The High Court refused an application to strike out or set aside third-party proceedings brought by solicitors over a Carlow residential development, and declined to have the issues heard as a preliminary matter.
In a judgment delivered on 13 July 2012, Kearns P. ruled that the third-party contribution claim was not statute barred. The court also found the defendants had not delayed in a way that justified dismissing or setting aside the proceedings.
The underlying case concerned a unit in Dolmen Mews. The plaintiff alleged that her solicitors failed to tell her that planning permission allowed the property to be used only as a holiday apartment, although she intended it as her permanent home. The solicitors denied the claim and sought contribution or indemnity from other parties, alleging that representations had been made that the property was suitable and authorised for ordinary residential use. The plaintiff’s action against her solicitors had settled on 24 January 2012; the judgment does not state the settlement terms.
The applicants, who had acted as solicitors for the vendor and developer, argued that the claim was out of time and that the third-party notice had not been served as soon as reasonably possible. They relied on documents sent in November 2003, including a planning permission referring to hotel suites. The defendants argued that the limitation period for a contribution claim ran from when their liability was established, which they said occurred when the plaintiff’s action settled.
The court applied section 31 of the Civil Liability Act 1961. It held that the relevant date was the settlement on 24 January 2012, giving a two-year period that would not expire until 24 January 2014. The contribution proceedings were therefore within time.
On delay, the court considered the chronology, including the defendants’ application for leave to issue third-party proceedings and an informal “cease fire” while efforts were made to regularise the development’s planning status. Those efforts ended when retention permission was refused in October 2011. Kearns P. concluded that, in all the circumstances, the delay did not justify dismissal or setting aside the proceedings.
The court refused all three forms of relief sought: striking out the claim as statute barred, dismissing or setting aside the third-party notice for delay, and directing a preliminary hearing on those issues. The judgment decided that application; it did not determine the merits of the third-party claim.