Factual and Procedural Background
The Plaintiff initiated proceedings arising from alleged damage to their building located at No. 5 Thomas Street, Waterford, purportedly caused during the redevelopment of an adjoining site in March or April 2004. The action commenced by plenary summons on 22 March 2005, with the statement of claim delivered on 5 May 2005. The Defendants (referred to collectively as Triangle) delivered their defence on 20 January 2006.
Shortly after delivering the defence, Triangle applied for and obtained an order granting leave to issue and serve a third party notice on Fox & Associates within three weeks. Although a proposed third party notice was served on Fox & Associates within that period in March 2006, it was later discovered that the notice had not actually been issued. Despite reminders from Fox & Associates' solicitors, Triangle did not regularise the service until an extension of time was granted in December 2006, with the notice formally served on 29 March 2007.
Fox & Associates applied on 16 July 2007 to have the third party proceedings set aside due to delay. The application was heard in early 2008, concluding on 25 February 2008. The primary contention was that the delay between the delivery of the statement of claim and the application for leave to issue the third party notice (approximately nine months), along with subsequent failures to comply with court orders, warranted setting aside the third party notice.
Legal Issues Presented
- Whether the delay in issuing and serving the third party notice was unreasonable and contrary to the requirement that it be served "as soon as reasonably possible" under the Civil Liability Act 1961 and the Rules of the Superior Courts.
- Whether the delay occurring after the court granted leave to issue and serve the third party notice should be assessed from the date of the application or from the date of service of the notice.
- Whether the unexplained delay in complying with the original court order and in obtaining expert reports justified setting aside the third party notice.
Arguments of the Parties
Appellee's Arguments (Fox & Associates)
- The delay of approximately nine months before applying for leave to issue the third party notice was excessive.
- Triangle failed to comply with the court order to issue and serve the third party notice within three weeks, causing further delay.
- The cumulative delay prejudiced Fox & Associates and justified setting aside the third party proceedings.
Appellant's Arguments (Triangle)
- Delay was primarily caused by the need to obtain an expert engineer’s report before deciding whether to join Fox & Associates as a third party.
- It was appropriate to await the expert report to ensure a credible basis for alleging professional negligence.
- Some delay was unavoidable due to the time taken by the consulting engineers to produce the report.
- After receipt of the expert report in December 2005, the application for leave was promptly made in February 2006.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| A & P (Ireland) Ltd v. Golden Vale Products Ltd (Unreported, High Court, 1978) |
Requirement that third party notice be served promptly to allow investigation and knowledge of claim; time limits under Order 16 rule 1(3) and Civil Liability Act 1961 s. 27(1)(b). |
Used to emphasize the importance of serving third party notices within a short timeframe to protect the third party’s ability to investigate the claim. |
| S.F.L. Engineering v. Smyth Cladding Systems Ltd (Unreported, High Court, 1997) |
Rules contemplate early stage application for joinder of third parties. |
Supported the principle that third party applications should be made promptly. |
| Connolly v. Casey (Unreported, High Court, 1998) |
Recognition that only a small percentage of third party applications comply strictly with time limits; holistic consideration of delay. |
Acknowledged some flexibility but stressed the need to consider the overall circumstances and delay. |
| Stephens v. Flynn (Unreported, Supreme Court, 2008) |
Delay assessed against time limits in the rules; courts increasingly vigilant against undue delay. |
Applied analogous principles from dismissal for want of prosecution to delay in third party proceedings. |
| Connelly v. Casey [2000] 1 IR 345 |
Delay must be assessed in the context of the whole case and its progress. |
Emphasized a broad view of delay considering all relevant circumstances. |
| Molloy v. Dublin Corporation [2001] 4 IR 52 |
“As soon as reasonably possible” allows flexibility; legal and commercial judgments affect timing rather than mere physical possibility. |
Supported a flexible but firm approach to timing of procedural steps. |
| Dillon v. MacGabhann (Unreported, High Court, 1995) |
The relevant date for assessing delay is the date of service of the third party notice, considering all contributing elements. |
Preferred by the court as consistent with statutory wording and purpose. |
| McElwaine v. Hughes (Unreported, High Court, 1997) |
Suggested that the date of application for leave may be relevant if no delay occurs between application and service. |
Considered but court favored Dillon approach. |
Court's Reasoning and Analysis
The court began by affirming the statutory and procedural framework governing third party proceedings, emphasizing the requirement that such notices be issued and served as soon as reasonably possible to protect the third party’s ability to investigate the claim. The court acknowledged that while strict compliance with time limits is ideal, some flexibility is inherent, especially where expert reports are necessary.
The court considered the delay in this case, noting the nine-month period before the application for leave to issue the third party notice, primarily caused by the time taken to obtain an expert engineer’s report. The court accepted that awaiting such a report before issuing proceedings was appropriate given the professional negligence context, but found the seven-month delay in obtaining the report excessive and inadequately explained.
The court also analyzed the delay after leave was granted, concluding that the relevant date for assessing delay is the date of service of the third party notice. The failure by Triangle to issue and serve the notice in compliance with the original court order, and the consequent delay of approximately twenty-two months after the defence was served, was significant. However, the court noted that Fox & Associates had been aware of the substance of the third party proceedings for about twelve months prior to formal service, which lessened the prejudice caused by the delay.
Ultimately, the court held that the delay in bringing the application and in serving the third party notice was not "as soon as reasonably possible." Triangle’s failure to manage the expert report procurement and to comply with the order for timely service was unjustified. The court concluded that these delays collectively warranted striking out the third party notice.
Holding and Implications
The court STRUCK OUT the third party notice issued by Triangle against Fox & Associates due to unreasonable delay in issuing and serving the notice and failure to comply with court orders.
The direct effect is that the third party proceedings against Fox & Associates are dismissed. No broader legal precedent was established beyond the application of existing principles concerning delay and procedural compliance in third party proceedings.