High Court: Third party proceedings against Irish Water set aside

About this case:

• Citation:
  [2024] IEHC 622
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Conleth Bradley

Delivering judgment for the High Court, Mr Justice Conleth Bradley stated that “if the underlying policy is to put the third party in as good a position as possible in relation to knowledge of the claim and the opportunity of investigating it, there is no authority for the proposition that a third party moving to set aside a Third Party Notice must establish prejudice; the focus must be on whether the delay was unreasonable”.

Peter Bland SC and Brendan Savage BL appeared for Irish Water, and Colm P. Condon SC together with John P. Kehoe BL and Joan Williams BL appeared for Dublin City Council.

Background

A leak occurred at the plaintiffs’ home between May and November 2015. The plaintiffs commenced proceedings against Dublin City Council on 5 February 2019 and their statement of claim was delivered on 7 February 2019.

The council entered an appearance to the proceedings on 5 March 2019 and delivered its defence on 12 July 2019. On 2 August 2019, the council served a notice for particulars on the plaintiffs, who delivered replies on 21 November 2019.

A notice of trial was served by the plaintiff on 9 February 2023. On 12 June 2023, the council obtained liberty from the court to issue and serve a third party notice on Irish Water. On 23 June 2023, the council served the third party notice and other documentation on Irish Water. 

Irish Water subsequently entered an appearance and issued a motion seeking to set aside the third party notice on 7 December 2023.

The High Court 

Mr Justice Bradley set out Order 16, rule 1(3) of the Rules of the Superior Courts (RSC) which provides inter alia that an application for leave to issue a third party notice shall be made within 28 days from the time limited for delivering the defence, and rule 8(3) which provides that the third party proceedings may be set aside at any time by the court.

The judge then set out the procedure for claiming contribution under s.27 of the Civil Liability Act 1961 (as amended), which includes a provision that a concurrent wrongdoer who wishes to make a claim for contribution from a person not already party to the action shall serve a third party notice upon such person as soon as is reasonably possible and, having served such notice, shall not be entitled to claim contribution except under the third party procedure.

The High Court considered that the application for leave to issue and serve the third party proceedings ought to have been made on or before 10 May 2019, but was made over four years thereafter.

Noting the parties’ agreement that non-compliance with the RSC was not dispositive of the question to be determined by the court, Mr Justice Bradley focused on the question of whether the council served the third party notice “as soon as is reasonably possible” in accordance with s.27(1) of the 1961 Act.

The judge considered Susquehanna International Group Limited & Ors v Execuzen Limited & Ors [2022] IECA 209 as setting out the essential features of the process for setting aside a third party notice.

The court considered that the evidence adduced on behalf of the council in its affidavits amounted to no more than a general timeline with reference to correspondence between the parties to the action in the period between 2016 and 2022.

It was clear to the court that the council had adopted the position that the plaintiffs ought to have sued Irish Water as the appropriate defendant and not the council, and that the council was entitled to be fully indemnified by Irish Water in relation to the alleged claims in the proceedings pursuant to a 2013 Service Level Agreement (SLA) between the council and Irish Water.

The court did not accept that the legislative changes which occurred in 2013 and the developments thereafter concerning the transfer of responsibility to Irish Water from local authorities for the provision and maintenance of public water services explained the delay. The court pointed out that the council was a signatory to the SLA which expressly provided for an indemnity by Irish Water.

Objectively assessing whether the notice was served as soon as reasonably possible, Mr Justice Bradley found that the council offered no explanation for failing to join Irish Water in circumstances where it had formed the view that Irish Water was the appropriate defendant shortly after the proceedings issued:

• The council called upon Irish Water to come on record in April 2019.

• The council asked the plaintiffs to join Irish Water as a co-defendant in May 2019.

• The defence contained pleas in relation to the SLA.

• The council sought an indemnity from Irish Water by letter dated 13 July 2020.

• Correspondence was exhibited to the council’s affidavit demonstrated its request to the plaintiffs not to set the matter down until the issue of indemnity and the SLA was clarified.

Highlighting that it is not sufficient to describe or explain the delay in line with Kenny v Howard [2016] IECA 243, Mr Justice Bradley emphasised that a third party is not required to demonstrate prejudice in an application to set aside a third party notice, rather the focus is whether the delay was unreasonable when balanced with the council’s “quest for certainty”.

Conclusion

Accordingly, the High Court set aside the third party proceedings.

Grehan &  Anor v. Dublin City Council [2024] IEHC 622