The High Court has set aside a third-party notice served on Irish Rail in a personal injury case, finding that the defendants did not seek to join the railway company as soon as was reasonably possible.
Mr Justice Max Barrett delivered the judgment on 11 July 2019. Irish Rail had asked the court to set aside the notice, arguing that the defendants had failed to comply with court rules and the Civil Liability Act 1961.
The plaintiff, John McAuliffe, alleges he was hit on the head by a bin being brought down on a lorry in an accident on 22 April 2016. The judgment does not decide the underlying accident claim or determine whether Irish Rail was liable.
The defendants’ engineering inspection took place on 4 January 2018. The judgment says affidavit evidence indicated that the inspection suggested potential liability for a third party. An expert report followed in February. The defendants’ full defence, delivered on 18 June 2018, named Irish Rail as a potential tortfeasor.
The defendants sought to join Irish Rail by motion issued on 21 August 2018. The court’s order allowing joinder issued on 19 November, and the third-party notice was served on 29 November.
Under the court rules, the application for leave to issue a third-party notice should generally be made within 28 days of the time allowed for delivering the defence. On a generous assumption about when the proceedings were served, the judge said that time ran out on 21 February 2018. The judge allowed the defendants just over a week after receipt of the expert report to consider it, and treated 21 February as the point by which they were in a position to pursue a contribution claim.
The judge accepted that delay caused by arranging the hearing of the joinder motion and issuing the resulting order could not be attributed to the defendants. But he found they had waited six months, from 21 February to 21 August, before issuing the motion. He said the motion could have been issued sooner. The defendants’ own evidence also indicated that their enquiries about Irish Rail’s alleged liability were complete in January or February 2018.
The court therefore granted Irish Rail’s application and set aside the third-party notice. The judgment says these applications depend on their individual circumstances; the same period of delay may be reasonable in one case and fatal in another.