Litigation & Dispute Resolution

Don’t Delay - Third Party Joinders & Set Aside Motions

By Donal Twomey and Michael O’Donovan 
20 May 2021

A. INTRODUCTION

Order 16 of the Superior Courts Rules requires a party wishing to serve a Third-Party Notice to obtain leave from the High Court.  Section 27(1)(b) of the Civil Liability Act 1961 stipulates that when seeking leave to serve a Third-Party Notice, a party ‘must do so as soon as is reasonably possible’. Uncertainty often arises in relation to the interpretation of the phrase ‘as soon as is reasonably possible’.

A recent Court of Appeal decision of Judge Barrett in Andre O’Connor v Coras Pipeline Services Limited[1] helpfully restated and summarised some of the key guiding principles in relation to both the joinder of Third Parties, and subsequent applications to set aside the joinder of Third Parties on the grounds of delay.

B. CASE DETAILS

Mr. O’Connor, an employee of Coras Pipeline Services Limited (“Coras”), was injured in a site accident on 7 January 2015. Coras had been retained by Northstone (NI) Ltd (“Northstone”). Mr. O’Connor issued personal injury proceedings against Coras, who in turn, made an application to join Northstone as a Third Party to the proceedings. Northstone subsequently made an application to have the Third Party proceedings set-aside. Below is a chronology of the key dates.

Item

Date

Date of Accident

7 January 2015

Personal Injuries Summons Served

8 November 2016

Notice for Particulars

21 November 2016

Replies to Particulars

16 March 2017

Defence

18 May 2017

Motion to Join Third Party Issued

13 November 2017

Leave to Join Third Party Granted

15 January 2018

Defendant files and serves Third Party Notice

15 February 2018

Third Party Issues Set Aside Application

7 September 2018

 

In the High Court, Northstone successfully applied to have the Third-Party Notice set aside on the basis that Coras did not serve the Third-Party Notice as soon as was reasonably possible. Coras appealed to the Court of Appeal citing inter alia, that the High Court had failed to consider Northstone’s delay in bringing the motion to set-aside the Third-Party Notice.

Ultimately, the Court of Appeal upheld the Appeal and ruled that the Third Party, Northstone, did not act as soon as reasonably possible in bringing its Motion to set-aside the Third-Party Motion to join it to proceedings.

C. KEY PRINCIPLES SUMMARISED BY COURT OF APPEAL

Given the volume of case law considering the practical meaning of the phrase ‘as soon as is reasonably possible’ for seeking leave to serve a Third Party Notice, Judge Barrett took the helpful step of summarising some the key principles that have emerged, which include the following:  

  • One must look to the whole circumstances of the case, and its general progress must be considered in determining if the Third-Party Notice was served as soon as reasonably possible.
  • The clear purpose of section 27(1) of the Civil Liability Act 1961 is to avoid a multiplicity of actions as this is detrimental to the administration of justice, to the third party and to the issue of costs.  However, at the same time as ensuring that all issues are comprised in the one set of proceedings, the other goal of section 27(1) is to avoid unnecessary delay of the plaintiff’s action.
  • The onus is on the defendant to justify any delay in serving the Third-Party Notice.
  • A motion to set aside a Third-Party Notice should be brought before the third party has taken an active part in the Third-Party proceedings. Furthermore, a set-aside application needs to be brought within the timescale identified in section 27(1) i.e. ‘as soon as is reasonably possible’.
  • Save in exceptional circumstances, a set-aside application should not extend beyond the point where a Defence is delivered to the Third-Party Statement of Claim. However, it does not necessarily follow that a set-aside application that was served prior to a Defence being delivered was served as soon as reasonably possible.
  • Where there is a delay in bringing a set-aside application, the onus is on the Third Party to justify the delay. Where the Third Party is the moving party, its delay falls to be considered first.
  • A trial judge will look not only to the explanations provided by the defendant in justifying a delay, but they will make an objective assessment in the whole circumstances of the case to determine whether the Third-Party Notice/Motion to Set Aside was served as soon as reasonably possible.
  • Proceedings cannot and ought not to be instituted or contributions sought without assembling the relevant evidence and obtaining the appropriate advice thereon. However, the quest for certainty and verification must be balanced against the statutory obligation to make the appropriate application as soon as reasonably possible.
  • In an appropriate case, it may be necessary to wait to receive further and better particulars of something arising in the pleadings. While it is impossible to catalogue all the exigencies that may arise, each case must ultimately be considered on its own individual facts.

D. CONCLUSION

There will always be a fact specific element to assessing alleged delay in bringing Motions to join Third-Party Joinder or Motions to Set Aside Third-Party Joinder. However, the Court of Appeal’s detailed consideration and affirmation of the key legal principles to be applied when considering whether such applications were brought ‘as soon as reasonably possible’ is a welcome and helpful reference point for all practitioners advising on this area.

A key takeaway is that a third party must not delay in bringing its set aside application, as its delay will fall to be considered prior to the court considering the delay of the defendant who sought to join a third party.

For more information on the content of this Insight, please contact:
Donal Twomey, Partner | E: donal.twomey@rdj.ie | T: +353 21 4802796

[1] Andre O’Connor v Coras Pipeline Services Limited [2021] IECA 68.

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