Court of Appeal: Woman fails in appeal to set aside third party notice due to delay in bringing motion

About this case:

• Citation:
  [2023] IECA 45
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Ms Justice Teresa Pilkington

Delivering judgment in the case, Ms Justice Teresa Pilkington held that all parties had maintained a mutual understanding that they were waiting for the third party’s insurer to clarify its position before the case proceeded. There was never any suggestion than an application would be brought to set aside the notice before the third party changed her legal representation, the court held.

It was said that the third party had legal representation from an early point and, notwithstanding the change of solicitor, she was bound by the inaction of her previous solicitor on the issue. Since the motion was issued two years and five months after solicitors came on record, the application was not brought “as soon as reasonably possible”.

Background

The plaintiff was a young child at the time of the alleged accident in May 2015. While spending time at her grandmother’s house, the plaintiff climbed onto a chair and came into contact with hot oil from a deep fat fryer. She suffered significant burns in the accident.

The plaintiff (by her next friend) issued proceedings against the grandmother (the defendant) in January 2017. A defence was delivered in July 2017, which included a pleading that the third party caused the accident by her negligence. The third party was the sister of the defendant and was allegedly supervising the plaintiff at the time.

In May 2018, the defendant issued a motion seeking leave to issue and serve third party proceedings on the third party. In July 2018, the High Court granted this order.

An appearance was entered to the third party notice in November 2019 by a firm of solicitors who were initially instructed by Zurich Insurance, the third party’s insurers. However, Zurich eventually clarified that it would not provide cover in the proceedings and, accordingly, the third party was required to apply to the Legal Aid Board.

The Legal Aid Board came on record for the third party in February 2020 and an application for authority to instruct junior counsel was granted in September 2020. The application to set aside the third party notice issued in November 2020 on the grounds that the third party notice had not been served on her “as soon as reasonably possible” as required by section 27 of the Civil Liability Act 1961.

The main reason for the delay in issuing the motion to set aside the third party proceedings was that all parties were waiting for Zurich Insurance to clarify its position on whether it would cover the third party. The defendant’s insurer and solicitor had sought clarity on the matter from the outset of the proceedings and it took Zurich three years from notification to reach a conclusion.

The High Court refused the application. The court held that the third party’s original solicitor never indicated before or after coming on record that there was an issue of delay in serving the third party notice. Even though there had been a refusal of coverage and a change of solicitor, it was held that the third party was in a position to bring the motion from November 2019. Accordingly, she failed to act with “anything like sufficient speed” and failed to bring the motion as soon as possible.

Court of Appeal

Ms Justice Pilkington noted that the applicable legal principles to the setting aside of a third party notice were relatively settled and straightforward. Applications to set aside had to be brought with reasonable expedition (see Boland v Dublin City Council [2002] 4 IR 409).

Further, in analysing a delay, the court had to consider the whole circumstances of the case, including the general progress of the litigation and whether the delay had been properly explained (see Connolly v Casey [2000] 1 IR 345; Thomas Greene & anor v Triangle Developments Ltd & anor and Frank Fox & Associates [2015] IECA 249). The time taken before issuing the motion had to be related to the necessities of the case and it was not sufficient to simply explain the delay (see Kenny v Howard [2016] IECA 243).

The third party submitted that the delay in bringing the motion was justified by waiting for Zurich to clarify its position. After cover was refused, she sought legal aid and issued the motion as soon as possible, it was said.

Further, it was claimed that the trial judge placed too much emphasis on the entry of an appearance by the third party’s first solicitor. Her impecuniosity meant she could not continue without Zurich’s cover and the solicitor had come on record only to protect her from judgment in default of appearance.

Ms Justice Pilkington held that the defendant’s solicitor had granted forbearance to the third party throughout the process but it was never envisaged that this would lead to a motion to set aside the third party notice.

It was difficult to ignore the lapse of time between the service of the third party notice in July 2018 and the application to set aside in November 2020. It was imperative for litigation to proceed without delay, particularly where a plaintiff was a minor. From the outset, there was a clear understanding that the third party proceedings would proceed once matter had been clarified by Zurich.

By the time that the Legal Aid Board determined that it would bring the application, it could not be said that the application was made as soon as reasonably possible, the court said. The trial judge was entitled to determine that the entry of formal appearance by the third party’s original solicitor was the date at which a motion could have been brought.

The simple entry of an appearance and pointing to an intended course of action did not prevent time from running regarding statutory obligations. As a general rule, new solicitors in a case are bound by inactivity or actions of previous solicitors.

In the entire circumstances of the case, the court held that the motion had not been brought quickly enough. The court considered the analogy that litigants in person were subject to the same legal obligations as represented litigant and this logic must extend to those who change their solicitor during litigation.

Conclusion

The appeal was dismissed.

Kilcoyne (A Minor) v. McHale [2023] IECA 45