Purcell v Coras Iompair Eireann (CIE) & Ors (Approved)

Factual and Procedural Background

The case concerns a personal injuries claim arising from a cycling accident on 8 March 2015, where the Plaintiff allegedly fell due to hitting an unmarked, non-standard speed ramp on a roadway in The City. The Plaintiff contends that the speed ramp was hazardous because it was indistinguishable from the roadway and obscured by an overgrown tree. The Defendants, referred to collectively as "the CIÉ defendants," denied liability and pleaded that the speed ramp had been installed by third-parties, occupants of an adjacent dwelling, without their knowledge or consent. The CIÉ defendants sought indemnity from these third-parties.

Contentious correspondence dating back to 2002 and 2003 between the CIÉ defendants and the third-parties concerning the installation of speed ramps was relevant to the case. The CIÉ defendants applied to join the third-parties to the proceedings in July 2019, and the court granted leave in November 2019. However, there was significant delay and irregularity in serving the third-party notices, with proper service only occurring in September 2020.

The third-parties moved to set aside the third-party notices on grounds of delay, leading to the present application heard in December 2021.

Legal Issues Presented

1. Whether the third-party notices were served "as soon as is reasonably possible" pursuant to section 27 of the Civil Liability Act 1961 and Order 16, rule 8(3) of the Rules of the Superior Courts.
2. Whether the delay in issuing and serving the third-party notices justified setting aside those notices.
3. The consequences of setting aside the third-party notices on the defendant’s ability to pursue a claim for contribution in separate proceedings.

Arguments of the Parties

Defendants' Arguments

• The CIÉ defendants argued that the application to join the third-parties could only be made after the defence was delivered, which occurred late, thus justifying the delay in issuing the third-party notices.
• They contended that the delay was not inordinate given the circumstances and that the third-parties had not demonstrated any specific prejudice resulting from the delay.

Third-Parties' Arguments

• The third-parties contended that the delay was inordinate and inexcusable, both in applying for leave to join them and in serving the notices.
• They argued that the statutory requirement to serve third-party notices as soon as reasonably possible had not been met, warranting the setting aside of the notices.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analyzed the delay in two principal stages: the delay in applying for leave to join the third-parties and the delay in serving the third-party notices after the order was made. It found that the CIÉ defendants had knowledge of the relevant facts concerning the third-parties’ involvement since at least 2002-2003 and thus could have pursued the third-party claim much earlier.

The court rejected the defendants’ argument that the delay was justified by the late delivery of their defence, stating that it is impermissible for a defendant to rely on their own delay to excuse non-compliance with statutory obligations. The court emphasized that delay should be measured from the date of actual service of the third-party notices, not from the date of the application for leave.

The court found the delay of over two years excessive and inexcusable, noting that the defendants failed to provide satisfactory explanations, including for a five-month delay in taking up the court order. The court also dismissed pandemic-related restrictions as a justification, as most delay preceded those restrictions and the subsequent steps were unaffected by them.

The court further held that the absence of demonstrated specific prejudice to the third-parties was not determinative, referring to established case law that delay alone can justify setting aside third-party notices.

Overall, the court concluded the statutory requirement to serve third-party notices as soon as reasonably possible was not met, warranting setting aside the third-party proceedings.

Holding and Implications

The court ordered the third-party proceedings to be set aside on the grounds of delay, finding that the CIÉ defendants failed to comply with the statutory obligation under section 27(1)(b) of the Civil Liability Act 1961 to serve third-party notices as soon as reasonably possible.

The direct consequence is that the defendant’s claim for contribution against the third-parties may only be pursued in separate proceedings, subject to the court’s discretion, which often disfavors such claims when the third-party procedure has not been properly followed.

No new precedent was established; the decision applies established principles regarding timely service of third-party notices and the consequences of delay.

Regarding costs, the court provisionally ruled that the third-parties are entitled to their costs against the CIÉ defendants, including costs of two counsel and written submissions, subject to adjudication and stayed pending any appeal.