The High Court has refused Purcell Construction Limited’s application to set aside a third-party notice in a personal-injury case over an alleged fall at a school, finding that the company’s delay was excessive and unjustified.
The judgment, delivered by Ms Justice Bolger on 15 June 2022, concerns a claim by Aideen Newport arising from an incident said to have happened at St Mary’s Parish Primary School on 8 March 2013. The plaintiff alleges that she fell on an aqua drain and grill and suffered personal injuries. The court made no finding on that underlying claim.
The defendants—St Finian’s Diocesan Trust, St Mary’s Parish Primary School and the school’s board of management—served a third-party notice on Purcell Construction. They alleged that the plaintiff’s injuries were caused by the company’s negligence, breach of duty or breach of contract in the design, construction or installation of the drain and cover. Those allegations remain unadjudicated in this ruling.
The application concerned delay. The defendants had obtained leave to issue and serve the notice in July 2020, after applying in December 2019. They conceded that their own delay in seeking the notice was excessive and offered no justification. The judge said the notice would therefore be set aside unless the defendants could show that Purcell had itself delayed excessively and without justification in bringing its challenge.
Purcell pointed to its requests for the third-party statement of claim, which it received on 4 June 2021, and said it applied to set aside the notice about three and a half months later, during the long vacation and Covid-19 lockdowns. The defendants argued that Purcell had waited about 13 months from the notice’s issue.
Justice Bolger held that Purcell already knew the case it had to meet from the third-party notice and the accompanying personal-injuries summons. It was not reasonable to wait for the third-party statement of claim, particularly when the defendants’ delay in filing it had prompted two written requests. The court found Purcell’s delay excessive and unjustified, and refused the application under Order 16, rule 8(3) of the Rules of the Superior Courts. The third-party notice remains in place.
On costs, the judge gave an indicative view that they should be awarded to the defendants because Purcell’s application had failed. She listed the matter for 5 July to hear submissions on costs and any final orders. The judgment does not record a final costs order.