High Court allows amendment of pleadings to add negligence claims but refuses to permit a fraud claim.

THE HIGH COURT

[2026] IEHC 296

[Record No. 2019/3669 P]

BETWEEN

FINBAR TOLAN

PLAINTIFF

AND

MAYO COUNTY COUNCIL

DEFENDANT

(No. 1)

JUDGMENT of Mr. Justice Micheál O’Higgins delivered on the 22nd day of April 2026

Introduction

1. This is my judgment on the plaintiff’s application for liberty to amend his pleadings. He seeks an order pursuant to O. 28, r. 1 RSC permitting him to amend the plenary summons issued on 9th May 2019 and the statement of claim delivered on 19th May 2023.

Grounding affidavit of Finbar Tolan

2. The motion to amend is grounded on the affidavit of Mr. Tolan sworn on 7th June 2024. Mr. Tolan avers in the affidavit that he applied for planning permission to Mayo County Council to build a house on his farm and retained a planning expert (Mr. Egan) who he says owed him a duty of care under contract and general law. He avers that the planning expert also worked for Mayo County Council’s planning office but failed to disclose this fact to him. He says the planning expert’s position within the Council placed contractual duties upon him as an employee and meant that he was subject to codes of conduct which he did not adhere to. In this respect, he avers that the official was “wearing two hats so to speak and he became in conjunction with Mayo County Council, judge, jury and execution [sic] to [the plaintiff] and [his] property”.

3. Mr. Tolan avers at para. 5 of his grounding affidavit that his initial application for planning permission was refused as there was insufficient percolation for a septic tank due to the ground level of water around his house being too high. He says, therefore, that a septic tank, if permitted by grant of planning permission, would endanger his health and the public water system.

4. At para. 6, he says that after the planning application was initially refused, he was advised to reapply. He says that the planner, Mr. Egan, retained an engineer, Mr. Kelly. The plaintiff says that he never met Mr. Kelly, never dealt with him before and had no knowledge of him or his services. A further planning application was prepared and submitted to Mayo County Council which incorporated a report from Mr. Kelly, stating that the plaintiff’s site was suitable for the inclusion of a septic tank. Mr. Tolan avers that he was not a party to any engagement or interaction between Mr. Egan and Mr. Kelly. He also says that senior planning officials within Mayo County Council were aware of the initial decision to refuse him planning permission and “the efforts made to circumvent the earlier decision by the retaining of Mr. Kelly as a subterfuge that everything was correct and right”.

5. At para. 7, Mr. Tolan avers that the second planning application was a “ready up” in that it was “designed falsely to secure an outcome to cover up James Egan when it became apparent that he had a conflict of interest in working for [the plaintiff] and Mayo County Council at the same time”.

6. The plaintiff claims in his affidavit that the planning application amounted to a fraud perpetrated by Mayo County Council, its servants or agents upon the plaintiff and his property.

7. At para. 10, Mr. Tolan seeks, in light of the above and the complaint of the Council’s deponent, Ms. McConnell, in an affidavit grounding the Council’s application for an order directing the trial of a preliminary issue on the question whether the plaintiff’s claim is statute barred, to amend his plenary summons and statement of claim to particularise his complaint more fully. The plaintiff then exhibits the proposed amended pleadings in the normal way with the proposed amendments highlighted in red for the court’s benefit.

8. The plaintiff’s application to amend is opposed by the defendant. Both parties provided written submissions setting out their position and these were supplemented by oral submissions. I will now summarise the respective submissions.

Summary of the plaintiff’s submissions

9. At para. 6 of his submissions, the plaintiff makes two observations. Firstly, he says that the defendant has filed a blanket defence, but has failed to engage in any meaningful way with the events leading up to the first refusal of planning permission, the second application for planning permission and the events that took place thereafter. He says that, in this way, the defendant seeks to distance itself “by painting a veneer of distance and silence over the actual events in an effort to remove itself from responsibility”.

10. Secondly, the plaintiff states that it is noteworthy that the defendant, by and large, is claiming to be a stranger to the “actual happenings between the actors within the defendant’s office and how they interplayed among themselves to ensure that the plaintiff was granted planning permission on a site not suitable for living in, having regard to all site issues”.

11. The plaintiff relies on the decision of the Court of Appeal in Stafford v. Rice [2022] IECA 47 where Collins J. outlined the applicable principles governing an application to amend pleadings. He says that the jurisdiction the court enjoys is broad and generous.

12. Moreover, he submits that any claim or cause of action that could have been pleaded ab initio can be added by way of amendment, even if that has the effect of radically altering the nature and scope of the existing proceedings.

13. The plaintiff says that the amendments sought are necessary for the purpose of determining the real questions in controversy between the parties. He criticises the defendant for failing to file a replying affidavit, despite apparently requesting an adjournment for the purpose of doing so. The reality of the case, he says, is that he engaged an engineer/planning consultant and paid him to choose a suitable site on his farm and apply for planning permission. As a farmer, and somebody with only a secondary school education, he says that he was unaware that there could be, and was, a conflict of interest arising from Mr. Egan acting for him in the planning application while at the same time, unbeknownst to him, being an employee of the Council.

14. He contends that the Council has codes of conduct and terms and conditions in its contract of employment which govern how its servants or agents should act. He says that the Council failed to supervise its staff properly and ensure that the process was fair and open, and not such as to cause the plaintiff loss or damage. He says that what happened was fully within the knowledge of the Council, which has “used silence as a weapon to defend these proceedings. Documents have been “lost”. Actors have got sick and resigned”.

15. Turning to the text of the proposed amendments, the plaintiff contends that the amendments fall within existing causes of action that are already pleaded, and that he simply seeks to plead such actions with greater particularity. The proposed amendments disclose that the defendant acted in a manner that amounts to misfeasance in public office, and that its servants and agents were negligent and dishonest.

16. The plaintiff relies upon case law such as Glencar Exploration PLC v. Mayo County Council [2001] IESC 64 and Barlow and Ors v. The Minister for Communications [2025] IESC

14. In all the circumstances, he contends that the interests of justice warrant granting him liberty to amend his pleadings in the manner indicated so that the real issues in controversy between the parties can be addressed.

Summary of the defendant’s submissions

17. The defendant opposes the application to amend the pleadings on three principal grounds: first, it is contended that the defendant will suffer prejudice by virtue of any belated amendments at this stage, in circumstances where the proposed amendments would operate to deprive the defendant of the benefit of the statute of limitations.

18. Second, the defendant contends that the plaintiff is required to advance reasons for the proposed amendments and has utterly failed to do so in his grounding affidavit. No explanation has been offered as to why the matters now sought to be pleaded were not included in the original plenary summons in 2019 or in the original statement of claim in 2023. Full disclosure should be made by the plaintiff as to the circumstances in which the claim of fraud is now sought to be added, and proper reasons given as to why the claim was not made sooner.

19. Third, the defendant contends that the plaintiff has failed to set out in the amended statement of claim the specific allegations of fact upon which the purported plea of fraud rests.

20. The defendant says that the claim as initially pleaded relied on breach of contract, negligence, breach of duty and/or fiduciary duty and misrepresentation, all of which are said to arise out of alleged contractual obligations owed to the plaintiff arising from the plaintiff’s planning application made in or about 2006.

21. The defendant has already delivered a full defence and all allegations made by the plaintiff are denied in full. The proposed amendments now seek to introduce a claim of fraud and misfeasance in public office. The plaintiff now seeks to formulate this in several different ways, including a claim for exemplary and/or punitive damages.

22. In addition, the plaintiff has filed a supplemental affidavit sworn on 18th June 2025, which the defendant maintains is an attempt to include additional evidence for the purpose of the case proper, again without leave being granted to do so.

23. The defendant agrees that the decision of the Court of Appeal in Stafford v. Rice is the main authority on the amendment of pleadings. The defendant relies on paras. 23 (9) to (11) of the judgment of Collins J. regarding the principles to be applied where proposed amendments would deprive a party of the benefit of the statute of limitations.

24. The defendant submits that the addition of a new claim by way of amendment can have the potential to cause serious prejudice to a defendant - if that defendant would have a basis for pleading a limitation defence - if that new claim were advanced by way of separate proceedings rather than amendment of existing proceedings. The defendant relies upon principle (10) in Collins J.’s list of principles at para. 23 of the judgment to the effect that, as a general rule, an amendment for the purpose of setting up a new claim will not be permitted where the claim would or might be statute barred if made in proceedings issued at the time of the amendment.

25. The defendant also relies on an extract from Delany and McGrath on Civil Procedure, 5th Ed. (2023) at para. 5-234 in support of the proposition that an application for leave to amend will generally be refused on the basis that it would be unfair to a defendant to deprive him of a defence under the statute of limitations if the cause of action is entirely new and is not based on facts already pleaded.

26. Separately, the defendant contends that a party who applies to amend his pleadings must furnish reasons as to why the court should exercise its discretion in that party’s favour. The court is entitled to look at those reasons and the evidence adduced to inform the exercise of its discretion. In that regard, the defendant relies upon the decision of McGovern J. in Citywide Leisure Ltd. v. IBRC Ltd. [2012] IEHC 220.

27. Separately, the defendant contends that a further factor weighing against the plaintiff’s application is the plaintiff’s failure to plead the allegations of fraud with clarity or particularity. Reliance is placed on the decision of the Supreme Court (Dunne J.) in Keaney v. Sullivan [2015] IESC 75 to support the proposition that a plea of fraud must contain precise and full allegations and fact and must be particularised with clarity and particularity. Since this was not done here, it is contended that the motion should be refused.

Discussion of issues

28. I will start with some general observations. First, it is a notable feature of this application that the plaintiff has not set out in his otherwise quite lengthy grounding affidavit the reasons why he is only now seeking to amend his pleadings in circumstances where the events the subject of the pleadings go back to 2006/2007; the plenary summons issued in May 2019; and the statement of claim was delivered in May 2023. The grounding affidavit is also silent on why the plaintiff is only now seeking to plead a case of fraud. No explanation is provided as to why the claim of fraud - which is, in any event, not clearly particularised or developed to any significant extent - was not included from the outset.

29. The plaintiff has not sought to make a case that the relevant information grounding the proposed plea of fraud has only recently come to light or been disclosed in discovery. Indeed, the fraud claim, such as it is, appears to be based on the suggestion that the defendant and its employee, Mr. Egan, concealed from the plaintiff his dual role and the alleged conflict of interest to which this gave rise. That issue is already in the pleaded case, but it has not been pleaded as a fraud.

30. Since I am not the trial judge, I do not wish to comment on these matters to any great extent or indeed on any matter that may be an issue for trial. However, it is a noteworthy feature of the present application that the plaintiff’s grounding affidavit is noticeably uninformative on why the proposed amendments were not included from the outset.

31. Insofar as the grounding affidavit does address the basis for bringing the motion, the plaintiff states at para. 10 that his application to amend has been prompted in part by the defendant’s application for an order directing the trial of a preliminary issue on the question whether the plaintiff’s claim is statute barred. Whether or not this constitutes an acknowledgement by the plaintiff that this application to amend is his response to the defendant’s attempt to knock out his entire claim for being statute barred, it falls to the court to assess the prejudice that would be caused to the defendant were the plea of fraud permitted at this stage. The question of prejudice is one of the main grounds relied upon by the defendant in resisting the application to amend.

32. In addressing these issues, I propose to apply the principles identified by Mr. Justice Collins for the Court of Appeal in Stafford v. Rice at para. 23. I will omit the principles not relevant to the present application: “(1) The power of amendment is a broad one. That is evident from the terms of Order

28 Rule 1 itself, which provides that the Court may allow either party “to alter or amend his indorsement or pleadings in such manner and on such terms as may be just”.

(2) In principle, any claim, cause of action or defence that could have been pleaded ab initio can be added by way of amendment, even if that has the effect of materially – even radically — altering the nature and/or scope of the existing proceedings: see (inter alia) Wolfe v Wolfe [2000] IEHC 156, [2001] 1 IR 313, per Herbert J at 135; Shell E & P Ireland Ltd v McGrath [2006] IEHC 99, [2006] 2 ILRM 299, per Laffoy J at 311 and Rossmore Properties Limited, at para 19.6…

(3) Order 28, Rule 1 is “intended to be a liberal rule” (Croke v Waterford Crystal Ltd [2004] IESC 97, [2005] 2 IR 383, per Geoghegan J at para 36). Again, that is evident from its express terms, providing as it does that “all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties” …

(4) The requirement that the amendment is necessary for the purpose of determining “the real questions in controversy between the parties” – the language used in Order 28, Rule 1 — “simply means that the amendment must raise or relate to an issue between the parties arising from the subject matter of the proceedings”: Delany and McGrath on Civil Procedure (4th ed; 2018) (para 5–200). It does not mean that the amendment is necessary for the purpose of determining the “existing” questions in controversy.

(5) Where an amendment can be made without prejudice to the other party, or where any prejudice can be addressed by the imposition of appropriate terms (such as terms as to costs), the amendment should be allowed: per Geoghegan J in Croke v Waterford Crystal Ltd, at para 25, citing O’ Leary v Minister for Transport [2001] 1 ILRM 132; Moorehouse v Governor of Wheatfield Prison [2015] IESC 21, per MacMenamin J at para 42.

(6) Where a party seeks to rely on prejudice as a basis for resisting an amendment, they must be able to identify some prejudice that stems “from the fact of the belated alteration in the pleadings rather than the presence (if allowed) of the amendment itself” (per Clarke J in Woori Bank and Hanvit LSP Finance Ltd v KDB Ireland Limited [2006] IEHC 156, para 3.2).

(7) …

(8) …

(9) Particular considerations apply where it is said that the effect of permitting an amendment would be to deprive a defendant of a limitation defence that would otherwise be available to it. In contrast to the position where a new defendant is joined to proceedings (where, by virtue of Order 15, Rule 13 RSC, the proceedings against that party are deemed to have begun only on the making of the joinder order), where a new claim is added by way of amendment of existing proceedings pursuant to Order 28, that claim is deemed to have been made from the date of the commencement of the proceedings: Mangan v Murphy [2006] IEHC 317, at pages 4–5. As Mangan v Murphy illustrates, the addition of a new claim by way of amendment thus has the potential to cause serious prejudice to a defendant if that defendant would have a basis for pleading a limitation defence if that new claim were advanced by way of separate proceedings rather than amendment of the existing proceedings.

(10) Accordingly, as a “general rule”, an amendment setting up a new claim will not be permitted where that claim would (or might) be statute-barred 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 re-opens a past transaction(s) which the defendant might otherwise have legitimately regarded as closed.

(12) There is some suggestion in the authorities that the power of the High Court under Order 28 to permit an amendment “on such terms as may be just” would allow the court to permit a new claim to be added by way of amendment expressly on terms that the amendment will take effect only from the date of the amendment order. The judgment of Birmingham J in Rossmore Properties Limited can be read as indicating that he intended that the order made by him in that case should have that effect. The issue was also considered by the High Court (Barniville J) in Microsoft Ireland Operations Limited v Arabic Computer Systems [2021] IEHC 538, at para 82. While expressing a tentative view that the terms of Order 28 gave such a power, it was not necessary for Barniville J to reach any concluded view in the circumstances of that case: para 109. The issue was not argued in this appeal and its resolution must await a case in which it properly falls for determination. I therefore express no view on the point.

(13) The court is not generally concerned with the merits of any proposed amendment or its prospects of success at trial: see the discussion in Delany and McGrath on Civil Procedure (at para 5–206) and following, citing (inter alia) Woori Bank v KDB Ireland. Where, however, it is manifest that an amended claim is doomed to fail, the amendment should not be permitted. Requiring a defendant to plead and defend such a claim may be seen as a form of prejudice.

(14) Lastly, there appears to be no rule of law precluding the amendment of proceedings to add a claim that has accrued since the commencement of the proceedings: Delany and McGrath on Civil Procedure (at para 5–266), citing Moorview Developments Ltd v First Active plc [2008] IEHC 274, [2009] 2 ILRM 262.”

33. Collins J.’s review of the applicable principles indicates that the addition of a new claim by way of amendment can have the potential to cause serious prejudice to a defendant - if that defendant would have a basis for pleading a limitation defence - if that new claim were advanced by way of separate proceedings, rather than by amendment of the existing proceedings. It follows, therefore, that the general rule is that an amendment setting up a new claim will not be permitted where that claim would or might be statute barred if made in proceedings issued at the time of the amendment. It is not necessary for a defendant to establish, as a matter of probability, that the new claim is statute barred. However, as Collins J. notes, that rule is not an absolute one and ought not be applied overly rigidly.

34. It is necessary for the court to consider whether the proposed plea of fraud arises out of the same facts or substantially the same facts as have been already pleaded. If it does, the amendment may be permitted.

35. Having considered the existing pleadings and the proposed amendments to the pleadings in their totality, I hold that it would be unfair to the defendant in the present case to permit the plaintiff to introduce at this remove any claim based on or relating to a plea of fraud. I will now set out my reasons for this conclusion.

36. First, while the existing statement of claim pleads misrepresentation and negligent misstatement at para. 9, a (wrongful) cover-up between the defendant and Mr. Egan (para. 11) and various other allegations, it does not include any plea of fraud or set out any facts that might amount to a fraud.

37. Second, it seems to me that the claim of fraud which the plaintiff seeks to plead in the amended pleading is vague, unclear and poorly particularised. Caselaw and the applicable rules of court indicate that this is not permissible.

38. Third, no cogent reasons have been advanced to explain why the plea of fraud was not included in the original pleadings. While such a failure may not be fatal on its own to an application to amend, the case law indicates that it is a matter that may be taken into account in the exercise of the court’s discretion.

39. Fourth, the plaintiff has not satisfied me that the fraud pleas in question are necessary for the purpose of determining the real questions in controversy in this litigation.

40. I accept the submission of the defendant that O. 19, r. 5(2) RSC requires that a plea of fraud should be properly particularised. In Keaney v. Sullivan, Dunne J. for the Supreme Court approved the principle that a statement of claim must contain full and precise allegations of the facts and circumstances leading to the reasonable inference that the fraud was the cause of the loss complained of. It is not permissible to allow fraud to be inferred from the facts pleaded; fraudulent conduct must be distinctly alleged. Moreover, the authors of Delany and McGrath on Civil Procedure at para. 5-90 state that the long-established practice of the courts has been to require allegations of fraud to be pleaded with particularity.

41. For these reasons, I will disallow any amendments that concern or relate to the proposed plea of fraud. Accordingly, I will disallow:

• Para. 13 of the general endorsement of claim in the plaintiff’s amended plenary summons which seeks: “A Declaration that that [sic] the wrongful actions of the defendants [sic] officers or servants either individually and/or collectively amount to dishonest conduct and constitutes fraud and/or illegality.” I will also disallow the proposed amendments to the statement of claim as follows:

• That part of para. 20 seeking to add: “Having regard to the totality of the defendant’s executive, legal and statutory function it is submitted that the defendant’s [sic] were dishonest which said acts constitute acts of fraud on the plaintiff.”

• Para. 31 (a) which seeks: “Damages for loss arising from the fraudulent and/or in the alternative dishonest acts of the defendants it’s [sic] servants and/or agents.”

Additional pleas not involving fraud

42. Turning then to the balance of the application, I will now address the proposed additional pleas not involving fraud. It seems to me that the key question for the court is whether the proposed additional pleas relate to the real issues in controversy between the parties. Applying the legal principles identified by Collins J. in Stafford v. Rice, it is clear that the power of amendment is a liberal and broad one. Any claim that could have been pleaded ab initio can be added by way of amendment, even if that has the effect of radically altering the nature and scope of the existing proceedings. O. 28, r. 1 RSC is cast in mandatory terms such that all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Generally speaking, where an amendment can be made without prejudice to the other party, the amendment should be allowed (Croke v. Waterford Crystal Ltd at para. 25). There is no issue here of an eve-of-trial or mid-trial application.

43. There are aspects of the proposed new pleas that are not altogether clear or precise. Moreover, the amendments do not seem to address the potential difficulty that damages are being sought arising from the defendant granting something which the plaintiff himself had sought. It seems to me, however, that these are issues to be addressed in the substantive hearing. In light of the case law which indicates that the jurisdiction to amend is a liberal one, and mindful also that the court is not generally concerned with the merits of any proposed amendment or its prospects of success at trial, I propose to err on the side of caution and allow all of the other additional pleas sought by the plaintiff, even though he has not properly explained why the amended pleas did not feature in the original pleadings.

44. It seems to me that most of the additional pleas (leaving aside those relating to fraud) arise from matters that are, to an extent, already pleaded in the existing pleadings and/or involve the particularisation of related matters.

45. I wish to emphasise that I am expressly not getting involved in a commentary on the plaintiff’s chances of success with respect to the issues embraced within the proposed amended pleadings. Ultimately, as I have said, these are matters for the court of trial.

46. Accordingly, I will grant the plaintiff liberty to deliver the proposed amended pleadings, with the exception of the identified paragraphs consisting of or relating to any plea of fraud.

47. For completeness, I should say that, in ease of the plaintiff, I erred on the side of caution and had regard to the plaintiff’s supplemental affidavit, notwithstanding its lateness.

Conclusion

For the reasons stated, I will make an order pursuant to O. 28, r. 1 of the Rules of the Superior Courts permitting the plaintiff to amend the plenary summons and statement of claim in the manner indicated above. While the plaintiff’s notice of motion referenced an incorrect rule of court, this did not affect the substance of the application. I therefore ignored it.

Signed:

Micheál O’Higgins