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O'Connor v Coras Pipeline Services Ltd (Unapproved) [2021] IECA 68 (11 March 2021)
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[2021] IECA 68
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1
COURT OF APPEAL
UNAPPROVED
NO REDACTION NEEDED
Court of Appeal Record No. 2018/461
High Court Record No. 2016/9653 P
Woulfe J.
Donnelly J.
Barrett J.
BETWEEN
ANDRÉ O'CONNOR
PLAINTIFF
AND
CORAS PIPELINE SERVICES LIMITED
DEFENDANT/APPELLANT
AND
NORTHSTONE (N.I.) LIMITED
THIRD PARTY/RESPONDENT
2
JUDGMENT of Mr Justice Max Barrett delivered on 11
th
day of March 2021.
I
Introduction
1.
This is an application to set aside a judgment of the High Court whereby, pursuant to O.16,
r.8(3) of the Rules of the Superior Courts, as amended, (a) the defendant's proceedings against
the third party in the above-entitled proceedings were set aside, (b) the defendant was ordered
to pay the costs of the set-aside application before the High Court, (c) a stay was placed on the
costs order pending the determination of the proceedings.
II
Background Facts
2.
The facts of the underlying personal injuries dispute that forms the crux of the within
proceedings are as follows. Mr O'Connor, a construction worker employed by Coras Pipeline
Services Ltd. claims to have been involved in an accident at a site in Knocklane, Dublin on 7
th
January 2015. The alleged accident came about in circumstances where the services of Coras
had been retained by Northstone (NI) Limited, which company had itself been retained by Irish
Water to install water meters nationwide. It is a matter of public knowledge that the nationwide
installation of such meters occasioned a degree of public disquiet. As a result, Mr O'Connor
claims, the area where the installation works were being carried out at Knocklane had been
carefully cordoned off by the erection of barriers for the protection of pedestrians and also, in
all the circumstances presenting, for the protection of workers.
3.
Mr O'Connor maintains that on the day of the alleged accident the prevailing weather
conditions were very windy and that, as a result, a number of the pedestrian barriers around the
area where crew members were working were blown over. He claims that the Northstone site
engineer had directed that the barriers were required at all times to be in place and that, as a
consequence, a number of Coras workers, including Mr O'Connor, had been directed to re-
3
erect the fallen barriers and secure them with sandbags. It was while Mr O'Connor was engaged
in this last activity that the alleged accident occurred which has given rise to the within
proceedings. Thus, he claims that while he was in the process of re-erecting the barriers a strong
gust of wind forced the barriers to move, causing Mr O'Connor to twist his thumb.
4.
Following this alleged incident, Mr O'Connor instituted personal injuries proceedings
against Coras. Coras, in turn, considers that Northstone was in control of the relevant site and
failed to exercise reasonable care regarding the directions/instructions given to Mr O'Connor
as regards engaging in the task of re-erecting the barriers. It was in this context that on 15
th
January 2018, an application was made by Coras to join Northstone as a third party. On 26
th
November 2018, Northstone in turn made application to have the third-party notice set aside;
that application was acceded to by the High Court and the within appeal against the decision
to accede has ensued.
III
Chronology of Joinder and Set-Aside Applications
5.
The following summary chronology is useful in understanding the sequencing and timing
of events as regards the joinder and related set-aside applications:
20.04.2015
Loss adjusters for Coras write to Farrans. (Farrans
is a wholly owned subsidiary of Northstone). The
letter states, inter alia, as follows:
"Our investigations to date suggest that
as your engineer directed the employees
of [Coras]...to re-erect the barriers, but
did not use a safe system of work...that
you are liable for the accident...".
[Note: In an affidavit sworn in the set-aside
proceedings, a Northstone insurance manager
averred, inter alia, as follows:
4
"I say and believe that the...letter [of
20.04.2015] constitutes incontrovertible
evidence that the Defendant had all the
information that it needed to make a
determination in relation to liability issue
between the Defendant and the Third
Party and had in fact made a
determination that the Third Party was
liable for the accident the subject matter
of the proceedings before the proceedings
had even been served on them."
In truth, on closer examination, the just-quoted
analysis, when one has regard to the express text of
the letter, does not hold good for at least three reasons.
First, the letter is not addressed to Northstone. Rather,
the loss adjusters appear to consider that the
addressee, a separate, subsidiary company (Farrans),
is liable for the accident. Second, the letter does not
purport to represent the final and concluded opinion
of the loss adjusters as to liability; rather it refers
simply to "Our investigations to date...". It is
therefore clear that the perceived position could
change, and in point of fact it did change, with
Northstone being the party that was eventually joined,
not Farrans. Third, the references in the letter are to
Farrans' engineer, not Northstone's engineer, so
again the loss adjusters were clearly focused on the
perceived liability of a different third party (Farrans)
at the time of the letter and thus had not "made a `
determination that the Third Party was liable for the
accident the subject matter of the proceedings before
the proceedings had even been served on them".]
5
28.10.2016.
Personal injuries summons issues.
08.11.2016.
Summons served. Appearance filed by Coras.
21.11.2016.
Notice for Particulars raised by Coras.
[Note: Following a reminder letter of 20
th
February
2017, the replies to particulars issued on 16
th
March
2017.]
31.01.2017
A strict application of the Rules of the Superior
Courts yields the conclusion that the application to
join Northstone ought to have been made by this date.
This is because of the combined operation of: (i)
O.16, r.1(3) RSC, which requires an application to be
made, in the circumstances here presenting, "within
twenty-eight days from the time limited for delivering
the defence"; and (ii) O.1A, r.8 RSC, which provides
that "A defence shall be delivered by each
defendant...within eight weeks of the service on such
defendant of the plaintiff's personal injuries
summons". Here, given that the personal injuries
summons was served on 8
th
November 2016, that
eight-week period would bring one to 3
rd
January
2017, and the 28-day period would then bring one to
31
st
January 2017. However, both parties are agreed
that in practice the timeframe for joinder, as
prescribed by the Rules, is more honoured in the
breach than the observance.
16.03.2017.
Replies to Particulars received.
6
[Note: Considerable information was revealed in the
replies as to certain prior injuries of the plaintiff and
the nature of his claim.]
April 2017
Copy of contract documentation sourced.
[Note: Counsel for Coras, when he was originally sent
the papers in November 2016, advised as to the
proposed joinder of Northstone but requested sight of
the contract entered into between Coras and
Northstone to see if there were any indemnity
arrangements in that contract that would negate the
need for joinder. In the written submissions for Coras
it is stated that "It took a little time for the contractual
documentation to be traced, and the same was
received in April of 2017 by [Coras']...solicitors",
presumably from Coras. This is a lengthy period of
delay in a context where counsel had expressly
advised that joinder of Northstone might be necessary
and hence where the s.27(1)(b) "as soon as is
reasonably possible" obligation would apply. As I
noted in a similar context in my own judgment in
at para. 4, to which the Court was referred by counsel
for Northstone, that earlier case being concerned with
circumstances where there had been a circa. four-
month delay in a client furnishing documents to its
advisors (here the delay was circa. 5 months):
"No matter how liberal an approach one
takes to interpreting the phrase `as soon
as is reasonably possible' it cannot be
read to embrace a defendant holding
documents until asked for them by its
7
lawyers and then taking somewhere in the
region of four months to provide them to
its lawyers",
at least, it might be added, where no good excuse has
been offered for such a period of delay, and here no
good excuse has been provided.]
18.05.2017.
Defence filed by Coras.
[Note: Sometime around this time Coras' managing
director appears to have raised a query with the
company's legal advisors concerning the substance of
the contract with Northstone and the indemnity
arrangements under same. It is not entirely clear how
this is relevant to the issue of whether Coras acted "as
soon as is reasonably possible" for the purposes of
s.27(1)(b) of the Civil Liability Act 1961, as
amended. It may be that the indemnity issue raised
was perceived as potentially negating any need to
bring a joinder application. However, if it was merely
a query regarding the excess on the policy that query
affords little or no justification for delay. In any event
a meeting was scheduled with counsel for 25
th
July
2017 but that meeting was subsequently cancelled.]
13.11.2017.
Motion to join Northstone issues.
[Note: In response to a query at the hearing as to why,
following the cancellation of the meeting in July it
took until November for the joinder motion to issue,
the response was that the managing director of Coras
had to swear up his affidavit evidence and that
thereafter the documentation was filed within days. If
8
one assumes from this answer that the documentation
was filed in early-November, that means that in a
best-case scenario from Coras' perspective, it took its
managing director from July 2017 to November 2017
to swear up affidavit evidence, it seems for no other
reason than that is the time it took.]
15.01.2018.
The last-mentioned motion succeeds.
15.02.2018.
Defendant files Third Party Notice and serves
Northstone.
04.04.2018.
Appearance to Third Party Notice entered.
7.09.2018.
Set-aside application issues.
[Note: In its written submissions, Northstone
acknowledges that a level of delay presents in the
bringing of the set-aside application, counsel
submitting, inter alia, as follows in this regard:
"7.1 The Respondent does not take
issue with [Coras']...submissions
that the Respondent had a
corresponding legal obligation to
issue the Motion to strike out the
Third-Party Notice as soon as was
reasonably possible.
7.2 The Respondent is indemnified
under a policy of insurance with
Zurich. There was a relatively short
period of delay between the time
that the Third-Party Notice was
served on the 15
th
February 2018 to
9
when the Respondents' solicitors
on the instructions of Zurich
entered an Appearance on the 4th
April 2018.
7.3. The Respondents' solicitors
briefed counsel in early-July 2018
for the purpose of providing an
Opinion. Counsel provided an
Opinion to the Respondents'
solicitors on the 11
th
July 2018 that
there were grounds to bring an
application to set the Third-Party
Notice aside due to delay. Counsel
also provided the Respondent's
solicitors with a draft notice of
motion and grounding affidavit for
an application to strike out the
Third-Party Notice on the 11
th
July
2018.
7.4 It was necessary for the
Respondent's solicitors to take
instructions from Zurich in relation
to whether it wished to bring the
Motion.
7.5 It then took a period of time to
obtain the sworn affidavit from a
director of the Respondent. It is
respectfully submitted that the
Court
should
take
into
consideration that the period in
question includes the month of
August.
7.6 While the Respondent accepts
that there was some delay in issuing
10
the Motion to strike out the Third-
Party Notice it is respectfully
submitted that the period of delay
was relatively short and was not
unreasonable
in
all
the
circumstances."
[Note: It is notable that the period complained of by
Northstone when it comes to Coras (the seven-month
period from April 2017 to November 2017) is roughly
similar to the period complained of by Coras when it
comes to Northstone (the seven-month period from
February 2018 to September 2018). Each side
maintains that despite the ostensible delay there was
some activity during the relevant period. There is a
remarkable delay on the part of Northstone of almost
five months from service of the third-party notice on
15
th
February 2018 to "early July" (whatever exactly
that means) to enquire of counsel whether a set-aside
application ought to be filed. The submissions are
vague as to how long it took to apprise, and get
instructions from, Zurich. That there was a delay in
getting a director to sign is delay of a type that
Northstone seeks to have counted against Coras
which likewise delayed in getting a director signature,
albeit of different durations. Moreover, while I accept
that there can be a degree of slow-down in August,
solicitors' firms do not completely close down at that
time and people generally remain contactable
electronically and via courier.]
26.11.2018.
Third-Party Notice set aside by High Court
11
6.
Allowing for the fact that in practice the strict timeframe for joinder under the rules is
more observed in the breach than the observance, it seems to me from the above-described
chronology that the latest date by which the joinder application should have been brought was
sometime around April 2017. At that time Coras' lawyers were in possession of the contractual
documentation, could assess whether or not an indemnity issue presented, and had the standing
advice since the previous November from counsel as to the ostensible need to join Northstone
to the proceedings. No good reason has been offered by Coras as to why it delayed from this
point onwards. Nor can it be concluded that in proceeding as it did Coras acted "as soon as is
reasonably possible". Even if one takes Coras' case at its absolute height and thus takes July
2017 as the date from which Coras could have acted and that is to be perhaps unduly generous
to Coras it still delayed until mid-November before commencing its joinder application. Even
allowing for some delay over the Summer vacation period, Coras again cannot be said, even
within this narrower timeframe to have acted "as soon as is reasonably possible".
IV
Ex tempore judgment of the High Court
7.
The learned trial judge delivered an ex tempore judgment. He recited the facts. He treated
with certain of the notable cases in this area. He did not treat with the judgment of the Supreme
Court in Boland v. Dublin City Council [2002] 4 IR 409, though I do not know whether that
case was opened to the learned judge.
8.
Notably, the learned trial judge does refer to delay by Northstone, (i) (at p.2 of his
judgment, lines 16-19) where he notes the seven-month period between the service of the third-
party notice and the subsequent issuance of the set-aside motion, and (ii) (at p.2, lines 27-28)
where his observation that "I am not particularly persuaded by the effects of the delay in issuing
this motion by the third party" (which appears to involve a finding that the learned trial judge
did not consider the delay on the part of Northstone in issuing the set-aside motion to be legally
objectionable and given the overall result of his judgment it seems implicit in any event that
he must have made some such finding). As will be seen, having due regard to the requirements
of s.27(1)(b) of the Act of 1961 and, more particularly, the judgment of the Supreme Court in
Boland, I respectfully depart from the judgment of the learned trial court judge insofar as
regards the non-objectionability, from a legal perspective, of Northstone's delay in bringing its
12
set-aside application. Specifically, it does not seem to me, when one has regard to the above
summary chronology and the observations that I make in the course of recounting same, that
Northstone can properly be said to have acted "as soon as is reasonably possible", for the
purposes of s.27(1)(b) of the Act of 1961, as amended, when it came to issuing its set-aside
motion in September 2018, following upon the service upon it of the third-party notice in
February of that year.
9.
By way of conclusion to his judgment, the learned trial judge made the orders indicated in
the opening paragraph above.
V
Grounds of Appeal
10.
By notice of expedited appeal received on 6
th
December 2018, Coras has advanced the
following grounds of appeal, viz. that the learned trial judge erred in fact and in law:
"(1)
...in setting aside the Third-Party Notice.
(2)
...in concluding that the Third-Party Notice had not been
served as soon as is reasonably possible.
(3)
...in ignoring the reasons set forth for the delay in serving
the Third-Party Notice as soon as reasonably possible, and
which delay was not in any way excessive and conformed
to normal litigation practice.
(4)
...by placing undue reliance on correspondence emanating
from the Defendant's loss adjusters to the Third Party's
loss adjusters, prior to the issuing of proceedings herein.
(5)
...in relying upon the decision in Clúid Housing
considering that the factual situation herein required the
13
Defendant to issue the Third Party Notice within the time
as envisaged in Order 16, Rule 1(3) and/or that there were
any circumstances which required the Defendant to move
with undue haste.
(6)
...in enquiring and considering whether the Defendant
would seek to issue separate contribution proceedings
against the Third Party herein, in the event that the Third-
Party Notice was set aside.
(7)
...in
contemplating
that
separate
`contribution'
proceedings could be issued as against the Third Party,
thereby resulting in a multiplicity of actions as opposed to
having all actions heard within the one set of proceedings.
(8)
...in failing to give any consideration to the delay on the
part of the Third Party in bringing the application herein to
set aside the Third-Party Notice, in circumstances when it
itself was served with the Third-Party Notice on the 15
th
of
February, 2018, and did not issue the Motion to set aside
the Third Party Notice until the 7
th
of September, 2018."
11.
In his written submissions to this Court, counsel for Coras distils the grounds of appeal
into three key points, viz:
"(i)
The learned trial judge erred in fact and in law in
concluding that the Third-Party Notice had not been served
as soon as reasonably possible.
(ii)
The learned trial judge erred in fact and in law in
considering whether [Coras]...if the Court set aside the
Third-Party Notice, would bring an application for
separate contribution proceedings. This is a matter which
14
should not have been a consideration in the decision to set
aside the Third-Party Notice.
(iii)
The learned trial judge did not consider that
[Northstone]...itself had delayed in bringing the motion to
set aside the Third-Party Notice".
VI
Principal Law Applicable
i. General.
12.
The key legal provisions raised at the hearing of the within appeal are ss.27 and 31 of the
Act of 1961, as amended, and O.16, r.1(3) RSC.
ii. Sections 27 and 31.
13.
Sections 27(1) and 31 of the Act of 1961, both of which sit in Chapter II of the Act of 1961
("Contribution between concurrent wrongdoers") provide as follows:
"Procedure for claiming contribution.
27. (1) A concurrent wrongdoer who is sued for damages or for
contribution and who wishes to make a claim for
contribution under this Part--
(a) shall not, if the person from
whom he proposes to claim
contribution is already a
party to the action, be entitled
to claim contribution except
by a claim made in the said
action, whether before or
15
after judgment in the action;
and
(b) shall, if the said person is not
already a party to the action,
serve a third-party notice
upon such person as soon as
is reasonably possible and,
having served such notice, he
shall not be entitled to claim
contribution except under the
third-party procedure. If such
third-party notice is not
served as aforesaid, the court
may in its discretion refuse to
make
an
order
for
contribution against the
person
from
whom
contribution is claimed.
...
Limitation of actions for contribution.
31.
An action may be brought for contribution within the same
period as the injured person is allowed by law for bringing
an action against the contributor, or within the period of
two years after the liability of the claimant is ascertained
or the injured person's damages are paid, whichever is the
greater."
[Emphasis added].
16
14.
The contention was made for Coras at the hearing of the within proceedings that, in effect,
the two-year period referred to in s.31 ought to be seen as an outlier against which the obligation
in s.27(1)(b) to "serve a third-party notice...as soon as is reasonably possible". Two problems,
it seems to me, arise with this contended-for interpretation:
first, there is nothing in the express text of the Act which
suggests that the Oireachtas saw the two-year period in s.31
as being in any way connected with the obligation in
s.27(1)(b) to "serve a third-party notice...as soon as is
reasonably possible".
second, it seems to me that the two periods referred to in ss.
27 and 31 are concerned with altogether different matters.
The two-year period in s.31 relates to the maximum time
permitted for the commencement of proceedings. The "as
soon as is reasonably possible" period in s.27(1)(b)
concerns the pace at which steps are to be taken in
proceedings post-commencement. I do not see that the
assessment of what is a "reasonably possible" timeframe
within which to serve a third-party notice falls ever to be
done by reference to a limitation period which, in effect,
becomes redundant once proceedings are commenced
within the outside limit of same.
iii. Order 16, rule 1(3).
15.
Order 16, rule 1(3) of the Rules of the Superior Courts, so far as relevant to the within
proceedings, provides as follows:
"Application for leave to issue the third-party notice shall, unless
otherwise ordered by the Court, be made within twenty-eight days from
the time limit for delivering the defence...".
17
16.
If O.16, r.1(3) RSC were not so rigorous in its terms that it falls in practice to be honoured
more in the breach than the observance, then a court could reasonably factor into its conclusions
that a failure to comply with O.16, r.1(3) pointed to a failure to serve "as soon as is reasonably
possible". However, given that O.16, r.1(3) is so rigorous in terms of timing that the parties are
agreed that it is honoured more in the breach than the observance (which suggests that it is not
adhered to very much at all), this sequential reasoning, whereby a breach of O.16, r.1(3) points
to a breach of s.17(1)(b), becomes impossible. Hence, not because of any primacy of statute
over the rules of court but rather because of the dissatisfying position which presents that O.16,
r.1(3) is so rigorous that it is, in practice, honoured more in breach than observance, I am, at
this time, and because of the aforesaid practice, essentially driven (a) to confine my attentions
in the within appeal to the following question: `Was service of the third-party notice effected
"as soon as is reasonably possible"?' and (b) to leave aside the question whether there was
compliance with the rules, which compliance, all else being equal, would, in a situation where
general practice did not so sharply deviate from what the rules require, likely be of assistance
in determining whether there had been compliance with s.27(1)(b).
17.
Were it not for existing case-law in this area, one might perhaps approach the question at
point (a) above on the basis that (i) one cannot serve a third-party notice until one has leave to
serve it, (ii) here that leave was obtained on 15
th
January 2018 and service was effected one
month later, and (iii) a court would be justified on the facts presenting that such service was
effected `as soon as was reasonably possible'. However, the courts have for many years brought
a different construction to bear. So, for example in a very early case, The Board of Governors
of St Laurence's Hospital v. Staunton [1990] 2 I.R. 31 (SC), Finlay C.J. elides any distinction
that might be made, in the context of s.27(1), between the process of making application for
leave to serve a third-party notice and the service of such notice once obtained, observing, for
example, at p. 36, as follows:
"I am quite satisfied upon the true construction of that sub-section that
the only service of a third-party notice contemplated by it and,
therefore, the only right of a person to obtain from the High Court
liberty to serve a third-party notice claiming contribution against a
person who is now already a party to the action, is a right to serve a
third-party notice as soon as is reasonably possible. A defendant in
an action seeking to claim contribution against a person who is not a
18
party to the proceedings cannot serve any third-party notice at any
other time, other than as soon as is reasonably possible.
In my view, the application brought after the conclusion of the action
by the plaintiff against the defendants for liberty to serve a third-party
notice could not, under any circumstances, be construed as an
application to serve a third-party notice as soon as was reasonably
possible....
In these circumstances, serving a third-party notice on the third party
after the conclusion of the plaintiff's claim is not serving it as soon as
is reasonably possible."
18.
In truth, the foregoing establishes something of a moving target for litigants seeking to
claim a third-party contribution: unless they act with what, at the moment of action, is an
unknown degree of haste, they cannot be certain that a court coming to matters at some future
time with the benefit of hindsight will not find that it failed to act "as soon as is reasonably
possible" for the purposes and within the meaning of s.27(1)(b). That being so, it seems to me
that the difficulty which presents in this regard for a litigant hoping to seek a third-party
contribution (trying to anticipate what a future court will consider reasonable when it looks to
the past) ought properly to be offset by a certain generosity of spirit on the part of the courts
when it comes to determining whether or not there has been compliance with s.27(1)(b).
VII
Case-Law
i. General.
19.
There was little, if any, divergence between the parties as to the law as iterated in a number
of prominent cases over the years. Where the parties differed was as to the end-result at which
the Court should arrive following an application of relevant legal principle. I proceed now to
consider various cases that were opened to the Court at the appeal-hearing.
ii. Connolly v. Casey
(Unreported, High Court, Kelly J., 12 June 1998)
19
20.
This was a strike-out application, treated by the High Court as an application made under
O.16 RSC. It was brought in the context of professional negligence proceedings issued against
solicitors who had in turn sought to join a barrister to those proceedings. The basis upon which
the third party sought a set-aside order was the alleged failure on the part of the defendants to
comply with the "as soon as is reasonably possible" requirement in s.27(1)(b) of the Act of
1961, as amended. Although the High Court in Connolly held, in a later-reversed judgment,
that the third-party notice in issue had not been served "as soon as is reasonably possible", it
notably observed, inter alia, as follows:
"The Third-Party places reliance upon the Defendants' failure to
comply with the provisions of Order 16 Rule 1(3). He is of course
entitled to do so. However, experience indicates that only a tiny
percentage of applications to join a Third Party are made within the
time prescribed by this rule. It would, in my view, require very
exceptional circumstances for the Court to accede to an application of
this sort if the only complaint related to a failure to observe strict
compliance with the provisions of this rule."
21.
It is regrettable that almost a quarter of a century after the High Court expressly adverted
in Connolly to general non-compliance with O.16, r.1(3), this Court should continue to be
presented with submissions in which all the parties are agreed that the time-limit in O.16, r.1(3),
a rule of court established by secondary legislation, continues to be honoured more in the
breach than the observance. It does little for respect for the rule of law or for the rules of court
if those rules establish time constraints which are so rigorous that they are more honoured in
the breach than the observance, with the courts expected to tolerate what appears to be a general
divergence in practice from the timescale that O.16, r.1(3) ordains.
22.
In the course of the hearing of the within proceedings Coras asserted, and Northstone
denied, that what was in issue in these proceedings was a failure to observe `strict' compliance
with the provisions of O.16, r.1(3). Given that, by common agreement, O.16, r.1(3) is more
honoured in the breach than the observance, I do not see how `strict' non-compliance with
O.16, r.1(3), a rule established by secondary law, could ever, given the general professional
20
practice that continues to present, be counted against a party, including in a determination as
to whether there has been compliance with s.27(1)(b).
iii. Connolly v. Casey
23.
This was a successful appeal against the above-considered decision of the High Court. The
case is notable, inter alia, for the following observations of Denham J., as she then was. at p.
351:
"[I]n considering whether the third-party notice was served as soon as
is reasonably possible - the whole circumstances of the case and its
general progress must be considered. The clear purpose of the
subsection is to ensure that a multiplicity of actions is avoided....It is
appropriate that third-party proceedings are dealt with as part of the
main action. A multiplicity of actions is detrimental to the
administration of justice, to the third party and to the issue of costs. To
enable a third party to participate in the proceedings is to maximise his
rights-he is not deprived of the benefit of participating in the main
action."
24.
A number of points arise from the above.
25.
First, as was anticipated by the decision of the Supreme Court in St Laurence's, Denham
J. makes clear that in assessing whether there has been compliance with the "as soon as is
reasonably possible" requirement in s.27(1)(b) of the Act of 1961, as amended, "the whole
circumstances of the case and its general progress must be considered".
26.
Second, as Denham J. states, "[t]he clear purpose of [s.27(1)(b)]...is to ensure that a
multiplicity of actions is avoided". Additionally, if a court considers that there has been a breach
of the "as soon as is reasonably possible" obligation in s.27(1)(b) then, per the same
subsection, "the court may in its discretion refuse to make an order for contribution against
the person from whom contribution is claimed". Given that this possibility is open to a court
and given the "clear purpose" of s.27(1)(b), as indicated by Denham J., it would seem that a
21
certain premium should attach to avoiding a multiplicity of proceedings. This is because in
avoiding a multiplicity of proceedings, i.e. by allowing an action for contribution to continue,
a court which so allows does not thereby obviate the possibility that the court which hears the
substantive proceedings may elect to invoke the discretion to refuse to make an order for
contribution against the person from whom contribution is claimed.
27.
Third, Denham J. points to the fact that "To enable a third party to participate in the
proceedings is to maximise his rights-he is not deprived of the benefit of participating in the
main action." However, I do not understand Denham J. to be asserting in this regard that a
court should place a greater premium on a third party's rights than s/he or it places on same.
So where, as here, a third party (Northstone) expressly indicates that it does not wish to
participate in the main action, it does not seem to me that, absent e.g., shareholder or directorial
impropriety (none of which is even alleged here) it is for the court to second-guess Northstone
as to where its own best interests lie.
(vii) Boland v. Dublin City Council
28.
This was a successful appeal against a decision of the High Court that had set aside a
third-party notice. In the course of his judgment for the court, Hardiman J. observed, inter
alia, as follows, at pp.413-14:
"O.16 of the Rules of the Superior Courts provides at r. 1(3):-
`Application for leave to issue the third-party notice shall,
unless otherwise ordered by the Court, be made within
twenty-eight days from the time limited for delivering the
defence or, where the application is made by the defendant
to a counterclaim, the reply.'
I agree with the remarks of Kelly J. in SFL Engineering Ltd v. Smyth
Cladding Systems Ltd. (Unreported, High Court, Kelly J., 9th May,
1997) as follows:-
22
`This provision of the Rules of the Superior Courts gives
expression in a concrete form to the temporal imperative
contained in s. 27(1)(b) of the Act of 1961. It is to be noted
that the Rules of the Superior Courts require the
application to be made not within 28 days from the delivery
of the defence in the proceedings but within 28 days from
the time limited for delivering the defence.'
It is also to be noted that under O. 16, r. 8(3) third party proceedings
may at any time be set aside by the court. This is the jurisdiction which
is invoked on the present application.
In Board of Governors of St Laurence's Hospital v. Staunton [1990] 2
I.R. 31 the Supreme Court considered s. 27 of the Act of 1961. Referring
specifically to s. 27(1)(b) Finlay C.J. said at p. 36:-
`I am quite satisfied upon the true construction of that sub-
section that the only service of a third-party notice
contemplated by it and, therefore, the only right of a person
to obtain from the High Court liberty to serve a third-party
notice claiming contribution against a person who is not
already a party to the action, is a right to serve a third party
notice as soon as is reasonably possible. A defendant in an
action seeking to claim contribution against a person who
is not a party to the proceedings cannot serve any third-
party notice at any other time, other than as soon as is
reasonably possible.'
This view has been followed, and its application to various specific
circumstances considered, in a number of decisions of the High
Court....
23
In relation to a motion to set aside a third-party notice, in Carroll v.
Fulflex International Co. Ltd. (Unreported, High Court, Morris J., 18th
October 1995), Morris J. said:-
`A motion to set aside a third party notice should only be
brought before that defendant has taken an active part in
the third party proceedings and I believe that an
application of this nature must itself be brought within the
time-scale identified in s. 27(1) of the Civil Liability Act,
1961, that is to say, 'as soon as is reasonably possible'.
While that limitation is not spelt out in the Act, I believe that
a fair interpretation of the Act must envisage that a person
seeking relief under s. 27 would himself move with
reasonable speed and certainly before significant costs and
expenses have been occurred in the third-party
procedures.'
In Tierney v. Sweeney Ltd. (Unreported, High Court, Morris J, 18th
October, 1995) Morris J. said at p. 4:-
`I am of the view that where it is intended to make the case
that a defendant has failed to move the court to set aside an
order giving a defendant liberty to serve a third party
notice, such an application should be brought with
reasonable expedition and in accordance with the time
scale reflected in s. 27(1)(b) of the Civil Liability Act, 1961,
that is "as soon as reasonably possible" and save in
exceptional circumstances should not extend beyond the
point where a defence is delivered to the third party
statement of claim.'
I respectfully agree that the statutory requirement to move for liberty to
issue a third-party notice, `as soon as is reasonably possible', should
be regarded as applying, also, to the bringing of an application to set
24
aside such a notice. While it is difficult to imagine circumstances in
which a delay by a third party until after he has himself delivered a
defence to the third party statement of claim could be justified, it by no
means follows that the mere fact that he has not yet delivered a defence
means that the application to set aside has been brought as soon as
reasonably possible.
...
Just as the onus of justifying any delay in seeking liberty to issue the
third-party notice devolves on the defendant, the onus of justifying delay
in bringing the motion to set such notice aside devolves on the third
party. Since the first third party is the moving party here, its delay falls
to be considered first."
(iv) Greene v. Triangle Developments Ltd.
29.
This appears to be the first significant decision of this Court in what was a successful
appeal against a decision in the High Court by Clarke J., as he then was, to strike out a third-
party notice. In the course of her judgment, Finlay Geoghegan J. observed, inter alia, as
follows:
"11.
The starting point of any consideration of the proper
approach to determining an application such as was before
the High Court to set aside a third party notice is section
12.
It is to be noted that the Act itself does not require either
such a person to obtain the leave of the High Court to do
so, nor does it require the third-party notice expressly to be
issued out of the central office. However, Order 16 of the
Rules of the Superior Courts does so require and it is
through this regulatory framework that Section 27 has been
25
implemented. Order 16, Rule 1 requires an application to
the High Court for liberty to issue and does seem to require
that the third-party notice is issued out of the central office.
...
14.
In considering the proper approach to determining whether
or not the third party notice, on the facts of this case, was
served as soon as is reasonably possible, it appears that
there are three judgments of the Supreme Court which must
be considered in order to ascertain whether the approach
contended for on behalf of the defendants or the third party
is correct.
15.
The starting point is the decision of the Supreme Court in
The Board of Governors of St. Laurence's Hospital v.
Staunton [1990] 2 I.R. 31 and the oft quoted passage from
the then Chief Justice Finlay at page 36, where he said of
Section 27(1)(b):
`I am quite satisfied upon the true construction
of that subsection that the only service of a third
party notice contemplated by it and, therefore,
the only right of a person to obtain from the
High Court liberty to serve a third party notice
claiming contribution against a person who is
not already a party to the action, is a right to
serve a third party notice as soon as is
reasonably possible.'
16.
In accordance with that identified approach, the net
question which has to be decided in a case such as the
present, is whether the service of the third-party notice in
26
the instant case was effected as soon as was reasonably
possible.
17.
The next judgment of the Supreme Court to which I wish to
refer is the judgment delivered by Mr. Justice Murphy in
the single judgment with whom the other members of the
court agreed. There is a lengthy passage from Mr. Justice
Murphy which sets out, if I may say so, so well the purpose
of the section which reads as follows at p. 55:-
`There can be little doubt as to what that
scheme and purpose was. The legislature was
understandably desirous of avoiding a
multiplicity of actions. Instead of defendants
against whom awards had been made
instituting further proceedings against other
parties liable to them in respect of the same set
of facts - and indeed those defendants in turn
perhaps instituting even more proceedings
against others - the Oireachtas sought to
establish a situation in which the rights and
liabilities of all parties arising out of a
particular set of circumstances would be
disposed of in the same proceedings. It is for
that reason that a defendant was given the
right, with the approval of the court, to serve a
third-party notice on a potential defendant so
that any claim against him could be disposed of
at the same time as that of the claim against the
actual defendant. This procedure had
attractions for all of the parties and was
desirable in the public interest. Nevertheless,
the legislature did not preclude an unsuccessful
27
defendant in the original proceedings from
instituting a substantive action against some
other party who the actual defendant contended
was liable to him either in tort or in contract.
What the Act of 1961 did provide, was that
where the actual defendant in the original
proceedings failed to avail of the third-party
procedure by serving the third-party notice `as
soon as is reasonably possible' and resorted to
his original cause of action, the relief which he
might have claimed therein was subject to the
statutory discretion of the court to refuse to
make an order for contribution in his favour.'
18.
I also wish to draw attention to, so as to explain my
reasoning, what Murphy J. later said in relation to the onus
in respect of an application for leave. At page 57 he stated:
`The onus is on the person seeking leave to
serve the third-party notice to prove the
application is brought within the statutory time
limit.'
19.
He then referred to the view expressed by Mr. Justice
Barron in the High Court in McElwaine v. Hughes
(Unreported, High Court (Barron J.) 30th April, 1997) and
quoted him as saying, at page 6:
`Since the obligation is on the defendant to
serve the notice within a reasonable time, it
seems to me that the onus of proof of showing
that the delay, if delay there is, was not
unreasonable is on the defendant.'
28
20.
Then Mr. Justice Murphy, in Molloy, went on to deal with
what he perceived to be the explanation the second named
defendant had put forward to justify the delay in that
particular case. And I think in all subsequent decisions
there is no departure from the position that where there
does appear to be a delay, the onus is on the defendant to
explain and justify the delay.
21.
However, it appears to me that the Supreme Court made a
further important qualification to that approach in the case
from Mr. Justice Kelly in the High Court where he had set
aside a third-party notice, essentially because he was not
satisfied by the explanations given to him of the delays
which had taken place in that case.
22.
The single judgment of the Supreme Court, with whom the
other judges agreed, in Connolly v. Casey was delivered by
Mrs. Justice Denham, as she then was, and she considered
the explanations given by the trial judge and quoted from
them at page 350 of the judgment.
`Two explanations were given:-
(1) that the defendants had to await the delivery
of replies to particulars before they could move
to join the third party; and
(2) the necessity to obtain a statement from Mr.
Murphy prior to the bringing of an application
to join the third party.
In relation to the first explanation the learned
trial judge stated, having analysed the replies
to particulars:-
29
`I find it difficult to ascertain the information
contained in this reply which added to the
defendants' state of knowledge so as to make
possible what had previously not been possible,
namely, the preparation of the application to
join the third party. I do not see that these
replies materially altered the defendants' state
of knowledge from what it had been before in
respect of any matter of relevance concerning
the joinder of a third party. Accordingly, on this
aspect of the matter I do not consider that the
defendants have provided a satisfactory
explanation for the delay in question.''
23.
Having quoted from the trial judge, Denham J. then said:
`This was the wrong test. The test was whether
it was reasonable to await the replies to
particulars. Whether the replies did or did not
materially alter the defendant's state of
knowledge is not the test.'
24.
She went on to deal with the particular facts of that case.
Later in the judgment, at page 351, she stated:
`In analysing the delay - in considering whether
the third-party notice was served as soon as is
reasonably possible - the whole circumstances
of the case and its general progress must be
considered. The clear purpose of the subsection
is to ensure that a multiplicity of actions is
avoided; see Gilmore v. Windle [1967] IR 323.
It is appropriate that third party proceedings
are dealt with as part of the main action. A
30
multiplicity of actions is detrimental to the
administration of justice, to the third party and
to the issue of costs. To enable a third party to
participate in the proceedings is to maximise
his rights; he is not deprived of the benefit of
participating in the main action.'
Denham J. having considered the facts of that case, allowed
the appeal.
25.
In my view, following the approach of the Supreme Court
in Connolly -v- Casey, it is incumbent on a trial judge, when
faced with an application such as the present before the
High Court, to look not only at the explanations which were
given by a defendant for any purported delay, but also to
make an objective assessment as to whether, in the whole
circumstances of the case and its general progress, the third
party notice was or was not served as soon as is reasonably
possible."
(vi) Clúid Housing Association v. O'Brien and Ors.
30.
This was a successful set-aside application which was opened to the Court, in which the
trial judge (Murphy J.) observed, inter alia, as follows:
"29.
On the authorities the law is clear. A third-party notice must
be served as soon as is `reasonably possible'. What is
" reasonably possible is to be assessed in the context of the
facts of each particular case. As the respondent has pointed
out a lapse of years before service of a third-party notice
may be excusable depending on the circumstances of a
particular case. The more complex the case the more
31
forgiving a Court may be in determining when it was
`reasonably possible' to issue a third-party notice.
...
37.
In the Court's view the statement of claim contained
sufficient particulars to permit this respondent to decide
whether to join the subcontractor as a third-party....
38.
In the circumstances of this case the Court is not persuaded
that the respondent needed anything more than the
statement of claim to decide on the appropriateness of
joining the third party. Indeed the Court goes so far as to
suggest that this may be one of the few cases in which a
requirement to comply with the twenty-eight day time limit
set out in O. 16r. 1(3) might be warranted.
...
40.
Finally the respondent submitted that the applicant has
itself been guilty of delay in bringing its application to set
aside the respondent's third-party notice and for that
reason the court should not set it aside. It is clear from the
decision of the Supreme Court in Boland v. Dublin City
Council [2002] 4 IR that just as a defendant must act as
soon as `reasonably possible' in applying to join a third
party so must a third party act as soon as `reasonably
possible' in seeking to set it aside."
(v) Kenny v. Howard & Anor.
31.
This was a successful appeal to this Court against a refusal by the court below to set aside
a third-party notice upon application being made that the defendant had failed to serve the third-
32
party notice as soon as was reasonably possible. In a majority judgment for the Court, Ryan P.
observed, inter alia, as follows:
"17.
The purpose of s. 27(1)(b) of the Act is to ensure as far as
possible that all legal issues arising out of an incident are
disposed of within the same set of proceedings. That does
not mean that all the issues have to be dealt with
simultaneously; that may depend on appropriate orders as
to the time and mode of trial of the various issues. At the
same time as ensuring that all the issues are comprised in
the one set of proceedings, the other goal of the provision
is to avoid unnecessary delay of the plaintiff's action. It
seems to me that this is the essential logic of the
requirement that the proceedings be joined in the same
action and of the specification as to time.
18.
Supreme Court per Denham J. (as she then was) said:
`The clear purpose of the subsection is to
ensure that a multiplicity of actions is avoided;
see Gilmore v. Windle [1967] I.R. 323. It is
appropriate that third-party proceedings are
dealt with as part of the main action. A
multiplicity of actions is detrimental to the
administration of justice, to the third party and
to the issue of costs. To enable a third party to
participate in the proceedings is to maximise
his rights - he is not deprived of the benefit of
participating in the main action.'
To this, I would add the other object of the provision insofar
as it restricts the time to what is reasonably possible which
is to protect the plaintiff's position at the same time as
33
ensuring that all the appropriate other parties are before
the court in the same set of proceedings.
19.
Supreme Court per Murphy J. said:
`The statute is not concerned with physical
possibilities but legal and perhaps commercial
judgments. Proceedings cannot and should not
be instituted or contributions sought against
any party without assembling and examining
the
relevant
evidence
and
obtaining
appropriate advice thereon. It is in that context
that the word `possible' must be understood.
Furthermore, the qualification of the word
`possible' by the word `reasonable' gives a
further measure of flexibility.'
But the court said that:
`... the quest for certainty or verification must
be balanced against the statutory obligation to
make the appropriate application "as soon as
reasonably possible".'
20.
The court, in Connolly v. Casey, emphasised that `in
analysing the delay in considering whether the third-party
notice was served as is soon as is reasonably possible the
whole circumstances of the case and its general progress
must be considered' (Denham J.) That statement was
court, when looking at an application to set aside a third
34
party notice should not only look at the explanations given
by the defendant for the delay `but also to make an objective
assessment as to whether, in the whole circumstances of the
case and its general progress, the third party notice was or
was not served as soon as is reasonably possible'.
21.
The reference to all the circumstances in Connolly v. Casey
and the import of the other citations is that it is proper in
an appropriate case to allow time for a party to get expert
advice or to wait for further and better particulars of
something arising in the pleadings. It is impossible to
catalogue all the exigencies that may arise in a case that
take time to be satisfactorily addressed. Reasonably
possible means what it says."
VIII
Statement of Key Legal Principles
32.
Given the abundance of case-law that now exists in this area, it may assist if I set out a
statement of key legal principles identifiable in the above-considered case-law. Such a
statement follows, with the principles listed in order of the court that identified them:
Supreme Court
[1]
"[I]n considering whether the third-party notice was served
as soon as is reasonably possible the whole circumstances
of the case and its general progress must be considered."
(Connolly, at p. 351).
[2]
"The clear purpose of the subsection is to ensure that a
multiplicity of actions is avoided....It is appropriate that
third-party proceedings are dealt with as part of the main
action. A multiplicity of actions is detrimental to the
35
administration of justice, to the third party and to the issue
of costs." (Connolly, at p. 351).
[Note: Additionally, if a court considers that there has been
a breach of the "as soon as is reasonably required"
obligation in s.27(1)(b) then, per the same subsection, "the
court may in its discretion refuse to make an order for
contribution against the person from whom contribution is
claimed". Given that this possibility is open to a court and
given the "clear purpose" of s.27(1)(b), as indicated by
Denham J., it would seem, for the reason stated in para.26
above, that a certain premium should attach to avoiding a
multiplicity of proceedings.]
[3]
"To enable a third party to participate in the proceedings is
to maximise his rights-he is not deprived of the benefit of
participating in the main action." (Connolly, at p. 351).
[Note: I do not understand Denham J. to be asserting in this
regard that absent e.g., an allegation that some form of
impropriety or something untoward presents, a court should
place a greater premium on a third party's rights than s/he
or it places on same.]
[4]
Order 16, rule 1(3) RSC "gives expression in a concrete
form to the temporal imperative contained in s. 27(1)(b) of
the 1961 Act." (Boland, at p. 413, relying on SFL
Engineering Ltd v. Smith Cladding Systems Ltd
(Unreported, High Court, Kelly J., 9
th
May 1997).
[5]
"It is to be noted that the Rules of Court require the
application to be made not within 28 days from the delivery
of the defence in the proceedings but within 28 days from
36
the time limited for delivering the defence" (Boland, at p.
413, relying on SFL).
[6]
"Under Order 16, rule 8(3) third party proceedings may at
any time be set aside by the court." (Boland, at p. 413).
[7]
"[U]pon the true construction of that subsection that the
only service of a third party notice contemplated by it and,
therefore, the only right of a person to obtain from the High
Court liberty to serve a third party notice claiming
contribution against a person who is not already a party to
the action, is a right to serve a third party notice as soon as
is reasonably possible. A defendant in an action seeking to
claim contribution against a person who is not a party to
the proceedings cannot serve any third-party notice at any
other time, other than as soon as is reasonably possible."
(Boland, at p. 413, relying on St Laurence's).
[8]
"A motion to set aside the third party notice should only be
brought before that defendant has taken an active part in
the third party proceedings" (Boland, at p. 413, referring
with approval to the judgment of Morris J. in Carroll v.
Fulflex International Co. Ltd. (Unreported, High Court,
Morris J., 18
th
October, 1995).
[9]
A set-aside application "must itself be brought within the
time scale identified in s.27(1)...that is to say `as soon as is
reasonably possible'. While that limitation is not spelt out
in the Act, I believe that a fair interpretation of the Act must
envisage that a person seeking relief under s.27 would
himself move with reasonable speed and certainly before
significant costs and expenses have been incurred in the
third-party procedures." (Boland, at pp. 413-414, referring
with approval to the judgment of Morris J. in Carroll v.
37
Fulflex (Unreported, High Court, Morris J., 18
th
October
1995).
[10]
"[A set-aside] application `should be brought with
reasonable expedition and in accordance with the time
scale reflected in s.27(1)(b)...that is as soon as reasonably
possible and save in exceptional circumstances should not
extend beyond the point where a defence is delivered to the
third party statement of claim." (Boland, p.414, referring
with approval to the judgment of Morris J. in Tierney v.
Sweeney Ltd. (Unreported, High Court, Morris J., 18
th
October 1995)).
[11]
"I respectfully agree that the statutory requirement to move
for liberty to issue a third-party notice, `as soon as
reasonably possible', should be regarded as applying, also,
to the bringing of an application to set aside such a
notice. While it is difficult to imagine circumstances in
which delay by a third party until after he has himself
delivered a defence to the third party statement of claim
could be justified, it by no means follows that the mere fact
that he has not yet delivered a defence means that the
application to set aside has been brought as soon as
reasonably possible." (Boland, p.414).
[12]
"
Just as the onus of justifying any delay in seeking liberty
to issue the third-party notice devolves on the defendant,
the onus of justifying delay in bringing the motion to set
such notice aside devolves on the third party....[Where the]
third party is the moving party...its delay falls to be
considered first."
(Boland, p.414).
Court of Appeal
38
[13]
"The starting point of any consideration of the proper
approach to determining an application such as was before
the High Court to set aside a third party notice is section
para.11)
[14]
"[T]he Act [of 1961] itself does not require either such a
person to obtain the leave of the High Court to do so, nor
does it require the third-party notice expressly to be issued
out of the central office. However, Order 16 of the Rules of
the Superior Courts does so require and it is through this
regulatory framework that Section 27 has been
implemented." (Greene, at para.12).
[15]
Following on the decision of the Supreme Court in St.
Laurence's, "the net question which has to be decided in a
case such as the present, is whether the service of the third-
party notice in the instant case was effected as soon as was
reasonably possible." (Greene, at paras.15-16).
[16]
"The onus is on the person seeking leave to serve the third-
party notice to prove the application is brought within the
statutory time limit." (Greene, at para.18, quoting from the
judgment of Murphy J. in Molloy v. Dublin Corporation
[17]
Where there does appear to be a delay, the onus is on the
defendant to explain and justify the delay. (Greene, at para.
20).
[18]
"In analysing the delay - in considering whether the third-
party notice was served as soon as is reasonably possible -
the whole circumstances of the case and its general
progress must be considered. The clear purpose of the
39
subsection is to ensure that a multiplicity of actions is
avoided....It is appropriate that third party proceedings are
dealt with as part of the main action. A multiplicity of
actions is detrimental to the administration of justice, to the
third party and to the issue of costs. To enable a third party
to participate in the proceedings is to maximise his rights;
he is not deprived of the benefit of participating in the main
action." (Greene, at para. 24, relying on the judgment of
Denham J. in Connolly v. Casey, at p. 351)
[19]
"[I]t is incumbent on a trial judge, when faced with an
application such as the present...to look not only [a] at the
explanations which were given by a defendant for any
purported delay, but [b] also to make an objective
assessment as to whether, in the whole circumstances of the
case and its general progress, the third party notice was or
was not served as soon as is reasonably possible." (Greene,
at para. 25).
[20]
"The purpose of s. 27(1)(b)...is to ensure as far as possible
that all legal issues arising out of an incident are disposed
of within the same set of proceedings. That does not mean
that all the issues have to be dealt with simultaneously"
(Kenny, at para. 17)
[21]
"At the same time as ensuring that all the issues are
comprised in the one set of proceedings, the other goal of
the provision is to avoid unnecessary delay of the plaintiff's
action." (Kenny, at para. 17).
[22]
To Denham J.'s observation in Connolly v. Casey that the
clear purpose of s.27(1)(b) is to ensure that a multiplicity of
actions is avoided, Ryan P. added that "[T]he other object
of the provision insofar as it restricts the time to what is
40
reasonably possible which is to protect the plaintiff's
position at the same time as ensuring that all the
appropriate other parties are before the court in the same
set of proceedings." (Kenny, at para. 18).
[23]
"The [Act of 1961]...is not concerned with physical
possibilities but legal and perhaps commercial judgments.
Proceedings cannot and should not be instituted or
contributions sought against any party without assembling
and examining the relevant evidence and obtaining
appropriate advice thereon. It is in that context that the
word `possible' must be understood. Furthermore, the
qualification of the word `possible' by the word
`reasonable' gives a further measure of flexibility." (Kenny,
at para. 19, quoting from Murphy J. in Molloy v. Dublin
Corporation).
[24]
However, "the quest for certainty or verification must be
balanced against the statutory obligation to make the
appropriate application `as soon as reasonably possible'."
(Kenny, at para. 19, quoting from Murphy J. in Molloy v.
Dublin Corporation).
[25]
"[A] court, when looking at an application to set aside a
third party notice should not only look at the explanations
given by the defendant for the delay `but also to make an
objective assessment as to whether, in the whole
circumstances of the case and its general progress, the third
party notice was or was not served as soon as is reasonably
possible." (Kenny, at para. 20, relying on Connolly and
Greene).
[26]
"The reference to all the circumstances in Connolly v.
Casey and the import of the other citations is that it is
41
proper in an appropriate case to allow time for a party to
get expert advice or to wait for further and better
particulars of something arising in the pleadings. It is
impossible to catalogue all the exigencies that may arise in
a case that take time to be satisfactorily addressed."
(Kenny, at para. 21).
[27]
"Reasonably possible means what it says", i.e. each case
depends on its own facts. (Kenny, at para. 21).
High Court
[28]
"[A] lapse of years before service of a third-party notice
may be excusable depending on the circumstances of a
particular case." (Clúid at para. 29).
IX
Application of Principle to Appeal at Hand
33.
I turn now to apply the above-identified principles to the within appeal.
34.
Principle [1]: "[I]n considering whether the third-party notice was
served as soon as is reasonably possible the whole circumstances of the
case and its general progress must be considered." (Connolly, at p.
351).
35.
The learned trial judge proceeded in accordance with this principle.
36.
Principle [2]: "The clear purpose of the subsection is to ensure that a
multiplicity of actions is avoided....It is appropriate that third-party
proceedings are dealt with as part of the main action. A multiplicity of
actions is detrimental to the administration of justice, to the third party
and to the issue of costs." (Connolly, at p. 351).
42
37.
The learned trial judge expressly identified this objective and had due
regard to same.
38.
Principle [3]: "To enable a third party to participate in the proceedings
is to maximise his rights-he is not deprived of the benefit of
participating in the main action." (Connolly, at p. 351).
39.
Again, I do not understand Denham J. to be asserting in this regard that
absent e.g., an allegation that some form of impropriety or something
untoward presents, a court should place a greater premium on a third
party's rights than s/he or it places on same. Here, Northstone clearly
considers that it is in its own best interests not to participate in the main
action. It is not alleged that anything untoward or improper presents in
its taking that view of its own best interests, and the view taken is one
that it is legitimately open to Northstone to take.
40.
Principles [4]-[7] are noted; no further elaboration seems merited.
41.
Principle [8]: "A motion to set aside the third party notice should only
be brought before that defendant has taken an active part in the third
party proceedings" (Boland, at p. 413, referring with approval to the
judgment of Morris J. in Carroll v. Fulflex (Unreported, High Court,
Morris J., 18
th
October 1995)).
42.
Northstone has so proceeded.
43.
Principle [9]: A set-aside application "must itself be brought within the
time scale identified in s.27(1)...that is to say `as soon as is reasonably
possible'. While that limitation is not spelt out in the Act, I believe that
a fair interpretation of the Act must envisage that a person seeking
relief under s.27 would himself move with reasonable speed and
certainly before significant costs and expenses have been incurred in
the third-party procedures." (Boland, at p. 413, referring with approval
43
to the judgment of Morris J. in Carroll v. Fulflex (Unreported, High
Court, Morris J., 18
th
October 1995).
44.
I note the use of the imperative form ("must") in the above-quoted text
and that Hardiman J., for the Supreme Court, moves on to observe at
Boland, at p. 414, that "I respectfully agree that the statutory
requirement to move for liberty to issue a third-party notice, `as soon
as reasonably possible' [an obligation which is also expressed in the
imperative], should be regarded as applying, also, to the bringing of an
application to set aside such a notice." Thus Hardiman J. gives the
imprimatur of the Supreme Court to the observations of Morris J. in the
High Court, transforming them into observations that are binding on
this Court and/or applies the mandatory requirement of s.27(1)(b) to the
party bringing a set-aside motion. In this regard, as mentioned
previously above, it is notable that the period complained of by
Northstone when it comes to Coras (the seven-month period from April
2017 to November 2017) is roughly similar to the period complained of
by Coras when it comes to Northstone (the seven-month period from
February 2018 to November 2018). Each side maintains that despite the
ostensible delay there was some activity during the relevant period.
There is a remarkable and unexplained delay on the part of Northstone
as to why it took almost five months for Northstone (from service of the
third-party notice on 15
th
February 2018 to "early July" (whatever
exactly that means) to enquire of counsel whether a set-aside
application ought to be filed. (Impressively, it took him only days to
give his advice). The submissions are notably vague as to how long it
took to apprise and get instructions from Zurich. That there was a delay
in getting a director to sign is delay of a type that Northstone seeks to
have counted against Coras which likewise delayed in getting a director
signature, albeit of different durations. And while I accept that there can
be a degree of slow-down in the commercial world during August, law
firms do not completely close down at that time and people generally
remain contactable electronically and by courier. I note that this delay
44
on the part of Northstone was raised before the learned High Court
judge; his treatment of this issue is addressed at para. 8 above.
45.
Principles [10]-[11] are noted; no further elaboration seems merited.
46.
Principle [12]: "Just as the onus of justifying any delay in seeking
liberty to issue the third-party notice devolves on the defendant, the
onus of justifying delay in bringing the motion to set such notice aside
devolves on the third party....[Where the] third party is the moving
party...its delay falls to be considered first." (Boland, p.414).
47.
Consistent with the above-quoted observations of Hardiman J. in
Boland, since Northstone was the moving party in the set-aside
application, its delay falls to be considered first. (I treat elsewhere with
the perceived delay on the part of Northstone).
48.
Principles [13]-[14] are noted; no further elaboration seems merited.
49.
Principle [15]: Following on the decision of the Supreme Court in St.
Laurence's, "the net question which has to be decided in a case such as
the present, is whether the service of the third-party notice in the instant
case was effected as soon as was reasonably possible." (Greene, at
paras.15-16).
50.
Having regard to the facts in play before him, I see no reason to interfere
with the finding of the learned High Court judge that service of the
third-party notice was not effected as soon as was reasonably possible.
(I treat elsewhere with the perceived delay on the part of Northstone).
51.
Principle [16] is noted; no further elaboration seems merited.
52.
Principle [17]: Where there does appear to be a delay, the onus is on the
defendant to explain and justify the delay. (Greene, at para.20).
45
53.
Here there are elements of the delay presenting on the part of Coras
that either have not been explained or not adequately explained. (I treat
elsewhere with the perceived delay on the part of Northstone).
54.
Principle [18] is noted. It reiterates elements of Connolly which has
been considered above.
55.
Principle [19]: "[I]t is incumbent on a trial judge, when faced with an
application such as the present...to look not only [a] at the explanations
which were given by a defendant for any purported delay, but [b] also
to make an objective assessment as to whether, in the whole
circumstances of the case and its general progress, the third party
notice was or was not served as soon as is reasonably possible."
(Greene, at para.25).
56.
The learned trial judge did this.
57.
Principles [20]-[24] are noted; no further elaboration seems merited.
58.
Principle [25]: "[A] court, when looking at an application to set aside
a third party notice should not only look at the explanations given by
the defendant for the delay `but also to make an objective assessment
as to whether, in the whole circumstances of the case and its general
progress, the third party notice was or was not served as soon as is
reasonably possible." (Kenny, at para. 20, relying on Connolly and
Greene).
59.
The learned trial judge did so.
60.
Principle [26]: "The reference to all the circumstances in Connolly v.
Casey and the import of the other citations is that it is proper in an
appropriate case to allow time for a party to get expert advice or to
wait for further and better particulars of something arising in the
46
pleadings. It is impossible to catalogue all the exigencies that may arise
in a case that take time to be satisfactorily addressed." (Kenny, at
para.21).
61.
I do not see that the learned trial judge erred in this regard.
62.
Principles [27] and [28] are noted; no further elaboration seems merited.
X
The Three Issues Presenting
63.
As noted previously above, counsel for Coras, in his written submissions to this Court, has
distilled the various grounds of appeal in the notice of appeal into three key issues. These are
reiterated hereafter and my views indicated.
64.
"(i) The learned trial judge erred in fact and in law in concluding that the Third-Party
Notice had not been served as soon as reasonably possible."
65.
I respectfully do not accept this contention to be correct. It seems to me that the learned
trial judge was correct on the facts to conclude that the third-party notice was not served "as
soon is reasonably possible" and erred neither in fact nor in law in this regard.
66.
"(ii) The learned trial judge erred in fact and in law in considering whether [Coras]...if
the Court set aside the Third-Party Notice, would bring an application for separate
contribution proceedings. This is a matter which should not have been a consideration in
the decision to set aside the Third-Party Notice."
67.
I accept that this is a matter which should not be a consideration in the decision to set-aside
a third-party notice. However, I consider that the learned trial judge's remarks in this regard
are but obiter observations, being but the type of considerate comment that any trial court judge
is likely to make when telling a party that it has lost in a particular application before that judge.
47
68.
"(iii) The learned trial judge did not consider that [Northstone]...itself had delayed in
bringing the motion to set aside the Third-Party Notice".
69.
I would reiterate in this regard the observations that I make at para. 8 above.
XI
Conclusion
70.
For the reasons set out above, I would respectfully allow the appeal against the judgment
of the learned trial court judge .
71.
With regard to costs, as the appellant has been entirely successful in this appeal,
my provisional view is that: the appellant is entitled to its costs of the appeal; the same result
would follow if the Court were to apply the traditional approach whereby `costs follow the
event'; and no circumstances present that would justify making any alternative order as to costs.
If either party wishes to contend for an alternative order, they have liberty to apply to the Office
of the Court of Appeal within 14 days of delivery of this judgment for a brief
supplemental hearing on the issue of costs. If such hearing is requested and results in an order
in the just-proposed terms, the requesting party may be liable for the additional costs of such
hearing. In default of receipt of such application, an order in the just-proposed terms
will be made.
72.
As this judgment is being delivered electronically, I note that each of Woulfe and
Donnelly JJ. have indicated agreement with it.
Result: Appeal Dismissed
