The Court of Appeal has dismissed an appeal by Kathleen Rowland against a High Court refusal to set aside a third-party notice in a personal injuries case brought on behalf of a minor.
The case concerns an alleged accident on 16 May 2015, when hot oil from a deep fat fryer came into contact with the child as she was climbing onto a chair. The pleadings allege she was at the home of her grandmother, Sarah Jane McHale, under Rowland’s supervision. Those circumstances are allegations in the underlying case; the appeal concerned only the third-party proceedings.
McHale sought permission to issue a third-party notice against Rowland, alleging Rowland’s negligence and breach of duty caused or contributed to the child’s injuries. The High Court allowed the notice to be issued in July 2018. Rowland applied to set it aside in November 2020. The High Court refused that application in December 2021 and made a costs order against her, with enforcement stayed pending the final determination of the proceedings.
In the Court of Appeal, Rowland argued that her application was made as soon as reasonably possible in the circumstances. Her solicitors had been seeking clarification from her insurer, Zurich, about whether it would provide cover. They had also explained that, if it did not, she would need to seek legal aid. Zurich confirmed in November 2019 that it would not provide indemnity. Rowland’s application for legal aid then proceeded, with the set-aside motion issued in November 2020.
The court acknowledged that the insurer’s three-year delay in clarifying its position had exacerbated the difficulties, and that Rowland’s solicitors had acted professionally. But it concluded that the application was still too late. Her solicitors had entered an appearance in November 2019, when they could have applied to set aside the notice. The court said the whole course of events had to be assessed objectively, including the time before that appearance. Waiting on legal aid did not, by itself, stop time running.
The court also considered Rowland’s argument that McHale had delayed in serving the notice. It held that the parties’ correspondence showed they had been waiting for Zurich’s position so the third-party proceedings could proceed as part of the wider case. That argument did not change the outcome on the timeliness of Rowland’s application.
The Court of Appeal dismissed the appeal. Its provisional view was that McHale should receive the costs of the appeal, but it stayed those costs pending determination of the proceedings. Rowland may file submissions on an alternative costs order within 14 days; McHale may respond within a further 14 days. In the absence of submissions, the proposed costs order will be made.