“No Counsel of Perfection”: High Court Re-affirms the Strict Duty to Serve Third-Party Notices “As Soon As Reasonably Possible” – Comment on Judge v Health Service Executive ([2025] IEHC 438)

1. Introduction

In Judge v Health Service Executive, Mr Justice Nolan of the Irish High Court considered an application by vascular surgeon Mr Sayed Aly to set aside a third-party notice issued by the defendant, the Health Service Executive (HSE). The underlying action concerns catastrophic injuries culminating in a below-knee amputation allegedly caused by negligent medical treatment rendered first at Naas General Hospital (HSE), and later at the Hermitage Clinic and Beaumont Hospital under Mr Aly’s care. The procedural dispute focused on s. 27(1)(b) of the Civil Liability Act 1961 and Order 16 r. 1(3) RSC: whether the HSE served its third-party notice on Mr Aly “as soon as is reasonably possible”.

Key dates

• 28 May 2020 – PI summons issued against HSE.
• 25 Apr 2022 – Mr Aly first identified in replies to particulars.
• 8 Jun 2023 – First expert report blaming Mr Aly received.
• 17 Oct 2023 – Second expert report obtained.
• 9 Jan 2024 – Motion to join third parties issued.
• 20 Mar 2024 – Third-party notice served.

Mr Aly argued that the HSE’s seven-month inaction after obtaining the first expert report, compounded by unnecessary pursuit of a second report, violated the statutory imperative. The HSE countered that complex professional-negligence claims demand caution, expert input, and indemnifier consultation.

2. Summary of the Judgment

The Court struck out the third-party notice against Mr Aly. Justice Nolan held that:

• The mandatory language of s. 27(1)(b) (“shall … serve … as soon as is reasonably possible”) requires strict compliance.
• Once the HSE received a cogent expert opinion on 8 June 2023, it possessed sufficient information to decide on contribution proceedings.
• Seeking a second report amounted to a “counsel of perfection” and did not justify the additional seven-month delay.
• Taking the “whole circumstances of the case and its general progress” (per Greene) the notice was not served as soon as reasonably possible.

Accordingly, pursuant to the Court’s discretionary power under the closing sentence of s. 27(1)(b), the third-party order was set aside. The Judge also listed the action for case-management, lamenting its seven-year gestation without trial.

3. Detailed Analysis

3.1 Precedents Cited and Their Influence

1. Board of Governors of St. Lawrence’s Hospital v. Staunton [1990] 2 I.R. 31  – Originated the strict obligation to serve promptly.
2. Molloy v. Dublin Corporation [2001] IESC 53  – Supreme Court formulated the twin-limbed test: (a) adequacy of explanation for delay; (b) an objective assessment of overall circumstances. Justice Nolan adopted this structure (paras 48–63).
3. Thomas Greene v. Triangle Developments [2015] IECA 249  – Finlay Geoghegan J. emphasised the Court’s objective assessment; this guided Nolan J. in surveying the “very slow progress” of the main action.
4. Susquehanna International Group Ltd v. Execuzen Ltd [2022] IECA 209  – Allen J.: third-party procedure is a right but only if the statutory timeline is respected; policy favouring single-forum resolution cannot override the plain words of s. 27. Cited at paras 42–44 to rebut HSE’s policy argument.
5. Avoncore Ltd v. Leeson Motors [2022] IEHC 415 (Quinn J.)  – Balanced the duty of expedition against the duty to obtain expert evidence; warned against “perfection”. Nolan J. heavily relied on this to find the second report superfluous (paras 52–57).
6. Kenny v. Howard [2016] IECA 243 & Connelly v. Casey [2000] IESC 76  – Acknowledged multiplicity-avoidance policy but underlined that prejudice or efficiency cannot displace statutory wording.

3.2 Court’s Legal Reasoning

Justice Nolan applied the Molloy test:

1. Explanation for Delay
   • Delays pre-June 2023: tolerable; HSE sought records & first expert.
   • Post-June 2023: unjustified. First report “impressive” and formed basis of eventual notice (para 53). No cogent rationale for seeking a second report; perfection not required (Avoncore).
2. Objective Assessment of Case Progress The underlying litigation (incident 2018, summons 2020) remained in its infancy; third-party notice could have issued months earlier, sparing procedural satellite disputes (paras 60–63).

Having found the statutory command unmet, the Court exercised its discretion to refuse contribution, echoing Supreme Court dicta that postponing for “certainty or verification” cannot prevail over s. 27(1)(b).

3.3 Likely Impact of the Decision

• Reinforces a strict interpretation of “as soon as is reasonably possible” for third-party notices, particularly in professional-negligence contexts.
• Signals that:
  • One well-supported expert opinion is ordinarily enough to launch contribution proceedings.
  • Delays attributable to strategic “belt-and-braces” evidential gathering will not be excused.
• Encourages defendants and their insurers to:
  • Expedite record-collection (using discovery / FOI where necessary).
  • Instruct experts early and act promptly on their advice.
  • Reserve perfectionist refinements (further experts, supplemental pleas) for post-joinder phases.
• Provides plaintiffs and potential third parties with a robust precedent for challenging tardy joinder, reducing exposure to stale contribution claims.
• May precipitate earlier and more rigorous case-management by the High Court in complex medical-negligence suits.

4. Complex Concepts Simplified

• Concurrent wrongdoer – Two or more parties whose separate wrongdoing contributes to the same damage; entitled/liable to “contribution”.
• Third-party notice – Procedure allowing a defendant to join another (alleged) wrongdoer into existing proceedings to claim contribution or indemnity.
• Section 27(1)(b) Civil Liability Act 1961 – Imposes a duty on a defendant to serve the third-party notice “as soon as is reasonably possible”. Failure empowers the court to refuse contribution.
• “Counsel of perfection” – Judicial metaphor for overly exacting, unnecessary additional steps taken to achieve complete certainty.
• Vicarious liability – Liability imposed on an entity (e.g., hospital) for wrongdoing of its employee/agent, even absent personal fault.
• Indemnity & Contribution Notice – Pleading exchanged between defendants/third parties seeking to shift liability among themselves.

5. Conclusion

Judge v. HSE re-emphasises that the statutory clock for third-party notices begins once a defendant has enough information to make a “prudent and reasonable” decision—not when it has eliminated every doubt. A seven-month hiatus after receipt of a substantive expert report, undertaken in pursuit of a second opinion, was deemed excessive. The ruling will likely tighten timelines for defendants in complex professional-negligence cases, arrest the drift toward procedural perfectionism, and promote sharper, more efficient litigation management. Practitioners should treat a single, credible expert opinion as the green light to issue contribution proceedings, leaving any fine-tuning to later interlocutory steps.