The Supreme Court has restored Dublin Corporation's third-party claim against David Mayrs Limited in litigation arising from an alleged accident on Broombridge Road in Cabra.
Mr Justice Hardiman delivered judgment on October 15, 2002, allowing the Corporation's appeal against a High Court order which had set aside its third-party notice.
The underlying proceedings were brought by John Boland, who claimed damages for personal injuries arising from an accident on December 3, 1993. According to his statement of claim, he was walking along the public highway at Broombridge Road when he tripped on a broken-down and poorly repaired section of footpath and fell sideways into a fence.
Boland's solicitors first notified Dublin Corporation of the claim in November 1995. Proceedings were issued in September 1996, with the Corporation delivering its defence in August 1998.
The Corporation subsequently alleged that the location of the accident was beside a damaged chain-link fence which it believed was owned or maintained by David Mayrs Limited, Colourman (International) Limited, or both. It notified David Mayrs Limited in November 1998 that it intended to join the company as a third party and served the formal notice in February 1999.
David Mayrs Limited entered an appearance, sought a third-party statement of claim and requested particulars. It did not apply to set aside the third-party notice until July 2000, approximately 17 months after service.
Hardiman J held that the statutory requirement to act “as soon as is reasonably possible” applies not only to a defendant seeking to issue a third-party notice but also to a third party seeking to have one set aside.
The company provided no explanation for its delay, including a nine-month period after particulars had been delivered in October 1999. The Supreme Court held that the unexplained delay was fatal to its application.
The High Court order was therefore set aside and the request by David Mayrs Limited to strike out the third-party notice was refused.