 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Irish Court of Appeal |
||
|
You are here: BAILII >> Databases >> Irish Court of Appeal >> Harte v Volkswagen Group Ireland Ltd & ors (Approved) [2025] IECA 41 (13 February 2025) URL: http://www.bailii.org/ie/cases/IECA/2025/2025_IECA_41.html Cite as: [2025] IECA 41 |
||
[New search] [Printable PDF version] [Help]
THE COURT OF APPEAL
CIVIL
Appeal Number: 2024/222
Neutral Citation Number: [2025] IECA 41
Allen J.
O'Moore J.
McDonald J.
BETWEEN/
TAMMY HARTE
PLAINTIFF
- AND –
VOLKSWAGEN GROUP IRELAND LIMITED, VOLKSWAGEN IRELAND
AND VOLKSWAGEN AG
DEFENDANTS
AND
C. CURRID MOTORS LIMITED
THIRD PARTY
EX TEMPORE JUDGMENT of Mr. Justice Allen delivered on the 13th day of February, 2025
Introduction
1. This is an appeal by Volkswagen Ireland Limited, Volkswagen Ireland and Volkswagen AG ("the appellants") against the judgment and order of the High Court (Bolger J. [2023] IEHC 348) setting aside a third-party notice directed to C. Currid Motors Limited ("the respondent") on the grounds:-
(1) that the third party notice had not been issued as soon as was reasonably possible; and
(2) that the appellants' claim for contribution was bound to fail.
The action
2. By personal injuries summons issued on 18th July, 2018 Ms. Tammy Harte ("the plaintiff") issued proceedings against the appellants and the respondent claiming damages for personal injuries which she suffered in an accident on 22nd September, 2016. The case pleaded was that on that day the plaintiff had parked "her" 2008 registered Volkswagen Passat vehicle in a parking area adjoining the road and engaged the electronic brake. The plaintiff got out of the car and walked around the back of it when, suddenly and without warning, it rolled back and crushed her against a wall. The plaintiff's case is that the electronic parking brake failed by reason of an electrical fault. The appellants were named as being responsible for the manufacture and distribution of the car and the respondent - inferentially - as the supplier.
3. The summons was promptly served on the appellants and an appearance was entered on their behalf on 20th July, 2018. There appears to have been some delay in the service of the summons on the respondent but it was eventually served and an appearance was entered on its behalf on 31st January, 2019.
4. On 30th January, 2019 the respondent's solicitors wrote to the appellants' solicitors. Their instructions - they said - was that the car had been purchased in 2013, not by the plaintiff but by her husband; that it had been driven without problem or difficulty until late 2016; and that it had not been serviced, maintained, or repaired by the respondent between the date of purchase and the date of the accident. The thrust of the plaintiff's claim - it was said - was that there was a manufacturing defect and that the car had not been recalled. The respondent's solicitors more or less renewed a request for an indemnity which, it appears, had previously been refused by the appellants' solicitor in the course of a telephone call.
5. The action was progressed against the appellants but not against the respondent. On 4th November, 2019 - following two motions for judgment in default - a defence was delivered on behalf of the appellants. The appellants traversed the plaintiff's claim and pleaded in the alternative that if the plaintiff's accident and injuries were caused by an actionable wrong, any cause of action which the plaintiff had was against the respondent, against whom the appellants were entitled to a full indemnity.
6. On 28th September, 2020 the plaintiff's solicitors filed and served notice of discontinuance of the action against the respondent.
7. By notice of motion issued on 5th May, 2021 and returnable for 19th July, 2021, the appellants applied to the High Court for an order giving them liberty to issue and serve a third-party notice on the respondent. A third-party order was made by O'Connor J. on 19th July, 2021 and the third-party notice was issued on 26th July, 2021 and served on 4th August, 2021. An appearance was entered for the respondent - as third-party - on 10th August, 2021.
The motion to set aside for delay
8. By notice of motion issued on 9th September, 2021 the respondent applied to the High Court for an order pursuant to O. 16, r. 8(3) of the Rules of the Superior Courts setting aside the third-party proceedings. That motion was grounded on an affidavit of the respondent's solicitor who summarised the progress of the action and calculated - correctly - that the third-party motion had been issued seven months after the service of the notice of discontinuance. He suggested that the grounds for bringing the third-party motion were evident on the face of the personal injuries summons and the appellants' defence and that the appellants had not served a third-party notice on the respondent as soon as reasonably possible, as required by s. 27(1) of the Civil Liability Act, 1961. The respondent's solicitor referred to and exhibited the letter of 30th January, 2019, to which I have referred, and a letter of 29th April, 2021 from the appellants' solicitors to the respondent's solicitors in which they had indicated that they were proceeding by motion to join the respondent as a third party. With that letter, the appellants' solicitors enclosed a copy letter of the same date which they had sent to the respondent directly, in which they asserted that they were in the process of preparing the necessary motion papers to join the respondent as a third-party.
9. In response to the respondent's motion an affidavit of the appellants' solicitor was filed on 11th February, 2022. The appellants' solicitor suggested that there was no merit in the application to set aside the third-party procedure. He emphasised that the respondent had been a defendant in the action for two years and two months before the notice of discontinuance was served. He suggested that the period of seven months between the notice of discontinuance and the third-party motion was not culpable delay and that the respondent's solicitor had failed to address, and had made no allowance for the fact that in that seven month period there had been two separate periods of lockdown "which significantly and adversely impacted on the normal conduct and progress of business nationwide including the progress of litigation." The appellants' solicitor pointed in particular to the fact that the country was in lockdown between 15th September, 2020 and 30th November, 2020 and that there was a further lockdown "between 30th December, 2020 and continued through various stages of lockdown for the following months." "During these periods", he said, "and in compliance with public health mandates, work which continued to be conducted was from home and significantly reduced, with the result that the normal efficiencies attending on the progress of proceedings was not possible. In the [appellants'] solicitors' case, the solicitors were obliged to work on a hybrid basis both from home and the office."
10. I will come back to the affidavit which was filed in response to the delay motion but I think that it is fair to say that it was fairly repetitive and largely argumentative, commenting at some length on the purpose of the requirement that third-party notices be served as soon a reasonably possible and the policy and rationale underpinning that requirement. The appellants' solicitor expressed his clients' puzzlement as to why the plaintiff might have discontinued against the respondent; and he pointed out - correctly - that the respondent's solicitor had not addressed the circumstances in which, or the reasons why, the plaintiff's solicitors had served the notice of discontinuance.
The motion to strike out the third-party proceedings as bound to fail
11. By notice of motion issued on 17th February, 2022 the respondent applied to the High Court for an order pursuant to the inherent jurisdiction of the court to strike out the third-party proceedings on the grounds that they were frivolous, vexatious, or bound to fail.
12. That motion was also grounded on an affidavit of the respondent's solicitor; the gravamen of which was the proposition that the service and filing by the plaintiff of the notice of discontinuance against the respondent amounted to a "release" [parenthesis original] of the respondent as a concurrent wrongdoer, the consequence of which was the plaintiff was therefore to be identified with the respondent. This - he suggested - meant that if at the trial of the action it might be found that there was any liability on the part of the respondent, that liability would be deemed in law to be the responsibility of the plaintiff by way of contributory negligence.
13. In response to the second motion, the appellants' solicitor swore a further long affidavit which was in substance a repetition of what he had previously said; including - repeatedly - that neither the appellants nor the court had been provided with any information as to why the plaintiff might have discontinued her action against the respondent who - it was said - would in ordinary circumstances be considered to be an obvious and essential defendant and would normally be named as the first defendant. The appellants - it was said - took the second motion as an acknowledgement that the delay motion would not succeed; and took the timing of the second motion as betraying an absence of merit in the legal argument on that motion. Later in his affidavit, the appellants' solicitor appears to have forgotten his earlier acknowledgement that it is not appropriate to include in an affidavit what in substance would constitute legal submissions. The appellants' solicitor offered - at some length - a number of legal arguments as to why the second motion should fail.
14. On 27th May, 2022 the respondent's solicitor swore a very short supplemental affidavit. He did not - quite rightly, I must say - engage in debate as to the merits or timing of the motions but he did depose that the basis on which notice of discontinuance was served by the plaintiff was the agreement of the respondent to bear its own costs. That averment was uncontested.
The High Court judgment
15. The respondents' motions were heard together by the High Court (Bolger J.) on 21st March, 2023. Bolger J. reserved judgment and delivered a written judgment on 22nd June, 2023. ([2023] IEHC 341) The case was listed on 12th July, 2023 to deal with the final form of order and costs and those matters were then dealt with by the judge. However, for some reason the High Court order was not perfected until 13th August, 2024.
16. As to the motion pursuant to O. 16, r. 8(3), the judge - citing the majority judgment of this Court (Ryan P., Peart J. concurring) in Kenny v. Howard [2016] IECA 243 - held that time runs from the expiration of the 28 days specified in O. 16, r. 1(3). In this case, she said, the time ran from 26th October, 2020, which was 28 days after the notice of discontinuance was served and stopped on 5th May, 2021, which was the date of issue of the third-party motion. Citing the judgment of Finlay Geoghegan J. in Greene v. Triangle Developments [2015] IECA 249, the judge found that in analysing the delay, the whole circumstances of the case must be considered.
17. In this case - the judge found - the whole circumstances of the case included the periods of lockdown during the period of delay. She took judicial notice of the challenges posed to solicitors firms during lockdown and of the fact that by the time of the period under consideration, hybrid working had become the norm. However, she found that the appellants' solicitor had not identified any particular difficulty as a result of lockdown and had in fact confirmed that the firm was working on a hybrid basis.
18. The judge rejected the appellants' reliance on the fact that the respondent had been a party to the proceedings for two years and two months prior to the discontinuance. This argument, she said, sought to introduce a qualification to the requirement that a third-party notice should be served as soon as reasonably possible which was not in s. 27(1)(b) of the Civil Liability Act, 1961.
19. Citing the judgment of Simons J. in Bowen v. H & M Hennes [2022] IEHC 658, the judge held that a defendant cannot seek to justify a delay by seeking to establish that the third-party has not been prejudiced. In Bowen the High Court found that a period of three months would have provided ample time for the issue of the third-party motion, which in that case included a period of time for the defendant to finalise its defence.
20. In this case - said the judge - the appellants had offered no explanation as to how lockdown actually caused the delay, other than a vague and unsubstantiated claim that "the normal effectiveness of attending on the progress of proceedings was not possible."
The appeal
21. By notice of appeal filed on 27th August, 2024 the appellants appealed against the judgment and order of the High Court. The grounds of appeal ran to thirteen numbered paragraphs but there were only three points, made this way and that.
The judge indicated that the delay issue was not significant
22. The first ground - which was the first point - suggested that in the course of the hearing before the High Court the judge indicated to counsel that the issue of delay "was not being treated by the court as significant" and that counsel should proceed to deal with the motion to strike out the third-party procedure as frivolous and vexatious. Not the least difficulty with this - even as a proposition - is that it is not said that counsel had not already made, or did not later make, all the submissions he wanted to make on the delay issue.
23. The proposition that the judge indicated to counsel that the delay was not being treated as significant by the court was repeated in the appellants' written submissions but while it is submitted that this is confirmed by the DAR there is no reference to the transcript or to what precisely the judge is said to have said. Whatever it was is supposed to have been said by the judge is said to have amounted to a tacit holding that it was unnecessary for counsel to make any [the appellants' emphasis] submissions in regard to that motion and that on that basis, counsel did not respond to the respondent's submissions. This Court is asked to allow the appeal and either dismiss the respondent's delay motion or remit it to the High Court. The order of the High Court shows the appellants were given liberty to take up a copy of the transcript of the DAR.
24. The transcript of the hearing on 21st March, 2023 runs to 71 pages. The first 23 pages record the submissions of counsel for the respondent. Counsel for the appellants, when called upon, started by submitting that the High Court should deal first with the delay motion, and the transcript shows that counsel was invited by the judge to do just that: which he did. The appellants' submissions on the delay motion run from page 23 to page 29, at the end of which counsel is recorded as submitting that:- "... if they succeed on the first motion, the second motion is moot" to which the judge's response was:-
"JUDGE: Yes, but I'm saying if they don't succeed, if I'm with you on the first motion and I say that the third party - if I make a decision [that] the third party motion was issued within time, that seven months maybe [is] not great, but given it was during lockdown, actually I'm satisfied that it was issued as soon as was reasonably practicable, where does that leave, do you say, the second motion?"
25. And then the appellants' submissions on the second motion are set out on pages 30 to 54.
26. Having read the transcript, I am quite satisfied that there is absolutely no basis for the suggestion that counsel was - or could have been - misled by what was said by the judge; still less, that counsel was not given the opportunity to say all that he wanted to say - and for that matter, did not in fact say all that he wanted to say - about the alleged delay. It was counsel who - at the end of his submission in relation to the delay motion - suggested that if the court was against him on that motion, the second motion would be moot. The judge made it perfectly clear that she had not made up her mind and she most certainly did not curtail counsel's submission. It is plain from the transcript that the submission to this Court that counsel did not respond to the respondent's submissions on the delay motion is wrong.
27. In the course of the oral hearing this morning it was suggested that the judge had somehow by her body language - in a way which was entirely unspecified - conveyed to counsel that the issue of delay was not being treated as significant. Apart from the fact that this suggestion was entirely vague, I cannot see how the judge, by her body language, might have been thought to have indicated the opposite of what she clearly said.
The delay issue
28. The second ground of appeal - and the second point on the appeal - is that the judge erred in holding that a period of seven months delay in the circumstances constituted a failure by the appellants to move as soon as reasonably possible, as required by s. 27(1)(b) of the Act of 1961; and this is more or less repeated or paraphrased in some of the later grounds. This does not - nor do the appellants' written submissions - engage with the findings of the judge on the evidence which was before the High Court.
29. The evidence was - and the judge took judicial notice of the fact that - the COVID-19 restrictions posed challenges for everyone, and for solicitors firms in particular. The evidence was - as the judge said it was - that the appellants' solicitors' firm was working on a hybrid basis, at home and in the office. It was accepted that the notice of discontinuance was received soon after it was served and filed and there was no suggestion that it did not immediately come to notice.
30. The appellants' written and oral submissions emphasised that in analysing whether the defendant had failed to serve a third-party notice as soon as reasonably possible, regard must be had to the whole circumstances of the case and its general progress. That is entirely uncontroversial and the judge expressly so found. The appellants point to a number of the decided cases - some of which were not referred to below - without engaging with how they are said to fit in with the facts of this case.
31. The standard form notice of appeal invited the appellants - as always - to indicate whether they were asking this Court to depart from or distinguish one of its own decisions: to which the answer was No. However, in the appellants' written submissions, there was a veiled suggestion that a decision of this Court in Susquehanna International Group Ltd. v. Execuzen Ltd. [2022] IECA 209 might have been wrongly decided. Without going so far as to say that Susquehanna was decided per incuriam, the appellants identified two High Court cases which - it was said, and which, if memory serves it was correctly said - were not cited in Susquehanna but which, if they had been, "would have been viewed as a correct and cogent statement the matters [sic.] to be considered and manner of application of the legal principles which the Court should adopt in determining whether the third-party notice was served as soon as reasonably possible having regard to the whole circumstances of the case and its general progress as stated in [Connolly v. Casey [2000] 1 IR 345]."
32. The two cases identified by the appellants in their written submissions were Tuohy v. North Tipperary County Council [2008] IEHC 63 and Robins v. Coleman [2009] IEHC 486.
33. Tuohy is relied on as authority for the proposition that the court should permit some tolerance for delay which actually occurs which is explained and appears excusable, given one's - in that case Peart J.'s - knowledge of the reality of legal practice. That reliance fails to engage with the finding of the High Court in this case that the delay was not explained and did not appear to the judge to be excusable. In Tuohy the statement of claim was delivered on 28th March, 2006 and the third-party motion issued on 20th June, 2007 - and not, as the appellants' submissions suggest, 19th July, 2007. In that case the possibility of joining the third-party was not identified until after the defendant's solicitor received an engineer's report on 10th January, 2007. The third-party motion was grounded on an affidavit of the engineer which was sworn on 20th April, 2007 but had been drafted significantly earlier. The evidence was that the solicitor had had difficulty in getting the affidavit sworn by the engineer. Thereafter the motion papers were presented in the Central Office in early May, 2007 but were not issued because the solicitor's town agent was told by the Central Office staff that the defendant needed to give notice of intention to proceed. In Tuohy, on the evidence, the third-party motion was prepared well within two months of twenty eight days after the engineer's report was available. It is of no assistance to the appellants.
34. In Robins the third party was a firm of engineers who had advised the defendants but who - to make a long story short - was not a concurrent wrongdoer. It is true that McMahon J. had something to say about the desirability of avoiding multiple litigation arising out of the same factual situation but the issue in Robins was whether the court, in the exercise of its discretion, should extend the time limited by O. 16, r. 1(3) and not whether the defendants had complied with the statutory requirement in s. 27(1) of the Act of 1961 to serve the third-party notice as soon as reasonably possible.
35. The ratio of Susquehanna (incidentally a judgment which I wrote and with which Barniville P. and Noonan J. agreed) was that:-
"In deciding whether a third party notice was served as soon as was reasonably possible, the court should not be distracted by the general policy of the Act to ensure that all claims arising out of the same incident are resolved in one set of proceedings, still less subordinate the plain statutory requirement that the notice be served as soon as is reasonably possible to the general policy of the Act."
36. There is nothing in Tuohy or Robins which might have pointed to any other conclusion.
37. In this case, the affidavit grounding the third-party motion was sworn by the appellant's solicitor - as, indeed, were all of the affidavits filed on behalf of the appellants. Although no notice claiming contribution or indemnity had been served on the respondent before the action against it was discontinued, nevertheless it is quite clear from the appellants' defence that they were determined to claim a full indemnity from the then fourth defendant, as were the grounds on which they intended to do so. The defendants knew from very soon after 28th September, 2020 that the respondent was no longer a party to the proceedings. The third-party motion papers - when they were eventually served -
were short and straightforward. There was no evidence that the COVID-19 lockdowns or restrictions were any impediment to getting the motion papers drafted, or issued, or served. The appellants' solicitors' letter to the respondent of 29th April, 2021 suggests that they were only then in the process of preparing the necessary motion papers.
38. In my view, the appellants have identified no error in the finding by the High Court judge that the third-party notice was not issued as soon as reasonably possible and that the appeal on this ground must be dismissed.
The issue as to whether the claim for contribution was bound to fail
39. The High Court judge, having come to the conclusion which she did on the delay motion, went on to consider the second motion. She did that against the eventuality that she was wrong - or might be thought to have been wrong - in relation to delay. It was helpful that the judge dealt with both motions, as this would have allowed this Court - in the event that it was persuaded that she was wrong on the first motion, to go on to consider the second.
40. The position on the appeal is different. To have succeeded in having the third-party procedure reinstated, the appellants would have had to persuade this Court that the judge erred in her disposition of both motions. At the conclusion of his oral submissions, counsel for the appellants accepted that if the Court was against him on the question of delay, there was no need for it to consider the third issue on the appeal. Counsel for the respondent agreed with this. Indeed, counsel went further and submitted that (if the Court upheld the trial judge on the delay point) it would be pointless to consider the alternative motion as there would be no third-party notice to set aside. Counsel for the respondent agreed that, if the delay motion was decided in his favour, there was nothing to be gained in deciding the appeal on the second motion.
Cross appeal
41. The High Court judge, having decided that the respondent was entitled to an order setting aside the third-party procedure on both grounds, put a stay on her order in the event of an appeal. The respondent cross appealed against that element of the High Court order but counsel for the respondent agreed that whichever way the substantive appeal went, the cross-appeal would fall away.
Conclusion
42. For the reasons given, I would dismiss the appeal; and as a matter of housekeeping, I would formally strike out the cross-appeal.
Result: Appeal dismissed.