High Court sets aside third party notice for failure to serve within reasonable time limits under Civil Liability Act 1961.

APPROVED [2025] IEHC 438

THE HIGH COURT

RECORD NUMBER 2020 3862 P BETWEEN JAMES JUDGE

PLAINTIFF

AND

HEALTH SERVICE EXECUTIVE DEFENDANT AND

SAYED ALY, HERMITAGE CLINIC, AND IAN CARTER

THIRD PARTIES

JUDGMENT of Mr Justice Nolan delivered on the 30th day of July, 2025

Introduction

1. This is an application to set aside a third party notice brought by the Defendant against the first named third party (“Mr. Aly”), on the grounds that it was not served within the time limit laid down by Order 16 Rule 1 (3) of the Rules of the Superior Courts (“the Rules”) or, as soon as is reasonably possible, pursuant to Section 27 (1) (b) of the Civil Liability Act 1961.

Background- The Pleadings

2. On the 20th of June 2018, the Plaintiff alleges that he sustained a right foot injury at work while moving a trailer and was referred to Naas General Hospital, owned and operated by the Defendant. He alleges that he received treatment in the Accident and Emergency Department which included the suturing of a wound to his foot. He disimproved and was referred to the Hermitage Clinic, (the second named third party) for further treatment. Ultimately, he alleges that as a result of the negligent treatment he received, he was obliged to undergo a below knee amputation in June of 2019.

3. That is the totality of the Personal Injury summons which was issued on the 28th of May 2020 against the Defendant.

4. It is of note that notwithstanding reference to the Hermitage Clinic, it was not joined in the proceedings, nor was Mr. Aly, the treating consultant. There are no particulars of negligence and breach of duty, and it is specifically pleaded that the proceedings are issued in order to protect the Plaintiff’s position in regard to the Statute of Limitations.

5. On the 29th of October 2021, further particulars of negligence and breach of duty were served, alleging a failure to ensure that appropriate treatment and management was instituted in the Plaintiff's care and in particular that there was a failure to investigate and manage his condition when he attended at the A&E Department and having regard to the fact that he suffered from diabetes.

6. On the same day further particulars of personal injury were also served. These confirmed that on the 7th of July 2018, he attended the Hermitage Clinic. At that stage, his foot was red and swollen. Further investigations, including an MRI, were undertaken which confirmed the fracture to his foot. He was discharged on the 15th of July 2018. Due to his increased pain, he was re-admitted on the 19th of April 2019 and stayed in the hospital for three nights. On account of his persistent pain, a bypass procedure was attempted, but this was unsuccessful. He was then re-admitted in early May 2019, where he underwent a below knee amputation.

7. Following these particulars a further notice for particulars was issued on the 2nd of March 2022. Up to this point there had been no reference to the involvement of Mr. Aly. However, in replies dated the 25th of April 2022, the Plaintiff confirmed that he continued to attend Mr. Aly in the Hermitage Clinic, for prosthetic management.

8. At reply 10 the Plaintiff confirmed that he was transferred to Beaumont Hospital (represented by the third named third party) on the 24th of September 2018, under the care of Mr. Aly. He had a debridement of the wound on the 25th of September 2018. It would seem that he had further difficulties and had another debridement on the 17th of January 2019 and was given antibiotics and was kept in hospital until the 18th of January 2019. He was then admitted to the Hermitage on the 19th of April 2019, for further evaluation but unfortunately a below knee amputation was required and this took place in Beaumont Hospital on the 22nd of June 2019. Throughout his period of time in both the Hermitage Clinic and Beaumont Hospital, he was under the care of Mr. Aly.

9. A further notice for particulars were raised on the 16th of September 2022 and again on the 25th of November 2022, questioning whether the Plaintiff had an expert vascular surgeon and whether that surgeon had sight of the Beaumont Hospital’s records and the Hermitage Clinic’s records. It would seem no replies were ever received.

The Third-Party Motion

10. The Defendant brought a motion to join the three third parties, grounded on an affidavit of Ashling Hurricane solicitor, sworn on the 9th of January 2024. At para. 10 she states that a report from a consultant vascular surgeon confirmed that there was negligence and breach of duty on the part of Mr. Aly. Details of the negligence are set out in the affidavit.

11. Paras. 11 and 12 of the affidavit are of some importance in the context of the application to set aside the service of the third-party notice.

12. They read as follows: -

“11. The expert is of the opinion that the negligence and breach of duty include a failure to undertake an assessment of the peripheral pulses or an attempt to obtain non-invasive studies/angiography while the plaintiff was under the care of Mr. Aly at the Hermitage Clinic during the plaintiff's initial presentation in July of 2018. It was incumbent when the plaintiff initially presented to the Hermitage Clinic to ascertain the plaintiff’s lower limb circulation in order to formulate an effective management plan. This should have occurred in conjunction with a non-invasive study in the form of ankle brachial pressures and toe pressures to establish a baseline. The failings in care identified continued, in the expert's opinion, when the plaintiff attended Beaumont hospital and came under the care of Mr. Aly there a short time later.

12. The expert opines that following the failures identified at the initial attendances at both the Hermitage clinic and Beaumont hospital further failings in care also occurred thereafter. These included repeated failures to undertake an objective assessment of the plaintiff's lower limb circulation, when this assessment was ultimately performed the indication of significant arterial disease was not followed up on by Mr. Aly, sufficient regard was not had to the results of the CT angiogram performed during the plaintiff’s third admission to Beaumont hospital and sufficient regard was also not had to the severity of the pain complained of over an 11 month period. The expert is of the view that most of the plaintiff’s presentations were due to severe foot pain, a cardinal sign of critical limb ischaemia. The intended third parties did not pay sufficient regard to this repeated complaint of the plaintiff.”

13. The affidavit confirmed that the expert report of the consultant vascular surgeon was received on the 9th of June 2023.

14. There is no reference to any other report having been obtained, yet such a report was indeed obtained and it is that report, which the Defendant points to as being reasonable, in the context of an application to set aside a third party notice, on the grounds that it has not been served as soon as is reasonably possible, as the statute mandates.

15. On the 26th of February 2024, Egan J. made the order which was then issued and served on the 20th of March 2024.

16. This motion was then brought shortly thereafter. It should be noted there was no delay in the bringing of this motion.

17. Applications to set aside the service of the third-party orders were brought by all three third parties. However, it is important to note that both the second and third named third parties have withdrawn their application and in turn have both issued a notice of indemnity and contribution as against Mr. Aly.

18. The thrust of the case made by him is that the motion was not served as soon as is reasonably possible as stated in the statutory provision.

The Third-Party Notice

19. Prior to the service of the third party notice a warning letter was sent to Mr. Aly. This was then followed by the High Court order and the third-party notice. It is very detailed. Not only does it include in full the pleas set out in paras. 11 and 12 in the affidavit, but it also sets out specific allegations of negligence. It pleads that he failed to make an appropriate examination of the vascular status of the Plaintiff's foot, failed to have any proper regard to the complications associated with his injury including infection necrosis compartment syndrome and the rhabdomyolysis, and failed to have any regard to the Plaintiff's background history of diabetes when considering and putting into place a management medical plan, as well as others particulars.

20. The allegations against him made by the Defendant echo, in no small part, the allegations made by the Plaintiff against the Defendant, particularly in regard to the Plaintiff’s diabetes.

21. It ends by saying that the Defendant’s consultant vascular surgeon expert concluded that there was a very long window of opportunity to possibly save the Plaintiff's leg, had the correct appropriate course of action being taken. Again, there is no reference to any other expert report having been obtained and it seems clear, and it has not been contradicted, that the third-party notice has been drafted on the basis of the expert report which was obtained on the 8th of June 2023.

The Application to Set Aside the Third-Party Notice

22. The motion to set aside the service of the third-party notice is grounded of the affidavit of Olan Kelleher solicitor. She points out that while two notices of motion for further and better particulars were issued on the 16th of September 22 and the 25th of November 22, this motion was issued before the replies were received. She notes that the affidavit does not explain the delay between the 25th of April 2022, a date when Mr. Aly’s name was first mentioned in the replies and the obtaining of an expert report on the 8th of June 2023. It further does not explain the delay between the 8th of June 2023 and the 9th of January 2024, when the motion was issued. She then sets out a chronology. On the basis of that chronology, she says that the Defendant had all the necessary information to investigate the potential involvement of Mr. Aly from the 25th of April 2022. Notwithstanding this, there was a delay of 10 months in obtaining an expert report. She points to a delay of approximately two years from when the Defendant had sufficient knowledge to investigate the involvement of Mr. Aly and the motion. On the face of it therefore the first name third party alleges a very significant delay indeed.

23. In reply, Ashlinn O'Sullivan solicitor, points to the difficulties which the Defendant had in obtaining the appropriate medical records. She points to a letter dated the 26th of April 2022, where certain records from Beaumont Hospital and Hermitage Clinic and the National Rehabilitation Hospital were furnished. Further records were also furnished on the 5th of October 2022. However, the records of Mr. Aly were either incomplete or missing. Throughout this time the Defendant was requesting these records on the basis that they would need them for their expert in order to consider the progression of the injury up to the time of the amputation.

24. Notwithstanding the failure to provide this documentation a consultant vascular surgeon was contacted on the 17th of February 2023. In an important letter dated the 7th of March 2023, solicitors for the Defendant wrote to the Plaintiff’s solicitors requesting that they provide Mr. Aly’s notes as soon as possible saying: -

“our expert requires same to complete his report. The delay in providing these records may potentially prejudice our clients rights to bring potential third party proceedings in respect of this case. As you will be aware, it is inappropriate to bring a claim for professional negligence in the absence of professional expert opinion. We cannot obtain that opinion in relation to the potential liability of third parties as we do not have private notes held by Mr. Aly to allow such an expert to form a view on the position of any potential third parties. Should your failure to provide the records prejudice any such action, this will be a matter which would be brought to the attention of the court, and our client reserves its right in that respect.”

25. As of the 7th of March 2023, the Defendant was clearly aware of the importance of haste and the potential of prejudice which might arise. The consultant vascular surgeon was briefed two days later.

26. Notwithstanding the lack of either Mr. Aly’s own personal records or his operation notes, the report of the 8th of June 2023 was received.

27. Ultimately a letter seeking voluntary discovery of these alleged crucial documents was sent on the 5th of September 2023.

28. It is then that we enter into the murky world of the second expert report. At para. 22 of her affidavit, she says that given the nature of the proceedings and the complexities involved, and the care provided at multiple locations involving private and public hospitals against a backdrop of the Plaintiff having not instituted proceedings against the third parties, any

decision to institute third party proceedings should not be embarked upon lightly. It was then decided that an additional expert report would be needed and that was provided on the 18th of October 2023.

29. There are a number of points to identify at this stage. Firstly, both experts’ reports were obtained in the absence of what was described as crucial discovery records. Secondly, it is clear that by March of 2023 the Defendant was well aware of the importance of acting swiftly due to the potential prejudice which might arise if they did not issue their third-party notice. Thirdly at para. 28 she says the following: “that on receipt of the expert report of the 8th of June 2023 and with an abundance of caution, a decision was made to engage a further consultant vascular surgeon to provide his opinion of the third-party care.” She points to the complexity of the case and the importance of having an expert report so that the Defendant could be properly advised as to the appropriateness of instituting third party proceedings in the particular circumstances of the case.

30. However, on receipt of a second expert report on the 17th of October 2023, nothing happened until the beginning of January 2024. She said that all matters had to be carefully considered the advice of senior council was needed as was engagement with the indemnifiers.

31. Further affidavits were exchanged between the parties, but nothing material arises from them that were not dealt with in the submissions.

Submissions

32. Mr. Keating S.C. for Mr. Aly, points to the imperative of the words of the statute and the various cases which I will refer to below. In particular he places great emphasis upon the

decision in the Court of Appeal in the case of Susquehanna International Group Ltd v. Execuzen Ltd & Others [2022] IECA 209.

33. He points to a number of different time periods, but it is fair to say that his primary emphasis is on the period from January 2023 to June 2023 and from that period of time, including the receipt of the second expert report till the issue of the motion on the 9th of January 2024. He does not criticise the Defendant for any delay from the 9th of January 2024, up to the service of the third-party notice, which was in March of 2024. That is a concession which the Defendant should readily accept, since it seems to me that the case law all points to the service of the third-party notice as being the operative date for the court to consider.

34. He points to the failure to act once the first report was to hand, and the failure to act once the second report was to hand. He says that there is no particular complexity in the case, and the inexplicable need for a second report. He says that the perfection is not required in bringing such an application.

35. Mr. Buckley S.C. for the Defendant says that any step in a professional negligence action must be taken very carefully and to that extent he is perfectly correct. The exposure to the Defendant was very significant, in that three parties were being joined and that if the HSE got it wrong there would be severe cost implications. He said that prudence dictated that they should proceed with caution. He also points to the fact that the private notes of Mr. Aly are still not in his client's hands. He says the application is moot since the other two third parties have issued notice of indemnity and contribution and therefore even if this application is successful Mr. Aly will remain in the proceedings.

36. In reply, Mr. Keating says that it is quite possible that if his client is successful in this application his client’s position within the proceedings will have changed and that the other two third parties may be able to defend their position on the basis of vicarious liability, in that they were not employers of Mr. Aly. To put it another way even if Mr. Aly is entirely liable, there may be no legal route to find him liable. That is to look to the future and the case law is against such an interpretation.

Section 27 of the Civil Liability Act 1961

37. Section 27 of the Civil Liability Act 1961 is to the fore in this case. Given its importance I think it would be appropriate to quote it.

“Procedure for claiming contribution.

27.(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) shall not, if the person from whom he proposes to claim contribution is already a party to the action, be entitled to claim contribution except by a claim made in the said action, whether before or after judgment in the action; and

(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)

38. There are a number of things to say, all of which have been echoed in the many cases which this section has generated with over the last 40 years. The first thing to note is that the obligation to serve with third party notice as soon as is reasonably possible is mandatory, by virtue of the use of the word “shall”.

39. The starting point, as far as the jurisprudence is concerned, is the case of Board of Governors of St. Lawrence’s Hospital v. Staunton [1990] 2 I.R. 31. That case laid down the requirement that the notice must be served as soon as is reasonably possible. Thereafter in the case of Molloy v. Dublin Corporation [2001] IESC 53, the Supreme Court established the test which the court should apply. Not only should the court look at the explanations given for any apparent delay but should also make an objective assessment as to whether, in the whole circumstances of the case and its general progress, a third-party notice was served as soon as was reasonably possible. In Thomas Greene and Anor v. Triangle Developments Ltd. And Anor [2015] IECA 249, Finlay Geoghegan J. quoted liberally from the decision of Murphy J. in Molloy. Its importance in the context of this case is worth repeating.

“There can be little doubt as to what that scheme and purpose was. The legislature was understandably desirous of avoiding a multiplicity of actions. Instead of defendants against whom awards had been made instituting further proceedings against other parties liable to them in respect of the same set of facts – and indeed those defendants in turn perhaps instituting even more proceedings against others – the Oireachtas sought to establish a situation in which the rights and liabilities–of all parties arising out of a particular set of circumstances would be disposed of in the same proceedings. It is for that reason that a defendant was given the right, with the approval of the court, to serve a third party notice on a potential defendant so that any claim against him could be disposed of at the same time as that of the claim against the actual defendant. This procedure had attractions for all of the parties and was desirable in the public interest.”

40. Greene is authority for the proposition that in assessing any delay, regard maybe had and should be had to the whole circumstances of the case and its general progress.

41. Thus, it is clear that the intention of the Oireachtas was to avoid multiplicity of actions so that the rights and liabilities of all parties arising out of a particular set of circumstances would be disposed of in the same proceedings. Not only is this a very sensible provision, but it avoids the unattractive prospect of different courts coming to somewhat different conclusions, on the same set of facts (see Connelly v Casey [2000] IESC 76).

42. It is of interest that Murphy J. referred to “the right of the defendant to serve a thirdparty notice” on a potential defendant with the approval of the court. These words are echoed by Allen J. in Susquehanna where he said at paragraph 113; “The third-party procedure is a matter of right. The defendants are entitled to avail of the third-party procedure provided they do so as soon as reasonably possible.”

43. Further in Susquehanna he added at paragraph 126: -

“In deciding whether a third party notice was served as soon as was reasonably possible, the court should not be distracted by the general policy of the Act to ensure that all claims arising out of the same incident are resolved in one set of proceedings, still less subordinate the plain statutory requirement that the notice be served as soon as is reasonably possible to the general policy of the Act.”

44. In Avoncore Ltd T/A Douglas Village Shopping Centre v. Leeson Motors Ltd and Others [2022] IEHC 415, Quinn J. dealt in some detail with Section 27 and Order 16 of the Rules which deals with third party proceedings. In his very careful analysis of the case law, including the case of Connelly, he noted that the court needs to examine the date at which it can be said that the Defendant had sufficient information to enable it to make an informed

decision, based on appropriately researched advice as to whether a case for contribution can be made out. He also made the crucial observation that where a claim for contribution arises from an allegation of professional negligence, a factor that must be considered is the longestablished requirement that such an allegation is made and proceedings commenced, only after first ascertaining there are reasonable grounds for doing so. He said that it was an abuse of process to commence professional negligence proceedings without following this course of action, with certain exceptions, having first obtained an appropriate expert report to inform such a decision.

45. At paragraph 77 he said.

“(6) The court will be required to balance the statutory imperative in s.27(1) to move as soon as is reasonably possible against the duty of a party and its advisors to first obtain the necessary information and advice, including expert reports.

(7) It is not essential that perfection be achieved in terms of the analysis of a potential claim against a third party and account must be taken of the balance referred to in the preceding paragraph. (emphasis added)

(8) An expert consulted for the purpose of this analysis is himself under a duty to have equipped himself with all information and facts required to make an informed report.

(9) The court will take into account what steps have been taken by the relevant parties to obtain the necessary information and to brief an appropriate expert. This will engage a consideration of whether the expert was instructed and briefed on a timely basis.”

46. I note he also referred to the potential of prejudice, but it is conceded that in fact prejudice is not an issue and in this regard the decision of the Court of Appeal of Ryan P. in Kenny v. Howard [2016] IECA 243 makes that point.

47. The onus is on the defending party, i.e., the party who brought the motion to join the third party, to show that it acted within the statutory mandated period, namely as soon as is reasonably possible. Further while taking into consideration the purpose of the legislation, that should not guide the court's hand beyond the key questions which are, has there been an explanation for the delay, and the overall context of the action.

Discussion

48. The main issue in this application is the need and requirement for obtaining expert reports. I am fully satisfied that given the fact that the original personal injury summons was lacking in so much detail as against the Defendant, it was perfectly correct to seek further information by way of discovery or otherwise, including a number of notices for particulars, so as to try to be informed of the case actually being made and the potential for any case being made against the third parties.

49. I am satisfied therefore that there is no culpable delay in either briefing the first vascular consultant, or in raising the notice for particulars.

50. The issue of discovery is troubling. It is remarkable to say the least that the first name third party discovery has not been obtained by the Plaintiff. Whilst the discovery was obtained from the other two third parties by way of freedom information or otherwise, discovery has yet to be obtained from the first named third party. Had that been a reason for the delay in briefing the experts, it would at least have added some weight to the defense to this application.

51. Ironically however that was not an issue in the end of the day. The expert was briefed, without having the appropriate records of Mr. Aly. The Defendant was clearly alive to the issue of delay, since the letter of the 7th of March 2023 specifically says as much.

52. However, it is what happened after receipt of the first report, on the 8th of June 2023, which causes concerns. There has been no cogent explanation given as to why there was need for a second expert report. As Quinn J. succinctly put it in Avoncore, the court has to consider the statutory imperative on the one hand and the need for the Defendant to obtain necessary information and advice from its experts on the other.

53. In this case the Defendant had an expert report. It would seem it was an impressive report, since it formed the basis of the third-party notice and was contained in the affidavit grounding the application to join the third party. No further particulars of claim have been furnished on the basis of the second report.

54. The second report was received in October 2023, yet still there was delay. The reason given by the Defendant between October and issuing the motion in January was that there was a need to discuss the matter further with senior counsel and the indemnifies.

55. However, the basis of the case against Mr. Aly was already clear from June. The motion could easily have been issued in September or October, which would have allowed all necessary discussions, consultations and advices to have taken place.

56. That did not happen. Indeed, it is not at all clear to me that there was any need for a second report. It does seem to me, to use the language of Avoncore, that it was some form of counsel of perfection. Whilst I do not wish to place too much emphasis on the words of Ms. O’Shea in her affidavit, it does seem to me there was an abundance of caution, of which there was no need.

57. While there is no doubt that bringing a professional negligence claim is one that should be approached with caution and care, such applications are made weekly.

58. Further the pleas against Mr. Aly follow, in very similar terms, the allegations of negligence made by the Plaintiff against the Defendant, which given the nature of the claim, is not that surprising.

59. If there was need for a further report, it could easily have been obtained after the joining of Mr. Aly. There was plenty of time to do so since trial of this action is, unfortunately, nowhere near. There are still a number of further procedural steps to be taken.

60. Therefore, turning to the first issue which the court has to be satisfied about, namely the explanation given for the delay, I am not satisfied that an appropriate explanation has been given for the need of a second report and therefore the appropriate time to look at is from receipt of the report on the 8th of June 2023. That is a period of seven months, and I believe that delay was unreasonable.

61. The next issue which the court should address is the whole circumstances of the case and its general progress, bearing in mind the views of Finlay Geoghegan J. in Greene where she said “the obligation on the court is to make an objective assessment as to whether in the whole circumstances of the case and its general progress the third party notice was or was not served as soon as is reasonably possible.”

62. In this case it seems to me taking the whole circumstances of the case and its general very slow progress through the courts, the third-party notice was not served as soon as is reasonably possible. It could have been served after receipt of the first report, which was some seven months before the motion was brought and some nine months before it was served.

63. In Molloy, the Supreme Court struck out the third-party notice in circumstances where the Defendant had waited until the outcome of a District Court prosecution. Murphy J. said:

“Ms. Carey is clearly correct in saying that the District Court proceedings “enhanced” the second named defendant state of knowledge and, following those proceedings, the second named defendant was in a position to make a “strong case”.

These were advantages which accrued to the second named defendant by postponing its decision to institute the third-party proceedings but the quest for certainty or verification must be balanced against the statutory obligation to make the appropriate application as soon as is reasonably possible. In my view, it was indeed possible for the second defendant, on the information available to it, to make a prudent and reasonable decision several months before the application was brought before Johnson J. and those circumstances the second named defendant failed to comply with the statutory requirement and the trial judge was correct, in my view, in setting aside the third party order.”

64. Murphy J. criticised the Defendant for waiting several months. In this case the delay was seven months. The statutory obligation to act as soon as is reasonably possible has not been met. Neither the explanation nor analysis of the overall progress of the case would justify such a delay.

65. Both the decision in Avoncar and the decision of Laffoy J. in S. Doyle & Sons Roscommon Ltd v. Flemco Supermarkets Ltd and Ors [2009] IEHC 581, deal with the potential of the institution of separate proceedings. Mr. Keating has argued that the decision of the Court of Appeal in Susquehanna supersedes or overrides the question of the utility of setting aside the notice in the context of the overall progress of the case and the objective of the section, where there are or may be other proceedings in train. In this case there are notices of indemnity and contribution between the second and third named third parties and the first named third party. I do not believe that I need to address that issue, and I will leave it for another day.

66. Nonetheless on balance I am persuaded that while such notices have been issued, it is impossible to say what will happen to them if the order is made. Therefore, I do not believe that the issue of mootness arises at this point. In my view the question which the court has to answer is relatively straightforward, has the statutory imperative of acting as soon as is reasonably possible happened in this case and in my view it has not. It was seeking a counsel of perfection which the case law clearly shows is not an explanation or excuse. In the words of Murphy J. in Molloy, it was seeking a quest for certainty or verification.

67. In those circumstances I shall make the order sought.

68. However, that is not the end of the matter. It seems to me disappointing that these proceedings, which commenced in 2020, five years ago, relating to an incident which occurred seven years ago, is still nowhere close to trial.

69. Therefore, on that basis I shall admit the case-to-case management and to keep seisin of it, bearing in mind that I am fully cognisant of all the issues in the case and that it would not be a good use of judicial resources to assign the case to another judge.