High Court awards 70% of amendment motion costs to defendants due to plaintiffs' unreasonable delay tactics.

[2026] IEHC 48

THE HIGH COURT

[2020/5880P]

BETWEEN:

HGREIT II MONTROSE OPCO LLC AND HGREIT II MONTROSE LLC

AND

COGENT PROJECT AND COST MANAGEMENT LIMITED, ETHOS

ENGINEERING LIMITED, MICHAEL PUNCH AND PARTNERS LIMITED,

AIRCONMECH LIMITED, DEANE ROOFING AND CLADDING LIMITED, SWIFT

ENGINEERING SERVICES AND SALES LIMITED, KING & MOFFATT IRELAND

LIMITED, DEREK TYNAN ASSOCIATES LIMITED, JEREMY GARDNER

ASSOCIATES IRELAND LIMITED, AND WALLS CONSTRUCTION LIMITED

DEFENDANTS

AND

AXISENG M&E LIMITED

THIRD PARTY

JUDGMENT of Mr. Justice Barry O’Donnell delivered on the 30th day of January 2026

INTRODUCTION AND BACKGROUND

1. This judgment concerns applications for the costs associated with motions that were brought by the eighth and ninth defendants to amend their defences. The motions themselves did not require an adjudication or decision by the court in circumstances where the plaintiffs withdrew their opposition to the applications shortly before a scheduled hearing date.

2. The underlying proceedings were commenced by a plenary summons issued on the 20 August 2020 and, following the joinder of the eighth to tenth defendants on the 19 July 2021, an amended plenary summons issued on the 4 August 2021. A statement of claim was delivered on the 12 November 2021. Put briefly and in very broad summary, the claims relate to construction works carried out on a property known as the Montrose Student Accommodation in Dublin 4. The works were carried out in three phases between 2014 and 2016 for the benefit of the then owner of the property. The plaintiffs are companies registered in the United States. They purchased the property pursuant to contracts for sale dated the 8 February 2017, and part of the sales process involved novation agreements in respect of the construction works. The defendants are companies that are claimed to have provided services or supplied goods in connection with the construction works. The plaintiffs claim that they discovered defects in the works during the course of further works in 2020, and the defendants have been sued for breach of contract, negligence and breach of statutory duty. The eighth defendant was sued in its capacity as architect, and the ninth defendant was sued in its capacity as fire safety engineers.

3. The eighth defendant delivered a defence dated the 2 August 2022, and the ninth defendant’s defence was dated the 3 March 2022. The plaintiffs sought case management orders from the High Court in the Non-Jury list, and an order to that effect was made on the 27 March 2023. By the end of December 2023, the parties had exchanged discovery and matters effectively were paused to allow for mediation. The court was informed that the mediation has not concluded but that the parties are continuing to prepare for trial in the ordinary way.

4. On the 21 October 2025, the plaintiffs delivered 33 witness statements or précis of evidence and 6 expert reports. The plaintiffs’ position is that they are anxious to have a date fixed for trial, albeit that the defendants still have some time for the delivery of their witness statements and expert reports. There appears to be consensus that the trial of the action will take approximately 6 months. By any reasonable measure these are complex multi-party proceedings.

THE BACKDROP TO THE APPLICATIONS IN ISSUE

5. It was not necessary to adjudicate on the amendment applications as the plaintiffs withdrew their opposition on the evening of the 16 December 2025, with the applications having been listed for hearing on the 18 December 2025. However, in order to frame the differing arguments regarding the costs of those applications it would be helpful to set out the sequence of events and the basic positions adopted by the parties prior to the withdrawal of the opposition.

6. The eighth defendant issued its motion on the 10 November 2025, and it was grounded on a short affidavit sworn by its solicitor, Sharon Burke. Ms. Burke explained that the motion to amend was issued on foot of advice of counsel and following a “review of the proceedings, discovery and expert reports”. Having identified the general nature of the proposed amendments, Ms. Burke noted that the court had made directions at a case management hearing on the 16 July 2025 granting liberty to bring a motion to amend returnable to the next scheduled case management hearing after the 15 November 2025. The ninth defendant issued its motion on the 12 November 2025, and it was grounded on an affidavit sworn by its solicitor, Michael Conaty. In a similar way to the eighth defendant, it was explained that the application to amend was prompted by a review of discovery and witness statements.

7. The plaintiffs responded to the motions by way of affidavits made by their solicitor, Garrett Breen, both of which were sworn on the 26 November 2025. In summary, in both affidavits the plaintiffs complain of prejudicial delay, essentially contending that the applications were brought at a very late stage in the proceedings, and that very little explanation had been given by the defendants for the delay or why the applications could not have been brought at an earlier point, and how any resulting logistical prejudice was to be addressed. The amendments sought by the eighth defendant were opposed on the further basis that they related to claims by way of defence that were bound to fail, and that if granted there would be significant prejudice to the plaintiffs because of the need for further pleadings additional discovery and expert reports.

8. Each of the relevant defendants responded to Mr. Breen’s affidavits, with the ninth defendant’s solicitor, Emma O’Hara, swearing an affidavit on the 1 December 2025, and Ms. Burke swearing a reply on behalf of the eighth defendant on the 3 December 2025.

9. Ms. Burke contested the suggestion that the proposed amendments introduced defence points that were bound to fail. In relation to the issue of prejudice, Ms. Burke noted that no substantial prejudice had been identified by the plaintiffs and disputed the extent of the actions that would have to be taken if the amendments were permitted. In terms of the timing of the application and the issue of delay, Ms. Burke highlighted that very extensive discovery had been made which required significant review and that the parties also had committed to the mediation process. With the exception of certain individual applications in the period over 2023 and 2024, it was stated that the case management hearing on the 16 July 2025 was the first occasion when a substantial multi-party directions hearing occurred. Once that step was taken, Ms. Burke asserted that the eighth defendant took prompt steps to progress a motion to amend.

10. Ms. O’Hara averred that the issues raised by the proposed amendments took on particular significance following the delivery of the plaintiffs’ witness statements and expert reports. The ninth defendant also suggested that part of the delay in the proceedings should be attributed to the plaintiffs’ approach to the litigation.

11. The case was listed for directions on the 19 November 2025 and mentioned on the 3 December 2025. The motions to amend were listed for hearing for one day on the 18 December 2025 along with certain other applications.

12. The plaintiffs emailed letters to the relevant defendants after 6pm on the 16 December 2025 indicating that the opposition to the amendment applications would be withdrawn on condition that the relevant defendants would meet the costs of the motion along with “all costs associated with the proposed amendments and arising therefrom, to include the costs of the Plaintiffs’ in replying to the amended Defence, raising particulars in respect of the additional pleas or any additional discovery, should this be deemed necessary.”

13. In response, in a letter dated the 17 December 2025, the eighth defendant accepted that if the plaintiffs had not opposed the motion to amend from the outset they would have been entitled to the costs of the motion, referring in that regard to relevant case law. However, the argument was made that the effect of the plaintiffs contesting the application and bringing about a separate contested hearing carried different consequences, again referring to relevant case law. The eighth defendant contended that it was entitled to the costs of the motion with a deduction representing the costs of an uncontested motion up to the return date, the 19 November 2025. This resulted in a proposal that the Plaintiffs should be responsible for two thirds of the eighth defendant’s costs of the motion to amend.

14. In relation to the post amendment costs element, the eighth defendant accepted that the plaintiffs were entitled to the costs incurred “directly and exclusively” because of the proposed amendments that would not otherwise have been incurred. The eighth defendant was not persuaded that there would be a need for additional pleadings or steps over and above the need for an amended reply. The proposal made was that it would be appropriate to make an order granting the plaintiffs the costs occasioned by the amendment including the costs of delivering an amended reply, but effectively leaving over the issue of the costs of any particulars or discovery to be determined by reference to a later determination as to whether those costs properly were incurred and attributable to the amendments.

15. In a letter dated the 17 December 2025, the ninth defendant likewise contended that the plaintiffs’ change of position was very late in the day, and that the plaintiffs should be made responsible for the costs of preparing for an avoidable substantial hearing. No concrete proposal was made, but the letter indicated that any costs occasioned by the amendments such as subsequent pleadings to which the plaintiffs may be entitled should be set off against the ninth defendant’s costs of the motion.

16. On the 18 December 2025 the court dealt with a number of applications concerning the case. The issue relating to the costs of the motions to amend were heard over approximately two and one quarter hours.

THE ARGUMENTS

17. There was a considerable overlap between the arguments made by the eighth and ninth defendants and the court will summarise those arguments together. The defendants’ accepted that in the ordinary course if the plaintiffs had not objected to the proposed amendments there would still have been an application to court for the requisite permission. In that eventuality, an order for costs would have been made in favour of the plaintiffs together with an order providing for the costs consequential on the amendment. The position, according to the defendants, is that the usual position should not obtain when the plaintiffs chose to file a replying affidavit and sought a hearing date so that the applications could be opposed and where the objection was only withdrawn effectively one clear day before the hearing. There was a slight difference between the defendants in respect of consequential costs. The eighth defendant considered that only the costs of delivering an amended reply should be treated as consequential costs, whereas the ninth defendant accepted that consequential costs would include the costs of reasonable requests for particulars or discovery so long as they arose from the amendments to their defence.

18. In terms of the reasonableness of their initial objection to the proposed amendments, the plaintiffs noted that the original grounding affidavits filed by the defendants did not offer any explanation for the delay in bringing the application and did not make any suggestions as to how any resulting logistical prejudice should be addressed, particularly given that the original defences were delivered in 2022 and discovery had been exchanged in December 2023.

19. The plaintiffs also submitted that the reasonableness of their actions had to be judged inter alia by reference to the fact that the defendants’ first and replying affidavits were received very shortly before the directions hearings on the 19 November 2025 and the 3 December 2025, and against a backdrop where the plaintiffs were endeavouring to be in a position to apply for a hearing date and therefore had sought an early hearing date for the motions to amend. The argument was made that it was only when the defendants replied to Mr. Breen’s affidavits that they adduced evidence that met the relevant legal test, which left a short period to consider the contents of the affidavits and take instructions.

20. The plaintiffs highlighted that the two motions to amend were listed with a view to a hearing taking in or about 90 minutes, and that the relatively straightforward nature of the applications was illustrated by the fact that none of the parties considered it necessary to file written legal submissions.

21. The plaintiffs also made the point that it would be invidious if they were in a worse position by conceding the applications than if they fought the applications fully. Finally, the plaintiffs noted that the authorities relied on by the defendants addressed situations where there had been a fully contested hearing on proposed amendments and that no authorities had been identified where an objection to the amendments had been withdrawn prior to the hearing of the motions.

22. Finally, the plaintiffs objected strongly to the proposition that their entitlement to the costs consequential on the amendment should be conditioned due to a concern that in some sense they would incur costs unreasonably or improperly.

RELEVANT PRINCIPLES

23. Order 28 of the RSC provides for the amendment of pleadings and, inter alia, distinguishes between situations in which the leave of the court is not required and those where leave must be obtained. In cases where prior leave is not required (rules 2 and 3), rule 13 requires the party seeking the amendment to bear the “costs of and occasioned by” the amendments unless otherwise ordered. Where the amendment is made on foot of an application to court, the amendment can be made upon “on such terms as may be just” (rule 1) “such terms as to costs or otherwise as may be just” (rule 6).

24. While the applications in this case did not engage O.28, r.13, the legislative presumption that the costs of and associated with the amendment should be borne by the amending party reflects the approach adopted in the case law to amendments on foot of court applications and therefore what should be considered as relevant to identifying a just outcome from the perspective of costs. That is reflected in the case law that both parties agreed was applicable.

25. The agreed starting point is the judgment of Clarke J. in Porterridge Trading Ltd v. First Active PLC [2008] IEHC 42. The judgment considered the proper approach to costs in the context of a contested application by the plaintiffs in associated cases to amend their claims, where the applications had been opposed by the defendants. The court ultimately determined that the approach that had been adopted by the defendants was reasonable – even if not successful – and the decision was that there was to be no departure from the usual approach of having the amending party bear the costs of the application. Clarke J. described the approach as follows: “4.7 It seems to me, therefore, that the traditional approach in respect of awarding costs of a motion to amend continues to apply to any routine application to amend, even where it may be opposed to a greater or lesser extent but not in such a manner as leads to a separate and significant hearing with its own attendant additional costs. However, where there is such a significant separate hearing then it seems to me that the court needs to take a wider range of factors into account in determining a just order as to costs.”

26. That approach reflected two propositions identified by Clarke J.: a. First, unless there were unusual circumstances, it was difficult to envisage circumstances where the costs of an ordinary application to amend would not be awarded against the party seeking the amendment. b. Second, where particular interlocutory applications become substantive matters in their own right, it is appropriate for the court to consider whether those matters should be treated as a separate “event” so that the costs of that application should follow the event. One of the reasons for the second proposition was to make clear that decisions to take or contest significant procedural applications, if unreasonable, could have costs consequences.

27. Hence, it is not the fact that the amendment was allowed that alters the position that the moving party should bear the costs of the application, but whether any opposition was unreasonable and caused an avoidable significant hearing that as a matter of justice should be treated as a separate “event”. It can be noted that in cases following the commencement of the LSRA 2015, this approach has been treated as consistent with section 169 of that Act.

28. The decision of Allen J. in Care Prime FC Ltd & Ors v. Howth Estate Company & Ors [2020] IEHC 329, adds to the considerations identified in Porterridge by clarifying that the costs outcome can be apportioned in an appropriate case. There, the plaintiffs were permitted to amend their statement of claim following a contested hearing. The court accepted the usual starting position that the party seeking the amendment should bear the costs of the necessary application. In that case, the extent of the defendants’ objection meant that the application was transferred from a Monday list, a half-day hearing was fixed, and written submissions were filed by the defendants. The court decided that the plaintiffs should be entitled to recover 70% of the costs of the motion from the defendants. The court took into account that, regardless of whether the application was opposed, the plaintiff could be expected to have incurred some level of costs and also that the defendants’ costs of answering the motion were likely greater than the costs of the plaintiffs in bringing the motion.

29. Relying on a broadly similar approach, in Stafford v. Rice [2021] IEHC 344 Simons J. awarded the plaintiff two thirds of his costs of a motion to amend. This was in circumstances where the defendant’s objections to certain of the amendments were withdrawn “too late to produce any meaningful saving in costs” and where the objections to the remaining amendments were rejected by the court. The court considered that the costs of dealing with a half-day motion were likely to be multiples of the costs of addressing the motion on a short or Monday motion basis. Hence, the two thirds figure was a fair approximation of the balance remaining once the defendant’s costs of a notional short motion were set off against the level of costs recoverable in respect of a half-day hearing.

DISCUSSION

30. Returning to the facts of this case, I consider that the starting point is that presumptively the plaintiffs would have been entitled to the costs of the defendants’ motions to amend and the costs of reasonable procedural steps that were consequential on the amendments. That position has to be modified in the light of what occurred.

31. The plaintiffs opposed the applications in a way that meant that instead of the amendments being addressed in a short directions hearing, there was a need to schedule a more substantive hearing for the 18 December 2025. That opposition was withdrawn, and the applications effectively were conceded, shortly after 6.30 pm on the 16 December 2025.

32. The difficulty presented by the approach of the plaintiffs is that, in a similar way to the defendants in Stafford v. Rice, their change of position was so late in the day that it meant that the defendants by that stage were one clear day from the scheduled hearing; and it can be taken that most of the costs likely to be associated with that contested hearing already had been incurred.

33. While there is strength in the general proposition that a party should not be placed in a worse costs position by conceding rather than contesting an application, this must be qualified where the change in position comes too late.

34. The plaintiffs complained that the amendment applications ought to have been flagged sooner. The reality was that the proceedings had been subject to mediation and on a form of hold between the finalisation of discovery and the July 2025 directions hearing. The defendants had indicated at the July 2025 directions that amendment applications were likely, and the court had directed that any applications should be brought returnable for the November 2025 directions hearing. This is what occurred. There was a short period for an exchange of affidavits, and there was a further directions hearing on the 3 December 2025.

35. In seeking to justify their stance, the plaintiffs pointed to the relative speed within which the hearing date for the motions was fixed, and that they were left with little space to take instructions and formulate a response. It seems to me that the plaintiffs’ limited room to manoeuvre was largely of their own making. The early hearing date for the defendants’ motions was sought by the plaintiffs. While the replying affidavits were received from the defendants shortly before the directions hearing on the 3 December 2025, and the plaintiffs had very little time to consider them, this was the effect of the strategic choice they had made.

36. Ultimately, my view is that the plaintiffs’ approach to the applications to amend was not reasonable, in the sense identified by Clarke J. in Porterridge. The approach adopted by the plaintiffs resulted in the motions being set down for hearing together for approximately half a day, and the concession was made too late to have a meaningful impact on costs. I fully agree that if the concession was made at a time and in a way that meant that a scheduled hearing could be avoided in good time to avoid significant costs being incurred, a different approach to costs would be warranted. In this case, the tight timescale was sought by the plaintiffs, and they cannot complain that it left them with little time to consider their position.

37. In the premises, the court will direct in respect of each motion to amend that the defendants should recover 70% of the costs of the motions to amend as against the plaintiffs. The 30% deduction reflects the unavoidable costs incurred by the defendants in bringing the motions to amend.

38. In respect of the consequential costs, the defendants accepted that there will be a need to deliver an amended reply. It will be a matter for the plaintiffs with the assistance and advice of their lawyers to decide whether they need to raise further particulars, respond to any request for particulars on foot of the amended replies, or require additional discovery. There is no basis for the eighth defendant’s concern that an order providing that the plaintiffs should be entitled to the consequential costs that will be incurred from the amendment of the defences would prompt the plaintiffs to take unnecessary steps. It will be a different matter if there is a dispute about the nature and extent of any particulars sought or discovery requested. In that eventuality, the disposal of any motion arising from any dispute will be a matter for the court dealing with the application.

39. Insofar as this dispute over the allocation of the costs of the amendment applications are concerned, the defendants were substantially successful in their arguments, and the outcome broadly reflects what they had suggested in correspondence. In the premises, I propose making an order for the costs of the costs hearing on the 18 December 2025 in favour of the defendants to be adjudicated in default of agreement. I will place a stay on the execution of the costs orders addressed in this judgement pending the determination of the substantive proceedings in the High Court.