Mary Molloy (plaintiff) v The Right Honourable Lord Mayor Alderman and Burgesses of Dublin, Clonmel Enterprises Ltd and Bestobell Valves Ltd (defendants/appellants) and Ashworth Frazer Ltd (third party/respondent).
Personal Injury - Third party notice to be served as soon as is reasonably possible - Whether delay in serving third party notice was justifiable - Decision to set aside will depend on the circumstances surrounding the case - Civil Liability Act 1961, section 27.
The Supreme Court (Mr Justice Murphy, Mr Justice Hardiman and Mr Justice Fennelly); judgment delivered 28 June 2001.
In an action for damages for personal injury where there were a number of defendants and where leave is sought to issue and serve notice on a proposed third party, such application must be made to the court as soon as is reasonably possible and where there is a delay in making such an application whether such a delay is justifiable in the circumstances depends on the facts of the particular case in question.
The Supreme Court so held in dismissing the appeal and affirming the order of the High Court.
Gerry Danaher SC and Desmond O'Neill BL for the plaintiff; Mark de Blacam SC and Paul Coffey BL for the first defendants; Rory Brady SC and Anthony Collins BL for the second defendants; and John Gordon SC and David Nolan BL for the third party.
Mr Justice Murphy outlined the facts surrounding the application. The issue was whether the third party notice dated 9 July 1999, and served by Clonmel Enterprises Ltd, the second defendant, on Ashworth Frazer Ltd, the third party, was served as soon as reasonably possible within the meaning of section 27 of the Civil Liability Act 1961. On 14 December 1994, Thomas Molloy, an employee of Clonmel Enterprises died in a tragic accident. At the time of his death, Mr Molloy, in company with fellow employees, was investigating and attempting to open a water valve allegedly installed by the defendant company in an underground chamber at the Lower Drumcondra Road for Dublin Corporation. It had been suggested the accident arose because the spindle on the valve, which was not protected by a collar, shot from its casing while Mr Molloy was working on it. The valve in question was manufactured by the third defendant, Bestobell Valves Ltd, and supplied to Clonmel Enterprises by Ashworth Frazer.
On 20 May 1996, Mary Molloy, the widow of the deceased, instituted proceedings by way of plenary summons against the defendants for negligence and breach of statutory duty on their behalf. The statement of claim was delivered on 7 April 1997 with particulars of negligence citing the failure to ensure the valve was fitted with a suitable spindle collar or other protective restraint so as to ensure it was incapable of being ejected with force from the body of the valve. Defences were delivered on behalf of each of the defendants with a defence on behalf of Clonmel Enterprises dated 4 June 1998. By notice of motion dated 20 May 1999, Clonmel Enterprises sought leave to serve a third party notice on Ashworth Frazer which was granted by Mr Justice Johnson on 28 June 1999 with notice issuing on 9 July 1999. By notice dated 8 November 1999 Ashworth Frazer applied for an order striking out the third party notice on the grounds it had not been served in accordance with the Civil Liability Act 1961 and on 7 June 2000 by order of Mr Justice Butler the notice was struck out for the reasons set out in the agreed note of the ex tempore judgment of the judge on that date. It was from this decision that Clonmel Enterprises appealed.
Mr Justice Murphy outlined the relevant statutory provisions under the 1961 Act. Section 27(1)(b) provides that, where a concurrent wrongdoer, who is sued for damages or contribution, seeks to claim contribution against a person not already party to the proceedings, he must serve a third party notice upon such person "as soon as is reasonably possible" and can only claim such contribution under the third party procedure. If such third party notice is not served in this manner, the court may, in its discretion, refuse to make an order for contribution against the proposed third party. Order 16 Rule 2(2) of the Rules of the Superior Courts provides that third party notices must, unless otherwise ordered by the court, be served within the time limited for delivering a defence or, where the notice is served by a defendant to a counterclaim, the reply, and with it a copy of the originating summons and pleadings in the action. Having regard to the fact the defence of Clonmel Enterprises was delivered on 4 June 1998 and the third party notice served on 9 July 1999, Mr Justice Murphy said that the issue before Mr Justice Butler in the High Court was whether Clonmel Enterprises had complied with the statute in relation to service being effected as soon as reasonably possible.
Mr Justice Murphy stated that much of the written submissions and oral argument before the court was directed to the scheme and purpose of the 1961 Act and in his view he felt there was little doubt as to what that was. The legislature was understandably desirious of avoiding a multiplicity of actions. Instead of defendants instituting further proceedings against other parties liable to them in respect of the same set of facts, the Oireachtas sought to establish a situation in which rights and liabilities of all parties arising out of a particular set of circumstances would be disposed of in the same set of proceedings. It was for this reason that a defendant was given liberty to issue and serve a third party notice on a potential defendant and this was a procedure which was attractive for all parties and desirable in the public interest. Mr Justice Murphy did however consider that the legislature had not intended to preclude an unsuccessful defendant from instituting proceedings against another party who he believed was liable to him in either tort or contract. In his view, what the 1961 Act did provide was, that where the actual defendant failed to avail of the third party procedure by serving the notice as soon as is reasonably possible and resorted to his original cause of action, the relief which he might have claimed therein was subject to the discretion of the court to refuse to make the order for contribution in his favour.
In considering the effect of section 27 of the 1961 Act, Mr Justice Murphy referred to the judgment of the then Chief Justice, Mr Justice Finlay, in St Laurence's Hospital v Staunton [1990] 2 IR 31, at page 36, where it was asserted that upon true construction of the subsection, the only service of a third party notice contemplated was a right to do so "as soon as is reasonably possible" and a defendant seeking to claim contribution against a person not party to the proceedings, cannot serve such a notice at any time other than this. Mr Justice Murphy stated that this expression did appear to be severe and the use of the word "possible" rather than "practicable", as invoked elsewhere, suggested a brief and inflexible time limit and perhaps, were it physically possible to serve the appropriate notice within an identified period, any further delay would be impermissible. However, the statute was not concerned with physical possibilities but legal and commercial judgments. Proceedings cannot, and should not be instituted, or contributions sought, without assembling and examining the relevant evidence and obtaining appropriate advice. Mr Justice Murphy considered that it was in this context that the word "possible" must be understood and furthermore, the qualification of the word "possible" by the word "reasonable" gives a further measure of flexibility. In support of this, reference was made to the decision of Mr Justice Barron in McElwaine v Paul Vincent Hughes (High Court, 3 April 1997, unreported), where it was stated that the terminology denoted that there should be as little delay as possible but that the use of the word "reasonable" indicated that circumstances may arise which justify some delay in bringing the proceedings. In addition to this, it was suggested in the same judgment, that the onus was on the defendant to show that the delay, if there was one, was not unreasonable.
Mr Justice Murphy then examined the reasons offered by Clonmel Enterprises for the delay in case at hand. The primary explanation was by reference to criminal proceedings instituted on 4 August 1995 against the Corporation, Clonmel Enterprises and Ashworth Frazer under health and safety legislation. Those proceedings came on for hearing in November 1998 with all parties being convicted. In particular, Ashworth Frazer were found guilty of failing to take steps to ensure that both the Corporation and Clonmel Enterprises had been supplied with adequate information about the use of the valve and about any conditions relating that same valve so as to ensure there was no risk to health when being used, dismantled or disposed of. The crucial documents dealing with installation and maintenance instructions had not been furnished to either party. In the affidavit grounding the application for leave to serve the third party notice, the solicitor on behalf of Clonmel Enterprises outlined the relevance of the criminal proceedings and in particular, it was stated that had Ashworth Frazer succeeded in defending the criminal charges, the service of the third party notice would have served no purpose and on that basis it was both reasonable and prudent to for the second defendant to have waited between the delivery of the defence dated 4 June 1998 and the outcome of those proceedings.
Mr Justice Murphy then considered submissions by counsel on behalf of Clonmel Enterprises. These in fact repeated and drew attention to the fact that postponement of an application for leave to serve the third party notice because of outstanding litigation had previously been upheld in Gilmore v Windle [1966] IR 323 and similarly in Connolly v Casey [2000] 1 IR 345 where defendants were awaiting replies to particulars and a statement of evidence, a delay was also incurred which the court considered an adequate explanation. Counsel on behalf of Ashworth Frazer drew a distinction between the facts of those cases and the instant case. It was suggested that Gilmore v Windle was readily distinguishable on the basis the outstanding proceedings in that case related to the interpretation of the Civil Liability Act 1961 which was newly enacted at the time. It was further suggested that the significant feature of Connolly v Casey was the identification of an error in the approach of the High Court to the defendant's decision to wait for the replies to particulars. It was not, as Mrs Justice Denham pointed out in that case, essential or even material to ascertain whether the replies were significant and the issue was whether it was appropriate, in the circumstances, to await the replies in question. In any event, it was the court's view in that instance that whether a defendant has discharged the onus of proving the application for leave was indeed brought as soon as reasonably possible, would depend upon the facts of the particular case.
Mr Justice Murphy in considering the facts of the present case stated that it was quite obvious that all the defendants had investigated the cause of the accident for the purposes of defending the action. In his view, there was no doubt that by 1995 at the latest they were fully familiar with the condition of the valve and the absence of the spindle collar and it was this fact which formed the greater part of the particulars of negligence against the proposed third party. It was also considered that apart from the information obtained from examination of the valve, Clonmel's own inquiries would have advised them as to the material furnished to them by Ashworth Frazer in relation to the equipment. However, insofar as the criminal proceedings were helpful or relevant in determining whether to institute proceedings against the third party the fact was, the summonses and books of evidence and statements were available to all parties not later than October 1995. Notwithstanding the availability of such documents, Mr Justice Murphy stated that in any event, Clonmel Enterprises were aware or should have been that they had not been provided with the appropriate information by Ashworth Frazer in relation to the valve. Their belief in this regard was supported by investigations by the National Authority for Occupational Safety which prosecuted the third party for failure to supply such information. The statement of evidence in relation to this was also available to Clonmel and so the application for leave to serve the third party notice was not postponed for want of information or evidence.
Mr Justice Murphy referred to the affidavit sworn by the solicitor on behalf of Clonmel Enterprises dated 4 February 2000 where the outcome of the criminal proceedings was said to have considerably enhanced the second named defendant's knowledge with regard to the evidence of the third party's involvement. They had previously been in the dark as regards the precise involvement of the third party and considered they would not have been justified in initiating third party proceedings on a speculative basis. The result of the hearing was that they were in no doubt a strong case could be made out and that on that basis, it was reasonable to await the outcome in all of the circumstances. Mr Justice Murphy stated it was correct to say the criminal proceedings enhanced the second defendant's state of knowledge and that there was indeed a strong case to be made. These were advantages which accrued by postponing the issue of the third party notice but the quest for certainty or verification must be balanced against the statutory obligation to make the appropriate application as soon as is reasonably possible. In Mr Justice Murphy's view, it was possible for Clonmel Enterprises on the information available to it, to make the decision to join the third party several months before the application was actually made. In those circumstances the trial Judge was correct in setting aside the third party order.
Accordingly, Mr Justice Murphy dismissed the appeal and affirmed the order of the High Court.
Mr Justice Hardiman and Mr Justice Fennelly concurred.
Solicitors: Con O'Leary Solicitors (Leixlip) for the plaintiff; Terence O'Keeffe, Law Agent (Dublin) for the first defendant; L.K. Shields & Co. (Dublin) for the second defendant; Lennon Heather & Co. (Dublin) for the third party.
Suzanne Burke- Barrister
