The High Court has refused an application to set aside an order allowing North Tipperary Council to pursue a third-party claim against a neighbouring property owner in a personal injuries action arising from a 2004 road crash.
In a judgment delivered on 10 March 2008, Mr Justice Michael Peart also extended the time for issuing and serving the third-party notice to 19 March 2008. The notice had been served in July 2007 but had not first been issued through the Central Office, so it did not technically exist as a court document at the time of service.
The plaintiff, Joanne Tuohy, alleges that her car went out of control at a bend on 19 May 2004 and hit a ditch because the council negligently allowed excessive loose chippings to remain on the road after resurfacing. The council denied liability and alleged that the chippings came from land owned by the proposed third party, Elizabeth Cleary. Those allegations were not decided in this application.
The council obtained permission on 16 July 2007 to join Cleary as a third party. She applied to set aside that order, arguing that the council had failed to act as soon as reasonably possible and had not explained the delay. Her barrister said no claim of prejudice was being made, but submitted that delay alone was sufficient under section 27 of the Civil Liability Act 1961.
The judge found that the council could not reasonably have known a third-party claim might be available until after engineers inspected the crash location in September 2006 and the council received its engineer’s report in January 2007. He accepted that the process moved at a “somewhat leisurely pace”, but concluded the council had acted with reasonable dispatch in the circumstances. He said the statutory time requirement had to be assessed in light of when the potential claim became apparent.
The court also considered the failure to issue the notice before it was served on 25 July 2007. The judge said the explanation for the communication failure between the council’s solicitor and local agents was not sufficiently clear, but found that extending time would cause no injustice, particularly as the third party claimed no prejudice. He held the notice’s purpose of putting her on notice had been fulfilled by the service that occurred.
The ruling addressed only whether the third-party order should be set aside and whether time should be extended to regularise the procedure. It did not determine liability for the crash or the alleged source of the chippings.