Third-Party Notices, Timing And Prejudice

A recent High Court decision dealing with third-party proceedings has addressed the extent to which prejudice is a relevant factor to be taken into account in dealing with applications to set aside third-party notices.1 On the facts the court felt that there was no prejudice, as such, to justify setting aside the third-party notice, but was careful to impose a strict timetable with regard to the conduct of the third-party proceedings.

Background

Third-party proceedings arise where a defendant may think that another party bears some responsibility and should contribute to whatever the defendant might ultimately be ordered by pay to the plaintiff. In order to ensure that all matters are dealt with in one set of proceedings, and to avoid duplicating judicial time, the third-party procedure permits a defendant to bring that other party into the proceedings. As a general observation, it is desirable for all issues about indemnity or contributions between third parties and defendants to be disposed of at the same time as the issues relating to the defendant's liability to the plaintiff. In the first instance, a third-party notice is issued without being served on the third party, and if joined to the proceedings on foot of that, the third party can apply to have it set aside.

Under the Civil Liability Act 1961, Section 27(1)(b) provides that a defendant that wishes to make a claim for contribution must serve the third-party notice as soon as is reasonably possible. The question of what this means has been the subject of voluminous case law and many decisions can be said to turn on the specific facts before the court as to whether there has been inexcusable delay.

The assembly of materials and the taking of advice, which are necessary to reach a conclusion as to whether it is appropriate to seek to join a third party, are relevant considerations in determining whether third-party proceedings have been pursued with sufficient expedition. The Supreme Court in Molloy v Dublin Corporation2 noted that: "Proceedings cannot and should not be instituted or contributions sought against any party without assembling and examining the relevant evidence and obtaining appropriate advice thereon".

Decision

Citing Robins v Coleman,3 the court acknowledged that there is a significant difference between the general references and allegations relative to a third party that might be made in a defence, and the specific allegations that might be made in a third-party...