 2020, that is, within one month of the proper service of the third-party notices.

Does time run from date of application for leave or date of service?

17 There is some disagreement on the authorities as to whether delay should be calculated by reference to (i) the date upon which the third-party notice is served ( Greene v. Triangle Developments Ltd [2008] IEHC 52), or (ii) the earlier date upon which the motion seeking to join the third-party is issued ( McElwaine v. Hughes [1997] IEHC 74; Morey v. Marymount University Hospital and Hospice Ltd [2017] IEHC 285). I tend to the view that time should be taken as running from the date upon which the third-party notice is actually served. This appears to be more in keeping with the statutory language, i.e. “ serve a third-party notice upon such person as soon as is reasonably possible”. It is only once the notice has been served that the third-party will be on formal notice of the third-party proceedings, and that the timetable prescribed under the Rules of the Superior Court for the exchange of pleadings within the third-party proceedings will be triggered.

18 On the facts of the present...