O'Connor v Coras Pipeline Services Ltd (Unapproved) [2021] IECA 68 (11 March 2021)

JUDGMENT of Mr Justice Max Barrett delivered on 11

day of March 2021.

Introduction

This is an application to set aside a judgment of the High Court whereby, pursuant to O.16,

r.8(3) of the Rules of the Superior Courts, as amended, (a) the defendant's proceedings against

the third party in the above-entitled proceedings were set aside, (b) the defendant was ordered

to pay the costs of the set-aside application before the High Court, (c) a stay was placed on the

costs order pending the determination of the proceedings.

Background Facts

The facts of the underlying personal injuries dispute that forms the crux of the within

proceedings are as follows. Mr O'Connor, a construction worker employed by Coras Pipeline

Services Ltd. claims to have been involved in an accident at a site in Knocklane, Dublin on 7

January 2015. The alleged accident came about in circumstances where the services of Coras

had been retained by Northstone (NI) Limited, which company had itself been retained by Irish

Water to install water meters nationwide. It is a matter of public knowledge that the nationwide

installation of such meters occasioned a degree of public disquiet. As a result, Mr O'Connor

claims, the area where the installation works were being carried out at Knocklane had been

carefully cordoned off by the erection of barriers for the protection of pedestrians and also, in

all the circumstances presenting, for the protection of workers.

Mr O'Connor maintains that on the day of the alleged accident the prevailing weather

conditions were very windy and that, as a result, a number of the pedestrian barriers around the

area where crew members were working were blown over. He claims that the Northstone site

engineer had directed that the barriers were required at all times to be in place and that, as a

consequence, a number of Coras workers, including Mr O'Connor, had been directed to re-

erect the fallen barriers and secure them with sandbags. It was while Mr O'Connor was engaged

in this last activity that the alleged accident occurred which has given rise to the within

proceedings. Thus, he claims that while he was in the process of re-erecting the barriers a strong

gust of wind forced the barriers to move, causing Mr O'Connor to twist his thumb.

Following this alleged incident, Mr O'Connor instituted personal injuries proceedings

against Coras. Coras, in turn, considers that Northstone was in control of the relevant site and

failed to exercise reasonable care regarding the directions/instructions given to Mr O'Connor

as regards engaging in the task of re-erecting the barriers. It was in this context that on 15

January 2018, an application was made by Coras to join Northstone as a third party. On 26

November 2018, Northstone in turn made application to have the third-party notice set aside;

that application was acceded to by the High Court and the within appeal against the decision

to accede has ensued.

III

Chronology of Joinder and Set-Aside Applications

The following summary chronology is useful in understanding the sequencing and timing

of events as regards the joinder and related set-aside applications:

20.04.2015

Loss adjusters for Coras write to Farrans. (Farrans

is a wholly owned subsidiary of Northstone). The

letter states, inter alia, as follows:

"Our investigations to date suggest that

as your engineer directed the employees

of [Coras]...to re-erect the barriers, but

did not use a safe system of work...that

you are liable for the accident...".

[Note: In an affidavit sworn in the set-aside

proceedings, a Northstone insurance manager

averred, inter alia, as follows:

"I say and believe that the...letter [of

20.04.2015] constitutes incontrovertible

evidence that the Defendant had all the

information that it needed to make a

determination in relation to liability issue

between the Defendant and the Third

Party and had in fact made a

determination that the Third Party was

liable for the accident the subject matter

of the proceedings before the proceedings

had even been served on them."

In truth, on closer examination, the just-quoted

analysis, when one has regard to the express text of

the letter, does not hold good for at least three reasons.

First, the letter is not addressed to Northstone. Rather,

the loss adjusters appear to consider that the

addressee, a separate, subsidiary company (Farrans),

is liable for the accident. Second, the letter does not

purport to represent the final and concluded opinion

of the loss adjusters as to liability; rather it refers

simply to "Our investigations to date...". It is

therefore clear that the perceived position could

change, and in point of fact it did change, with

Northstone being the party that was eventually joined,

not Farrans. Third, the references in the letter are to

Farrans' engineer, not Northstone's engineer, so

again the loss adjusters were clearly focused on the

perceived liability of a different third party (Farrans)

at the time of the letter and thus had not "made a `

determination that the Third Party was liable for the

accident the subject matter of the proceedings before

the proceedings had even been served on them".]

28.10.2016.

Personal injuries summons issues.

08.11.2016.

Summons served. Appearance filed by Coras.

21.11.2016.

Notice for Particulars raised by Coras.

[Note: Following a reminder letter of 20

February

2017, the replies to particulars issued on 16

March

2017.]

31.01.2017

A strict application of the Rules of the Superior

Courts yields the conclusion that the application to

join Northstone ought to have been made by this date.

This is because of the combined operation of: (i)

O.16, r.1(3) RSC, which requires an application to be

made, in the circumstances here presenting, "within

twenty-eight days from the time limited for delivering

the defence"; and (ii) O.1A, r.8 RSC, which provides

that "A defence shall be delivered by each

defendant...within eight weeks of the service on such

defendant of the plaintiff's personal injuries

summons". Here, given that the personal injuries

summons was served on 8

November 2016, that

eight-week period would bring one to 3

January

2017, and the 28-day period would then bring one to

January 2017. However, both parties are agreed

that in practice the timeframe for joinder, as

prescribed by the Rules, is more honoured in the

breach than the observance.

16.03.2017.

Replies to Particulars received.

[Note: Considerable information was revealed in the

replies as to certain prior injuries of the plaintiff and

the nature of his claim.]

April 2017

Copy of contract documentation sourced.

[Note: Counsel for Coras, when he was originally sent

the papers in November 2016, advised as to the

proposed joinder of Northstone but requested sight of

the contract entered into between Coras and

Northstone to see if there were any indemnity

arrangements in that contract that would negate the

need for joinder. In the written submissions for Coras

it is stated that "It took a little time for the contractual

documentation to be traced, and the same was

received in April of 2017 by [Coras']...solicitors",

presumably from Coras. This is a lengthy period of

delay in a context where counsel had expressly

advised that joinder of Northstone might be necessary

and hence where the s.27(1)(b) "as soon as is

reasonably possible" obligation would apply. As I

noted in a similar context in my own judgment in

McGeown v. Topaz Energy Group [2019] IEHC 288,

at para. 4, to which the Court was referred by counsel

for Northstone, that earlier case being concerned with

circumstances where there had been a circa. four-

month delay in a client furnishing documents to its

advisors (here the delay was circa. 5 months):

"No matter how liberal an approach one

takes to interpreting the phrase `as soon

as is reasonably possible' it cannot be

read to embrace a defendant holding

documents until asked for them by its

lawyers and then taking somewhere in the

region of four months to provide them to

its lawyers",

at least, it might be added, where no good excuse has

been offered for such a period of delay, and here no

good excuse has been provided.]

18.05.2017.

Defence filed by Coras.

[Note: Sometime around this time Coras' managing

director appears to have raised a query with the

company's legal advisors concerning the substance of

the contract with Northstone and the indemnity

arrangements under same. It is not entirely clear how

this is relevant to the issue of whether Coras acted "as

soon as is reasonably possible" for the purposes of

s.27(1)(b) of the Civil Liability Act 1961, as

amended. It may be that the indemnity issue raised

was perceived as potentially negating any need to

bring a joinder application. However, if it was merely

a query regarding the excess on the policy that query

affords little or no justification for delay. In any event

a meeting was scheduled with counsel for 25

July

2017 but that meeting was subsequently cancelled.]

13.11.2017.

Motion to join Northstone issues.

[Note: In response to a query at the hearing as to why,

following the cancellation of the meeting in July it

took until November for the joinder motion to issue,

the response was that the managing director of Coras

had to swear up his affidavit evidence and that

thereafter the documentation was filed within days. If

one assumes from this answer that the documentation

was filed in early-November, that means that in a

best-case scenario from Coras' perspective, it took its

managing director from July 2017 to November 2017

to swear up affidavit evidence, it seems for no other

reason than that is the time it took.]

15.01.2018.

The last-mentioned motion succeeds.

15.02.2018.

Defendant files Third Party Notice and serves

Northstone.

04.04.2018.

Appearance to Third Party Notice entered.

7.09.2018.

Set-aside application issues.

[Note: In its written submissions, Northstone

acknowledges that a level of delay presents in the

bringing of the set-aside application, counsel

submitting, inter alia, as follows in this regard:

"7.1 The Respondent does not take

issue with [Coras']...submissions

that the Respondent had a

corresponding legal obligation to

issue the Motion to strike out the

Third-Party Notice as soon as was

reasonably possible.

7.2 The Respondent is indemnified

under a policy of insurance with

Zurich. There was a relatively short

period of delay between the time

that the Third-Party Notice was

served on the 15

February 2018 to

when the Respondents' solicitors

on the instructions of Zurich

entered an Appearance on the 4th

April 2018.

7.3. The Respondents' solicitors

briefed counsel in early-July 2018

for the purpose of providing an

Opinion. Counsel provided an

Opinion to the Respondents'

solicitors on the 11

July 2018 that

there were grounds to bring an

application to set the Third-Party

Notice aside due to delay. Counsel

also provided the Respondent's

solicitors with a draft notice of

motion and grounding affidavit for

an application to strike out the

Third-Party Notice on the 11

July

2018.

7.4 It was necessary for the

Respondent's solicitors to take

instructions from Zurich in relation

to whether it wished to bring the

Motion.

7.5 It then took a period of time to

obtain the sworn affidavit from a

director of the Respondent. It is

respectfully submitted that the

Court

should

take

into

consideration that the period in

question includes the month of

August.

7.6 While the Respondent accepts

that there was some delay in issuing

the Motion to strike out the Third-

Party Notice it is respectfully

submitted that the period of delay

was relatively short and was not

unreasonable

all

the

circumstances."

[Note: It is notable that the period complained of by

Northstone when it comes to Coras (the seven-month

period from April 2017 to November 2017) is roughly

similar to the period complained of by Coras when it

comes to Northstone (the seven-month period from

February 2018 to September 2018). Each side

maintains that despite the ostensible delay there was

some activity during the relevant period. There is a

remarkable delay on the part of Northstone of almost

five months from service of the third-party notice on

February 2018 to "early July" (whatever exactly

that means) to enquire of counsel whether a set-aside

application ought to be filed. The submissions are

vague as to how long it took to apprise, and get

instructions from, Zurich. That there was a delay in

getting a director to sign is delay of a type that

Northstone seeks to have counted against Coras

which likewise delayed in getting a director signature,

albeit of different durations. Moreover, while I accept

that there can be a degree of slow-down in August,

solicitors' firms do not completely close down at that

time and people generally remain contactable

electronically and via courier.]

26.11.2018.

Third-Party Notice set aside by High Court

Allowing for the fact that in practice the strict timeframe for joinder under the rules is

more observed in the breach than the observance, it seems to me from the above-described

chronology that the latest date by which the joinder application should have been brought was

sometime around April 2017. At that time Coras' lawyers were in possession of the contractual

documentation, could assess whether or not an indemnity issue presented, and had the standing

advice since the previous November from counsel as to the ostensible need to join Northstone

to the proceedings. No good reason has been offered by Coras as to why it delayed from this

point onwards. Nor can it be concluded that in proceeding as it did Coras acted "as soon as is

reasonably possible". Even if one takes Coras' case at its absolute height and thus takes July

2017 as the date from which Coras could have acted and that is to be perhaps unduly generous

to Coras it still delayed until mid-November before commencing its joinder application. Even

allowing for some delay over the Summer vacation period, Coras again cannot be said, even

within this narrower timeframe to have acted "as soon as is reasonably possible".

Ex tempore judgment of the High Court

The learned trial judge delivered an ex tempore judgment. He recited the facts. He treated

with certain of the notable cases in this area. He did not treat with the judgment of the Supreme

Court in Boland v. Dublin City Council [2002] 4 IR 409, though I do not know whether that

case was opened to the learned judge.

Notably, the learned trial judge does refer to delay by Northstone, (i) (at p.2 of his

judgment, lines 16-19) where he notes the seven-month period between the service of the third-

party notice and the subsequent issuance of the set-aside motion, and (ii) (at p.2, lines 27-28)

where his observation that "I am not particularly persuaded by the effects of the delay in issuing

this motion by the third party" (which appears to involve a finding that the learned trial judge

did not consider the delay on the part of Northstone in issuing the set-aside motion to be legally

objectionable and given the overall result of his judgment it seems implicit in any event that

he must have made some such finding). As will be seen, having due regard to the requirements

of s.27(1)(b) of the Act of 1961 and, more particularly, the judgment of the Supreme Court in

Boland, I respectfully depart from the judgment of the learned trial court judge insofar as

regards the non-objectionability, from a legal perspective, of Northstone's delay in bringing its

set-aside application. Specifically, it does not seem to me, when one has regard to the above

summary chronology and the observations that I make in the course of recounting same, that

Northstone can properly be said to have acted "as soon as is reasonably possible", for the

purposes of s.27(1)(b) of the Act of 1961, as amended, when it came to issuing its set-aside

motion in September 2018, following upon the service upon it of the third-party notice in

February of that year.

By way of conclusion to his judgment, the learned trial judge made the orders indicated in

the opening paragraph above.

Grounds of Appeal

10.

By notice of expedited appeal received on 6

December 2018, Coras has advanced the

following grounds of appeal, viz. that the learned trial judge erred in fact and in law:

"(1)

...in setting aside the Third-Party Notice.

(2)

...in concluding that the Third-Party Notice had not been

served as soon as is reasonably possible.

(3)

...in ignoring the reasons set forth for the delay in serving

the Third-Party Notice as soon as reasonably possible, and

which delay was not in any way excessive and conformed

to normal litigation practice.

(4)

...by placing undue reliance on correspondence emanating

from the Defendant's loss adjusters to the Third Party's

loss adjusters, prior to the issuing of proceedings herein.

(5)

...in relying upon the decision in Clúid Housing

Association v. O'Brien [2015] IEHC 398 and in

considering that the factual situation herein required the

Defendant to issue the Third Party Notice within the time

as envisaged in Order 16, Rule 1(3) and/or that there were

any circumstances which required the Defendant to move

with undue haste.

(6)

...in enquiring and considering whether the Defendant

would seek to issue separate contribution proceedings

against the Third Party herein, in the event that the Third-

Party Notice was set aside.

(7)

...in

contemplating

that

separate

`contribution'

proceedings could be issued as against the Third Party,

thereby resulting in a multiplicity of actions as opposed to

having all actions heard within the one set of proceedings.

(8)

...in failing to give any consideration to the delay on the

part of the Third Party in bringing the application herein to

set aside the Third-Party Notice, in circumstances when it

itself was served with the Third-Party Notice on the 15

February, 2018, and did not issue the Motion to set aside

the Third Party Notice until the 7

of September, 2018."

11.

In his written submissions to this Court, counsel for Coras distils the grounds of appeal

into three key points, viz:

"(i)

The learned trial judge erred in fact and in law in

concluding that the Third-Party Notice had not been served

as soon as reasonably possible.

(ii)

The learned trial judge erred in fact and in law in

considering whether [Coras]...if the Court set aside the

Third-Party Notice, would bring an application for

separate contribution proceedings. This is a matter which

should not have been a consideration in the decision to set

aside the Third-Party Notice.

(iii)

The learned trial judge did not consider that

[Northstone]...itself had delayed in bringing the motion to

set aside the Third-Party Notice".

Principal Law Applicable

i. General.

12.

The key legal provisions raised at the hearing of the within appeal are ss.27 and 31 of the

Act of 1961, as amended, and O.16, r.1(3) RSC.

ii. Sections 27 and 31.

13.

Sections 27(1) and 31 of the Act of 1961, both of which sit in Chapter II of the Act of 1961

("Contribution between concurrent wrongdoers") provide as follows:

"Procedure for claiming contribution.

27. (1) A concurrent wrongdoer who is sued for damages or for

contribution and who wishes to make a claim for

contribution under this Part--

(a) shall not, if the person from

whom he proposes to claim

contribution is already a

party to the action, be entitled

to claim contribution except

by a claim made in the said

action, whether before or

after judgment in the action;

and

(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

order

for

contribution against the

person

from

whom

contribution is claimed.

...

Limitation of actions for contribution.

31.

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."

[Emphasis added].

14.

The contention was made for Coras at the hearing of the within proceedings that, in effect,

the two-year period referred to in s.31 ought to be seen as an outlier against which the obligation

in s.27(1)(b) to "serve a third-party notice...as soon as is reasonably possible". Two problems,

it seems to me, arise with this contended-for interpretation:

first, there is nothing in the express text of the Act which

suggests that the Oireachtas saw the two-year period in s.31

as being in any way connected with the obligation in

s.27(1)(b) to "serve a third-party notice...as soon as is

reasonably possible".

second, it seems to me that the two periods referred to in ss.

27 and 31 are concerned with altogether different matters.

The two-year period in s.31 relates to the maximum time

permitted for the commencement of proceedings. The "as

soon as is reasonably possible" period in s.27(1)(b)

concerns the pace at which steps are to be taken in

proceedings post-commencement. I do not see that the

assessment of what is a "reasonably possible" timeframe

within which to serve a third-party notice falls ever to be

done by reference to a limitation period which, in effect,

becomes redundant once proceedings are commenced

within the outside limit of same.

iii. Order 16, rule 1(3).

15.

Order 16, rule 1(3) of the Rules of the Superior Courts, so far as relevant to the within

proceedings, provides as follows:

"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 limit for delivering the defence...".

16.

If O.16, r.1(3) RSC were not so rigorous in its terms that it falls in practice to be honoured

more in the breach than the observance, then a court could reasonably factor into its conclusions

that a failure to comply with O.16, r.1(3) pointed to a failure to serve "as soon as is reasonably

possible". However, given that O.16, r.1(3) is so rigorous in terms of timing that the parties are

agreed that it is honoured more in the breach than the observance (which suggests that it is not

adhered to very much at all), this sequential reasoning, whereby a breach of O.16, r.1(3) points

to a breach of s.17(1)(b), becomes impossible. Hence, not because of any primacy of statute

over the rules of court but rather because of the dissatisfying position which presents that O.16,

r.1(3) is so rigorous that it is, in practice, honoured more in breach than observance, I am, at

this time, and because of the aforesaid practice, essentially driven (a) to confine my attentions

in the within appeal to the following question: `Was service of the third-party notice effected

"as soon as is reasonably possible"?' and (b) to leave aside the question whether there was

compliance with the rules, which compliance, all else being equal, would, in a situation where

general practice did not so sharply deviate from what the rules require, likely be of assistance

in determining whether there had been compliance with s.27(1)(b).

17.

Were it not for existing case-law in this area, one might perhaps approach the question at

point (a) above on the basis that (i) one cannot serve a third-party notice until one has leave to

serve it, (ii) here that leave was obtained on 15

January 2018 and service was effected one

month later, and (iii) a court would be justified on the facts presenting that such service was

effected `as soon as was reasonably possible'. However, the courts have for many years brought

a different construction to bear. So, for example in a very early case, The Board of Governors

of St Laurence's Hospital v. Staunton [1990] 2 I.R. 31 (SC), Finlay C.J. elides any distinction

that might be made, in the context of s.27(1), between the process of making application for

leave to serve a third-party notice and the service of such notice once obtained, observing, for

example, at p. 36, as follows:

"I am quite satisfied upon the true construction of that sub-section that

the only service of a third-party notice contemplated by it and,

therefore, the only right of a person to obtain from the High Court

liberty to serve a third-party notice claiming contribution against a

person who is now already a party to the action, is a right to serve a

third-party notice as soon as is reasonably possible. A defendant in

an action seeking to claim contribution against a person who is not a

party to the proceedings cannot serve any third-party notice at any

other time, other than as soon as is reasonably possible.

In my view, the application brought after the conclusion of the action

by the plaintiff against the defendants for liberty to serve a third-party

notice could not, under any circumstances, be construed as an

application to serve a third-party notice as soon as was reasonably

possible....

In these circumstances, serving a third-party notice on the third party

after the conclusion of the plaintiff's claim is not serving it as soon as

is reasonably possible."

18.

In truth, the foregoing establishes something of a moving target for litigants seeking to

claim a third-party contribution: unless they act with what, at the moment of action, is an

unknown degree of haste, they cannot be certain that a court coming to matters at some future

time with the benefit of hindsight will not find that it failed to act "as soon as is reasonably

possible" for the purposes and within the meaning of s.27(1)(b). That being so, it seems to me

that the difficulty which presents in this regard for a litigant hoping to seek a third-party

contribution (trying to anticipate what a future court will consider reasonable when it looks to

the past) ought properly to be offset by a certain generosity of spirit on the part of the courts

when it comes to determining whether or not there has been compliance with s.27(1)(b).

VII

Case-Law

i. General.

19.

There was little, if any, divergence between the parties as to the law as iterated in a number

of prominent cases over the years. Where the parties differed was as to the end-result at which

the Court should arrive following an application of relevant legal principle. I proceed now to

consider various cases that were opened to the Court at the appeal-hearing.

ii. Connolly v. Casey

(Unreported, High Court, Kelly J., 12 June 1998)

20.

This was a strike-out application, treated by the High Court as an application made under

O.16 RSC. It was brought in the context of professional negligence proceedings issued against

solicitors who had in turn sought to join a barrister to those proceedings. The basis upon which

the third party sought a set-aside order was the alleged failure on the part of the defendants to

comply with the "as soon as is reasonably possible" requirement in s.27(1)(b) of the Act of

1961, as amended. Although the High Court in Connolly held, in a later-reversed judgment,

that the third-party notice in issue had not been served "as soon as is reasonably possible", it

notably observed, inter alia, as follows:

"The Third-Party places reliance upon the Defendants' failure to

comply with the provisions of Order 16 Rule 1(3). He is of course

entitled to do so. However, experience indicates that only a tiny

percentage of applications to join a Third Party are made within the

time prescribed by this rule. It would, in my view, require very

exceptional circumstances for the Court to accede to an application of

this sort if the only complaint related to a failure to observe strict

compliance with the provisions of this rule."

21.

It is regrettable that almost a quarter of a century after the High Court expressly adverted

in Connolly to general non-compliance with O.16, r.1(3), this Court should continue to be

presented with submissions in which all the parties are agreed that the time-limit in O.16, r.1(3),

a rule of court established by secondary legislation, continues to be honoured more in the

breach than the observance. It does little for respect for the rule of law or for the rules of court

if those rules establish time constraints which are so rigorous that they are more honoured in

the breach than the observance, with the courts expected to tolerate what appears to be a general

divergence in practice from the timescale that O.16, r.1(3) ordains.

22.

In the course of the hearing of the within proceedings Coras asserted, and Northstone

denied, that what was in issue in these proceedings was a failure to observe `strict' compliance

with the provisions of O.16, r.1(3). Given that, by common agreement, O.16, r.1(3) is more

honoured in the breach than the observance, I do not see how `strict' non-compliance with

O.16, r.1(3), a rule established by secondary law, could ever, given the general professional

practice that continues to present, be counted against a party, including in a determination as

to whether there has been compliance with s.27(1)(b).

iii. Connolly v. Casey

[2000] 1 IR 345 (SC)

23.

This was a successful appeal against the above-considered decision of the High Court. The

case is notable, inter alia, for the following observations of Denham J., as she then was. at p.

351:

"[I]n considering whether the third-party notice was served as soon as

is reasonably possible - the whole circumstances of the case and its

general progress must be considered. The clear purpose of the

subsection is to ensure that a multiplicity of actions is avoided....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."

24.

A number of points arise from the above.

25.

First, as was anticipated by the decision of the Supreme Court in St Laurence's, Denham

J. makes clear that in assessing whether there has been compliance with the "as soon as is

reasonably possible" requirement in s.27(1)(b) of the Act of 1961, as amended, "the whole

circumstances of the case and its general progress must be considered".

26.

Second, as Denham J. states, "[t]he clear purpose of [s.27(1)(b)]...is to ensure that a

multiplicity of actions is avoided". Additionally, if a court considers that there has been a breach

of the "as soon as is reasonably possible" obligation in s.27(1)(b) then, per the same

subsection, "the court may in its discretion refuse to make an order for contribution against

the person from whom contribution is claimed". Given that this possibility is open to a court

and given the "clear purpose" of s.27(1)(b), as indicated by Denham J., it would seem that a

certain premium should attach to avoiding a multiplicity of proceedings. This is because in

avoiding a multiplicity of proceedings, i.e. by allowing an action for contribution to continue,

a court which so allows does not thereby obviate the possibility that the court which hears the

substantive proceedings may elect to invoke the discretion to refuse to make an order for

contribution against the person from whom contribution is claimed.

27.

Third, Denham J. points to the fact that "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." However, I do not understand Denham J. to be asserting in this regard that a

court should place a greater premium on a third party's rights than s/he or it places on same.

So where, as here, a third party (Northstone) expressly indicates that it does not wish to

participate in the main action, it does not seem to me that, absent e.g., shareholder or directorial

impropriety (none of which is even alleged here) it is for the court to second-guess Northstone

as to where its own best interests lie.

(vii) Boland v. Dublin City Council

[2002] 4 IR 409 (SC)

28.

This was a successful appeal against a decision of the High Court that had set aside a

third-party notice. In the course of his judgment for the court, Hardiman J. observed, inter

alia, as follows, at pp.413-14:

"O.16 of the Rules of the Superior Courts provides at r. 1(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 or, where the application is made by the defendant

to a counterclaim, the reply.'

I agree with the remarks of Kelly J. in SFL Engineering Ltd v. Smyth

Cladding Systems Ltd. (Unreported, High Court, Kelly J., 9th May,

1997) as follows:-

`This provision of the Rules of the Superior Courts gives

expression in a concrete form to the temporal imperative

contained in s. 27(1)(b) of the Act of 1961. It is to be noted

that the Rules of the Superior Courts require the

application to be made not within 28 days from the delivery

of the defence in the proceedings but within 28 days from

the time limited for delivering the defence.'

It is also to be noted that under O. 16, r. 8(3) third party proceedings

may at any time be set aside by the court. This is the jurisdiction which

is invoked on the present application.

In Board of Governors of St Laurence's Hospital v. Staunton [1990] 2

I.R. 31 the Supreme Court considered s. 27 of the Act of 1961. Referring

specifically to s. 27(1)(b) Finlay C.J. said at p. 36:-

`I am quite satisfied upon the true construction of that sub-

section that the only service of a third-party notice

contemplated by it and, therefore, the only right of a person

to obtain from the High Court liberty to serve a third-party

notice claiming contribution against a person who is not

already a party to the action, is a right to serve a third party

notice as soon as is reasonably possible. A defendant in an

action seeking to claim contribution against a person who

is not a party to the proceedings cannot serve any third-

party notice at any other time, other than as soon as is

reasonably possible.'

This view has been followed, and its application to various specific

circumstances considered, in a number of decisions of the High

Court....

In relation to a motion to set aside a third-party notice, in Carroll v.

Fulflex International Co. Ltd. (Unreported, High Court, Morris J., 18th

October 1995), Morris J. said:-

`A motion to set aside a third party notice should only be

brought before that defendant has taken an active part in

the third party proceedings and I believe that an

application of this nature must itself be brought within the

time-scale identified in s. 27(1) of the Civil Liability Act,

1961, that is to say, 'as soon as is reasonably possible'.

While that limitation is not spelt out in the Act, I believe that

a fair interpretation of the Act must envisage that a person

seeking relief under s. 27 would himself move with

reasonable speed and certainly before significant costs and

expenses have been occurred in the third-party

procedures.'

In Tierney v. Sweeney Ltd. (Unreported, High Court, Morris J, 18th

October, 1995) Morris J. said at p. 4:-

`I am of the view that where it is intended to make the case

that a defendant has failed to move the court to set aside an

order giving a defendant liberty to serve a third party

notice, such an application should be brought with

reasonable expedition and in accordance with the time

scale reflected in s. 27(1)(b) of the Civil Liability Act, 1961,

that is "as soon as reasonably possible" and save in

exceptional circumstances should not extend beyond the

point where a defence is delivered to the third party

statement of claim.'

I respectfully agree that the statutory requirement to move for liberty to

issue a third-party notice, `as soon as is reasonably possible', should

be regarded as applying, also, to the bringing of an application to set

aside such a notice. While it is difficult to imagine circumstances in

which a delay by a third party until after he has himself delivered a

defence to the third party statement of claim could be justified, it by no

means follows that the mere fact that he has not yet delivered a defence

means that the application to set aside has been brought as soon as

reasonably possible.

...

Just as the onus of justifying any delay in seeking liberty to issue the

third-party notice devolves on the defendant, the onus of justifying delay

in bringing the motion to set such notice aside devolves on the third

party. Since the first third party is the moving party here, its delay falls

to be considered first."

(iv) Greene v. Triangle Developments Ltd.

[2015] IECA 249

29.

This appears to be the first significant decision of this Court in what was a successful

appeal against a decision in the High Court by Clarke J., as he then was, to strike out a third-

party notice. In the course of her judgment, Finlay Geoghegan J. observed, inter alia, as

follows:

"11.

The starting point of any consideration of the proper

approach to determining an application such as was before

the High Court to set aside a third party notice is section

27(1)(b) of the Civil Liability Act 1961....

12.

It is to be noted that the Act itself does not require either

such a person to obtain the leave of the High Court to do

so, nor does it require the third-party notice expressly to be

issued out of the central office. However, Order 16 of the

Rules of the Superior Courts does so require and it is

through this regulatory framework that Section 27 has been

implemented. Order 16, Rule 1 requires an application to

the High Court for liberty to issue and does seem to require

that the third-party notice is issued out of the central office.

...

14.

In considering the proper approach to determining whether

or not the third party notice, on the facts of this case, was

served as soon as is reasonably possible, it appears that

there are three judgments of the Supreme Court which must

be considered in order to ascertain whether the approach

contended for on behalf of the defendants or the third party

is correct.

15.

The starting point is the decision of the Supreme Court in

The Board of Governors of St. Laurence's Hospital v.

Staunton [1990] 2 I.R. 31 and the oft quoted passage from

the then Chief Justice Finlay at page 36, where he said of

Section 27(1)(b):

`I am quite satisfied upon the true construction

of that subsection that the only service of a third

party notice contemplated by it and, therefore,

the only right of a person to obtain from the

High Court liberty to serve a third party notice

claiming contribution against a person who is

not already a party to the action, is a right to

serve a third party notice as soon as is

reasonably possible.'

16.

In accordance with that identified approach, the net

question which has to be decided in a case such as the

present, is whether the service of the third-party notice in

the instant case was effected as soon as was reasonably

possible.

17.

The next judgment of the Supreme Court to which I wish to

refer is the judgment delivered by Mr. Justice Murphy in

Molloy v. Dublin Corporation [2001] 4 IR 52 and that was

the single judgment with whom the other members of the

court agreed. There is a lengthy passage from Mr. Justice

Murphy which sets out, if I may say so, so well the purpose

of the section which reads as follows at p. 55:-

`There can be little doubt as to what that

scheme and purpose was. The legislature was

understandably desirous of avoiding a

multiplicity of actions. Instead of defendants

against whom awards had been made

instituting further proceedings against other

parties liable to them in respect of the same set

of facts - and indeed those defendants in turn

perhaps instituting even more proceedings

against others - the Oireachtas sought to

establish a situation in which the rights and

liabilities of all parties arising out of a

particular set of circumstances would be

disposed of in the same proceedings. It is for

that reason that a defendant was given the

right, with the approval of the court, to serve a

third-party notice on a potential defendant so

that any claim against him could be disposed of

at the same time as that of the claim against the

actual defendant. This procedure had

attractions for all of the parties and was

desirable in the public interest. Nevertheless,

the legislature did not preclude an unsuccessful

defendant in the original proceedings from

instituting a substantive action against some

other party who the actual defendant contended

was liable to him either in tort or in contract.

What the Act of 1961 did provide, was that

where the actual defendant in the original

proceedings failed to avail of the third-party

procedure by serving the third-party 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

statutory discretion of the court to refuse to

make an order for contribution in his favour.'

18.

I also wish to draw attention to, so as to explain my

reasoning, what Murphy J. later said in relation to the onus

in respect of an application for leave. At page 57 he stated:

`The onus is on the person seeking leave to

serve the third-party notice to prove the

application is brought within the statutory time

limit.'

19.

He then referred to the view expressed by Mr. Justice

Barron in the High Court in McElwaine v. Hughes

(Unreported, High Court (Barron J.) 30th April, 1997) and

quoted him as saying, at page 6:

`Since the obligation is on the defendant to

serve the notice within a reasonable time, it

seems to me that the onus of proof of showing

that the delay, if delay there is, was not

unreasonable is on the defendant.'

20.

Then Mr. Justice Murphy, in Molloy, went on to deal with

what he perceived to be the explanation the second named

defendant had put forward to justify the delay in that

particular case. And I think in all subsequent decisions

there is no departure from the position that where there

does appear to be a delay, the onus is on the defendant to

explain and justify the delay.

21.

However, it appears to me that the Supreme Court made a

further important qualification to that approach in the case

of Connolly -v- Casey [2000] 1 IR 345. This was an appeal

from Mr. Justice Kelly in the High Court where he had set

aside a third-party notice, essentially because he was not

satisfied by the explanations given to him of the delays

which had taken place in that case.

22.

The single judgment of the Supreme Court, with whom the

other judges agreed, in Connolly v. Casey was delivered by

Mrs. Justice Denham, as she then was, and she considered

the explanations given by the trial judge and quoted from

them at page 350 of the judgment.

`Two explanations were given:-

(1) that the defendants had to await the delivery

of replies to particulars before they could move

to join the third party; and

(2) the necessity to obtain a statement from Mr.

Murphy prior to the bringing of an application

to join the third party.

In relation to the first explanation the learned

trial judge stated, having analysed the replies

to particulars:-

`I find it difficult to ascertain the information

contained in this reply which added to the

defendants' state of knowledge so as to make

possible what had previously not been possible,

namely, the preparation of the application to

join the third party. I do not see that these

replies materially altered the defendants' state

of knowledge from what it had been before in

respect of any matter of relevance concerning

the joinder of a third party. Accordingly, on this

aspect of the matter I do not consider that the

defendants have provided a satisfactory

explanation for the delay in question.''

23.

Having quoted from the trial judge, Denham J. then said:

`This was the wrong test. The test was whether

it was reasonable to await the replies to

particulars. Whether the replies did or did not

materially alter the defendant's state of

knowledge is not the test.'

24.

She went on to deal with the particular facts of that case.

Later in the judgment, at page 351, she stated:

`In analysing the delay - in considering whether

the third-party notice was served as soon as is

reasonably possible - the whole circumstances

of the case and its general progress must be

considered. The clear purpose of the subsection

is to ensure that a multiplicity of actions is

avoided; see Gilmore v. Windle [1967] IR 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.'

Denham J. having considered the facts of that case, allowed

the appeal.

25.

In my view, following the approach of the Supreme Court

in Connolly -v- Casey, it is incumbent on a trial judge, when

faced with an application such as the present before the

High Court, to look not only at the explanations which were

given by a defendant for any purported 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."

(vi) Clúid Housing Association v. O'Brien and Ors.

[2015] IEHC 398

30.

This was a successful set-aside application which was opened to the Court, in which the

trial judge (Murphy J.) observed, inter alia, as follows:

"29.

On the authorities the law is clear. A third-party notice must

be served as soon as is `reasonably possible'. What is

" reasonably possible is to be assessed in the context of the

facts of each particular case. As the respondent has pointed

out a lapse of years before service of a third-party notice

may be excusable depending on the circumstances of a

particular case. The more complex the case the more

forgiving a Court may be in determining when it was

`reasonably possible' to issue a third-party notice.

...

37.

In the Court's view the statement of claim contained

sufficient particulars to permit this respondent to decide

whether to join the subcontractor as a third-party....

38.

In the circumstances of this case the Court is not persuaded

that the respondent needed anything more than the

statement of claim to decide on the appropriateness of

joining the third party. Indeed the Court goes so far as to

suggest that this may be one of the few cases in which a

requirement to comply with the twenty-eight day time limit

set out in O. 16r. 1(3) might be warranted.

...

40.

Finally the respondent submitted that the applicant has

itself been guilty of delay in bringing its application to set

aside the respondent's third-party notice and for that

reason the court should not set it aside. It is clear from the

decision of the Supreme Court in Boland v. Dublin City

Council [2002] 4 IR that just as a defendant must act as

soon as `reasonably possible' in applying to join a third

party so must a third party act as soon as `reasonably

possible' in seeking to set it aside."

(v) Kenny v. Howard & Anor.

[2016] IECA 243

31.

This was a successful appeal to this Court against a refusal by the court below to set aside

a third-party notice upon application being made that the defendant had failed to serve the third-

party notice as soon as was reasonably possible. In a majority judgment for the Court, Ryan P.

observed, inter alia, as follows:

"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 IR 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 IR 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."

VIII

Statement of Key Legal Principles

32.

Given the abundance of case-law that now exists in this area, it may assist if I set out a

statement of key legal principles identifiable in the above-considered case-law. Such a

statement follows, with the principles listed in order of the court that identified them:

Supreme Court

[1]

"[I]n considering whether the third-party notice was served

as soon as is reasonably possible the whole circumstances

of the case and its general progress must be considered."

(Connolly, at p. 351).

[2]

"The clear purpose of the subsection is to ensure that a

multiplicity of actions is avoided....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." (Connolly, at p. 351).

[Note: Additionally, if a court considers that there has been

a breach of the "as soon as is reasonably required"

obligation in s.27(1)(b) then, per the same subsection, "the

court may in its discretion refuse to make an order for

contribution against the person from whom contribution is

claimed". Given that this possibility is open to a court and

given the "clear purpose" of s.27(1)(b), as indicated by

Denham J., it would seem, for the reason stated in para.26

above, that a certain premium should attach to avoiding a

multiplicity of proceedings.]

[3]

"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." (Connolly, at p. 351).

[Note: I do not understand Denham J. to be asserting in this

regard that absent e.g., an allegation that some form of

impropriety or something untoward presents, a court should

place a greater premium on a third party's rights than s/he

or it places on same.]

[4]

Order 16, rule 1(3) RSC "gives expression in a concrete

form to the temporal imperative contained in s. 27(1)(b) of

the 1961 Act." (Boland, at p. 413, relying on SFL

Engineering Ltd v. Smith Cladding Systems Ltd

(Unreported, High Court, Kelly J., 9

May 1997).

[5]

"It is to be noted that the Rules of Court require the

application to be made not within 28 days from the delivery

of the defence in the proceedings but within 28 days from

the time limited for delivering the defence" (Boland, at p.

413, relying on SFL).

[6]

"Under Order 16, rule 8(3) third party proceedings may at

any time be set aside by the court." (Boland, at p. 413).

[7]

"[U]pon the true construction of that subsection that the

only service of a third party notice contemplated by it and,

therefore, the only right of a person to obtain from the High

Court liberty to serve a third party notice claiming

contribution against a person who is not already a party to

the action, is a right to serve a third party notice as soon as

is reasonably possible. A defendant in an action seeking to

claim contribution against a person who is not a party to

the proceedings cannot serve any third-party notice at any

other time, other than as soon as is reasonably possible."

(Boland, at p. 413, relying on St Laurence's).

[8]

"A motion to set aside the third party notice should only be

brought before that defendant has taken an active part in

the third party proceedings" (Boland, at p. 413, referring

with approval to the judgment of Morris J. in Carroll v.

Fulflex International Co. Ltd. (Unreported, High Court,

Morris J., 18

October, 1995).

[9]

A set-aside application "must itself be brought within the

time scale identified in s.27(1)...that is to say `as soon as is

reasonably possible'. While that limitation is not spelt out

in the Act, I believe that a fair interpretation of the Act must

envisage that a person seeking relief under s.27 would

himself move with reasonable speed and certainly before

significant costs and expenses have been incurred in the

third-party procedures." (Boland, at pp. 413-414, referring

with approval to the judgment of Morris J. in Carroll v.

Fulflex (Unreported, High Court, Morris J., 18

October

1995).

[10]

"[A set-aside] application `should be brought with

reasonable expedition and in accordance with the time

scale reflected in s.27(1)(b)...that is as soon as reasonably

possible and save in exceptional circumstances should not

extend beyond the point where a defence is delivered to the

third party statement of claim." (Boland, p.414, referring

with approval to the judgment of Morris J. in Tierney v.

Sweeney Ltd. (Unreported, High Court, Morris J., 18

October 1995)).

[11]

"I respectfully agree that the statutory requirement to move

for liberty to issue a third-party notice, `as soon as

reasonably possible', should be regarded as applying, also,

to the bringing of an application to set aside such a

notice. While it is difficult to imagine circumstances in

which delay by a third party until after he has himself

delivered a defence to the third party statement of claim

could be justified, it by no means follows that the mere fact

that he has not yet delivered a defence means that the

application to set aside has been brought as soon as

reasonably possible." (Boland, p.414).

[12]

Just as the onus of justifying any delay in seeking liberty

to issue the third-party notice devolves on the defendant,

the onus of justifying delay in bringing the motion to set

such notice aside devolves on the third party....[Where the]

third party is the moving party...its delay falls to be

considered first."

(Boland, p.414).

Court of Appeal

[13]

"The starting point of any consideration of the proper

approach to determining an application such as was before

the High Court to set aside a third party notice is section

27(1)(b) of the Civil Liability Act 1961." (Greene, at

para.11)

[14]

"[T]he Act [of 1961] itself does not require either such a

person to obtain the leave of the High Court to do so, nor

does it require the third-party notice expressly to be issued

out of the central office. However, Order 16 of the Rules of

the Superior Courts does so require and it is through this

regulatory framework that Section 27 has been

implemented." (Greene, at para.12).

[15]

Following on the decision of the Supreme Court in St.

Laurence's, "the net question which has to be decided in a

case such as the present, is whether the service of the third-

party notice in the instant case was effected as soon as was

reasonably possible." (Greene, at paras.15-16).

[16]

"The onus is on the person seeking leave to serve the third-

party notice to prove the application is brought within the

statutory time limit." (Greene, at para.18, quoting from the

judgment of Murphy J. in Molloy v. Dublin Corporation

[2001] 4 IR 52, at p. 57).

[17]

Where there does appear to be a delay, the onus is on the

defendant to explain and justify the delay. (Greene, at para.

20).

[18]

"In analysing the delay - in considering whether the third-

party notice was served as soon as is reasonably possible -

the whole circumstances of the case and its general

progress must be considered. The clear purpose of the

subsection is to ensure that a multiplicity of actions is

avoided....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." (Greene, at para. 24, relying on the judgment of

Denham J. in Connolly v. Casey, at p. 351)

[19]

"[I]t is incumbent on a trial judge, when faced with an

application such as the present...to look not only [a] at the

explanations which were given by a defendant for any

purported delay, but [b] 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." (Greene,

at para. 25).

[20]

"The purpose of s. 27(1)(b)...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"

(Kenny, at para. 17)

[21]

"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." (Kenny, at para. 17).

[22]

To Denham J.'s observation in Connolly v. Casey that the

clear purpose of s.27(1)(b) is to ensure that a multiplicity of

actions is avoided, Ryan P. added that "[T]he 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." (Kenny, at para. 18).

[23]

"The [Act of 1961]...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." (Kenny,

at para. 19, quoting from Murphy J. in Molloy v. Dublin

Corporation).

[24]

However, "the quest for certainty or verification must be

balanced against the statutory obligation to make the

appropriate application `as soon as reasonably possible'."

(Kenny, at para. 19, quoting from Murphy J. in Molloy v.

Dublin Corporation).

[25]

"[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." (Kenny, at para. 20, relying on Connolly and

Greene).

[26]

"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."

(Kenny, at para. 21).

[27]

"Reasonably possible means what it says", i.e. each case

depends on its own facts. (Kenny, at para. 21).

High Court

[28]

"[A] lapse of years before service of a third-party notice

may be excusable depending on the circumstances of a

particular case." (Clúid at para. 29).

Application of Principle to Appeal at Hand

33.

I turn now to apply the above-identified principles to the within appeal.

34.

Principle [1]: "[I]n considering whether the third-party notice was

served as soon as is reasonably possible the whole circumstances of the

case and its general progress must be considered." (Connolly, at p.

351).

35.

The learned trial judge proceeded in accordance with this principle.

36.

Principle [2]: "The clear purpose of the subsection is to ensure that a

multiplicity of actions is avoided....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." (Connolly, at p. 351).

37.

The learned trial judge expressly identified this objective and had due

regard to same.

38.

Principle [3]: "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." (Connolly, at p. 351).

39.

Again, I do not understand Denham J. to be asserting in this regard that

absent e.g., an allegation that some form of impropriety or something

untoward presents, a court should place a greater premium on a third

party's rights than s/he or it places on same. Here, Northstone clearly

considers that it is in its own best interests not to participate in the main

action. It is not alleged that anything untoward or improper presents in

its taking that view of its own best interests, and the view taken is one

that it is legitimately open to Northstone to take.

40.

Principles [4]-[7] are noted; no further elaboration seems merited.

41.

Principle [8]: "A motion to set aside the third party notice should only

be brought before that defendant has taken an active part in the third

party proceedings" (Boland, at p. 413, referring with approval to the

judgment of Morris J. in Carroll v. Fulflex (Unreported, High Court,

Morris J., 18

October 1995)).

42.

Northstone has so proceeded.

43.

Principle [9]: A set-aside application "must itself be brought within the

time scale identified in s.27(1)...that is to say `as soon as is reasonably

possible'. While that limitation is not spelt out in the Act, I believe that

a fair interpretation of the Act must envisage that a person seeking

relief under s.27 would himself move with reasonable speed and

certainly before significant costs and expenses have been incurred in

the third-party procedures." (Boland, at p. 413, referring with approval

to the judgment of Morris J. in Carroll v. Fulflex (Unreported, High

Court, Morris J., 18

October 1995).

44.

I note the use of the imperative form ("must") in the above-quoted text

and that Hardiman J., for the Supreme Court, moves on to observe at

Boland, at p. 414, that "I respectfully agree that the statutory

requirement to move for liberty to issue a third-party notice, `as soon

as reasonably possible' [an obligation which is also expressed in the

imperative], should be regarded as applying, also, to the bringing of an

application to set aside such a notice." Thus Hardiman J. gives the

imprimatur of the Supreme Court to the observations of Morris J. in the

High Court, transforming them into observations that are binding on

this Court and/or applies the mandatory requirement of s.27(1)(b) to the

party bringing a set-aside motion. In this regard, as mentioned

previously above, it is notable that the period complained of by

Northstone when it comes to Coras (the seven-month period from April

2017 to November 2017) is roughly similar to the period complained of

by Coras when it comes to Northstone (the seven-month period from

February 2018 to November 2018). Each side maintains that despite the

ostensible delay there was some activity during the relevant period.

There is a remarkable and unexplained delay on the part of Northstone

as to why it took almost five months for Northstone (from service of the

third-party notice on 15

February 2018 to "early July" (whatever

exactly that means) to enquire of counsel whether a set-aside

application ought to be filed. (Impressively, it took him only days to

give his advice). The submissions are notably vague as to how long it

took to apprise and get instructions from Zurich. That there was a delay

in getting a director to sign is delay of a type that Northstone seeks to

have counted against Coras which likewise delayed in getting a director

signature, albeit of different durations. And while I accept that there can

be a degree of slow-down in the commercial world during August, law

firms do not completely close down at that time and people generally

remain contactable electronically and by courier. I note that this delay

on the part of Northstone was raised before the learned High Court

judge; his treatment of this issue is addressed at para. 8 above.

45.

Principles [10]-[11] are noted; no further elaboration seems merited.

46.

Principle [12]: "Just as the onus of justifying any delay in seeking

liberty to issue the third-party notice devolves on the defendant, the

onus of justifying delay in bringing the motion to set such notice aside

devolves on the third party....[Where the] third party is the moving

party...its delay falls to be considered first." (Boland, p.414).

47.

Consistent with the above-quoted observations of Hardiman J. in

Boland, since Northstone was the moving party in the set-aside

application, its delay falls to be considered first. (I treat elsewhere with

the perceived delay on the part of Northstone).

48.

Principles [13]-[14] are noted; no further elaboration seems merited.

49.

Principle [15]: Following on the decision of the Supreme Court in St.

Laurence's, "the net question which has to be decided in a case such as

the present, is whether the service of the third-party notice in the instant

case was effected as soon as was reasonably possible." (Greene, at

paras.15-16).

50.

Having regard to the facts in play before him, I see no reason to interfere

with the finding of the learned High Court judge that service of the

third-party notice was not effected as soon as was reasonably possible.

(I treat elsewhere with the perceived delay on the part of Northstone).

51.

Principle [16] is noted; no further elaboration seems merited.

52.

Principle [17]: Where there does appear to be a delay, the onus is on the

defendant to explain and justify the delay. (Greene, at para.20).

53.

Here there are elements of the delay presenting on the part of Coras

that either have not been explained or not adequately explained. (I treat

elsewhere with the perceived delay on the part of Northstone).

54.

Principle [18] is noted. It reiterates elements of Connolly which has

been considered above.

55.

Principle [19]: "[I]t is incumbent on a trial judge, when faced with an

application such as the present...to look not only [a] at the explanations

which were given by a defendant for any purported delay, but [b] 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."

(Greene, at para.25).

56.

The learned trial judge did this.

57.

Principles [20]-[24] are noted; no further elaboration seems merited.

58.

Principle [25]: "[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." (Kenny, at para. 20, relying on Connolly and

Greene).

59.

The learned trial judge did so.

60.

Principle [26]: "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." (Kenny, at

para.21).

61.

I do not see that the learned trial judge erred in this regard.

62.

Principles [27] and [28] are noted; no further elaboration seems merited.

The Three Issues Presenting

63.

As noted previously above, counsel for Coras, in his written submissions to this Court, has

distilled the various grounds of appeal in the notice of appeal into three key issues. These are

reiterated hereafter and my views indicated.

64.

"(i) The learned trial judge erred in fact and in law in concluding that the Third-Party

Notice had not been served as soon as reasonably possible."

65.

I respectfully do not accept this contention to be correct. It seems to me that the learned

trial judge was correct on the facts to conclude that the third-party notice was not served "as

soon is reasonably possible" and erred neither in fact nor in law in this regard.

66.

"(ii) The learned trial judge erred in fact and in law in considering whether [Coras]...if

the Court set aside the Third-Party Notice, would bring an application for separate

contribution proceedings. This is a matter which should not have been a consideration in

the decision to set aside the Third-Party Notice."

67.

I accept that this is a matter which should not be a consideration in the decision to set-aside

a third-party notice. However, I consider that the learned trial judge's remarks in this regard

are but obiter observations, being but the type of considerate comment that any trial court judge

is likely to make when telling a party that it has lost in a particular application before that judge.

68.

"(iii) The learned trial judge did not consider that [Northstone]...itself had delayed in

bringing the motion to set aside the Third-Party Notice".

69.

I would reiterate in this regard the observations that I make at para. 8 above.

Conclusion

70.

For the reasons set out above, I would respectfully allow the appeal against the judgment

of the learned trial court judge .

71.

With regard to costs, as the appellant has been entirely successful in this appeal,

my provisional view is that: the appellant is entitled to its costs of the appeal; the same result

would follow if the Court were to apply the traditional approach whereby `costs follow the

event'; and no circumstances present that would justify making any alternative order as to costs.

If either party wishes to contend for an alternative order, they have liberty to apply to the Office

of the Court of Appeal within 14 days of delivery of this judgment for a brief

supplemental hearing on the issue of costs. If such hearing is requested and results in an order

in the just-proposed terms, the requesting party may be liable for the additional costs of such

hearing. In default of receipt of such application, an order in the just-proposed terms

will be made.

72.

As this judgment is being delivered electronically, I note that each of Woulfe and

Donnelly JJ. have indicated agreement with it.

Result: Appeal Dismissed

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You are here: BAILII >> Databases >> Irish Court of Appeal >> O'Connor v Coras Pipeline Services Ltd (Unapproved) [2021] IECA 68 (11 March 2021) URL: http://www.bailii.org/ie/cases/IECA/2021/2021IECA68.html Cite as: [2021] IECA 68

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