Member Login

Third-party procedure had been properly invoked in personal injury action

By: James Cross BL

or click here to request site subscription to search and view all judgments

High Court refuses insurance company’s application to set aside third party notice in personal injuries proceedings, on the grounds that: the third-party procedure was properly invoked; and the third-party proceedings should not be set aside for failure to comply with the 28-day period prescribed by the rules of court as the insurance company suffered no prejudice and the legal issues are complex and cannot be resolved properly in the context of an application to strike out proceedings on a summary basis as being frivolous, vexatious and being bound to fail.

Practice and procedure - application to set aside third-party proceedings - personal injuries action - whether insurance company is required to indemnify the Insured in respect of this personal injuries claim pursuant to a policy of commercial motor fleet insurance - three specific objections - insured failed to bring the application to join Zurich as a third-party within the twenty-eight day time-limit prescribed - said that the issues arising in the third-party proceedings are entirely different from those which arise in the personal injuries action – argued that the proceedings are frivolous and vexatious and bound to fail – procedural history - interaction between insured and insurance company - grounds for declining cover - notification period under the policy of insurance - third-party notice – subrogation – time limit provided by the rules – not a “concurrent wrongdoer” - not subject to the statutory obligation under section 27 of the 1961 Act to bring the application as soon as is reasonably possible - explanation for the delay - criteria to be taken into account in determining whether to set aside third-party proceedings – Court concludes that that the third-party proceedings should not be set aside - reasonable for the Insured to engage with the insurance company before making a formal application to join it as a third-party - five month delay in issuing the motion to join the third-party did not have any appreciable effect on the progress of the proceedings – time limits not strictly complied with – insurance company itself delayed in issuing the motion – no specific prejudice - nexus between main proceedings and third-party proceedings – entitlement to an indemnity - correct approach is that the necessary directions now be given in respect of the exchange of pleadings in the third-party proceedings and the case brought on for full hearing - the legal position is not so obvious that it is appropriate to strike out the third-party proceedings on this basis - the legal issues are complex and cannot be resolved properly in the context of an application to strike out proceedings on a summary basis - arbitration clause – insurance company could have responded to its having been joined to the proceedings as third-party by issuing a motion seeking an order pursuant to Article 8 of the Model Law – third party notice should not be set aside –

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

Leave a Comment

Your email address will not be published. Required fields are marked *