The Court of Appeal has ruled that accountants challenging the striking out of a third-party notice cannot add fresh evidence to their appeal as of right. They must first obtain the court’s special leave.
The appeal concerned a High Court order setting aside a notice issued against solicitor Paraic O’Kennedy. The accountants had joined Mr O’Kennedy and Cathal O’Sullivan as third parties to a claim by Margaret Lyons concerning an investment property, seeking contribution or indemnity if Ms Lyons succeeded against them.
The High Court struck out the notice because the accountants had taken five months to deliver their files to their solicitors. The judgment says the notice was also not served as soon as reasonably possible, as required by section 27(1)(b) of the Civil Liability Act 1961. The accountants appealed and wanted to present further evidence about what happened during that five-month period. Mr O’Kennedy argued that the appeal was from a final order, meaning the evidence required special leave under the Rules of the Superior Courts.
The Court of Appeal considered whether the order was interlocutory for the purposes of Order 86A, rule 4(b), which allows further evidence without special leave on an appeal from an interlocutory order. It concluded the order was final in its determination of the application to strike out the notice and the third-party proceedings, even though the main claim and any ultimate question of contribution had not been finally determined.
The court noted that the order removes the possibility of deciding the contributor’s liability as part of the plaintiff’s case. The accountants may still pursue contribution after judgment or settlement, but any such claim would be subject to the court’s discretion to refuse an order in the circumstances.
The President, delivering the judgment, held that the reasoning in the Supreme Court’s decision in *Minister for Agriculture v Alte Leipziger* applied. The court therefore ruled that the accountants were not entitled as of right to adduce fresh evidence on appeal. They may do so only if granted special leave. The judgment does not decide whether leave should be granted or the underlying claim against the accountants.