Judgment: 2016-11-08 · Court archive

High Court sets aside third-party notice against solicitor over delay

The court found the notice against Damian Tansey was not served as soon as reasonably possible. It also found no legitimate purpose in his continued involvement, while rejecting the defendants’ separate bid to strike out the third-party claim as an abuse of process.

The High Court · [2016] IEHC 622

Who, what, where, when and why

Who
  • Kevin Glackin (Plaintiff)
  • Damian Tansey
  • Hatton House Limited
  • Max Barrett (Judge)
What

The court found the notice against Damian Tansey was not served as soon as reasonably possible. It also found no legitimate purpose in his continued involvement, while rejecting the defendants’ separate bid to strike out the third-party claim as an abuse of process.

Where

Places mentioned in the report

  • Newtowncunningham
  • County Donegal
When

Judgment:

Why

Reasons reported in the judgment

The High Court has set aside a third-party notice against solicitor Damian Tansey, finding that the notice was not served as soon as reasonably possible and that there was no legitimate purpose in keeping him involved in the proceedings.

The High Court has set aside a third-party notice against solicitor Damian Tansey, finding that the notice was not served as soon as reasonably possible and that there was no legitimate purpose in keeping him involved in the proceedings.

Mr Justice Max Barrett delivered the judgment on 8 November 2016 in a claim brought by Kevin Glackin against solicitors practising as V.P. McMullin. The defendants had joined Mr Tansey and the firm Callan Tansey as third parties. Only Mr Tansey sought to have the third-party proceedings against him struck out.

The underlying dispute concerns the sale of Mr Glackin’s lands in Newtowncunningham, County Donegal. Mr Glackin says he instructed V.P. McMullin to include a contract condition requiring planning permission for a proposed development of about 50 houses by the end of 2006, with agreed names for roads and streets. The judgment says the precise instructions remain disputed and are for trial.

After the purchaser, Hatton House Limited, sought specific performance, Mr Glackin changed solicitors and counterclaimed for rescission. The proceedings settled: Hatton House dropped its specific performance claim, and Mr Glackin returned a €30,000 deposit and paid €70,000 towards Hatton House’s costs. He also incurred €268,000 in legal costs. In the present action, he seeks damages from the defendant solicitors for those amounts. The defendants’ third-party claim alleges that Mr Tansey’s negligence caused avoidable costs; that allegation was not determined in this judgment.

The court found the third-party notice was served about two years outside the 28-day period in the court rules. It also concluded the defendants had not acted “as soon as is reasonably possible” under section 27 of the Civil Liability Act 1961. A letter sent in January 2013 showed that third-party proceedings had been contemplated early, but the application for leave to issue the notice was not filed until May 2015. The court said no credible reason had been offered for the delay. Although leave was granted in November 2015, the court noted that the earlier application had not disclosed the January 2013 letter.

Mr Tansey also argued the third-party claim was unsustainable and an abuse of process. The court declined to strike it out on either ground: it found the pleadings disclosed a reasonable case and no abuse of process. However, it held that section 35 of the 1961 Act meant the defendants could plead contributory negligence against Mr Glackin if their allegation that Mr Tansey was a concurrent wrongdoer proved correct. The court said the defendants would not be prejudiced by Mr Tansey’s removal and that his continued involvement served no legitimate purpose.

The court ordered the third-party notice against Mr Tansey set aside under Order 16, rule 8(3). It did not determine Mr Glackin’s claim against the defendant solicitors, the negligence allegation against Mr Tansey, or the merits of the underlying contract dispute.

Read the original court judgment

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