The High Court has refused an application by insurance broker J. Hatty & Company to set aside a third-party notice in a personal injury case, despite finding that the defendants had delayed significantly and without excuse in bringing the broker into the proceedings.
Mr Justice Denis McDonald delivered the judgment on 30 July 2020. The application concerned the procedural validity of the third-party claim; it did not decide whether the plaintiff was injured through negligence or whether the broker failed to arrange suitable insurance.
The plaintiff, Nigel Morrow, alleges that he injured his back while volunteering on a school building project in Bugiri, Uganda, in October 2012. He claims the defendants failed to provide a safe system of work and delayed arranging medical care. The defendants deny negligence and have raised a preliminary argument that Ugandan law governs the claim. Those matters were not decided in this application.
The first defendant sought to bring an insurance broker into the case, alleging that it failed to arrange cover for the charity’s overseas volunteer work. The original application named Hatty Ltd, which the court found was the wrong entity. In February 2018, J. Hatty & Company was substituted as the third-party. The partnership then applied to set aside the notice, arguing that it had been joined too late and that the claim did not qualify under the court rules.
The judge held that the claim could proceed under two categories in Order 16, rule 1: a claim for a remedy connected with the subject matter of the plaintiff’s case and substantially the same as the remedy sought by the plaintiff; and a claim involving issues that should properly be determined together. In particular, the plaintiff’s alleged injuries and the circumstances in which they occurred could be relevant to both claims.
The court assessed delay using principles for inordinate and inexcusable delay. It found the overall delay inordinate and identified one year and eight months as unexplained or otherwise inexcusable. The broker’s evidence of prejudice was limited to the possibility that other insurance policies might have covered the loss. The judge considered that issue relevant to causation, rather than evidence of prejudice caused by the delay.
Balancing the delay against the circumstances, the judge concluded that the third-party claim should remain in the case. He noted the lack of identified prejudice, the plaintiff’s lack of objection, and the aim of resolving related issues in one set of proceedings. The application to set aside the notice was refused. The judgment did not determine the underlying personal injury or insurance claims.
The parties were invited to agree on costs and notify the registrar. If they could not agree, they were directed to submit their positions by 7 September 2020, after which the judge would rule.