High Court of Ireland Decisions

1. The Plaintiffs' claims in these and related proceedings are for damages for negligence and breach of duty arising out of the consumption of shellfish on or about the 21st November, 1991 at the Defendant's hotel premises at Clifden, County Galway. The proceedings were commenced by Plenary Summonses issued on 16th April, 1993 to which appearances were entered on the 10th May, 1993. Statements of Claim were delivered on the 20th July, 1993. Notices for Particulars were delivered by the Defendant on the 3rd September, 1993 and the 6th October, 1993. These were replied to on the 5th April, 1994.

2. It appears that from an early stage in the proceedings that oysters consumed by the Plaintiffs were isolated as being the cause of their personal injuries. On the 25th November, 1993, O'Byrne letters were sent to the suppliers of the oysters to the hotel concerned and also to the firm of growers who in turn had supplied the oysters to the former concern, being the Third Parties. However, it was not until the replies to the Notices for Particulars were furnished on the 5th April, 1994 that confirmation was received by the Defendant that the Plaintiffs were relying upon the oysters as the cause of their injuries.

3. On receipt of these replies, the Defendant's Solicitor was advised by Counsel to seek the opinion of a microbiologist on the issue of who was at fault for what had occurred. Instructions were sent to a Professor of Microbiology in University College, Cork for his opinion. At the same time the Solicitor for the Defendant sought to ascertain whether or not any similar complaints had been received by the Western Health Board. Unfortunately, the latter body, through its Environmental Health Officer, was not prepared to give any details. Notwithstanding monthly reminders, the Professor of Microbiology did not furnish his opinion to the Defendant's Solicitor until the 18th January, 1995.

4. Having received this opinion, defences were filed on the 30th January, 1995 and Notices of Motion for liberty to serve Third Party Notices were issued on the 21st February, 1995. These Motions were heard on the 3rd March, 1995 and ultimately Orders giving liberty to serve Third Party Notices were made on the 8th May, 1995. These applications are brought by the Third Parties to have those Notices set aside on the grounds that they were not served on them as soon as was reasonably possible.

5. The statutory provision on which the Third Parties rely is contained in the Civil Liability Act, 1961, Section 27. So far as it is material to the present proceedings, the provision is as follows:-

6. This application must be considered in the context of its proper construction. In Gilmore -v- Windle , 1967 I.R. 323, O'Keeffe J. dealing with the policy of the Act, said:-

7. At the bottom of page 36 he deals with the position of a plaintiff who brings such a substantive action. He says:-

8. It is clear from these passages that failure to serve a Third Party Notice on a person not already a party to the proceedings as soon as is reasonably possible does not bar a defendant completely from recovering contribution. Such person is subject to the discretion of the Court in the latter proceedings whether to allow such claim to proceed.

9. A similar result therefore will arise where a Third Party Notice is set aside. If that is so then it seems to me that setting aside a Third Party Notice would have two serious consequences:-

10. Accordingly, while a Court should not construe "as soon as is reasonably possible" too liberally, it should not at the same time be too astute to set aside a Third Party Notice on such grounds.

11. Clearly the words "as soon as is reasonably possible" denotes that there should be as little delay as possible, nevertheless, the use of the word "reasonable" indicates that circumstances may exist which justify some delay in the bringing of the proceedings. Although the wording of the section refers to the service of the Notice, nevertheless, it seems to me that unless there are circumstances arising between the issue of the application to issue and serve a Third Party Notice and its ultimate service following an Order to that effect, that the time to be considered should end at the date of issue of the application to the Court. 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 upon the Defendant. Although the effect of allowing the Third Party procedure to proceed may have a prejudicial effect on either the Plaintiff or the Third Party, this is something which, if it exists, would in most cases be capable of remedy by other procedural means. It is not necessary to consider this matter in relation to the present applications since no such case is made.

12. In my view, the real question hinges upon what is reasonable in the particular case. This in turn depends upon the behaviour of the Defendant or rather the Defendant's advisors. The first question to be determined is at what point in time would a reasonably prudent Solicitor acting for the Defendant be in a position to advise the institution of Third Party proceedings. Then, if such proceedings are not instituted at such time, the further question that may arise, was such delay or such further delay reasonable?

13. In my opinion a defendant is entitled to decide first, whether the proceedings should be defended and, if so, upon what basis. This in an appropriate case would involve a decision whether to institute Third Party proceedings. Such time should be allowed as is reasonably necessary to reach such decisions and to obtain such evidence as may be required upon which to base them. Once acting within these parameters there is sufficient evidence upon which to base such decisions, then that is the time at which the Solicitor will be in a position to give the appropriate advice. If the Solicitor then delays to get further evidence for some purpose other than that of reaching such decisions such further delay would be unreasonable. When referring to the Solicitor I also include time taken to obtain Counsel's advice where Counsel is instructed.

14. In the present case, it is clear that the Defendant took the view that the cause of the Plaintiffs' illness' was the oysters which had been served to the Plaintiffs. The potential Third Parties were put upon notice of a possible claim against them as soon as could be. Admittedly, his Solicitor then waited until the reply to the Notices for Particulars in which the Plaintiff made it clear that his case depended upon oysters before acting to obtain evidence to decide upon his course of action. In my view this was reasonable since until such replies were received, he could not have been sure that this was the case being relied upon by the Plaintiff. Further, although considerable time elapsed between the seeking of this evidence and the obtaining of such evidence, this was the fault of the witness and not of the Solicitor for the Defendant who did his best to obtain the report.

15. From the point of view of the Plaintiff, the delay was not one which forced the Plaintiff to act in seeking to obtain a defence. Once the defence had been delivered by the Defendant, proceedings were brought within a reasonable time for liberty to serve the Third Party Notice. Nevertheless, the defence was late. I do not seek to suggest that a Defendant should be able to rely upon the delay in the delivery of this document to justify delay in the institution of Third Party proceedings since the Third Party procedure can be set in motion at any time and without reference to the delivery of a defence. What is important is the time reasonably taken to decide upon the manner in which the proceedings should be met including the institution of Third Party proceedings.

16. In the present case I am satisfied that the Third Party proceedings were sought as soon as reasonably possible. Once the decision to institute such proceedings was made there was no further delay so that the second question which I have indicated might be posed in appropriate cases does not arise for consideration in the present case. The relief sought will be refused.