The High Court has refused P. Clarke & Sons Limited’s application to dismiss a contribution claim brought by Grove Turkeys Limited as time-barred. Ms Justice Dunne ruled that the action was within the limitation period under the Civil Liability Act 1961. She did not decide whether the contractor could later seek dismissal on a separate basis linked to Grove Turkeys’ failure to join it to earlier proceedings.
The claim stems from an injury Thomas Tierney said he suffered at work on 24 February 1994, when he fell into an excavation or hole in the floorway of the premises where he was working. He brought proceedings in 1997 against Kerry Group plc, Grove Farm Limited and Grove Turkeys Limited. The judgment says the excavation had been dug by P. Clarke & Sons or its subcontractors, an allegation recorded in correspondence from the Kerry Group’s solicitor.
In 1997, the Kerry Group sought an indemnity from P. Clarke & Sons. Further correspondence followed, and in 2001 Grove Turkeys’ solicitor said the contractor had not provided an indemnity or nominated a solicitor. The letter said the contractor could consent to being joined as a third party and participate in the case. P. Clarke & Sons later authorised solicitors to accept service of proceedings, but was not joined to Tierney’s action.
Grove Turkeys issued this separate High Court action on 16 October 2001. It sought damages for alleged breach of an indemnity agreement, negligence and breach of duty, and, alternatively, contribution or a full indemnity for its potential liability in the Tierney case. That case was settled on 25 November 2002, after the separate action had begun. The judgment records that P. Clarke & Sons had no part in that settlement.
The contractor argued that Grove Turkeys should have served a third-party notice as soon as reasonably possible under section 27 of the 1961 Act. It contended that the failure to do so meant the separate proceedings were barred, relying also on section 31, which sets a limitation period for contribution claims. Grove Turkeys argued that section 31 did not bar proceedings issued before the Tierney settlement.
Justice Dunne said the motion concerned whether the action fell outside section 31’s limitation period. She found it was “clearly within” that period and refused the application. She said the contractor’s argument instead raised the court’s separate discretion under section 27 to refuse contribution where a third-party notice was not served promptly, including possible prejudice to the contractor. That issue had not been properly put before the court on this motion, and it would have been unfair to require Grove Turkeys to address it at the hearing.
The ruling did not determine whether Grove Turkeys was entitled to contribution or indemnity, whether it had breached any duty, or whether the contractor suffered prejudice. The judge expressly left open an appropriate future application concerning the way Grove Turkeys conducted the litigation, including its failure to join the contractor promptly in Tierney’s case.