The Court of Appeal has dismissed an appeal by Volkswagen Group Ireland Limited, Volkswagen Ireland and Volkswagen AG against a High Court order setting aside their third-party notice against C. Currid Motors Limited. The court found the notice had not been issued as soon as reasonably possible, as required by the Civil Liability Act 1961. It also formally struck out C. Currid Motors’ cross-appeal.
The underlying personal injuries action concerns an accident on 22 September 2016. Tammy Harte’s pleaded case was that she had parked a 2008 Volkswagen Passat, engaged its electronic brake and got out. She alleged the car rolled backwards without warning and crushed her against a wall because of an electrical fault in the parking brake. The manufacturers and distributors were defendants; C. Currid Motors was named as a supplier. These were allegations in the underlying proceedings, not findings made in this appeal.
Harte issued proceedings in July 2018. The Volkswagen defendants’ November 2019 defence denied her claim and pleaded that, if an actionable wrong caused the accident and injuries, her cause of action was against C. Currid Motors and they were entitled to a full indemnity. Harte discontinued her action against the motor company in September 2020. The motor company’s solicitor later said the discontinuance followed an agreement that it would bear its own costs; that evidence was uncontested.
The Volkswagen defendants sought permission to issue a third-party notice in May 2021. It was issued in July and served in August. C. Currid Motors applied to set it aside, arguing that it had come too late. It also separately sought to strike out the contribution claim as bound to fail.
The High Court set aside the third-party proceedings on both grounds. On appeal, the Court of Appeal focused on delay. It rejected the Volkswagen defendants’ argument that the High Court judge had suggested the delay issue was insignificant and curtailed their submissions. The hearing transcript showed that counsel addressed the delay motion and then made submissions on the separate strike-out motion.
The appeal court said the defendants knew soon after the discontinuance that C. Currid Motors was no longer a party, and their existing defence had already set out the intended indemnity claim. The third-party papers were short and straightforward. Although the High Court had recognised the difficulties caused by COVID-19 restrictions and hybrid working, there was no evidence that those restrictions prevented the papers from being drafted, issued or served. A letter sent by the defendants’ solicitors on 29 April 2021 indicated they were then preparing the papers.
The appeal court found no error in the High Court’s conclusion that the notice was not issued as soon as reasonably possible. The Volkswagen defendants accepted that if the court upheld that conclusion, there was no need to decide the separate ground concerning whether the contribution claim was bound to fail. The court therefore dismissed the appeal without determining that issue on its merits.