Kenny -v- Howard & anor [2016] IECA 243 (29 July 2016)

Kenny -v- Howard & anor [2016] IECA 243 (29 July 2016)

The Court of Appeal held that the defendant failed to serve the third party notice on the HSE as soon as was reasonably possible. The two-year delay, largely unexplained or unjustified by necessity, did not meet the statutory requirement. Explanations such as misplacement of papers and delays in obtaining expert advice were insufficient to excuse the delay. The absence of prejudice to the HSE was irrelevant to the statutory obligation. Accordingly, the appeal was allowed and the third party notice was set aside.

Citation
[2016] IECA 243
Parties
Plaintiff: Majella Kenny; Defendant/respondent: Noel Howard; Third Party/appellant: Health Service Executive (HSE)
Jurisdiction
Ireland
Judgment Date
29 July 2016
Procedural Posture
Appeal (civil, Personal Injuries) / Court of Appeal Judgment on Appeal From High Court Order Refusing to Set Aside Third Party Notice
Outcome
Appeal allowed; third party notice set aside.
Legal Topics
Third Party Procedure, Contribution and Concurrent Wrongdoers, Limitation Periods, Professional Negligence, Procedural Delay
Civil Procedure Personal Injury Tort Law Third Party Procedure Contribution and Concurrent Wrongdoers Limitation Periods Professional Negligence Procedural Delay

Case Brief

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Parties

Majella Kenny

Plaintiff

Noel Howard

Defendant/respondent

Health Service Executive (HSE)

Third Party/appellant

Procedural Posture

Appeal (civil, Personal Injuries) / Court of Appeal Judgment on Appeal From High Court Order Refusing to Set Aside Third Party Notice

Legal Issues

  1. 1 Whether the defendant served the third party notice on the HSE 'as soon as is reasonably possible' as required by s.27(1)(b) of the Civil Liability Act 1961
  2. 2 Whether delays caused by professional advisors or experts can excuse non-compliance with statutory time requirements for third party notices
  3. 3 Whether absence of prejudice to the third party (HSE) is relevant to compliance with s.27(1)(b)

Ratio Decidendi

The Court of Appeal held that the defendant failed to serve the third party notice on the HSE as soon as was reasonably possible. The two-year delay, largely unexplained or unjustified by necessity, did not meet the statutory requirement. Explanations such as misplacement of papers and delays in obtaining expert advice were insufficient to excuse the delay. The absence of prejudice to the HSE was irrelevant to the statutory obligation. Accordingly, the appeal was allowed and the third party notice was set aside.

Court Disposition

Appeal allowed; third party notice set aside.

Orders

  • Order of the High Court refusing to set aside the third party notice is reversed.
  • Third party notice against the HSE is set aside.