O’Byrne v Michael Stein Travel Ltd & ors
The court ruled that the learned trial judge erred in law in failing to have regard to the inordinate delay on the part of the respondent in seeking to join the appellants as third parties, and to the failure of the respondent to give an explanation for the delay.
O’ Neill J in the IRL High Court had previously stated that the case against the appellants who, as the parents of the plaintiff who was a minor at the time of an accident on holiday, had been issued with a third party notice, was one of substance and that there was no prejudice. He held that to strike out the third party notice against the appellants would be disciplinary and that, referring to words of O’Flaherty J., orders should not be made for disciplinary purposes.
The Supreme Court accepted the submissions of the appellants that there was a considerable delay in issuing the motion to join the appellants as third parties. They sought to set aside the third party proceedings under Order 16, Rule 8 which states that the third party proceedings may at any time be set aside by the Court.
They held that the respondent did not set out any details as to why the delay had occurred, or any excuses for the delay and stated that there needs to be evidence as to the reasons for, and excuses for, a delay. This was absent in the case. The onus lay on the respondent, but no explanation for the delay was given.
The full judgement can be read here: