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High Court Set Aside Third-Party Proceedings Due to an Inordinate and Inexcusable Delay.

By: Julie McEvoy and Lauren Dermody | Posted on: 16 Mar 2022

A recent Judgment delivered in respect of an application to set aside third-party proceedings on the grounds of delay, highlights the importance to serve third-party notices as soon as reasonably possible.

In this article, Julie McEvoy, Solicitor, CKT and Lauren Dermody, Intern, CKT give an overview of the Judgment.

Background

The Plaintiff’s claim was brought in respect of personal injuries sustained by him in a cycling accident said to have occurred on 8 March 2015.   It is pleaded that the plaintiff came off his bicycle as a result of hitting an unmarked, non-standard speed ramp on Strand Road, Killiney, Co. Dublin.   It was further pleaded that the defendant failed to construct or design the speed ramp in accordance with relevant guidelines.

The first and second defendants delivered a joint defence which contained pleas to the effect that the speed ramp was installed by the third-party and without prior knowledge of the first and second defendants.  The first and second defendant thereafter issued a motion seeking leave to join the third-parties to the proceedings.  That motion came before the Court on 18 November 2019 and an order was made joining the third-parties.  The third-party notices were not served until 01 July 2020 some seven months later.  The service of the notices were also not in order in that a copy of the third-party notices were not filed in the Central Office, with the consequence that an appearance to the third-party proceedings could not be entered.  This resulted in the third-party notices in proper form ultimately being served on 14 September 2020.

A motion seeking to have the third-party notices set aside on the grounds of delay issued on 5 October 2020.

The High Court Decision

In delivering Judgment, Mr. Justice Garrett Simons assessed the legal principles governing ‘set aside’ applications.  The Court stated that Section 27 of the Civil Liability Act 1961 provides that, a defendant, who wishes to make a claim for contribution, must serve a third-party notice as soon as is reasonably possible.  This obligation is intended to ensure that the general progress of the main proceedings is not unnecessarily delayed by the third-party claim. The Court contrasted the failure by a plaintiff to comply with the time-limits prescribed under the rules and that of a defendant stating that third-party proceedings having been set aside where the delay is measured in months rather than years.

The Court held that the onus is on the defendant, who has joined a third-party, to explain and justify any delay and the facts of the case outlined significant delays both in the making of the application for leave to issue the third-party notices, and in the service of the third-party notices following the grant of leave. 

The Court outlined two specific time limits, an application for leave to issue the third-party notice should be made within 28 days from the time limited for delivering the defence, and thereafter the third-party notice should be served within 28 days from the making of the order.

The Court acknowledged that time limits in majority of cases are not complied with, and the 28-day time limit represents a benchmark against which the statutory requirement to move as soon as is reasonably possible might be measured.

The defendants sought to explain that the first period of delay on the application could only have been made after service of the defence in which liability for the alleged accident was pleaded as being attributed to the third-parties.  This was rejected by the Court stating that it was impermissible for a defendant to rely on their own delay in this matter.  Furthermore, to rely on the content of their own defence and not that of another defendant where the information relied upon to join the third-parties had been within the knowledge of the defendants long before the institution of the proceedings.

In terms of the second period of delay, the Court held that the delay of some seven and a half months in taking up the order and serving the third-party notices was both inordinate and inexcusable.

Finally, the Court looked at whether the third-party notice was served as soon as is reasonably possible as outlined in Green v. Triangle Developments Ltd [2015] IECA 249 where it was concluded that the delay was excessive and unreasonable and therefore the third-party notices were not served as soon as was reasonably possible.

Conclusion

The Court held that the defendants failed to comply with the requirement to serve a third-party notice as soon as reasonably possible and accordingly made an order setting aside the third-party proceedings on the grounds of delay.

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