High Court dismisses amendment to negligence claim due to lack of expert report and statute of limitations.

THE HIGH COURT

[2025] IEHC 592

[Record No. 2020/3652P]

BETWEEN

LEO LUNNEY AND MARY LUNNEY

PLAINTIFFS

AND

JAMES CANNY AND JAMES CORBETT PRACTISING IN THE STYLE

AND TITLE OF CANNY CORBETT

DEFENDANTS

JUDGMENT of Mr Justice Barr delivered on the 31st day of October 2025.

Introduction.

1. The issues in this case can be broadly summarised as follows: having obtained an order for costs in litigation in which the plaintiffs had successfully resisted a claim brought by a Mr O'Donnell against them, the plaintiffs engaged the defendants as their solicitors to enforce their taxed costs against the lands owned by Mr O'Donnell in this jurisdiction.

2. In this action, the plaintiffs allege that the defendants, having caused a judgment mortgage to be registered against Mr O'Donnell's lands comprised in folio 37977F, County Donegal, and having been instructed by the plaintiffs to proceed to obtain a well charging order and an order for sale of the said lands; the defendants negligently failed to do so; as a result whereof, the plaintiffs allege that their right to recover their costs on foot of the order for costs as taxed, has become statute barred as against Mr O'Donnell, who died on 14 December 2009.

3. The plaintiffs ceased to retain the defendants as their solicitors in or about July 2019.

4. The plaintiffs instituted proceedings against the defendants’ claiming damages in negligence and breach of contract and for misrepresentation by plenary summons issued on 20 May 2020. A statement of claim was delivered on 12 February 2021. At that time, the plaintiffs were represented by a Ms Dineen, solicitor, and by counsel.

5. The second named plaintiff having died on 10 December 2022, the first named plaintiff continues the action on his own behalf as a lay litigant; his solicitor having come off record in these proceedings on 6 March 2023. Hereinafter, he will be referred to as “the plaintiff”.

6. There are two applications before the court. The first is a motion by the plaintiff to compel the defendants to accept certain replies which he furnished in compliance with an order made by Heslin J on 7 November 2022.

7. The second motion is an application by the plaintiff to amend his statement of claim to include further allegations of negligence and breach of contract against the defendants. Essentially, he wishes to include claims that following the successful defence of the original litigation brought by Mr O'Donnell, the defendants were negligent for failing to ensure that the plaintiff and his mother were registered as full owners of the lands comprised in two separate folios in County Donegal, being folios DL18504 and DL43904; as a result whereof, it is alleged that the plaintiff has suffered loss and damage, principally in the form of loss of income from the operation of a hostel on the said lands.

8. The amended statement of claim also contains a claim that the defendants were negligent in failing to carry out the instructions which had been given by the plaintiff and his mother to take all necessary steps to enforce their judgment for costs against Mr O'Donnell's assets in the UK.

9. The defendants resist the application to amend the statement of claim at this stage on several grounds which will be set out later in the judgment.

Chronology of Relevant Events.

10. While some of the relevant chronology has been given above, it is necessary to set out the chronology in more detail. On 24 June 2008, the plaintiff and his mother obtained an order for costs against one Patrick O'Donnell in a circuit appeal in proceedings that had been brought by Mr O'Donnell against them. The plaintiffs were represented in those proceedings by Walter P. Toolan & Sons, solicitors.

11. On 27 October 2009, the plaintiffs had their costs taxed by the County Registrar. Their costs were taxed at €83,214.80 for their costs in the Circuit Court and at €14,973.91 for their costs in the High Court, giving a total of €198,188.71.

12. Subsequent to the taxation of their costs, the plaintiff and his mother retained the defendants to act for them in and about the recovery of their costs from Mr O'Donnell.

13. On 14 December 2009, Mr O'Donnell died.

14. The defendants caused a judgment mortgage in respect of the taxed costs to be registered against Mr O'Donnell's interest in the lands comprised in folio 37977F, County Donegal. The defendants admit that they were instructed by the plaintiff to commence proceedings to obtain a well charging order and an order for sale of the said lands.

15. In July 2019, the plaintiffs ceased to retain the defendants as their solicitors.

16. On 16 March 2020, the plaintiffs obtained an opinion from a legal expert to the effect that they had a claim in negligence against their former solicitors.

17. On 20 May 2020, the plaintiff and his mother issued proceedings claiming damages for professional negligence against the defendants. The plaintiffs were represented by a new solicitor, Ms Dineen, and by counsel. The proceedings were drafted by counsel. On 12 February 2021 a statement of claim was delivered on behalf of the plaintiffs.

18. On 15 November 2021, a full defence was filed on behalf of the defendants. On

11 November 2021, the defendants’ solicitor had raised a notice for particulars arising out of the statement of claim. Replies were furnished thereto on behalf of the plaintiffs. By letter dated 24 May 2022, the defendants’ solicitor raised rejoinders in relation to the inadequacy of the replies that had been given by the plaintiffs. When these went unanswered, the defendants brought a motion seeking further and better replies to certain matters that had been raised in the original notice for particulars.

19. On 7 November 2022, Heslin J made order directing that the plaintiffs were to furnish further and better replies to a number of items in the original notice for particulars within a period of nine weeks. The costs of the motion were awarded to the defendants as against the plaintiffs, but subject to a stay on execution pending the final determination of the action.

20. On 10 December 2022, the second named plaintiff died.

21. On 6 March 2023, Ms Dineen obtained an order from Coffey J permitting her to come off record for the plaintiff in these proceedings. Thereafter, the plaintiff pursued the litigation as a lay litigant.

22. By orders dated 12 January 2024 and 16 January 2024, the plaintiff obtained leave from the court to take up copies of the DAR recording of the hearings held before Heslin J on 7 November 2022 and before Coffey J on 6 March 2023.

23. The plaintiff then brought a motion before the deputy master seeking liberty to amend his statement of claim. By order dated 3 July 2024, the deputy master refused to permit the plaintiff to amend his statement of claim. The deputy master refused that order on two grounds: (a) because the plaintiff had not furnished the draft amended statement of claim to the defendants in advance of the hearing of the application; and

(b) because the deputy master could not make an order for the amendment of pleadings unless it was done on consent of the parties. The deputy master awarded the costs of the application to the defendants against the plaintiff, but again subject to a stay on execution.

24. On 30 July 2024, the plaintiff issued the present motion seeking liberty to amend his statement of claim.

25. On 11 September 2024, the plaintiff issued a motion to compel the defendants' solicitors to accept his replies as ordered by order of Heslin J dated 7 November 2022, together with such further clarification and direction as the court may decide.

26. On 16 October 2025, these two motions having been transferred into the nonjury/judicial review list, came on for hearing before this Court. Discussion.

27. The plaintiff submitted that he had sent a 540-page draft statement of claim to his former solicitor, Ms Dineen. He alleged that she had lost this document. He stated that she and counsel had proceeded to issue the statement of claim dated 12 February 2021 on his behalf.

28. The plaintiff submitted that this statement of claim did not contain the full extent of his claim in negligence against the defendants. In particular, it had not pleaded that he had instructed the defendants to ensure that he and the second named plaintiff were registered as full owners of the lands comprised in the two folios.

29. He stated that as a result of the failure of the defendants to have him and his mother registered as owners of these lands, other third parties had been registered as the full owners thereof. The plaintiff alleges that part of these lands comprised a hostel. He stated that he and his mother had suffered very considerable financial losses in the form of loss of income from use of the premises as a hostel catering for holidaymakers and/or asylum seekers in the years subsequent to 2013.

30. The plaintiff maintained that this aspect was part of his claim in negligence which should have been pleaded by his former lawyers at the outset. In addition, his claim that the defendants were negligent in failing to take steps to enforce his judgment for costs against Mr O’Donnell’s assets in the UK, should also have been included in the statement of claim issued on his behalf. He submitted that it was necessary that he be permitted to include these claims in negligence so as to put his case fully before the court at the trial of the action.

31. In relation to the motion concerning the further and better replies that had been directed by Heslin J on 7 November 2022, the plaintiff stated that he had tried to hand the replies to the defendants' counsel at the hearing before the deputy master on 3 July 2024, but neither the defendants' counsel, nor his solicitor, would accept them. It was submitted that in these circumstances it was necessary for the plaintiff to obtain an order from the court directing that the defendants’ solicitor was obliged to accept these replies.

32. In response, Mr Canny BL, submitted that as far as the replies were concerned, he denied that the plaintiff had offered them to him or to his solicitor at the hearing before the deputy master in July 2024. However, he accepted that they had been exhibited by the plaintiff in his grounding affidavit for the present application. Accordingly, he accepted that the defendants now had the replies.

33. It was submitted that there was no provision in the rules for an order that the defendants should "accept" replies as furnished by a party. The defendants had at all times been represented by a firm of solicitors. The replies could have been served on them by post in the ordinary manner. That was not done. Counsel submitted that as the replies had now been received by the defendants, there was no need for any order from the court. He submitted that the motion should simply be struck out.

34. Counsel submitted that as the replies purported to refer to elements in the draft amended statement of claim to which the defendants were objecting, the fact that they had received the replies should not be taken as any indication or representation that the defendants accepted any or all of the assertions in the replies, or the amendments contained in the draft amended statement of claim to which the replies referred.

35. In relation to the application to amend the statement of claim, counsel objected to the amendments on the following grounds: the plaintiff was out of time to sue his former solicitors, the defendants, in negligence arising out of any alleged failure by them to register the plaintiffs on any folios. It was submitted that it was settled law that the amendment of pleadings should not be allowed when a party would thereby be permitted to make a claim that was clearly statute barred: Stafford v Rice [2022] IECA 47.

36. It was submitted that the amendments should not be permitted as it was clear that while the plaintiff had obtained an expert opinion on liability in March 2020, that had not dealt with the further allegations of negligence sought to be made by way of the amendments, as these allegations had not been contained in the statement of claim delivered on 12 February 2021.

37. It was submitted that it would be in breach of the rules of court and an abuse of process to permit the plaintiff to make new allegations of professional negligence against the defendants without an expert's report to back up such allegations: Cooke v Cronin 1999 IESC 54; Whearty v Lanigan [2020] IEHC 443.

38. Without prejudice to the foregoing, it was submitted that much of the amendments sought to be made were vague, argumentative and/or irrelevant, being a commentary on progress of the litigation to date, such that they were not suitable amendments to be included in a statement of claim.

39. It was submitted that there was no adequate factual basis contained in the plaintiff’s grounding affidavit to support the making of the amendments. It was submitted that, taking all these matters into account, the court should refuse the plaintiff's application for liberty to amend his statement of claim.

Conclusions.

40. In relation to the motion concerning the further and better replies furnished by the plaintiff; as the defendants have received these replies, albeit by an unusual method of delivery, there is no need for any order in this regard. I intend to strike out the motion simpliciter.

41. In so doing, I accept the submission made by Mr Canny BL on behalf of the defendants that the fact that they have received these replies does not constitute either an acceptance of the veracity of the matters pleaded to therein, nor the relevance thereof, particularly insofar as some of the replies purport to provide particulars of matters pleaded in the draft amended statement of claim.

42. Turning to the plaintiff's motion to amend his statement of claim, the current law on the amendment of pleadings was set out comprehensively by Collins J (then sitting as a judge of the Court of Appeal) in Stafford v Rice at para. 23. That statement of the relevant principles is binding on this court.

43. Having considered the voluminous papers in this case and the oral and written submissions of the parties, I have come to the conclusion that the plaintiff's application to amend his statement of claim must be refused.

44. These proceedings were instituted by the plaintiff on 20 May 2020. His statement of claim was delivered on 12 February 2021. At that time, he was represented by solicitor and counsel. The plaintiff makes the case that he had sent a 540-page draft statement of claim to his former solicitor, Ms Dineen. He states that she lost this document. He is aggrieved that the statement of claim which was delivered on his behalf in February 2021 did not contain all the claims in negligence and breach of contract that he wished to make against the defendants.

45. If he had a problem with the statement of claim that had been issued on his behalf, he should have taken steps to remedy that situation long before now. He should have instructed his former solicitor and counsel to bring a motion to amend his statement of claim. If he alleges that his former solicitor and counsel acted without authority in issuing and serving the statement of claim on his behalf in February 2021, that is a matter for another forum.

46. Order 28 of the Rules of the Superior Courts gives the court a wide power to allow parties to amend their pleadings. In general, the courts will tend to allow parties to amend their pleadings to ensure that each party can put their case as fully as possible before the court at the trial of the action. However, it is well settled that a party will not generally be permitted to amend his pleadings to include a claim that would otherwise be statute barred at the date of the application to amend.

47. This aspect was dealt with by Collins J in principles 9–11 in para. 23 of his judgment in Stafford v Rice. Having noted that ordinarily once an amendment is permitted, it relates back to the date of issuance of the writ or statement of claim, which could thereby cause prejudice to a defendant by depriving him of a defence under the Statute of Limitations, he continued as follows at principles 10 and 11:

(10) Accordingly, as a “general rule”, an amendment setting up a new claim will not be permitted where that claim would (or might) be statutebarred if made in proceedings issued at the time of the amendment: Weldon v Neal (1887) 19 QBD 394. It is not necessary for a defendant to establish as a matter of probability that the new claim is statute-barred: a real possibility that the claim is barred will suffice: see, e.g., Mangan v Murphy at page 6 (it is “clear that there is a possibility that allowing the amendment would cause prejudice to the defendants by excluding them from reliance upon the Statute of Limitations”) and Smyth v Tunney [2009] IESC 5, [2009] 3 IR 322, per Finnegan J at para 30 (the “Statute of Limitations may well have run and the defendants would be prejudiced by the amendments sought as to additional publication”)

(11) However, that rule is not an absolute one and ought not to be applied overly rigidly. Where a plaintiff seeks to amend their pleadings to add a new cause of action arising out of “the same facts or substantially the same facts” as have already been pleaded, the amendment may be permitted: Krops, per Keane J at 121. The “addition of a new cause of action by amendment will be permitted notwithstanding that by the date of the amendment the Statute of Limitations had run if the facts pleaded are sufficient to support the new cause of action. Facts may be added by amendment if they serve only to clarify the original claim but not if they are new facts”: Smyth v Tunney, per Finnegan J at para 29. In such circumstances - neatly illustrated by the facts of Krops - permitting a new claim to be made by way of amendment causes no material prejudice to the defendant because they are already on notice of a claim(s) arising from the same facts, which they will have had an opportunity to investigate. The new claim cannot therefore be characterised as a “stale claim” or one which unfairly reopens a past transaction(s) which the defendant might otherwise have legitimately regarded as closed.

48. In Krops v Irish Forestry Board Ltd [1995] 2 IR 113, referred to above, the plaintiff's wife had been killed in an RTA by a falling tree. The defendants had been carrying out tree felling operations in the area at the time. After proceedings claiming damages in negligence had issued within the appropriate limitation period, the plaintiff was permitted to amend his pleadings after expiry of the limitation period to include a claim in nuisance.

49. The important factor was that the proposed amendment would not prejudice or embarrass the defendant by new allegations of facts being made. The plaintiff was going to rely on precisely the same facts as had been pleaded at the outset. The proposed amendment merely added a claim in nuisance based on the same set of facts. It was held that no material prejudice would be suffered by the defendant by allowing the amendment to be made.

50. In the present case, the plaintiff is seeking to make entirely new claims in negligence against the defendants, to the effect that they did not secure the registration of the plaintiff and his mother as full owners of two separate folios; and that they failed to take any steps to enforce the plaintiff's judgment for costs against Mr O'Donnell's assets in the UK.

51. That is an entirely new case which is sought to be made over four years after delivery of the original statement of claim and over six years since the termination of the retainer by the plaintiffs of the defendants as their solicitors. Accordingly, it is a new case and is clearly statute barred. I refuse to allow the amendments on this ground.

52. The court has considered whether it should allow the amendments, but with a rider that they should only take effect as and from the date of the court's order permitting the amendment, so as to preserve the defendants’ right to plead that the cause of action pleaded in the amended statement of claim is statute barred.

53. There is support for this to be done in the decisions in Rossmore Properties Ltd v Electricity Supply Board [2014] IEHC 159 and from certain dicta in Microsoft Ireland Operations Limited v Arabic Computer Systems [2021] IEHC 538. In the Stafford case, Collins J noted that there were dicta to this effect in these cases, but as the point had not been argued in the case before him, he did not express a view on it.

54. I am satisfied that even assuming that the court has the power under O.28 to allow an amendment on these terms, it would not be appropriate to do so in the circumstances of this case. The events in respect of which complaint is made in these proceedings commenced at some time after the certificate of taxation had been obtained in 2009 and after the defendants were first retained by the plaintiffs to take steps to enforce their judgment for costs against Mr O'Donnell.

55. The claim articulated in the statement of claim delivered in February 2021 is that the defendants having been instructed to obtain a well charging order and an order for sale of the property over which they had registered the judgment mortgage on behalf of the plaintiffs, they had failed to do so within two years of the date of death of Mr O'Donnell, on which account it is pleaded that the plaintiffs' action in that regard had become statute barred.

56. The plaintiff now wants to introduce new claims in negligence and breach of contract to the effect that he and his mother had given instructions to the defendants to have the plaintiffs registered as full owners on the two folios in County Donegal; and that they had instructed the defendants to institute proceedings in the UK to enforce their judgment for costs against Mr O'Donnell's assets in that jurisdiction; which they allege was not done by the defendants.

57. Even leaving aside the point concerning the denial of a defence under the Statute of Limitations, I am satisfied that the inclusion of the new claims at this stage in 2025, would involve the defendants having to investigate what instructions were given to them in this regard by the plaintiff in the years 2009 – 2019, and what advices may have been given by the defendants during that period. This would cause the defendants significant prejudice in having to assemble the evidence to defend themselves against these new allegations at this remove. Given that six years has elapsed since the termination of their retainer, the defendants were entitled to assume that the entirety of the plaintiffs' claim against them was the case set out on behalf of the plaintiff in his statement of claim dated 12 February 2021. For this reason, I refuse to allow the amendments even in the terms as posited by Birmingham J (as he then was) in the Rossmore Properties case.

58. The second ground on which I refuse the application is due to the fact that the plaintiff does not have an expert’s report in relation to the new claims in negligence and breach of contract sought to be advanced by way of the amendments to the statement of claim. I have been provided with a copy of the opinion furnished by the plaintiff's expert witness, Mr Kevin O'Higgins, solicitor. That opinion is dated 16 March 2020. It does not deal with the new claims in negligence and breach of contract which are sought to be made by the amendments to the statement of claim.

59. I find as a fact that the plaintiff does not have any expert’s report which would support his case that he has a stateable cause of action in negligence against the defendants in respect of the matters sought to be pleaded in the amendments to the statement of claim.

60. It is an abuse of the process of the court to issue proceedings claiming damages for professional negligence in the absence of a suitable liability report from an expert in the relevant field: Reidy v National Maternity Hospital [1997] IEHC 143 ; Cooke v Cronin & Neary; Whearty v Lanigan. On this ground, I refuse to allow the amendments to the statement of claim.

61. Thirdly, while touched upon above, I am satisfied that, as a standalone ground, the defendants would be prejudiced by having to deal with the new claims sought to be made by the amendments at this remove. It is not fair to a defendant to allow a plaintiff to amend his claim many years after delivery of the original statement of claim, particularly where the new claims involve steps that were alleged to have been taken, or not taken, many years previously. I am satisfied that the defendants would be unfairly prejudiced if the amendments were permitted to be made to the statement of claim at this stage.

62. Fourthly, I find that many, if not all, of the proposed amendments are vague, argumentative, and/or irrelevant. They are not matters that should be pleaded in a statement of claim.

63. For the reasons set out herein, I refuse to allow the amendments sought to be made by the plaintiff to his statement of claim.

64. In relation to the final order, the court proposes that the final order should be:

(a) strike out the plaintiffs' notice of motion issued on 11 September 2024; (b) refuse the reliefs sought by the plaintiff in his notice of motion issued on 30 July 2024.

65. As this judgment is being delivered electronically, the parties shall have two weeks within which to furnish brief written submissions of not more than 1000 words on the terms of the final order and on costs and on any other matters that may arise.

66. The matter will be listed for mention at 10.30 hours on 19 November 2025 for the purpose of making final orders.