The Court of Appeal allowed an appeal over a delayed application to join Limerick V.E.C. as a third party in a personal-injury case. It concluded that the application did not comply with the requirement to act as soon as reasonably possible, and that the High Court judge was wrong not to set aside the third-party notice.
The case arose from an accident in October 2008. The plaintiff, Conor Mulcahy, was playing soccer on an all-weather pitch when he tried to retrieve a ball caught on netting behind a goal. His wedding ring caught on a projecting part of the perimeter fence, severing a finger, according to the particulars set out in the judgment.
The 2010 personal-injury summons alleged that the defendants had installed the netting unsafely, had failed to remove projecting sections of wire, and had placed the netting in an unsafe position. The defendants denied liability. In their defence, delivered in April 2012, they said that if the plaintiff had suffered loss or injury, it had been caused or contributed to by a company responsible for erecting the fence.
The defendants did not apply to join the first third party until April 2013; that party was joined as a defendant in July 2013. The application concerning Limerick V.E.C., the appellant in the Court of Appeal, was made by the first and second defendants and dealt with in April 2015. The judgment said an engineering inspection had taken place in June 2014, and that awareness of a possible further claim arose at the end of August that year. The application followed in 2015.
Delivering the ex tempore judgment on 7 December 2015, Mr Justice Kelly said the statutory obligation to move as soon as reasonably possible rested on the defendant seeking to join a third party. Delays by insurers or solicitors did not transfer that responsibility. The court had to consider both explanations for delay and the overall circumstances and progress of the case.
The judges found that the possibility of third-party involvement had been pleaded in 2012, while the summons had already described how the accident occurred. Considering the passage of time and the steps taken, the court held that the joinder was not made as soon as reasonably possible. Justices Finlay Geoghegan and Irvine agreed with Mr Justice Kelly’s reasons. The appeal was allowed. The judgment does not state any decision on the underlying personal-injury claim.