The High Court has dismissed Mercury Engineering Limited’s application to set aside a third-party notice in proceedings over alleged defects at a large mixed-use development in Athlone.
Mr Justice Meenan ruled on 31 October 2019 that the notice had been served as soon as was reasonably possible. The decision concerned the timing of joining Mercury to the proceedings. It did not determine whether the alleged defects occurred or establish liability for them.
The plaintiffs are Abbi amo Limited and Prefero Limited, trading together as Gallico Developments, and Charleen Limited, identified in the judgment as owner of the Sheraton hotel under a lease with the first two plaintiffs. They allege serious defects in the development caused loss and damage for which R.N. Murphy & Associates Limited is liable. The judgment records that a defence had been delivered. Mercury was a nominated subcontractor for mechanical, electrical and ICT services and sought to have the third-party notice set aside because it said the notice was not served as soon as reasonably possible, as required by law.
The court considered the period from 3 March 2015, when Gallico Developments delivered its statement of claim, to 22 December 2015, when the motion to join Mercury was issued. The judge held that the defendant was entitled to know the entirety of the claim before deciding whether to join a third party. He also accepted that it was reasonable to await replies to particulars specifically concerning Mercury’s potential involvement. Those replies were received in June 2015.
The judge considered the case’s complexity and the professional negligence nature of the proposed claim, noting that a defendant needs time to consider its merits. He also noted the defence was delivered on 21 December 2015 and the joinder motion issued the next day. The third-party notice itself was served on 18 February 2016; the court treated the relevant period as ending when the motion was issued, since the hearing date was outside the defendant’s control.
Mercury had been alerted to its possible involvement earlier: after receiving a statement of claim in February 2014, the defendant wrote to Mercury on 26 February and enclosed it. The judge said each case depends on its own circumstances. He dismissed Mercury’s application. The ruling does not decide the underlying claims or any contribution or indemnity claim against Mercury.