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Cite as: [2015] IEHC 150
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Judgment
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Neutral Citation: [2015] IEHC 150 THE HIGH COURT [2012 No. 9273P] BETWEENMICHAEL HENNESSY PLAINTIFF AND MICHAEL GRIFFIN AND SEAN McELDUFF DEFENDANTS AND WOJCIECH SASIADEK THIRD PARTY JUDGMENT of Kearns P. delivered on the 13th day of March, 2015This is an application brought pursuant to Order 16(8)(3) of the Rules of the Superior Courts to set aside third party proceedings brought by each of the defendants pursuant to orders of the court dated the 18th March, 2014. The plaintiff’s claim arose out of medical negligence proceedings brought against the defendants, both general practitioners, which were compromised as between the plaintiff and the defendants on the 19th March, 2014, the day following the joinder of the third party who is an oncologist. The third party contends that the proceedings against him should be set aside because there has been a manifest failure to proceed with any due diligence in relation to the issuance of the third party notice against him. It was contended on his behalf that a defendant seeking to join a third party to proceedings is obliged to do so by application to court to be made as soon as reasonably possible under s.27(1)(b) of the Civil Liability Act 1961. Order 16, rule 1(3) of the Rules of the Superior Courts further requires that the application for leave to issue such a notice be made within 28 days from the date limited for the delivery of a defence. BACKGROUND He commenced proceedings against the defendants by plenary summons dated the 14th September, 2012. The indorsement of claim records that the plaintiff attended the defendants for a number of years with a medical complaint of a lesion on his left wrist, which the defendants and each of them purported to diagnose and to treat regularly as a recurrent sore. This treatment continued until the defendants referred the plaintiff to a specialist dermatologist in December 2009. He saw the plaintiff in 2010 and diagnosed the complaint to be a squamous cell carcinoma of the left wrist. This specialist immediately referred the plaintiff to one oncologist and then to the third party who confirmed the diagnosis and found that the cancer was so advanced as to not be amenable to any conservative treatment or to localised surgical excision, but was then so advanced that the plaintiff required amputation of the left forearm as the only means of curing the cancer at that time. In those circumstances, the plaintiff underwent amputation of the left forearm which was undertaken in November 2010. The relevant timeline for the issues under consideration in this application may be set out as follows:-
It should be noted that in making the order joining the third party, Irvine J. did so expressly without prejudice to the right of the third party to seek to set aside the order and this direction was expressly recorded on the face of the order. By letter dated the 30th April, 2014 the third party’s solicitor advised the solicitors for the first defendant that the third party intended to bring such a motion. The same was duly brought by notice of motion dated the 12th June, 2014. The third party now submits that there are three net issues for consideration in this application, namely:-
(b) Is the prejudice to the third party on the particular facts of this case such that the third party notices should be set aside in any event? (c) Should the third party notices be set aside for failure to obtain appropriate expert evidence prior to the issue of same? RELEVANT LEGAL PRINCIPLES
Service within the time permitted by Order 16 The importance of the 28 day period provided for in the rules was highlighted by Clarke J. in Greene v. Triangle Developments [2008] IEHC 52 where, applying the principles set out in Stephens v. Paul Flynn Ltd. [2008] IESC 4 he held as follows:-
Service within a ‘reasonable time’ as required by section 27(1)(b) of the 1961 Act In considering whether a third party notice has been served as soon as reasonably possible the whole circumstances of the case have to be considered and the reference to “as soon as reasonably possible” is a relative concept and one which has to take into account the particular facts and complexities of any particular set of facts. It is accepted that in professional negligence claims (such as this) there is a need for an additional element of caution in that appropriate expert opinion is required prior to alleging negligence on the part of any professional. In Greene v. Triangle & Anor. [2008] IEHC 52 Clarke J., while noting that in considering any period which elapsed between the time when the third party application should have been brought and when it was actually brought, the court should principally have regard to any steps, such as the assembly of materials and the taking of advice, which were reasonably necessary to reach a conclusion as to whether it was appropriate to seek to join a third party, before stating that:-
In relation to the issue of prejudice, the following dictum of Laffoy J. in Murnagham v. Markland Holdings Ltd [2007] IEHC 255 is pertinent:-
Finally, on the institution of proceedings in the absence of an appropriate expert report, it was accepted in this case by the defendants that in order to claim that a professional is a concurrent wrongdoer, there must be evidence of wrongdoing from a person suitably qualified to give such evidence. SUBMISSIONS OF THE PARTIES It was further submitted that the case as pleaded in the personal injury summons clearly complained of a delayed referral by the defendant G.P.s to a dermatologist who, it is pleaded, diagnosed cancer and immediately referred the plaintiff to an oncologist. The fact that the amputation occurred following a course of treatment by a dermatologist and the third party was clearly and unambiguously set out in the personal injury summons and was not an issue which required clarification in order to better understand the plea made. Any issue as to causation was brought to the fore at the outset and ought to have been directly in focus by the defendants. However, the first report sought by the first defendant was not sought until April 2013, some seven months after service of the personal injury summons and a report in relation to causation was not sought until late December 2013/early January 2014, some fifteen/sixteen months after service of the personal injury summons. No report was sought by the second defendant in relation to negligence or causation until the 2nd October, 2013, over a year after the service of the personal injury summons. A further five months was then allowed to pass until the expert report on causation was received on the 11th March, 2014, some eight days prior to the trial date. No explanation has been provided by the defendants to explain this delay, or as to why the defendants waited so long to commission a report from any expert on the issue of liability. Even after the case was specially fixed for hearing on the 12th December, 2013, it appears there was no real urgency devoted to the issue of causation said to have ultimately given rise to the need to bring third party proceedings. Insofar as the first defendant is concerned, while they appear to have received a report from Mr. Marsden in late January 2014, he advised that a report from a consultant surgeon was required. It appears that the surgeon of choice was unavailable until March, 2014 but what remains unclear is why the first defendant awaited his return rather than appointing an alternative expert to advise. Insofar as the second named defendant is concerned they waited until mid February 2014 prior to seeking the report which ultimately formed the basis for the application against the third party, a period of time which, it was submitted, was unreasonable because its effect was to effectively disentitle the third party from any meaningful involvement in the proceedings. It was submitted there could be no doubt but that the delay in seeking to join the third party was totally unreasonable. It was far too late to commence investigations a few short weeks prior to a specially fixed date for hearing. The third party in consequence suffered substantive and logistical prejudice. The treatment sought to be impugned by the defendants in alleging negligence on the part of the third party occurred in June 2010, nearly five years ago. The defendants own treatment of the plaintiff the subject matter of the substantive proceedings, took place several years prior to that date. Insofar as witness testimony is concerned, the lengthy passage of time must be seen as having an adverse effect on the ability of witnesses to accurately reflect what did occur. Moreover, in joining him so late, the third party was given no proper opportunity of investigating the claim or partaking in the proceedings prior to their being disposed of by way of settlement on the hearing date. In the present case, the facts were quite extraordinary. Far from blaming the third party, the plaintiff had listed him as one of his witnesses. In the instant case, the application to join the third party was made the day before the trial date, far too late by any reasonable yardstick. It was also unreasonable and unfair that the third party should now be required to defend a claim where there was a very real risk that the ill health and age of the plaintiff is such that he might well not be able to participate in the third party proceedings. Further, there was no report before the court indicating that the third party acted as no other doctor in his speciality would have acted if he had been exercising the care ordinarily expected of such a doctor. No report has been sought from a consultant oncologist. Nowhere in the reports that have been provided by either Mr. Marsden, Dr. Lawlor or Prof. Irvine is there a reference to their being of the opinion that the third party acted in a substandard manner or that his acts or omissions amounted to substandard care. In all the circumstances, it was submitted there was insufficient evidence to justify a plea that the third party is a concurrent wrongdoer or that negligence on his part entitles the defendant to a contribution or indemnity and, for all those reasons, the third party notice ought to be set aside. In meeting this application counsel on behalf of the second named defendant confined his submissions to the following proposition. Third party claims against professional persons fall within a “special category” and such claims require particular caution before proceedings should commence. The term “as soon as is reasonably possible” is a relative concept, such that in construing it the court should have regard to all the circumstances of the case. A similar position was taken by the first named defendant who simply adopted the submissions made on behalf of the second defendant. It was submitted on behalf of the second named defendant that, on entering an appearance in November 2012, the solicitor for the second named plaintiff acted expeditiously. In October 2013 an expert consultant oncologist was instructed to provide a report on causation. Later that month, the second named defendant’s solicitors agreed with the plaintiff’s suggestion that the case be admitted to case management, and that duly commenced on the 11th December, 2013. Repeated telephone calls were made to the consultant oncologist from late 2013 and in early 2014 to expedite the delivery of his expert report. It was accepted that the same was not received until the 11th March, 2014. It was submitted that in these circumstances both defendants had acted reasonably and the court itself took the view that it was imperative that the trial date be not disturbed by any issues which might arise including the issue of the third party. DECISION The first defendant at no stage sought the advices of a consultant oncologist, or if he did, the advices obtained must not have been supportive of a plea of substandard care on the part of the third party. The replying affidavit of James Staines, solicitor for the third party, sworn on the 17th December, 2014, makes clear that the report of the second named defendant’s consultant oncologist was only shown to him on the morning of the trial itself. The Court is satisfied that all these investigations should have been completed well in advance of that time and that adequate information was available from the pleadings to enable appropriate steps to be taken. The Court is quite satisfied that the third party notices were not served as soon as was reasonably possible. On the contrary, the procedure to join the third party was taken at the last possible moment; a fact adverted to by Irvine J. in the form of order which she made in permitting the joinder. She expressly reserved the right of the third party to set aside the third party notice. The Court is satisfied that that ground alone is sufficient to dispose of any resistance that the third party claim herein; but for the sake of completeness, the Court should clarify that it also accepts the contentions that the third party has inevitably suffered prejudice in this case having regard to the length of time which has elapsed since the plaintiff’s medical problems were diagnosed and treated. Indeed, the involvement of the third party in the plaintiff’s treatment came at the very end of the various stages of medical treatment prior to the amputation. It hardly needs saying, but having regard to the plaintiff’s advanced age, it is difficult to see what role he might be expected to play in any third party proceedings were they allowed to continue. The Court accordingly would find for the third party on this ground also. Finally, the third party notice should, in the opinion of the Court, be set aside for the failure on the part of the first named defendant to obtain appropriate expert evidence prior to the issue of the third party notice, and, in the case of the second named defendant, leaving it until the very last moment to obtain such evidence and to make same available to the third party. It is hardly surprising that in those circumstances the third party elected not to participate in the discussions which led to the settlement of the case against the two defendants on the date fixed for the trial. It is difficult to see what other informed strategy could have been adopted by the third party in these particular circumstances. In the circumstances the Court would accede to the third party application to strike out the third proceedings herein insofar as both defendants are concerned. |
