Supreme Court dismisses appeal, affirming High Court's refusal to set aside Third Party Notice and decline jurisdiction.

[2003] IESC 21

THE SUPREME COURT

2001/49

Denham J.

Hardiman J.

McCracken J.

Between:-

ORLA McCARTHY

Plaintiff

and

PALLANY PILLAY

and

PILLAY’S GENERAL HOSPITAL LIMITED t/a CITY GENERAL HOSPITAL

Defendants

and

ST. VINCENT’S HOSPITAL AND MEDICAL CENTRE OF NEW YORK

Third Party

JUDGMENT of Mr. Justice Hardiman delivered the 24th day of March, 2003.

1. This is the third party’s appeal against the order of the High Court (Murphy J.) perfected the 7th day of February, 2001. By that

order the High Court refused to set aside the service of the Third Party Notice on the grounds that the defendants failed to comply

with the mandatory requirements of Order 11 Rule 2 and Rule 5 of the Rules of the Superior Courts. The High Court also refused to set

aside the service of the Third Party Notice on the basis that the Third Party was not a necessary or proper party to the proceedings

within the meaning of Order 11 Rule 1(h) of the Rules of the Superior Courts. Finally, the High Court refused to decline jurisdiction

over the Third Party issue between the defendant and Third Party in favour of the Courts of New York. The High Court had been

urged to do this on the ground that Ireland was a forum non conveniens for the determination of the Third Party claim.

Factual background.

2. The plaintiff commenced proceedings against the defendants, a doctor and a hospital in Cork, on the 14th July, 1995. These

proceedings related to allegedly negligent treatment of herself and her late infant son, Dylan McCarthy, at and about the time of his

birth in 1992. The first-named defendant is an obstetrician and gynaecologist practising in Cork and the second-named defendant is

the hospital in Cork where he practices. The plaintiff’s claim that the infant’ death (he was still born) was due to Rh/D Iso-

immunisation.

3. According to the particulars in the plaintiff’s Statement of Claim the substantive case made against the defendants is that they

failed to take any or adequate history from the plaintiff; failed to examine her adequately and in particular failed to investigate her

blood type and antibody status; failed to attend to her symptoms during the pregnancy; failed adequately to monitor the foetal

heart; failed to carry out a caesarean section under appropriate antibiotic cover and failed to investigate her complaint that she had

noticed reduced foetal movement.

4. It transpires that, in the year 1987, the plaintiff was living in New York. She became pregnant and attended the Third Party

hospital there. She received ante-natal care and subsequently gave birth to a healthy baby boy.

5. In the course of her attendance at the Third Party’s hospital she was presented with a document, described by the Third Party as

an ante-natal appointment card. From a perusal of this document it is clear that its contents is not limited to dates of medical

appointments. It contains space for medical notes including “significant findings or problems”, space for personal details of the

patient, space for a history of the patient extending to whether ten specific diseases are or have been suffered from. Vitally, it

contains space for the recording of the patient’s blood type and rhesus status. The blood type is given as A and rhesus status as

positive.

6. In the defendants defence delivered the 15th January, 1998 it is alleged at paragraph 4:-

“When the plaintiff initially attended the first-named defendant she specifically requested that she not have a blood test

taken as she had a great fear of needles and further specifically for the reason that the relevant information was set out

in her prenatal book which she then and there produced and handed to the first-named defendant”.

7. Paragraph 8 of the defence states:

“If (which is denied) the plaintiff did suffer the alleged or any personal injuries, these alleged injuries and/or death of

Dylan McCarthy and/or the deafness suffered by the plaintiff’s third child Piers were wholly caused by, or in the

alternative, were contributed to by the negligence of some other third party”.

8. Contributory negligence is also alleged against the plaintiff and described as follows:-

“(a) Providing the first-named defendant with an antenatal book which contained incorrect information, including incorrect

details as to the plaintiff’s blood group;

(b) Requesting the first-named defendant not to have her blood tested;

(c) Furnishing incorrect information to the first-named defendant concerning her blood group”.

Procedural background.

9. On the 2nd December, 1998 Ms. Fiona Ruttle, Solicitor, swore an affidavit in support of the defendant’s application to join the Third

Party. She traversed some of the ground indicated in the extracts from the defence, quoted above. She stated that the defendants

were presented with the Third Party’s antenatal appointment book by the plaintiff and that they “relied on the information

communicated by way of the said antenatal book and verbally to them by the plaintiff”. She said that it subsequently emerged that

the information contained in the book was “inaccurate and the true position was that the plaintiff’s blood group was A Rh/D negative”.

She continued:-

“This inaccurate recording and reporting of the plaintiff’s blood group had the most serious implications for the ensuing

treatment of the plaintiff by the defendants. In the event, the infant Dylan McCarthy was delivered still born and his

death was found to have been caused by an unsuspected and undetected hydrops fetalis due to severe haemolytic

disease caused by the presence of antibodies in the mother’s blood”.

10. She went on to say that the production of these antibodies could have been inhibited by administering anti-D immunoglobulin to

the mother. This, she says, should be done immediately following the delivery of the baby to ensure that no complication arises in any

future pregnancy. It is unclear, she says, whether the Third Party did this or not.

11. Based on the foregoing Ms. Ruttle alleged that the Third Party is a concurrent wrongdoer who caused or contributed to the death

of the infant Dylan and to the injury to the plaintiff. Accordingly, she says, the defendants are entitled to a contribution or indemnity

in respect of their liability, if any.

Grounds of the present application.

12. The Third Party relies on two quite separate grounds in support of their application to set aside the service of the Third Party

Notice. These are:-

“(a) The requirements of Order 11 of the Rules of the Superior Courts have not been complied with,

(b) Alternatively – under the forum non conveniens doctrine – Ireland is not the appropriate forum for the determination

of the defendants claim against the Third Party.

Order 11.

13. The first relevant provision of Order 11 is to be found at Order 11 Rule 1(h) which requires a defendant seeking to join the Third

Party outside the jurisdiction to establish that such person “is a necessary or proper party to an action properly brought against some

other person duly served within the jurisdiction”.

14. Both before the High Court and on the hearing of this appeal, the Third Party conceded that it would have been properly joined as

a third party if it were resident within the jurisdiction.

15. In Waddell v. Nortland and Anor. [1966] N.I. 85 at 91, Lord McDermott said:-

“Had both defendants been within the jurisdiction I should have thought that the propriety of joining them both in these

claims could not have been questioned. In Witted v. Galbraith, Lindley L.J. said with reference to the corresponding

English Rule ‘It is said that the present case comes within that rule. There is a very easy method of testing whether this

is true. Supposing that both the defendant firms were resident within the jurisdiction, would they both have been joined in

the action?’.

It may not be a universal test but it seems to me a reasonable and proper test in this sort of case. I do not forget the

words ‘properly brought’ are part of the protection accorded to foreigners and that leave to serve the jurisdiction is not

granted lightly. But here – and I repeat again that I am speaking only of this sort of case – I find myself unable to hold

that these actions were not properly brought against the defendant served within the jurisdiction. I would therefore hold

that the case comes within paragraph (h) of Order 11 Rule 1.”

It should be noted that case from which this quotation is taken was also a negligence action.

16. It was not disputed that, if St. Vincent’s Hospital had been situated in Ireland, it would be a proper party in the present

proceedings. Here, however, it is said that because St. Vincent’s Hospital is outside the jurisdiction, and rendered services to the

plaintiff only in New York, the question of its liability is to be determined in accordance with the law of that State. To be a proper

party in those circumstances, it is contended, it must be shown that the plaintiff would have a good case against the Third Party

according to that law. It is contended that the averments on the part of the defendant do not go far enough in that area.

17. In so saying the Third Party relies on the decision of this Court in Analog Devices DV v. Zurich Insurance Corporation [2002] 1 IR

272, where Fennelly J. said:-

“When the Court grants leave for the service out of the jurisdiction of proceedings, it requires a person, not otherwise

within the jurisdiction of our courts, to appear to hear and to answer the claim of a person made in what is for him a

foreign court rather than leaving the plaintiff to pursue his remedy against that person in that other jurisdiction. The

international comity of the Courts have long required, therefore, that our courts examine such applications with care and

circumspection. The applicant must furnish an affidavit verifying the facts upon which he bases his cause of action. It is

not sufficient that he asserts he has a good cause of action. The Court judges the strength of the cause of action on the

test of a ‘good arguable case’.”

18. The last phrase had already been adopted by the Irish Courts in the judgment of Barrington J. in Shortt v. Ireland [1996] 2 IR 188

at 215.

19. These principles are applicable to proceedings against a Third Party commenced by Third Party Notice, by reason of the contents

of Order 11 Rule 11.

20. In my view, what is required in the way of establishing a good arguable case is suggested by a consideration of the other

provisions of Order 11. By Order 11 Rule 2 it is provided that the Court:-

“shall have regard to the amount or value of the claim or property affected and to the comparative cost and convenience

of proceedings in Ireland, or in the place of the defendant’s residence”.

21. By Order 11 Rule 5 it is provided that:-

“Every application for leave to serve out of the jurisdiction shall be supported by affidavit, or other evidence, stating that

in the belief of the deponent the plaintiff has a good cause of action, and showing in what place or country such

defendant is or probably may be found, and whether such defendant is a citizen of Ireland or not, and where leave is

asked to serve under rule 1, stating the particulars necessary for enabling the Court to exercise a due discretion in the

manner in rule 2 specified; and no leave shall be granted unless it shall be made sufficiently to appear to the Court that

the case is a proper one for service out of the jurisdiction under this Order”.

22. It appears to me that these provisions have been complied with. The affidavits on behalf of the defendant contain:-

(a) A summary of the plaintiff’s case against the defendants as it appears in her proceedings,

(b) A statement of the facts relied on in the application to join the Third Party, showing the involvement of that Party

including the antenatal book, a copy of which is exhibited. It is further stated that the information in this book was

inaccurate and the implications of this fact for the treatment of the plaintiff are set out, together with a statement of the

possible relevance of the anti-D issue.

(c) It is stated that in the belief of the deponent the Third Party was a concurrent wrongdoer.

(d) It is further stated that “The issues as between the plaintiff and the defendants are closely interwoven with the

issues as between the plaintiff and the proposed third party and those between the defendants and the proposed third

party”.

23. It is does not appear to me that any real issue was taken with the factual contents of the defendants affidavits. In their

submissions, the Third Party’s counsel concede that it appears that the book is the appellant’s and that “there is no dispute about

the existence of the antenatal appointment book”. It is further stated, in a slightly odd form of words, “During the course of her

treatment at St. Vincent’s Hospital in New York she was provided with an antenatal appointment card in which her blood group

happens to be recorded as A Rhesis Positive”.

24. It appears to me, therefore, that the defendants affidavits do indeed verify the facts upon which they base their case against

the Third Party, and that in doing so they have also provided “the particulars necessary for enabling the Court to exercise a due

discretion” in the manner specified in Order 11 Rule 2. It is then, in the words of Fennelly J. quoted above, for the Court to judge “the

strength of the cause of action on a test of ‘good arguable case’ ”.

25. It is also averred, without contradiction, that the Third Party gave the appointment book to the plaintiff and that the defendants

relied on it and on what the plaintiff told them verbally.

26. The purpose of the requirements of Order 11 quoted above is to protect a third party from being involved in a case unless, at

least, he, she or it is a proper party to that case. That is the protection accorded to a proposed third party within the jurisdiction. A

third party who is outside the jurisdiction may be able to urge additional objections to being joined, based on forum non conveniens or

on comparative cost and dispatch, or otherwise. These will be considered below. But there is no reason to make any distinction

between a third party out of the jurisdiction and a domestic third party on the question of the propriety of its joinder. I consider that

the facts averred to and uncontradicted constitute a good arguable case. This, in fact, is not denied in the affidavits of the three

New York attorneys which have been filed on behalf of the Third Party. On the contrary, these people concentrate wholly on the

alleged inadequacies of the defendants’ affidavit. I do not consider the latter affidavits insufficient and I consider that the Third Party

is properly joined in the proceedings.

“Comparative cost and convenience”

27. It is suggested that the requirement to establish this, part of those imposed by Order 11 Rule 2, has not been complied with in

the circumstances of the present case.

28. In considering this it must be recalled that the present application relates to a third party notice. There is a clear factual

connection between the information which it appears the Third Party gave to the plaintiff, her communication of it to the defendant,

and the defendants subsequent course of action. Equally, if it transpires that the plaintiff was not given anti-D by the Third Party

there may be a live and arguable issue between the defendant and the Third Party on that matter.

29. It was accepted by the Third Party on the hearing of this appeal that “it is generally desirable that the hearing of causes of

action should be ‘centralised’ with a view to avoiding inconsistent decisions”. In Tromso Sparebank v. Burren (unreported) Supreme

Court, 15th December, 1989, McCarthy J. said:-

“the thrust of the law today is to centralise the hearing of actions arising out of disputes. The possibility of inconsistent

verdicts in different jurisdictions emphasises this, which is reflected on the convention on jurisdiction… In my view

everything points to the desirability of centralising the trial of the several claims, in the alternative or otherwise, arising

out of what appears to have been an elaborate fraud.”

30. The learned judge also pointed out (albeit in the context of cases where the relevant legal systems were those of the United

Kingdom and Ireland) that “It is commonplace for the law of one nation to be applied to litigation in another.”

31. The approach taken in Tromso was followed by Fennelly J. in Analogue Devices, cited above.

32. In my view, this approach is manifestly sensible, whether considered from the point of view of the public interest in the due and

rapid dispatch of litigation, or the private interest of parties. Here, the litigation between the plaintiff and the defendant has

advanced to the close of pleadings and, while the joinder of the Third Party will delay the progress to trial, it should not do so

excessively. It will have the considerable advantage that all issues, factual and legal, will be resolved in the same forum. On the other

hand, any proceedings in the United States would presumably have to await the result of the action here between the plaintiff and

the defendant and then be commenced in the United States. The double litigation which this would give rise to would, in my view,

prima facie be more expensive and less convenient in the ordinary sense of that term than joining the Third Party in the Irish

proceedings.

33. Indeed, it appears to me that Third Party’s arguments on this point merge into their contentions up to forum non conveniens, and

are better dealt with under that heading. They accept that it is desirable to centralise the hearings of all matters in dispute but claim

that that fact cannot stand against the requirements of justice as they conceive them to be.

34. In Grehan v. Medical Incorporated [1986] IR 528 the plaintiff sued for damages for personal injuries suffered as a result of the

disintegration of a valve which had been inserted in his heart in Ireland. The valve had however been manufactured by a second

defendant in the United States. The plaintiff obtained an order joining the second-defendant in the action and the latter sought to

set the Order aside. This application was refused both by the High Court and by this Court. Walsh J. said:-

“In the present case and applying my view that it is sufficient if any significant element occurred within the jurisdiction

and having examined the relevant circumstances of the case, I am of opinion that the High Court Order should stand.

Admittedly other significant elements occurred outside the jurisdiction, but for the reason already given that should not

preclude the Court from making the Order. The case cannot be said to have only a tenuous connection with this

jurisdiction. The appliance was fitted to the plaintiff’s heart in this jurisdiction and the injury alleged occurred here”.

35. I am of the opinion that the defendant here has asserted facts in affidavit to allow a court to make a judgment as to comparative

cost and convenience. A decision on these matters is for the discretion of the Court and I would not disturb the findings of the

learned High Court judge on this ground.

Forum non conveniens.

36. On this aspect, there is agreement that an onus rests on the Third Party of demonstrating that there is a distinctly more

appropriate forum outside the jurisdiction, i.e. in this case that the Courts of New York are a distinctly more appropriate forum for the

resolution of the issue between the defendant and the Third Party. If it does this, then the onus passes to the defendant to

demonstrate that justice requires that a stay should be refused.

37. This arises from the decision in Spiliada Maritime Corporation v. Cansulex Limited [1987] AC 460, approved in Intermetal Group

Limited v. Worslade Trading Limited [1998] 2 IR 1. In the first of these cases Bingham L.J. (as he then was) said:-

“A stay would only be granted on the grounds of forum non conveniens where the Court is satisfied that there is some

other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, i.e. in

which the case may be tried more suitably for the interests of all the parties and the ends of justice”. (Emphasis in

original)

38. It also seems to be agreed between the parties that the meaning of the Latin word “conveniens” is more aptly rendered in English

by the words proper or suitable than by the word convenient.

39. In this connection the Third Party in its affidavits placed huge and indeed repetitious emphasis on the fact that the Third Party is

a body incorporated in New York, offering medical services to the inhabitants of that city so that at the time treatment was provided

to the plaintiff “It must have been inconceivable to anyone that legal proceedings arising from her treatment would be brought

anywhere other than in New York”. Great emphasis is also placed on the large number of witnesses which the Third Party says it

would require who are mainly or exclusively domiciled in New York and on the fact that the question of their liability would be

determined in accordance with New York law which would require the presence of legal experts, in addition to the medical personnel

already required.

40. It does not appear to me that the Third Party Hospital, or any hospital in the developed world, can claim that its practice is so

limited that is “inconceivable” that any litigation involving it will occur outside its own jurisdiction, unless perhaps it expressly confines

its practice to long time residents of that jurisdiction. Many of the great Irish hospitals, like the Third Party, were originally religious or

charitable foundations, founded with the needs of a particular area, or the poor of a particular area, primarily in mind. It is clear from

the facts of this case that the Third Party’s practice is not now so limited. It is difficult to believe that a hospital situated in the heart

of the great international city of New York does not treat many non-national patients, based in New York for various periods of time.

Certainly, that happens in hospitals in Ireland and no doubt even more so in a city which is perhaps the principle hub of commerce in

the developed world and a major hub of international governmental activity. It is trite to observe that many patients are mobile,

nationally and internationally and requests for records and information about their treatment must be frequent or commonplace.

41. More broadly, it appears to me in the circumstances of this case that wherever the Third Party issue is tried some witnesses will

be required to travel from one jurisdiction to the other. The Third Party has listed a very large number of medical nursing and

technical staff whom they say will or might be required to travel to Ireland if this application is refused. Equally, the defendant has

said that if the application is granted all of the Irish witnesses necessary to deal with the Third Party issue will have to travel to New

York and that these will include the plaintiff, medical witnesses, technical and laboratory witnesses to prove the correct blood

groupings, and expert witnesses to deal with the relative contribution as between any alleged negligence on the part respectively of

the defendants and the Third Party. Specifically in relation to the plaintiff, they say that there is no certainty that, if she first

recovers damages from the defendant in Ireland, she would be willing to travel to New York to support the defendant’s case. To this

Third Party says that the plaintiff’s role would be relatively limited and that her evidence could be taken under the Foreign Tribunals

Evidence Act, 1856 and Order 39 of the Rules of the Superior Courts, in Ireland. If this is so, it is not clear why parallel procedure

could not be used for many, or all, of the American witnesses if this appeal is dismissed.

42. In Intermetal Group Limited v. Worslade Trading Limited, [1998] 2 IR 1, Murphy J. at pp. 33 and 34 adopted the test proposed by

Bingham L.J. (as he then was) in the passage quoted above. He further adopted the following passage from Bingham L.J.:-

“The words I have emphasised (‘in the interests of all the parties’) make clear, as does the reference to justice, that a

broad overall view must be taken: the primary task is not to decide which forum is advantageous or disadvantageous to

any particular party. The Court should look first to see what factors there are, taking this broad overall view, which points

in the direction of another forum: at that stage it is connecting factors (including convenience, expense, availability of

witnesses, governing law, place of residence and place of business) which must be considered. If it is shown that there is

some other available form which prima facie is clearly more appropriate for the trial of the action a stay will ordinarily be

granted”.

43. Looking at the facts of the present case in that light, one sees, firstly, that the treatment of the plaintiff by the Third Party took

place entirely in New York. The record of her blood group and rhesus status was made in New York, and communicated to her there.

In 1992, it was shown to the defendants in Ireland and verbal representations were made about it in Ireland. The professional acts or

omissions allegedly based on it took place in Ireland and any consequences of them occurred in Ireland. Any alternative course of

action or ameliorative measures open to the defendants would have occurred in Ireland and their availability would have been

governed by conditions here. The subsequent treatment of the plaintiff took place in Ireland and all of the alleged injuries occurred

here and insofar as they continue are suffered here. The legal status of the defendants record and representation as to blood group

and rhesus status appear to be governed by New York law.

44. Taking a “broad overall view” of these facts, and bearing in mind that the onus on this aspect is on the Third Party I do not

believe it has been demonstrated that the New York forum is “clearly more appropriate” or the trial of the issue. There are many

aspects of the plaintiff’s treatment in New York which do not appear to me to be conceivably relevant, on any view, to the issue

between the defendant and the Third Party. I am unimpressed by the listing in the Third Party’s affidavits of certain medical and

nursing personnel followed by such notes as that the relevant person “was also present at, or around, the plaintiff’s delivery” or

“could possibly testify to the condition of the infant at birth”. When these vaguenesses and weaknesses were pointed out in a

replying affidavit the Third Party filed a further affidavit rendering the position somewhat more concrete, but also indicating a policy of

minimal disclosure of information and a preference for relying on bare possibilities rather than hard information which must be within its

knowledge. When, for example, the list of nurses given was challenged individual by individual in the defendants affidavit the Third

Party’s reaction was simply to repeat a possible justification for one, only, of these ladies as a potential witness. All of the Third

Party’s affidavits are sworn by attorneys, and the attitude they have adopted may be sound litigation tactics. But they have not

convinced me that the very broad spectrum of witnesses deposed to would in fact be necessary and indeed I understood the Third

Party’s counsel to make a concession to this effect in the course of the hearing. I say this even bearing in mind that evidence as to

the general practices and the standing of the hospital may be necessary in terms of New York law.

45. I consider that it will be advantageous to all parties to have all issues litigated in one forum and at one time. The only forum

where this can take place is Ireland. Any other conceivable arrangement risks repetition, duplication, delay (perhaps very considerable

in a case which is already old) and consequent expense. I therefore conclude that Ireland is a forum conveniens and that the Third

Party has failed to demonstrate that New York is a clearly more appropriate forum.

Conclusion.

46. I would dismiss the appeal and affirm the order of the learned High Court judge.