High Court: Third-party proceedings set aside for two year delay in service

About this case:

• Citation:
  [2022] IEHC 4
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Garrett Simons

The court stated that the delay was unreasonable and disproportionate having regard to the overall circumstances of a straightforward personal injuries action and to the state of knowledge of the defendants in the case.

Background

The plaintiff took personal injuries proceedings against the defendants arising from a cycling accident in March 2015. The plaintiff claimed to have been thrown from his bicycle after hitting an unmarked non-standard speed ramp in Killiney, County Dublin.

The plaintiff claimed thought the speed ramp was a hazard that was indistinguishable on the roadway and overshadowed by an overgrown tree. It was said that the defendants failed to construct or design the speed ramp in accordance with relevant guidelines.

The first and second defendants delivered a joint defence in May 2019. The defendants alleged inter alia that the speed ramp was installed by the third parties who lived in a house beside the speed ramp. It was claimed that the speed ramp was erected by the third parties without the knowledge of the defendants.

In July 2019, the defendants issued a motion seeking leave to join the third parties to the proceedings, which was granted in November 2019. However, the third-party notices were not served until July 2020, more than seven months after the order was made.

Further, service of the notices was not in order because copies were not filed in the Central Office. Accordingly, the third parties were only served in September 2020 after this was resolved.

In October 2020, the third parties issued a motion seeking to set aside the third-party notices on the grounds of delay.

High Court

Delivering judgment in the case, Mr Justice Garrett Simons began by assessing the legal principles relating to setting aside third-party notices. The court held that section 27 of the Civil Liability Act 1961 required a defendant to serve a third-party notice as soon as reasonably possible.

The court stated that this obligation was intended to ensure that the main proceedings were not unnecessarily delayed by a third-party claim. It was held that the practical consequence was that a defendant was under “far greater time constraints than a putative plaintiff” for the service of third-party proceedings.

The court noted that a plaintiff’s failure to comply with time limits for pleadings would not normally result in the plaintiff’s claim being struck out in the absence of inordinate or inexcusable delay. However, the court said that third party proceedings may be struck out where the delay was “measured in months rather than years”.

It was held that the onus was on a defendant to explain and justify any delay. It was also stated that a court will have regard to the fact that third party proceedings should not be instituted without first obtaining all the relevant evidence on advice.

It was held that an application for leave to issue third party notices should ordinarily be made within 28 days from the time limited for delivering the defence. Further, a third-party notice should be served within 28 days from the making of any order.

The court noted that, in general, the time limits for the delivery of pleadings were not complied with by parties to litigation. It was therefore stated that the 28-day limit represented a “benchmark” to measure any delay (Greene v. Triangle Developments Limited [2015] IECA 249).

The court held that, if the defendant had complied with the time limits contained in the Superior Court Rules, then the defence should have been delivered by mid-April 2018 at the latest. As such, the application for leave to issue third party notices should have been made by mid-May 2018. The court held that there was a delay of thirteen months in the delivery of the defence and that the motion to join the third parties issued two months thereafter. It was also noted that service of the notices was not attempted for twelve months and that the notices had to be re-served due to failures by the defendants.

The court rejected the defendants’ submission that the delay in making the third-party application was justified as there were no grounds to bring the motion prior to the service of the defence. The court stated that the defendants were seeking to “capitalise on their own failure to deliver a defence within eight weeks” and that it was impermissible for a defendant to rely on their own delay in this manner.

The court noted that the information relied on by the defendants was within their knowledge long before the institution of the proceedings. The court referred to correspondence made in 2002 and 2003 by the defendants which referred to the improperly constructed ramp.

The court stated that the seven-and-a-half months’ delay in taking up the order and serving the third party notices was inordinate and inexcusable. Further, the court held that the defendants had failed to discharge the onus to explain and justify the periods of delay.

Additionally, the court was required to make an objective assessment as to whether the third party was served as soon as reasonably possible (Greene v. Triangle Developments Limited [2015] IECA 249). It was also noted that a notice may be set aside even in the absence of specific prejudice two the third parties arising from the delay (Kenny v. Howard [2016] IECA 243.

The court stated that the two-year delay in the case was “excessive and unreasonable in the context of what is a straightforward personal injuries action”, irrespective of whether any specific prejudice was suffered by the third parties.

Conclusion

In light of the court’s findings, the court held that the third-party notices were not served as soon as reasonably possible. As such, the court set aside the third party proceedings on the grounds of delay.