The Court of Appeal has refused the Health Service Executive’s appeal seeking to set aside a third-party notice in personal injuries proceedings brought by Majella Kenny against Noel Howard. The court left in place the High Court decision allowing the HSE to remain joined to the case. It did not decide the underlying personal injury claim or whether the HSE was liable to Mr Howard.
The appeal concerned whether Mr Howard’s application to join the HSE was made “as soon as is reasonably possible”, as required by section 27(1)(b) of the Civil Liability Act 1961. The Court of Appeal focused on the 15½ months between the deadline for delivering Mr Howard’s defence, 12 May 2014, and his application for leave to issue a third-party notice on 26 August 2015.
The judgment records two main periods of delay. Papers sent to Senior Counsel in May 2014 remained there for almost nine months before advice was given that expert evidence was needed. Later, Professor Gournay told Mr Howard’s solicitors he could not assist because of ill-health and recommended Professor Sines. Mr Howard’s solicitors applied to join the HSE before receiving Professor Sines’s report, and had notified the HSE in March 2015 that they intended to seek joinder.
The HSE argued that the delay meant the notice should be set aside. The High Court had refused that application, finding the delay excusable in the circumstances and that the HSE would not be prejudiced in defending itself. On appeal, the Court of Appeal considered the explanations for delay alongside the purpose of the statutory requirement: to ensure urgency while, where possible, resolving related claims in the same proceedings and avoiding multiple actions.
The court said the assessment required consideration of all the circumstances, including the reasons for delay, the progress of the case and any prejudice to the third party. It acknowledged that urgency is required and that a defendant’s own responsibility for delay matters. On the facts before it, however, the periods of delay arose from professional advisers and the change of expert, while the judgment identified no prejudice to the HSE’s ability to defend itself or to its rights to fair procedures and a hearing within a reasonable time.
The court therefore refused the appeal. The judgment does not determine the merits of any claim between Mr Howard and the HSE; those issues remain for the underlying proceedings.