Judge v Health Service Executive (Approved)

Factual and Procedural Background

The Plaintiff alleges that on 20 June 2018 he sustained a right foot injury at work and was treated initially at a hospital operated by the Defendant. After treatment in the Accident and Emergency Department, including suturing of a wound, his condition worsened, leading to referral to a private clinic, the Hermitage Clinic, for further treatment. The Plaintiff claims negligent treatment resulted in a below knee amputation in June 2019.

The original personal injury summons was issued on 28 May 2020 against the Defendant. The Hermitage Clinic and a treating consultant, Mr. Aly, were not initially joined as parties, and no particulars of negligence against them were provided at that stage. Further particulars of negligence and injury were served in October 2021 and March 2022, detailing the Plaintiff's medical history, including multiple hospital admissions and procedures under the care of Mr. Aly at both the Hermitage Clinic and Beaumont Hospital.

The Defendant subsequently brought a motion in January 2024 to join the three third parties, including Mr. Aly, based on expert evidence alleging negligence by Mr. Aly. The third parties initially sought to set aside the third-party notice, but the second and third third parties withdrew their applications and issued notices of indemnity and contribution against Mr. Aly. The motion to set aside the third-party notice by Mr. Aly remains under consideration.

Legal Issues Presented

1. Whether the third-party notice against the first named third party was served "as soon as is reasonably possible" pursuant to Section 27(1)(b) of the Civil Liability Act 1961 and Order 16 Rule 1(3) of the Rules of the Superior Courts.
2. Whether any delay in serving the third-party notice was justified by the need for expert reports and the complexities of the case.
3. The application of the statutory imperative to avoid multiplicity of actions balanced against the duty to obtain necessary expert advice before instituting third-party proceedings.

Arguments of the Parties

Appellant's Arguments (First Named Third Party)

• The third-party notice was not served as soon as reasonably possible, with particular emphasis on the delay between receipt of expert reports and the issuance of the motion.
• There was an unexplained delay of approximately seven months after the first expert report before issuing the motion, and further delay after the second expert report.
• The case was not sufficiently complex to justify the need for a second expert report, and the pursuit of perfection in expert evidence caused unreasonable delay.

Appellee's Arguments (Defendant)

• Professional negligence claims require careful and cautious steps, justifying the time taken to obtain and consider expert reports.
• The Defendant faced difficulties obtaining complete medical records from the first named third party, which delayed expert briefing.
• Despite the delays, the Defendant acted prudently given the significant exposure and cost implications of joining multiple parties.
• The application to set aside is moot since the other third parties have issued notices of indemnity and contribution against the first named third party, who will remain in the proceedings regardless.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Board of Governors of St. Lawrence's Hospital v. Staunton [1990] 2 I.R. 31	Requirement that third-party notice must be served as soon as reasonably possible.	Established the mandatory nature of timely service of third-party notices under the Rules and statute.
Molloy v. Dublin Corporation [2001] IESC 53	Test for assessing delay in serving third-party notice, balancing explanations and objective assessment of case progress.	Applied to determine that delay of seven months was unreasonable and did not comply with statutory requirement.
Thomas Greene and Anor v. Triangle Developments Ltd. And Anor [2015] IECA 249	Consideration of whole circumstances and general progress of the case in assessing delay.	Supported the court's approach to consider the slow progress of the case and the unnecessary delay in serving the notice.
Connelly v Casey [2000] IESC 76	Avoidance of multiplicity of actions and inconsistent findings by resolving all claims in one proceeding.	Reinforced the legislative intent behind third-party procedure to consolidate related claims.
Susquehanna International Group Ltd v. Execuzen Ltd & Others [2022] IECA 209	The third-party procedure is a matter of right but must be exercised as soon as reasonably possible; statutory imperative overrides general policy.	Emphasized the mandatory nature of timely service and rejected delay justified by general policy considerations.
Avoncore Ltd T/A Douglas Village Shopping Centre v. Leeson Motors Ltd and Others [2022] IEHC 415	Balancing statutory imperative to act promptly against need to obtain expert advice; perfection not required.	Guided the court in weighing the delay against the Defendant's need for expert reports and found the delay excessive.
Kenny v. Howard [2016] IECA 243	Prejudice is a relevant but not decisive factor in assessing delay.	Noted that prejudice was not an issue in this case, focusing instead on statutory timing requirements.
S. Doyle & Sons Roscommon Ltd v. Flemco Supermarkets Ltd and Ors [2009] IEHC 581	Consideration of potential institution of separate proceedings in assessing third-party notice timing.	Referenced but not determinative; court left issues regarding indemnity notices for future consideration.

Court's Reasoning and Analysis

The court began by emphasizing the mandatory nature of serving a third-party notice "as soon as is reasonably possible" under Section 27(1)(b) of the Civil Liability Act 1961 and Order 16 Rule 1(3) of the Rules of the Superior Courts. This statutory imperative is designed to avoid multiplicity of actions and ensure all related claims are resolved in one proceeding.

The court examined the chronology of events, noting that the Defendant had sufficient information to investigate the involvement of the first named third party from April 2022. The first expert report was obtained in June 2023, and the second in October 2023. However, the motion to join the third party was not issued until January 2024, and the notice served in March 2024, resulting in a delay of approximately seven months after the first report and several months after the second report.

The court found no satisfactory explanation for the delay, particularly the need for a second expert report, which appeared to be a "counsel of perfection" rather than a necessity. The Defendant's caution was acknowledged, but the court held that such caution did not justify the delay in issuing the third-party notice.

Considering the slow general progress of the case and the absence of prejudice to the third party, the court concluded that the statutory requirement had not been met. The timing of service was not objectively reasonable in all the circumstances, and the delay was excessive compared to the statutory mandate.

Holding and Implications

The court GRANTED the application to set aside the third-party notice served on the first named third party.

The direct effect is that the third-party notice against the first named third party is set aside due to unreasonable delay in service contrary to statutory requirements. The court did not establish any new precedent but reaffirmed the strict application of the statutory mandate to serve third-party notices as soon as reasonably possible. The case remains ongoing with case management to continue under the same judge, reflecting concerns about the protracted nature of the proceedings.