High Court allows late amendment of defence to add negligence and breach of duty claims against State defendants.

THE HIGH COURT

[2025] IEHC 590

Record No. 2021/4274P

Between

SHANNON O’FLAHERTY

Plaintiff

-and-

MICHAEL COMYNS, JOHN QUILTER, THE COMMISSION OF AN GARDA

SÍOCHANA, THE MINISTER FOR JUSTICE, EQUALITY AND LAW

REFORM, IRELAND, AND THE ATTORNEY GENERAL

Defendants

JUDGMENT of Ms. Justice Siobhán Stack delivered 31 October, 2025.

Introduction

1. This is an application to amend a defence delivered on behalf of the third, fourth, fifth and sixth named defendants (“the State defendants”) on 14 June, 2023. The motion to amend was issued on 21, March 2025, and heard on 20 October, 2025.

2. The proceedings were commenced by plenary summons on 25 June, 2021 and a Statement of Claim was delivered on 20 October, 2021. The first and second defendants were, as of the date of the Statement of Claim, a current and a retired member of An Garda Síochána respectively, and the claim relates to their investigation of certain sexual offences allegedly committed against the plaintiff on 22 January, 2012 and on 2 February, 2012 when she was 13 or 14 years of age.

3. Neither the first nor the second defendant was the investigating officer but it is alleged that they acted improperly in connection with the investigation of the alleged offences against the plaintiff, as a result of which neither of the two men whom the plaintiff alleges abused her was ever charged.

4. The investigating officer apparently made a complaint to the Garda Síochána Ombudsman Commission (“GSOC”) which apparently made serious findings against the first and second defendants. It is alleged that those findings were subsequently quashed in High Court judicial review proceedings for breach of fair procedures, and the plaintiff complains that she was never notified in respect of the GSOC investigation, its report, or the High Court proceedings.

5. The Statement of Claim is, with respect, deeply unsatisfactory as it fails to identify with any degree of specificity the cause of action against the State defendants. It contains a rolled up plea against all defendants at para. 19 alleging that each of them is guilty of “negligence, breach of duty (including statutory duty), conspiracy, misfeasance in public office, intentional and/or reckless infliction of emotional harm, breach of the Plaintiff’s constitutional rights, and breach of her rights pursuant to the European Convention on Human Rights”. It is then alleged that the defendants’ actions were in addition “deliberately and fraudulently concealed from [the plaintiff] for many years”. Contrary to Order 19, rule 5 of the Rules of the Superior Courts, no particulars are given of this allegation of fraud which appears to be made against all defendants, including the State defendants.

6. This rolled up plea is followed up by a list of 23 particulars which do not distinguish between the actions of the first and second defendants and those of the State defendants. This makes it very difficult for the State defendants to know precisely the cause of action which is alleged against them or what the material facts giving rise to those causes of action are said to be. For example, particular (a) alleges that all of the defendants committed, as well as conspiring to commit, a criminal offence including obstructing and/or preventing the course of justice as well as an offence contrary to s.

62 of the Garda Síochána Act 2005, which apparently comprised, inter alia, the disclosure of information obtained in the course of carrying out of duties which is likely to have harmful effect.

7. I suspect that it is not in fact contended that the State defendants committed a criminal offence or conspired to commit one and that this is in fact intended only to particularise a claim against the first and second defendants. However, it is an example of the inadequate pleading of the case which makes it very difficult to know which of the 23 particulars are said to be failures on the part of the State defendants or any of them.

8. On 23 March, 2025, the State defendants raised particulars of a kind typical to personal injuries claims, that is, directed in the main at the particulars of personal injuries which are undoubtedly set out in the Statement of Claim and sought to address issues such as whether the plaintiff suffered an identifiable psychological injury, asking her to vouch special damages, and so on. I have not seen the replies but the nature of the particulars raised is an understandable response to the heavy emphasis in the Statement of Claim on the psychological trauma suffered by the plaintiff. However, no particulars appear to have been raised so as to identify the cause of action against any of the State defendants, for example, whether it is alleged that any of them have committed the tort of misfeasance in public office, which is one of the torts mentioned in the rolled up plea at para. 19 of the Statement of Claim. Neither does it seem that any particulars designed to tease out the alleged breach of constitutional or Convention rights have been raised.

9. The next problem is that under “particulars of loss and damage and personal injury including emotional harm”, a narrative of the difficulties suffered by the plaintiff from February, 2012 onwards is set out. At least some of what is contained in this narrative appears to relate to the actual alleged sexual assaults and it is not made clear whether this could be said to be a loss or damage suffered as a result of the alleged unlawful actions of the first and second defendants, let alone the State defendants.

10. All of this has made the determination of what should be a straightforward procedural motion more difficult than perhaps it need have been.

The application to amend

11. Turning to the substance of the motion, the application is to amend the defence so as to introduce three preliminary objections on the part of the State defendants.

12. The first of these is that the plaintiff is precluded from maintaining a claim for personal injuries against “the defendant” – though presumably this is a reference to all of the State defendants - as the plaintiff has failed to obtain an authorisation to maintain the claim. Such an authorisation is required whenever a “civil claim” within the meaning of s. 3 of the Personal Injuries Assessment Board Act, 2003, is made. Section

4 of that Act defines such a claim, broadly speaking, as one in which damages for “personal injuries” are claimed, subject to certain exceptions.

13. Although, as I have said, the precise claim against the State defendants is somewhat unclear, given that the loss identified in the Statement of Claim seems to consist entirely of personal injuries suffered by the plaintiff, I think it is reasonable to assume, at least for the purpose of this application, that the claim against the State defendants is a “civil claim” within the meaning of the 2003 Act, and therefore one in respect of which the plaintiff is obliged, by virtue of s. 12 of that Act, to obtain the authorisation of the Personal Injuries Assessment Board before proceedings are brought.

14. The second preliminary objection is that it is said that the plaintiff’s claim for personal injuries against the State defendants is statute-barred in whole or in part by reason of “the Statute of Limitations 1957 – 2000 (as amended)”. No particular provisions of the Statute of Limitations are identified, even in the alternative.

15. This second preliminary objection also states that any action for breach of the European Convention on Human Rights and/or European Convention on Human Rights Act 2003 is statute-barred by reason of the European Convention on Human Rights Act, 2003. Again no specific provision is identified, though I am told by counsel that it is the limitation period in s. 3 of that Act which is referred to.

16. The third preliminary objection is that the plaintiff’s claim for damages for breach of constitutional rights should be struck out as unsustainable in its own right as this case merely replicates the plaintiff’s claim for damages in respect of the torts identified in the Statement of Claim.

17. So far as an application to amend is concerned I do not believe that any serious objection to the introduction of the third preliminary objection has been raised, and I will therefore allow that amendment.

18. However, it is said on behalf of the plaintiff that the first and second preliminary objections would prejudice her and should not be permitted at this stage. I will consider these separately and I think it is easier to begin with the second objection which is designed to permit the State defendants to rely on the relevant statutory limitation periods.

Second preliminary objection – limitation periods

19. In my view, there can be no objection to the introduction of these claims in and of themselves. It is a notable feature of the Statement of Claim that not only does it not clearly identify the causes of action pleaded against the State defendants but it does not clearly state when any of the matters complained of, as far as various defendants are concerned, actually occurred.

20. The question of European Convention on Human Rights Act, 2023, is relatively straightforward: s. 3 provides that where no other remedy is available, damages may be sought for breach of the obligation of an organ of state to perform its obligations in accordance with the Convention, but that cause of action attracts a one year limitation period, subject to an extension of time by a court in the interests of justice.

21. The parties agree that the rule on amended pleadings is intended to be a liberal one, permitting the resolution of the real issues between the parties. It is also agreed that amendment to the pleading should be allowed if it would have been appropriate in the original pleadings, would have withstood an attack under Order 19, rule 28 (which does not appear to be relevant here) and provided no injustice (in the sense contemplated by the authorities) is thereby done to the plaintiff: Cornhill v. Minister for Agriculture [1998] IEHC 47, per O’Sullivan J.

22. It is agreed that the prejudice or injustice occasioned by the amendment must flow from the belated introduction of the amended plea and not from the substance of the plea itself: Stafford v. Rice [2022] IECA 47, per Collins J., at p. 18, approving this Court (Clarke J., as he then was) in Woori Bank v. KDB Ireland Ltd. [2006] IEHC 156, at para. 3.2.

23. In my view, the entirety of the second preliminary objection relating to the Statute of Limitations and to the one year limitation period in the 2003 Act should be permitted. The application of those limitation periods is determined by reference to the date of institution of proceedings as against the date of accrual of the various causes of action pleaded.

24. It is extremely difficult to be precise about the potential operation of any limitation period in this case as the plaintiff has not clearly identified the relevant causes of action at least so far as the State defendants are concerned. This must be taken into account in considering whether the defendant should have pleaded the Statute earlier. If the causes of action are not clear, it is more difficult to identify the issues to be pleaded in a defence, and this includes the raising of any limitation period.

25. But, even leaving that aside, the operation of the various limitation periods was fixed as of the date of institution of proceedings and the late introduction of limitation periods as an issue does not constitute prejudice as understood in this context. I will therefore allow the amendment to introduce the second preliminary objection.

First preliminary objection – the authorisation issue

26. Turning to the first preliminary objection which is most difficult, the parties agree that Clarke v. O’Gorman [2014] IESC 72, [2014] 3 I.R. 340 clarified that “civil action” for the purposes of the Personal Injuries Assessment Board Act, 2003, includes causes of action other than negligence where the loss claimed is damages for personal injuries. For the purposes of this application at least, it appears to be agreed – I assume on the basis of the Supreme Court decision in Clarke v. O’Gorman - that the provisions of that Act, including s. 12 which requires authorisation of proceedings before they can be brought, are applicable to the plaintiff’s claim.

27. However, the plaintiff resists the introduction of this third preliminary objection on the basis of the judgment of this Court in Duggan v. MacDonald [2016] IEHC 413. In that case, amendment was refused on the basis that the plaintiff would be prejudiced by the late introduction of the point. This prejudice would arise because Clarke v. O’Gorman decided that failure to comply with the 2003 Act had to be pleaded in the defence (and indeed expressed the view that the defendant should not be permitted to amend his defence to include it, given that he had first raised the objection after the trial had commenced). The corollary is that, until it is pleaded in the defence, a plaintiff does not need to be concerned that the point is raised.

28. However, if a defendant is allowed to introduce this point too late in the day, this can introduce difficulties for a plaintiff in instituting proceedings within the relevant limitation period. The assumption is that, where an authorisation is required, the plaintiff will have to discontinue the original proceedings, apply to the Board, and then institute fresh proceedings. As limitation periods are assessed by reference to the date of issue of proceedings, the need to issue fresh proceedings can mean that the late pleading of the authorisation point can, in turn, lead to proceedings becoming statutebarred where this was not previously the case.

29. This prejudice can arise notwithstanding the provisions of s. 50 of the 2003 Act which, broadly speaking, excludes the time spent in applying to the Board and ultimately obtaining the authorisation, plus another six months. The time which passes while the first set of proceedings are ongoing and until the late plea is introduced would be reckonable for limitation periods. On the facts of this case, that period is well in excess of four years – from institution of the proceedings on 25 June, 2021, to the date on which the amended defence is delivered which, even with strict directions as to time, will not be until November, 2025. This time period is obviously significant given that the statutory limitation period of “personal injury claims” (which, as defined by s. 3 of the Statute of Limitations (Amendment) Act, 1991, are claims for “damages in respect of personal injuries to a person caused by negligence, nuisance or breach of duty”) is two years from date of accrual of the cause of action or the “date of knowledge” within the meaning of s. 2 of the 1991 Act, whichever is the later.

30. I am going to assume for the purposes of this application that it is the potentially later “date of knowledge” which is relevant to the operation of the limitation period applicable to the claims against the State defendants. In this respect, counsel for the State defendants points out that para. 17 of the Statement of Claim appears to put this date as in or about July, 2020, when in which it is pleaded that the plaintiff first became aware of the relevant facts underlying her claim when she read media reports of a claim for workplace bullying and harassment of the investigating officer, arising out of his unwillingness to assist in the actions of the first and second defendants. If that is correct

– and counsel for the plaintiffs did not make a contrary submission on this point – then the proceedings would have become statute-barred in approximately July, 2022.

31. In this case, the plaintiff, having sued in 2021, appears to be well within the two year limitation period if indeed it is found that that period did not commence until July, 2020. However, if the authorisation point is now introduced into the defence, and if that point is well made, then the plaintiff will have to discontinue these proceedings, seek an authorisation from the Personal Injuries Assessment Board (“PIAB”), and issue fresh proceedings. Those fresh proceedings are likely to be statute-barred.

32. However, I do not accept that this constitutes prejudice for the purposes of the amendment application, as defined in Stafford v. Rice. If the authorisation objection had been included in the original defence, the plaintiff would have faced the same problem. On receipt of the defence in June, 2023, she would have had to discontinue these proceedings and apply for a authorisation. However, by the date of delivery of the original defence in these proceedings, any personal injury claim as defined in the 1991 Act would seem to have already been statute-barred.

33. The situation therefore is that plaintiff would already have been at risk of becoming statute-barred if she had taken the step of seeking authorisation from PIAB in response to a plea to this effect contained in the original defence. And, in substance, this would have occurred due to her failure to seek the authorisation of PIAB prior to issue of proceedings, not because of the introduction of the point in the original defence.

34. That being the case I do not think that the late amendment introduces any prejudice to the plaintiff in the sense that prejudice is understood in an application to amend pleadings. If these three preliminary objections had been included in the defence as originally delivered, the plaintiff would have the same difficulties as she does now.

35. This is, of course, assuming there is any merit in any of the objections, which I am not deciding. Ultimately the merits of any of these points can only be resolved at trial, or on the trial of a preliminary issue if that is found to be appropriate. It may well be that the case involves claims in respect of which it is not necessary to obtain an authorisation.

36. Therefore, I think it can fairly be said that the fact that it took the State defendants almost two years to seek to introduce these additional pleas has not significantly altered the plaintiff’s position from that which would have been the case had the pleas been introduced more promptly.

37. I would also add that the decision in Duggan proceeds on the basis that a plaintiff has to abandon proceedings, seek the relevant authorisation, and issue fresh proceedings. It is this requirement which has the consequence that a plaintiff may become statute-barred as this latter issue will be determined by reference to the date of issue of the fresh proceedings. I am making the same assumption for the purposes of this application. However, Duggan is distinguishable because the court was satisfied in that case that the late amendment would prejudice the plaintiff, whereas in this case, it is my view that no such prejudice arises.

38. It is sufficient for the purposes of this application that, had the plea been included in the original defence, the plaintiff would probably already have become statute-barred. The primary obligation rests on the plaintiff to ensure, prior to issue of proceedings, that an authorisation is not required and any prejudice to the plaintiff in this case arises from the substance of the proposed amendment rather than the belated nature of the amendment.

39. I will therefore allow all three of the amendments.