Insurers should be aware of the judgment in Judge V HSE1 as it highlights the significant consequences where decisions are not made in a timely manner in respect of applications to join third parties to proceedings.
The judgment arises from an application by Mr Aly, Consultant Vascular Surgeon, to have a Third-Party Notice, which was served on him, set aside on the ground that the HSE did not serve it "as soon as is reasonably possible", as required by section 27 of the Civil Liability Act 1961.
The plaintiff brought a claim against the HSE seeking damages for personal injuries arising from alleged negligent treatment which culminated in a below-knee amputation. The HSE applied for and served a Third-Party Notice against three third parties: Dr Aly, the Hermitage Clinic ("the Clinic"), and another.
Background
- The plaintiff sustained a foot injury on 20 June 2018 and was referred to Naas General Hospital and treated in the A&E Department.
- The plaintiff's condition deteriorated and he was referred to the Clinic, where he came under the care of Mr Aly.
- The plaintiff issued a Summons on 28 May 2020 against the HSE. Despite the Summons making reference to the Clinic, that entity was not joined to the proceedings, nor was Mr Aly. In October 2021, Further Particulars of Negligence and Further Particulars of Personal Injury, were served.
- These confirmed that the plaintiff attended the Clinic in July 2018, where an MRI confirmed a fracture to his foot. He was re-admitted to the Clinic in April 2019 due to increased pain. Ultimately, the plaintiff underwent a below-knee amputation at Beaumont Hospital in May 2019.
- The plaintiff was under the care of Mr Aly for the duration of his treatment at the Clinic and Beaumont Hospital. However, this did not come to light until the plaintiff provided Replies to Further Particulars dated 25 April 2022.
- The plaintiff confirmed that he had been transferred to Beaumont Hospital in September 2018 under the care of Mr Aly. In fact, his amputation took place at Beaumont Hospital.
The Third-Party Notice
The HSE's Motion to join the three third parties was grounded on an affidavit which stated that a report from a consultant vascular surgeon confirmed negligence on the part of Mr Aly.
The affidavit grounding the application also confirmed that this expert report was received by the HSE on 8 June 2023. The HSE's application was successful, and the Third-Party Order was served on 20 March 2024.
In his judgment, Judge Nolan noted that the Third-Party Notice was drafted on the basis of the first expert report obtained on 8 June 2023.
Shortly after the service of the Third-Party Notice on him, Mr Aly brought a Motion to set the Order aside. Mr Aly's key argument was that the Motion was not served "as soon as is reasonably possible", as required. It was argued that the HSE's grounding affidavit did not explain the delay between 25 April 2022 (when Mr Aly's name was first mentioned in the Replies to Particulars) and the obtaining of an expert report on 8 June 2023.
Importantly, it transpired that the HSE's solicitors wrote to the plaintiff's solicitors on 7 March 2023, requesting copies of Mr Aly's notes, stating that their expert required them to complete his report. Judge Nolan noted that the letter stated "The delay in providing these records may potentially prejudice our client's [sic] rights to bring potential third party proceedings in respect of this case." Judge Nolan noted that, as of 7 March 2023, "the Defendant was clearly aware of the importance of haste and the potential of prejudice which might arise." Notably, it then transpired that, "with an abundance of caution", the HSE obtained a further expert report, which was received by it on 17 October 2023. Judge Nolan stated, however, that nothing happened until the beginning of January 2024.
Decision
Judge Nolan struck out the Third-Party Notice against Mr Aly. He found that no reasonable explanation was given by the HSE for the delay once it received the expert report in June 2023 and only bringing the application in January 2024. He also found that there was no need for the HSE to have obtained the second expert report which it received on 17 October 2023. Finally, taking the whole circumstances of the case into account, he found that the Third-Party Notice was not served as soon as reasonably possible.
