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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Freisburg -v- Farnham Resort Ltd & Ors [2012] IEHC 219 (24 May 2012)
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Cite as: [2012] IEHC 219
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Judgment Title: Freisburg -v- Farnham Resort Ltd & Ors Neutral Citation: 2012 IEHC 219 High Court Record Number: 2008 3373P Date of Delivery: 24/05/2012 Court: High Court Composition of Court: Judgment by: Hogan J. Status of Judgment: Approved |
Neutral Citation Number: [2012] IEHC 219 THE HIGH COURT [2008 No. 3373P] BETWEEN/ GUNTHER FREISBERG PLAINTIFF AND
FARNHAM RESORT LIMITED AND BUNZL OUTSOURCING SERVICES (IRELAND) LIMITED DEFENDANTS AND
ANGELO PO GRANDI CUCCINE SPA THIRD PARTY JUDGMENT of Mr. Justice Hogan delivered on 24th May, 2012 1. This is an application brought by the third party ("Angelo Po") pursuant to Ord. 16 RSC to set aside a third party notice issued pursuant to the leave granted by this Court (Quirke J.) on 13th February, 2012. The third party notice arises out of an incident which is said to have occurred on 10th October 2006. The plaintiff ("Mr. Freisberg") in these personal injuries proceedings is a chef who works at the Farnham Radisson Hotel in Co. Cavan. Angela Po are an Italian company who supplied a soup kettle to the second named defendant ("Bunzl") in April, 2006. Bunzl in turn supplied the equipment to the first named defendant ("Farnham"). Farnham are the operators of the hotel and employers of the plaintiff. 2. On 10th October, 2006, Mr. Freisberg contends that he was working in the hotel when there was a sudden and unexpected electrical flash on the panel of the soup kettle which led him to believe that he was being thrown by a small electric flash. Angelo Po were then contacted by Bunzl in relation to this incident. Angelo Po immediately dispatched a technician to inspect the kettle and he apparently concluded that the kettle was undamaged save for a light fixture which had exploded. In December 2006 Angelo Po sent replacement lamps for this appliance to Bunzl. There the matter rested so far as Angelo Po was concerned and nothing further so far as they were concerned was to happen until some four years later. 3. But before explaining how this development came about, it is necessary first to retrace the narrative so far as the plaintiff is concerned. He claimed that he suffered personal injuries as a result of the incident and, pursuant to an authorisation granted by the Personal Injuries Assessment Board, he commenced proceedings against Farnham and Bunzl only on 28th April, 2008. These proceedings were then served on Bunzl's solicitors in early May 2008. 4. One measure of the rather unhurried approach taken by Bunzl to these proceedings was that it took it almost six months to enter an appearance and then only after a motion for judgment in default of defence. Following an exchange of particulars, a further motion had to be issued by the plaintiff to compel the delivery of a defence. This motion issued on 25th May, 2009, but a defence was not filed until some nine months later on 16th March, 2010. In other words it took almost two years for a routine defence to be filed. 5. Bunzl were ordered by the Master of the High Court on 18th June, 2010, to make discovery in relation to "the testing, inspection and repair of the soup kettle" within six weeks of that date, but the affidavit of discovery was sworn only on 9th May, 2011. 6. In the meantime Bunzl had written to Angelo Po on 14th March, 2011, claiming an indemnity and contribution. One can fairly describe this letter as being in the nature of a bolt from the blue so far as the third party was concerned. Nothing had happened in the interval since the delivery of replacement lamps which suggested that any of the other parties involved in this incident might seek to fix Anglo Po with liability of any kind. One might have expected that, having a written a letter of this kind, Bunzl would immediately make good their threat to issue third party proceedings seeking to join Angelo Po to the litigation "within 14 days from the date of this letter". Yet again nothing further happened until 7th December, 2011 -some nine months later- when a motion seeking leave to join a third party was issued out of the Central Office. That motion was made returnable for 13th February, 2012, some four days before the main action was originally scheduled for hearing. 7. I accept that Bunzl's solicitors obtained the first available return date for this motion. Even then, it may be suggested, Bunzl could (and should) have applied to a judge of this Court for liberty to abridge time in view of the immediate urgency of the matter, not least the necessity to issue and serve the proceedings on an Italian company based in Modena. It appears that no judge was available to hear the full action on 17th February, 2012. While the action was re-listed for hearing on 20th April 2012, it presently stands adjourned for hearing until some time next month at the earliest. This timetable may be affected by the outcome of this motion. 8. In the meantime Anglo Po moved with commendable speed to have the third party notice set aside. Although the third party notice was served on them on 6th March, 2012, a letter requested the setting aside of the notice issued on 20th March. In fairness, Bunzl's solicitors responded immediately rejecting this. The present motion seeking to have the third party notice set aside then issued on 26th March, 2012. 9. Briefly summarised, counsel for Anglo Po, Mr. White, contends that it would be unconscionable to allow the third party notice to stand, as this would otherwise infringe his client's constitutional rights to trial within a reasonable period. He maintains that the ensuing delay has prejudiced his client's interests and circumvents its rights to plead the two year limitation prescribed by the Statute of Limitations. On the other hand, Mr. Ó Scanaill S.C. counsel for Bunzl, contends that his client was entitled to proceed with caution before electing to sue the third party, not least giving the difficulties in identifying the cause of the (apparent) explosion and the associated difficulties in establishing causation. Section 27(1)(b) of the Civil Liability Act 1961
12. In this context, it must be recalled that the concept of what is "as soon as reasonably possible" within the meaning of the sub-section is a relative one and depends on the circumstances of the case: see, e.g., Connolly v. Casey [2000] 1 IR 345, Mulloy v. Dublin Corporation [2001] 41.R. 52, Robins v. Coleman [2009] IEHC 486, [2010] 21.R. 180 and Leahy. 13. Of course, the judicial discretion conferred by this sub-section must be exercised in accordance with fundamental constitutional principles: see, e.g., East Donegal Co-Operatives Ltd. v. Attorney General [1970] I.R. 317, 341 per Walsh J. This not only means that the discretion must be exercised in a fashion which respects basic fairness of procedures (cf here the comments of Henchy J. in Ó Domhnaill v. Merrick [1984] I.R. 151,159 ), but the court must be conscious of its obligation to uphold and apply the constitutional norms envisaged by Article 34.1 (administration of justice) and Article 40.3.1 (protection of personal rights): see, e.g., Doyle v. Gibney [2011] IEHC 10. As I noted in Doyle:-
15. What amounts to a reasonable time will, of course, be measured by the specific context. Particular allowances may have to be made, for example, for those disadvantaged members of the community who by reason of indigency, lack of education and other similar factors may not have been in a position in the past to assert or protect their rights (see, e.g., Guerin v. Guerin [1992] 2 I.R. 287,293 per Costello J. and Hayes v. McDonnell [2011] IEHC 530 per Hanna J.). But the present case is about as far away from this as it is possible to imagine. The dispute - insofar as it concerns the third party proceedings - involves two commercial undertakings, each of whom have access to legal advisers of the highest quality and ability. While this may not be commercial litigation in the strict sense of the term, one may nonetheless adapt to this context the comments of Fennelly J. in Dekra Eireann Teo. v. Minister for Environment [2003] IESC 25, [2003] 2 IR 270 at 304 to the effect that in litigation of this nature involving disputes between well resourced corporate undertakings, "there should be very little excuse for delay." 16. Next, the subject matter of the proceedings should be considered. While the factual context of this claim for personal injuries is admittedly unusual and the issue of causation is not straightforward, it is at the same time difficult to understand why, well over five years later, a claim of this kind still remains to be determined. It was certainly reasonable for Bunzl to investigate the cause of the explosion of the soup kettle before joining the manufacturer to the proceedings. In that context, the words of s. 27(1)(b) which require the concurrent wrongdoer to serve the third party "as soon as is reasonably possible" are not concerned, as Murphy J. put it in Mulloy ([2001] 4 IR 52 at 56) with "physical possibilities, but legal and perhaps commercial judgments". 17. Therefore, as I suggested in Leahy, the question in cases of this kind thus becomes:-
20. Viewed objectively, it is very hard to see how Bunzl was entitled to wait a further three and a half years from that date before bringing a third party motion of this kind. After all, it has never been explained why Bunzl waited for so long to commission a report from a consulting engineer or, for that matter, why it delayed so long in complying with relatively basic obligations with regard to the filing of an appearance and defence. Besides, the delay was immensely prejudicial to Angelo Po. Not only was the Italian company effectively deprived of its right to plead the Statute of Limitations as against the plaintiff by being joined as a third party in this fashion, it was unreal and unreasonable to expect that they should be joined within days of the scheduled start of the plaintiffs main action, even if that case did not proceed on that date for other reasons. 21. This is underscored by the Supreme Court's conclusions in Mulloy. In that case the third party notice was issued some thirteen months after the defence had been filed. The Supreme Court held that it was possible for the defendant "on the information available to it to make a prudent and responsible decision several months before the application was brought": see [2001] 4 IR 52 at 59, per Murphy J. This is true a fortiori in the present case. Taking the most benevolent view possible of the delays to date, the issue of third party joinder squarely arose following the delivery of the plaintiffs pleadings in May, 2008. This was then the time at which the report of the consulting engineer ought to have been commissioned. Very different considerations would have obtained had, for example, the application to join Angelo Po been made within the 2008 calendar year. 22. In these circumstances, I am coerced to the conclusion that the third party notice must be set aside for want of non-compliance with the requirements of s. 27(1)(b) of the 1961 Act. This is not simply a case where the non-compliance amounted to some harmless and technical breach of the statutory requirement. The non-compliance infringed the third party's constitutional rights to basic fairness of procedures and its right to have proceedings determined within a reasonable time period. Measured against a two year limitation period contained in the Statute of Limitations (even if that period is itself perforce extended by reason of the operation of the Personal Injuries Assessment Board Act 2003), a delay of over five years in making a formal application to have a third party manufacturer joined to a (relatively) routine personal injuries action involving a defective product represents a manifest infringement of these rights. 23. It must also be acknowledged that a delay of this kind tends to subvert the legislative policy which underlies the Statute of Limitations, namely, that a defendant is entitled to organise his or her affairs on the basis that the limitation period has long expired. For good measure, one might also add that the delay was manifestly prejudicial, in that the effect of the third party notice was to catapult Angelo Po into the middle of a personal injuries trial which was due to start within a matters of days. Conclusions |