The High Court has refused an application by Maurice Power to set aside third-party proceedings brought by Sean Dunphy in a personal injuries action arising from a work accident in 2017.
Mr Justice Garrett Simons ruled that Mr Dunphy had not delayed unreasonably in seeking to join Mr Power, whose land is where the agricultural shed involved in the accident was located. The application was made under Order 16, rule 8(3) of the Rules of the Superior Courts.
The plaintiff, Slawomir Figiel, was employed by Mr Dunphy as a steel erector. His pleaded case is that he slipped and fell while installing cement sheeting on the shed roof on 28 June 2017 because of Mr Dunphy’s alleged negligence. The allegations include failures to provide a safe workplace, suitable equipment and training, and precautions for wet-weather work. No finding on those allegations was made in this application.
Mr Dunphy’s engineers inspected the site jointly with representatives of the plaintiff on 10 February 2020. Their report, dated 3 March, identified that Mr Power, as the person for whom the construction was being carried out, might have obligations under construction safety regulations. Mr Dunphy applied to join him on 16 June 2020. The court granted leave on 7 December, and the third-party notice was served on 17 December.
Mr Power argued that delay should be measured from June 2018, when he said Mr Dunphy was notified of a Personal Injuries Assessment Board application and should have begun considering whether another party might be responsible. The judge rejected that approach. He said the relevant assessment began after the personal injuries summons issued in April 2019, and that it was reasonable for Mr Dunphy to await replies to particulars, received on 28 August 2019, before delivering a defence and considering third-party proceedings.
The court calculated an approximate seven-month delay against the timetable in the Rules, but accepted that time was reasonably used to arrange a joint inspection, obtain engineering advice and prepare the application. The six-month wait for the motion’s return date was attributed to pandemic-related court restrictions. Mr Power had also been notified of the intended claim in June 2020; no specific prejudice was alleged.
The judge said a third-party defence will normally be a cut-off point for an application to set aside proceedings. In this case, however, the short defence expressly challenged the joinder for delay, and the motion to set aside followed within weeks. The defence therefore did not prevent the application, which failed on its merits.
The court refused the application. Its provisional view was that Mr Dunphy should receive his costs, subject to adjudication if the parties could not agree. The proposed costs order is to be stayed if there is an appeal. Either party could file short submissions on a different form of order by 20 May 2022.