Third party motion to set aside notice dismissed due to unreasonable delay in seeking relief.

[2002] IESC 69

THE SUPREME COURT

304/00

Murphy J.

McGuinness J.

Hardiman J.

Between:

JOHN BOLAND

Plaintiff

and

THE RIGHT HONOURABLE THE LORD MAYOR ALDERMEN and BURGESSES of DUBLIN

Defendant/Appellant

and (by Order of the Court) David Mayrs Limited

First named Third Party/Respondent

and

COLOURMAN (INTERNATIONAL) LIMITED

Second named Third Party/Respondent

JUDGMENT of Mr. Justice Hardiman delivered the 15th day of October, 2002.

1. This is an appeal by Dublin Corporation, the Defendant in the original action, against the Order of the High Court (O’Higgins J.)

made the 20th November, 2000. The High Court directed that the Third Party Notice as against the First Named Third Party be set

aside.

2. The application to set aside the Third Party Notice was heard on affidavit, that of Mr. Daniel Oliver Leahy for the First Named Third

Party and that of Ms. Deborah Ryan for the Defendant. From these affidavits it emerges that the Plaintiff’s claim is for damages for

personal injuries arising out of an accident alleged to have occurred on the 3rd December, 1993. On the 16th November, 1995 the

Plaintiff’s solicitors intimated a claim against the Defendants. It appears from the Statement of Claim that the Plaintiff says that he

was walking along the public highway at Broombridge Road, Cabra, Dublin when he fell. He claims the fall was due to “the presence of

an unreasonable danger and a concealed danger in the nature of a trap, namely a broken down and poorly repaired and reinstated

area of the footpath with both raised and damaged/lowered sections” whereby he was caused to trip and fall sideways into a fence.

3. The Plaintiff issued a plenary summons on the 23rd September, 1996. An appearance was entered on the 3rd October of that year,

the Statement of Claim was delivered on the 19th January, 1998 and a Notice of Intention to Proceed was delivered on the 5th May,

1998. The Defendant raised a Notice for Particulars on the 17th June, 1998 and replies were delivered on the 23rd July, 1998. The

Defence was delivered on the 11th August, 1998. Prior to this exchange of pleadings the Defendant had received from the Plaintiff’s

solicitors photographs of the alleged location of the accident. These were received on the 7th December, 1995. The Corporation say

that the location of the accident “appears to be adjacent to a broken down chain linked fence” which it believes “was the property of

and was supposed to be maintained by the Third Parties, one or other or both of them”.

4. Accordingly, by letter dated the 26th November, 1998 the Defendant wrote to the First Named Third Party informing it of the

intention of the Corporation to join it as a Third Party. On the 8th February, 1999 the High Court granted liberty to issue and serve

the Third Party Notice. This document was actually served on the 11th February, 1999. On the 22nd March, 1999 the First Named

Third Party entered an appearance and required delivery of a statement of claim. On the 4th August, 1999 the First Named Third

Party issued a Motion to compel delivery of a Third Party Statement of Claim. This pleading was delivered on the 9th August, 1999.

On the 17th August, 1999 the Third Party raised particulars arising out of the Third Party Statement of Claim. On the 11th October,

1999 the Defendant replied to the Notice for Particulars. On the 14th July, 2000 the Motion to set aside the Third Party Notice was

issued. It thus appears that some seventeen or eighteen months had elapsed between the service of the Party Notice and the issue

of the Motion to set it aside, during which the Third Party made no objection to the procedure adopted by the Defendant.

5. In the course of argument the Defendant emphasised the proposition that it had sent to the First Named Third Party the

photographs it had received from the Plaintiff’s solicitor prior to the institution of proceedings. It transpired however that this much

emphasised contention was erroneous and that the Third Party had no knowledge of the claim until a few days before the letter of

the 26th November, 1998 when its Managing Director was verbally notified by the Corporation’s law agent of the intention to issue the

Third Party Notice.

6. The First Named Third Party contends that the spot where the accident occurred is in charge of the Defendant. It also says that

the fence was removed and replaced in its entirety between the date of the accident and an unknown date in 1995, following an

incident in which a car crashed into it. The Defendant denies this.

The Law.

7. This application is based on the proposition that the First Named Third Party, as occupier of its premises, is a concurrent

wrongdoer with the Defendant, either jointly with the Second Named Third Party or individually. Though the term “concurrent

wrongdoer” is not used, this basis of the claim seems to emerge clearly from paragraph 4 of the Third Party Statement of Claim dated

the 9th August, 1999. This being so, the entitlement to issue and serve a Third Party Notice is governed by Section 27(1) of the Civil

Liability Act, 1961 which provides as follows:-

“(1) A concurrent wrongdoer who is sued for damages or for contribution and 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 notice 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.” (Emphasis added).

8. Furthermore, Order 16 of the Rules of the Superior Courts provides at Rule 1(iii):-

“Application for leave to issue the Third Party Notice shall, unless otherwise ordered by the Court, be made within 28 days

of the time limited for delivering the defence or, where the application is made by the Defendant to a counterclaim, the

reply”.

9. I agree with the remarks of Kelly J. in SFL Engineering Ltd. v. Smyth Cladding Systems Ltd. (High Court unreported 9th May, 1997)

as follows:-

“This provision of the Rules gives expression in a concrete form to the temporal imperative contained in Section 27(1)(b)

of the 1961 Act. It is to be noted that the Rules of Court require the application to be made not within 28 days from the

delivery of the defence in the proceedings but within 28 days from the time limited for delivering the defence”.

10. It is also to be noted that under Order 16 Rule 8(3) Third Party proceedings may at any time be set aside by the Court. This is

the jurisdiction which is invoked on the present application.

11. In The Board of Governors of St. Lawrences Hospital v. Staunton [1990] 2 IR 31 the Supreme Court considered Section of the

1961 Act. Referring specifically to Section 27(1)(b) Finlay C.J. said:-

“I am quite satisfied upon the true construction of that subsection that the only service of a third party notice

contemplated by it and, therefore, the only right of a person to obtain from the High Court liberty to serve a third party

notice claiming contribution against a person who is not already a party to the action, is a right to serve a third party

notice as soon as is reasonably possible. A defendant in an action seeking to claim contribution against a person who is

not a party to the proceedings cannot serve any third party notice at any other time, other than as soon as is reasonably

possible”.

12. This view has been followed, and its application to various specific circumstances considered, in a number of decisions of the High

Court and in particular Ward v. O’Callaghan and Ors. High Court unreported (Morris P.) 2nd February, 1998; Carroll v. Fulflex

International Company Limited and Combined Freight Services Limited High Court unreported Morris J. 18th October, 1995; Dillon v.

MacGabhann High Court unreported Morris J. 24th July, 1995; Tierney v. Sweeney and Anor. High Court unreported Morris J. 18th

October, 1995; and Grogan v. Ferrum Trading Company Limited and Ors. High Court unreported Morris J. 13th February, 1996.

13. In relation to a Motion to set aside a third party notice, in Carroll v. Fulflex, Morris J. (as he then was) said:-

“A motion to set aside the Third Party Notice should only be brought before that Defendant has taken an active part in

the Third Party proceedings and I believe that an application of this nature must itself be brought within the time scale

identified in Section 27(1) of the Civil Liability Act, 1961, that is to say ‘as soon as is reasonably possible’. While that

limitation is not spelt out in the Act, I believe that a fair interpretation of the Act must envisage that a person seeking

relief under Section 27 would himself move with reasonable speed and certainly before significant costs and expenses

have been occurred in the Third Party procedures”.

14. In Tierney v. Sweeney Morris J. (as he then was) said:-

“I am of the view that where it is intended to make the case that a defendant has failed to move the Court to set aside

an order giving a defendant liberty to serve a third party notice, such an application should be brought with reasonable

expedition and in accordance with the time scale reflected in Section 27(1)(b) of the Civil Liability Act, 1961, that is as

soon as reasonably possible and save in exceptional circumstances should not extend beyond the point where a defence

is delivered to the Third Party Statement of Claim”.

15. I respectfully agree that the statutory requirement to move for liberty to issue a third party notice, “as soon as reasonably

possible”, should be regarded as applying, also, to the bringing of an application to set aside such a notice. While it is difficult to

imagine circumstances in which a delay by a third party until after he has himself delivered a defence to the Third Party Statement of

Claim could be justified, it by no means follows that the mere fact that he has not yet delivered a defence means that the application

to set aside has been brought as soon as reasonably possible.

The facts of the present case.

16. On the facts of the present case, the First Named Third Party brought its Motion to set aside on the 14th July, 2000, having been

served with the Third Party Notice on the 11th February, 1999. This delay is simply not addressed at all in the Affidavit evidence on

the hearing of this application. In particular, the nine month period between the delivery of particulars on the 11th October, 1999 and

the issue of the Motion on the 14th July, 2000 seems incapable of justification: certainly none has been advanced. Just as the onus

of justifying any delay in seeking liberty to issue the Third Party Notice devolve on the Defendant, the onus of justifying delay in

bringing the Motion to set such notice aside devolves on the Third Party. Since the First Named Third Party in the moving party here,

its delay falls to be considered first.

Conclusion.

17. Since the First Named Third Party has failed to demonstrate that its motion has been brought as soon as reasonably possible, the

present application must fail. I would accordingly set aside the Order of the learned High Court Judge and decline the relief sought by

the First Named Third Party.