Make haste! High Court sets aside third-party notice by reason of delay
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Introduction
Order 16 of the Rules of the Superior Courts provides a procedure whereby a defendant may join a person who is not already a party to an action as a third party to the proceedings, thereby creating a lis between the defendant and the third party which can be tried in conjunction with the proceedings between the plaintiff and the defendant.
Section 27 of the Civil Liability Act 1961 (as amended), includes a provision that a concurrent wrongdoer who wishes to make a claim for contribution from a person not already party to the action shall serve a third party notice upon such person as soon as is reasonably possible and, having served such notice, shall not be entitled to claim contribution except under the third party procedure.
A recent High Court decision of Mr Justice Conleth Bradley in Grehan & Anor v. Dublin City Council [2024] IEHC 622 outlines the guiding principles in relation to both the joinder of Third Parties, and subsequent applications to set aside the joinder of Third Parties on the grounds of delay.
Case Details
The Plaintiffs alleged that they suffered loss and damage by reason of the actions of Dublin City Council relating to a water leak that allegedly occurred at their home in Dublin 6 in the period between May and November 2015. The Plaintiffs initiated proceedings as against Dublin City Council who in turn, made an application to join Irish Water as a Third Party to these proceedings. Irish Water subsequently made an application to have the Third Party Notice set aside by reason of delay.
A chronology of the key dates is as follows: -
| Item | Date |
| Date of Incident | May - November 2015 |
| Plenary Summons | 5th February 2019 |
| Statement of Claim | 7th February 2019 |
| Entry of Appearance | 12th March 2019 |
| Motion for Judgement in Default of Defence as against City Council | 15th July 2019 |
| Defence | 12th July 2019 |
| Notice for Particulars | 2nd August 2019 |
| Replies to Particulars | 21st November 2019 |
| Notice of Trial | 9th February 2023 |
| Motion to join Third Party issued | 9th May 2023 |
| Order granting leave to join Third Party | 22nd June 2023 |
| Third Party Notice issued & served | 23rd June 2023 |
| Motion to set aside Third Party Notice issued | 7th December 2023 |
Decision
Judge Bradley stated that it is acknowledged by both parties that the City Council failed to serve the Third Party Notice within the time limits as prescribed by Order 16 (i.e., within 28 days from the time limited for delivering the Defence). In circumstances where the Statement of Claim was delivered on 7th February 2019, Irish Water averred that the application for leave to issue and serve the Third Party Proceedings should have been made on or before 10th May 2019. In this case, the application for leave to issue and serve the Third-Party Notice was not made until 12th June 2023, four years later.
However, both parties agreed that non-compliance with RSC 1986 is not dispositive of the question to be determined in this application. Rather, the parties agree, having regard to the applicable jurisprudence, that the matter which is to be determined is whether or not the City Council have met the threshold that the Third-Party Notice was served “as soon as is reasonably possible” pursuant to the provisions of section 27(1) of the 1961 Act.
Judge Bradley considered the decision of Susquehanna International Group Limited & Others v Execuzen Limited & Others [2022] IECA 209 wherein Allen J stated, “In my view the issue to be determined on an application to set aside a third party notice is solely whether the notice was served as soon as reasonably possible. If it was not, the third party is entitled to an order setting it aside.”
The City Council, in endeavouring to explain the delay of circa four years, took the view that, “(i) the Plaintiffs ought to have sued Irish Water as the appropriate Defendant in these proceedings and not the City Council; and (ii) under a Service Level Agreement (“SLA”) dated 23rd December 2013 between the City Council and Irish Water, the Council maintained a view throughout that it was entitled to be fully indemnified by Irish Water in relation to the alleged claims in these proceedings”. Judge Bradley did not accept that the legislative changes which occurred in 2013 and the developments thereafter concerning the transfer of responsibility to Irish Water from local authorities for the provision and maintenance of public water services explained the delay. The court noted that the council was a signatory to the SLA which expressly provided for an indemnity by Irish Water.
Furthermore, the City Council argued that in circumstances where Irish Water were on notice of the proceedings as early as 23rd April 2019, that they have suffered no prejudice. However, the Court of Appeal held in Kenny v Howard [2016] IECA 243 that there is no requirement for the third party to establish prejudice in seeking to set aside service of a notice, although this may be a relevant factor on a case-by-case basis.
Conclusion
Judge Bradley concluded that the City Council cannot seek to justify delay by contending that Irish Water in this case has not been prejudiced. Adopting and paraphrasing the observations of Allen J in Susquehanna International, if the underlying policy is to put the third party in as good a position as possible in relation to knowledge of the claim and the opportunity of investigating it, there is no authority for the proposition that a third party moving to set aside a Third Party Notice must establish prejudice; the focus must be on whether the delay was unreasonable.
Therefore, a Defendant must act with due haste in circumstances where a third party is not required to demonstrate prejudice in an application to set aside a third party notice, rather the focus is whether the delay was unreasonable.