The High Court has set aside a third-party notice served on Airtricity Utility Solutions Limited by Castlebar Town Council and Mayo County Council, finding the councils had waited too long to bring the company into a personal injury action.
Mr Justice Barr ruled on 30 October 2018 that the councils had not served the notice “as soon as is reasonably possible”, as required by section 27(1)(b) of the Civil Liability Act 1961. He found there was no adequate explanation for the delay between the councils receiving the plaintiff’s personal injury summons in July 2015 and applying to join Airtricity in December 2017.
The underlying action arises from an alleged accident on 13 November 2013. The plaintiff, Majella Murray, says she tripped on the base of a traffic cone and loose bricks on a public footpath on Pavilion Road in Castlebar while walking with her children, then fell against a low wall and suffered injury. Those allegations were not determined in this application.
The judgment records that the councils’ insurers wrote to Airtricity in March 2014, saying the company had been contracted to carry out public lighting works in Castlebar and that the loose bricks and damaged cones were at a work site under its control. The letter sought an indemnity for any claim by the plaintiff. The councils later said Airtricity had been appointed project supervisor for the construction stage and had responsibility for health and safety at the works. These were the councils’ assertions, not findings on liability.
The councils argued that they needed time for insurers to investigate which contractors might have been responsible. They also submitted that Airtricity had been alerted early and suffered no prejudice. The judge rejected the insurers’ delay as an adequate explanation, saying a defendant could not rely on its insurers’ inaction to justify late joinder. Following the Court of Appeal’s majority decision in Kenny v Howard, he held that prejudice was not relevant to deciding whether the statutory timing requirement had been met.
The application was brought by Airtricity under Order 16, rule 8(3) of the Rules of the Superior Courts. The court granted that application and set aside the third-party notice against Airtricity. The ruling did not determine whether the councils or any contractor was responsible for the alleged accident, nor did it dispose of the plaintiff’s claim. The judgment’s chronology also refers to a proposed notice involving Gibbons Building and Civil Engineering Limited, but the order described in this ruling concerned the notice against Airtricity.