The High Court has set aside Dublin City Council’s third-party proceedings against Irish Water over a claim arising from an alleged water leak at a Dublin home in 2015, finding the Council had not acted as soon as reasonably possible.
Mr Justice Conleth Bradley ruled on Irish Water’s application under Order 16, rule 8(3) of the Rules of the Superior Courts. The application concerned a third-party notice served by the Council in June 2023 in proceedings brought by Trevor Grehan and Angela Grehan. The plaintiffs alleged they suffered loss and damage because of the Council’s actions relating to the leak. They did not appear at the hearing of the application.
The Council had obtained permission in June 2023 to issue and serve the notice. Irish Water sought to have it set aside, arguing it was not served as soon as reasonably possible, as required for a contribution claim under section 27(1) of the Civil Liability Act 1961.
The parties agreed that the Council missed the usual 28-day period for seeking leave to serve a third-party notice. The judge said that failure alone did not decide the application. The issue was whether the notice was served as soon as reasonably possible. He assessed the delay as running from about mid-April 2019 to May 2023, when the Council applied for leave.
The Council relied on correspondence and a general timeline, including its view that Irish Water was responsible for the alleged wrongdoing and its position that a 2013 service level agreement entitled it to an indemnity. The judge accepted there may initially have been uncertainty about the entities’ respective responsibilities, but found the Council had not adequately explained the later delay. The agreement provided for indemnities by both parties, and the Council had raised Irish Water’s responsibility and sought an indemnity before and during the proceedings.
The judge found that further investigation, particulars or expert advice were not required to explain the delay. He also rejected the argument that Irish Water’s awareness of the claim or absence of prejudice justified the late notice: a third party did not have to prove prejudice to seek to have a notice set aside. He noted Irish Water had not indicated that it would provide the indemnity sought.
The court set aside the third-party proceedings dated 12 June 2023, issued on 23 June and served on Irish Water that day. The judge gave a provisional view that Irish Water should receive the costs of its application, including any reserved costs, from the Council. Costs and any ancillary matters were listed for mention on 1 November 2024; the judgment did not determine those matters.