A lift installation company responsible for the maintenance of lifts at the Bank of Ireland offices in Dublin have been unsuccessful in their application to set aside a third party notice which was served on them in relation to personal injury proceedings.
The proceedings involve a woman who was injured allegedly as a result of the lift doors closing on her, and the installation company argued that there was unreasonable delay in serving the notice eight months after a defence was issued by the owner of the building.
Stating that it would have been premature and inconsistent with litigation efficiency if the third party notice had been issued before an expert report had been furnished, Ms Justice Marie Baker refused the application to set it aside.
In June 2013, Catherine Caffrey was allegedly injured when she was entering a lift at the offices of Bank of Ireland at Grand Canal Place, Dublin – a building which is owned by Denis O’Brien.
Ms Caffrey’s injuries, which form the basis of a personal injury claim, are alleged to have been suffered “as a result of the lift doors closing on her”. As such, in November 2013, Mr O’Brien notified Otis Limited – the company responsible for installing the lift in question, and having maintained it pursuant to an ongoing contract with Mr O’Brien.
Authorisation by the Personal Injuries Board was issued in August 2015, and the personal injuries summons was issued in January 2016. Mr O’Brien issued a defence in August 2016, but delayed bringing a motion to issue a third party notice on Otis until April 2017.
Notably, Order 16, rule 1(3) of Rules of the Superior Courts provides that: “Application for leave to issue the third-party notice shall, unless otherwise ordered by the Court, be made within twenty-eight days from the time limited for delivering the defence”.
Motion to set aside third party notice
The third party notice was served in June 2017, and Otis made the within application to the High Court to set aside the third party notice pursuant to Order 16, rule 8(3) of Rules of the Superior Courts and/or pursuant to s. 27(1)(b) of the Civil Liability Act 1961.
The primary basis on which the Otis asserted that the third party notice ought to be set aside was that it was not served as soon as was “reasonably possible”, as required under s. 27(1)(b) of the Civil Liability Act 1961.
Otis argued that the identity of the proposed third party was known to Mr O’Brien at all material times, and that he knew of their obligations relating to the maintenance of the lift; therefore there was sufficient knowledge to take steps to issue the third party notice well within the 28-day time limit in Order 16 rule 1(3) RSC.
Resisting the motion, Mr O’Brien argued that he was not in a position to make a reasoned judgment regarding the liability of Otis until a “multi-party inspection” had occurred and an expert report was furnished. Accordingly, the report was furnished in November 2017, and Mr O’Brien issued the motion immediately after receiving the advice of counsel regarding the possible liability of Otis.
Ms Justice Baker agreed with Otis that Mr O’Brien had not acted as soon as was reasonably possible, and that no delay could be blamed on the need for Mr O’Brien to further investigate the identity of the third party. Further, Justice Baker observed the description of the incident in June 2013 in the personal injury summons as “sparse”, but said that it did “clearly implicate the lift or the door or the maintenance repair or suitability of the lift”
While accepting that on a first reading it would appear that “no new information was elicited from the joint inspection”, Ms Justice Baker agreed with Mr O’Brien that it would have been premature and inconsistent with a proper approach to litigation efficiency to apply for the third party notice without expert evidence.
Ms Justice Baker opined that “a court would not condone an approach to the issue of a third party notice unless the applicant for leave was in a position to show that proper investigations and proper considerations regarding liability, both on the facts and on the law, had been considered, and formed the basis on which the application was made”.
In the circumstances, Ms Justice Baker said that it would be wrong for her to take a firm view that no additional or further information was elicited following the inspection and further advice of counsel, leading to the decision to apply for the third party notice.
Observing that it was clear this decision had not been made lightly, Ms Justice Baker was satisfied that the time which elapsed after the expert report was “well within a reasonable time”.
Finding that there was not an unreasonable delay in bringing the application, and satisfied that there was no argument that Otis was prejudiced by the delay, Justice Baker made an order refusing the relief sought by Otis.