Court allows HSE appeal to set aside third party notice due to unreasonable two-year delay in service.

Neutral Citation [2016] IECA 243

THE COURT OF APPEAL

[2016 No. 60]

[2013 No. 2696P]

The President

Peart J.

Barrett J.

BETWEEN

MAJELLA KENNY

PLAINTIFF

AND

NOEL HOWARD

DEFENDANT/RESPONDENT

AND

THE HEALTH SERVICE EXECUTIVE

THIRD PARTY/APPELLANT

JUDGMENT delivered by the President on 29th July 2016

1. This is an appeal by the HSE, the third party, against the order of the High Court made by Barr J. on 1st February 2016 and

perfected on 2nd February. The HSE brought an application to the High Court under O. 16, r. 8(3) of the Rules of the Superior Courts

to set aside a third party notice served by the defendant pursuant to an order of the High Court. The basis of the application to set

aside the third party notice was that the defendant failed to serve the notice as soon as was reasonably possible as required by s.

27(1)(b) of the Civil Liability Act 1961. The High Court dismissed the application and the HSE appealed to this Court.

2. The plaintiff is a social care worker who claims in her personal injury summons in this matter that she was assaulted and battered

by a service user on or about 31st March 2011 in the course of her employment at a care home that is part of a group of homes

under the management of a Board of which the defendant is the Chairman and the nominated representative for the purpose of the

proceedings. The plaintiff alleges negligence, breach of duty, breach of statutory duty and/or breach of agreement on the part of the

defendant, its servants or agents whereby she sustained the alleged personal injuries, loss and damage.

3. Order 16, r. 1(3) of the Rules of the Superior Courts deals with the time for applying for leave to issue a third party notice as

follows:-

“(3) 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 . . .”

The parties are agreed that the relevant date i.e. the last date for an application in compliance with this rule was 22nd August 2013.

Some two years later, on 26th August 2015, the defendant issued a notice of motion seeking to join the HSE as a third party to the

action and by order of the High Court of 27th October 2015, leave was granted to issue and serve the proceedings. The HSE issued

its motion to set aside the third party notice on 26th November 2015, and it and the grounding affidavit was served on 2nd December

2015. A replying affidavit was sworn by Mr. Halley, the defendant’s solicitor, on 26th January 2016 and the matter came on for

hearing before the High Court and was heard and determined on 1st February 2016 when Barr J. delivered his ex tempore judgment.

The order was perfected on the following day.

4. Section 27(1)(b) of the Civil Liability Act 1961 provides that a concurrent wrongdoer who wishes to make a claim for contribution

against a party not already in the action shall “serve a third-party notice upon such person as soon as is reasonably possible”. The

case made by the HSE in the High Court was that the defendant was in breach of this statutory requirement and that the third party

notice should accordingly be set aside by the court. Barr J. held that he had to have regard to the nature of the proceedings before

the court; that this was not an ordinary case, but one where it was necessary, before making a claim against the third party, to

obtain advices from a suitably qualified expert to the effect that there was at least some arguable basis for liability on the part of the

HSE. He said that there was some delay in obtaining the necessary instructions caused, first, by the misplacement of papers in the

offices of Senior Counsel retained to advise in the matter, and thereafter some further delay on the part of the first expert

communicating with the defendant’s solicitor that he was not in a position to furnish an opinion, which meant that the solicitor had to

move to obtain the views of an alternative expert. The judge held that the defendant’s solicitor acted reasonably at that point in

speaking on the telephone to the second expert and on that basis in instructing Junior Counsel to draft the necessary proceedings to

join the HSE. He held that it was reasonable for the solicitor to obtain the advices of a suitably qualified expert given the nature of

the potential liability of the HSE and before proceeding to apply. He referred to the nature of the claim being made against the HSE

that it was negligent in directing the service user to this particular residential home when she was unsuited for such a facility. Barr J.

went on to find that the HSE “will not be prejudiced by the delay that has occurred in joining them as a third party to the proceedings

because at the trial of the action or the trial of the issue between the defendant and the third party, the court will be required to

look in some depth at the medical records pertaining to the service user at the time that the decision was made to house her in this

particular residential establishment”. The judge concluded “I find that while the delay is somewhat long, it was excusable in the

particular circumstances of this case”. The court, accordingly, refused the application by the HSE to have the notice set aside. The

HSE appeals against this finding.

5. Before considering the arguments in the case, it is necessary to set out the relevant chronology and the account and explanations

of the delay as furnished by the defendant’s solicitor, Mr. Halley. The affidavit of the solicitor for the HSE sets out relevant dates as

follows:

• The plaintiff issued her personal injuries summons against the defendant on 14th March 2013.

• An appearance was filed on 17th April 2013.

• A notice for particulars of 25th June 2013 received a response with replies on 27th September 2013.

• The personal injuries defence was delivered by solicitors for the defendant on 7th April 2014.

• The plaintiff’s solicitors filed notice of trial on 9th April 2014 and served their disclosure schedule pursuant to S.I.

391/1998 on the defendant’s solicitors on 2nd April 2015.

• The defendant applied to the High Court for leave to issue and serve the third party notice on the HSE on 27th October

2015 and the notice was issued on 17th November 2015 and served on 19th November 2015.

6. The defendant’s response came in the affidavit of Mr. Halley sworn on 26th January 2016. Having set out the background to the

plaintiff’s case, Mr. Halley said that issues were raised with the HSE as to the appropriateness and suitability of the placement of the

service user who allegedly caused the plaintiff’s injuries, both before and during the currency of her stay in the defendant’s care

facility. Following the incident, the HSE was fully informed as to the circumstances and the service user was ultimately transferred on

6th May 2011 to a high-dependency support service.

7. Mr. Halley addresses the delay issue. He says that papers were sent to Junior Counsel on 2nd January 2014, and in advices dated

20th March 2014, Counsel advised that consideration should be given to joining the HSE as third party. Papers were sent to Senior

Counsel on 1st May 2014 for advice on proofs, and specifically to advise on the issue of joining the HSE but “unfortunately, the

papers were misplaced in his office and I did not receive a reply from him with his Advice on Proofs and Advices until 30th January

2015”. Senior Counsel advised that the potential issue between the defendant and third party was a difficult and unusual one

requiring specialised expert opinion and advising that a report be obtained from Professor Gournay in the United Kingdom.

8. Mr. Halley wrote to the State Claims Agency on 26th March 2015, before getting expert opinion, in which he set out facts

concerning the service user and stated that the feasibility of sustaining her placement in the home had been raised on a continuing

basis with the Social Work Department of the HSE. He said that the HSE was alerted to the unsuitability of the placement and that it

had accepted at a case conference that the person needed a more specialised placement. His letter concluded with the following

paragraph:

“In the circumstances, it is clear that the service user should not have been placed with the defendant and in the

circumstances it is intended to make an application to join the HSE as a third party to the proceedings.”

9. Mr. Halley says that he received instructions from his clients on 13th March 2015 to instruct the expert and a letter was sent to

him on 20th April outlining the case and asking if he was prepared to assist. Despite reminders and attempts to telephone the expert,

Mr. Halley did not receive a reply until 27th June 2015 when he declined because he was due to have surgery. The original expert

recommended Professor David Sines to whom Mr. Halley wrote on 30th June 2015. He sent him formal instructions on 10th August

2015 and received his report on 13th September 2015. However, due to the lapse of time, Mr. Halley decided that it was necessary to

proceed with the third party application. He had been in contact with Professor Sines who indicated that there were strong grounds

for involving the HSE. On that basis, Mr. Halley proceeded to prepare the application.

10. Mr. Halley says that the case is difficult and unusual and that in those circumstances the delay that occurred was not

unreasonable or excessive. Further, the evidence on which the third party proceedings are based is entirely captured by

contemporaneous documentation in the possession of the defendant and the HSE. No prejudice therefore arises for the HSE by reason

of delay and he points out that none such is alleged.

11. Mr. Halley repeats that there was no undue delay on the part of the defendant in joining the HSE. He says that the HSE was well

aware of the precise circumstances giving rise to the plaintiff’s claim, namely, the issue arising from the placement of the service user

with the defendant by the HSE and that it was also aware of the potential involvement that it might have in the action. He claims, in

the circumstances, that the HSE was joined as soon as reasonably practicable.

The Relevant Time Period

12. It is agreed between the parties that the relevant time with which we are concerned is between 22nd August 2013 and 26th

August 2015. The first of those dates is when the third party notice should have been issued if the time limits in the rules had been

observed. The second date is the date when the notice of motion was issued. Since these are agreed, we do not have to consider

any question as to whether it is the date of service of the notice or the date of issuing of the notice of motion that is relevant.

Discussion

13. The relevant part of s. 27 of the Civil Liability Act 1961 is as follows:

“(1) 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.”

14. It is also relevant to cite s. 31 which is as follows:

“An action may be brought for contribution within the same period as the injured person is allowed by law for bringing an

action against the contributor, or within the period of two years after the liability of the claimant is ascertained or the

injured person's damages are paid, whichever is the greater.”

15. The question to be decided on this appeal is whether the defendant served his third party notice as soon as was reasonably

possible by doing so on 26th August 2015 after a delay of two years.

16. There was no controversy or dispute between the parties as to the principles to be applied. It is the application of the principles

that is in dispute. The law may be briefly summarised by reference to some of the leading cases.

17. The purpose of s. 27(1)(b) of the Act is to ensure as far as possible that all legal issues arising out of an incident are disposed of

within the same set of proceedings. That does not mean that all the issues have to be dealt with simultaneously; that may depend on

appropriate orders as to the time and mode of trial of the various issues. At the same time as ensuring that all the issues are

comprised in the one set of proceedings, the other goal of the provision is to avoid unnecessary delay of the plaintiff’s action. It

seems to me that this is the essential logic of the requirement that the proceedings be joined in the same action and of the

specification as to time.

18. In Connolly v. Casey & Anor. [2000] 1 I.R. 345, the Supreme Court per Denham J. (as she then was) said:

“The clear purpose of the subsection is to ensure that a multiplicity of actions is avoided; see Gilmore v. Windle [1967]

I.R. 323. It is appropriate that third-party proceedings are dealt with as part of the main action. A multiplicity of actions

is detrimental to the administration of justice, to the third party and to the issue of costs. To enable a third party to

participate in the proceedings is to maximise his rights - he is not deprived of the benefit of participating in the main

action.”

To this, I would add the other object of the provision insofar as it restricts the time to what is reasonably possible which is to protect

the plaintiff’s position at the same time as ensuring that all the appropriate other parties are before the court in the same set of

proceedings.

19. In Molloy v. Dublin Corporation [2001] 4 I.R. 52, the Supreme Court per Murphy J. said:

“The statute is not concerned with physical possibilities but legal and perhaps commercial judgments. Proceedings cannot

and should not be instituted or contributions sought against any party without assembling and examining the relevant

evidence and obtaining appropriate advice thereon. It is in that context that the word ‘possible’ must be understood.

Furthermore, the qualification of the word ‘possible’ by the word ‘reasonable’ gives a further measure of flexibility.”

But the court said that:

“. . . the quest for certainty or verification must be balanced against the statutory obligation to make the appropriate

application ‘as soon as reasonably possible’.”

20. The court, in Connolly v. Casey, emphasised that “in analysing the delay – in considering whether the third party notice was

served as is soon as is reasonably possible – the whole circumstances of the case and its general progress must be considered”

(Denham J.) That statement was understood by Finlay Geoghegan J. in Green & Green v. Triangle Developments & Wadding and Frank

Fox & Associates third party [2015] IECA 249 as meaning that a court, when looking at an application to set aside a third party notice

should not only look at the explanations given by the defendant for the delay “but also to make an objective assessment as to

whether, in the whole circumstances of the case and its general progress, the third party notice was or was not served as soon as is

reasonably possible”.

21. The reference to all the circumstances in Connolly v. Casey and the import of the other citations is that it is proper in an

appropriate case to allow time for a party to get expert advice or to wait for further and better particulars of something arising in the

pleadings. It is impossible to catalogue all the exigencies that may arise in a case that take time to be satisfactorily addressed.

Reasonably possible means what it says.

Application to this Case

22. Two particular circumstances are advanced by the defendant in support of its claim that the notice was served as soon as

reasonably possible. The first is that it was a case of unusual complexity akin to one of professional negligence and that it was

necessary to have specialist advice. Counsel for the HSE expresses some mild scepticism on this point because he says the case is

essentially a simple one – that the HSE should have known that the person in care had a disposition that made it foreseeable that

some such event, as occurred to the plaintiff, would happen. It is of interest that Mr. Halley’s letter of 25th March 2014, at a time

when he had not yet written to Professor Gournay, actually sets out a quite specific case against the HSE and notifies them that it is

the intention to issue proceedings. However, Counsel did not particularly press this point and I think that was wise. It seems to me

that it was reasonable in the circumstances for the defendant to seek expert advice. I also think that it was understandable that the

expert Mr. Halley sought to retain was not available and he had to engage another person. These things happen. The problem with

this point is that it took until April 2015 for Mr. Halley to write to the expert seeking his agreement to accept instructions.

23. It is impossible to consider that delay as being necessary or justifiable. In the words of the section, it could not be considered

that such a time period could be considered to be “as soon as reasonably possible”. While it appears that the plaintiff moved on his

case at something like a reasonable pace, the defence did not proceed in the same manner. There are long or significant periods when

nothing happened. The explanations that are furnished by Mr. Halley are really descriptions of the failure to take any steps and do not

in any way establish necessity or reasonableness.

24. The other issue raised and which was relied on by the judge in the High Court is that there is no evidence of any specific

prejudice on the part of the HSE. However, even if it is difficult to see how prejudice, express or implied, could arise in the case, that

is not the issue; if it is clear that the third party notice was not served as soon as reasonably possible, that is a failure of compliance

with the specific mandatory requirement of s. 27(1)(b). The section does not require proof of prejudice in order to rely on its terms. It

is true that in Robbins v. Coleman [2010] 2 I.R. 180, McMahon J. held that the question of the presence or absence of prejudice was

not to be out-ruled a priori.

25. It seems to me that a third party applying to set aside a notice served by a defendant could argue that he had suffered prejudice

and that a shorter period than might otherwise be allowed ought to be imposed in determining what was as soon as reasonably

possible. I find it difficult to understand how a defendant who is in default of the clear requirement of the subsection can escape the

consequences by proposing that the third party has not suffered any specific prejudice. The authorities cited do not go as far as

suggesting that the section’s impact may be defeated by demonstrating the absence of prejudice. In the present case, it seems to

me that it is irrelevant whether or not the HSE has suffered prejudice by reason of the delay.

26. Section 27 (1) (b) requires the Third-Party Notice to be served as soon as reasonably possible. This provision represents a time

limit, albeit not a specified universal limitation period. It depends on the particular case. A delay in one case may be reasonable

whereas the same time lapse in another may be fatal to the defendant’s wish to join the alleged contributor. A notice will be

considered to have been served as soon as reasonably possible if it is sought promptly by motion and the normal court processes

entail delay in the listing and hearing of the application for leave to issue and serve. In this case, the parties have sensibly agreed to

take the date of the issue by the defendant of his motion. The application to set aside is almost invariably concerned with whether

the requirement of “as soon as reasonably possible” has been complied with. Leaving aside for the moment the question of which

party carries the burden of proving compliance or non-compliance, what does a concurrent wrongdoer applicant have to do in order to

establish compliance? This is a matter that arises particularly in the present application. It is not sufficient simply to describe or

explain the delay. In other words, compliance is not achieved by the party or his solicitor deposing to how the delay arose. And

neither, it would seem, is it enough to seek to excuse the delay by reference to exigencies that can occur or tribulations that may

befall a person in the ordinary course of life. In this latter category would be mistakes, misfiling of documents and errors and omissions

generally. Obviously, the court cannot take too high and mighty a view about human frailty as to rule out of consideration every

human error. However, the point is as I see it that for the party to describe how the delay happened is not enough; neither is it

sufficient for compliance with the section to say that it happened because of a series of unfortunate events. A particular thing might

have afflicted the process of management of the case; that would be understandable. But a whole series of such events brings to

mind the observation of Lady Bracknell.

27. It has to be acknowledged at the outset that the period in this case of two years is a very long time in the case of a third party

notice. It is also unfortunately true that while there is explanation of the delay, in the sense that the chronology is set out and it is

revealed what happened and how the delays arose over the various different episodes in the account given by Mr. Halley, there is

little that would offer any justification or excuse for the delays. However, two particular arguments are raised that need to be

considered. The first is that this third party issue involved a difficult, unusual case of professional negligence. Assuming that to be the

case, the problem is that the first letter of engagement to Professor Gournay was on 20th April 2015, a year and three-quarters after

the time for the service, as specified in the rules. A substantial part of the period of delay is when the papers were mislaid by

Counsel. That is undoubtedly unfortunate and any experienced lawyer will sympathise. That is not the only delay, however, and

equally unfortunately.

28. Fundamentally, it seems to me that the section requires that the time taken should be related to the necessities of the case so

that the notice that is served can properly be described as being “as soon as reasonably possible.” This is the key to understanding

the provision. It is not a matter of criticising the conduct of the concurrent wrongdoer applicant; neither is it a matter of excusing

error or default. It is a judgment about what is reasonably necessary in the circumstances of the case.

29. I find it impossible to accept that the delay of two years could, on any view of the circumstances of this case, be considered to

be as soon as reasonably possible.

30. I would therefore allow the appeal and set aside the third party notice.