The High Court has set aside third-party proceedings brought by H & M Hennes & Mauritz (Ireland) Ltd against Otis Elevator Ireland Ltd in a personal injuries case arising from a woman being trapped in a lift at the company’s Opera Lane, Cork retail premises.
In a judgment delivered on 30 November 2022, Mr Justice Garrett Simons allowed Otis’s appeal from a Circuit Court order refusing to set aside the third-party notice. The court found that the notice had not been served as soon as reasonably possible, as required by section 27 of the Civil Liability Act 1961.
The underlying claim arose from an incident on 11 October 2016. Mia Bowen, who was employed by H & M as a sales assistant, alleged that she was severely shocked and distressed, experienced anxiety in the following weeks and developed hip and back pain. The judgment records that she received illness benefit for six months. The personal injuries action was compromised and struck out with an order for costs in her favour on 22 February 2022. The settlement amount was not provided to the court.
The third-party proceedings concerned H & M’s claim that Otis, which was responsible for servicing and maintaining the lift, might be liable for its malfunction. H & M received Bowen’s replies to particulars on 10 September 2019. Justice Simons said it was reasonable for the company to wait until then before considering a third-party application, but it should have moved promptly afterwards. The application for leave was issued on 10 May 2021, about 20 months after the replies.
H & M cited the time needed to obtain lift maintenance records and locate contractual documents, as well as difficulties issuing a motion during the pandemic and following the County Registrar’s retirement. The judge found these explanations did not justify the delay. He said the maintenance records were not obtained until February 2020, the contractual paperwork was held internally, and the evidence did not establish that it had been impossible to issue a motion in Cork before May 2021. H & M’s defence had pleaded that any injuries were caused by Otis’s negligence or breaches of contract or statutory duty by November 2020, yet the motion followed six months later.
The judge said a third-party does not have to prove prejudice to have late proceedings set aside. He allowed Otis’s appeal, vacated the Circuit Court order and ordered that the third-party proceedings be set aside. His provisional view was that Otis should recover its costs from H & M, including costs in both courts. Either party could seek a hearing on costs by notifying the registrar within 14 days.