Greene & Anor v Triangle Developments Ltd & Ors

Factual and Procedural Background

The plaintiffs initiated proceedings against the defendants arising from the subsidence of a building. The defendants, who were builders or developers involved in the construction, sought to serve a third party notice on a professional engineering firm. The initial letter of claim was made against the defendants on 30th April 2004. The defendants engaged loss adjusters who instructed engineers and solicitors in August 2004. The plenary summons was issued on 22nd March 2005, and the statement of claim was delivered on 5th May 2005. The defendants delivered a defence on 20th January 2006 after a motion granted them additional time. Subsequently, the defendants sought and obtained liberty from the court to issue and serve a third party notice on 20th February 2006. However, the third party notice was initially served by letter on 9th March 2006 without being issued through the required central office, leading to procedural irregularities. The solicitors later applied ex parte for an extension of time and issued the third party notice from the central office on 3rd January 2007, but served it late on 29th March 2007. The third party moved to strike out the notice, and the High Court struck it out on 4th March 2008. The defendants appealed, and the appeal was transferred to the Court of Appeal in 2014.

Legal Issues Presented

1. Whether the third party notice was served "as soon as is reasonably possible" pursuant to section 27(1)(b) of the Civil Liability Act 1961.
2. The proper approach to assessing delay in serving a third party notice, including the relevance of explanations for delay and the requirement for an objective assessment.
3. The procedural compliance with Order 16 of the Rules of the Superior Courts regarding issuing and serving third party notices.

Arguments of the Parties

Appellants' Arguments

• The High Court judge erred by focusing on whether an adequate explanation was given for delay in procuring the expert report rather than objectively assessing whether the third party notice was served as soon as reasonably possible.
• The appellants contended that the delay was justifiable and that the notice was served within a reasonable timeframe considering the complexity of the case and the need for expert evidence.

Third Party's Arguments

• The approach of the High Court judge was correct in requiring a satisfactory explanation for delay in obtaining the expert report before serving the third party notice.
• There was no adequate evidence explaining the delay, especially as there was no direct evidence from the loss adjusters responsible for procuring the report.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
The Board of Governors of St. Laurence's Hospital v. Staunton [1990] 2 I.R. 31	Service of third party notice must be as soon as reasonably possible under section 27(1)(b) Civil Liability Act 1961.	Established the foundational legal test for timing of third party notice service in this context.
Molloy v. Dublin Corporation [2001] 4 IR 52	The purpose of section 27 is to avoid multiplicity of actions and the onus is on the defendant to prove timely service.	Clarified the legislative intent and burden of proof regarding delay in serving third party notices.
Connolly v. Casey [2000] 1 IR 345	Delay must be assessed objectively considering the whole circumstances; waiting for expert reports can be reasonable.	Refined the test for delay to include an objective assessment beyond just explanations for delay.
Gilmore v. Windle [1967] IR 323	Supports the avoidance of multiplicity of actions principle underlying third party notice procedure.	Referenced to emphasize the public interest in resolving related claims in one proceeding.

Court's Reasoning and Analysis

The Court of Appeal reviewed the procedural history and focused on the timing between service of the statement of claim and the third party notice. It acknowledged the procedural irregularities in issuing the third party notice but accepted that the third party was effectively on notice from 9th March 2006. The court analysed the relevant statutory framework, particularly section 27(1)(b) of the Civil Liability Act 1961, and the requirements under Order 16 of the Rules of the Superior Courts.

The court considered the High Court judge's reliance on the absence of a satisfactory explanation for delay in procuring the expert report but identified that the judge did not carry out the necessary objective assessment of whether the third party notice was served as soon as reasonably possible in all the circumstances. The Court of Appeal emphasized the Supreme Court's guidance in Connolly v. Casey requiring such an objective evaluation, including consideration of the case's complexity and the need for expert evidence.

Applying these principles, the court found that waiting for the expert report before serving the third party notice was reasonable. It also found that the overall timeframe, including delays and procedural steps, was consistent with serving the notice as soon as reasonably possible. The court noted that the standard procedural timeframes in the Rules of Court are not rigid expectations in complex cases.

Therefore, the court concluded that the appellants had discharged the onus of showing reasonable expedition in serving the third party notice and that the High Court had erred in striking out the notice without this objective assessment.

Holding and Implications

The Court of Appeal ALLOWED THE APPEAL and set aside the High Court's order striking out the third party notice.

The direct effect is that the third party notice remains valid and the third party may participate in the proceedings. The decision clarifies that in assessing delay under section 27(1)(b), courts must undertake an objective assessment of whether the notice was served as soon as reasonably possible, considering the whole circumstances, including the need for expert evidence and the complexity of the case. No new precedent was established beyond applying existing Supreme Court authority.