High Court dismisses strike out application where solicitor negligence claim is not statute-barred despite time lapse.

APPROVED [2025] IEHC 582

THE HIGH COURT

2023 6005 P

BETWEEN

JOHN KILLEEN

PLAINTIFF

AND

PETER HIGGINS

TRADING AS REGAN McENTEE & PARTNERS SOLICITORS

DEFENDANTS

JUDGMENT of Mr. Justice Garrett Simons delivered on 4 November 2025

INTRODUCTION

1. This judgment is delivered in respect of an application to strike out the within proceedings on the basis that the proceedings are frivolous or vexatious; disclose no reasonable cause of action; and are bound to fail. The proceedings take the form of a claim for alleged professional negligence against a firm of solicitors brought by a former client. The principal argument advanced in support of the strike out application is that the claim against the firm of solicitors is statutebarred in circumstances where the former client had brought the solicitors’ retainer to an end more than six years prior to the institution of the proceedings. It is said that the claim is out of time having regard to section 11 of the Statute of Limitations 1957.

NO REDACTION REQUIRED

PROCEDURAL HISTORY

2. The within proceedings take the form of an action for professional negligence against the plaintiff’s former solicitors (“the defendant solicitors”). The alleged negligence is said to have occurred in relation to an earlier set of proceedings in which the defendant solicitors had acted on behalf of the plaintiff. The earlier proceedings took the form of a breach of contract claim and were entitled Killeen v. Padraig Thornton Waste Disposal Ltd (High Court 2006 3113 P). These earlier proceedings will be referred to as “the principal proceedings” to distinguish them from the within professional negligence proceedings.

3. The plaintiff makes two allegations in the professional negligence proceedings, one specific and one general. The specific allegation is that the defendant solicitors allowed the principal proceedings to be struck out for non-attendance and did not seek to reinstate those proceedings thereafter. The general allegation is that the defendant solicitors did not progress the principal proceedings with reasonable expedition.

4. The first allegation—the specific allegation—is predicated on a false premise: it is incorrect to say that the principal proceedings had been struck out. Rather, what happened was that a motion, which had been brought by the defendant in the context of the principal proceedings, had been struck out. The underlying proceedings were unaffected. This arose in the following circumstances. The defendant had filed motions seeking to dismiss the principal proceedings on the ground of delay (by reference to the death of a key witness) and on the ground that the plaintiff was estopped from pursuing the principal proceedings (by reference to his failure to raise the issue in an earlier set of proceedings). The High Court (McKechnie J.) delivered a reserved judgment on 18 March 2009 refusing to dismiss the principal proceedings on the first ground (Killeen v. Padraig Thornton Waste Disposal Ltd [2009] IEHC 131). The determination of the second ground was adjourned pending a further hearing. In the event, the undetermined motion was struck out on 19 May 2009 in circumstances where neither party had attended before the court.

5. The striking out of the defendant’s motion did not cause any prejudice to the plaintiff: this is because the motion had been brought against the plaintiff. If anything, the striking out of the motion was in ease of the plaintiff. Certainly, there would have been no benefit to the plaintiff in seeking to reinstate the defendant’s motion. It follows that this aspect of the professional negligence proceedings is bound to fail.

6. Turning next to the second allegation—the general allegation—the uncontroverted factual position is as follows. The plaintiff had become concerned about the lack of progress in the principal proceedings and had sought to retain different legal representation in June 2011. The defendant solicitors had indicated at the time that it would be necessary for some arrangement to be made in relation to their outstanding fees before they would release the papers to him.

7. Ultimately, an accommodation seems to have been reached, and the plaintiff wrote to the defendant solicitors as follows by letter dated 26 March 2015: “I refer you to our recent communications. I do not have a solicitor available to me at the moment.

I will represent myself and to that end perhaps you can

arrange for me to collect this file from your office and I

undertake to discharge you from the High Court records.

In the meantime please let me have a copy of the Judgment

delivered by Mr Justice McKechnie I do not recall ever

having been given a copy. I trust this is in order and look forward to an early reply.”

8. The plaintiff discharged the outlay (but not the professional fees) in March 2016. Thereafter, in April 2016, the plaintiff acknowledged, in writing, the receipt of his file in its entirety from the defendant solicitors.

9. In the event, the plaintiff took no step to progress the principal proceedings until February 2024 when he issued a motion. The defendant in the principal proceedings responded with a countermotion seeking to dismiss the principal proceedings by reason of inordinate and inexcusable delay. The principal proceedings were ultimately dismissed, on consent of the parties, by order of the High Court (Simons J.) on 24 June 2025.

10. In the interim, the plaintiff had instituted the within professional negligence proceedings on 8 December 2023. The defendant solicitors filed a memorandum of appearance on 13 December 2023. Having regard to a procedural objection raised by the plaintiff (as addressed under a separate heading below), it should be noted that the memorandum of appearance has been signed in the name of the firm, Regan McEntee & Partners, rather than in the name of an individual solicitor within that firm.

11. The plaintiff delivered a statement of claim on 8 February 2024. Thereafter, the plaintiff filed a motion on 5 July 2024 seeking judgment in default of defence. The defendant solicitors responded by filing a motion on 29 October 2024 seeking to strike out the proceedings on the basis that the proceedings are frivolous or vexatious; disclose no reasonable cause of action; and are bound to fail.

12. The plaintiff issued a further motion on 5 February 2025 seeking to strike out the defendant solicitors’ motion on the grounds that the signature on the notice of motion is illegible and that the return date is incorrect.

13. Logically, the motion seeking judgment in default of defence falls to be determined last: if the application to strike out the proceedings were to be successful, then the proceedings would be at an end and there would be no requirement to deliver a defence.

14. The various motions came on for hearing before me on 24 June 2025. The matter had to be adjourned, at the request of the plaintiff, in circumstances where he asserted, first, that he did not have with him, in the courtroom, all of the paperwork upon which he wished to rely, and, second, that he had become unwell and was suffering from chest pains. The matter had been adjourned for resumed hearing on 22 July 2025. The plaintiff confirmed that he did not wish to file any further motions in the interim but wanted, instead, to “draw a line” under the matter. The plaintiff was given leave to cross-examine Mr. Higgins, a partner in the defendant solicitors, on two discrete issues at the resumed hearing. In the event, this leave was not acted upon.

15. The plaintiff did not attend on the adjourned date of 22 July 2025. Instead, the plaintiff sent, by way of email, a letter from his general practitioner to the High Court registrar stating that the plaintiff was suffering from high blood pressure. The matter was adjourned, on a peremptory basis, to 6 October 2025. The plaintiff appeared on that occasion and made oral submissions to the court. The plaintiff also handed in written legal submissions dated 4 September and

11 September 2025. Judgment was reserved to today’s date.

16. For completeness, it should be recorded that the plaintiff requested that a named individual, who is neither registered nor qualified to provide legal services in this jurisdiction, be permitted to make oral submissions to the court on his behalf. It was explained to the plaintiff that whereas the named individual could provide support as a so-called McKenzie Friend, he could not be permitted to address the court in circumstances where none of the criteria stated by the Court of Appeal in Pepper Finance Corporation (Ireland) v. Moloney [2022] IECA 287 were fulfilled. In particular, there was no admissible medical evidence before the court which indicated that the plaintiff was in any way restricted in his ability to attend court or to make his case. Indeed, the plaintiff confirmed to the court on

6 October 2025 that he was in good health and that his blood pressure had dropped following a recent holiday abroad.

CHRONOLOGY

17. The key events in the chronology are summarised in tabular form below:

10 July 2006 Principal proceedings instituted

18 March 2009 Judgment of McKechnie J.

19 May 2009 Defendant’s motion in principal proceedings struck out for non-attendance June 2011 Plaintiff raises concerns re: lack of progress

26 March 2015 Plaintiff undertakes to discharge solicitors from the record March 2016 Plaintiff reimburses solicitors for outlay April 2016 Plaintiff acknowledges receipt of full file from solicitors

8 December 2023 Plaintiff issues professional negligence proceedings

13 December 2023 Memorandum of appearance filed

8 February 2024 Plaintiff delivers statement of claim

5 July 2024 Plaintiff files motion for judgment in default of defence

29 October 2024 Defendants file strike-out motion

5 February 2025 Plaintiff files counter motion

24 June 2025 Principal proceedings dismissed on consent

Motions listed; adjourned at plaintiff’s request

22 July 2025 Plaintiff fails to attend; furnishes GP note

6 October 2025 Plaintiff attends; makes oral submissions

TECHNICAL OBJECTIONS

18. Before turning to address the substance of the strike out application, it is necessary to address two technical objections raised by the plaintiff regarding alleged irregularities in the memorandum of appearance of the defendants, and the notice of motion to strike out.

(1). Memorandum of Appearance

19. The first technical objection is that the memorandum of appearance, which has been filed on behalf of the defendant, is invalid because it has been signed in the name of a firm of solicitors rather than the name of an individual solicitor within the firm.

20. The procedure for entering an appearance is prescribed under Order 12 of the Rules of the Superior Courts (“RSC”). Order 12, rule 3 provides, in relevant part, that a defendant shall enter his appearance to an originating summons by delivering to the proper officer a memorandum in writing dated on the day of its delivery and containing the name of the defendant’s solicitor or stating that the defendant defends in person. Order 12, rule 6 provides that the solicitor of a defendant shall state in the memorandum of appearance: (i) his registered place of business, or (ii) where the defendant’s solicitor consents to the receipt of documents in the proceedings by electronic mail, his or her electronic mail address (in lieu of his or her registered place of business) to which documents may be sent in electronic form. Order 12, rule 9 provides that the memorandum of appearance shall be in the Form No 1 in Appendix A, Part II of the RSC.

21. The objection to the form of the memorandum in the present proceedings is predicated on the use of the singular form of the word “solicitor” under Order 12 and Appendix A of the RSC. The logic of the objection is that this mandates that the name of an individual solicitor, rather than the name of a firm or partnership, be endorsed on the memorandum of appearance. With respect, this objection overlooks that the interpretation section under Order 125 RSC expressly provides that words importing the singular shall be construed as importing the plural and vice versa. It follows that where a defendant is represented by a firm of solicitors, rather than a sole practitioner, then it is the name and registered place of business of the firm of the solicitors which should be recorded in the memorandum of appearance. The firm of solicitors—namely, Regan McEntee & Partners Solicitors—constitute the defendants’ solicitors (plural) within the meaning of Order 12. It is appropriate to describe a partnership of solicitors by reference to the title of the firm rather than to set out the name of each individual partner. This is especially so where the partnership is registered as a limited liability partnership (“LLP”) with the Legal Services Regulatory Authority. Regan McEntee Partners has been registered as an LLP since 21 August 2023.

22. Not only does this interpretation follow from Order 125, but it is also consistent with the purpose of Order 12. A memorandum of appearance serves a threefold purpose as follows. First, it provides confirmation that the defendant has accepted service of the proceedings and potentially intends to defend same. Second, it indicates whether that defendant is represented by a solicitor or is representing themselves. Third, it nominates a postal address or an email address for the service of documents. These requirements are intended to facilitate the effective exchange of pleadings and other documents as between the two sides. An interpretation of Order 12 which allows for the entering of an appearance in the name of a firm of solicitors better advances the purpose of the rule than one which requires identification of an individual solicitor within the firm. It assists in the service of documents, whether by post or email, to know the name of the firm. The document exchange system (“DX”) allocates a code at the level of firms (rather than allocating a specific code to each individual within the firm). As to email exchanges, the name of the firm is often incorporated into the email domain. Moreover, a requirement that an individual solicitor be identified in the memorandum of appearance would necessitate filing a revised memorandum each time the identified solicitor ceased to practice with the relevant firm. There would be no benefit to such an exercise.

23. More generally, the case law indicates that it is legitimate, in other contexts, for court documents to be signed in the name of a firm of solicitors. The Supreme Court held in Donegal County Council v. Quinn [2025] IESC 19 that a firm of solicitors is entitled to apply, on behalf of an authorised prosecutor, for the issuance of a summons under the Courts (No. 3) Act 1986. Notwithstanding that the Supreme Court judgments turned largely on the proper interpretation to be attributed to the term “person” rather than the term “solicitor”, the judgments have a resonance with the present case. First, Murray J. observed that the solicitors could have, if they wished, identified all partners of the firm rather than sign the name of the firm, saying that such an approach would have been more specific in fact, but no different in law. Second, Murray J. stated that if the first and universal rule of statutory construction is directed to what the words used in the provision mean, the question of why they were intended to bear any asserted meaning will often be a close runner-up. Here, the plaintiff has failed to put forward any explanation as to why Order 12 should be interpreted restrictively so as to disallow the endorsement of a firm’s registered name on a memorandum of appearance.

24. For the foregoing reasons, the proper interpretation of Order 12 is that in cases where a defendant is represented by a firm of solicitors (rather than a sole practitioner), it is permissible to endorse the registered name of the firm on the memorandum of appearance. There is no requirement that same be signed by an individual solicitor within the firm.

25. For completeness, it is proposed to address de bene esse the procedural consequences which would arise if, contrary to the finding above, a memorandum of appearance may only ever be entered in the name of an individual solicitor. On such a counterfactual hypothesis, the memorandum of appearance filed on 13 December 2023 would be irregular in that it has been entered in the name of the firm of solicitors. This would not, however, result in the automatic invalidation of the memorandum of appearance. Rather, same would, at most, be voidable not void. The memorandum of appearance had been accepted and filed in the Central Office and could only be set aside by a court order. Had the plaintiff wished to pursue an objection in this regard, it would have been necessary for him to file a motion seeking to set aside the memorandum of appearance. Order 124 RSC provides that no application to set aside any proceeding for irregularity shall be allowed unless made within a reasonable time, nor if the party applying has taken any fresh step after knowledge of the irregularity.

26. The plaintiff has never filed a motion to set aside the memorandum of appearance notwithstanding that the irregularity which he seeks to rely upon is evident from the face of the document. The plaintiff has been on notice of the facts said to constitute the irregularity since December 2023, i.e. the date upon which the memorandum of appearance was filed and served. The plaintiff made no objection at the time and instead treated the memorandum of appearance as valid and delivered a statement of claim in response. Thereafter, the plaintiff made no objection about the form of the memorandum of appearance in his affidavit grounding his application for judgment in default of defence. Indeed, he records the fact of an appearance having been entered. This is inconsistent with the approach belatedly adopted: had the plaintiff a genuine grievance as to the validity of the memorandum of appearance, he should have sought judgment in default of appearance not in default of defence.

27. The plaintiff subsequently filed a counter motion seeking to invalidate the strike out application on the grounds that the signature on the notice of motion is illegible and that the return date is incorrect. Tellingly, no motion was ever brought in respect of the supposed invalidity of the memorandum of appearance.

28. The strike out application had been part-heard and then adjourned on two occasions at the request of the plaintiff. It was only on the third day of the staggered hearing that the question of the memorandum of appearance emerged as the principal ground upon which the plaintiff sought to resist the application. With respect, it is not open to a party who has fully engaged in proceedings without demur to purport to raise, some eighteen months after the event, an objection as to the form of the memorandum of appearance. Even if the objection had been well founded—and for the reasons explained earlier it is not—the plaintiff’s conduct constitutes waiver and acquiescence.

29. For completeness, it should be recorded that even if a motion seeking to set aside the memorandum of appearance had been filed promptly, same would have been refused. The court has a broad discretion to forgive irregularities in the proceedings (whether pursuant to Order 124 or its inherent power). It would be disproportionate to set aside a memorandum of appearance, and to allow judgment go by default against a defendant, in a case where the supposed irregularity caused no prejudice whatsoever to the other side. Here, the plaintiff has been unable to point to any perceived prejudice. It is apparent from his ability to engage in correspondence with, and serve pleadings upon, the solicitors firm that the plaintiff has been aware at all times that the defendants are represented by Regan McEntee & Partners Solicitors.

30. Finally, it should be observed that it is the plaintiff, rather than the defendants, who are guilty of a procedural irregularity. In accordance with Order 14 RSC, the title to the proceedings in an action for professional negligence against a partnership of solicitors should describe the defendants either by reference to the names of the individual partners or by reference to the registered name of the partnership.

(2). Notice of Motion

31. The second technical objection is that the notice of motion, which has been filed on behalf of the defendants, is invalid by reason of a clerical error in the return date. The return date for a motion is assigned by an official within the Central Office. It is common for solicitors to leave blank spaces in the draft of the notice of motion presented at the public counter, wherein the return date can be filled in in manuscript once assigned. Here, the day and month had been left blank, but the then current year had been typed in (2024). The motion was filed on

29 October 2024 and assigned a return date of 13 January 2025. The person completing the motion wrote in the correct day and month, but did not amend the year from “2024” to “2025”. Crucially, this clerical error in the statement of the return date did not discommode the plaintiff. Rather, the plaintiff duly attended before the High Court on 13 January 2025. The motion was adjourned from time to time thereafter and was ultimately fixed for hearing on 24 June 2025.

32. The technical objection in respect of the return date was only pressed for the first time during the course of the staggered three day hearing of the motion. There is no merit in the submission that the clerical error vitiates the motion with the consequence that the hearing is a nullity. The simple fact of the matter is that the clerical error did not discommode the plaintiff, and the irregularity was cured by the attendance of the plaintiff on the return date, by his acquiescence in the fixing of a hearing date, and by his participation in the hearing.

33. Similarly, there is no merit in the objection that the signature on the notice of motion is illegible. The name of the firm of solicitors is set out in typeface on the notice of motion. The plaintiff has suffered no prejudice in this regard.

LEGAL TEST GOVERNING STRIKE OUT APPLICATION

34. The strike out application has been brought pursuant to Order 19, rule 28 of the Rules of the Superior Courts. This rule has been amended with effect from

22 September 2023 by the Rules of the Superior Courts (Order 19) 2023 (SI No. 456 of 2023).

35. The amended Order 19, rule 28(1) now reads as follows:

“The Court may, on an application by motion on notice,

strike out any claim or part of a claim which:

(i) discloses no reasonable cause of action, or

(ii) amounts to an abuse of the process of the Court, or

(iii) is bound to fail, or

(iv) has no reasonable chance of succeeding.”

36. Order 19, rule 28(3) provides, in relevant part, that the court may have regard to the pleadings and, if appropriate, to evidence in any affidavit filed in support of, or in opposition to, the application.

37. Given that the amendment is relatively recent, there is little case law to date on the precise parameters of the legal test. It is of assistance to a proper understanding of the legal test to consider the pre-amendment case law.

38. Prior to the amendment, most strike out applications were made pursuant to the court’s inherent jurisdiction rather than pursuant to the unamended version of Order 19, rule 28. This is because the unamended rule had been directed to the content of the formal pleadings rather than to the underlying merits of the proceedings. The unamended version of Order 19, rule 28 had been designed to deal with circumstances where the case as pleaded did not disclose any cause of action. The court had been required to assume that the facts—however unlikely that they might appear—were as asserted in the pleadings. By contrast, in an application pursuant to the court’s inherent jurisdiction, the court could, to a very limited extent, consider the underlying merits of the case. If it could be established that there was no credible basis for suggesting that the facts are as asserted, and that the proceedings are bound to fail on the merits, then the proceedings could be dismissed as an abuse of process pursuant to the court’s inherent jurisdiction.

39. The amendment to Order 19, rule 28 has the practical effect of eroding the previous distinction between the jurisdiction to strike out and/or to dismiss proceedings pursuant to (i) Order 19 of the Rules of the Superior Courts, and

(ii) the court’s inherent jurisdiction. In this way, the amendment effects a codification of prior case law where the limits of the court’s inherent jurisdiction to strike out were exposed. Nevertheless, the earlier case law continues to hold relevance. The Supreme Court had consistently stated—in its case law on inherent jurisdiction applications—that whatever might or might not be the merits of some form of summary disposal procedure, an application to dismiss proceedings as being bound to fail is not a means for inviting the court to resolve issues on a summary basis.

40. See, for example, Keohane v. Hynes [2014] IESC 66 (at paragraphs 6.5 and 6.6) as follows:

“[…] the underlying basis of the jurisdiction to dismiss as

being bound to fail stems from the court’s inherent

entitlement to prevent an abuse of process. Bringing a case

which is bound to fail is an abuse of process. If it is clear to

a court that a case is bound to fail, then the court has

jurisdiction to prevent that abuse of process by dismissing

the proceedings. However, as again noted by Murray J. in

Jodifern, whatever might or might not be the merits of some

form of summary disposal procedure, an application to

dismiss as being bound to fail is not a means for inviting the

court to resolve issues on a summary basis.

It is for that reason that all of the jurisprudence emphasises

that the jurisdiction is to be sparingly exercised and only

adopted when it is clear that the proceedings are bound to fail

rather than where the plaintiff’s case is very weak or where

it is sought to have an early determination on some point of

fact or law. It is against that background that the extent of

the court’s entitlement to look at the facts needs to be

judged.”

41. The effect of the amendment introduced by the Rules of the Superior Courts (Order 19) 2023 (SI No. 456 of 2023) is to codify the existing jurisprudence. This is apparent from the language used under the amended rule: the phrases “bound to fail” and “no reasonable chance of succeeding” echo the language used in the previous case law to describe the limits of the court’s inherent jurisdiction.

42. It seems to follow, by analogy with the pre-amendment case law, that the court hearing a strike out application may, to a limited extent, consider the underlying merits of the case. If it can be established that there is no credible basis for suggesting that the facts are as asserted, and that the proceedings are bound to fail on the merits, then the proceedings can be struck out pursuant to the amended rule.

43. An application to strike out proceedings will, almost by definition, have been brought at an early stage of the proceedings, at a time when the possibility of pursuing procedural mechanisms—such as the discovery of documents, interrogatories, and the power to subpoena witnesses—will not yet have been exhausted. The court hearing the strike out application must be confident that there is no credible basis for suggesting that it may, at trial, be possible for the plaintiff to establish the facts which are asserted in the pleadings, and which are necessary for success in the proceedings. As emphasised in the earlier case law, experience has shown that cases which go to trial often take unusual turns on the facts which might not have been anticipated in advance. (See, by analogy, Lopes v. Minister for Justice, Equality and Law Reform [2014] IESC 21, [2014] 2 IR 301). It is not enough that the court might be satisfied that the case is a very weak one and is likely to be successfully defended. Rather, the court must be satisfied that the proceedings disclose no cause of action and/or are bound to fail.

44. A strike out application will not be appropriate where the issues of law raised are not straightforward. See Jeffrey v. Minister for Justice, Equality and Defence [2019] IESC 27, [2022] 2 IR 635 (at paragraph 40).

STRIKE OUT APPLICATIONS AND LIMITATION PERIODS

45. The question of whether proceedings are statute-barred is generally heard and determined as part of a unitary trial of the action. Occasionally, a defendant will seek to have the question of whether the proceedings are statute-barred determined in advance by way of the trial of a preliminary issue. The preliminary issue will be determined either by reference to an agreed statement of facts or by taking the plaintiff’s case at its height.

46. It is very unusual for a defendant to seek to have the question of whether proceedings are statute-barred determined by way of a strike out application. This is because such an application requires a defendant to satisfy a much higher standard. As explained in the case law discussed above, the jurisdiction to strike out proceedings is one to be sparingly exercised and should only ever be adopted when it is clear that the proceedings are bound to fail rather than where the plaintiff’s case is very weak or where it is sought to have an early determination on some point of fact or law. A strike out application is viewed through a very different lens than the trial of a preliminary issue: the court does not engage at a granular level with the question of whether the proceedings are statute-barred with a view to final determination on the merits one way or the other. Rather, the court must be satisfied that there is no reasonable chance of the plaintiff being able to answer the plea that the proceedings are statute-barred. The court must consider whether there is a reasonable possibility that evidence—whether oral or documentary—might be forthcoming which would support the plaintiff’s answer to the plea.

47. The operation of the Statute of Limitations 1957 in the context of a professional negligence action taken by a claimant against their former legal advisors may entail factual complexity which may militate against a strike out application. This is because legal advisors will, by definition, usually have a greater knowledge and insight into the factual circumstances which might give rise to a right of action. If a legal advisor were to conceal a material fact from their client, this might result in the postponement of the limitation period under section 71 of the Act. To take a hypothetical example: suppose a solicitor failed to carry out a conveyancing transaction properly and omitted a crucial step, such as the registration of the transfer of ownership. If the legal advisor was aware of this omission and deliberately concealed the fact from his client, then the client might be able to rely on this deliberate concealment to postpone the limitation period.

48. The question of whether there has been fraudulent concealment, within the meaning of section 71 of the Statute of Limitations 1957, is a mixed question of fact and law. Save in clear-cut cases where there is no credible basis for suggesting that any material fact had been concealed, it will not normally be appropriate to dismiss summarily an argument that the limitation period has been postponed, i.e. by striking out the proceedings pursuant to Order 19, rule 28.

49. Moreover, the question of when a cause of action has accrued may also be complex in a professional negligence case. See, generally, Smith v. Cunningham [2023] IESC 13, [2024] 2 IR 314.

DISCUSSION AND DECISION

50. The defendant solicitors in these professional negligence proceedings contend that the high threshold governing a strike out application has been met in circumstances where, or so it is said, the claim against them is manifestly statutebarred. It is said that the plaintiff had terminated their retainer more than six years prior to the commencement of these proceedings and that it follows that even if there had been any negligence on their part—which is denied—the limitation period had expired by the time the proceedings were commenced.

51. The plaintiff makes two arguments in response. First, it is argued that the cause of action against the defendant solicitors did not accrue until such time as the principal proceedings were dismissed by reason of delay on 24 June 2025. The professional negligence proceedings had been instituted prior to that date. Second, the plaintiff argues that the running of the limitation period had been postponed by reason of fraudulent concealment on the part of the defendant solicitors. More specifically, the plaintiff seeks to rely on section 71 of the Statute of Limitations 1957. Subsection 71(1)(b) provides, in relevant part, that where the right of action is concealed by the fraud of the defendant or his agent, then the period of limitation shall not begin to run until the plaintiff has discovered the fraud or could with reasonable diligence have discovered it.

52. For the reasons which follow, it cannot be said that the plaintiff has no reasonable prospect of resisting a defence under the Statute of Limitations 1957 nor that his proceedings are, accordingly, bound to fail.

53. Section 11 of the Statute of Limitations provides that an action in tort or contract shall not be brought after the expiration of six years from the date on which the cause of action accrued. Here, the cause of action asserted by the plaintiff is an action in professional negligence against his former solicitors. The essence of the action is that the solicitors failed to progress the principal proceedings with reasonable expedition. It will be recalled that the principal proceedings had been instituted in July 2006 and had not yet been set down for trial some nine years later when the plaintiff terminated the defendant solicitors’ retainer in March 2015.

54. The parties have adopted diametrically opposed positions on the question of when the cause of action accrued. The plaintiff contends that it was only when the principal proceedings were dismissed for delay on 24 June 2025 that the claim for damages crystallised. The defendant solicitors, conversely, contend that the cause of action accrued once their retainer was terminated.

55. With respect, it is not at all obvious that either position is correct. The key question is when a real and meaningfully measurable loss was sustained. The loss alleged is the loss of the opportunity to pursue the claim for damages in the principal proceedings. This loss is said to have been caused by the failure of the defendant solicitors to progress the principal proceedings with reasonable expedition. Approaching the matter from first principles, there is a respectable argument to be made that this loss occurred once the delay was such that the principal proceedings would not survive an application to dismiss. It is not at all obvious that the loss only manifests once an application to dismiss has been successfully brought. On this latter analysis, the limitation period would be dependent on the conduct of a third party, i.e. the defendant in the principal proceedings. If the delay has reached the point where the principal proceedings are moribund, it is difficult to understand why the commencement of the limitation period must await the administration of a coup de grâce by way of an application to dismiss which would be unanswerable.

56. Neither party has addressed the question of the status of the principal proceedings as of six years prior to the institution of the professional negligence proceedings. No submissions have been made as to whether the principal proceedings would already have been amenable to an application to dismiss by reason of delay. It would be inappropriate, therefore, for this court to determine, of its own motion, whether the principal proceedings were already worthless at that time or whether, alternatively, the aggregate delay only became unanswerable in the years thereafter. In the absence of submissions on the point, this is a matter for the court of trial.

57. The defendant solicitors’ argument that the limitation period runs from the date of the termination of their retainer is unconvincing. The only significance of the retainer having been terminated is that the solicitors would not owe any ongoing duty of care to their (former) client thereafter. It would not absolve the defendant solicitors of liability for any prior negligence on their part. There may be a difference between the date upon which the breach of duty of care (constituting the negligence) occurs, and the date upon which a real and meaningfully measurable loss is sustained and the cause of action accrues.

58. To illustrate by example: suppose a legal advisor so mismanaged and delayed proceedings that even a short period of additional delay would make it impossible to resist an application to dismiss the proceedings on the grounds of delay. The legal advisor would be guilty of negligence, but no cause of action would accrue against him until the additional delay had occurred and the proceedings were dismissible. There is a respectable argument that the limitation period would not begin to run until such time as it would be impossible to resist an application to dismiss the proceedings on the grounds of delay. Now suppose the legal advisor’s retainer had been terminated before this happened. It is difficult to understand why this fact alone should affect the running of time. Whereas the date of termination might represent the latest date upon which a breach of the duty of care occurred, it does not necessarily follow that it represents the date upon which a real and meaningfully measurable loss is sustained. Of course, other issues might arise, such as contributory negligence or intervening events. A new legal advisor might, for example, reanimate the proceedings and thus stave off an application to dismiss on the grounds of delay.

59. The defendant solicitors’ reliance on Behan v. McGinley [2008] IEHC 18, [2011] 1 IR 47 is misplaced. The High Court was not required in that judgment to consider the question which arises in the present case, i.e. the date upon which a real and meaningfully measurable loss was sustained. The allegation of professional negligence in that case centred on the conduct by a barrister of hearings before the High Court and the Supreme Court. The loss said to flow from the alleged negligence was the failure to recover damages for breach of contract. The plaintiff in those proceedings had terminated the barrister’s retainer following the judgment of the Supreme Court. There is no question but that the loss claimed had crystallised at that stage.

60. In conclusion, in the absence of having been referred to any domestic case law directly on point, it would be inappropriate to determine this difficult legal issue on a summary application to dismiss proceedings. It is unnecessary to express any view on the second argument raised by the plaintiff, i.e. the argument in relation to fraudulent concealment. That argument is now a matter for the court of trial.

ABSENCE OF INDEPENDENT EXPERT REPORT

61. The defendant solicitors submit that the plaintiff’s claim should not be allowed to proceed by reason of the failure to put before the court an expert report which suggests that they were guilty of negligence.

62. There is no immutable rule that a claim for professional negligence must be supported by an expert report. Rather, as explained by the Supreme Court in Mangan v. Dockeray [2020] IESC 67, the requirement is that a reasonable basis must exist before any such proceedings are issued. Whereas the existence of a reasonable basis may be demonstrated by way of an expert report from a person of the same speciality as the issue involves, there will be situations where it may not be necessary to insist upon the availability of an expert report.

63. The present case represents such a situation. The nature of the allegation made is very straightforward. It is alleged that the defendant solicitors failed to progress the principal proceedings with reasonable expedition. Whereas this allegation is vigorously disputed on the facts, the legal principles governing such a claim are clear-cut. Crucially, the claim relates to the management of litigation which is not a matter in respect of which the court requires expert evidence. The case is to be contrasted with a claim of medical negligence where the court will require expert evidence to allow it to determine whether the conduct of the defendant fell below acceptable professional standards.

64. For similar reasons, the defendant solicitors’ objection that the statement of claim is “impossible to interrogate” is not well founded. It is perfectly clear from the statement of claim that the gravamen of the complaint made is that the principal proceedings, which had been commenced in July 2006, had not been brought on for hearing and were ultimately dismissed by reason of delay in June 2025. Whereas the defendant solicitors may well have good grounds for saying that the responsibility for that delay lies with the plaintiff and his alleged failure to provide adequate documentation to allow his claim to be particularised, the nature of the claim made in the professional negligence proceedings is clear-cut.

CONCLUSION AND PROPOSED FORM OF ORDER

65. It cannot be said that the plaintiff has no reasonable prospect of resisting a defence under the Statute of Limitations 1957 nor that his proceedings are, accordingly, bound to fail. (Paragraphs 50 to 60). For the avoidance of any doubt, it should be emphasised that this judgment merely decides that the high threshold for a strike out application has not been met. This judgment does not purport to make any finding of fact or law in respect of the limitation period which would bind the court of trial. Rather, all issues in respect of the Statute of Limitations remain open for determination by the court of trial.

66. There is no merit in the technical objection raised by the plaintiff to the form of the memorandum of appearance. The proper interpretation of Order 12 is that in cases where a defendant is represented by a firm of solicitors (rather than a sole practitioner), it is permissible to endorse the registered name of the firm on the memorandum of appearance. There is no requirement that same be signed by an individual solicitor within the firm. (Paragraphs 19 to 24).

67. There is no merit in the technical objection raised by the plaintiff to the form of the notice of motion filed by the defendants. (Paragraphs 31 to 33).

68. It was explained to the plaintiff at the hearing that neither of these two technical objections were well founded. Notwithstanding this, the plaintiff, with the encouragement of his McKenzie Friend, kept returning to these objections in his oral submissions. This tended to distract the plaintiff from the actual issues arising on the strike out application.

69. Litigants in person should be wary of unqualified individuals who encourage them to pursue or defend cases by reference to spurious legal arguments, which have nothing to do with the substance of the case. These charlatans purport to provide a magical solution whereby the lay litigant triumphs without ever having to contest the case on its merits. The argument in relation to the form of a memorandum of appearance is a classic example of such a spurious legal argument. Such unqualified individuals hinder the proper presentation of cases and do a disservice to litigants in person.

70. The outcome of the various motions can be summarised as follows. For ease of reference, the filing date is stated in parentheses after each motion. The defendants’ motion to strike out the proceedings is refused (29 October 2024). The plaintiff’s counter motion to strike out the defendants’ motion is refused (5 February 2025). The plaintiff’s motion for judgment in default of defence is refused (5 July 2024). It was reasonable to defer delivery of a defence until the logically anterior strike out motion had been determined. The defendants are to deliver a defence within twenty-eight days of today’s date.

71. This court’s provisional view is that, in circumstances where each party has won some and lost some of the motions, each party should bear their own costs. If either side wishes to contend for a different form of costs order than that provisionally proposed that party should file written legal submissions in the Central Office of the High Court within fourteen days and serve a copy of same on the other side. The other party will have fourteen days thereafter to file and exchange written legal submissions in reply.

72. If no written legal submissions are filed by either side by 18 November 2025, an order will be drawn up and finalised along the lines provisionally proposed.

Appearances

The plaintiff appeared as a litigant in person

Patrick McCann SC and Stephen Devine for the defendants instructed by Regan McEntee & Partners Solicitors LLP