The High Court has declined to set aside a third-party notice served on Emerson Climate Technologies Limited in proceedings arising from a 2005 fire at a Supervalu supermarket in Moycullen, Co Galway.
Mr Justice Birmingham ruled on an application by Emerson, which sought to have the notice issued by Refrigeration Distributors Limited (RDL) set aside. The application concerned the timing and circumstances in which RDL brought Emerson into the case. The judgment does not determine liability for the fire or the alleged defects in refrigeration equipment.
The proceedings began with a plenary summons issued in March 2010. The first defendant, Whiriskey Refrigeration Company Limited, obtained leave in April 2012 to serve notices on three third parties, including RDL. Whiriskey’s notice alleged that RDL had supplied five Copeland condensing units for €15,904.24 and that they were not fit for their intended purpose. It claimed an indemnity or contribution based on alleged negligence, misrepresentation and breach of contract. The notice also said that, if the units were defective, responsibility lay with Emerson, which had supplied them to RDL. Those were pleaded claims, not findings by the court.
RDL’s earlier attempt to set aside the notice against it was refused by Mr Justice O’Neill in December 2012. RDL sought leave to issue a notice against Emerson in October 2013, and that leave was granted by Ms Justice O’Malley in December. Emerson’s notice was served over the Christmas and New Year period; the judgment says the precise date is unknown. Emerson then brought its set-aside motion in February 2014.
The judge focused on the period of about ten and a half months between the refusal of RDL’s earlier motion and its application to bring Emerson into the case. He noted that RDL had itself pursued a set-aside application and was aware of the need to avoid delay. He also considered evidence about difficulty identifying the relevant Emerson and Copeland companies, and observed that the litigation had proceeded slowly. He said the proceedings and other parties were not being held up by RDL’s effort to join Emerson.
In the circumstances, the judge concluded that RDL had acted as soon as reasonably possible. He found that section 27(1) of the Civil Liability Act 1961 did not provide a basis for setting aside the notice and that the interests of justice favoured having all parties with a role in the dispute before the court together. He therefore declined to set aside the notice. The ruling addressed that procedural application only.