Connolly v. Casey [1998] IEHC 90 (12th June, 1998)

1. The Defendants are solicitors who are being sued for damages for professional negligence. They have joined the Third Party to the proceedings. He is a barrister. The Defendants contend that if the Plaintiff is successful in her claim against them, they are entitled to be indemnified by the Third Party in respect of any damages and costs which may be awarded against them. Alternatively, they allege that they are entitled to a contribution from the Third Party in respect of any such damages and costs.

2. The Third Party brings this application "for an Order that the Third Party Notice issued on the 24th day of October 1997 in this matter be struck out" . The correct application should be for an Order setting aside the Third Party proceedings pursuant to Order 16 Rule 8(3) of the Rules of the Superior Courts. I will treat this application as being one for such relief.

3. The basis upon which the Third Party seeks the Order is the alleged failure on the part of the Defendants to comply with the obligations imposed upon them by Section 27(1)(b) of the Civil Liability Act, 1961 to serve the Third Party Notice upon him as soon as reasonably possible.

4. This action was begun by the issue of a Plenary Summons on the 21st February, 1995. The Statement of Claim followed on the 3rd March, 1995. In it the Plaintiff alleges that she retained the Defendants as her solicitors in September 1990 to advise and act for her in the prosecution of a High Court action claiming damages for personal injuries against her former employer, namely, the Board of St. James's Hospital in Dublin. She alleges that the cause of action against those employers arose from incidents which took place when she was a trainee nurse at that hospital between July 1989 and December 1989. She complains that the Defendants negligently issued proceedings in the High Court against the Eastern Health Board. She says that they failed to serve the Plenary Summons upon that Board. She also says that they failed to issue proceedings within the statutory time against her true employer, which was not the Eastern Health Board but rather the Board of St. James's Hospital. She is now statute barred from bringing such proceedings against her employer.

5. Following the delivery of the Statement of Claim, no step was taken on behalf of the Defendants until the 14th March, 1996 when a Notice for Particulars was served on the Plaintiff's solicitors. That was a period of one year and two weeks following delivery of the Statement of Claim. Part of this delay is accounted for by the fact that the underwriters indemnifying the Defendants did not confirm cover until the 30th June, 1995. The delay between that date and the service of a Notice for Particulars in March 1996 is explained in an Affidavit of Eugene O'Sullivan, sworn on the 15th May, 1998. He said:-

"This office served notice of change of solicitor in February 1996. The reason for the delay between the notification by the insurers that they were prepared to afford cover in June 1995 and the service of a notice of change of solicitor arose from apparent non-filing or misfiling of the insurer's fax instructing us to serve notice of change of solicitor".

6. Having come on record in February 1996, the Notice for Particulars was served in the following month. The relevant part of that Notice sought information as to the date upon which it was alleged the Plaintiff advised the Defendants of the identity of her employer against whom she wished her personal injuries action to be commenced. That Notice for Particulars was not responded to until January 1997 but meanwhile a number of important matters had occurred.

"Without prejudice to the admissions and denials aforesaid, the Defendants plead that they caused the said Plenary Summons to be issued upon advices of Counsel for the purposes of stopping time running under the provisions of the Statute of Limitations. The issue of the said Summons was in no way intended to act as an acknowledgement that the Plaintiff ever had a valid cause of action in the first place. The nomination of the Eastern Health Board as the relevant Defendants was advised by Counsel, and the Defendants followed Counsel's advices on this point".

"Without prejudice to the denials aforesaid pleaded, if, which is denied, the Defendants have the alleged or any liability to the Plaintiff, the same was caused and occasioned by reason of negligence, and/or breach of duty on the part of Counsel whom they retained for the purposes of advising them in relation to protecting the Plaintiff (sic) said interests, and upon whose advices proceedings were instituted against the Eastern Health Board and not as against any other defendant".

"We would point out that in the current proceedings we issued a Notice for Particulars on 14th March, 1996 to which no replies have been received, some eight months later. Please state whether or not your client has supplied you with the details or not. It must be assumed that she has not. Replies to those particulars are very urgently awaited, and please note that a Motion to compel the delivery of these detailed replies will be applied for if satisfactory answers are not received within two weeks of the date hereof. ........

On the question of the joinder of Counsel as Third Parties by our clients, the position is that we have indicated in the defence, in particular in paragraphs 11 and 13 that the Eastern Health Board was named as the sole Defendant on Counsel's specific advice. Quite apart from the fact that our clients' retainer was to establish whether or not a cause of action existed (for which they required the detailed particulars which your client omitted to supply) our clients have expressly pleaded that in issuing the writ against the Eastern Health Board on Counsel's instructions, they acted as they should. The question of whether or not Counsel should be joined in the proceedings is accordingly a matter primarily for your client. We would refer you to our clients' letter to you of 5th September, 1994 and in particular to the third last paragraph thereof where reference is made to the briefing of Counsel for the purpose of issuing proceedings on Miss Connolly's behalf. Counsel directed that the Defendant should be the Eastern Health Board only, and advised that that title would be sufficient".

12. The reply to the relevant part of the Notice for Particulars was furnished on the 14th January, 1997. I will reproduce it later in this judgment. It inter alia made it clear that although the first named Defendant had been given an outline of the Plaintiff's case, it was a Mr. James Murphy who was an associate of the Defendants to whom full and detailed instructions were given.

14. The solicitor for the Defendants has sworn that he considered it essential to obtain a detailed statement from Mr. Murphy prior to the bringing of any application in relation to the Third Party. He wished to do that to "ensure that the basis of the application was well founded" . He spoke with Mr. Murphy on the telephone in February 1996. He followed that up with a letter to him on the 4th March, 1996 asking him to confirm the circumstances of the involvement of the Third Party. He sent him a reminder by letter of the 15th March, 1996. As he did not receive a reply by the 26th March of that year, he requested the Defendants to use their good offices to secure a detailed statement of the circumstances from Mr. Murphy. He again requested the Defendants to address this by letter dated the 16th April, 1996. On the same date he wrote a further letter to Mr. Murphy. That letter pointed out that Mr. Murphy had promised in February 1996 to write to the Defendants' solicitors in detail dealing with the issue of the joinder of the Third Party. The letter pointed out that it was essential that the detailed response of Mr. Murphy be furnished immediately or else the Defendants' solicitors would have to advise the underwriters as to their remedies. Between April 1996 and February 1997 the Defendants' solicitors made contact with Mr. Murphy by telephone on a number of occasions, the last such occasion being on the 10th October, 1996. Mr. Murphy was again written to on the 5th February, 1997. The letter reads as follows:-

I have spoken to you on the telephone a number of times, most recently on 10th October last when you promised to supply the long-awaited statement. It has not, unfortunately, been received here and effectively renders it impossible to defend the action efficiently. I seek the assistance from you as the person who had charge of the case, and on the basis that it is not unreasonable for colleagues to render assistance to each other, particularly when that need arises in the unfortunate circumstances of this kind of case.

If you will respond, please do so within the next week or so, and if not within that span, we can only conclude that you are unwilling to help out - a conclusion we would not wish to reach. The writer would travel to Ballyhaunis to discuss the case with you if that is what you required, or meet with you in Dublin to discuss the case, if you happen to be in Dublin in the near future".

15. Ultimately, Mr. Murphy supplied the Defendants' solicitors with a written account of the matter on the 24th March, 1997. In accordance with the advice of Senior Counsel, once that statement was to hand, the Defendants' solicitors proceeded to arrange for the Affidavit grounding the application to join the Third Party to be sworn. That Affidavit was sworn by the first named Defendant on the 7th April, 1997. Two paragraphs of it are of significance. The first is paragraph 9. It reads:-

"I believe that the proposed Third Party was fully instructed in relation to the subject matter of the proceedings, and that if the wrong Defendant was named therein, the Defendants are entitled to an indemnity and/or contribution from the Third Party in respect thereof. I believe that if it is the case that the wrong Defendant was so named, that is a factor caused or contributed to be (sic) the negligence or breach of duty of the proposed Third Party".

"I say that the aforesaid Notice for Particulars was replied to by the solicitors for the Plaintiff on 14th January, 1997. I believe that the Defendants herein were awaiting delivery of the said replies before proceeding with their Third Party application against Mr. Fitzgibbon. I beg to refer to the said replies when produced".

18. It was not until the 25th July, 1997 that a Notice of Motion was issued seeking to join the Third Party. It came on for hearing on the 20th October, 1997 and Kinlen J. ordered the joinder of the Third Party. The Third Party Notice was issued on the 24th October, 1997 and served on the 29th October, 1997. An appearance was entered to it on the 19th January, 1998 and this Motion to set aside was brought on the 21st January, 1998.

19. Two other matters are worthy of mention. The first is that it is quite clear from the Affidavits and the various exhibits which have been used on this application that the Third Party signed a Plenary Summons issued on the 3rd October, 1991 in which the Plaintiff sued the Eastern Health Board. That document has been in the possession of the Defendants having been issued by them. Furthermore, the Defendants' solicitor in his Affidavit of the 24th February, 1998 averred as to his belief that the only issue as between the Third Party and the Defendant was whether the Third Party advised the appropriate Defendant for the action in question. He says that there was no dispute but that the writ issued against the Eastern Health Board was signed by the Third Party. Secondly, he exhibits a letter of the 26th September, 1991 from the Third Party containing the advice given by him that proceedings be brought against the Eastern Health Board. That letter was addressed to the Defendants and it also has been in their possession.

(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 said 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".

20. This application is concerned with the circumstances outlined in Section 27(1)(b). This section has been the subject of one decision of the Supreme Court and at least three reserved decisions of the High Court. The Supreme Court decision is Board of Governors of St. Laurence's Hospital v. Staunton [1990] 2IR 31). The High Court decisions are Dillon v. MacGabhann (Morris J. 24th July 1995); McElwaine v. Hughes (Barron J. 30th April 1997), and my own judgment in SFL Engineering Limited v. Smyth Cladding Systems Limited , which was delivered on the 9th May, 1997.

"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. 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".

22. A failure to serve a Third Party Notice on a person not already a party to the proceedings as soon as is reasonably possible does not of course bar a defendant completely from recovering an indemnity or contribution. But such a claim would be subject to the discretion of the Court as to whether to allow it to proceed or not.

24. In approaching this case I agree with the views of Barron J. in McElwaine's case that since the obligation is on the Defendants to serve the notice as soon as reasonably possible, the onus of proof lies on them of showing that the delay, if delay there was, was not unreasonable.

25. There is possible conflict between the judgment of Morris J. (as he then was) in Dillon's case and that of Barron J. in McElwaine's case as to whether the appropriate date which the Court ought to consider is the date of service of the Third Party Notice or the date of issue of the application to the Court for leave to issue such a notice. Barron J. says at page 6 of his judgment:-

"Although the wording of the section refers to the service of the notice, nevertheless, it seems to me that unless there are circumstances arising between the issue of the application to issue and serve a third party notice and its ultimate service following an Order to that effect, that the time to be considered should end at the date of issue of the application to the Court".

27. Insofar as there is a conflict between these two views, I prefer that of Morris J. since it accords precisely with the wording of the section. In the present case, the date of issue of the Notice of Motion for leave to commence the Third Party proceedings was the 25th July, 1997, whilst the Third Party Notice was not served until the 29th October of that year. It is this latter date which I must take into account.

"In determining whether the service was as soon as was reasonably possible the Court would have to consider all the elements which contributed to any possible delay in effecting such service including, for instance, the unfortunate circumstance in this case whereby the original notice was missed in the Court list in October and struck out".

30. Finally, it is accepted that I am not, on this application, concerned with any question of prejudice arising as a result of the delay in applying for liberty to join the Third Party. This seems to follow having regard to the interpretation given to the relevant statutory provision by Finlay C.J. in the St. Laurence's Hospital case.

33. This rule requires the application to be made not within 28 days from the delivery of a defence but within 28 days from the time limited for so doing. That time is fixed by Order 21 of the Rules of the Superior Courts. In the present case the defence ought to have been delivered within 28 days of the date of delivery of the Statement of Claim. It follows that in order to comply with the Rules of Court, the application to join the Third Party in the present case ought to have been made within 56 days of the 3rd March, 1995. In fact the application was not sat down for hearing until the 25th July, 1997, almost two years and five months after delivery of the Statement of Claim.

34. 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. In the present case of course the Third Party can, prima facie, make complaint of matters which go far beyond a technical non-compliance with the provisions of this rule.

35. The first substantial period of delay is that between the delivery of the Statement of Claim on the 3rd March, 1995 and the decision of the Defendants' underwriters confirming that they were on cover. That decision was not made until the 30th June, 1995. No explanation has been offered to the Court as to why that decision should take as long as it did. Whilst it is unlikely that the underwriters will win any awards for speedy decision-making, nonetheless it does not appear to me that this delay of itself could be regarded as unreasonable.

36. The next period of delay is one which arises between the making of that decision on the 30th June, 1995 and the service of a Notice for Particulars on the 14th March, 1996. The reason given for this delay was the apparent non-filing or misfiling of a fax message from the insurers instructing the Defendants' solicitors to serve notice of change of solicitor. That notice of change was served in February 1996. The non-filing or misfiling of the insurers' fax is akin to the human error which occurred in the case of Dillon v. MacGabhann when a motion listed in the Court list was missed and was struck out. It is unfortunate that these errors occur but occur they do. Given the approach which I have indicated I propose to take in examining the facts of this case in the light of the statutory obligation, I would not set aside these Third Party proceedings if the only delay that fell for consideration was that between the delivery of the Statement of Claim and the service of the Notice for Particulars. Whilst that delay is significant, it does not, in all the circumstances, appear to me to be unreasonable.

37. The defence was delivered on the 22nd April, 1996. I have already set forth the three pleas which are contained in it and which are relevant to this application. Those pleas make it clear that the Defendants were alleging negligence and breach of duty on the part of the Third Party in respect of the advice which he gave concerning the institution of proceedings against the Eastern Health Board. The defence was signed by leading and junior Counsel. It should be noted that these are not the Counsel who appeared on the hearing of this Motion.

38. The insertion of these pleas in the defence suggests to me that at the time of its delivery the Defendants were possessed of sufficient information to justify the inclusion of such a plea. An allegation of professional negligence is a serious matter and ought not to be made unless there are reasonable grounds for so doing. I do not believe that either Counsel who signed the defence would have done so unless they were satisfied that such grounds did exist. Given therefore that the Defendants were in a position to make such a plea as far back as April 1996, what is the explanation proffered for the delay between that date and the service of the Third Party Notice on the 29th October, 1997?

39. Two explanations are given. The first is that the Defendants had to await the delivery of replies to particulars before they could move to join the Third Party. These particulars were sought in March 1996 but were not responded to until January 1997. The particular which is relied upon as excusing the delay in the present case is that which is sought at paragraph 2 of the notice of the 14th March, 1996. That in turn seeks particulars of matters which are pleaded at paragraph 3 of the Statement of Claim. Paragraph 3 of the Statement of Claim reads:-

"At all material times herein, the Defendants held themselves out as exercising all due skill, care diligence in or about the performance of their professional duties and on foot of the said express or implied representations, in or about the month of September, 1990, the Plaintiff retained and employed the Defendants as her solicitors for reward, and to advise her, and to act for her and on her behalf in relation to the prosecution of a High Court personal injury action against her previous employer, namely the Board of St. James's Hospital in the City of Dublin".

"(a) The Plaintiff first attended the Defendants late in the month of August or early in the month of September 1990 and on that date and divers' meetings thereafter furnished the Defendants with instructions. At all times in the course of furnishing the Defendants with instructions the Plaintiff indicated the nature of her claim, and the place and nature of her employment. At all material times it was a matter for the Defendants to ascertain the precise title and identity of the Plaintiff's employer so as to put themselves in an informed position as to the proper identity of an intended Defendant for an accident case.

(d) The Plaintiff, together with her father, initially met the first named Defendant in late August or early September 1990. The first named Defendant was given an outline of the nature of the Plaintiff's case and he introduced the Plaintiff to his associate Mr. James Murphy to whom full and detailed instructions were given by the Plaintiff".

42. 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.

43. The second reason which is given for the delay was the necessity to obtain a statement from Mr. Murphy prior to the bringing of an application to join the Third Party. Mr. Murphy is not a defendant in the proceedings. He may be a witness. The Defendants' present solicitors came on record in February 1996. The solicitor having carriage of this action spoke to Mr. Murphy on the telephone in mid-February of that year. He wrote to him on the 4th March, 1996 asking him to confirm the circumstances of the involvement of the Third Party. I have already set forth the attempts made to obtain a statement from Mr. Murphy. Ultimately, he furnished a written account of the matter on the 24th March, 1997. On receipt of that, arrangements were made for the swearing of the Affidavit grounding the application to join the Third Party.

44. The Defendants contend that it would have been improper for the application to join the Third Party to be made prior to obtaining the written statement from Mr. Murphy. They were not in a position to compel him to make such a statement since he is not a party to the proceedings.

"It is irresponsible and an abuse of the process of the Court to launch a professional negligence action against institutions such as hospitals and professional personnel without first ascertaining that there are reasonable grounds for so doing. Initiation and prosecution of an action in negligence on behalf of the plaintiff against the hospital necessarily required appropriate expert advice to support it. It appears that experts in Ireland were not prepared to advise the plaintiff and eventually it was necessary to obtain the services of an English paediatrician. All in all, it seems to me that there is not a convincing case to be made that there was inordinate and inexcusable delay in bringing and prosecuting the plaintiff's claim against the defendant, prior to the year 1992 at earliest".

46. I have no difficulty in endorsing the views of Barr J. that the commencement of proceedings alleging professional negligence is irresponsible and an abuse of the process of the Court unless the persons advising such proceedings have reasonable grounds for so doing. In the Reidy case, expert testimony was required. That is not the case here. Mr. Murphy, if he is to be a witness, will be one as to fact. He did not prove very co-operative. But it does not appear to me that the Defendants were justified in waiting for Mr. Murphy to co-operate before moving the application for the joinder of the Third Party. This is particularly so in circumstances where they were in a position to make the pleas which they did concerning the Third Party as far back as April 1996. I do not think that this case can be equated with circumstances where a moving party has to await an expert's opinion before knowing whether or not there are reasonable grounds for commencing a professional negligence claim. In my view, those grounds were apparent to the Defendants when they delivered their defence. I am fortified in this by the response which was made in the letter of the 10th October, 1996 by the Defendants' solicitors. I have already reproduced the relevant parts of that letter earlier in this judgment.

49. There remains of course a further delay. The Affidavit to seek to have the Third Party joined was sworn by the first named Defendant on the 7th April, 1997. Yet it was not until the 25th July, 1997 that the Notice of Motion seeking to join the Third Party was set down for hearing with a return date of the 20th October, 1997. No explanation at all has been furnished for this further delay.

50. I am not satisfied that the explanations which have been furnished for the delay in the commencement of these Third Party proceedings justify it. In particular I do not accept that it was either improper or impossible to move the application for the joinder of the Third Party without the replies to particulars or the statement from Mr. Murphy. On the contrary, I take the view that at the time when they delivered the defence making these specific allegations of professional negligence against the Third Party, the Defendants had sufficient information to warrant the application being brought at that time. Certainly, by October of that year, having regard to the letter from which I have quoted, they appear to have been in little doubt on the question.

51. In these circumstances, I must conclude that the Third Party Notice was not served as soon as reasonably possible. Having so concluded, it is clear from the judgment of the Supreme Court in the St. Laurence's Hospital case which I have already cited that "the only right of a person to obtain from the High Court liberty to serve a third party notice ..... 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".

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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Connolly v. Casey [1998] IEHC 90 (12th June, 1998) URL: http://www.bailii.org/ie/cases/IEHC/1998/90.html Cite as: [1998] IEHC 90

High Court of Ireland Decisions

Connolly v. Casey [1998] IEHC 90 (12th June, 1998)