The Supreme Court has ruled that an Electricity Supply Board (ESB) cross-appeal in a dispute with University College Cork (UCC) can proceed as planned, including an argument that UCC should bear more than the 40 per cent share of contributory negligence set by the High Court.
Chief Justice Frank Clarke gave the ruling on October 21, 2020, following a case management hearing before the panel hearing UCC’s appeal and due to hear the ESB’s cross-appeal. The ruling addressed how the cross-appeal would proceed; it did not determine the cross-appeal’s substantive issues.
The ESB had argued that the cross-appeal concerning contributory negligence should not be heard until the High Court had reconsidered issues remitted to it by the Supreme Court’s majority judgments on UCC’s appeal. The Supreme Court rejected that argument. It said the cross-appeal should go ahead to the greatest extent possible, while leaving open the possibility that some issues might later be remitted to the High Court or deferred pending its decision.
The Court also said the ESB could argue in the cross-appeal for a higher percentage of contributory negligence against UCC than the 40 per cent set by the High Court. The Court of Appeal had not made a final decision on contributory negligence because it found the ESB was not negligent. It had, however, observed that some elements of the High Court’s contributory-negligence findings were unsustainable. The ESB did not seek to depart from those observations in its cross-appeal.
The Supreme Court said the ESB’s argument that it was barred from seeking a higher percentage rested on a narrow pleading point. It directed the ESB to amend its notice of cross-appeal to make clear that the issue remained open. The ESB would have to address the fact that some grounds on which the High Court set the 40 per cent share were no longer in the case.
A separate question was whether the ESB could argue that UCC was liable for damage attributable to its professional advisers under section 35(1)(i) of the Civil Liability Act 1961. The Court left that issue to be determined at the cross-appeal hearing, when it could consider the arguments in detail.
The Court concluded that the appeal would go ahead as planned. The ruling did not decide the ultimate allocation of liability or the remitted issues.