The Court of Appeal has set aside a third-party notice seeking to bring the Health Service Executive (HSE) into a personal injuries action, ruling that the defendant’s two-year delay was not “as soon as reasonably possible” under the Civil Liability Act 1961.
The appeal concerned an order made by the High Court on 1 February 2016, which refused the HSE’s application to set aside the notice. The Court of Appeal allowed the HSE’s appeal and set the notice aside. It did not determine the underlying personal injury claim or the merits of any proposed contribution claim against the HSE.
The plaintiff, a social care worker, alleges that a service user assaulted and battered her on or about 31 March 2011 while she was working at a care home. She alleges negligence and breaches of duty by the defendant, whose stated role in the proceedings was chairman and nominated representative of the board managing the group of homes. These remain allegations in the underlying action.
The defendant sought leave to issue and serve the HSE notice in October 2015. The parties agreed that the relevant period began on 22 August 2013, the deadline under the court rules for applying for leave, and ended on 26 August 2015, when the defendant issued the motion. The High Court had accepted that specialist advice was reasonably required and found the delay excusable in the circumstances, including misplaced papers and difficulty obtaining an expert opinion.
The Court of Appeal accepted that seeking expert advice could be reasonable in a case involving a complex potential claim. But it found that the explanation did not justify the time taken: the first letter seeking an expert’s agreement to act was sent in April 2015, about a year and three-quarters after the rules’ deadline. The periods when no steps were taken were not shown to be necessary to the case.
The court also rejected the absence of demonstrated prejudice to the HSE as a basis for excusing non-compliance. It said the statutory question was whether the notice was served as soon as reasonably possible, judged against what was reasonably necessary in the circumstances. The court concluded that a two-year delay could not meet that test and set aside the third-party notice.