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Cite as: [2012] IESC 62

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Judgment Title: O'Byrne v Michael Stein Travel Ltd & ors

Neutral Citation: [2012] IESC 62

Supreme Court Record Number: 341/2011

High Court Record Number: 2008 4754 P

Date of Delivery: 19/12/2012

Court: Supreme Court

Composition of Court: Denham C.J., Hardiman J., Clarke J.

Judgment by: Denham C.J.

Status of Judgment: Approved


Judgments by	Link to Judgment	Result	Concurring
Denham C.J.	Link	Appeal dismissed - affirm High Court Order	Hardiman J., Clarke J.

Outcome: Allow And Set Aside

The Supreme Court

Appeal No: 341/2011

Denham C.J.
Hardiman J.
Clarke J.

Between/

Robert O’Byrne

Plaintiff

and

Michael Stein Travel Limited

Defendant/Respondent

and (by order)

Robert O’Byrne, Senior

First named Third Party/Appellant

and (by order)

Charis O’Byrne

Second named Third Party/Appellant

Judgment delivered on the 19th December, 2012, by Denham C.J.

1. This is an appeal by Robert O’Byrne, Senior, and Charis O’Byrne, the first and second named third parties/appellants, referred to as “the appellants” from the judgment and order of the High Court (O’Neill J.) of the 25th July, 2011, which refused the appellants’ motion to set aside the third party notice issued on the 20th May, 2011, by Michael Stein Travel Limited, the defendant/respondent, referred to as “the respondent”, pursuant to leave granted by the High Court (O’Neill J.) on the 9th May, 2011.

Background
2. The substantive proceedings to which the appellants have been joined as third parties arise from unfortunate circumstances. Robert O’Byrne, the plaintiff, is the son of the appellants and at 17 years of age, on the 18th July, 2005, while on a package holiday with the appellants, he suffered serious injuries after diving into a swimming pool at night.

3. On the 12th June, 2008, the plaintiff, having attained majority, issued a personal injuries summons against the respondent alleging, inter alia, negligence, breach of duty and breach of contract. The plaintiff swore an affidavit of verification of the personal injuries summons on the 12th August, 2008, which was filed on the 20th August, 2008. The respondent delivered its defence on the 9th December, 2008.

4. The respondent filed a notice for liberty to issue a third party notice in respect of the appellants on the 26th January, 2011, and, on the 23rd March, 2011, filed a notice for liberty to amend its defence. Both motions were listed for hearing on the 9th May, 2011.

5. The affidavit grounding the motion for liberty to issue a third party notice on the appellants was sworn by Kevin Mays, solicitor for the respondent, on the 25th January, 2011, and stated at paragraphs 8 to 10:-

“I say and believe that the plaintiff arrived at the apartment complex with his parents and as a minor, he was under their supervision and control at all material times. I further say and believe that the plaintiff, with knowledge and consent of his parents and in their presence, at a time when he was a minor, consumed alcoholic beverages contrary to Spanish and Irish law.

I say and am instructed that under Spanish civil law such actions were negligent on the part of the plaintiff’s parents and they owed a common law duty of care to the plaintiff as he was at all material times under their control and supervision.

I further say and believe that the plaintiff’s parents were negligent and in breach of their common law duty of care to the plaintiff by allowing him to consume alcohol and further failing to supervise his actions which led to the plaintiff diving into the shallow end of the swimming pool.”

6. The motion to amend the respondent’s defence applied for liberty to add the following two paragraphs:

“3.e. The plaintiff was at all material times under the control, supervision and care of his parents. The Plaintiff’s parents and older family members arrived on the scene immediately after the accident and were responsible for bringing the Plaintiff to his bedroom and for his care thereafter.

4.q. The Plaintiff consumed a quantity of alcohol, over the course of the night that he knew or ought to have known would inhibit his judgment to such an extent as to result in a failure to exercise care for his own safety and more particularly caused him to proceed to dive into a swimming pool at a time when the use of the pool was prohibited and when he neither knew or cared as to whether it was safe to dive at the time and place when and where he did.”

7. In advance of the hearing of the respondent’s motions, the first named appellant swore an affidavit on the 4th May, 2011, and filed on the 5th May, 2011, on the plaintiff’s behalf in respect both motions stating, inter alia, at paragraphs 3 and 4 that:

“The Plaintiff was born in 1988, and was 17 years of age at the time of his accident. Although a minor, he was old enough not to be under the continuous supervision and control of his parents. The Deponent’s assertion to the contrary is manifestly unreasonable and an empty formula. The relevant hotel catered for large numbers of mid to late teenage children representing, by my recollection about one third of the hotel population and identifiable as a particular group of patron. The Deponent’s assertion about child management in this context is fundamentally contrary to the activity of the hotel, and all others in which I have ever stayed for a summer holiday. I do not believe that the Deponent’s formula is a reasonable foundation for a Third Party cause of action, and it does not provide the basis for any necessary amendment of the Defence.

I understand that the sale of alcohol to minors is an offence under Spanish law. The plaintiff did not drink alcohol in my presence or with my encouragement. I am fully conscious of the inclination of teenagers to take drink, and the peer pressure to do so. At age 17, I was aware that my son took alcohol from time to time but I was conscious of the difficulty of preventing it absolutely and also of the fact that he was a sensible youngster not inclined to abuse alcohol. Like all parents, I had to rely to a large extent on the good sense and lawfulness of alcohol vendors. I have enquired amongst the Plaintiff’s acquaintances who stayed with him at the hotel and have been able to establish that alcohol was sold at bars in the hotel indiscriminately to youngster’s [sic] underage, both in terms of quantity and ease of access. No effort was made to identify the age of purchasers, nor was any communication given by sign or otherwise to establish rule or standard. So far as I can ascertain, no measures were taken to enforce the law.”

At paragraph 10 of the affidavit, it was averred:-

“I do not believe that this application is made on its own merits but rather to substantiate an application to join Third Parties. The circumstances apparently relied upon had been known to the Defendant since July 2005 and the Plaintiff’s particulars were supplied in July 2009. At par. 10 of his Affidavit the Deponent says ‘it has become apparent’ that the Plaintiff was under his parent’s control. This assertion is again a formula used to disguise the absence of any change of knowledge. It is claimed that an amendment is ‘consequent upon this further information.’ The information appears to relate to the presence of the Plaintiff’s parents in the hotel but that cannot have either surprised the Defendant or have gradually emerged.”

The affidavit concluded with a prayer to the Court to refuse the motions because, inter alia, they are:

“unjustly made to found a Third party application which is destined to be late, oppressive and without disclosure of a case [sic] of action against the proposed new parties.”

8. On the 9th May, 2011, having regard to the affidavits lodged, including that of the first named appellant filed on the 5th May, 2011, and submissions of counsel for the respondent and counsel for the plaintiff, the High Court (O’Neill J.) granted liberty to the respondent to amend its defence and liberty to issue and serve a third party notice on the appellants.

9. The orders of the 9th May, 2011, have not been appealed.

Third party notice
10. The third party notice was dated the 20th May, 2011, and stated:

“The [respondent] claims against you to be indemnified against the plaintiff’s claim and the costs of this action or contribution to the full extent of the plaintiff’s claim on the grounds that you were responsible for the welfare of the plaintiff at the time of the accident, and that you owed the plaintiff a duty of care.”

Motion to set aside third party notice
11. The appellants entered an appearance on the 1st June, 2011, and filed a notice of motion on the 17th June, 2011, seeking to set aside the third party notice and proceedings pursuant to Order 16. In the affidavit of Robert O’Byrne, senior, of the 17th June, 2011, the grounds were stated to be inordinate delay, citing s. 27(1)(b) of the Civil Liability Act, 1961, In the affidavit of Robert O’Byrne, senior, of the 17th June, 2011, the grounds were stated to be inordinate delay, citing s. 27(1)(b) of the Civil Liability Act, 1961, in support, and that the proceedings were ill founded against the appellants.

Judgment of the High Court
12. On the 25th July, 2011, O’Neill J. refused the relief sought by the appellants finding that there had been considerable delay on the part of the respondent in processing the claim against the appellants and that he had considered on the 9th May, 2011, the affidavit of the first named appellant, who had set out his complaints of delay. The learned trial judge noted that the respondent’s affidavit of the 14th July, 2011, dealt with delay in a cursory manner.

The learned trial judge held that this application to set aside the third party notice was quite unusual as it involved the parents of the plaintiff and an issue of parental neglect and whether or not the plaintiff was under their care and control. He stated that the case against the appellants was one of substance and that prejudice was very unlikely. Justice must be borne in mind and also where the onus of proof lies. He held that it was quite clear that there is no prejudice and he held that to strike out the third party notice against the appellants would be disciplinary and that, referring to words of O’Flaherty J., orders should not be made for disciplinary purposes.

Notice of appeal
13. The appellants filed a notice of appeal against the judgment and order of the High Court of the 25th July, 2011, on the 9th August, 2011 on the following grounds:-

“1. The learned trial judge erred in law in not setting aside the said third party proceedings against the parents.

2. The learned trial judge erred in law, and on the facts, in failing to have due regard to the inordinate delay on the part of the [respondent] in seeking to join the parents as third parties herein, the accident, the subject of these proceedings having occurred on the 18th July 2005, the personal injuries summons herein having issued on 12th June, 2008, and an appearance thereto having been entered on behalf of the [respondent] on 23rd June, 2008.

3. The learned trial judge erred in law in failing to have due regard to the fact that the [respondent] herein gave no explanation, whether by way of affidavit or otherwise, in relation to the delay which occurred between October 2008 (when the application to join the parents as third parties should have been made) and 26th January 2011 (when the [respondent] issued a notice of motion to join the parents as third parties), save that the [respondent] at paragraph 9 of an affidavit sworn on behalf of the [respondent] on 14th July 2011 by Kevin Mays, Solicitor, groundlessly stated that ‘…there has not been an inordinate delay in issuing and serving the Third Party Notice’.

4. The learned trial judge failed to have due or any regard to the total absence of explanation for the aforesaid delay on the part of the [respondent] in seeking to join the parents as third parties herein.

5. The learned trial judge unfairly took in to account arguments which had been made on behalf of the Plaintiff herein on 9th May 2011, in motions herein to which the Parents were not then parties, and had no right of audience.”

Submissions
14. Very helpful written and oral submissions were given to the Court. Mr. Patrick Keane S.C., counsel for the appellants, said that the main point was delay by the respondent in seeking the third party motion. He submitted that time ran from when the defence should have been delivered, which he calculated as 24th October, 2008. He submitted that the amendment to the defence did not affect this time line. He further submitted that the claim as stated in the amended draft defence, as set out above, was very vague, and that it did not state any suggestion of negligence or other culpability of the parents. The Court was referred to relevant case law. It was pointed out that the onus was on the respondent on the issue of delay. Further, that no excuse for the delay was given.

15. Mr. Edward Walsh S.C., appeared on behalf of the respondent. Inter alia, he submitted that while it was normal for the respondent to explain delay, the Court had to look at all the circumstances. However, the replies to particulars led to the application to amend the defence, and then as an adjunct to join the appellants as third parties. Counsel accepted that he had not demonstrated what was the Spanish law. He submitted that in light of the amended defence the Court should look at all the circumstances of the case.

Law

Rules of the Superior Courts and legislation
16. Order 16, rule 1(3) of the Rules of the Superior Courts states:

“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.”

Order 16, rule 8(3) states:

“The third-party proceedings may at any time be set aside by the Court.”

The appellants rely on s. 27(1)(b) of the Civil Liability Act, 1961:

“A concurrent wrongdoer who is sued for damages or for contribution and who wishes to make a claim for contribution under this Part—

[…]

(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.”

[emphasis added]

Section 27(3) states:

“Where it is sought to serve a third-party notice making a claim for contribution, or making a claim for damages in respect of a wrong committed to the third-party plaintiff, such claim for damages having arisen in whole or in part out of the same facts as the facts giving rise to the principal plaintiff's claim, leave to serve a third-party notice shall not be refused merely because the issue between the third-party plaintiff and the third party will involve a difficult question of law.”

17. Counsel opened case law to the Court, including Connolly v. Casey [2000] 1 IR 345; Molloy v. Dublin Corporation [2001] 4 IR 52; Greene v. Triangle Developments Limited and Wadding, [2008] IEHC 52, judgment of Clarke J. of the 4th March 2008; and Robins v. Coleman and Ors [2009] IEHC 486, [2010] 2 IR 180.

Chronology
18. Both counsel submitted a list of chronology to the Court. For the purpose of this judgment I have included the shorter version, that of the appellants. It sets out the following relevant dates:-

“12.6.08 Personal Injuries Summons issued.

23.6.08 Appearance by [the respondent].

9.12.08 [Respondent’s] Notice for Particulars.

9.12.08 Defence.

12.12.08 [Respondent’s] Notice of Motion to join Sol Melia SA as third party.

12.1.09 Order: liberty to join Sol Melia SA as third party.

30.7.09 Plaintiff’s Replies to [the respondent’s] Notice for Particulars.

12.3.10 Notice of Trial.

6.8.10 Notice of Change of Solicitor on behalf of [respondent].

26.1.11 [Respondent] issued Notice of Motion to join [the appellants] as third parties.

9.5.11 Order (O’Neill J.): giving liberty to the [respondent] to amend the defence.

9.5.11 Order (O’Neill J.): giving liberty to the [respondent] to serve Third party notice on [the appellants].

20.5.11 Third party notice served on [the appellants].

17.6.11 Notice of Motion by [the appellants] to have Third party Notice against them set aside.”

Decision
19. This appeal turns on the issue of delay. No issue of prejudice arose in the case.

20. It is specified in Order 16 Rule 1(3) of the Rules of the Superior Courts that, unless otherwise ordered by the Court, an application for leave to issue a third party notice must be made within 28 days from the time limited for delivering a defence. The High Court “otherwise ordered” by giving leave to the respondent to issue a third party notice on the 9th May, 2011. The appellants are seeking to set aside the third party proceedings under Order 16, Rule 8 which states that the third party proceedings may at any time be set aside by the Court.

21. I accept the submission on behalf of the appellants, on the dates of the pleadings, that 24th October, 2008 (taking into account the vacation) was eight weeks after the appearance. It was the 26th January, 2011 before the respondent issued motions to join the appellants as third parties. Thus, there was a very considerable delay from October 2008 to January 2011.

22. On behalf of the respondent, it was submitted that the date of the amendment of the defence was an important factor. Further, that it was dependant on replies to notice of particulars. However, that still leaves a considerable delay and a vacuum of information.

23. There is no doubt but that a court can take all the circumstances into account in considering a delay. In this case the respondent relied heavily on the date of the amended defence. However, in considering an application under Order 16, Rule 8 on grounds of delay, time is considered by the Court to run from the date when the defence should be delivered, not from the date of any amendment to a defence.

24. The respondent did not set out any details as to why the delay had occurred, or any excuses for the delay. Thus, while a court may take all the circumstances into account, such as the amendment to the defence, there needs to be evidence as to the reasons for, and excuses for, a delay. This was absent in the case. The onus lay on the respondent, but no explanation for the delay was given.

Conclusion
25. In the absence of any, or any adequate, explanation for the delay by the respondent, I would allow the appeal. The learned trial judge erred in law in failing to have regard to the inordinate delay on the part of the respondent in seeking to join the appellants as third parties, and to the failure of the respondent to give an explanation for the delay.

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