The High Court has set aside third-party proceedings brought by CIÉ and CIÉ Group Property Management against Denis and Caroline Desmond, finding that the notices were served after inordinate and inexcusable delay.
Mr Justice Garrett Simons made the order in a judgment delivered on 11 January 2022. The application before him concerned whether the third-party notices should be set aside; it did not determine the plaintiff’s personal injuries claim or the underlying allegations about the speed ramp.
William Purcell’s claim arises from a cycling accident said to have happened on 8 March 2015 on Strand Road, Killiney. His pleaded case is that he came off his bicycle after hitting an unmarked, non-standard speed ramp. The claim alleges the ramp was difficult to distinguish from the roadway, was overshadowed by an overgrown tree and did not meet relevant design guidance. Those allegations were not decided in this application.
The CIÉ defendants’ defence put Purcell to proof that they had constructed the ramp and pleaded that the Desmonds had installed it without their knowledge or consent. The defendants sought to join the Desmonds in July 2019, after a defence delivered in May that year. The court granted leave in November 2019, but the notices were not served until July 2020 and had to be served again in proper form in September because copies had not been filed with the High Court Central Office.
The judge said the defendants had not satisfactorily explained either the delay in seeking to join the Desmonds or the later delay in taking up the court order and serving the notices. He rejected the argument that the defendants could rely on the timing of their own defence to explain why they had not applied earlier. Correspondence from 2002 and 2003 showed that CIÉ already knew the Desmonds had installed speed ramps on the roadway, the judgment said.
The court also rejected the suggestion that the coronavirus restrictions justified the service delay, noting that most of it had accrued before the restrictions began and that the order was obtained by email and notices served by post. The judge said the third-parties’ awareness of the proceedings from July 2020 did not make the overall delay reasonable. In his assessment, the delay from the expected timetable to the first service attempt exceeded two years. He found the notices had not been served as soon as reasonably possible, as required by section 27 of the Civil Liability Act 1961.
The order sets aside the third-party proceedings on delay grounds. The judge’s provisional view was that the Desmonds should receive their costs from the CIÉ defendants, including costs of two counsel and written submissions. Costs were to be adjudicated if not agreed, and the costs order stayed in the event of an appeal. Parties wishing to propose a different costs order were directed to file short written submissions by 25 January 2022.