High Court dismisses appeal to set aside third-party notice due to de minimis service delay and lack of merit failure.

APPROVED [2025] IEHC 584

THE HIGH COURT

CIRCUIT APPEAL

2025 162 CA

BETWEEN

TOM FOLEY

PLAINTIFF

AND

360 DEGREES COMPLETE MAINTENANCE AND PROPERTY

MANAGEMENT LTD

DEFENDANT

SURESTONE INSURANCE DAC

INTENDED THIRD PARTY

JUDGMENT of Mr. Justice Garrett Simons delivered on 6 November 2025

INTRODUCTION

1. This judgment is delivered in respect of an application to set aside third-party proceedings. The set aside application is advanced on two grounds: first, that there was delay in serving the third-party notice, and, second, that the third-party proceedings are bound to fail on the merits. The matter comes before the High Court by way of an appeal from the Circuit Court.

NO REDACTION REQUIRED

PROCEDURAL HISTORY

2. The main proceedings take the form of a personal injuries action arising out of a workplace accident. The injured party alleges that while clearing out a property, in the course of his employment, he fell down a staircase. The injured party alleges that he suffered significant personal injuries as a result. The injured party instituted proceedings in the Circuit Court against his employer.

3. The employer/defendant applied to join an insurance company, Surestone Insurance, as a third party to the proceedings. It is alleged that the insurance company has wrongfully declined to indemnify the employer in respect of the personal injuries action. For ease of exposition, the employer/defendant will be referred to hereinafter as “the insured” to reflect the basis of its claim in the thirdparty proceedings.

4. The County Registrar made an order joining the insurance company as a third party to the proceedings on 18 March 2025. There was a delay in serving the third-party notice and underlying pleadings: the papers were not all served until

1 May 2025. Thereafter, the insurance company filed a motion on 13 May 2025 seeking to set aside the third-party notice (“the set aside application”). The set aside application was refused by the Circuit Court on 30 May 2025. The insurance company filed an appeal against that refusal to the High Court. The appeal was heard before me on 13 October 2025 and judgment reserved to today’s date.

5. The insurance company objects that the insured failed to give “immediate notice” to it of the personal injuries claim. It would appear, on the limited evidence adduced on the set aside application, that the position is more nuanced. The insured seems to have notified a potential personal injuries claim as early as December 2019. The insurance company wrote to the insured, on 6 July 2022, stating that any such claim would be statute-barred. This was incorrect as a matter of law: the insurance company official appears to have overlooked that the statutory limitation period is, in effect, suspended pending the referral of the matter to the Personal Injuries Assessment Board (“PIAB”) (now, the Personal Injuries Resolution Board). See Section 50 of the Personal Injuries Assessment Board Act 2003.

6. The key events in the chronology are summarised in tabular form below:

11 December 2019 Date of alleged accident

17 December 2019 Claim notified to insurance company

6 July 2022 Insurance company states that claim is statute-barred

19 July 2022 PIAB notifies insured of claim

20 October 2022 Insured notifies insurance company

10 February 2023 Insurance company purports to disclaim liability

18 May 2023 Insurance company reiterates disclaimer of liability

29 May 2023 Personal Injuries Summons (Circuit Court)

18 March 2025 Leave to issue third-party notice (County Registrar)

11 April 2025 Service of third-party notice

1 May 2025 Order and Summons served on insurance company

13 May 2025 Motion to set aside third-party notice

19 May 2025 Insured delivers defence

30 May 2025 Circuit Court refuses to set aside third-party notice CIRCUIT COURT RULES, ORDER 7

7. This matter comes before the High Court by way of an appeal from the Circuit Court. In determining the appeal, the High Court is, in effect, exercising the same jurisdiction as the Circuit Court. (ACC Loan Management Ltd v. Fagan [2021] IESC 20, [2021] 1 IR 781 (at paragraphs 22 to 24)). Accordingly, it is necessary to consider how third-party proceedings are regulated under the Circuit Court Rules (“CCR”).

8. Order 7, CCR makes provision for third-party proceedings. It imposes a requirement upon a defendant, who wishes to pursue third-party proceedings, to apply for leave to issue and serve a third-party notice. The timing of such an application is regulated by Order 7, rule 3 as follows:

“Application for leave to issue the third party notice shall,

unless otherwise ordered by the Court, be made after the

service of an Appearance and at any time prior to the trial of

the action.”

9. In contrast to the equivalent rule under the Rules of the Superior Courts (“RSC”), Order 7, CCR does not prescribe a time period within which an application for leave to issue a third-party notice shall be made. (Order 16, RSC prescribes a twenty-eight day time limit). Order 67, rule 16, CCR does not apply in circumstances where the question of third-party notices is comprehensively addressed under the CCR. Order 7, CCR does not require to be supplemented by following the practice and procedure in the High Court.

10. In certain cases, an application for leave to issue a third-party notice will be subject to a time imperative under the Civil Liability Act 1961. Section 27 of the Act provides that a defendant, who wishes to make a claim for contribution against a concurrent wrongdoer, must serve a third-party notice “as soon as is reasonably possible”. It follows, therefore, that in cases where the third-party procedure is invoked in respect of a claim for contribution against an alleged concurrent wrongdoer, the third-party notice must be served as soon as is reasonably possible. This is so notwithstanding that there is no express provision to this effect under Order 7, CCR. The rule must be read subject to the statutory imperative.

11. The position in cases where the third-party procedure is invoked in respect of a claim for indemnity against an insurer is different. This is because the joinder is not predicated upon the intended third party being a concurrent wrongdoer. (See, generally, Haughton v. Quinns of Baltinglass Ltd [2021] IECA 249 (at paragraphs 56 to 59)). It follows, therefore, that the application for leave in such cases is not subject to the time imperative prescribed under Section 27 of the Civil Liability Act 1961. The present proceedings fall into this category of cases.

12. There was some debate at the hearing before me as to the extent to which delay is ever a relevant consideration in the context of an application for leave to issue a third-party notice which is not subject to the “as soon as is reasonably possible” requirement. On a narrow, literal interpretation, Order 7, CCR might be read as allowing an application for leave to be made at any time prior to the trial of the action irrespective of whether the application could and should have been brought at an earlier stage. However, such an interpretation would be inconsistent with the general approach taken by the courts to delay in deciding to make various discretionary orders. To take an example, a court may, in the exercise of its discretion, refuse leave to amend pleadings where to do so would cause prejudicial delay—whether substantive or logistical—to the other side. See, generally, Stafford v. Rice [2022] IECA 47 and Croke v. Waterford Crystal Ltd [2004] IESC 97, [2005] 2 IR 383. This is so notwithstanding that the relevant rules of court provide that an amendment may be allowed at any stage of the proceedings. The fact that the relevant rules do not prescribe a deadline after which it is too late to amend pleadings does not mean that the court has no discretion to refuse leave to amend by reference to prejudicial delay. By analogy, the fact that Order 7, CCR contemplates that an application for leave to issue a third-party notice may be made as late as the trial of the action does not preclude a court from having regard to prejudicial delay in deciding whether or not to grant leave to issue a third-party notice.

13. In summary, the following principles govern an application to join a third party, who is not alleged to be a concurrent wrongdoer, for the purpose of seeking an indemnity. First, the application is not subject to the “as soon as is reasonably possible” requirement under Section 27 of the Civil Liability Act 1961. Second, there is no express time limit prescribed under Order 7, CCR for the making of an application for leave (in contrast to the twenty-eight day time limit under Order 16, RSC). Third, a court, in the exercise of its discretion to grant leave to issue a third-party notice, is entitled to have regard to any prejudicial delay. This is so notwithstanding that Order 7, CCR contemplates that, in certain cases, it may be appropriate to grant leave to issue a third-party notice as late as the trial of the action.

14. Finally, for completeness, brief reference should be made to the judgment in Bowen v. H & M Hennes & Mauritz (Ireland) [2022] IEHC 658. The judgment states that Order 7, CCR must be interpreted having regard to the overarching statutory obligation to serve a third-party notice as soon as is reasonably possible. This statement was made in the context of a third-party notice seeking a contribution from a concurrent wrongdoer. The statement was correct in that context. However, as discussed above, the legal position is more nuanced, and the statement is overly broad in that the “as soon as is reasonably possible” requirement does not apply to a claim for indemnity against an insurance company. A more elaborate and accurate statement of the governing principles is to be found in the preceding paragraph of the within judgment.

SHOULD COURT ASSESS THE MERITS OF THIRD-PARTY CLAIMS?

15. In practice, most of the case law is concerned with the question of delay, and, in particular, whether the third-party notice has been served as soon as is reasonably possible in cases governed by Section 27 of the Civil Liability Act 1961. In theory, however, the range of factors relevant to the exercise of the court’s discretion to grant leave to serve a third-party notice is broader. One of the principal purposes of imposing a requirement to obtain the leave of the court prior to the issuance of third-party proceedings is to ensure that there is sufficient nexus between the legal and/or factual issues arising in the two sets of proceedings to justify the third-party proceedings and the main proceedings being managed together. This does not indicate that the main proceedings and the third-party proceedings must necessarily be heard together at a unitary trial. It will be enough in some instances that the two sets of proceedings are heard sequentially by the same trial judge.

16. The question of whether there is a sufficient nexus will be considered at the time of the ex parte application for leave and may be reagitated in the context of an inter partes hearing of an application to set aside the third-party notice.

17. The more difficult question is whether a court, in determining an application for leave to issue a third-party notice, should embark upon any assessment of the underlying merits of the third-party claim. To embark upon any such assessment carries the risk that what is inherently a procedural application balloons into a miniature trial of the action, with all of the attendant delay and costs. It might also require the court to attempt to resolve conflicts of fact without the benefit of oral evidence.

18. If and insofar as it might be appropriate to make any assessment of the underlying merits, it seems preferable to adopt an approach similar to that taken in other types of procedural applications. The general approach is that if and insofar as there might be any assessment of the underlying merits, same is only intended to weed out cases which are manifestly bound to fail. This approach is illustrated by the judgment of Clarke J. (then sitting in the High Court) in Woori Bank v. KDB Ireland Ltd [2006] IEHC 156. The judgment was delivered in the context of a procedural motion for leave to amend pleadings. The High Court held (at paragraph 5.2) that the court should lean in favour of allowing an amendment, which is otherwise appropriate, unless it is “manifest” that the issue sought to be raised by the amended pleading must “necessarily fail”. The court should not, on a procedural motion to amend, enter into an assessment of the merits or otherwise of the issue sought to be raised, save to the extent of asking itself whether the issue, which would be required to be tried as a result of the amended pleading, is one which must necessarily fail.

19. A similar approach is appropriate in the context of a procedural motion to set aside a third-party notice. The court is principally concerned with questions of delay and whether there is a sufficient nexus between the main proceedings and the third-party proceedings. A court determining the procedural motion will not be drawn into a detailed assessment of the underlying merits but will instead leave this over to the court of trial. It is only in those exceptional cases, where it is manifest even on the necessarily limited papers before the court on the procedural motion, that the defendant’s claim against the third-party is manifestly bound to fail, that the court may decide to set aside the third-party notice. This is a very high threshold.

THE SET ASIDE APPLICATION

Overview

20. The arguments advanced in support of the application to set aside the third-party notice in the present case have evolved. The principal argument advanced in the written legal submissions had been predicated on an assumption that the “as soon as is reasonably possible” requirement under Section 27 of the Civil Liability Act 1961 applied. This argument was not, however, pressed in the course of oral submission. This was sensible: for the reasons discussed at paragraphs 10 and 11 above, the statutory requirement does not apply to the joinder of an insurance company for the purpose of obtaining an indemnity under a policy of insurance.

21. In the event, the principal argument advanced at the oral hearing had been that the third-party proceedings cannot succeed by reason of a contractual time limit. More specifically, it was argued that the failure to refer the dispute in respect of the insurance company’s disclaimer of liability to arbitration within twelve months of the date of declinature has had the consequence that any claim against the insurance company is deemed to have been “abandoned”. The implication being that the failure to comply with the contractual time limit has the legal consequence of barring the substantive claim (rather than merely barring the right to refer the dispute to arbitration but leaving open the possibility of court proceedings).

22. This argument is predicated on the wording of clause 18 of the policy of insurance as follows:

“Any dispute between you and us regarding our liability in

respect of a claim or the amount to be paid, including any

disclaimer of liability in respect of a claim, shall in default

of agreement, be referred, within twelve calendar months of

the dispute arising or disclaimer of liability, to an Arbitrator

to be appointed jointly by you and us in agreement or failing

agreement, appointed by the President for the time being of

the Incorporated Law Society of Ireland. The decision of

such Arbitrator shall be final and binding on us both. If the

dispute or disclaimer of liability has not been referred to

Arbitration by you within the said twelve calendar month

period then your claim under the policy shall be deemed to

have been abandoned and shall not be recoverable

thereafter.”

23. The insured contests the insurance company’s arguments on the applicability of this clause. In particular, it is submitted that the twelve-month period does not begin to run until such time as the insured’s liability, if any, to pay damages to the injured party has been determined in the main proceedings.

24. The insurance company also advanced a secondary argument in relation to delay, and this is addressed at paragraphs 27 and following below.

Decision

25. The application to set aside the third-party notice, as refined in the course of the oral hearing, now partakes of the character of an application to strike out proceedings on the ground that the claim has no reasonable chance of succeeding and is bound to fail. This argument is predicated on the implications of the arbitration agreement under the policy of insurance. It is contended that the failure to pursue arbitral proceedings within twelve months of the date of the declinature of liability has the legal consequence that the insured is precluded from pursuing a claim for breach of contract against the insurance company in court proceedings. Any assessment of the correctness or otherwise of this contention will necessitate a careful consideration both of the terms of the insurance policy and of the factual circumstances. There are a number of features which indicate that the matter is not clear-cut, and this militates against determination on a summary basis as part of a procedural motion. First, the insurance company has not cited any case law in support of the proposition that the failure to comply with a contractual time limit in respect of arbitral proceedings is claim barring rather than remedy barring. In the absence of the citation of precedent, a court will, rightly, be reluctant to dismiss a claim summarily in what is a technical area of the law. Secondly, there is no agreed statement of facts. Thirdly, the purported declinature of cover, which is relied upon, occurred prior to the institution of the personal injuries action. Fourthly, the insurance company, at a much earlier date, had incorrectly informed the insured that the personal injuries claim was statute-barred. A question arises as to whether it would be equitable to allow the insurance company to rely on the contractual time limit in the circumstances. Finally, the interpretation of the arbitration agreement may be informed by consideration of whether the policy of insurance is a standard form or adhesion contract. The court of trial might resolve any ambiguity in the wording against the insurance company.

26. Having regard to all these matters, it cannot be said that this is a case where it is manifest that the claim against the insurance company will fail. It would not be appropriate, therefore, to dismiss the claim summarily by setting aside the thirdparty notice. It should be emphasised that this does not imply that the insured will succeed at the full hearing; rather, it is simply a recognition that the question is not so clear-cut as to allow it to be determined conclusively on a procedural motion. The insurance company can reagitate its argument at the court of trial and might ultimately be successful.

27. For completeness, it is necessary to address the refined argument on delay advanced on behalf of the insurance company. Counsel submitted that delay may be a relevant consideration even in cases not governed by the “as soon as is reasonably possible” requirement under Section 27 of the Civil Liability Act 1961. Counsel invited the court to have regard to the unexplained delay of some twenty-two months between the date of the institution of the personal injuries action (29 May 2023) and the date of service of the third-party notice (11 April 2025).

28. Counsel, very properly, accepted that there was no evidence before the court of the delay having caused any prejudice to the insurance company. This is not a case where, as can sometimes happen, a third party only becomes aware of the existence of the main proceedings upon receipt of the third-party notice. Here, the insurance company had initially been notified of a potential claim in December 2019 and had received a copy of the PIAB notification in October 2022. All of this afforded the insurance company a timely opportunity to investigate the circumstances of the claim, if it had so wished.

29. In the absence of evidence of any alleged prejudice, and in circumstances where the period of the alleged delay falls below the benchmark of two years applicable in the analogous context of the dismissal of proceedings on the grounds of delay (Kirwan v. Connors [2025] IESC 21), the alleged delay does not warrant the setting aside of the third-party notice.

30. The insurance company makes a separate complaint in relation to a short delay subsequent to the order granting leave to issue a third-party notice. Order 7, CCR provides that a third-party notice must generally be served within twentyone days of the making of the order. In the event, the notice was served three days late and the balance of the pleadings were not served for another two or three weeks.

31. With respect, the delay here was de minimis, being measured in a matter of two or three weeks. The Circuit Court (and the High Court on appeal) has a general discretion to forgive a procedural irregularity under Order 67, CCR. The factors to be considered in the exercise of this discretion include (i) the nature and extent of the breach of the Circuit Court Rules; (ii) whether the breach has caused prejudice to the other party(s) to the proceedings; and (iii) the purpose which the particular rule, which has been breached, is intended to achieve.

32. Having regard to the de minimis nature of the delay in service, it would be disproportionate to set aside the third-party notice by reference to same.

CONCLUSION AND PROPOSED FORM OF ORDER

33. The principles governing an application to join a third party, who is not alleged to be a concurrent wrongdoer, for the purpose of seeking an indemnity have been summarised at paragraphs 11 to 13 above.

34. There are no grounds for setting aside the third-party notice in the present case. There is an obvious nexus between the issues arising in the main proceedings and those arising in the third-party proceedings such that it is in the interests of justice that the two sets of proceedings should be addressed together. The circumstances of the accident and the employment status of the injured party may be relevant to whether the personal injuries claim is within the scope of the policy of insurance. It may be in ease of the insurance company if these issues are determined first prior to any determination of the claim for indemnity. Of course, the precise sequencing of the proceedings is a matter for case management by the Circuit Court.

35. Having regard to all the matters identified at paragraphs 25 and 26 above, it cannot be said that this is a case where it is manifest that the claim against the insurance company will fail.

36. In the absence of evidence of any alleged prejudice, and in circumstances where the period of the alleged delay in applying for leave to issue the third-party notice falls below the benchmark of two years applicable in the analogous context of the dismissal of proceedings on the grounds of delay (Kirwan v. Connors [2025] IESC 21), the alleged delay does not warrant the setting aside of the thirdparty notice.

37. Accordingly, the appeal against the Circuit Court’s refusal to set aside the thirdparty notice is dismissed and the Circuit Court’s order of 30 May 2025 is affirmed (subject to a proposed modification of the costs order).

38. As to costs, my provisional view is that the defendant, having been successful in resisting the appeal, is entitled to recover its costs, above and below, against the third party. In default of agreement, such costs to be taxed in accordance with Order 61, rule 12, RSC. Such costs to include all reserved costs and the costs of the written legal submissions. If either party wishes to contend for a different form of costs order than that provisionally proposed, they should contact the High Court Registrar within fourteen days and arrange for the matter to be relisted before me.

Appearances

John Punch SC and Oscar Lyons for the defendant instructed by John McNamara & Associates Solicitors Benedict Ó Floinn SC and Daniel McNamara for the third party instructed by Anne M. Fitzpatrick & Co.