Factual and Procedural Background
This opinion concerns an appeal by the third party, Company B, against a High Court order refusing to set aside a third party notice served by the Defendant pursuant to an order of the High Court. The third party sought to have the notice set aside on the basis that the Defendant failed to serve the notice "as soon as reasonably possible" as required by section 27(1)(b) of the Civil Liability Act 1961. The High Court dismissed the application, and the third party appealed.
The Plaintiff is a social care worker who claims to have been assaulted by a service user while employed at a care home managed by a Board chaired by the Defendant, who is also the nominated representative for the proceedings. The Plaintiff alleges negligence and breach of duty against the Defendant and/or its agents, resulting in personal injuries.
The Defendant issued a notice of motion seeking to join the third party as a concurrent wrongdoer approximately two years after the deadline for such an application. The High Court granted leave to issue and serve the third party notice, and the third party subsequently applied to set it aside. The High Court refused to do so, finding the delay excusable under the circumstances.
Legal Issues Presented
- Whether the Defendant served the third party notice on the third party "as soon as reasonably possible" within the meaning of section 27(1)(b) of the Civil Liability Act 1961.
- Whether delay caused by professional advisors and the need to obtain expert advice can be excused in assessing compliance with the statutory timing requirement.
- The extent to which prejudice to the third party affects the court’s discretion in setting aside a third party notice for delay.
- The proper interpretation and application of the statutory phrase "as soon as reasonably possible" in the context of third party proceedings.
Arguments of the Parties
Third Party's Arguments
- The third party contended that the Defendant failed to comply with the statutory requirement to serve the third party notice as soon as reasonably possible, given the delay of approximately two years.
- They argued that the delay was not justified by the circumstances and that the statutory provision should be strictly enforced to avoid prejudice and ensure timely administration of justice.
- The third party sought an order setting aside the third party notice on procedural grounds, costs for the High Court motion, the proceedings, and the appeal.
Defendant's Arguments
- The Defendant maintained that the delay was excusable due to the complexity of the case, which involved alleged professional negligence requiring specialist expert advice.
- Delay was attributed primarily to the misplacement of papers by Senior Counsel and the unavailability of the initial expert due to ill-health, necessitating engagement of an alternative expert.
- The Defendant argued that all steps were taken reasonably promptly once expert advice was obtained and that the third party was not prejudiced by the delay.
- They asserted that the third party was aware of the claim and the potential for joinder well before the notice was served.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Connolly v. Casey [2000] 1 IR 345 |
Purpose of s.27(1)(b) to avoid multiplicity of actions and ensure third party participation; entire circumstances must be considered in assessing delay. |
The court emphasized the need to consider all circumstances and the general progress of the case in determining if notice was served as soon as reasonably possible. |
| Molloy v. Dublin Corporation [2001] 4 IR 52 |
“Reasonably possible” involves legal and commercial judgments; some flexibility allowed; balance between certainty and statutory obligation. |
The court accepted delay may be excused if justified by the need to assemble evidence and obtain advice. |
| Board of Governors of St. Laurence’s Hospital v. Staunton [1990] 2 IR 31 |
Serving third party notice after conclusion of plaintiff’s claim is not as soon as reasonably possible. |
The court distinguished the instant case from this precedent, noting earlier steps taken by Defendant’s solicitors. |
| Greene v. Triangle Developments Limited [2015] IECA 249 |
Trial judge must assess explanations for delay and make objective assessment whether notice was served as soon as reasonably possible. |
The court found the delay due to expert report was reasonable given the professional negligence claim. |
| Robbins v. Coleman [2010] 2 IR 180 |
Onus on defendant to prove compliance; prejudice to third party is relevant but absence of prejudice does not negate statutory requirement. |
The court held that absence of prejudice was not decisive; compliance with timing requirement was mandatory. |
| Mulcahy v. ASL Sports Park Limited [2015] IECA 353 |
Obligation to move as soon as reasonably possible is on defendant personally; statutory provision mandates urgency but flexibility exists. |
The court acknowledged that delay by professional advisors may not always be visited on defendant if no prejudice arises. |
| Neville v. Margan Limited [1988] IR 734 |
Purpose of s.27(1)(b) to place contributor in good position to investigate claim; long delay frustrates this purpose. |
The court distinguished the instant case due to shorter delay and no frustration to third party’s ability to investigate. |
| O’Byrne v. Michael Stein Travel Ltd [2013] 1 ILRM 297 |
Court must consider all circumstances and require evidence for reasons and excuses for delay; onus on party seeking leave. |
The court found Defendant had provided adequate explanation for delay. |
| Freisberg v. Farnham Resort Limited [2012] IEHC 216 |
Consideration of constitutional rights of third party to fair procedures and timely determination; relative nature of “reasonably possible". |
The court emphasized balancing urgency with fairness and absence of prejudice to third party. |
| Buchanan v. B.H.K. Credit Union Limited [2013] IEHC 439 |
Discretion under s.27(1)(b) is flexible and not abridged by court rules; duty of care in professional negligence claims. |
The court recognized the need for deliberate speed considering all circumstances. |
| Hennessy v. Griffin [2015] IEHC 50 |
Prejudice to third party is a relevant factor in determining compliance with timing requirement. |
The court considered prejudice but found no adverse impact on third party’s rights. |
| O’Halloran v. Fetherston [2012] IEHC 349 |
Primary objective of s.27(1)(b) is to avoid multiplicity of actions and conflicting judgments by linking cases. |
The court found refusal of appeal better served the policy of avoiding multiplicity of proceedings. |
Court's Reasoning and Analysis
The court undertook a detailed examination of the statutory provision in section 27(1)(b) of the Civil Liability Act 1961, the relevant procedural rules, and the applicable case law. The provision requires a concurrent wrongdoer to serve a third party notice "as soon as is reasonably possible," a phrase the court interpreted as flexible and relative to the circumstances of each case.
The court acknowledged that the purpose of the provision is to avoid multiplicity of actions and to ensure that all issues relating to a claim are resolved in the same proceedings. It also recognized that some delay may be justified by the need to assemble evidence and obtain expert advice, particularly in complex cases such as those involving allegations of professional negligence.
In applying these principles, the court noted two significant periods of delay: a nearly nine-month delay by Senior Counsel in providing advice, and a delay caused by the initial expert's ill-health requiring engagement of a substitute expert. The court found these delays not attributable to the Defendant personally and accepted that the Defendant acted reasonably in seeking expert advice before joining the third party.
The court emphasized that the absence of prejudice to the third party was a relevant factor in assessing whether the delay was reasonable. The third party was aware of the claim and the potential for joinder well before the notice was served, and there was no evidence that the delay caused any disadvantage in defending the proceedings.
Nevertheless, the court also acknowledged that the statutory phrase requires promptness and an element of urgency. The court rejected the notion that inaction by professional advisors should invariably be discounted when assessing compliance with the timing requirement but concluded that, on the facts, the delays were excusable and did not warrant setting aside the third party notice.
Ultimately, the court balanced the statutory objectives, the complexity of the case, the conduct of the Defendant and their advisors, and the absence of prejudice to the third party, concluding that the third party notice was served within the statutory time frame as reasonably construed.
Holding and Implications
The court REFUSED THE APPEAL by the third party and upheld the High Court's decision to refuse setting aside the third party notice.
This holding means that the third party remains joined to the proceedings, and the case will proceed with the third party involved. The decision underscores that delays caused by professional advisors, including counsel and expert witnesses, may be excused where justified by the circumstances, especially in complex cases, and where no prejudice to the third party is demonstrated.
No new precedent was created; rather, the decision affirms existing legal principles regarding the interpretation of "as soon as is reasonably possible" in third party proceedings under the Civil Liability Act 1961.