Increasingly, the Irish courts are becoming less tolerant of delays by claimants. The recent judgment in the case of Atlantic Distributors Ltd v Sean Brennan (as yet unreported), highlights how delays in issuing third party proceedings can lead to the end of the road, not only for the third party proceedings but for subsequent contribution proceedings. Accordingly, defendants who are minded to raise issues of delay, can reap rewards by applying to strike out a claim on this ground, as happened in this case successfully handled by Kennedys Dublin. Sean Brennan, a civil engineer, issued a certificate of compliance for a house on 29 June 2001. In 2006, the owners of the property sued Atlantic and the National House Building Guarantee Scheme alleging a failure in the raft foundation and consequential defects (the original proceedings). Atlantic claimed it issued a letter of claim to Brennan in January 2007, although he had no record of receiving it.
Subsequently, Atlantic wrote to Brennan threatening to join him as a third party to the original proceedings and a third party notice was eventually filed on 17 December 2009.
In February 2010, Brennan applied for an order striking out the notice. The court granted his application on the basis of two periods of delay:
- The 22-month delay between Atlantic being served with the statement of claim on 15 January 2007 and writing to Brennan on 24 November 2008. Irish procedural rules oblige a party to issue and serve a third party notice 'as soon as reasonably practicable' and Atlantic had no explanation for this delay.
- From 24 November 2008 until the notice was filed on 17 December 2009. While Atlantic tried to justify this delay by arguing that professional negligence actions should not be commenced lightly, without having the necessary proof by way of expert reports, the court was satisfied that it had sufficient information available to proceed by way of third party notice if it was so minded.
The original proceedings went to trial in March 2010, where damages of €297,647 were awarded in favour of the owners plus costs, all but €38,000 of which were assessed against Atlantic.
In a second attempt to recover from Brennan, Atlantic then issued contribution proceedings pursuant to s.21 of the Civil Liability Act 1961. They relied on identical grounds to the third party proceedings in seeking to recover that portion of the damages awarded against them in the original proceedings. Once again, Brennan issued an application to strike out.
Citing res judicata, the court granted the application on the basis that it had already determined the issues, which could not be reopened in the context of the contribution proceedings.
While two attempts at recovery, as here, is a relatively unusual scenario, the lessons are applicable generally on the basis that, firstly, the courts are far less tolerant of delay and, secondly, a claimant may find itself prejudiced in the context of contribution proceedings issued at a later date as a result of the delay.
Accordingly, if there are reasonable grounds to apply to strike out, defendants should not be afraid to do so, although given the severity of a strike-out order, success can never be guaranteed. Even if unsuccessful, however, the application will often provide valuable information that may be of use to the defendant later in the litigation